Lott v. Rochester Police Department et al
DECISION AND ORDER granting 62 Motion for Summary Judgment; granting 63 Motion for Summary Judgment; granting 64 Motion for Summary Judgment; finding as moot 65 Motion to Appoint Counsel. Signed by Hon. Michael A. Telesca on 10/06/2017(CDH) (A copy of this Decision and Order was mailed to plaintiff on 10/6/2017)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
DECISION AND ORDER
CURTIS CUNNINGHAM, ADAM HARDEN,
MIGDALIA PLAZA, SGT. NELSON SOTO,
DEPUTY NICHOLAS LABASH, DEPUTY
CHRISTOPHER BURDICK, CORPORAL
FRANK FARSACE, DEPUTY MICHELLE
DEBAY, DEPUTY ISAIAH RABY, DEPUTY
RAYMOND GAGNIER, DEPUTY TRAVIS
BURLESON, DEPUTY SIMON GREEN,
SARAH FISHER, and DAWN FLETCHER,
instant action on August 9, 2013, alleging a violation of his civil
rights pursuant to 42 U.S.C. § 1983.
Currently pending before the
defendants Sarah Fisher and Dawn Fletcher (collectively the “nurse
defendants”) (Docket No. 62); one filed by defendants Christopher
Travis Burleson, Michelle Debay, Frank Farsace, Raymond
(collectively the “County defendants”) (Docket No. 63); and one
filed by defendants Curtis Cunningham, Adam Harden, Migdalia Plaza,
and Nelson Soto (collectively the “RPD defendants”) (Docket No.
Plaintiff has filed a response in opposition to the pending
summary judgment motions.
For the reasons discussed below, the
Court grants the pending summary judgment motions and orders that
the case be closed.
The following facts are taken from the respective statements
of fact, affidavits, and exhibits submitted by plaintiff and
defendant, as well as the docket in this matter.
Plaintiff alleges in his complaint that on August 10, 2010, at
approximately 2 a.m., he and his brother were stopped at a motor
vehicle checkpoint operated by the Rochester Police Department (the
“RPD”). According to plaintiff, unknown police officers forced his
brother, Ronald Lott (“Ronald”), out of the car, beat him, and
handcuffed him. Plaintiff alleges that an unknown RPD officer then
approached him, held a bottle of pepper spray to his eye, and
threatened to discharge it.
Plaintiff claims that he and Ronald
were subsequently arrested and taken to the Monroe County Jail,
where plaintiff was processed and then released. Plaintiff further
claims that while he was walking to his car after having been
released, unknown officers ran towards him, attacked him with
pepper spray, handcuffed him, and placed him in a cell.
plaintiff alleges, an unknown Monroe County sheriff’s deputy pulled
plaintiff’s hands through the bars of the cell and began beating
them, telling plaintiff he would not stop until plaintiff cried out
Plaintiff claims that he was held in the Monroe County
Jail for seven days and denied medical treatment for the damage to
Plaintiff originally named the RPD, Monroe County, and John
Does 1-10, as designations for the unknown officers involved in the
alleged deprivation of his civil rights, as defendants in this
By order dated February 25, 2014, the Court ordered the
City of Rochester and Monroe County to provide information to
facilitate the identification of the John Doe defendants.
currently named individual defendants were identified as the RPD
officers working the safety checkpoint at which plaintiff was
arrested, the Monroe County Sheriff’s deputies working in the
booking area of the Monroe County Jail on the night in question,
and the nurses scheduled to work at the Monroe County Jail on the
dismissed the RPD and Monroe County as defendants.
The City of Rochester’s records indicated that, on the night
in question, plaintiff stopped at a safety check point on Bay
Street operated by Officer Migdalia Plaza and Sergeant Nelson Soto,
and was arrested for driving while intoxicated. Plaintiff was then
transported by the RPD to booking at the Monroe County Jail.
Plaintiff was deposed in connection with this matter on
During these depositions, plaintiff testified
that his complaint was incorrect, and that he was not beaten after
having been mistakenly released, but that he instead was beaten
within the first 20 minutes of having been taken to the Monroe
Plaintiff testified that a single female officer
transported him to the Monroe County Jail, where he was taken into
transported him to the building was not one of the officers who
Plaintiff specifically testified that he was not beaten
until he was brought into the Monroe County Jail.
testified that when he was taken to the Monroe County Jail, he was
not taken to booking, but was instead led by an unidentified
unidentified individuals who hit, kicked, and stomped on his hands.
further testified that he was then placed in a cell,
where he was directed to place his hands through an opening, and
testified that he did not know how many individuals were involved
in the alleged beating, that he did not know if the individuals who
allegedly beat him were RPD officers or Monroe County Sheriff’s
deputies, that he could not identify the individuals who allegedly
beat him, that he could not identify the uniforms that the officers
who allegedly beat him were wearing, and that he did not know the
gender of the officers who allegedly beat him.
In his response to
the pending motions for summary judgment, plaintiff reiterated that
he does not know who allegedly beat him.
Monroe County’s records indicate that plaintiff was booked at
the Monroe County Jail by Deputies Nicholas Labash and Christopher
Monroe County’s records further indicate that when
plaintiff’s handcuffs were removed, he claimed that his wrist was
Plaintiff was examined by a Nurse Dawn Fletcher, who
observed that his left hand was swollen and referred him for an xray.
An x-ray of plaintiff’s left wrist was taken while he was in
the Monroe County Jail, and showed no evidence of an acute fracture
or dislocation. Plaintiff testified at his initial deposition that
testified that he could not recall whether he saw a nurse while he
was at the Monroe County Jail, and that he could not remember
whether an x-ray was taken.
Procedure, the Court will grant summary judgment if the moving
party demonstrates that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of
law. When considering a motion for summary judgment, all genuinely
disputed facts must be resolved in favor of the party against whom
summary judgment is sought. See Tolan v. Cotton, 134 S.Ct. 1861,
If, after considering the evidence in the light most
favorable to the nonmoving party, the court finds that no rational
jury could find in favor of that party, a grant of summary judgment
See Scott v. Harris, 550 U.S. 372, 380 (2007),
citing Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475
U.S. 574, 586-587 (1986).
A party opposing a motion for summary
judgment “‘must do more than simply show that there is some
metaphysical doubt as to the material facts. . . . [T]he nonmoving
party must come forward with specific facts showing that there is
a genuine issue for trial.’” Caldarola v. Calabrese, 298 F.3d 156,
160 (2d Cir. 2002) (quoting Matsushita Elec., 475 U.S. at 586-87).
Claim Against the RPD Defendants
The RPD defendants move for summary judgment, arguing that
plaintiff cannot connect any RPD officer to any alleged violations
of his civil rights.
The RPD defendants point out that fact
discovery in this case has been closed since February 1, 2016, and
that despite having had ample opportunity to conduct discovery,
plaintiff has failed to identify or produce any evidence tending to
show that any named RPD defendant ever touched him.
The Court agrees that, even accepting all of plaintiff’s
allegations as true, he has nonetheless failed to produce evidence
Plaintiff testified that he was not beaten at the safety checkpoint
where he was arrested, and denied that the female RPD officer who
transported him to the Monroe County Jail was involved in the
The Monroe County Jail, where the beating
allegedly occurred, is staffed by employees of the Monroe County
Sheriff, not by RPD officers.
Accordingly, there is no rational
basis on which a juror could conclude that any RPD defendant was
involved in the alleged beating of plaintiff.
Summary judgment in
favor of the RPD defendants is therefore warranted.
Plaintiff did specifically testify that a female Hispanic RPD
officer threatened to spray him with mace if he did not stop
However, “claims of verbal abuse are insufficient to
establish a constitutional violation as a matter of law.”
v. ICE/DHS, 827 F. Supp. 2d 264, 271 (S.D.N.Y. 2011); see also
Merrill v. Schell, 2017 WL 3726969, at *3 (W.D.N.Y. Aug. 30, 2017)
(internal quotation omitted);
Dunkelberger v. Dunkelberger, 2015
WL 5730605, at *15 (S.D.N.Y. Sept. 30, 2015)
(“A threat of force
omitted); Smith v. City of New York, 2015 WL 3929621, at *3 n. 3
(S.D.N.Y. June 17, 2015) (“To the extent that [the plaintiff]
intends to assert an excessive force claim based on threats of
violence . . ., the claim would fail because, in [the Second]
Circuit, neither mere verbal abuse nor mere threats of force
support an excessive force claim.”).
Even had the officer in
question made contact with the plaintiff, “[n]ot every push or
shove, even if it may later seem unnecessary in the peace of a
judge’s chambers, . . . violates the Fourth Amendment.” Maxwell v.
City of New York, 380 F.3d 106, 108 (2d Cir. 2004)(internal
quotation omitted). Accordingly, even assuming that the Hispanic
female officer plaintiff referred to in his deposition was named
defendant Officer Migdalia Plaza, plaintiff has not produced any
evidence that she engaged in excessive force.
Claims Against the County Defendants
The County defendants have also moved for summary judgment,
arguing that there is no evidence in the record from which a
rational jury could conclude that any of them were personally
involved in the alleged beating of plaintiff.
The Court agrees.
“[I]n order to establish a civil rights violation, those
responsible for the alleged violating conduct must be specifically
Sheikh v. Morales, 2006 WL 2223943, at *4 (D. Conn.
July 31, 2006) (internal quotation omitted).
Here, plaintiff has
not produced or identified any evidence tying any of the named
County defendants to his alleged beating.
The named County
defendants were identified as having been working in booking at the
Monroe County Jail on the night in question.
however, that he was not taken to booking before he was beaten, and
that the alleged beating did not take place in booking.
the Court is faced with a situation where the sole connection
between the named County defendants and the alleged beating of
plaintiff is that they were working in an unrelated area of the
Monroe County Jail on the night in question.
Courts in this Circuit have not hesitated to grant summary
judgment to defendants under similar circumstances.
Piper v. City of Elmira, 12 F. Supp. 3d 577, 591–92 (W.D.N.Y. 2014)
(“In order to hold an officer liable for excessive force, a
plaintiff must adduce sufficient evidence to raise an issue of fact
as to whether the officer was personally involved in the use of the
claimed excessive force. . . . [T]he mere fact that [an] [o]fficer
was present for the . . . incident does not, on its own, establish
that he had either awareness of excessive force being used or an
opportunity to prevent it.”) (internal quotation omitted); Cosby v.
City of White Plains, 2007 WL 853203, *4 (S.D.N.Y.2007) (“plaintiff
had ample time to conduct discovery to identify the police officers
responsible for his alleged injuries; discovery is now complete and
plaintiff fails to identify any additional defendants [;] [n]or
does plaintiff assert that additional discovery or trial will
reveal these defendants’ identities”); Universal Calvary Church v.
City of New York, 2000 WL 1538019, *16–20 (S.D.N.Y.2000) (“[M]ere
presence at the site of a melee . . . is not evidence of personal
involvement[;] ... [w]ithout any evidence linking any of the
[d]efendants to the use of force in any way, this [c]ourt cannot
allow the charge to go to trial when the [d]efendants are being
held personally liable for constitutional violations”).
There is simply no evidence from which a rational jury could
conclude that the County defendants were personally involved in the
alleged violation of plaintiff’s civil rights. Merely having been
at the Monroe County Jail on the night in question does not
establish that these officers participated in or were aware of the
alleged beating of plaintiff. Therefore, summary judgment in favor
of the County defendants is warranted.
Claims Against the Nurse Defendants
Finally, the Court must consider whether the nurse defendants
are entitled to summary judgment.
The nurse defendants argue that
deprivation of medical treatment.
Again, the Court agrees.
“A custodian of a pretrial detainee may be found liable for
violating the detainee’s due process rights if the official (1)
denied treatment needed to remedy a serious medical condition and
(2) did so because of his deliberate indifference to that need.”
Universal Calvary Church, 2000 WL 1538019, at *8.
indifference standard embodies both an objective and a subjective
prong. First, the alleged deprivation must be, in objective terms,
‘sufficiently serious,’ [and][s]econd, the charged official must
act with a sufficiently culpable state of mind.” Hathaway v.
Coughlin, 37 F.3d 63, 66 (2d Cir. 1994) (internal citations
omitted). In order to satisfy the objective prong, a plaintiff must
have a serious medical need that “contemplates a condition of
urgency, one that may produce death, degeneration, or extreme
pain.” Id. (internal quotation omitted). To satisfy the subjective
defendant was “aware of facts from which the inference could be
drawn that a substantial risk of serious harm exists” and did in
fact draw that inference.
Farmer v.Brennan, 511 U.S. 825, 833–34
Here, as the nurse defendants correctly argue, even assuming
that plaintiff was suffering from a serious medical need, there is
no evidence that either of the named nurse defendants were aware of
and ignored that need.
Monroe County’s records show that Nurse
Fletcher did a medical screening of plaintiff on August 16, 2010,
and noted that his left hand was swollen.
Nurse Fletcher referred
plaintiff for an x-ray of his left wrist, which showed no acute
fracture or dislocation.
With respect to Nurse Fisher, she called
in sick on the night in question, and never saw or interacted with
plaintiff in any way.
Plaintiff’s testimony regarding the medical treatment he
internally inconsistent. He originally testified that jail medical
personnel had treated him “nicely” and taken x-rays of his hands,
but later claimed that he never saw any medical professional while
held in the Monroe County Jail.
However, under either version of
indifference to his medical needs.
Accepting his initial claim
that jail medical personnel (presumably Nurse Fletcher) treated him
“nicely” and referred him for x-rays, this testimony establishes
that plaintiff was in fact provided with medical services and that
active steps were taken to ensure that his medical needs were being
On the other hand, accepting plaintiff’s claim that he never
saw a nurse, the nurse defendants cannot be held liable for having
failed to provide medical services to a plaintiff they never saw
and had no way of knowing was suffering from a serious medical
In either case, plaintiff has failed to identify or
produce any evidence from which a rational jury could find the
judgment in their favor.
Plaintiff’s Motion For Appointment of Counsel
In addition to opposing the pending motions for summary
judgment, plaintiff has filed a motion for appointment of counsel
(Docket No. 65).
In light of the Court’s determination that
defendants are entitled to judgment in their favor, plaintiff’s
motion is denied as moot.
For the reasons set forth above, the Court grants the nurse
defendants’ motion for summary judgment (Docket No. 62), the County
defendants’ motion for summary judgment (Docket No. 63), and the
City defendants’ motion for summary judgment (Docket No. 64).
Plaintiff’s motion to appoint counsel (Docket No. 65) is denied as
The Clerk of the Court is instructed to enter judgment in
favor of defendants and to close the case.
ALL OF THE ABOVE IS SO ORDERED.
s/Michael A. Telesca
MICHAEL A. TELESCA
United States District Judge
October 6, 2017
Rochester, New York
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