Harmon v. City of Rochester et al

Filing 27

ORDER granting in part and denying in part defendants' 17 Motion for Summary Judgment. I find that plaintiff cannot establish a claim for false arrest, because the undisputed facts establish that the arresting defendants had probable cause t o arrest the plaintiff, and further that they are entitled to qualified immunity. Plaintiff's false arrest claim is therefore dismissed. I further find that plaintiff has failed to set forth any evidentiary basis for a finding of liability aga inst the City of Rochester or the Rochester Police Department, and her claims against those defendants are dismissed in their entirety. I find that plaintiff can raise a triable question of fact as to her excessive force and failure to protect claims asserted against the defendant officers, and therefore decline to dismiss those claims. (A copy of this decision has been mailed to plaintiff at her last known address.). Signed by Hon. David G. Larimer on 3/29/17. (EMA)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_______________________________________________

PHYLLIS HARMON,

Plaintiff,
DECISION AND ORDER
14-CV-6562L
v.

CITY OF ROCHESTER,
ROCHESTER POLICE DEPARTMENT,
OFFICER BRIAN MARONE,
OFFICER REIDY,

Defendants.
________________________________________________

INTRODUCTION
Plaintiff Phyllis Harmon (“Harmon”), proceeding pro se, brings this action against
defendants the City of Rochester (the “City”), the Rochester Police Department (“RPD”), and
RPD officers Brian Marone (“Marone”) and Joseph Reidy (“Reidy”) (collectively “defendants”),
pursuant to 42 U.S.C. §1983. Plaintiff alleges that the individual defendants, who are RPD
employees, falsely arrested her and used excessive force during the arrest.
The pertinent facts are largely undisputed, and defendants now move for summary
judgment pursuant to Fed. R. Civ. Proc. 56 to dismiss plaintiff=s claims, on the grounds that the
officers had probable cause to arrest the plaintiff, and also that they are entitled to qualified

immunity. 1 For the reasons set forth below, the defendants’ motion to dismiss (Dkt. #17) is
granted in part and denied in part.
DISCUSSION
I.

Summary Judgment
Summary judgment is granted if the record demonstrates that “there is no genuine issue

as to any material fact and that the moving party is entitled to a judgment as a matter of law.”
Fed. R. Civ. P. 56(c). See also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986).
“When the moving party has carried its burden under Rule 56(c), its opponent must do
more than simply show that there is some metaphysical doubt as to the material facts. . . . Where
the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party,
there is no ‘genuine issue for trial.’” Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475
U.S. 574, 586-587 (1986).
Where, as here, the party opposing summary judgment is proceeding pro se, the Court
must “read the pleadings ... liberally and interpret them to raise the strongest arguments that they
suggest.” Corcoran v. New York Power Auth., 202 F.3d 530, 536 (2d Cir.1999). Nevertheless,
“proceeding pro se does not otherwise relieve [an opposing party] from the usual requirements of
summary judgment.” Fitzpatrick v. N.Y. Cornell Hosp., 2002 U.S. Dist. LEXIS 25166 at *5
(S.D.N.Y. 2003). Those requirements include the obligation not to rest upon mere conclusory
allegations or denials, but to set forth “concrete particulars” showing that a trial is needed. R.G.
Group, Inc. v. Horn & Hardart Co., 751 F.2d 69, 77 (2d Cir. 1984).
1 Defendants interpret plaintiff’s Amended Complaint (Dkt. #4) as asserting claims for false arrest and excessive
force/failure to protect. To the extent that the Amended Complaint might be fairly read to state a claim for unlawful
entry, the Court would not dismiss it in its entirety in any event, as defendants have not moved for summary
judgment on that claim. See e.g., Amended Complaint, Dkt. #4 at ¶7, ¶14 (“defendants… illegally entered
claimant’s home”); ¶12, ¶19 (“defendants invaded the privacy of claimant’s home”).

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FACTUAL BACKGROUND
Familiarity with the underlying facts, summarized here, is presumed.
On July 14, 2013, plaintiff was charged with resisting arrest and obstruction of
governmental administration. Plaintiff’s arrest occurred after Officers Marone and Reidy were
summoned to plaintiff’s residence by a contractor, who presented them with a copy of a work
contract to perform renovations inside Ms. Harmon’s home and a key to the house, and
explained that plaintiff was preventing him from retrieving his tools and equipment from the
house due to a dispute over his work. After a brief verbal exchange with the officers in which
plaintiff told them words to the effect that the only way the contractor would gain entry was if
“God himself” let him in, plaintiff walked away from the residence. When the officers attempted
to permit the contractor to enter the home, plaintiff returned and approached the officers,
ignoring commands to stop, and struck, or attempted to strike, Officer Marone on the chest.
(Officers Marone and Reidy, Dkt. #17-2 at Exhs. D and F, describe plaintiff as having punched
Marone in the chest. A contemporaneous written statement from the contractor to the police,
Dkt. #17-2 at Exh. E, describes plaintiff as having “swung her fist” at one of the officers.)
Officer Marone told plaintiff she was under arrest and attempted to take her arm, but plaintiff
allegedly attempted to pull away, and continued to struggle despite warnings that if she did not
desist, pepper spray would be used. According to the defendant officers, plaintiff continued to
scuffle and was sprayed in the face with pepper spray by Officer Marone.

Plaintiff was

ultimately taken to the ground with one officer on each side of her performing a hold, after which
she was handcuffed. When plaintiff complained of asthma symptoms, she was transported by
ambulance to Strong Memorial Hospital.

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DISCUSSION
I.

False Arrest
In order to maintain her claims under Section 1983, plaintiff must show that the

defendants violated her Constitutional or federal statutory rights – here, her Fourth Amendment
right to be free from unreasonable seizures – and that defendants did so while acting under color
of state law. See Parratt v. Taylor, 451 U.S. 527, 535 (1981). To establish a claim of false
arrest, a plaintiff must prove that the underlying arrest lacked probable cause. Weyant v. Okst,
101 F.3d 845, 852 (2d Cir. 1996). As such, the existence of probable cause operates as “a
complete defense to [a civil rights action arising from an arrest],” whether brought under state
law or Section 1983. Bernard v. United States, 25 F.3d 98, 102 (2d Cir. 1994).
“[T]he standard for establishing probable cause is not a particularly stringent one. It does
not require proof of a suspect=s guilt beyond a reasonable doubt. Instead, probable cause to arrest
exists when the known facts are >sufficient to warrant a person of reasonable caution in the belief
that the person to be arrested has committed or is committing a crime.” Donovan v. Briggs, 250
F. Supp. 2d 242 at 253 (W.D.N.Y. 2003) (quoting Jocks v. Tavernier, 316 F.3d 128 at 135 (2d
Cir. 2003)) (emphasis in original).
Here, it is clear that the conduct in which plaintiff engaged – ignoring and verbally
refusing the defendant officers’ orders to stay back while they supervised the contractor’s
retrieval of his tools and equipment, striking an officer, and physically resisting efforts to take
her into custody thereafter – provided probable cause for her arrest.
Plaintiff does not deny that she engaged in the bulk of the conduct defendants describe by
refusing to stay back from the house while they attempted to assist the contractor, and contends
only that they should not have entered her property in the first place, because their grasp of the
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situation, and their conclusions concerning the validity of the contractor’s work contract, were
factually and legally erroneous. This factual issue is raised only via unsworn statements, but
even if it was submitted in admissible form and duly considered by the Court, it is not germane
to the probable cause determination.
The question before the Court is not whether the contractor had the right to enter
plaintiff’s property, or whether the defendant officers acted properly in permitting him access to
plaintiff’s home, but whether plaintiff’s actions toward the defendant officers furnished probable
cause for them to arrest her for her actions toward them. The undisputed facts indicate that they
did.
“A person is guilty of obstructing governmental administration when he intentionally
obstructs, impairs or perverts the administration of law or other governmental function or
prevents or attempts to prevent a public servant from performing an official function, by means
of intimidation, physical force or interference, or by means of any independently unlawful act . .
.” N.Y. Penal Law § 195.05. Defendants have testified that plaintiff ignored (and verbally
refused) their commands to stay back while the contractor collected his belongings, and
proceeded to strike Officer Marone. Plaintiff denies having struck officer Marone, but does not
dispute having intentionally disregarded the officers’ directions by attempting to enter the house
after being told to stay back, and physically interfering with their attempts to permit the
contractor to collect his tools. Plaintiff’s admitted conduct furnished probable cause for an arrest
on charges of obstruction of governmental administration. See Morcavage v. City of New York,
689 F.3d 98, 110 (2d Cir. 2012) (unpublished opinion). As such, I find that the undisputed facts
establish that the defendants had probable cause to arrest the plaintiff on July 14, 2013.

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Having found that plaintiff=s arrest was supported by probable cause, I need not reach the
issue of qualified immunity. See Saucier v. Katz, 533 U.S. 194, 201 (2001). Nevertheless, I also
find that defendants are entitled to qualified immunity.
Qualified immunity shields public officials from an action for civil damages, to the extent
that their challenged acts do not violate “clearly established statutory or constitutional rights of
which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
Specifically, the doctrine applies where it is “objectively reasonable” for an official to believe
that his conduct did not violate such a right, in light of clearly established law and in the
information possessed by the official. See Simms v. Village of Albion, 115 F.3d 1098, 1106 (2d
Cir. 1997); Hill v. City of New York, 45 F.3d 653, 661 (2d Cir. 1995); Velardi v. Walsh, 40 F.3d
569, 573 (2d Cir. 1994). In determining whether defendants are entitled to qualified immunity,
the Court must focus on “objective circumstances rather than an officer’s subjective motivation.”
Bradway v. Gonzales, 26 F.3d 313, 319 (2d Cir. 1994).
With respect to claims of false arrest, an arresting officer is entitled to qualified immunity
if: (a) it was objectively reasonable for the officer to believe that probable cause existed, or (b)
officers of reasonable competence could disagree on whether the probable cause test was met.
See Lennon v. Miller, 66 F.3d 416, 420 (2d Cir. 1995); Wachtler v. County of Herkimer, 35 F.3d
77, 81 (2d Cir. 1994).
As noted above, the undisputed facts presented here establish that the plaintiff’s arrest
was grounded upon firsthand, eyewitness observations and interactions between the plaintiff and
the defendant officers in which plaintiff refused to follow their directives, and I find that this
evidence was sufficient to cause a reasonable officer to believe that probable cause existed to
arrest plaintiff for obstructing governmental administration, and for resisting arrest.
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Accordingly, plaintiff=s claim of false arrest is dismissed.
II.

Excessive Force and Failure to Protect
Plaintiff claims that she was subjected to excessive force in violation of the Eighth

Amendment when Officer Marone “twisted” her arm forcefully behind her back and sprayed
aerosol mace on her face and in her mouth during her arrest, and that Officer Reidy “assisted”
Officer Marone in the excessive force, and/or failed to protect her from it. (Dkt. #4 at ¶21). She
alleges in her Amended Complaint that as a result of her physical confrontation with the officers,
she suffered “bruises, swelling and pain over her entire body,” and continues to suffer from arm
and shoulder pain, as well as embarrassment and humiliation. (Dkt. #4 at ¶¶23-25).
The standard for assessing an excessive force claim is “one of objective reasonableness,”
which “requires balancing the nature and quality of the intrusion on the plaintiff’s Fourth
Amendment interests against the countervailing governmental interests at stake.”

Tracy v.

Freshwater, 623 F.3d 90, 96 (2d Cir. 2010). Three considerations guide the Court’s application
of the standard: (1) the nature and severity of the crime precipitating the arrest; (2) whether the
suspect poses an immediate threat to the safety of the officer or others; and (3) whether the
suspect was actively resisting arrest and/or attempting to flee. Id.
Here, the crime for which plaintiff was placed under arrest (obstruction of governmental
administration) was not a particularly serious one. However, multiple questions of fact preclude
a thorough analysis of the remaining relevant factors – e.g., whether plaintiff posed a physical
threat to the officers, whether she attempted to assault Officer Marone or simply tried to edge
past him into the house, and whether plaintiff offered physical resistance (and if so, to what
extent) when she was placed under arrest.

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Plaintiff alleges injuries to her shoulder, and has offered, in her papers opposing the
instant motion, medical records concerning a serious rotator cuff injury dating at least as far back
as her confrontation with the defendant officers. While the evidence plaintiff has submitted
documenting her version of events is unsworn, and the medical records she has attached are
unauthenticated (meaning that plaintiff has failed to offer proof “in admissible form”), in light of
the “special solicitude” owed to pro se litigants, Tracy v. Freshwater, 623 F.3d 90, 101 (2d Cir.
2010), the Court has carefully considered the statements and documents submitted by plaintiff.
See Wali v. One Source Co., 678 F. Supp. 2d 170, 178 (S.D.N.Y. 2009) (“the Court retains some
discretion to consider the substance of the plaintiff's arguments, where actually supported by
evidentiary submissions,” despite plaintiff’s failure to comply with the technical requirements
concerning responses to summary judgment motions).
That evidence includes plaintiff’s medical records (which document plaintiff’s statements
to treatment providers when she presented with complaints of shoulder pain immediately after
her encounter with the defendant officers), plaintiff’s handwritten, signed statements describing
the altercation with the defendant officers (in which she denies resisting arrest and describes
additional physical contacts by the defendant officers toward her, including being punched,
kicked, choked and slammed to the ground), and evidence concerning the relative ages and sizes
of the parties involved (plaintiff claims that at the time of the incident, she was 5 feet tall, 117
pounds and 54 years of age, while the defendant officers were significantly younger, bigger
and/or stronger).

Upon a careful review of this evidence, I find that it is possible that a

“reasonable jury, viewing the evidence in the light most favorable to the [p]laintiff, could
conclude that the defendant[s’] actions were objectively unreasonable in light of clearly
established law.”

O'Bert v. Vargo, 331 F.3d 29, 37 (2d Cir. 2003).
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Where a plaintiff’s

“allegations and evidentiary proffers could reasonably, if credited, allow a rational factfinder to
find that [law enforcement] officers used [excessive] force,” summary judgment is improper
even there the “evidence of injury [is] slight and the proof of excessive force [is] weak.” Young
v. Fischer, 2017 U.S. Dist. LEXIS 32267 at *46 (N.D.N.Y. 2017).
I further find that defendants have not demonstrated entitlement to qualified immunity on
plaintiff’s excessive force and failure to protect claims, since dismissal on the basis of qualified
immunity is “inappropriate where there are facts in dispute that are material to a determination of
reasonableness.” Tatum v. City of New York, 2009 U.S. Dist. LEXIS 3512 at *33-*34 (S.D.N.Y.
2009) (citing Thomas v. Roach, 165 F.3d 137, 143 (2d Cir. 1999)). While “[p]laintiff may have
a steep hill to climb given the likely rapid succession of events that transpired,” Kimbrough v.
Town of Dewitt Police Dep’t, 2010 U.S. Dist. LEXIS 96245 at *30 (N.D.N.Y. 2010), summary
judgment on plaintiff’s excessive force and failure to protect claims would be inappropriate at
this juncture.
III.

Municipal Liability
Although plaintiff’s Amended Complaint (Dkt. #4) does not specifically allege any

claims against the City of Rochester and/or Rochester Police Department, it names both as
defendants. Because neither the Amended Complaint nor the evidence submitted on the instant
motion provide any basis for a finding of municipal liability, plaintiff’s claims against the City of
Rochester and Rochester Police Department are dismissed.
CONCLUSION
For the foregoing reasons, the defendants’ motion for summary judgment (Dkt. #17) is
granted in part and denied in part. I find that plaintiff cannot establish a claim for false arrest,
because the undisputed facts establish that the arresting defendants had probable cause to arrest
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the plaintiff, and further that they are entitled to qualified immunity. Plaintiff’s false arrest claim
is therefore dismissed.
I further find that plaintiff has failed to set forth any evidentiary basis for a finding of
liability against the City of Rochester or the Rochester Police Department, and her claims against
those defendants are dismissed in their entirety.
I find that plaintiff can raise a triable question of fact as to her excessive force and failure
to protect claims asserted against the defendant officers, and therefore decline to dismiss those
claims.
IT IS SO ORDERED.

_______________________________________
DAVID G. LARIMER
United States District Judge
Dated: Rochester, New York
March 29, 2017.

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