Griffin v. Delvecchio et al

Filing 48

DECISION AND ORDER denying 37 Motion for Summary Judgment; denying 44 Motion to Amend or Correct. Material issues of fact prevent the Court from granting Defendants motion for summary judgment or qualified immunity. Plaintiff made her motion to amend too late. Therefore, the Court denies Defendants motion for summary judgment, ECF No. 37, and denies Plaintiffs cross-motion to amend, ECF No. 44. The Court will issue a separate pretrial scheduling order. Signed by Hon. Charles J. Siragusa on 12/18/18. (KAP)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

JACENTA R. GRIFFIN,
Plaintiff,
DECISION AND ORDER

-vsANTHONY DELVECCHIO, SALVATORE V. AMATO, and
CITY OF ROCHESTER,

16-CV-6029-CJS-MWP

Defendants.

APPEARANCES
For Plaintiff:

Charles Francis Burkwit, Esq.
Burkwit Law Firm, PLLC
16 East Main Street, Suite 450
Rochester, NY 14614
[phone]

For Defendants:

Patrick Beath, Esq.
Spencer L. Ash, Esq.
City of Rochester
30 Church Street, Suite 400A
Rochester, NY 14614
[phone]
INTRODUCTION

Siragusa, J. This civil rights case is before the Court on Defendants’ motion for summary judgment, ECF No. 37, filed on March 30, 2017, and Plaintiff’s cross-motion to amend,
ECF No. 44, filed on July 12, 2017. The Court denies both applications and will issue a separate pretrial scheduling order.

FACTUAL BACKGROUND
Both parties submitted a Rule 56 statement of facts per the Court’s local rule of civil
procedure. Up to a point in the narrative, the parties all agree on the facts. However, they
deviate substantially from the point at which the defendant officers transported Plaintiff to a
hospital. The Court will recite the facts as provided by the defense, then discuss the significant
deviations separately, if any, right below the factual recitation:
5. On the night of February 2, 2015, plaintiff’s mother called 911 asking “for a
mental hygiene arrest” for plaintiff because plaintiff was intoxicated, arguing
with her adult brother, and threatening suicide. See Griffin 50-h Examination,
annexed to the Beath Declaration as Exhibit B, at 8:11-9:15; Griffin Deposition
Transcript, annexed to the Beath Declaration as Exhibit C, at 25:22-26:20;
Communications Records, annexed to the Beath Declaration as Exhibit D.
Def.’s Rule 56 Statement ¶ 5, Mar. 30, 2018, ECF No. 40 (“D. Stmt.”). Plaintiff disputes that
this was a “mental hygiene” arrest, arguing that because the officers failed to obtain permission to transport Plaintiff as required by police department rule, it could not have been an
arrest pursuant to New York Mental Hygiene Law §§ 22.09 or 9.41. The Court disagrees. Both
sections permit a police officer to transport to a hospital “any person who appears to be mentally ill and is conducting himself or herself in a manner which is likely to result in serious harm
to the person or others,” N.Y. Mental Hyg. Law § 9.41 (McKinney 2018), or “[a] person who
appears to be incapacitated by alcohol and/or substances to the degree that there is a likelihood to result in harm to the person or to others….” N.Y. Mental Hyg. Law § 22.09 (McKinney
2018). Therefore, the Court rejects Plaintiff’s legal argument that because the officers failed
to follow a departmental procedure, the arrest was no longer authorized under the mental
hygiene law.
6. During the course of that afternoon and evening, plaintiff had consumed four
to five 24-ounce beers, despite the fact that she was on probation after a 2010
DWI conviction, which prohibited her from consuming alcohol. Exh. C at 17:1025:10; DWI Conviction and Probation Records, annexed to the Beath Declaration as Exhibit E.
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7. Upon hearing her mother call 911, plaintiff climbed out of a first-floor window
in her brother’s room. Exh. C at 31:21-32:9.
8. Plaintiff was wearing an orange jacket or sweatshirt. Transcript of Depositions of Salvatore Amato and Anthony Delvecchio, annexed to the Beath Declaration as Exhibit F, at 37:11-18.
D. Stmt. ¶¶ 6–8. Plaintiff disputes that she was wearing an orange jacket or sweatshirt. At his
pretrial deposition, Officer Amato testified as follows:
A. [discussing the 911 printout] So the next entry is a minute later eighteen
forty-one we received additional information on the call from dispatch. It looks
like a description, black female named Jacenta, last seen wearing an orange
jacket, possibly running on Woodman Park.
***
Q. What was Ms. Griffin wearing when she was put in the back of the police car;
do you know what she was wearing?
A. The only reason I know is because of this, this sheet.
Q. Was it—what does LSW orange jacket mean?
A. LSW is last seen wearing.
Q. Got it.
A. So that’s information from her mother to dispatch and dispatch relaying it to
us, orange jacket.
Q. Okay. But do you recall if she had an orange jacket on or no?
A. I honestly don’t recall that.
Amato Dep. 22:6–10; 37:11–23. Photographs of Plaintiff in the hospital, submitted with Plaintiff’s Burkwit affidavit as exhibits, show her wearing an orange zippered sweatshirt with a
hood. Burkwit Aff. Ex.s A, B, C, D2, Jul. 12, 2018, ECF No. 44-1. Further, the video at the
hospital, timestamped with the time Plaintiff arrived, shows her with an orange top with her
hands behind her back and one officer on her left, and one on her right. Def.s’ Ex. H (video
recording). Plaintiff has failed to submit evidentiary proof that she was not wearing an orange
top when arrested.
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9. Officers Salvatore Amato and Anthony Delvecchio responded to the 911
call. Exh. F at 17:11-18:12, 121:8-122:14.
10. On that particular evening Officers Amato and Delvecchio were riding together in a police vehicle because there was a snowstorm. Exh. F at 103:1524.
11. As the officers arrived at plaintiff’s Meredith Street home, they saw her
standing outside. Exh. F at 31:12-32:2, 123:2-21.
12. The officers exited their car, told plaintiff to stop, and officer Delvecchio
handcuffed her. Exh. C at 36:15-37:23; Exh. F at 32:3-10, 123:2-21.
13. Officer Delvecchio escorted plaintiff into the police car while Officer Amato
spoke with plaintiff’s family members. Exh. C at 38:25-39:4; Exh. F at 32:1518, 125:17-23.
14. The officers remained at the location for approximately eight minutes, waiting for an ambulance to transport plaintiff to the hospital. Exh. D; Exh. F at 23:38, 33:5-36:19, 126:16- 21; TrackStar GPS Data, annexed to the Beath Declaration as Exhibit G.
15. However, the ambulance was significantly delayed by the inclement
weather, and plaintiff became increasingly agitated in the back of the officers’
car. Exh. F at 23:13-19, 36:5- 37:10, 132:7-132:18, 134:11-135:13, 137:422.
D. Stmt. ¶¶ 9–15. Plaintiff disputes that the ambulance was significantly delayed in responding. Officer Delvecchio testified about the wait for the ambulance:
Q. Okay. So how much time went by after you arrived at Ms. Griffin’s house; you
said that you waited about five minutes in the car approximately?
A. Could have been five to ten minutes.
Q. Okay. And then Officer Amato got back in the vehicle with you at that point?
A. Yes.
Q. And then did you wait at all before you left to go to Rochester General?
A. Yes.
Q. How long did you wait in the car for?
A. A couple minutes until we realized what is going on with Rural Metro, where
are they, that’s when we went on the radio and said can we get an ETA and by
their own words they said another twenty, thirty minutes.
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Q. So did you cancel the ambulance coming to Ms. Griffin’s home?
A. Yes.
Delvecchio Dep. 137:4–22. Officer Delvecchio explained further reasons why he chose to
transport Plaintiff in the police car instead of waiting for the ambulance to arrive, including his
experience arresting Plaintiff on an earlier date and the difficulties involved with using an
ambulance to transport her. Delvecchio Dep. 109–16. As with the prior issue, Plaintiff has not
submitted any evidentiary proof to raise an issue of fact about the ambulance’s delay.
According to Defendants:
16. Therefore, the officers decided to transport plaintiff to the hospital themselves. Id.
17. They radioed ahead to ensure that Rochester General Hospital knew that
they were bringing a mental hygiene detainee to the hospital. Exh. F at 137:23138:9.
***
18. Plaintiff recalled that the police officers drove her down Meredith Street
toward Culver Road, but could not recall whether the officers ever made it to
Culver Road or where they drove the car after that point. Exh. C at 43:15-44:3.
19. Plaintiff alleges that, after the car had traveled for approximately five
minutes, the officers pulled over to the side of the road, stopped the car, and
both got out of the car and went to the rear passenger door where plaintiff was
sitting. Exh. C at 45:2-14, 47:18-22.
20. Plaintiff did not know where this took place, but claims that it was in a residential area. Exh. C at 46:15-20.
21. When the officers opened the door, plaintiff said “please take me home.”
Immediately after she said this, according to plaintiff, Officer Delvecchio elbowed her in the face. Exh. C at 48:12-20.
22. Officer Delvecchio’s elbow allegedly struck plaintiff in the mouth, knocking
out her top left front tooth. Exh. C at 51:23-53:4.
23. Plaintiff alleges that immediately after being elbowed, she was punched by
Officer Delvecchio in the area of her left eye. Exh. C at 54:6-22.
D. Stmt. ¶¶ 16–23. Plaintiff, though, denies that Officer Delvecchio punched her around her

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left eye. Instead, Plaintiff states that after Officer Delvecchio elbowed her she said, “You got
to be fucking kidding me,” and immediately thereafter, he punched her, and she blacked out.
Further, according to Defendants:
24. Plaintiff describes that at the time she was elbowed and punched she was
facing straight ahead with her back flat against the seat. Exh. C at 57:18-59:7.
D. Stmt. ¶ 24. Plaintiff denies that she was facing straight ahead when elbowed and punched.
However, she also states:
Plaintiff testified that at the time the officers opened the door, she does not
recall if she turned towards them. (See Beath Declaration – Exhibit C - Griffin
Dep. pg. 58, lines 4-5). Admit that while handcuffed, Plaintiff’s back was flat
against the back seat when she got elbowed and punched. (See Beath Declaration – Exhibit C - Griffin Dep. pg. 58, line 6 to pg. 59, line 7). Plaintiff testified
at her 50-h hearing that she was sitting sort of slanted, facing towards the window of the car on the right side when she was elbowed directly in her face. (See
Beath Declaration – Exhibit B - Griffin 50-h, pg. 32, line 16 to pg. 33, line 6).
Pl.’s Response to Def.s’ Statement of Undisputed Facts ¶ 24, Jul. 12, 2018, ECF No. 44-10.
During her deposition, she was asked the following question and gave the following response:
Q. You got elbowed. You got punched and you remained pretty much in that
position, because your back was flat against that back seat.
A. Correct.
Griffin Dep. 59:4–7, Mar. 30, 2018, ECF No. 38-3.
Moreover, Defendants maintain:
25. Plaintiff claims that after being punched, she blacked out and did not regain
consciousness until she woke up at the hospital strapped to a gurney. Exh. C at
56:2-57:13, 59:8-21.
26. Griffin alleges that later, after regaining consciousness, she found her front
top left tooth in the pocket of her sweatpants. She did not know how it got there.
Exh. C at 65:7-18.
27. Griffin alleges that she did not speak to a doctor at any time that she was
at the hospital and was never offered any medical treatment for her injuries.
Exh. C at 65:19-68:17.
D. Stmt. ¶¶ 25–27. Plaintiff responds:
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27. Deny that Plaintiff alleges she did not speak with a doctor at any time that
she was at the hospital and was never offered any medical treatment for her
injuries. Plaintiff acknowledged during her deposition that she does not remember speaking with a doctor at any time when she was at the hospital and does
not have any recollection of doctors offering the suture her lip.
Pl.’s Stmt. of Facts ¶ 27.
With regard to Plaintiff’s allegation that the officers stopped the car and elbowed and
punched her, Defendants have offered the global positioning system tracking of their vehicle
(TrackStar GPS reports) showing the police car’s movements on the night of Plaintiff’s arrest,
February 2, 2015:
a. The trip report combines the data from the movement and stop summaries
to illustrate where the officers traveled on the night of February 2, 2015. It
demonstrates that, at approximately 6:53:13 P.M. the officers stopped in the
vicinity of 90 Meredith Street, and remained there for 8:221 while speaking with
plaintiff and her family and awaiting an ambulance.
b. The trip report indicates that the officers then drove from that location and
ultimately made their way to Rochester General Hospital.
c. On the way to the hospital, the officers stopped for 25 seconds near 5 Meredith Street, which is at the intersection of Meredith Street and Culver Road.
d. The officers stopped for 33 seconds near 1862 Culver Road, which is at the
intersection of Culver Road and Waring Road.
e. The officers stopped again for 22 seconds in the vicinity of 573 Waring Road,
which is at the intersection of Waring Road and Norton Street.
f. The officers then stopped for 51:48 minutes once they reached Rochester
General Hospital.
Beath Decl. ¶9a–f, Mar. 30, 2018, ECF No. 38. Defendants argue: “The GPS data does not
bear out plaintiff’s allegation that the officers pulled over and assaulted her five minutes into
the transport or at any time.” Def.s’ Mem. of Law in Support of Summary Judgment 9, Mar.

1

Presumably eight minutes and twenty-two seconds.
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30, 2018, ECF No. 39. Plaintiff responds by stating she “lacks knowledge as to whether the
patrol car the Defendant Officers were driving on the night of February 2, 2015[,] was
equipped with GPS tracking and whether such technology, if proven reliable, corroborates the
Defendant Officers’ route to the hospital.” Pl.’s Response to Def.s’ Statement of Undisputed
Facts 29.
Additionally, Defendants have provided corroborating evidence from the hospital’s
video camera showing their escort of Plaintiff from the police car to the entrance. The video
(labeled Channel 13) beginning at 19:01:37 and going to 19:01:43, confirms that Plaintiff
was ambulating on her own and that the officers were guiding but not providing support to
her. The video demonstrates Plaintiff was conscious when she and the officers arrived at the
hospital. Although Plaintiff disputes that the video depicts her, Defendants persuasively argue
that the photographs Plaintiff herself submitted showing her in the hospital wearing the orange hooded sweatshirt, corroborate the video and the officers’ testimony that she walked in
on her own feet, and was not unconscious until strapped to a hospital gurney. Def.s’ Ex. H
(video recording); Amato Dep. 45:9.
Furthermore, Defendants have submitted the deposition testimony of hospital employees Sharon Bradley and Marcus L. Germonto. Beath Decl., Ex.s I & J. Bradley, Sergeant of
Security at Rochester General Hospital, was asked the following questions and gave the following responses:
Q. Then what happened next?
A. By the time I reached my entrance, the police and Ms. Griffin were reaching
their entrance, so I was within probably 2 feet of them. She was very vulgar and
was actively, like, trying to—she was handcuffed, but actively, like, trying to pull
away from the police officers. Her arms were extended pretty far behind her
back.
***

8

·Q. When you first saw the officers and Ms. Griffin, did you see if she had any
visible injuries?
A. She had none.
Q. What’s the next thing that happened?
A. She continued to try to pull away. And at that point, she—what I would refer
to as, like, a mule-kick—kicked the officer from behind. Like, lifted her knee up
into the air and struck him, like, right in the upper thigh, close to the groin area.
Q. At the time that she kicked the officers, where were the officers in relationship to her?
A. One had her by—and I apologize. I can’t remember which officer it was—was
just holding her by her upper arm as she was trying pull away, so she couldn’t
run. And then the other officer, I don’t believe, had any contact with her at all,
that I can recall.
Q. The one that you remember was holding onto her arm, do you remember if
that was the officer on her right or her left?
A. I want to say her right. Yes.
Q. So the officer with no contact was the one on the left?
A. Correct.
Q. And when she—you said “mule-kicked.” So she kind of kicked her foot up and
behind her?
A. Yes. Correct.
Q. And that kick—did that kick strike one of the officers?
A. Yes, it did.
Q. Which of the officers? The one on the right or the left?
A. The right.
Bradley Dep. 8:19–25; 10:4–11:13, Mar. 30, 2018, ECF No. 38-9. Germonto, a security officer at Rochester General Hospital, testified concerning this incident as well. He was asked
the following questions and gave the following answers in his pretrial deposition:

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Q. So, just generally, then, are you able to tell me what you recall of Ms. Griffin
and her presence at the Rochester General Hospital emergency room on February 2, 2015?
A. I recall two RPD officers bringing Ms. Griffin in to our ED department through
the ambulance bay. I recall her being loud and boisterous and verbally assaultive towards the officers. I also recall at some point, she tried to break free or
tussle—I don’t know the word to use—with the officers. She tried to kick and did
kick—I don’t remember which officer’s name she struck with her foot. They,
then, secured her to the floor, and she was placed into a room shortly after that
to be seen by medical staff.
***
Q. Going back to when you first saw the officers escorting Ms. Griffin into the
ambulance bay, did you see if Ms. Griffin had any visible injuries at that time
when she first walked in?
A. I did not notice any visible injuries at that time, no.
Q. Was she complaining of any injuries?
A. She was not.
Q. And you said later she had some scrapes when she went to the floor. Had
you seen those scrapes before the officers took her to the ground?
A. No, I did not.
Germonto Dep. 8:8–22; 15:18–16:5, Mar. 30, 2018, ECF No. 38-10. Defendants have submitted a photograph allegedly showing the footprint of Plaintiff’s foot left on Officer Amato’s
uniform. Beath Decl. Ex. L. Witnesses all describe how the defendant officers took Plaintiff to
the ground after she kicked Officer Amato, and that she subsequently suffered injuries to her
face as a result. Plaintiff’s blood alcohol level when tested at the hospital was 0.345, “significantly elevated,” according to Brian S. Greenberg, M.D. Greenberg Dep. 38:22–23, Mar. 30,
2018, ECF No. 38-13. Dr. Greenberg testified that Plaintiff’s alcohol level was roughly four
times the legal limit for driving in New York. Id. 39:4–6. The doctor further testified about the
effects of that high a blood-alcohol level: “Severely impairs their judgment. It severely impairs
their ability to function normally. But everybody handles it differently, so it varies patient to

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patient.” Id. 39:17–20.
STANDARDS OF LAW
Summary Judgment
Summary judgment may not be granted unless Athe pleadings, depositions, answers
to interrogatories, and admissions on file, together with the affidavits, if any, … demonstrate
the absence of a genuine issue of material fact,” Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986), and “the movant is entitled to judgment as a matter of law,” Fed. R. Civ. P. 56(a)
(2015). “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) (citation omitted).
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
(1986). To do this, the non-moving party must present evidence sufficient to support a jury
verdict in its favor. Id. at 249. A[F]actual issues created solely by an affidavit crafted to oppose
a summary judgment motion are not >genuine= issues for trial.@ Hayes v. N.Y. City Dep’t of Corr.,
84 F.3d 614, 619 (2d Cir. 1996). Summary judgment is appropriate only where, Aafter 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 non-moving party.@ Leon v. Murphy, 988 F.2d
303, 308 (2d Cir. 1993). The parties may only carry their respective burdens by producing
evidentiary proof in admissible form. Fed. R. Civ. P. 56(c)(1). The Court must view the underlying facts contained in affidavits, attached exhibits, and depositions, in the light most favorable to the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).

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Section 1983 Liability
Plaintiff is suing pursuant to 42 U.S.C. § 1983, and the legal principles generally applicable to such claims are well settled:
In order to establish individual liability under § 1983, a plaintiff must show (a)
that the defendant is a “person” acting “under the color of state law,” and (b)
that the defendant caused the plaintiff to be deprived of a federal right. See,
e.g., Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961).
Back v. Hastings On Hudson Union Free Sch. Dist., 365 F.3d 107, 122 (2d Cir. 2004).
Fourth Amendment Excessive Force
The foundation for an excessive force claim arising out of an arrest is the Fourth
Amendment right “‘to be secure in their persons ... against unreasonable ... seizures.’“ Graham v. Connor, 490 U.S. 386, 394, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989) (quoting U.S.
Const. amend. IV). In Graham, the Supreme Court explained that,
proper application [of this standard] requires careful attention to the facts and
circumstances of each particular case, including the severity of the crime at
issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to
evade arrest by flight.
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.... Not every push or shove, even if it may later seem unnecessary
in the peace of a judge’s chambers violates the Fourth Amendment. 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.
As in other Fourth Amendment contexts, however, the “reasonableness” inquiry
in an excessive force case is an objective one: the question is whether the officers’ actions are “objectively reasonable” in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation. An officer’s evil intentions will not make a Fourth Amendment violation out
of an objectively reasonable use of force; nor will an officer’s good intentions
make an objectively unreasonable use of force constitutional.
Graham v. Connor, 490 U.S. 386, 394 (1989).

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Qualified Immunity
“Government officials performing discretionary functions generally are shielded from
liability for civil damages insofar as their conduct does 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). In this Circuit, the test for such qualified immunity from suit is to
determine if “(1) the official’s actions did not violate clearly established law, or (2) even if the
actions violated a clearly established law, the official was objectively reasonable in believing
in the lawfulness of his actions.” Connecticut v. Crotty, 346 F.3d 84, 102 (2d Cir. 2003); See
also Ford v. Moore, 237 F.3d 156, 162 (2d Cir. 2001) (internal citations omitted). In determining if a right was clearly established at the time of the alleged incident, the Second Circuit
has identified “three overlapping factors―(1) whether the right in question was defined with
‘reasonable specificity’; (2) whether the decisional law of the Supreme Court and the applicable circuit court support the existence of the right in question; and (3) whether under preexisting law a reasonable defendant official would have understood that his or her acts were
unlawful.” Roniger, 22 F. Supp. 2d at 162 (citing Jermosen v. Smith, 945 F. 2d 547, 550 (2d
Cir. 1991)). In determining objective reasonableness, for purposes of a summary judgment
motion where defendants raise, as here, qualified immunity from suit, he must demonstrate
that “no reasonable jury, viewing the evidence in a light most favorable to the plaintiff, could
conclude that the defendant’s actions were objectively unreasonable in light of clearly established law.” Connecticut, 346 F.3d at 102 (quoting Ford, 237 F.3d at 162) (internal citations
omitted).
ANALYSIS
It is highly unusual for the Court to resolve factual issues for a summary judgment
motion, but that is essentially what Defendants are asking the Court to do. Defendants urge

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the Court to conclude that, based on the evidence submitted in support of their motion, and
the lack of evidence submitted in opposition, the Court should find no material facts at issue
and grant Defendants summary judgment. Defendants rely in part on Jeffreys v. City of New
York, 426 F.3d 549 (2d Cir. 2005), which held: “At the summary judgment stage, a nonmoving
party ‘must offer some hard evidence showing that its version of the events is not wholly fanciful.’” Id. at 554 (quoting D’Amico v. City of N.Y., 132 F.3d 145, 149 (2d Cir. 1998)). Defendants claim that Plaintiff’s version of events is unsupported by any hard evidence, thus, no
issues of fact exist, and they have shown their entitlement to judgment.
In Jeffreys, the Second Circuit answered the following question:
whether the District Court erred in granting defendants’ motion for summary
judgment on the basis that Jeffreys’s testimony—which was largely unsubstantiated by any other direct evidence—was “so replete with inconsistencies and
improbabilities” that no reasonable juror would undertake the suspension of
disbelief necessary to credit the allegations made in his complaint.
Jeffreys, 426 F.3d at 551 (internal citation omitted). The plaintiff had alleged that “New York
City police officers…assaulted him before throwing him out of a third-story window.” Id. The
Court of Appeals held “that, in the circumstances presented—where Jeffreys relied almost exclusively on his own testimony—the District Court did not err in concluding, while determining
whether there were any ‘genuine issues of material fact,’ that no reasonable jury could have
credited Jeffreys’s testimony.” Id. Jeffreys had confessed to jumping from the third-story window, but alleged in his complaint that it was police who threw him out of it. He also reported
that the police had beaten him into unconsciousness while he was still in the building, and
that is why he had no recollection of who threw him out the window. The defense presented
evidence from emergency medical personnel who stated Jeffreys had never been unconscious. Id. at 552–53.

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In the case at bar, not unlike the situation in Jeffreys, Plaintiff relies almost exclusively
on her own recollection of events. However, unlike the situation in Jeffreys, Plaintiff has not
changed her story about the unprovoked assault in the police car.
The Court now turns to the use of force at the hospital after Plaintiff allegedly kicked
Officer Amato near the groin. Defendants maintain, that to the extent Plaintiff sustained any
injuries while in their custody and control, such injuries occurred at the hospital and not in the
police car. However, as clarified during oral argument, Plaintiff persists in her position that the
injuries, which form the basis of her excessive force claim, did in fact occur while she was in
Defendants’ police vehicle and that she only sustained an abrasion once inside the hospital.
A jury could reject Plaintiff’s claim about being beaten in the police car, find that the injuries
of which she complains occurred at the hospital, and determine, given her mental and physical state, that these injuries resulted from the use of excessive force at the hospital. In this
regard, as an arrestee, Plaintiff must establish her excessive force claim pursuant to the
Fourth Amendment, which requires that she prove that an officer’s actions were not “‘objectively reasonable’ in light of the facts and circumstances confronting [him], without regard to
[his] underlying intent or motivation.” Graham v. Connor, 490 U.S. 386, 397 (1989). Accordingly, material issues of fact exist, which precludes a grant of summary judgment to Defendants on Plaintiff’s excessive force claim.
Qualified Immunity
The Court now turns its attention to Defendants’ contention that Officer Amato would
be entitled to qualified immunity on Plaintiff’s excessive force claim. Defendants’ position presupposes that any injuries suffered by Plaintiff on February 2, 2015, occurred after her arrival
at Rochester General and not en route to the hospital as she maintains. In fact, at oral argument Plaintiff’s counsel conceded that the only injury she sustained at the hospital was an
15

abrasion. Since Plaintiff herself has no recollection of what took place immediately upon her
arrival at the hospital, the undisputed facts are as follows. Plaintiff, who was handcuffed, was
walking under her own power. Officer Amato was on her right, Officer Delvecchio on her left.
Officer Amato had his left hand on her. Without warning, Plaintiff “mule kicked” Officer Amato
near his groin area, leaving a mark on his trousers. Pursuant to his training, Officer Amato’s
immediate response was to drop on one knee and take Plaintiff to the ground to get her under
control, at which point her face made contact with the floor. Amato Dep. 51:2–52:10; Delvecchio Dep. 125:10–12, 143:6–149:23. Under these undisputed facts, the Court determines,
as a matter of law, that Officer Amato would be entitled to qualified immunity with regard to
any injuries Plaintiff suffered at the hospital. Stephenson v. Doe, 332 F.3d 68, 77 (2d Cir.
2003); cf. Borton v. City of Dothan, 734 F. Supp. 2d 1237, 1250 (M.D. Ala. 2010) (police
officer not entitled to qualified immunity when he shot mentally ill patient tied down to gurney
with Taser gun three times).
Motion to Amend
The Court must freely give leave to amend when justice so requires. Fed. R. Civ. P.
15(a). Granting leave is within the discretion of the Court. Foman v. Davis, 371 U.S. 178, 182
(1962). However, Federal Rule of Civil Procedure 16 may limit the ability of a party to amend
a pleading if a deadline for doing so is specified in the scheduling order. Kassner v. 2nd Ave.
Delicatessen, Inc., 496 F.3d 229, 243 (2d Cir. 2007) (“a district court…does not abuse its
discretion in denying leave to amend the pleadings where the moving party has failed to establish good cause, as required by Rule 16(b), to amend the pleadings after the deadline set
in the scheduling order.”).
The first scheduling order issued by U.S. Magistrate Judge Marian W. Payson on August
17, 2016, ECF No. 17, contains the following pertinent directives:
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3. All motions to join other parties and to amend the pleadings shall be filed on
or before November 4, 2016. Any third party action shall be commenced on or
before November 4, 2016.
***
No extension of the above cutoff dates will be granted except upon written application, made prior to the cutoff date, showing good cause for the extension.
Application for extensions should be made to the Magistrate Judge.
Scheduling Order at 2 & 4, Aug. 17, 2016, ECF No. 17. Subsequent amended scheduling
orders did not change the time for moving to amend. Plaintiff claims to have learned of the
facts supporting her motion on February 1, 2017, yet waited until July 12, 2018, one year,
five months and almost 2 weeks to move to amend.
Plaintiff cites to this Court’s decision and order filed on June 13, 2016, and the following language therein: “The allegations against Delvecchio and Amato cannot be read as anything but intentional conduct. Should evidence arise at trial that the officers acted negligently
and not intentionally, Griffin may resort to Federal Rule of Civil Procedure 15(b)(1) to request
to amend her complaint.” Rule 15(b) is titled, “Amendments During and After Trial.” Subdivision one reads as follows:
Based on an Objection at Trial. If, at trial, a party objects that evidence is not
within the issues raised in the pleadings, the court may permit the pleadings to
be amended. The court should freely permit an amendment when doing so will
aid in presenting the merits and the objecting party fails to satisfy the court that
the evidence would prejudice that party's action or defense on the merits. The
court may grant a continuance to enable the objecting party to meet the evidence.
Fed. R. Civ. P. 15(b)(1). That provision says nothing about amending the pleadings in response
to a summary judgment motion.
CONCLUSION
Material issues of fact prevent the Court from granting Defendants’ motion for summary judgment or qualified immunity. Plaintiff made her motion to amend too late. Therefore,

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the Court denies Defendants’ motion for summary judgment, ECF No. 37, and denies Plaintiff’s cross-motion to amend, ECF No. 44. The Court will issue a separate pretrial scheduling
order.
IT IS SO ORDERED.
DATED:

December 18, 2018
Rochester, New York
/s/ Charles J. Siragusa
CHARLES J. SIRAGUSA
United States District Judge

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