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)

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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

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