Merrow v. Ashley et al
Filing
30
DECISION AND ORDER granting 25 Defendants' Motion for Summary Judgment and dismissing the amended complaint 14 in its entirety. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 6/20/2019. (JMC)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
__________________________________________
JENNIFER MERROW,
Plaintiff,
6:16-CV-06267 MAT
v.
RAELLE ASHLEY,
TIMOTHY ROMACH,
RONALD W. HARLING,
PATRICK O’FLYNN,
PAUL MACCARONE,
ERIC SCHULTZ, and
CLAYTON HILLEGEER,
DECISION
and ORDER
Defendants.
__________________________________________
INTRODUCTION
Plaintiff Jennifer Merrow (“Plaintiff”) brings this action
against
defendants
Raelle
Ashley,
Timothy
Romach,
Ronald
W.
Harling, Patrick O’Flynn, Paul Maccarone, Eric Schultz, and Clayton
Hillegeer, alleging violations of 42 U.S.C. §§ 1983 and 1988, and
the Fourth, Eighth, and Fourteenth Amendments to the United States
Constitution.
Docket No. 14.
Presently before the Court is Defendants’ motion for summary
judgment, pursuant to Rule 56 of the Federal Rules of Civil
Procedure, contending that there are no genuine issues of material
fact as to Plaintiff’s claims. Docket No. 25.
For the reasons set
forth below, Defendants’ motion for summary judgment is granted in
its entirety.
BACKGROUND
Unless otherwise noted, the following facts are taken from
Defendants’ Statement of Undisputed Facts (Docket No. 25-2 at 11),
the majority of which is undisputed. Plaintiff did not submit her
own Statement of Undisputed Facts; however, her memorandum of law
submitted in opposition to summary judgment contains a section
entitled, “Facts in Dispute.”
Docket No. 27 at 2.
In that section
of her memorandum, Plaintiff states that she specifically disputes
paragraphs twenty-one through twenty-five of Defendants’ Statement
of Undisputed Facts, which describe events occurring in the Booking
Scan Room at the Monroe County Jail.
Id.
This case stems from an incident on December 19, 2014, when
Plaintiff was arrested by a Rochester police officer for driving
while intoxicated.
Plaintiff
was
Docket No. 25-2 at ¶ 10.
transported
to
the
Monroe
Following her arrest,
County
Jail.
Id.
Plaintiff was processed in the Booking Scan Room by defendant
deputies Ashley and Romach.
Id. at ¶ 13.
At that time, the Monroe
County Jail had in place a video recording system, which included
over 300 cameras installed throughout the jail.
Id. at ¶ 14.
The
video recording system captured an incident involving Plaintiff in
the Booking Scan Room on the evening of December 19, 2014.
¶ 16.
Id. at
The video depicting Plaintiff, which spans from the time she
entered the jail until she left, was preserved and submitted to the
-2-
Court in support of Defendants’ motion for summary judgment.
Id.
at ¶ 17.
The
following
Defendants’
facts
Statement
contained
of
at
Undisputed
paragraphs
Facts
are
21-25
in
of
dispute.
Defendants claim that the incident involving Plaintiff began when
Plaintiff kicked defendant Ashley as defendant Ashley walked toward
Plaintiff at a normal pace.
Id. at ¶ 21.
However, Plaintiff
contends that she cooperated and complied with instructions from
defendants Ashley and Romach.
Docket No. 27 at 2.
Plaintiff
further contends that, as shown in video footage from the incident,
when Plaintiff had difficulty putting on her sweatshirt, defendant
Ashley “rapidly emerg[ed] from the bottom left corner of the frame
and appear[ed] to attack plaintiff.
At about that same time,
plaintiff appear[ed] to lift up her leg, as though in a defensive
posture.”
Id. at 3.
In other words, Plaintiff contends that
defendant Ashley was the initial aggressor, which precipitated the
use of force incident.
Defendants further contend that during the incident, Plaintiff
kicked defendant Ashley, wrapped her arms around Ashley’s head,
pulled Ashley’s head to her chest, kicked defendant Romach, and
that Plaintiff
handcuffs.
fought
and resisted
Docket No. 25-2 at ¶ 22.
attempts
to place
her
in
Defendants claim that after
Plaintiff was placed in handcuffs, she attempted to kick defendant
Ashley for a second time.
Id. at ¶ 23.
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According to Defendants, the Sheriff’s Office investigated the
December
19,
2014
incident
and
determined
that
each
of
the
defendant deputies complied with Article 35 of the New York State
Penal Law,
and
the
Monroe
Regulations/General Orders.
County
Sheriff’s
Office
Rules
and
Docket No. 25-2 at ¶ 25.
Plaintiff injured defendant Ashley, and was charged with both
assaulting
defendant
Ashley
and
driving
while
intoxicated.
Plaintiff was convicted of both charges following a jury trial.
Id. at ¶¶ 27-28.
In her amended complaint, Plaintiff further alleges that as a
result
of
the
attack
by
the
defendant
deputies,
consciousness and woke up in a holding cell.
she
lost
Plaintiff further
alleges that her clothes were removed by the defendant deputies,
and that the defendant deputies forced Plaintiff to take various
poses and photographed her using their cell phones.
See Docket
No. 14 at ¶¶ 14-15.
In their Statement of Undisputed Facts, Defendants contend
that Plaintiff was housed in a cell in the female holding corridor
in the Booking area of the jail, and video submitted to the Court
covers the time Plaintiff was housed in the holding cell.
No. 25-2 at ¶¶ 31-32.
Docket
Defendants contend that at no time did
anyone enter the cell in which Plaintiff was housed.
Id. at ¶ 33.
Further, Defendants contend that, pursuant to Jail Bureau General
Order 05-11, no personal cell phones were permitted in the Booking
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area, and none of the defendant deputies brought a personal cell
phone into the jail on December 19, 2014. Id. at ¶¶ 34-35.
Defendants also contend that they did not remove Plaintiff’s
clothes or take photographs of her while she was naked.
¶ 36.
Id. at
The only person who took any photographs of Plaintiff was
Jeffrey LaMartina, a sergeant with the Monroe County Sheriff’s
Office.
Id. at ¶ 42.
Sergeant LaMartina took the photographs of
Plaintiff with a jail-issued digital camera, and in keeping with
the Sheriff’s Office policy that photographs be taken of Plaintiff
because she was involved in “subject management incident” while at
the jail.
Id. at ¶¶ 41-42.
To Sergeant LaMartina’s knowledge, no
other individuals took photographs of Plaintiff while she was in
the jail.
Id. at ¶ 45.
Karen Hamm, a registered nurse working at the Monroe County
Jail on December 19, 2014, observed Plaintiff in the female holding
cell in Booking.
Id. at ¶ 46.
Nurse Hamm asked Plaintiff if she
had any injuries, to which Plaintiff responded “no.”
Nurse Hamm
observed Plaintiff sitting on the toilet in her cell, naked from
the waist up and rubbing her breasts.
Id. at ¶ 49.
Based on the information contained in her memorandum of law in
opposition to Defendants’ motion for summary judgement, Plaintiff
does not appear to dispute Defendants’ factual assertions regarding
the events that allegedly occurred in the holding cell.
Rather,
Plaintiff’s argument relates to the altercation that occurred in
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the Booking Scan Room.
Specifically, Plaintiff contends that
“there remains genuine issues of material fact as to plaintiff’s
excessive use of force claim.
At its core, the factual dispute
surrounds an incident that occurred over the span of approximately
one and a half minutes between 7:40 and 7:41 PM on December 19,
2014 in the Booking Scan Room of the Monroe County Jail.”
Docket
No. 27 at 2.
PROCEDURAL HISTORY
Plaintiff filed the instant action on April 22, 2016
(Docket
No. 1), and Defendants filed an answer on June 23, 2016 (Docket
No. 4).
which
Plaintiff filed an amended complaint on March 27, 2017,
adds
defendants
Maccarone,
Schultz,
and
Hillegeer,
and
alleges three causes of action, including: (1) excessive use of
force,
in
violation
Amendments,
against
Hillegeer,
and
of
the
Fourth,
defendants
Schultz;
(2)
Eighth,
Ashley,
supervisory
and
Romach,
Fourteenth
Maccarone,
liability,
against
defendants O’Flynn and Harling; and (3) a Monell claim, against
defendant O’Flynn.
Docket No. 14.
Defendants filed an answer to
the amended complaint on April 28, 2017.
Docket No. 17.
On October 12, 2018, Defendants filed a motion for summary
judgment.
Docket No. 25.
Plaintiff responded on November 27,
2018, and Defendants filed a reply on December 7, 2018.
Nos. 27, 28.
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Docket
DISCUSSION
I.
Summary Judgment Standard
Federal Rule of Civil Procedure 56(c) states that summary
judgment shall be granted “if the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the
affidavits, if any, show 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.”
242, 249 (1986).
Anderson v. Liberty Lobby, Inc., 477 U.S.
The court’s role in determining a motion for
summary judgment is not “to weigh the evidence and determine the
truth of the matter but to determine whether there is a genuine
issue for trial.”
Id.
When considering a motion for summary
judgment, the court must draw inferences from underlying facts “in
the light
most
favorable
to
the party
opposing
the
motion.”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
587-88 (1986).
II.
Supervisory Liability and Monell Claims
Plaintiff’s
second
and
third
causes
of
action
are
for
supervisory liability against defendants Harling and O’Flynn, and
Monell
liability
against
defendant
O’Flynn.
Docket
No.
14.
Defendants argue, with regard to Plaintiff’s claim for supervisory
liability, there is no proof that any of the defendant deputies had
poor training or lacked supervision.
regard
to
Plaintiff’s
claim
for
-7-
Docket No. 25-35 at 16. With
Monell
liability,
Defendants
contend that Plaintiff did not sue the County of Monroe, and there
is no evidence that defendant O’Flynn established or executed a
policy that violated Plaintiff’s constitutional rights, as required
to establish Monell liability.
Id. at 19-20.
In her memorandum in opposition to Defendants’ motion for
summary judgment, Plaintiff concedes that “there is insufficient
evidence to support plaintiff’s claims of supervisory liability as
against
former
Sheriff
O’Flynn
or
former
jail
superintendent
Harling, or to support a Monell claim against O’Flynn.”
Docket
No. 27 at 1.
The Court agrees that the record is devoid of any evidence
suggesting
that
there
is a
material
issue
of
fact
regarding
Plaintiff’s claims for supervisory and Monell liability.
With
regard to establishing supervisory liability, “[a] supervisor may
not
be
held
liable
under
section
1983
merely
subordinate committed a constitutional tort. . . .
because
his
[Rather], a
supervisor may be found liable for his deliberate indifference to
the
rights
of
others
by
his
failure
to
act
on
information
indicating unconstitutional acts were occurring or for his gross
negligence in failing to supervise his subordinates who commit such
wrongful acts, provided that the plaintiff can show an affirmative
causal link between the supervisor’s inaction and her injury.” Poe
v. Leonard, 282 F.3d 123, 140 (2d Cir. 2002) (internal quotations
-8-
and citations omitted). There has been no such showing here by Plaintiff.
With regard to Monell liability, a municipal policy or custom
can be established by alleging “(1) a formal policy officially
endorsed by the municipality; (2) actions taken by government
officials responsible for establishing the municipal policies that
caused the particular deprivation in question; (3) a practice so
consistent and widespread that it constitutes a custom or usage
sufficient to impute constructive knowledge of the practice to
policymaking officials; or (4) a failure by policymakers to train
or supervise subordinates to such an extent that it amounts to
deliberate indifference to the rights of those who come into
contact with the municipal employees.”
Torres v. N.Y.C. Dep’t of
Educ., No. 18-CV-2156(NGG)(RER), 2019 WL 2124891, at *3 (2d Cir.
May 14, 2019) (citation omitted).
Based on the record before the
Court, Plaintiff has failed to present any evidence establishing
that Monell liability should be imposed.
Because there is no genuine issue of material fact as to
Plaintiff’s
claims
Defendants’
motion
for
for
supervisory
summary
and
judgment
Monell
as
it
liability,
pertains
to
Plaintiff’s claims for supervisory and Monell liability is granted,
and the second and third causes of action in the amended complaint
are dismissed.
III. Excessive Use of Force Claim
“To state a valid claim under 42 U.S.C. § 1983 [(“§ 1983”)],
the plaintiff must allege that the challenged conduct (1) was
attributable to a person acting under color of state law, and (2)
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deprived the plaintiff of a right, privilege, or immunity secured
by the Constitution or laws of the United States.”
Whalen v. Cnty.
of Fulton, 126 F.3d 400, 405 (2d Cir. 1997) (citing Eagleston v.
Guido, 41 F.3d 865, 875-76 (2d Cir. 1994)).
plaintiff
must
demonstrate
that
each
Furthermore, the
defendant
personally
participated in the deprivation of his constitutional rights.
Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009) (“In a § 1983 suit[,].
. . masters do not answer for the torts of their servants[, and] .
. . the term ‘supervisory liability’ is a misnomer.
Absent
vicarious liability, each Government official, his or her title
notwithstanding, is only liable for his or her own misconduct.”).
In other words, to warrant relief under § 1983, the plaintiff must
prove that each named defendant individually committed some action
or omission that violated the plaintiff’s federal rights.
See id.
at 676.
Although Plaintiff alleges violations of the Fourth, Eighth,
and Fourteenth amendments, her claim is properly brought pursuant
to
the
Fourth
Amendment,
as
her
allegations
concern
occurring during the course of her arrest and booking.
events
See, e.g.,
McFadden v. City of N.Y.C., No. 12-CV-5624(RRM)(VVP), 2012 WL
6167006, at *3 (E.D.N.Y. Dec. 11, 2012); Parks v. Segar, No.
3:09CV1162(HBF), 2012 WL 4051833, at *3 (D. Conn. Sept. 13, 2012).
“[A]pplication of force is excessive, in violation of the
Fourth Amendment, if it is ‘objectively unreasonable in light of
the facts and circumstances confronting them, without regard to the
officers’ underlying intent or motivation.’” Gersbacher v. City of
-10-
N.Y., 134 F. Supp. 3d 711, 723 (S.D.N.Y. 2015) (quoting Carpenter
v. City of N.Y., 984 F. Supp. 2d 255, 267 (S.D.N.Y. 2013)).
Such
an inquiry is necessarily fact-specific.
Amnesty America v. Town
of
(2d
West
Hartford,
361
F.3d
113,
123
Cir.
2004).
“In
determining whether the force used in a given arrest is reasonable,
courts pay careful attention to the facts and circumstances of each
case, including (1) the severity of the crime at issue, (2) whether
the arrestee poses an immediate threat to the safety of the
officers or others, and (3) whether the arrestee is actively
resisting arrest or attempting to flee.”
Gersbacher, 134 F. Supp.
3d at 723.
While
the
excessive
force
inquiry
undoubtedly
is
fact-
specific, “[c]ourts may decide excessive force claims. . . on
motions for summary judgment.”
Usavage v. Port Auth. of N.Y. &
N.J., 932 F. Supp. 2d 575, 593 (S.D.N.Y. 2013) (citing Ferraresso
v. Town of Granby, 646 F. Supp. 2d 296, 306 (D. Conn. 2009) (“While
reasonableness is traditionally a question of fact for the jury,
‘defendants can still win on summary judgment if the district court
concludes, after resolving all factual disputes in favor of the
plaintiff,
that
the
officer’s
use
of
force
was
objectively
reasonable under the circumstances.’”) (citation omitted)).
In her amended complaint, Plaintiff alleges two specific
instances during which the defendant deputies used force that was
“objectively unreasonable” and/or “constitute[d] cruel and unusual
punishment.” The first instance involves the events that allegedly
took place in the Booking Scan Room, and the second instance
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involves the events that allegedly took place in her holding cell.
See Docket No. 14 at ¶¶ 13-18.
A.
Alleged Use of Force in the Holding Cell
Regarding the events that allegedly took place in the holding
cell, Plaintiff concedes that “after considerable discovery, there
is scarce, if any, evidence to support plaintiff’s claims that any
Monroe
County
Sheriff’s
Office
employees
removed
plaintiff’s
clothing, or took photographs of her while she was undressed.”
Docket No. 27 at 1.
At
her
The Court agrees.
deposition,
Plaintiff
admitted
that
she
had
no
recollection of any person removing her clothing. Docket No. 25-25
at
9:19-21.
Plaintiff
further
testified
that
she
“honestly
[didn’t] know” who removed her shirt, and that it “possibly” could
have been her.
Id. at 9:14-15.
Plaintiff also testified that she
could not identify which defendant deputies were looking at her
naked in the holding cell.
Id. at 10:17-11:8.
Plaintiff stated
that she had no recollection of being moved from the Booking Scan
Room to the holding cell, and she had no knowledge or information
that any of the named defendant deputies removed her clothing. Id.
at 13:5-9, 21-24.
Regarding
her
claim
that
the
defendant
deputies
took
photographs of her while she was naked, Plaintiff testified that
she
was
aware
that,
at
her
criminal
trial,
the
prosecution
presented two photographs taken of her while she was in the holding
cell; therefore, “[i]t just makes sense to me that since the camera
was there that they would have taken these pictures,” but Plaintiff
-12-
admitted that she “[didn’t] know for a fact.”
Id. at 15:11-22.
Plaintiff was shown the two photographs from her trial; she agreed
that these photographs showed her in the holding cell, stated that
she was not aware of any other photographs depicting her in the
holding cell, and admitted that she had no knowledge of any person
taking
additional
photographs.
Id.
at
16:5-17:13.
Rather,
Plaintiff testified that she assumed that someone was taking
photographs of her because she was being asked to pose.
Id. at
18:3-13.
At her deposition, Nurse Hamm testified that she was asked by
one of the deputies to do an “urgent assessment” of Plaintiff,
which required her to “observe and assess” Plaintiff, and “write up
a document.”
Docket No. 25-30
at 5:7-16.
Nurse Hamm observed
Plaintiff on two occasions, including as she was being transported
from the Booking Scan Room, and again when Plaintiff was in the
holding cell.
Id. at 6:2-7.
Nurse Hamm testified that she
observed Plaintiff, who was naked from the waist up.
Plaintiff stated that she did not have any injuries.
Id. at 8:2-4.
Id. at 8-9.
Two other deputies, one of whom Nurse Hamm recalled being Corporal
LaMartina, were also observing Plaintiff in the holding cell.
Id.
at 10:17-24.
The defendant deputies also submit declarations addressing the
events that allegedly occurred in the holding cell, see Docket Nos.
25-3, 25-5, 25-8, 25-9, and 25-10.
The declarations provide that
the defendant deputies did not bring cell phones into the security
-13-
envelope
of
Plaintiff’s
the
jail
cell
or
on
December
remove
her
2014,1
19,
clothes,
and
did
not
did
not
enter
take
photographs of Plaintiff using a cell phone while she was in the
jail.
Based on Plaintiff’s own concession that there is no evidence
supporting
her
allegations
regarding
the
defendant
deputies
removing her clothing and taking photographs of her while she was
naked, as
well
as
the Court’s
review
of
the
above-mentioned
evidence, there is no genuine issue of material fact regarding
Plaintiff’s claim that the defendants used excessive force against
her
in
the
holding
cell.
There
is
no
evidence
supporting
Plaintiff’s claims in this respect. Rather, Plaintiff’s claims are
based on pure speculation, which is not sufficient to survive a
motion for summary judgment.
Accordingly, any claim of excessive
force based on events allegedly occurring in Plaintiff’s holding
cell in the Monroe County Jail on December 19, 2014, are dismissed.
B.
Alleged Use of Force in the Booking Scan Room
As noted above, Plaintiff’s opposition to summary judgment is
focused on her claim that the defendant deputies used excessive
force against her in the Booking Scan Room.
The Court has reviewed
all of the material submitted in connection with the motion for
summary judgment, and concludes that summary judgment in favor of
Defendants is appropriate.
1
Defendants also submit a document stating that as of
June 27, 2011, all personal cellular telephones were banned from
the security envelope of the jail. See Docket No. 25-26.
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Defendants first submit declarations from defendants Ashley,
Hillegeer, Maccarone, Romach, and Schultz, which address the events
occurring on December 19, 2014.
25-9, and 25-10.
See Docket Nos. 25-3, 25-5, 25-8,
The declarations, taken together, are consistent
and provide that defendants Ashley, Hillegeer, Maccarone, Romach,
and Schultz were working at the Monroe County Jail on December 19,
2014, and had contact with Plaintiff. Defendants Ashley and Romach
processed Plaintiff in the Booking Scan Room.
Plaintiff appeared
to be intoxicated, and defendant Ashley had to repeat instructions
for Plaintiff until she complied.
Plaintiff became agitated and
verbally abusive, and therefore defendant Ashley wanted to place
Plaintiff in handcuffs, to de-escalate the situation. As defendant
Ashley
walked
toward
Plaintiff
at
a
normal
pace,
Plaintiff
attempted to kick defendant Ashley with her right foot.
Plaintiff
became physically
aggressive,
defendants
Because
Ashley
and
Romach used defensive tactics to gain control of the situation.
Defendants Hillegeer, Maccarone, and Schultz responded to the
Booking Scan Room, to assist defendants Ashley and Romach.
The
defendant deputies instructed Plaintiff, on several occasions, to
stop resisting.
head,
bit
her
At one point, Plaintiff pulled defendant Ashley’s
finger,
and
grabbed
her
hair.
After
hearing
defendant Ashley say that Plaintiff was biting her, defendant
Romach “delivered a straight punch to [Plaintiff’s] facial area
which then allowed Ashley to free her finger from [Plaintiff’s]
mouth.”
(Aerosol
Defendant Ashley eventually resorted to the use of ASR
Subject
Restraint)
to
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gain
control
of
Plaintiff.
Defendant Ashley sustained injuries to her knee, finger, head, and
neck.
The incident reports submitted by Defendants concerning the
events of December 19, 2014, are consistent with these accounts.
See Docket Nos. 25-17, 25-18, 25-19, 25-20, and 25-21.
In her
response papers, Plaintiff does not identify any inconsistences
among the defendant deputies’ accounts of the December 19, 2014
incident.
Defendants also submit videotaped footage from inside the
Monroe County Jail, which corroborates the above-described account
of
the
incident.
Docket
No.
25-15.
The
video
footage
is
accompanied by a declaration from Gerald Grimshaw, who in 2014 had
responsibility for reviewing and preserving the video footage from
the use of force incident involving Plaintiff.
See Docket No. 25-
4. The declaration provides that Mr. Grimshaw “preserved all video
depicting [Plaintiff] from the time she entered the Monroe County
jail until the time she left.”
Id. at ¶ 8.
Plaintiff does not
make any claim challenging the authenticity or accuracy of the
video footage.
There are two videos depicting the incident in the Booking
Scan Room, each of which shows the incident from a different view.
Neither of the videos have sound.
The video titled “036-Booking
Scan Room S-105-20141219.avi,” depicts the incident from the view
of a camera placed in the Booking Scan Room.
The video is stamped
with the date (December 19, 2014) and time, and the portion of the
video depicting the incident begins at approximately 19:40.
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The
video depicts Plaintiff and defendant Romach in the bottom left of
the screen, with Plaintiff attempting to put on her sweatshirt,
which she had just removed from the scanner.
Defendant Ashley
appears in the bottom left of the screen, walking toward Plaintiff.
The events transpire quickly; however, the video does not show
defendant Ashley lunging at Plaintiff, as Plaintiff testified at
her deposition. Rather, the video depicts Plaintiff kick defendant
Ashley with her right leg, and defendant Ashley reaching for
Plaintiff. Defendant Ashley responds by delivering a kick with her
right leg, after which the remaining defendant deputies assist
defendant Ashley in gaining control of Plaintiff.
As explained by
the defendant deputies in their declarations, the video also
depicts Plaintiff continuing to resist their efforts to gain
control of her.
The
next
video,
titled
“039
Booking
Observation
Cells
20141219-193901.avi,” depicts the incident from the hallway outside
of the Booking Scan Room.
This video is also stamped with the date
and time of the incident, and the relevant portion of the video
provides more footage of defendant Ashley leading up to the use of
force.
The video shows defendant Ashley approach Plaintiff,
walking at a normal speed and with her hands down.
delivers a kick with her right leg.
Plaintiff then
The video clearly shows
Plaintiff’s leg appear to connect with defendant Ashley’s hip
before any of the deputies, including defendant Ashley, use force
against Plaintiff.
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Defendants also submit the declaration of Matthew Kreuzer, a
Road Patrol Sergeant with the Monroe County Sheriff’s Office, and
a defensive tactics instructor.
Kreuzer,
at
the
request
of
See Docket No. 25-6.
defendants,
reviewed
Sergeant
the
reports
associated with the December 19, 2014 incident involving Plaintiff,
as well as the video documenting Plaintiff’s time at the jail, and
provided an expert opinion that, “[b]ased on my review of the
foregoing and my expertise in the use of force and defensive
tactics, it is my opinion that none of the deputies who are named
as defendants in this action used excessive force.”
Id. at ¶ 19.
Sergeant Kreuzer also opined that the actions taken by defendants
was a proper and reasonable response to Plaintiff’s aggression and
in keeping with their training on defensive tactics.
Id. at ¶¶ 20-
27.
Defendants
further
submit
Plaintiff’s
Certificate
of
Conviction for assault while in a correctional facility, based on
the
events
of
December
19,
2014.
Docket
No.
25-24.
The
certificate provides that Plaintiff was convicted of this charge
following a jury trial on November 16, 2015.
Plaintiff’s
deposition
testimony
Id.
regarding
portions of the December 19, 2014 incident is unclear.
significant
See, e.g.,
Docket No. 25-25 at 7:5-8 (regarding the incident in the Booking
Scan Room, Plaintiff testified that she “[didn’t] remember” what
defendant Romach was doing when she was punching Plaintiff in the
face).
Regarding defendant Maccarone, Plaintiff identified him as
one of the deputies who rushed into the Booking Scan Room, but that
-18-
because she had been maced, she did not “know who touched me
where,” and that she did not have any knowledge of defendant
Maccarone using force on her. Id. at 10:5-14. Plaintiff testified
that defendant Hillegeer also responded to the Booking Scan Room,
but that she did not have any personal knowledge or information as
to anything defendant Hillegeer did to her.
Id. at 11:12-22.
Similarly, while Plaintiff identified defendant Schultz as one of
the deputies responding to the Booking Scan Room, she did not have
any personal knowledge of anything defendant Schultz did to her.
Id. at 11:24-12:4.
Plaintiff testified that at the time of her arrest on December
19, 2014, she asked the arresting officers to take her to the jail.
Id. at 5:17-18.
Plaintiff also conceded that, in response to the
alleged attack, she wrapped her arms and legs around defendant
Romach, to stop defendant Romach from punching her.
25.
Plaintiff also grabbed defendant Romach’s hair.
Id. at 7:11Id. at 8:2-
17.
In opposition to summary judgment, Plaintiff submits portions
of
three
deposition
transcripts,
including
depositions
defendants Ashley and Romach, and her own deposition.
from
These
deposition transcripts do not raise any issue of material fact.
Rather, they are consistent with the above-mentioned evidence
submitted by the Defendants.
At their depositions, defendants Ashley and Romach explained
that Plaintiff was slow to follow orders, but compliant, in the
Booking Scan Room; however, Plaintiff became agitated and swore at
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defendant Ashley.
Docket No. 27-1 at 7:20-25, 14:16-20.
At that
time, defendant Ashley asked Plaintiff to turn around and put her
hands behind her back, so that she could handcuff Plaintiff.
Id.
at 14:21-15:4. Defendant Ashley testified that she believed it was
necessary
to
situation.
handcuff
Plaintiff
Id. at 24:15-20.
in
order
to
de-escalate
the
As defendant Ashley stepped in to
handcuff Plaintiff, Plaintiff attempted to kick defendant Ashley
with her right leg.
Id. at 15:1-4; see also Docket No. 27-2 at
3:19-4:2-4, 6:9-12, 9:2-5.
In support of her claims, Plaintiff testified that defendant
Ashley suddenly “lunged” at her while Plaintiff was trying to put
her
sweatshirt
on.
Docket
No.
27-3
at
3:17-25.
Plaintiff
testified that she was “scared” and “caught off-guard.” Id. at 4:34. Plaintiff further testified that while she “couldn’t really see
through the sweatshirt,” when she saw defendant Ashley coming at
her, “she looked like she was going to hurt me, like, seriously.”
Id. at 4:15-19.
Plaintiff also testified that defendant Ashley
“said something like, she’s had enough.
or something.
She’s going to get me now
But I don’t recall exactly what she said.
It was,
like, a threatening type - I don’t want to say ‘threatening.’”
at 4:20-24.
Id.
Plaintiff contends that as she saw defendant Ashley
coming toward her with her arms in the air, Plaintiff “put my leg
up to try to put distance between us.
to kick her or hurt her at all.
I didn’t intentionally try
It was just . . . an involuntary
instinct.” Id. at 5:10-25. Plaintiff testified that she concluded
that defendant Ashley was going to hit her because she was “moving
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fast
with
her
arms
out,”
and
that
“aggressive . . . pissed-off face.”
defendant
Ashley
had
an
Id. at 6:20-22, 7:3-4.
In light of the evidence submitted by Defendants, the Court
finds that no reasonable juror could conclude that there is a
genuine dispute as to any issue of material of fact regarding the
events taking place in the Booking Scan Room on December 19, 2014.
Defendants
have
provided
consistent,
sworn
accounts
of
the
December 19, 2014 incident between Plaintiff and the defendant
deputies, which reflect that the defendant deputies reasonably
responded
to aggression
by
Plaintiff
in
further
the
jail
Plaintiff.
The video
corroborates
footage
these
of
accounts.
Additionally, Defendants have submitted an expert opinion that the
their use of force in the Booking Scan Room was reasonable under
the circumstances.
Plaintiff’s
material fact.
submissions
do
not
show
a
genuine
issue
of
Plaintiff’s case is based on little more than her
own version of events, which paints defendant Ashley as the initial
aggressor who, unprovoked, used force against Plaintiff in the
Booking Scan Room.
The Court is cognizant that “[a]ssessments of
credibility and choices between conflicting versions of the events
are matters for the jury, not for the court on summary judgment.”
Rule v. Brine, Inc., 85 F.3d 1002, 1011 (2d Cir. 1996).
“However,
when the facts alleged are so contradictory that doubt is cast upon
their plausibility, [the court is] authorized to pierce the veil of
the complaint’s factual allegations, dispose of [s]ome improbable
allegations, and dismiss the claim.”
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Aziz Zarif Shabazz v. Pico,
994 F. Supp. 460, 470 (S.D.N.Y. 1998) (internal quotations and
citations omitted) (second alteration in original).
Plaintiff’s account of the events occurring on December 19,
2014 is squarely contradicted by the evidence, including the abovedescribed video footage in the Booking Scan Room.
In other words,
no reasonable juror, after viewing the video evidence, could
believe Plaintiff’s version of events.
Scott v. Harris, 550 U.S.
372,
clearly
378-80
(2007)
(where
videotape
contradicted
the
plaintiff’s version of events, and there were no allegations that
the videotape was doctored or altered in any way, a court should
view the facts in the light depicted by the videotape; “[w]hen
opposing parties tell two different stories, one of which is
blatantly contradicted by the record, so that no reasonable jury
could believe it, a court should not adopt that version of the
facts for purposes of ruling on a motion for summary judgment.”);
Davis v.
Klein,
No.
11-CV-4868(ENV),
2013
WL
5780475,
at
*4
(E.D.N.Y. Oct. 25, 2013) (dismissing the plaintiff’s excessive
force
claim,
“where
undisputed
medical
records
directly
and
irrefutably contradict a plaintiff’s description of his injuries,
no
reasonable
jury
could
credit
plaintiff’s
account
of
the
happening,” and the record was “utterly devoid of evidence of any
kind supporting [the plaintiff’s] description of his injuries other than his own claims.”).
In other words, “[Plaintiff’s]
version of events is so utterly discredited by the record that no
reasonable jury [would] . . . believe[] h[er].” Scott, 550 U.S. at
380.
-22-
It is undisputed that Plaintiff attempted to kick defendant
Ashley, wrapped her arms and legs around defendant Romach, and
pulled defendant Romach’s hair.
Defendants have submitted a
statement from an expert, opining that the defendant deputies’
response to Plaintiff’s actions was reasonable and not excessive.
Plaintiff does not submit any evidence contradicting this opinion.
Viewing the evidence in the light most favorable to Plaintiff, the
Court finds that Defendants are entitled to summary judgment in
their favor as to Plaintiff’s claim that they used excessive force
against her in the Booking Scan Room of the Monroe County Jail.
CONCLUSION
For the reasons set forth above, the Court grants Defendants’
motion for summary judgment (Docket No. 25). The amended complaint
(Docket No. 14) is dismissed in its entirety, and the Clerk of
Court is directed to close the case.
ALL OF THE ABOVE IS SO ORDERED.
S/Michael A. Telesca
MICHAEL A. TELESCA
United States District Judge
Dated:
June 20, 2019
Rochester, New York
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