Pennington v. City of Rochester et al

Filing 83

DECISION AND ORDER: Defendants' motions for summary judgment (ECF Nos. 69 , 71 , 72 ) are GRANTED. The complaint is DISMISSED WITH PREJUDICE. The Clerk of Court is directed to enter judgment and close the case. SO ORDERED. Signed by Hon. Frank P. Geraci, Jr. on 3/9/2020. (MFM) -CLERK TO FOLLOW UP- Modified on 3/9/2020 (MFM).

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
CYNTHIA G. PENNINGTON,

Plaintiff,
Case # 13-CV-6304-FPG
v.
DECISION AND ORDER
CITY OF ROCHESTER, et al.,
Defendants.

INTRODUCTION
Plaintiff Cynthia G. Pennington brings this civil-rights action against Defendants City of
Rochester, Lieutenant Eric Paul, and Deputy G. Wilczak. 1 ECF No. 1. Her claims arise from Paul
and Wilczak’s allegedly unlawful entry into her home in September 2012. Before the Court are
Defendants’ summary judgment motions. See ECF No. 69, 71, 72. For the following reasons,
Defendants’ motions are GRANTED.
LEGAL STANDARD
Summary judgment is appropriate when the record shows that there is “no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Disputes concerning material
facts are genuine where the evidence is such that a reasonable jury could return a verdict for the
non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In deciding
whether genuine issues of material fact exist, the court construes all facts in a light most favorable
to the non-moving party and draws all reasonable inferences in the non-moving party’s favor. See

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The Court previously dismissed the claims against Defendant County of Monroe. See ECF No. 59.
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Jeffreys v. City of New York, 426 F.3d 549, 553 (2d Cir. 2005). However, the non-moving party
“may not rely on conclusory allegations or unsubstantiated speculation.” F.D.I.C. v. Great Am.
Ins. Co., 607 F.3d 288, 292 (2d Cir. 2010) (quotation omitted).
BACKGROUND
In 2012, Paul was a police officer employed by the City of Rochester. His daughter was
the same age as, and was friends with, Pennington’s son. Paul also interacted with Pennington’s
son through youth ice hockey.
In summer 2012, Paul learned through Pennington’s son and other sources that Pennington
was having mental health and alcohol abuse issues. Pennington’s son relayed that these issues
were also affecting his own mental health and had caused him depression. Pennington’s son
repeatedly ran away from home that summer. Because Pennington’s son was close with Paul and
his family, they interposed themselves in the conflict between Pennington and her son, attempting
to mediate and resolve the situation.
The details of the conflict are immaterial for purposes of the present motion; it suffices to
say that Pennington was upset by the fact that the Paul family had injected themselves into her
family situation, and she disputes the truth of the rumors and information Paul heard. 2 Conversely,
based on what he had learned about the conflict, Paul believed that Pennington’s and her son’s

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In her Rule 56 Statement, Pennington does not dispute that Paul heard about her alleged mental health and
alcohol abuse issues; she only challenges them as hearsay. See, e.g., ECF No. 78-2 ¶¶ 5, 16, 17, 18.
However, these statements are not offered for the truth of the matter asserted—i.e., that Pennington was in
fact suffering from alcohol abuse or mental health issues—but only to prove the information available to
Paul at the time of the relevant events. Therefore, they are not inadmissible as hearsay. See Smith v. City
of New York, No. 14-CV-9069, 2016 WL 5793410, at *4 (S.D.N.Y. Sept. 30, 2016) (“A statement is
admissible non-hearsay when it is offered as evidence of the effect of a statement on the listener, the
knowledge motivating his actions, or his state of mind at the relevant point in time.”).
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respective mental states were so unstable that they might take their own lives. See ECF No. 68-2
at 23.
On September 13, 2012 at 6:45 P.M., Paul began his shift. At some point that evening,
Paul’s daughter had intended to meet with Pennington’s son, but he never showed up. When she
texted Pennington’s son, she received a “nasty” response accusing Paul and his wife of adultery
and threatening to send more text messages. ECF No. 68-2 at 37-38. Paul’s daughter and wife
believed that Pennington had used her son’s phone to send the message. This belief was consistent
with reports from Pennington’s son and his hockey coach that Pennington had occasionally stayed
up late at night, drinking alcohol and sending “erratic” emails to the hockey coach. See ECF No.
78-2 ¶¶ 16, 17. Paul’s daughter and wife were concerned about Pennington’s son’s wellbeing.
Paul claims that he agreed to check on Pennington and her son to “see if they [were] okay.” ECF
No. 68-2 at 38.
Paul notified a staff officer that he was “going off duty” to do a welfare check. Id. at 40.
He also contacted the Sheriff’s Department and arranged for a deputy, Wilczak, to accompany him
to Pennington’s home. Id. at 42. However, Pennington alleges that Paul’s purpose was not to
perform a mere welfare check on Pennington or her son, but to confront Pennington about the text
message. See ECF No. 78-3 ¶¶ 18-21.
Regardless, Paul and Wilczak arrived at Pennington’s house sometime between 10:30 and
11:30 P.M. Id. at 45. They approached the front door of the house. The outer screen door was
locked and closed, but the inner door was swung open. They knocked on the screen door, but there
was no response. Paul was able to see into an adjacent room and saw Pennington lying on the
couch. They also looked through a side window and observed Pennington. They shined their
flashlights on Pennington, continued to knock on the door, and yelled her name, but Pennington

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did not move. ECF No. 68-2 at 50. Paul observed two cans of beer next to Pennington. Id. Paul
observed that Pennington was “completely unresponsive,” akin to someone suffering from alcohol
poisoning or drug overdose. Id. at 53. Pennington counters that she was simply asleep. ECF No.
78-3 ¶ 23.
Paul went to a side door, which was unlocked, and entered the home. Id. at 47. Wilczak
followed. Once inside, Paul approached Pennington, yelling her name, and grabbed her arm to
rouse her awake. After a few seconds, Pennington woke up and yelled at Paul to get out of her
house. Paul and Wilczak then left.
In June 2013, Pennington brought the present action. ECF No. 1. The surviving claims
are as follows: (1) intentional infliction of emotional distress against Paul; (2) negligent infliction
of emotional distress against Paul; (3) a § 1983 claim for unlawful entry against Paul and Wilczak 3;
(4) failure to train against the City of Rochester; (5) ratification of Paul’s conduct against the City
of Rochester; and (6) a Monell claim against the City of Rochester. See ECF Nos 1, 59.
DISCUSSION
Defendants move for summary judgment on all claims. The Court addresses each claim
below.
1. Intentional Infliction of Emotional Distress & Negligent Infliction of Emotional Distress
Claims Against Paul
Paul moves for summary judgment on the emotional-distress claims, arguing that his
conduct was not sufficiently egregious to support those causes of action. See ECF No. 68-9 at 814. In her response, Pennington does not address Paul’s arguments or even reference these claims.

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In her complaint, Pennington alleges that Paul violated her “civil rights” by “stalking” her. ECF No. 1 at
10. This claim seems to relate to an occasion where Paul drove to a campground at which Pennington and
her family were staying. Id. at 4-5. Because Pennington does not describe any conduct even arguably
constituting a constitutional violation, the Court will not address that aspect of her complaint.
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See generally ECF No. 78. Accordingly, Pennington appears to have abandoned these claims, and
summary judgment in Paul’s favor is appropriate. See, e.g., L.W. Matteson, Inc. v. Sevenson Envtl.
Servs., Inc., 831 F. Supp. 2d 608, 618 (W.D.N.Y. 2011) (“Federal courts may deem a claim
abandoned when a party moves for summary judgment on one ground and the party opposing
summary judgment fails to address the argument in any way.”).
2. Claims against the City of Rochester
The City of Rochester moves for summary judgment on all of the claims against it. See
ECF No. 71-5. Pennington filed no response challenging the City’s motion. Accordingly, these
claims are deemed abandoned, and the City’s motion is granted. See L.W. Matteson, 831 F. Supp.
2d at 618.
3. § 1983 Claim against Paul and Wilczak
The only claim on which Pennington opposes summary judgment is the § 1983 claim
against Paul and Wilczak. Paul and Wilczak argue that their actions were not unconstitutional and
that they are entitled to qualified immunity. The Court agrees.
“To state a claim under Section 1983, a complaint must allege that the defendant (1)
deprived the plaintiff of rights secured by the Constitution and laws of the United States, (2) while
acting under color of state law.” Chamberlain v. City of White Plains, 986 F. Supp. 2d 363, 381
(S.D.N.Y. 2013). The right at issue here is the Fourth Amendment, which “protects individuals
and their homes against unreasonable searches and seizures.” Id. “Warrantless searches inside a
home are presumptively unreasonable” under the Fourth Amendment. Tierney v. Davidson, 133
F.3d 189, 196 (2d Cir. 1998).
“However, police officers may enter a dwelling without a warrant to render emergency aid
and assistance to a person whom they reasonably believe to be in distress and in need of that

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assistance.” Id. (internal quotation marks and brackets omitted). “Courts must apply an objective
standard to determine the reasonableness of the officer’s belief.” Id. “[T]his probable cause
requirement must be applied by reference to the circumstances then confronting the officer,
including the need for a prompt assessment of sometimes ambiguous information concerning
potentially serious consequences.” Id. at 196-97 (internal quotation marks and brackets omitted).
Consistent with this standard, courts have routinely held that the emergency-aid exception
applies where an officer enters a home to render assistance to an unconscious or unresponsive
person. See State v. Dist. Ct. of Eighth Judicial Dist., 577 P.2d 849, 852, 264 (Mont. 1978)
(warrantless entry into apartment permissible where front door was ajar and officers observed a
man “slumped over a table in the middle of the afternoon”); State v. Heard, 350 P.3d 1044, 1046
(Idaho 2015) (officers observed that occupant of hotel room was “initially unconscious and
thereafter minimally responsive”); State v. Neighbors, 328 P.3d 1081, 1091-92 (Kan. 2014)
(officers “knew an unresponsive male was seen lying on the couch [in the apartment] and could
not be awakened by yelling or pounding on the front door”); Harrison v. State, 860 P.2d 1280,
1282, 1283 (Alaska Ct. App. 1993) (occupant of home was face down on kitchen table and did not
respond to repeated knocking by police).
This case is not materially distinguishable from those above. Paul and Wilczak saw
Pennington lying on her couch with alcohol nearby. She did not respond when the officers
repeatedly knocked on the front door, shouted her name, and shined their flashlights at her. While
a person falling asleep in front of the TV after a few beers may not, as a general matter, be a
worrying or dangerous situation, it is more concerning if that person does not wake up or even stir
when there is loud knocking and yelling occurring a few feet away. Moreover, the background
context bolstered the reasonableness of the officers’ reaction: Paul had heard from Pennington’s

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son and other sources that Pennington had mental health issues, abused alcohol, and had been
engaging in erratic behavior in the preceding months. Indeed, that very day, Pennington had sent
a harassing text message that was consistent with previous occasions in which she had purportedly
abused alcohol and sent erratic messages to others. Faced with these circumstances, a reasonable
officer could conclude that Pennington was unconscious or unresponsive, perhaps due to alcohol
intoxication, and was in need of assistance. 4
Even if there were a question as to whether the officers’ belief was reasonable under the
circumstances, the Court would conclude that qualified immunity applies. “The doctrine of
qualified immunity shields government officials from civil damages liability unless the official
violated a statutory or constitutional right that was clearly established at the time of the challenged
conduct.” Soto v. Gaudett, 862 F.3d 148, 156 (2d Cir. 2017) (internal quotation marks and brackets
omitted). “To determine whether a defendant is entitled to qualified immunity, courts ask whether
the facts shown ‘make out a violation of a constitutional right’ and ‘whether the right at issue was
‘clearly established’ at the time of defendant’s alleged misconduct.’” Estate of Devine, 676 F.
App’x 61, 62 (2d Cir. 2017) (summary order) (quoting Pearson v. Callahan, 555 U.S. 223, 232
(2009)). “Qualified immunity gives government officials breathing room to make reasonable but
mistaken judgments, and protects all but the plainly incompetent or those who knowingly violate
the law.” Stanton v. Sims, 571 U.S. 3, 6 (2013) (internal quotation marks omitted). Courts “do
not require a case directly on point before concluding that the law is clearly established, but

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Pennington’s argument that the officers were motivated by an improper purpose is irrelevant. See ECF
No. 78 at 3. It is well-established that an officer’s “subjective motivation is irrelevant” in the Fourth
Amendment context. Brigham City, Utah v. Stuart, 547 U.S. 398, 404 (2006). Thus, in Stuart, the Supreme
Court found it irrelevant that officers may have been subjectively motivated to arrest rather to assist the
injured when they entered a home without a warrant, where the officers “ had an objectively reasonable
basis for believing . . . that [an] injured adult [inside the home] might need help.” Id. at 406; see also Batt
v. Buccilli, 725 F. App’x 23, 25-26 (2d Cir. 2018) (summary order) (“The inquiry is not whether the officer
subjectively believed that an occupant needed help.”).
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existing precedent must have placed the statutory or constitutional question beyond debate.” Id.
(internal quotation marks omitted).
Here, the Court cannot conclude that the constitutional question was “beyond debate” or
that the officers were “plainly incompetent.” To the contrary, the case law appears to permit this
type of police action where a person is unresponsive, even if she is in her own home. While the
cases the Court cited above are from state courts, the important point is that Pennington does not
cite, and the Court’s research has not revealed, any case in which a court found a constitutional
violation under similar circumstances. See ECF No. 78 at 9-10. At most, Pennington cites cases
where the emergency in question was more “obvious and overt.” Batt, 725 F. App’x at 27; see
ECF No. 78 at 8-9. But the fact “that the officers in [those] cases acted properly does not, by
implication, ‘clearly establish’ that [Paul or Wilczak] acted improperly.” Id. On this issue, the
law is not clearly established, and the officers are therefore entitled to qualified immunity.
For both reasons, Defendants Paul and Wilczak are entitled to summary judgment on
Pennington’s § 1983 claim.
CONCLUSION
For the reasons discussed above, Defendants’ motions for summary judgment (ECF Nos.
69, 71, 72) are GRANTED. The complaint is DISMISSED WITH PREJUDICE. The Clerk of
Court is directed to enter judgment and close the case.
IT IS SO ORDERED.
Dated: March 9, 2020
Rochester, New York
______________________________________
HON. FRANK P. GERACI, JR.
Chief Judge
United States District Court

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