Samuels v. Schultz et al

Filing 57

ORDER granting in part and denying in part 53 Motion for Summary Judgment. Signed by Hon. Jonathan W. Feldman on 03/30/2017. A copy of this Order has been sent to pro se plaintiff, Ronald Samuels, 233 Washington Avenue, Hackensack, NJ 07601. (JKT)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
RONALD SAMUELS,

DECISION & ORDER
ll-CV-6255

Plaintiff,

v.
DARREL SCHULTZ, ANTHONY
DIPONZIO, and BERNIE GARCIA,
Rochester Police Officers,
Defendants.

Procedural History
Pro
1983

se

action

plaintiff
against

Anthony DiPonzio,
or

"the

Ronald

Samuels

Rochester

and

officers") .

Bernie
See

brings

police
Garcia

Complaint

this

officers

42

Darrel

(collectively
(Docket

#

u.s.c.

1) .

§

Schultz,

"defendants"
Plaintiff

claims that the officers used excessive force when arresting him
on

May

2,

Amendments.

2008,

summary

pending

judgment,

Plaintiff filed a
Docket # 56.

violation

of

the

Fourth

and

Eighth

defendants'

motion

Id.

Currently
for

in

before
filed

the

Court

on June

20,

is

2016.

Docket

response with the Court on September 9,

Defendants did not file

a

was thereafter deemed submitted on paper.
1

reply,

# 53. 1
2016.

and the motion

For the reasons that

In accordance with the provisions of 28 U.S.C. § 636 (c), the
parties have consented to jurisdiction by a magistrate judge.
(Docket # 11).
1

follow,

defendants'

motion

is

denied

in

part

and

granted

in

part.

Discussion
Failure to Comply with Local Rules:
merits

of

defense

this

motion,

counsel

Rules

of

Civil

56 (b)

of

the

to

the

comply with

Procedure

Local

Court

and

Rules

of

must

the

address

the

requirements

Second
Civil

Before turning to the
failure

of

Circuit

case

Procedure

for

our

Local

law.
the

of

Rule
Western

District of New York provides in relevant part that
[a]ny party moving for summary judgment against a pro
se litigant shall file and serve with the motion
papers a "Notice to Pro Se Litigant Regarding Rule 56
Motion for Summary Judgment" in the form provided by
the Court.
Failure to file and serve the form notice
shall
result
in
denial
of
the
motion,
without
prejudice to proper renewal.
L.R. Civ.

P.

requirement
orders

56(b).

Judges of this Court remind counsel of this

by repeating

involving

pro

it

se

in all

of

litigants.

orders provide counsel with a

our

Indeed,

The Second Circuit has held that

notice or a

summary

failing

judgment

"[i] n the absence of such

to comply with Rule 56,

[against

scheduling

See Docket # 18 at

clear understanding by the pro se

consequences of

our

copy of the required notice that

must be attached to any dispositive motion.
4.

standard scheduling

a

pro
2

se

party]

litigant of

the

vacatur of the
is

virtually

Irby v.

automatic."
414

New York City Transit Auth.,

262 F.3d 412,

(2d Cir. 2001)
Defense counsel failed to attach the required notice here.

There

are

litigants

good
be

reasons

apprised

dismissed without

a

for

of

the

rule

requiring

the
if

trial

potential

for

they do not

their

submit

admissible evidence raising triable issues of
"obvious to a
summary

that

pro

case

se

to

be

affidavits or

fact.

It is not

layman that when his opponent files a motion for

judgment

supported by affidavits

he must

file

his

own

affidavits contradicting his opponent's if he wants to preserve
factual
344

issues

(2d Cir.

for

1988)

trial."

Graham v.

Lewinski,

(quoting Lewis v. Faulkner,

848

F.2d 342,

689 F.2d 100, 102

(7th Cir. 1982))
The meager state

of

the current record unfortunately pays

tribute to why strict abidance to the local rule is so important
to

the

efficient

response
7(a) (3)

to

the

administration

defendants'

and 56(b)

of

justice.

motion does

not

Plaintiff's

comply with Rules

of the Local Rules of Civil Procedure,

a

fact

that might have been held against plaintiff had the defendants
attached the required notice to their moving papers.
the

fact

that

plaintiff

filed

a

response

does

not

Moreover,
change

analysis.

"Where the proper notice has not been given,

fact

the

that

pro

se

litigant

has
3

made

some

response

the

the mere
to

the

motion for summary judgment is not dispositive where neither his
response nor other parts of the record reveal that he understood
the

nature

of

the

summary

judgment

Vital

process."

V.

Interfaith Med. Ctr., 168 F.3d 615, 621 {2d Cir. 1999).
Plaintiff's response to the motion for summary judgment is
haphazard,
the

disorganized and inadequate.

required

notice

for

pro

se

But absent service of

litigants,

the

Court

lacks

confidence that plaintiff understands the nature of a motion for
summary judgment or the consequences of an inadequate response.
Nevertheless,
rules,

the

defendants'
denying

despite

the

one

to

comply

Court

has

decided

to

motion

for

summary

judgment

address

with
the

instead

the motion without prejudice to renew up 0 n

with Local Rule 56 (b).
first,

failure

the

local

merits
of

of

simply

compliance

I choose to address the merits because

this case has been pending for so long and second, with

exception,

the

record

is

sufficient

for

the

Court

to

determine that summary judgment on plaintiff's excessive force
claim is not appropriate.
Fourth

Amendment

determination of a

Claim:

The

analysis

summary judgment motion in a

required

case alleging

excessive force during an arrest is well established.
In order to establish that the use of force
an arrest was unreasonable and therefore a
of the Fourth Amendment, plaintiffs must
that the government interests at stake were
4

for

to effect
violation
establish
outweighed

by "the nature and quality of the intrusion on
[plaintiffs'] Fourth Amendment interests." Graham v.
Connor, 490 U.S. 386, 396 (1989). In other words, the
factfinder must determine whether, in light of the
totality of the circumstances faced by the arresting
officer, the amount of force used was objectively
reasonable at the time. Id. at 397. The inquiry
therefore "requires careful attention to the facts and
circumstances of each particular case, including the
severity of the crime at issue, whether the suspect
poses an immediate threat to the safety of the
officers or others,
and whether he
is actively
resisting arrest or attempting to evade arrest by
flight." Id. at 396. Given the fact-specific nature of
the inquiry,
granting summary judgment against a
plaintiff
on
an
excessive
force
claim
is
not
appropriate unless no reasonable factfinder could
conclude that the officers' conduct was objectively
unreasonable. See O'Bert v. Vargo, 331 F.3d 29, 37 (2d
Cir. 2003).
Amnesty America v. Town of west Hartford, 361 F.3d 113, 123 (2d
Cir. 2004)

(emphasis supplied).

Plaintiff

alleges
they

that

excessive

arrested

him

force

on

May

was
2,

used

2008.

by

the

In

his

defendants

when

complaint,

plaintiff stated that he was coming out of a

store

and "Officer Schultz drove his police vehicle in front of the
store

exit

as

if

he

was

trying

to

hit

me

or

frighten

me."

Officer Schultz told plaintiff to drop the pack of cigarettes he
was carrying and "get on the ground."
gun"

Schultz then "pulled his

and plaintiff ran until the officers caught up with him.

Plaintiff described what happened next as follows:
I was tackled to the ground by Officer DiPonzio and
handcuffed behind my back. Officer DiPonzio was laying
on me with his knee in my back while I was handcuffed.
5

Two officers ran over to us.
Officer Schultz grabbed
the back of my neck and started choking [tne] .
He
bashed my head on the grass a couple times.
Then
Officer Schultz slapped me in the back of my head
hard.
I heard him say to me "you M. F. , you want to
run."
The other officer that ran over to me with
Officer
Schultz
was
Officer Garcia.
He
started
knee[ing] me on my hip and my lower back.
I tried to
turn around on my back.
I couldn't because Officer
Schultz was choking [me], yelling at me [to] stop
moving.
I told him I can't breathe, I can't breathe.
I
felt Officer spreading my leg.
Then Officer
DiPonzio started kneeing me on my thigh a few times.
All I can hear is "You like to run.
Lay down.
Lay
down." My thigh was in extreme pain. I was sprayed. I
don't know who sprayed me with mace.
See Complaint (Docket #1).

Once subdued, plaintiff alleges that

he was "picked up off the ground" but could not stand because of
the pain in his legs and in his back.
"was being
breathe.

funny"

but he

The officers thought he

explained that he

could not

see or

According to plaintiff, he was forced to put his face

on the hood of a police vehicle.

Id.

"it was burning my face and my chest."

The car hood was so hot
According to plaintiff,

he was then "slammed to the ground and felt a slap to the back
of my head."

Id.

Plaintiff claims he refused to put his face

back on the hood of the car and began to vomit from the mace.
Plaintiff alleges that the mace was not removed from his face
until later when he was taken to a hospital.
Based

on

police

reports,

defense

Id.

counsel

summarized

events leading to the arrest of plaintiff quite differently:

6

the

In the present case,
Police responded to a call
regarding a woman being stabbed. When they arrived on
scene, they encountered Plaintiff exiting the crime
scene. Upon seeing Officers, Plaintiff fled the crime
scene and ran around and towards Officers while
ostensibly still in possession of a knife. Plaintiff
refused several orders to drop to the ground, and once
on the ground, actively resisted Officers' attempts to
place his hands behind his back. In order to get
Plaintiff's compliance, Officers employed a ground
stabilization technique, where an officer pins a back
shoulder of an arrestee with their knee, a mandibular
angle, whereby Officers apply pressure on a nerve
behind the jaw bone to effect rapid compliance, and 3
to four knee strikes to plaintiff's outer thigh. Even
after Plaintiff was in custody, he still kicked a
patrol car and resisted being placed inside a police
vehicle.
Defendants' Memorandum of law (Docket 53-3) at 3.
Juxtaposed against each other,
the

same

event

confirm

the

these differing versions of

Second

granting summary judgment against
force claim is rarely appropriate,
West Hartford, 361 F.3d at 123

a

Circuit's

admonition

that

plaintiff on an excessive
Amnesty America v.

Town of

(finding that an allegation that

any resistance to arrest was "purely passive" was sufficient to
create a material issue of fact) .
and

choices

between

matters for the
Rule

v.

Moreover,

Brine,

jury,
Inc.,

conflicting

"Assessments of credibility
versions

of

the

events

are

not for the court on summary judgment."
85

F.3d

1002,

1011

(2d

Cir.

1996).

the Court has a duty to "extend extra consideration"

to pro se plaintiffs.

"[P]ro se parties are to be given special

latitude on summary judgment motions."
7

Bennett v.

Goard,

No.

03-CV-6577,

2006

aff 'd,

WL

2008

Coughlin,

999

WL

2794421,

5083122
F.

at

*3

(2d Cir.

Supp.

526,

(W.D.N.Y.

2008)

535

Aug.

1,

2006),

(quoting Salahuddin v.

(S.D.N.Y.

Defense

1998)).

counsel may very well be correct that the degree of force used
to

arrest

plaintiff

circumstances.
evidence,
presents
trier

of

1338808,

no
a

was

However,
matter

question
fact."

at

*3

9: 08-CV-431,

objectively

reasonable

the
weak

how
of

"weighing
plaintiff's

credibility

Miles

v.

(W.D.N.Y.

Levac,

2014)

2010 WL 1063875,

that

*8

such

claim

must

No.

(quoting
at

of

under

competing

may
left

be

appear,
to

the

2014

WL

11-CV-671S,
Cicio v.

(N.D.N. y.

the

Lamora,

Feb.

24,

No.

2010),

adopted, 2010 WL 1063864 (N.D.N.Y. 2010)).
Qualified Immunity and Excessive Force:

Defendants' motion

to dismiss plaintiff's excessive force claims because they are
entitled to qualified immunity must be denied for substantially
the

same

reasons.

"Qualified

immunity

officials performing discretionary functions

shields

government

'from liability for

civil damages insofar as their conduct does not violate clearly
established

statutory

or

constitutional

reasonable person would have known.'"
F.3d 344,

367

U.S.

818

800,

(2d Cir. 2007)
(1982)).

rights

of

which

a

Zellner v. Summerlin, 494

(quoting Harlow v.

Fitzgerald, 457

The Second Circuit has stated that in

cases alleging excessive force,

"[w] here the circumstances are
8

in dispute,

and contrasting accounts present

factual

issues as

to the degree of force actually employed and its reasonableness,
a defendant is not entitled to judgment as a matter of law on a
defense of qualified immunity."
122

(2d Cir.

Houghton v.

2002)

Mickle v. Morin,

(internal quotation marks omitted);

Culver,

452

F.

Supp.

2d 212,

(stating in an excessive force case,
happened are in dispute,
grounds]

is

[to

determine

Officers•
upon

at *7

in

assessing

this

Court

Amendment

appropriate
Amendment

on

applicable

must

force
to

Claim:

plaintiff's

claim

"[E] xcessive

be

claims

the

Yaeger,

No.

2009)

05-CV-7848,

("the only issue

immunity]

there

While

is

whether

the

the very question

are

genuine

summary

Fourth Amendment
dismissed
must

specific

which in most

Amendments,

found

2006)

issues

of

Defendants' motion is therefore denied.

material fact").
Eighth

has

(W.D.N.Y.

[on qualified immunity

June 3,

qualified

see also

the facts about what

conduct was objectively reasonable

which

violated,

Benson v.

(W.D.N.Y.

221

"[i] f

summary judgment

inappropriate");

2009 WL 1584324,

297 F.3d 114,

be

as

judgment
claim,

a

constitutional

his

matter

examined under

is

of

the

right

not

Eighth
law.

standard
allegedly

instances will be the Fourth or Eighth

the main sources of individual protection under the

Cons ti tut ion

against

physically

abusive

Rodriguez v.

Phillips,

66 F.3d 470,

477

9

official

conduct.

(2d. Cir. 1995).

11

Eighth

Amendment

claims

post-conviction
excessive

force

of

excessive

situations,
was

used

force

such
by

as

Albers,

4 75

Punishments
crimes, '
State

U.S.

Clause

and
has

312,

'was

an

inmate

318

limited

alleging

officers

("The

v.

Wright,

the

See Whitley

Cruel

and

the

Clause

with

the

applies

'only

Unusual

after

430

U.S.

651,

(additional citations omitted)).

671

664'

the

guarantees

constitutional

traditionally associated with criminal prosecutions. '")
Ingraham

that

while

prison sentence.

(1986)

to

designed to protect those convicted of

consequently
complied

normally

corrections

inmate was incarcerated serving a
v.

are

n.

(quoting
(1977)

40

Fourth Amendment claims relate

to "the use of excessive force in making an arrest,

and whether

the

under

force

used

Amendment's
York,

798

citation

is

excessive

reasonableness
F.3d

94,

omitted).

100

is

be

standard."

(2d Cir.

Since

to

arose in the context of an arrest,

Brown

2015)

plaintiff's

analyzed
v.

(internal
claim

of

City

excessive

of Erie,

at *8

26,

2014)

("Use

of

Fourth Amendment.").

force

2014 WL 1270024,
during

Accordingly,

New

force

it is governed by the Fourth
See Thigpen v.

ll-CV-466A,

of

quotation and

Amendment and not the Eighth Amendment.
No.

that

an arrest

is

County

(W.D.N.Y. March
governed by

the

defendants' motion to dismiss

plaintiff's claims that he was subject to excessive use of force
in violation of the Eighth Amendment is granted.
10

Conclusion

For
summary

the

judgment

excessive
judgment

reasons

force
as

Defendants'

to

stated above,

as

to

is

denied.

the defendants'

plaintiff's

plaintiff's

Fourth Amendment

Defendants'
Eight

motion

Amendment

motion
claim

for

claim of

for
is

summary
granted.

motion to dismiss plaintiff's excessive force claim

on the ground of qualified immunity is denied without prejudice.
SO ORDERED.

JUDGE

Dated: March 30, 2017
Rochester, New York

11