Livecchi v. The City of Geneva et al

Filing 44

DECISION AND ORDER granting in part and denying in part 40 Motion for Summary Judgment. Defendants motion for summary judgment [#40] is granted only as to the municipal liability claim against the City of Geneva. Otherwise, the application is den ied. The Clerk is directed to terminate the City of Geneva as a party to this action. The case will proceed to trial on the claims against Peters. Signed by Hon. Charles J. Siragusa on 1/24/19. Copy of this NEF and decision and order mailed to pro se plaintiff at 96 Boca Avenue, Rochester, NY 14626 (KAP)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
__________________________________________
CHARLES R. LIVECCHI, SR.,
Plaintiff
DECISION AND ORDER
-vs14-CV-6326 CJS
THE CITY OF GENEVA and ROBERT PETERS,
Individually and in his official capacity as Police
Officer for the City of Geneva,
Defendants
__________________________________________

INTRODUCTION
In this action the pro se Plaintiff asserts claims for unlawful detention and
excessive force under 42 U.S.C. § 1983 (“Section 1983”) arising from an incident on
December 16, 2011, in which he was arrested for allegedly threatening a Code
Enforcement Officer employed by the City of Geneva.

Now before the Court is

Defendants’ motion for summary judgment (Docket No. [#40]). The application is granted
as to the City of Geneva but is otherwise denied.
BACKGROUND
On June 13 2014, Charles R. Livecchi, Sr. (“Livecchi” or “Plaintiff”) commenced
this action against the City of Geneva and four individual defendants including Robert
Peters (“Peters”), who was formerly employed as a police officer by the Geneva Police
Department. On April 21, 2015, the Court issued a Decision and Order [#21] granting the
defendants’ summary judgment motion [#17] in part, leaving only claims under Section
1983 against Peters and the City of Geneva. See, Decision and Order [#21] at p. 14
(“[T]he Court determines that the only remaining claims are against Peters and the City

1

of Geneva. More specifically, the Complaint [#1] purports to assert § 1983 claims against
Peters, and a § 1983 Monell claim against the City of Geneva for failing to train Peters.”).
Subsequent to the issuance of that Decision and Order [#21], the parties
conducted further pretrial discovery. Then, on May 27, 2016, Defendants filed another
summary judgment motion [#33] which came before the Court for oral argument on
December 15, 2016. During oral argument, the Court first reviewed Plaintiff’s pro se
Complaint in an attempt to clarify the nature of the remaining § 1983 claims being
asserted against Peters and the City of Geneva. The Court noted that while Plaintiff
seemed to be complaining of excessive force relating to handcuffing, the Complaint [#1]
did not expressly assert such a claim. The Court nevertheless indicated that inasmuch
as Plaintiff was proceeding pro se, it would liberally construe the Complaint as asserting
two § 1983 claims against Peters and the City of Geneva:

1) false arrest/false

imprisonment and 2) excessive force. The Court further noted that Defendants’ summary
judgment motion [#33] did not comply with the Local Rules of Civil Procedure, but that the
Court would permit Defendants to submit a new motion. The Court further explained to
Plaintiff that in order to oppose such motion he would need to submit evidentiary proof in
admissible form.
On February 13, 2017, Defendants filed the subject summary judgment motion
[#40].1 According to Defendants, the relevant facts are as follows. At all relevant times
Livecchi owned a rental property located at 46 Hallenbeck Avenue in the City of Geneva.
Prior to December 16, 2011, the City of Geneva had identified code violations at the rental
property. On December 16, 2011, the Geneva City Code Officer, Brian Kelly (“Kelly”) and

1

The Notice of Motion includes an Irby “Pro Se Notice” as required by Rule 56(b) of the Local Rules of
Civil Procedure.

2

a Geneva Firefighter, James Bucklin (“Bucklin”), met with Livecchi at the property to
conduct an inspection and determine whether Livecchi had corrected the code violations.
Following the inspection, Kelly informed Livecchi that code violations still existed,
whereupon Livecchi became angry and threatened Kelly, in Bucklin’s presence.
Specifically, Livecchi stepped toward Kelly and stated, “I’ll take care of you, I’ll take care
of you right now.” In response to such threat, Bucklin called the police, which resulted in
defendant Officer Peters being dispatched to the scene. The dispatcher’s notes regarding
the call indicate in pertinent part:
COMPL CALLED THE PD AND STATES CODE ENFORCEMENT AND FIRE
FIGHTERS ARE OUT AT 46 HALLENBECK AVE FOR A CODE ENFORCEMENT
INSPECTON AND THEY’RE HAVING A PROBLEM WITH A LANDLORD.
Docket No. [#42-1] at p. 2. When Peters arrived, he saw Kelly and Bucklin “exchanging
words” with Livecchi, and observed that Livecchi appeared to be agitated. Kelly and
Bucklin told Peters that Livecchi had threatened Kelly, though Peters did not personally
witness any threats being made. Peters handcuffed Livecchi behind his back and placed
him in the back of a police cruiser, but did not tell Livecchi that he was under arrest.
According to Peters, “[t]he purpose of the handcuffs was merely to detain Mr. Livecchi
during [his] investigation.”2 Kelly informed Peters that he wished to press charges against
Livecchi, whereupon Peters had Kelly fill out an information charging Livecchi with
Harassment in the Second Degree, in violation of New Penal Law § 240.26(1).3 Kelly’s
sworn statement in the information states, in pertinent part:
On December 16, 2011 at about 3:10 pm hours, at 46 Hallenbeck Ave, located in
the City of Geneva, County of Ontario, State of New York, the above said
defendant [Livecchi] did with intent to harass, annoy or alarm another person, the
2
3

Peters Affidavit at ¶ 10.
“Harassment in the second degree is a violation.” NY Penal Law § 240.26

3

defendant did state to me he was going to take care of me and then came towards
me and stated he would take care of me now all while trying to get two unknown
black males to come with him. I was alarmed by the actions of the defendant
thinking he was going to attack me because I was inspecting 46 Hallenbeck Ave.
working for the City of Geneva Code Enforcement.
Docket No. [#42-2] at p. 2. At Peters’ direction, Kelly then went over to the police cruiser,
in which Livecchi was sitting handcuffed, and told Livecchi that he was under arrest.4 In
that regard, Peters evidently intended to have Peters make a citizen’s arrest of Livecchi,
since Peters had not personally witnessed the alleged harassment and was therefore not
authorized to make a warrantless arrest for that offense according to New York Criminal
Procedure Law § 140.10(1).5 Peters then transported Livecchi to the police station for
processing. Upon arriving at the police station, Livecchi told Peters that the handcuffs
were painful, and Peters re-handcuffed Livecchi with his hands in front. Once inside the
police station Peters removed the handcuffs and had photographs taken of Livecchi’s
wrists, because Livecchi was claiming to have been injured by the handcuffs. Peters
completed an arrest report which consists primarily of the following narrative:
On the above date and time this officer responded to the above location for the
report of a landlord giving the city code enforcement officer and the Geneva Fire
Department a hard time over an inspection performed at the above address.
When this officer arrived on scene (VI) Kelly stated that (A) Livecchi had
threatened him by stating “I’ll take care of you,” then tried to get two unknown black
males to come with him while approaching (VI) Kelly in a threatening manner by
throwing his arms out and pushing his chest out while stating again “I’ll take care
of you right now.”
4

Defendants contend that this fact is agreed to by Plaintiff, who on February 27, 2012 testified pursuant
to § 50-h of the New York General Municipal Law, that, “I had a City Inspector that came up to me when
I was in the police car and said, ‘I am arresting you, you’re under arrest.’”
5
See NY CPL § 140.10(1) (“Subject to the provisions of subdivision two, a police officer may arrest a
person for: (a) Any offense when he or she has reasonable cause to believe that such person has
committed such offense in his or her presence; and (b) A crime when he or she has reasonable cause to
believe that such person has committed such crime, whether in his or her presence or otherwise.”); see
also, Peters Affidavit at ¶ 8 (“I was not present when the threat was issued.”); see also, id. at ¶ ¶ 11-13.

4

This officer then asked (A) Livecchi what the problem was and (A) Livecchi
noticeably upset stated he was appealing the inspection. This officer was then
advising (A) Livecchi to follow the instructions that were given to file an appeal, but
you can’t threaten the code enforcement officer and the fire department. (A)
Livecchi then acted as if he couldn’t hear what this officer was saying by putting
his right hand up to his right ear.
At this time this officer asked (VI) Kelly if he wanted to press charges for
harassment and (VI) Kelly stated “Yes.” This officer then told (A) Livecchi to place
his hands behind his back he [sic] was being detained at this time. (A) Livecchi
then started to walk away from this officer.
This officer then grabbed (A) Livecchi’s right wrist. (A) Livecchi was resisting by
trying to pull away from this officer while [sic] escorting (A) Livecchi over to the
marked unit GV-9. (A) Livecchi was then placed into handcuffs behind his back.
This officer had a finger gap in the handcuffs from (A) Livecchi’s wrists and the
handcuffs were double locked. (A) Livecchi was placed into marked unit GV-9
without further incident.
This officer was on scene for another 5 minutes or so with paper work and (A)
Livecchi was moving around in the back seat, but never made any comments to
this officer about any injuries or having any problems. Upon arriving at the sally
port to remove (A) Livecchi from marked unit GV-9 this officer assisted in getting
(A) Livecchi’s left foot out. At this time (A) Livecchi had his left wrist curled in an
upward position with his watch and handcuff pinching his left wrist. This officer
removed the watch and the handcuff were [sic] then loose. (A) Livecchi was then
given time to move his left wrist around, and the handcuffs were then place [sic] in
front of (A) Livecchi. This officer then transported (A) Livecchi to the booking area
when (A) Livecchi stated he thinks he needs medical treatment for his wrist. This
officer advised Sgt. Valenti and Finger Lakes Ambulance was contacted. EMTs
arrived and looked over (A) Livecchi’s left wrist and stated there was no visible
injury, but an x-ray should be taken to be safe. (A) Livecchi stated he would seek
medical attention later for the x-ray. [sic]
Livecchi was processed and held for arraignment.
Docket No. [#40-8]. In the course of processing Livecchi, Peters obtained a supporting
deposition from Bucklin which states, in pertinent part:

5

[O]n December 16, 2011 at approximately 3:19PM, as a representative of The City
of Geneva Fire Department, I was accompanying Brian Kelly from the City of
Geneva Code Enforcement at 46 Hallenbeck Ave, in the City of Geneva. At this
time, Brian Kelly and I were conductive [sic] an inspection of the apartment
building. The property owner, Charles Livecchi was at the property at this time
also. After completing the inspection, Mr. Livecchi approached Mr. Kelly and
myself inquiring the [sic] results of the inspection. The three of us proceeded into
apartment 1 w[h]ere Mr. Kelly cited the current violations to Mr. Livecchi. Mr.
Livecchi became irate stating he that he wanted to appeal the violations. Mr. Kelly
informed Mr. Livecchi that he would have to contact the city to appeal the
violations. At that time, Mr. Kelly and I began to walk away. Mr. Livecchi stated to
Mr. Kelly, “I will take care of you.” Mr. Kelly turned asked [sic] Mr. Livecchi if he
was threatening him. Mr. Livecchi stated, “Yeah. I’ll take care of you.” That is
when I called the fire dispatch to have police respond to this address.
Docket No. [#40-9] at p. 2.
Based on these facts, Defendants contend that there can be no Fourth
Amendment false arrest/false imprisonment claim, since it was Kelly, the non-party Code
Officer, who arrested Plaintiff, and not Peters. Defendants argue, however, that even if
Peters arrested Livecchi he had probable cause to do so, based on the information
provided by Kelly and Bucklin, that Livecchi had threatened Kelly.

Consequently,

Defendants maintain that even assuming Peters violated New York Criminal Procedure
Law § 140.40 by arresting Livecchi for harassment that he did not witness, such fact does
not establish a constitutional violation. Defendants further contend that Livecchi cannot
maintain an excessive force claim, because Peters did not ignore any complaints by
Livecchi about the handcuffs; the handcuffs were removed at the police station once
Livecchi complained, and Livecchi sustained no injury from the handcuffs allegedly having
been applied too tightly. In that regard, Defendants indicate that Livecchi produced no
evidence of injury in response to their discovery requests, and that any attempt by
Livecchi to now produce such evidence should therefore be precluded by Fed. R. Civ. P.
6

37. Defendants further contend that Peters would be entitled to qualified immunity as to
both the unlawful detention claim and excessive force claim. As for Plaintiff’s Monell claim
against the City of Geneva based on an alleged failure to train Peters, Defendants
contend that there is absolutely no evidence that Plaintiff’s alleged injury was proximately
caused by a municipal policy, practice or custom.
On March 8, 2017, Livecchi filed his opposition [#43] to Defendants’ summary
judgment motion.6 Livecchi initially disputes Defendants’ version of facts above. For
example, Livecchi contends that the affidavit Peters submitted7 is inconsistent with the
supporting deposition that Kelly executed on January 11, 2012,8 inasmuch as the former
allegedly indicates that Peters handcuffed Livecchi and placed him in the police car prior
to speaking with Kelly, while the latter indicates that Peters handcuffed Livecchi and
placed him in the police car only after he spoke with Kelly at the scene and learned that
Kelly wished to press charges. Plaintiff’s characterization of Peters’ affidavit on this point9
is partially incorrect, however, since Peters’ affidavit does not expressly state that he
placed Livecchi in handcuffs prior to speaking with Kelly.10 Rather, while Peters’ affidavit
is needlessly vague on this point, it seems to indicate that Peters spoke with the parties
in an attempt to calm the situation prior to placing Livecchi in handcuffs.
Nevertheless, Livecchi himself maintains that Peters placed him in handcuffs
immediately after he arrived at the scene, without first speaking to him or to Kelly to find

6

Several of the documents submitted by Livecchi relate to pretrial discovery, but the Court has previously
informed Livecchi that discovery is closed and that to the extent he feels that he did not receive certain
discovery he should have notified the Magistrate Judge of that fact at the time.
7
Docket No. [#42] at ¶ 10.
8
Docket No. [#43-1] at p. 39.
9
According to Livecchi, “it is Defendant Peters’ statement that the plaintiff was placed in handcuffs prior
to being placed under arrest and prior to conversation with Mr. Kelly upon arrival.” Docket No. [#43] at p.
2.
10
See, Peters Affidavit, Docket No. [#42] at ¶ ¶ 7-10.

7

out what had happened. That is, Livecchi emphatically denies Peters’ claim that he had
discussions with Livecchi, Kelly and Bucklin before he handcuffed Livecchi and placed
him in the back of the patrol car. Livecchi further maintains that he was not exchanging
words with Kelly or Bucklin when Peters arrived, was not agitated, and posed no physical
threat to Peters, who is substantially taller and heavier than him. 11 Moreover, Livecchi
has submitted an affidavit from witness Willie Lee Carter, Jr. (“Carter”), indicating that
Peters handcuffed Livecchi and placed him in the patrol car immediately upon arriving at
the scene and without speaking to anyone. According to Carter, Peters did not speak
with Kelly or Bucklin until after Livecchi was already handcuffed and inside the police
car.12 On these points, Carter states in pertinent part:
I witnessed . . . the officer get out of his vehicle and proceeded [sic] to walk across
the street towards us and state, ‘Mr. Livecchi’ as he was walking towards us and
told Mr. Livecchi to put his hands behind his back and then placed handcuffs
without any further words and proceeded to push Mr. Livecchi towards the vehicle
while Mr. Livecchi was yelling, ‘Why are you arresting me?’ Officer [sic] did not
speak with Mr. Livecchi and proceeded to place Mr. Livecchi in the back of the car
and closed the door.
Docket No. [#43-1] at p. 41. Carter further denies that Livecchi ever threatened Kelly.13
Carter agrees, however, that after Peters finished speaking with Kelly and Bucklin, one
of the two non-police “city employees” went to the patrol car and spoke to Livecchi,
evidently referring to when Kelly told Livecchi that he was placing him under citizen’s

11

See, Docket No. [#43] at ¶ ¶ 14-16 (“In defendant Peters’ affidavit he purports that he ‘attempted to
clam the situation by speaking with the parties.’ This is an absolute falsehood, since there was no
altercation, argument or words being exchanged by any of the parties as per the attached witness
affidavit. At no point did Peters attempt to speak with the plaintiff other than to place him in handcuffs and
[place him] in the back of the cop car. Peters did not speak with anyone else present other than Mr. Kelly
and Mr. Bucklin.”); see also, id. at ¶ ¶ 39-42.
12
Docket No. [#43-1] at p. 41.
13
Docket No. [#43-1] at p. 42.

8

arrest.14
Based upon his version of facts set forth above, the Court concludes that Livecchi,
either expressly or impliedly, makes the following arguments: 1) Peters had no reason to
detain or handcuff him or place him in the patrol car immediately upon his arrival at the
scene, since no argument or altercation was occurring at that time and Peters had not
interviewed anyone at the scene to find out what had happened;15 2) to the extent that
Peters’ conduct in handcuffing Livecchi and placing him in the patrol car amounted to an
investigatory (or Terry) stop, the detention was not based on a reasonable suspicion that
criminal activity was afoot; 3) to the extent that Peters’ conduct in handcuffing Livecchi
and placing him in the patrol car amounted to an arrest, there was no probable cause for
the arrest;16 4) the purported citizen’s arrest by Kelly was without probable cause, and a
citizen’s arrest made at the request of law enforcement “must meet the same
constitutional standards as an arrest by the law enforcement officers themselves”; 5) one
cannot be arrested for merely committing Harassment in the Second Degree;17 6)
Livecchi did not in fact commit Harassment in the Second Degree, since he did not
threaten Kelly and since “[a] simple verbal disagreement between the two parties does
not constitute a charge of harassment, as words are protected under the First Amendment

14

Docket No. [#43-1] at p.41 (“I observed the officer then go to the two [city] employees on the opposite
corner and have a lengthy conversation all during the time that Mr. Livecchi was in the back of the
vehicle. I and the other tenant watched the officer and the one employee go to the Police car and speak
with Mr. Livecchi[.]”)
15
Docket No. [#43] at part 18 (“Investigative detention requires that Peters had to have reasonable
suspicion that a crime has been, is being, or about [sic] to be committed; otherwise this directly violates
the Plaintiff’s Constitutional right under the Fourth Amendment[.]”).
16
Docket No. [#43] at ¶ 12 (“Due to Defendant Peters’ failure to question the witnesses and or Mr.
Livecchi regarding the matter, Peters was unable to ascertain cause, or reason for second-degree
harassment.
17
Docket No. [#43] at p. 5, ¶ 25 (“At the time of arrest, Peters was well aware that the charge of
Harassment in the Second Degree did not carry with it an arrest as it was a violation.”).

9

of the Constitution”;18 7) the placement of handcuffs on Levicchi amounted to excessive
force without regard to injury, since there was no justification to use any amount of force
at the time of the handcuffing;19 and 8) if Peters is liable to Plaintiff, then “the City of
Geneva is also liable as his actions were committed during his employ with the City.”20
Some of Livecchi’s arguments manifestly lack merit and do not warrant extended
discussion, such as his contention that one cannot be arrested for committing
harassment21 and his argument that the City of Geneva has respondeat superior liability.
However, Livecchi’s arguments opposing the grant of summary judgment to Peters have
merit, as discussed below.
DISCUSSION
Plaintiff’s Pro Se Status
Plaintiff is proceeding pro se, and the Court has therefore reviewed his papers
“with special solicitude, mindful that they must be construed liberally and interpreted to
raise the strongest arguments that they suggest.” Cicio v. Wenderlich, 714 F. App'x 96,
97 (2d Cir. Mar. 16, 2018) (citation and internal quotation marks omitted).
Rule 56
Defendants have moved for summary judgment pursuant to Fed. R. Civ. P. 56.
Summary judgment may not be granted unless "the movant 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). A party seeking summary judgment bears the burden of

18

Docket No. [#43] at p. 8, ¶ ¶ 39-40.
Docket No. [#43] at p. 7, ¶ ¶ 36, 41-44.
20
Docket No. [#43] at p. 4, ¶ 20.
21
Plaintiff baldly asserts that no one can be arrested for committing Harassment in the Second Degree,
since it is merely a violation, and suggests that at most a person who commits such harassment can be
issued an appearance ticket. However, that contention is incorrect. See, e.g., CPL § 140.10(1)(a)
(Indicating that police officer can arrest someone for “any offense” committed in his or her presence).
19

10

establishing that no genuine issue of material fact exists. See Adickes v. S.H. Kress &
Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). “[T]he movant must make
a prima facie showing that the standard for obtaining summary judgment has been
satisfied.” 11 MOORE'S FEDERAL PRACTICE, § 56.11[1][a] (Matthew Bender 3d ed.).
“In moving for summary judgment against a party who will bear the ultimate burden of
proof at trial, the movant may satisfy this burden by pointing to an absence of evidence
to support an essential element of the nonmoving party's claim.” Gummo v. Village of
Depew, 75 F.3d 98, 107 (2d Cir.1996) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322–
23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)), cert denied, 517 U.S. 1190 (1996).
The burden then shifts to the non-moving party to demonstrate “specific facts
showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). To do this, the non-moving party must
present evidence sufficient to support a jury verdict in its favor. Anderson, 477 U.S. at
249. The underlying facts contained in affidavits, attached exhibits, and depositions, must
be viewed in the light most favorable to the non-moving party. U.S. v. Diebold, Inc., 369
U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962). Summary judgment is appropriate
only where, “after drawing all reasonable inferences in favor of the party against whom
summary judgment is sought, no reasonable trier of fact could find in favor of the nonmoving party.” Leon v. Murphy, 988 F.2d 303, 308 (2d Cir.1993).
Section 1983
Section 1983 “is not itself a source of a substantive rights, but merely provides a
method for vindication of federal rights elsewhere conferred.” Long v. Crowley, No.
09BCVB00456A(F), 2012 WL 1202181 (W.D.N.Y. Mar. 22, 2012) (citations and internal

11

quotation marks omitted). To establish individual liability under Section 1983, a plaintiff
must show that the defendant acted under color of state law and caused the plaintiff to
be deprived of a constitutional right. 42 U.S.C. § 1983.
To establish municipal or Monell22 liability under § 1983 relating to a constitutional
violation committed by a municipal employee in the course of his employment, “a plaintiff
must establish that action pursuant to official municipal policy caused his injury.” Williams
v. Bronx Cty. Child Support Customer Serv. Unit, 741 F. App'x 854, 855 (2d Cir. 2018)
(citation and internal quotation marks omitted).
Municipalities, and individuals sued in their official capacity, are liable under § 1983
only if the challenged conduct was pursuant to a municipal policy or custom, or
caused by a failure to train. To satisfy Monell’s policy or custom requirement, a
plaintiff must show either that the challenged practice was so persistent or
widespread as to constitute a custom or usage with the force of law, or that the
practice of subordinate employees was so manifest as to imply the constructive
acquiescence of senior policy-making officials. To establish municipal liability
based on a failure to act, [such as a failure to train,] a plaintiff must show that
defendants knew to a moral certainty that the City would confront a given situation;
the situation presented the City with a difficult choice or there was a history of its
mishandling the situation; and the wrong choice by the City would frequently cause
the deprivation of plaintiffs’ rights. A general and conclusory allegation of a
municipal policy or custom fails to state a facially plausible Monell claim.
Valdiviezo v. Boyer, No. 17-1093, --- Fed.Appx. --- , 2018 WL 5096345 (2d Cir. Oct. 18,
2018) (citations and internal quotation marks omitted).
Fourth Amendment Unlawful Detention
Plaintiff contends that he was improperly detained by Peters in violation of his
Fourth Amendment rights. The Fourth Amendment protects persons from unreasonable
seizures, including but not limited to arrests without probable cause. See, Williams v. City

22

Monell v. Dept. of Soc. Servs. of the City of New York, 436 U.S. 658, 98 S.Ct. 2018 (1978).

12

of New York, 683 F. App'x 57, 58 (2d Cir. 2017) (Indicating that claims for false arrest
under section 1983 rest “on the Fourth Amendment right of an individual to be free from
unreasonable seizures, including arrest without probable cause.”) (citation omitted).
“[T]he first step in any Fourth Amendment claim (or, as in this case, any section
1983 claim predicated on the Fourth Amendment) is to determine whether there
has been a constitutionally cognizable seizure.” Medeiros v. O’Connell, 150 F.3d
164, 167 (2d Cir. 1998). A Fourth Amendment “seizure” occurs when police detain
an individual under circumstances in which a reasonable person would believe he
or she is not at liberty to leave. United States v. Mendenhall, 446 U.S. 544, 554
(1980). “Examples of circumstances that might indicate a seizure, even where the
person did not attempt to leave, would be the threatening presence of several
officers, the display of a weapon by an officer, some physical touching of the
person of the citizen, or the use of language or tone of voice indicating that
compliance with the officer’s request might be compelled.” Id. However, “mere
police questioning does not constitute a seizure.” Muehler v. Mena, 544 U.S. 93,
101 (2005) (internal quotation omitted).
If there was a seizure, the Court proceeds to the second step, which is to determine
what type of seizure occurred. There are two relevant types of seizures, each of
which requires a different level of justification: (i) an investigatory (or Terry) stop,
which must be based on “a reasonable suspicion supported by articulable facts
that criminal activity may be afoot”; and (ii) an arrest, which must be based on
probable cause. United States v. Glover, 957 F.2d 1004, 1008 (2d Cir. 1992)
(quoting United States v. Sokolow, 490 U.S. 1, 7 (1989)). “Whether a seizure is an
arrest or a merely an investigatory detention, depends on the reasonableness of
the level of intrusion under the totality of the circumstances.” Posr v. Doherty, 944
F.2d [91,] 98 [(2d Cir. 1991)] (internal citations omitted). “As the level of
intrusiveness rises, ... an encounter between the police and a citizen is more
properly categorized as an arrest.” Id.
“A permissible investigative stop may become an unlawful arrest if the means of
detention are more intrusive than necessary.” United States v. Wiggan, 530 F.
App’x 51, 55 (2d Cir. 2013) (summary order) (internal quotation omitted). Thus:
In determining whether an investigatory stop is sufficiently intrusive to ripen
into a de facto arrest, the Second Circuit considers the “amount of force
used by the police, the need for such force, and the extent to which an
individual’s freedom of movement was restrained, and in particular such
13

factors as the number of agents involved, whether the target of the stop was
suspected of being armed, the duration of the stop, and the physical
treatment of the suspect, including whether or not handcuffs were used.”
Id. (internal citation omitted).
***
The third and final step is to determine whether the seizure was justified—in other
words, whether the officers had reasonable suspicion (if the seizure was an
investigatory stop) or probable cause (if the seizure was an arrest). See Posr v.
Doherty, 944 F.2d at 98. In reviewing whether the officers had reasonable
suspicion, “courts evaluate the circumstances surrounding the stop through the
eyes of a reasonable and cautious police officer on the scene, guided by his
experience and training.” United States v. Padilla, 548 F.3d 179, 187 (2d Cir. 2008)
(internal quotation omitted). “Even conduct that is as consistent with innocence as
with guilt may form the basis for an investigative stop where there is some
indication of possible illicit activity.” Id. (internal quotation omitted).
In contrast, probable cause exists if an officer has “knowledge or reasonably
trustworthy information sufficient to warrant a person of reasonable caution in the
belief that an offense has been committed by the person to be arrested.” Panetta
v. Crowley, 460 F.3d 388, 395 (2d Cir. 2006) (internal quotation omitted). “Probable
cause does not require absolute certainty.” Boyd v. City of New York, 336 F.3d 72,
76 (2d Cir. 2003). Indeed, “some exculpatory evidence does not make an arrest
illegal when the totality of evidence still establishes probable cause to believe that
the suspect committed the crime.” Stansbury v. Wertman, 721 F.3d 84, 94 (2d Cir.
2013).
McKenzie v. City of Mount Vernon, et al., No. 18 CV 603 (VB), 2018 WL 6831157, at *34 (S.D.N.Y. Dec. 28, 2018).
Significantly, for purposes of the instant motion, the “fruit of the poisonous tree
doctrine” does not apply in Section 1983 Fourth Amendment actions.23 So, for example,
even if an investigative detention or arrest is initially made without reasonable suspicion

23
See, DiMascio v. City of Albany, 205 F.3d 1322 (2d Cir. 2000) (“[T]he fruit of the poisonous tree
doctrine is inapplicable to civil § 1983 actions. Thus, even assuming that the arresting officers lacked
probable cause to stop appellant's car, there is no evidence from which a reasonable jury could conclude
in this Section 1983 action that the officers lacked probable cause to arrest appellant for unlawful
possession of the gun and knives.”) (citation and internal quotation marks omitted).

14

or probable cause, respectively, the police may nevertheless develop probable cause
during the encounter and properly arrest the subject, and in a subsequent Section 1983
Fourth Amendment unlawful seizure action, the police will only be liable for unlawfully
seizing the plaintiff during the period between the initial unlawful detention/arrest and the
subsequent arrest based on probable cause. 24
Applying the foregoing principles to the facts viewed in the light most-favorable to
Plaintiff, the Court finds that Plaintiff has raised triable issues of fact as to whether Peters
violated his Fourth Amendment rights to be free from unreasonable seizures. First, there
appears to be no dispute that Peters seized Livecchi by handcuffing him and placing him
the back of the patrol car against his wishes. As for the nature of the detention, it was at
least an in investigatory stop and arguably an arrest. Either way, there are triable issues
of fact as to whether the detention was justified. In that regard, while Peters characterizes
the detention as an investigatory stop that was made necessary because Livecchi was in
an agitated state and “exchanging words” with Kelly and Bucklin, the Court must view the
facts in the light most-favorable to Plaintiff, the non-movant. Viewed in that light, the
record indicates that when Peters was dispatched to the scene, he was told only that
there was “a problem with a landlord” involving a code inspection, but was not told who

24
See, e.g., Nieves v. New York City Police Dep't, No. 07 CIV. 5751 (SAS), 2010 WL 330205, at *3
(S.D.N.Y. Jan. 26, 2010) (“That the narcotics were found pursuant to an arguably unreasonable entry and
search is irrelevant because the fruit of the poisonous tree doctrine is inapplicable to civil actions arising
under section 1983. Therefore, Nieves' false arrest claim is viable, but only for the period between his
initial arrest and the discovery of the narcotics.”) (footnotes omitted); see also, Savatxath v. Stoeckel, No.
3:10-CV-1089, 2011 WL 1790159, at *3 (N.D.N.Y. May 10, 2011) (“[A]ssuming, arguendo, that the
officers did not have a legally proper justification to initially stop and detain Plaintiff, such a justification
arose once the crack pipe and crack cocaine were discovered in Plaintiff's pockets. Accordingly, any
claim for damages for the period of detention after the discovery of the crack pipe and crack cocaine must
be dismissed.”) (emphasis added); see also, Kennedy v. City of New York, No. 11-CV-1451 ERK SMG,
2013 WL 3490351, at *4 (E.D.N.Y. July 10, 2013) (“A plaintiff whose initial, illegal stop led to the
discovery of incriminating evidence may only recover damages for the initial stop and associated
seizure[.]”), aff'd, 570 F. App'x 83 (2d Cir. 2014).

15

the landlord was or what type of problem was occurring. Further, according to Plaintiff
(and Carter), Plaintiff was not doing anything improper or illegal when Peters arrived.
Nevertheless, Plaintiff maintains that Peters immediately grabbed him, handcuffed him
behind his back and shoved him into the back of the police car without talking to anyone.
Consequently, there are issues of fact as to whether Peters had any basis to detain
Livecchi when he first arrived at Hallenbeck Avenue.
On the other hand, Plaintiff does not dispute that within a few minutes after he was
handcuffed and placed in the patrol car, Kelly approached him and told him that he was
placing him under citizen’s arrest. Defendants maintain that Kelly had probable cause to
arrest Plaintiff based on the threats that Plaintiff made, or, alternatively, that even if Peters
actually made the arrest, he had probable cause based on what Kelly and Bucklin told
him.
If Kelly’s arrest of Plaintiff was lawful, then such arrest would have terminated the
alleged unlawful detention by Peters and replaced it with a lawful arrest, and Peters would
have no liability for unlawful detention after that point. If, however, the purported citizen’s
arrest by Kelly was not lawful, then Peters would remain potentially liable for an unlawful
detention for the entire period that Plaintiff was detained. That is because, contrary to
what Defendants argue, Peters could not have had probable cause to arrest Plaintiff for
second-degree harassment committed outside of his presence, regardless of what Kelly
and Bucklin may have told him. See, Ramos v.City of New York, 298 Fed.App’x 84, 86
(2d Cir. Nov. 4, 2008) (Indicating, in connection with analysis of a § 1983 malicious
prosecution claim, that “under New York law, the offense must occur in the officer’s
presence to provide probable cause to arrest for second-degree harassment,” and that

16

since the harassment did not occur in the police officer’s presence he could not have had
probable cause to arrest.); see also, Penree by Penree v. City of Utica, New York, 694 F.
App'x 30, 34 (2d Cir. 2017) (Finding, in connection with a malicious prosecution claim
under Section 1983, that due to CPL § 140.10(1) police officers could not have had
probable cause to arrest an individual for “second-degree harassment” under New York
law committed outside of their presence); but see, Regels v. Giardono, 113 F. Supp. 3d
574, 598 (N.D.N.Y. 2015) (“There is no requirement under the Fourth Amendment that a
police officer personally witness the conduct upon which he or she relies to establish the
existence of probable cause.”) (emphasis in original; citing Williams v. Schultz, 06–CV–
1104, 2008 WL 4635383, at *7 (N.D.N.Y. Oct. 16, 2008)).
Plaintiff contends that the purported citizen’s arrest by Kelly was not lawful, since
it occurred at the suggestion and/or direction of Peters. On this point, Plaintiff asserts
that if “a person acts on the request of law enforcement, any [citizen’s] arrest they carry
out must . . . meet the same constitutional standards as an arrest by the law enforcement
officers themselves.”25 Alternatively, Plaintiff contends that the citizen’s arrest by Kelly
was unlawful as lacking probable cause, since Kelly was aware that no harassment had
occurred. In other words, Plaintiff contends that Kelly was lying about the alleged
harassment, and therefore Kelly could not have had probable cause to make a citizen’s
arrest for second-degree harassment. With regard to the first of these arguments, Plaintiff
has not cited any authority to support it, nor is the Court aware of any such authority. The
Court is, however, aware that New York law permits citizens to make arrests for “any
offense” that has been committed in their presence. See, NY CPL § 140.30(1) (“[A]ny

25

Docket No. [#43] at p. 5, ¶ 23.

17

person may arrest another person . . . for any offense when the latter has in fact
committed such offense in his presence.”). The Court agrees, though, that the citizen’s
arrest by Kelly would have been unlawful if Kelly knew that Plaintiff had not threatened
him. Since there are material issues of fact on that point, Peters’ summary judgment
motion as to the Fourth Amendment unlawful detention claim must be denied as to the
entire period that Plaintiff was detained.
Fourth Amendment Excessive Force
Plaintiff also contends that Peters used excessive force when he applied
handcuffs. The legal principles applicable to Fourth Amendment excessive force claims
may be summarized as follows:
“[C]laims that law enforcement officers have used excessive force ... in the course
of an arrest, investigatory stop, or other ‘seizure’ of a free citizen should be
analyzed under the Fourth Amendment and its ‘reasonableness’ standard.”
Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989).
“The calculus of reasonableness must embody allowance for the fact that police
officers are often forced to make split-second judgments—in circumstances that
are tense, uncertain, and rapidly evolving—about the amount of force that is
necessary in a particular situation.” Id. at 396-97, 109 S.Ct. 1865. Factors relevant
to the determination of whether the government intruded too far on a suspect’s
Fourth Amendment rights include the severity of the crime at issue, whether the
suspect posed an immediate threat to the safety of the officers or others, and
whether the suspect was actively resisting arrest. Brown v. City of New York, 798
F.3d 94, 100 (2d Cir. 2015) (citing Graham v. Connor, 490 U.S. at 396, 109 S.Ct.
1865). “Defendants are liable as long as the force used exceeded the force needed
for the factual circumstances and the fact that Plaintiff may not have sustained
serious long lasting harm is not dispositive.” Graham v. City of New York, 928
F.Supp.2d 610, 618 (E.D.N.Y. 2013); see also Lemmo v. McKoy, No. 08-CV-4264
(RJD), 2011 WL 843974, at *5-6 (E.D.N.Y. Mar. 8, 2011) (collecting cases in which
courts have both permitted and dismissed excessive force claims predicated on
de minimis injury). While “not every push or shove constitutes excessive force,”
Lennon v. Miller, 66 F.3d 416, 426 (2d Cir. 1995) (citing Graham v. Connor, 490
U.S. at 396, 109 S.Ct. 1865), a show of force by an officer that is grossly
disproportionate to the risk of harm, as determined by the Graham v. Connor
18

factors, may support a claim for excessive force.
“That multi-factor test is not meant to be applied rigidly, however, and the inquiry
into whether force is reasonable requires an objective examination of the totality
of the circumstances.” Gersbacher v. City of New York, No. 14-CV-7600 (GHW),
2017 WL 4402538, at *9 (S.D.N.Y. Oct. 2, 2017) (internal quotation marks omitted).
The “reasonableness of a particular use of force must be judged from the
perspective of a reasonable officer on the scene, rather than with the 20/20 vision
of hindsight.” Id. at 100. “[G]ranting 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.” Amnesty Am. v.
Town of West Hartford, 361 F.3d 113, 123 (2d Cir. 2004) (Sotomayor, J.).
Othman v. City of New York, No. 13CV4771NGGSJB, 2018 WL 1701930, at *5 (E.D.N.Y.
Mar. 31, 2018).
In the instant action, Defendants do not explain how, under Plaintiff’s version of
facts, it would have been reasonable for Peters to handcuff Plaintiff. Instead, Defendants
merely argue that Plaintiff “sustained no injury as a result of being handcuffed,” which is
“fatal to [his] excessive force claim.”26 On this point, Defendants point to a line of cases
in this Circuit which generally hold that with regard to handcuff-excessive-force cases,
“there is a consensus among courts in this circuit that tight handcuffing does not constitute
excessive force unless it causes some injury beyond temporary discomfort.”27 See, e.g.,
Horace v. Gibbs, No. 14-CV-655S, 2018 WL 4901040, at *3 (W.D.N.Y. Oct. 9, 2018)
(“While handcuffs must be reasonably tight to be effective, handcuffs that are overly tight
may constitute an excessive use of force on the part of the officer using them. In
evaluating the reasonableness of handcuffing, a court is to consider evidence that: 1) the
handcuffs were unreasonably tight; 2) the defendants ignored the plaintiff’s pleas that the

26
27

Def. Memo of Law [#40-4] at p. 2.
Def. Memo of Law [#40-4] at p. 2.

19

handcuffs were too tight; and 3) the degree of injury to the wrists. There is a consensus
among District Courts in this Circuit that tight handcuffing does not constitute excessive
force unless it causes some injury beyond temporary discomfort and bruising.”) (quoting
Hollins v. City of New York, No. 10 CIV. 1650 LGS, 2014 WL 836950, at *9 (S.D.N.Y.
Mar. 3, 2014)).
However, the Court believes that analysis applies only where it was reasonable for
a police officer to apply handcuffs in the first place.28 In a situation where it was not
reasonable for the officer to apply handcuffs in the first instance, the fact that the plaintiff
was not injured (or did not complain of discomfort) does not excuse the excessive use of
force. Here, viewing the facts in the light most-favorable to Plaintiff, a jury could find that
it was not reasonable for Peters to use any amount of force against Plaintiff. Since there
are triable issues of fact on that point, the lack of any serious injury to Plaintiff’s wrists
does not entitle Peters to summary judgment. Peters’ request for summary judgment on
that basis is therefore denied.
Qualified Immunity
Peters alternatively argues that he is entitled to qualified immunity on the unlawful
detention and excessive force claims. “Summary judgment on qualified immunity is
appropriate when ‘a jury, viewing all facts in the light most favorable to the plaintiff, could

28

See, e.g., Rodriguez v. City of Berwyn, No. 16 C 5106, 2018 WL 5994984, at *12 (N.D. Ill. Nov. 15,
2018) (“As to the handcuffing, nothing in the record suggests that Keske used any more force than
necessary when placing handcuffs on Camacho, that the handcuffs were too tight, or that it was
unreasonable to handcuff him in the first place. It follows that Keske deserves summary judgment on the
handcuffing aspect of Camacho’s excessive force claim.”) (emphasis added, citation omitted); see also,
Sherman v. Platosh, No. 3:15-CV-352 (MPS), 2017 WL 969263, at *3 (D. Conn. Mar. 13, 2017) (“Mr.
Sherman does not argue that the decision to handcuff him was itself unreasonable.”).

20

conclude that officers of reasonable competence could disagree on the legality of the
defendant's actions.’” Charland v. Nitti, No. 1:11-CV-1191 MAD/RFT, 2014 WL 1312095,
at *7 (N.D.N.Y. Mar. 31, 2014) (quoting Cerrone v. Brown, 246 F.3d 194, 202 (2d
Cir.2001)).
Peters’ argument for qualified immunity on the excessive force claim mirrors his
argument for summary judgment on the merits, namely, that “there is no evidence of any
injury.”29 However, the Court has already explained that such fact is not dispositive of the
excessive force claim and that there are triable issues of fact as to whether it was
reasonable for Peters to use force at all. Accordingly, Peters has not shown that he is
entitled to qualified immunity on the excessive force claim. See, Curry v. City of Syracuse,
316 F.3d 324, 334 (2d Cir. 2003) (Indicating that the “right to be free from the use of
excessive force” has been “clearly established” at all relevant times, and that “[w]here the
circumstances are 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.”) (quoting Mickle v. Morin,
297 F.3d 114, 122 (2d Cir. 2002)).
Peters also claims to be entitled to qualified immunity on the unlawful detention
claim, however he does not explain how that would be true if the Court views the facts in
the light most-favorable to Plaintiff, as it must do. That is, Peters does not assert that
viewing the evidence in the light most-favorable to Mr. Livecchi, police officers of
reasonable competence could still disagree as to whether it was lawful to detain or arrest

29

See, Def. Memo of Law [#40-4] at p. 3 (“The use of force in the case at bar amounts to an allegation
that handcuffs were applied to tight. Even if this were true, there is no evidence of any injury and Officer
Peters would be entitled to qualified immunity and dismissal of the excessive force claim.”).

21

him. Instead, Peters’ argument seems to be premised on the assumption that he had
probable cause to arrest Plaintiff for second-degree harassment,30 a contention which the
Court has already found could not be possible under the facts alleged by Plaintiff. See,
again, Ramos v.City of New York, 298 Fed.App’x 84, 86 (2d Cir. Nov. 4, 2008) (Indicating
that whether probable cause exists as a defense in a § 1983 action depends on state law,
and that under New York law a police officer cannot have probable cause to arrest
someone for second-degree harassment committed outside of his presence.).
Consequently, Peters is not entitled to summary judgment as to the unlawful detention
claim on the basis of qualified immunity.
Monell Failure to Train
Lastly, the City of Geneva maintains that it is entitled to summary judgment on
Plaintiff’s Monell claim, which is based on the City’s alleged failure to train Peters. The
Second Circuit recently reiterated the standard for establishing a Monell failure-trainclaim, as follows:
In limited circumstances, a local government’s decision not to train or supervise its
employees with respect to their legal duty to avoid violating citizens’ rights may
rise to the level of an official government policy for purposes of liability under §
1983. But a § 1983 claim against a municipality is at its weakest where it turns on
an alleged failure to train or supervise. This is in part because the alleged failure
must amount to deliberate indifference to the rights of citizens.
To prove deliberate indifference, a plaintiff must prove that the municipality failed
to take corrective measures despite having actual or constructive notice that a
deficiency in its training or supervising program was causing city employees to
violate citizens’ constitutional rights. This generally requires a plaintiff to prove that
the constitutional violation underlying his claim was preceded by a pattern of
similar constitutional violations.

30

See, Def. Memo of Law [#40-4] at pp. 5-9.

22

Greene v. City of New York, 742 F. App'x 532, 536 (2d Cir. 2018) (citations and internal
quotation marks omitted).
In this action, Plaintiff has not come forward with any evidence of a municipal
policy, practice or custom amounting to a failure to train police officers. Rather, Plaintiff’s
response to Defendants’ summary judgment on this point merely asserts, mistakenly, that
the City would be liable for any constitutional violation committed by Peters in the scope
of his employment.31 See, Cash v. Cty. of Erie, 654 F.3d 324, 333 (2d Cir. 2011)
(Reiterating that “municipalities are responsible only for their own illegal acts, and cannot
be held vicariously liable under § 1983 for their employees' actions.”) (citations and
internal quotation marks omitted). Accordingly, the City of Geneva is entitled to summary
judgment.
CONCLUSION
Defendants’ motion for summary judgment [#40] is granted only as to the municipal
liability claim against the City of Geneva. Otherwise, the application is denied. The Clerk
is directed to terminate the City of Geneva as a party to this action. The case will proceed
to trial on the claims against Peters.
SO ORDERED.
Dated: Rochester, New York
January 24, 2019
ENTER:

/s/ Charles J. Siragusa
CHARLES J. SIRAGUSA
United States District Judge

31

See, Docket No. [#43] at p. 4, ¶ 20 (“Peters is fully liable for his actions against Plaintiff both civilly and
criminally but the City of Geneva is also liable as his actions were committed during his employ with the
City.”).

23