Opinion
5:17-CV-1389
2020-10-21
Maurice CRAWLEY, Plaintiff, v. CITY OF SYRACUSE, Police Officer Vallon Smith, In his Individual Capacity, Chief of Police Frank Fowler, In his Individual Capacity, and Does 1-200, Defendants.
OF COUNSEL: A. CABRAL BONNER, ESQ., CHARLES A. BONNER, ESQ., LAW OFFICES OF BONNER & BONNER, Attorneys for Plaintiff, 475 Gate 5 Road, Suite 211, Sausalito, CA 94965. OF COUNSEL: JESSE P. RYDER, ESQ., RYDER LAW FIRM, Attorneys for Plaintiff, 6739 Myers Road, East Syracuse, NY 13257. OF COUNSEL: JOHN G. POWERS, ESQ., HANCOCK ESTABROOK, LLP, Attorneys for Defendants, 1800 AXA Tower I, 100 Madison Street, Syracuse, NY 13202. OF COUNSEL: DANIELLE PIRES, ESQ., CITY OF SYRACUSE OFFICE OF THE CORPORATION COUNSEL, Attorneys for Defendants, City Hall, Room 300, 233 East Washington Street, Syracuse, NY 13202.
OF COUNSEL: A. CABRAL BONNER, ESQ., CHARLES A. BONNER, ESQ., LAW OFFICES OF BONNER & BONNER, Attorneys for Plaintiff, 475 Gate 5 Road, Suite 211, Sausalito, CA 94965.
OF COUNSEL: JESSE P. RYDER, ESQ., RYDER LAW FIRM, Attorneys for Plaintiff, 6739 Myers Road, East Syracuse, NY 13257.
OF COUNSEL: JOHN G. POWERS, ESQ., HANCOCK ESTABROOK, LLP, Attorneys for Defendants, 1800 AXA Tower I, 100 Madison Street, Syracuse, NY 13202.
OF COUNSEL: DANIELLE PIRES, ESQ., CITY OF SYRACUSE OFFICE OF THE CORPORATION COUNSEL, Attorneys for Defendants, City Hall, Room 300, 233 East Washington Street, Syracuse, NY 13202.
MEMORANDUM–DECISION and ORDER
DAVID N. HURD, United States District Judge I. INTRODUCTION
On December 28, 2017, plaintiff Maurice Crawley ("Crawley" or "plaintiff") filed this civil rights action against defendants City of Syracuse (the "City"), Syracuse Chief of Police Frank Fowler ("Chief Fowler"), Syracuse Police Officer Vallon Smith ("Officer Smith"), and Does 1-200 (collectively "defendants"). According to plaintiff's nine-count complaint, defendants violated his rights under 42 U.S.C. § 1983 and related state law when Officer Smith forcibly arrested him for recording video of a traffic stop from across the street.
On February 2, 2018, defendants moved for three different forms of pre-answer relief. First, defendants moved under Federal Rule of Civil Procedure ("Rule") 12(b)(6) seeking to dismiss all but two of Crawley's civil rights claims: his § 1983 claim for excessive force against Officer Smith and his derivative § 1983 claim for municipal liability against the City under the theory recognized by the Supreme Court in Monell v. Dep't of Soc. Servs. , 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Second, defendants moved under Rule 12(e) for a more definite statement to clarify certain allegations in, or alternatively, under Rule 12(f) to strike certain allegations from, plaintiff's operative complaint. Third and finally, defendants moved to bifurcate the § 1983 claim for excessive force against Officer Smith from the Monell claim against the City and to stay discovery on the municipal liability claim until after the parties resolved the excessive force claim against Officer Smith. Plaintiff opposed the relief in toto.
On August 3, 2018, shortly after hearing oral argument on all three motions, the Court granted defendants’ request for partial dismissal under Rule 12(b)(6). Crawley v. City of Syracuse , 2018 WL 3716782 (N.D.N.Y. Aug. 3, 2018). However, the Court denied defendants’ motion to bifurcate the two § 1983 claims and rejected defendants’ request to strike allegations from the complaint and/or force plaintiff to replead. Id. Thereafter, the parties completed discovery on plaintiff's § 1983 claims against Officer Smith and the City.
On September 30, 2019, defendants moved under Rule 56 seeking partial summary judgment on Crawley's Monell claim against the City and to dismiss plaintiff's claims against Does 1-200 and Chief Fowler. Although defendants acknowledged that issues of fact precluded summary resolution of the excessive force claim against Officer Smith, defendants argued plaintiff had failed to marshal evidence in discovery from which a reasonable jury could conclude that the City itself had caused Officer's Smith's allegedly unlawful use of force. Dkt. No. 61. As for the Does, defendants argued plaintiff had failed to take the necessary steps to identify them during discovery. Id. And as for Chief Fowler, defendants argued that any individual-capacity claims against him were already dismissed at the 12(b)(6) stage and therefore he should have been removed from the caption as a named defendant before discovery even began. Id.
After Crawley filed his opposition to summary judgment, Dkt. No. 63, defendants moved to strike certain portions of plaintiff's response to the moving statement of material facts and sought to have other portions of the moving statement of facts deemed admitted, Dkt. No. 66. Plaintiff timely opposed the second motion, too. Dkt. No. 68. Both motions have been fully briefed and will be decided on the basis of the submissions without oral argument.
On September 22, 2020, this matter was placed on the Court's calendar for in-person oral argument in Utica, New York. Shortly thereafter, plaintiff's counsel requested to appear telephonically or by video in light of the ongoing coronavirus pandemic. Upon consideration of that request, the matter was placed on submission of the papers.
II. BACKGROUND
Although it may not be directly relevant to defendants’ motion for summary judgment on the Monell claim, a blow-by-blow account of Crawley's roadside encounter with Officer Smith provides some useful context for understanding the parties’ current dispute. Plaintiff captured some of the incident on video and provided a link in his pleading. As the Court observed when it decided defendants’ partial motion to dismiss:
https://www.youtube.com/watch?v=ywTC8gV8Ivg.
On July 28, 2016, Officer Smith conducted a traffic stop in Syracuse. At the time, Crawley was sitting on his bicycle across the street from the stop and recorded the incident. Officer Smith yelled to plaintiff "say one word and your ass is going to jail, just so you know." Plaintiff responded that he could not hear him. Officer Smith approached Crawley and yelled "come here!" Plaintiff replied, "what are you doing officer? I didn't hear you." Defendant then demanded "give me your hand—turn around!" He then pulled Crawley off his bicycle, slammed him to the ground, and struck him on both sides of his head, face, and body. Officer Smith then said "don't fucking move, you understand me? I am going to fuck you up!" He continued to hit plaintiff in the face. Crawley yelled "I've got a defribrillator!" to which Smith replied "I don't give a fuck what you got! I told you to stop fucking coming around here." Officer Smith then hit plaintiff six or seven more times.
Crawley , 2018 WL 3716782, at *1. Thereafter, plaintiff was arrested and charged with Obstructing Governmental Administration in the Second Degree and Resisting Arrest. Id. He was later convicted of Harassment in the Second Degree. Id.
Officer Smith arrested Crawley in July of 2016. At that time, the Syracuse Police Department ("SPD" or the "Department") had in place a written Use of Physical Force policy that was reviewed and approved as part of an accreditation process offered by the New York State Division of Criminal Justice Services ("DCJS"). Defs.’ Rule 7.1(a) Statement ("Defs.’ Facts"), Dkt. No. 61-1 ¶ 1. DCJS accreditation requires compliance with a variety of state and federal constitutional standards and "provides formal recognition that an organization meets or exceeds general expectations of quality in the field." Id. ¶¶ 2-3.
For reasons explained infra , the Court deems most of the City's factual recitation admitted for the purpose of summary judgment.
The SPD's training regimen on use-of-force principles also "emphasizes the standards set forth in, and derived from, ... Graham v. Connor as well as more recent Fourth Amendment case law related to police use of force." Defs.’ Facts ¶ 7. And the Department issues periodic training bulletins about "change[s] in the law that effects [sic ] policing" that officers must read and "sign off on [ ] to ensure their notification of the disclosed information." Id. ¶ 8. DCJS also requires an accredited law enforcement agency to conduct and document at least twenty-one hours of "in-service" training each year, which includes "at a minimum, firearms training, legal updates, [and] a review of the use of force and the use of deadly force." Id. ¶ 10.
Each year, the SPD conducts mandatory in-service training for all police officers, which includes a classroom component and a reality-based scenario that covers all the topics required to maintain DCJS accreditation. Defs.’ Facts ¶¶ 11-14. During the relevant time period, the Department's training program met all the requirements set out by DCJS to maintain accreditation, including those requirements on the use of force. Id. ¶ 11. As part of this accreditation program, DCJS verifies the curriculum used by the Department as well as the training attendance records it maintains for its police officers. Id. ¶ 15.
Chief Fowler computerized the SPD's use-of-force reporting system with a software program called "IA PRO / Blue Team." Defs.’ Facts ¶ 17. This program made each internal use-of-force investigation trackable, reviewable, and subject to uniform reporting criteria. Id. Under Chief Fowler's tenure, Department policy required all use-of-force incidents to be "formally investigated and evaluated by the Department's chain-of-command and Chief's Office." Id. ¶ 18.
At the time Officer Smith arrested Crawley, SPD policy "required an investigation to be conducted for every arrest or civilian encounter that involved a use of force." Defs.’ Facts ¶ 20. That use-of-force policy required each incident to be "investigated by a supervisor according to a written procedure, where evidence, photographs and witness accounts" would be taken. Id. ¶ 21. This policy also required that all information collected during this investigation be entered into the IA PRO / Blue Team system, "which produced an electronic report that was required to be reviewed and approved by a police lieutenant within the officer's chain of command." Id. ¶ 22. This use-of-force report was sent to the Department's Office of Professional Standards (better known as Internal Affairs) and to the Chief's Office. Id. ¶¶ 23-24. This review process occurred with every use-of-force incident that occurred under Chief Fowler's tenure. Id. ¶ 25. And on multiple occasions, Chief Fowler directed subordinates to conduct additional training in response to problematic trends revealed by the IA PRO / Blue Team reporting system. Id. ¶¶ 26-30.
A citizen who wants to lodge a complaint about a Syracuse police officer's conduct can do so in several ways. Defs.’ Facts ¶ 34. They are welcome to come to the SPD in person and file a formal written complaint. Id. ¶ 35. There is also an online complaint feature on the City's website that can be completed anonymously. Id. ¶ 36. Anonymous or not, though, all online complaints of excessive force trigger the use-of-force investigation processes set forth above. Id. ¶ 37.
A citizen can also make a complaint to the Syracuse Citizens Review Board ("CRB"), a "separate agency formed to provide civilian oversight to police conduct and to provide recommendations to the Department regarding its findings." Defs.’ Facts ¶ 38. Under City policy, every written complaint of police misconduct made to the City is also transmitted to the CRB, which conducts a parallel investigation. Id. ¶ 39. The same is true of complaints made to the CRB, which are transmitted to the SPD and independently investigated by the Department's Office of Professional Standards. Id. ¶ 40.
In sum, then, excessive force complaints are investigated by three separate bodies: (1) the Department's chain of command, which automatically investigates all use-of-force incidents; (2) the Department's Office of Professional Standards, better known as Internal Affairs; and (3) the CRB, an independent agency. Defs.’ Facts ¶ 41. The IA PRO / Blue Team reporting system "has automatic alerts notifying the chain of command if there are repeat offenders among the Department's officers." Id. ¶ 42. When this alert is triggered, it goes to the offender's commanding officer and to the bureau chief. Id. ¶ 43.
There are certain differences between the investigative standards and procedures employed by the Department and those used by the CRB when those entities review use-of-force incidents. For instance, the Department uses a "preponderance of the evidence" standard while the CRB uses a "substantial evidence" standard, which would permit a finding of misconduct "where the relative balance of proof is below 50%." Defs.’ Facts ¶¶ 52-53. At CRB hearings, witnesses are not placed under oath, and no transcript is recorded. Id. ¶¶ 56, 59. And although the CRB has access to various written documents from the Department, individual officers generally do not participate in the hearings or have any representative present to submit additional evidence on their behalf or cross-examine witnesses. See id. ¶¶ 57-58.
III. LEGAL STANDARD
The entry of summary judgment is warranted when "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 judgment is a matter of law." Celotex Corp. v. Catrett , 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (citing FED. R. CIV. P. 56(c) ). A fact is "material" for purposes of this inquiry if it "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). And a "genuine" dispute of material fact exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id.
"When deciding a summary judgment motion, a court must resolve any ambiguities and draw all inferences from the facts in a light most favorable to the nonmoving party." Ward v. Stewart , 286 F. Supp. 3d 321, 327 (N.D.N.Y. 2017) (citation omitted). Accordingly, summary judgment is inappropriate where a "review of the record reveals sufficient evidence for a rational trier of fact to find in the [non-movant's] favor." Treglia v. Town of Manlius , 313 F.3d 713, 719 (2d Cir. 2002) (citation omitted).
IV. DISCUSSION
Before getting to the question of whether Crawley's Monell claim should be dismissed, the Court must address defendants’ motion to strike certain portions of plaintiff's responsive statement of material facts and/or to deem those facts admitted for the purpose of summary judgment.
A. Defendants’ Motion to Strike
Defendants argue Crawley has failed to appropriately controvert certain material facts in accordance with the relevant Local Rules and has inappropriately included a whole host of additional material facts in support of his own position. See Defs.’ Motion to Strike, Dkt. No. 66 at 2. Plaintiff, for his part, opposes defendants’ motion to strike and insists that he is in full compliance with the rules governing summary judgment motion practice in this District. Pl.’s Opp'n to Strike, Dkt. No. 68 at 2.
Pagination corresponds to CM/ECF.
This dispute raises an all-too-common question: how does a non-movant comply with the rules governing summary judgment? The frequency with which this question comes up is pretty disheartening, because the whole process is already spelled out in significant detail in this District's Local Rules.
It is supposed to be straightforward. Usually at the close of discovery but always before trial, a party may move for summary judgment on the basis of a showing "that there is no genuine dispute as to any material fact" and therefore "the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). In other words, the movant must show there is no need to empanel a jury because the whole case (or sometimes just a subset of the claims or defenses) can be decided without a trial based on the existence vel non of certain facts that were established in discovery.
The party against whom summary judgment is sought (known as the "non-movant" and often but not always the plaintiff) usually disagrees with the movant's view of how conclusive the factual record really is. Sometimes this party will cross-move for summary judgment in their own favor by emphasizing the importance of other facts set out in the record. Far more often, though, the non-movant will simply oppose the granting of the movant's request by insisting that a fact finder's participation is necessary after all; i.e. , that certain disputed facts must be resolved before judgment can be awarded to either party.
At this point, the Federal Rules of Civil Procedure and governing Supreme Court precedent leave it to the trial court to determine the presence or absence of genuine disputes over the material facts. But how? Thankfully, trial courts are not expected to conduct a full-blown review of the entire record generated by the parties. After all, discovery nearly always produces at least a few dead ends, and sometimes a good bit of what is discoverable is rendered irrelevant as the issues in the litigation come into sharper focus.
Instead, the primary responsibility for flagging genuine factual disputes belongs to the participants in the best position to do so: the litigants themselves. To that end, this District's Local Rule 7.1(a)(3) requires the party moving for summary judgment to include a Statement of Material Facts that sets forth "in numbered paragraphs, a short and concise statement of each material fact about which the moving party contends there exists no genuine issue. Each fact listed shall set forth a specific citation to the record where the fact is established." N.D.N.Y.L.R. 7.1(a)(3).
In turn, the party opposing summary judgment must file a response to the movant's Statement of Material Facts that does three important things. It must (1) "mirror the movant's Statement of Material Facts" by (2) "admitting and/or denying each of the movant's assertions in a short and concise statement, in matching numbered paragraphs" with (3) "a specific citation to the record where the factual issue arises." N.D.N.Y.L.R. 7.1(a)(3).
The Court's role in this whole process becomes much easier to carry out when the parties follow these instructions because it gives the parties themselves the first crack at teeing up any genuine issues that remain to be decided. That is almost certainly why every single federal judicial district in the Second Circuit has adopted some version of the party-driven procedure set out in Local Rule 7.1(a)(3).
And that is also why the Local Rules spell out the consequences for what happens when one or both parties drop the ball. As relevant here, the Rules warn that "[t]he Court shall deem admitted any properly supported facts set forth in the Statement of Material Facts that the opposing party does not specifically controvert." N.D.N.Y.L.R. 7.1(a)(3) (emphasis added); see also FED. R. CIV. P. 56(e)(2) (permitting the court to consider improperly supported or inadequately addressed facts as undisputed for the purpose of summary judgment).
In recent years, this Court has repeatedly been forced to shoulder the burden when one or both parties failed to do their part in this process. See, e.g. , Frantti v. New York , 414 F. Supp. 3d 257, 285 (N.D.N.Y. 2019) (deeming certain of movant's facts true where plaintiff's counsel failed to comply with relevant Local Rule); Carter v. Broome County , 394 F. Supp. 3d 228, 238-39 (N.D.N.Y. 2019) (faulting both parties for injecting unnecessary confusion into the summary judgment briefing); Alke v. Adams , 2018 WL 5297809, at *1-*3 (N.D.N.Y. Oct. 25, 2018) (admonishing non-movant's counsel for failing to include responsive statement of material facts), aff'd , 826 Fed.Appx. 4 (2020) (summary order).
Unfortunately, the Court must shoulder that burden again because significant portions of Crawley's responsive filing do not conform to Local Rule 7.1(a)(3). And the problem starts right away. Paragraphs one through three of defendants’ Statement of Material Facts assert that (1) the SPD had a DCJS–approved Use of Physical Force policy in place at the time Officer Smith forcibly arrested plaintiff; (2) DCJS accreditation requires compliance with certain state and federal constitutional standards; and (3) DCJS accreditation provides "formal" recognition that a police department meets or exceeds "general expectations of quality in the field." Defs.’ Facts ¶¶ 1-3.
Crawley's response denies the first statement because, according to him, the declaration on which it is based "is not the best evidence of that [sic ] the Defendant Syracuse's Use of Physical Force policy in place that [sic ] was specifically reviewed and approve as part of the accreditation process offered by the New York Division of Criminal Justice Services." Pl.’s Response, Dkt. No. 63-1 ¶ 1 (emphasis in original). Instead, plaintiff's response says, "the best evidence would be the formal application signed by both the agency's chief law enforcement officer and the municipality's chief elected official, plus the Certificate of Accreditation." Id. Plaintiff denies the assertions in paragraphs two and three of defendants’ Statement of Material Facts for the exact same reason. Id. ¶¶ 2-3.
This is unacceptable. If the material fact proffered by the movant is (1) accurate and (2) supported by the citation on which it is based, the non-movant should just admit the statement and move on. The Local Rules provide the party opposing summary judgment with an opportunity to bring to the Court's attention any additional facts that, though not relied on by the movant, may still bear on the grant or denial of the motion. See N.D.N.Y.L.R. 7.1(a)(3) ("The non-movant's response may also set forth a short and concise statement of any additional material facts that the non-movant contends are in dispute ....").
Following this and other aspects of Local Rule 7.1(a)(3) saves the reviewing court the trouble of having to do what this Court is doing right now—double- and triple-checking each individual factual allegation to try to determine whether it is genuinely in dispute or whether the non-movant just wants it to appear to be in dispute, either because they think it is damaging to their case or perhaps because they have an acrimonious relationship with opposing counsel.
It is particularly frustrating in this instance because Crawley's Monell claim is not seriously based on deficiencies in the Department's written training policies. These written policies exist, and defendants have supported the fact of their existence with an affidavit from someone with personal knowledge about them: SPD Detective Mark M. Rusin, an SPD police academy trainer whose "direct assigned responsibilities" include in-service training of the Department's officers, the development of SPD use-of-force policies, and the maintenance of the Department's accreditation. Rusin Decl., Dkt. No. 61-8 ¶¶ 1-7. In short, a "best evidence" objection is not appropriately included in a response to a movant's statement of material facts. Accordingly, paragraphs one through three will be deemed admitted. See, e.g. , Idlisan v. N.Y. State Dep't of Tax & Fin. , 2014 WL 3888279, at *2 (N.D.N.Y. Aug. 7, 2014) (D'Agostino, J.) (treating certain material facts as admitted where non-movant made a "best evidence"-type objection).
The same is true of Crawley's attempt to place in dispute paragraphs four through sixteen and paragraph thirty-three of defendants’ Statement of Material Facts. Generally speaking, these paragraphs go into further details about the training and in-service requirements imposed on SPD officers and explain how these requirements conform to DCJS accreditation standards. Defs.’ Facts ¶¶ 4-16, 33. Again, these factual assertions are based on an affidavit from SPD Detective Rusin.
Crawley denies these paragraphs based on his view that the "best evidence" for these claims would be sections of the DCJS field training manual, and on his further claim that Detective Rusin's "self-serving hearsay statement" is "contradicted" by the testimony of other officers. Pl.’s Response ¶ 4. Again, though, this is not the place for a "best evidence" objection.
Equally problematic, the statements and supporting citations from the testimony of other police officers that are offered up by Crawley to put these facts in dispute fail to do the job. First, as defendants point out, some of plaintiff's citations do not even match up with the proffered testimony. See Defs.’ Motion to Strike at 9. Second, and much more importantly, plaintiff's citations concern instances in which individual police officers could recall specific information about certain components of the in-service training. Pl.’s Response ¶ 4.
But these individual failures of recollection by other officers do not place in genuine dispute the more generalized facts about the existence of the training program that defendants have sought to establish in this section, such as whether DCJS sets certain training standards for police agencies, Defs.’ Facts ¶ 9, whether the Department's annual training is mandatory, id. ¶ 12, or whether DCJS verifies the accuracy of officer attendance records, id. ¶ 16. And because plaintiff's response to paragraphs five through sixteen and paragraph thirty-three of defendants’ Statement of Material Facts all rely on these same insufficient assertions, all of those facts must also be deemed admitted.
Next, defendants seek to have paragraphs eighteen through twenty-one, paragraph twenty-six, and paragraph twenty-eight deemed admitted. In paragraph eighteen, defendants assert that "[d]uring Chief Fowler's tenure, according to Department policy, 100% of all use of force incidents were formally investigated and evaluated by the Department's chain-of-command and Chief's Office." Defs.’ Facts ¶ 18. Crawley attempts to deny paragraph eighteen's factual assertion with this statement: "legally doubtful since it had little effect on the practice and training of his officers." Pl.’s Response ¶ 18. In support of his belief that it is "legally doubtful" that these investigations actually happened, plaintiff purports to cite to portions of Officer Smith's deposition where he could not recall the specific content of certain SPD trainings. Id.
But this does not specifically controvert the factual assertion offered by defendants in paragraph eighteen. Whether or not Officer Smith can recall the content of certain prior trainings has little or nothing to do with the factual assertion advanced by defendants: that use-of-force incidents under Chief Fowler's tenure were investigated in accordance with SPD policy and procedure. Indeed, it does not even controvert the question of whether the use-of-force incident in this case was investigated in accordance with SPD policy and procedure. In fact, after wasting time trying to dispute this paragraph plaintiff elsewhere goes on to admit that (1) all use-of-force incidents were reviewed by the Chief's Office and (2) this kind of review occurred "for every Department use of force during Fowler's tenure." Pl.’s Response ¶¶ 24-25. And because paragraphs nineteen through twenty-one, twenty-six, and twenty-eight all rely on this same insufficient assertion, all those paragraphs will be deemed admitted.
Next, defendants seek to have paragraph thirty-six admitted on the basis that Crawley failed to respond to it at all. Paragraph thirty-six asserts that under Chief Fowler's tenure "an online complaint feature was added to the City's website." Defs.’ Facts ¶ 36. In response, plaintiff explains that he "inadvertently" omitted paragraph thirty-six entirely, leaving the remainder of his response off by one number. Pl.’s Opp'n at 4. But plaintiff does not bother to tell the Court whether or not he admits this paragraph; just that he now knows he overlooked it when he filed his papers. Id. Accordingly, this paragraph will also be deemed admitted.
Next, defendants seek to have paragraphs forty-three through forty-nine and paragraph fifty-four deemed admitted. These paragraphs offer up observations and analysis from John O'Neill, Ph.D, BCBA-D, LABA, an expert retained by defendants for the purpose of defending this litigation. See O'Neill Decl., Dkt. No. 61-9 ¶¶ 1-4. In these paragraphs, Dr. O'Neill offers his expert opinions about various shortcomings in the CRB's Annual Reports based on his expertise in the fields of data collection and statistical analysis. Id. ¶ 5. Crawley's response to these paragraphs amounts to an attempt to contest Dr. O'Neill's opinions as unreliable and possibly to exclude them at trial. See Pl.’s Response ¶¶ 44-49. But the response to a movant's Statement of Material Facts is not the place for that kind of legal argument about admissibility, which belongs in a cross-motion to preclude Dr. O'Neill as an expert witness or perhaps in a motion in limine before trial. Accordingly, these facts will also be deemed admitted for the purpose of summary judgment. Next, defendants seek to have paragraphs fifty-seven, fifty-nine, and sixty-three deemed admitted. These paragraphs concern defendants’ characterization of the reliability of certain procedures at CRB hearings. Crawley contests these too, but his purported denials of these paragraphs rest on assertions that are better understood as separate material facts he wants to introduce in an attempt to place related matters in genuine dispute.
Plaintiff's response is one number off from this point forward. Because defendants adopt plaintiff's numbering system, the Court will too.
Plaintiff included a separate "objection" to Dr. O'Neill's Declaration in which he argues that the declarant's opinions should be excluded. Dkt. No. 63-2. Because resolution of this dispute is not necessary in order to decide defendants’ partial motion for summary judgment, the Court will not pass on the question of whether this objection is meritorious or even procedurally appropriate in its current form.
For instance, defendants assert that at CRB hearings no one "is assigned the responsibility of representing the officer's interests in cross examining the witnesses." Defs.’ Facts ¶ 57. In his denial, Crawley acknowledges that "officers generally do not participate in the hearings" but contends that the CRB has "attempted to subpoena the officers to testify." Pl.’s Response ¶ 57. But these assertions by both parties can be true, false, or some combination of both; plaintiff's response certainly does not specifically controvert defendants’ statement about whether or not someone is assigned a particular responsibility during a CRB hearing. Accordingly, those paragraphs offered by defendants will also be deemed admitted.
Finally, defendants contend that the additional facts set forth in Crawley's Statement of Material Facts must be stricken because there is no provision in the Local Rules "by which the non-movant can set forth additional material facts that are purportedly undisputed. " Defs.’ Motion to Strike at 20 (emphasis in original).
This request will be denied. As Crawley correctly points out, the Local Rules do in fact explicitly permit the non-movant to include in his response "any additional material facts that the non-movant contends are in dispute in separately numbered paragraphs." N.D.N.Y.L.R. 7.1(a)(3). And defendants themselves concede it is "unclear whether the facts" in this section of plaintiff's response are disputed or not. Defs.’ Motion to Strike at 20. Indeed, defendants have responded to those additional facts with admissions and denials of their own. See Dkt. No. 67-3. Accordingly, this final argument will be rejected.
B. The Monell Claim
Crawley's Monell claim is predicated on the theory that Officer Smith's use of force against him on July 28, 2016 is causally linked to the City's broader failure to take any meaningful corrective action in response to knowledge of the widespread use of excessive force by its officers; i.e. , the City's deliberate indifference to a known problem with the training, supervision, and/or discipline of its officers. See Pl.’s Opp'n, Dkt. No. 63 at 5-6.
Defendants contend that this claim must be dismissed because Crawley has failed to adduce sufficient evidence from which a reasonable jury could conclude that the City actually caused Officer Smith's allegedly excessive use of force during the roadside arrest of plaintiff. Defs.’ Mem., Dkt. No. 61-12 at 17. Defendants acknowledge that plaintiff's claim for excessive force against Officer Smith must go to trial but argue that the evidence in the record shows that (1) the City's training program was and is constitutionally adequate; (2) the SPD process for investigating use-of-force incidents was and is constitutionally adequate; (3) Chief Fowler made various attempts to modernize and improve the use-of-force tracking and reporting system; and (4) on more than one occasion Chief Fowler disciplined his officers for the inappropriate use of force. Id. at 8-11. According to defendants, plaintiff cannot establish deliberate indifference or causation in the face of those undisputed facts.
Crawley responds to this showing by emphasizing that Officer Smith has been in trouble before, having been involved "in at least three incidents were a citizen claimed he used excessive force." Pl.’s Opp'n at 6. According to plaintiff, Chief Fowler failed to impose discipline for any of these incidents. Id. In plaintiff's view, this and other evidence demonstrates that the City has a "de facto policy of ‘inaction’ with respect to addressing the exponential rise in excessive force claims against SPD officers." Id. at 8.
Defendants reply that the relevant question is not whether the City's use-of-force training methods or use-of-force investigative efforts were always successful in keeping SPD officers perfectly in line with the governing law. Defs.’ Reply, Dkt. No. 67 at 5. Instead, a Monell claim based on this kind of theory can only proceed where the municipality totally failed to take corrective action in response to a known problem. Id. at 5-7.
The Supreme Court has intentionally made Monell claims hard to plead and hard to prove. Unlike state tort law, a municipality cannot be held liable under § 1983 merely because it happened to employ the alleged tortfeasor. See, e.g. , Walker v. Shult , 365 F. Supp. 3d 266, 284 (N.D.N.Y. 2019) ("[U]nlike state tort law, constitutional torts cannot be premised on a theory of respondeat superior. "). Instead, "under § 1983 [ ] local governments are responsible only for ‘their own illegal acts.’ " Connick v. Thompson , 563 U.S. 51, 60, 131 S.Ct. 1350, 179 L.Ed.2d 417 (2011) (emphasis in original) (quoting Pembaur v. Cincinnati , 475 U.S. 469, 479, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986) ).
Thus, "to establish municipal liability under 42 U.S.C. § 1983, a plaintiff must demonstrate that the deprivation of his constitutional right was ‘caused by a governmental custom, policy or usage of the municipality.’ " Deferio v. City of Syracuse , 770 F. App'x 587, 589 (2d Cir. 2019) (summary order) (quoting Jones v. Town of East Haven , 691 F.3d 72, 80 (2d Cir. 2012) ). "The policy or custom need not be memorialized in a specific rule or regulation," Kern v. City of Rochester , 93 F.3d 38, 44 (2d Cir. 1996), and may be "reflected in either action or inaction," Cash v. County of Erie , 654 F.3d 324, 341-42 (2d Cir. 2011).
Through a series of decisions, the Supreme Court has recognized that Monell liability may be established through: (1) a policy formally adopted and endorsed by the municipality; (2) actions taken by policymaking officials that caused the particular deprivation alleged; (3) practices by subordinate officials that are not expressly authorized but are so widespread and consistent that policymakers must have been aware of them; or (4) a failure by policymakers to train or supervise that amounts to "deliberate indifference" to the rights of those who come into contact with the inadequately trained or supervised municipal employees. Deferio , 770 F. App'x at 590 (collecting cases); see also Benacquista v. Spratt , 217 F. Supp. 3d 588, 599-600 (N.D.N.Y. 2016) (recognizing same theories of liability).
As relevant here, " Monell ’s policy or custom requirement is satisfied where a local government is faced with a pattern of misconduct and does nothing, compelling the conclusion that the local government has acquiesced in or tacitly authorized its subordinates’ unlawful actions." Triano v. Town of Harrison, N.Y. , 895 F. Supp. 2d 526, 534 (S.D.N.Y. 2012). For example, "municipal inaction such as the persistent failure to discipline subordinates who violate civil rights could give rise to an inference of an unlawful municipal policy of ratification of unconstitutional conduct within the meaning of Monell ." Batista v. Rodriguez , 702 F.2d 393, 397 (2d Cir. 1983). "However, such a failure to act, train, or supervise can constitute a municipal custom ‘only where the need to act is so obvious, and the inadequacy of current practices so likely to result in a deprivation of federal rights, that the municipality or official can be found deliberately indifferent to the need.’ " Triano , 895 F. Supp. 2d at 534 (citation omitted). This "deliberate indifference" test "is a stringent standard of fault, requiring proof that a municipal actor disregarded a known or obvious consequence of his action." Bd. of Cty. Comm'rs v. Brown , 520 U.S. 397, 410, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997).
"The operative inquiry is whether the facts suggest that the policymaker's inaction was the result of a ‘conscious choice’ rather than mere negligence." Amnesty Am. v. Town of W. Hartford , 361 F.3d 113, 128 (2d Cir. 2004) (citation omitted). As the Second Circuit has explained, "[l]iability for unauthorized acts is personal; to hold the municipality liable, Monell tells us, the agent's actions must implement rather than frustrate the government's policy." Roe v. City of Waterbury , 542 F.3d 31, 37 (2d Cir. 2008) (quoting Auriemma v. Rice , 957 F.2d 397, 400 (7th Cir. 1992) (Easterbrook, J.)).
Upon careful review of the submissions, Crawley has failed to establish a jury question on the deliberate indifference component of this claim. Plaintiff contends that Chief Fowler knew that SPD officers were using force with impunity, that he refused to take corrective action, that he instead adopted a tacit policy of solidarity rather than appropriate discipline, that Officer Smith was aware of his superiors’ laissez-faire approach to this use-of-force problem, and that as a result Officer Smith used excessive force on plaintiff on July 28, 2016.
To be sure, courts have recognized that "deliberate indifference may be inferred if [ ] complaints are followed by no meaningful attempt on the part of the municipality to investigate or to forestall further incidents." Tieman v. City of Newburgh , 2015 WL 1379652, at *19 (S.D.N.Y. Mar. 26, 2015) (citation omitted). But Crawley has admitted for the purpose of summary judgment that all use-of-force incidents were reviewed and investigated under Chief Fowler in accordance with the Department's use-of-force policies, Pl.’s Response ¶¶ 24-25, 31, that Chief Fowler directed additional use-of-force training in response to certain use-of-force trends identified by the IA Pro / Blue Team system, id. ¶ 26, and that Chief Fowler has at various times disciplined officers as a result of internal investigations, id. ¶ 28. For instance, Chief Fowler suspended an officer "found to have struck an individual while the individual was being restrained" and turned the matter over to the District Attorney's Office for review. Id. ¶ 30.
So while Crawley's own evidentiary submissions suggest that Chief Fowler might have done more, Pl.’s Response ¶¶ 64-136, even viewed in the light most favorable to him plaintiff's showing does not permit the conclusion that Chief Fowler consistently failed to do anything. "A training program is not inadequate merely because a few of its graduates deviate from what they were taught." Jenkins v. City of N.Y. , 478 F.3d 76, 95 (2d Cir. 2007). Nor is a policymaker deliberately indifferent just because a few subordinates caused a particular kind of constitutional harm. Rather, deliberate indifference on a failure to supervise or a failure to discipline claim requires a consistent failure to meaningfully investigate complaints or a consistent failure to discipline those involved in actual constitutional violations. See Tieman , 2015 WL 1379652, at *19, *21. In short, there must be evidence from which a jury could conclude that the policymaker's action or inaction was the product of a conscious choice.
Crawley emphasizes that Officer Smith is a repeat offender when it comes to the use of force. But as defendants point out, several of these alleged incidents occurred after the encounter with plaintiff and therefore cannot be used as evidence of inadequate training, supervision, or discipline in this case. See, e.g. , Greene v. City of N.Y. , 742 F. App'x 532, 536-37 (2d Cir. 2018) (summary order) (holding that a plaintiff cannot rely on "contemporaneous or subsequent" violations to establish a claim based on inadequate training or supervision).
To make up for these obvious shortcomings in the proof he marshaled in this case, Crawley tries to rely instead on Hulett v. City of Syracuse , 253 F. Supp. 3d 462 (N.D.N.Y. 2017), and Grant v. City of Syracuse , 2017 WL 5564605 (N.D.N.Y. Nov. 17, 2017) (Kahn, J.), two instances in which Monell claims against the City of Syracuse based on use-of-force incidents survived summary judgment.
As an initial matter, this Court has already cautioned that "neither Hulett nor Grant stand for the proposition that the City is somehow now on the hook as a named defendant in every § 1983 action that involves one or more members of the Syracuse Police Department." Alexander v. City of Syracuse , 2018 WL 6591426, at *10 (N.D.N.Y. Dec. 13, 2018).
Crawley's evidence—similar to the evidence in Hulett and, to a more limited extent, in Grant —does suggest a strained relationship between the CRB, which has repeatedly found that certain officers used force inappropriately, and SPD leadership, which has typically found that those officers acted permissibly after applying the Department's internal standards.
But a finding of fault by the CRB does not necessarily compel a finding of fault by the SPD. As Crawley has already admitted, there are important differences between the investigative standards and procedures employed by the Department and those used by the CRB when those entities review use-of-force incidents. Defs.’ Facts ¶¶ 52-53, 56-59. Thus, discrepancies between the CRB's disciplinary decisions and the SPD's disciplinary decisions, standing alone, cannot establish a Monell claim.
It bears emphasizing that the plaintiff in Hulett offered far more than just these discrepancies in outcome between the CRB and the Department. The facts of Hulett were outrageous. There, two SPD officers broke a physically disabled man's hip after they tasered him and then dragged his limp body off a public bus. 253 F. Supp. 3d at 478. As the Court summarized the evidence offered by the plaintiff on summary judgment:
Crawley also relies on Grant , where Judge Kahn applied Hulett ’s logic to CRB reports in permitting a Monell claim to go forward to trial. As the Court will explain, though, Hulett ’s conclusion was based on the force of other evidence also uncovered by the plaintiff.
The two SPD officers then boarded the bus and again demanded that [plaintiff] either sit down or exit the bus. When plaintiff again refused to sit, the officers lifted plaintiff's shirt to expose the skin of his back, tasered him at least twice, removed him from the bus head-first, and wrangled him onto the ground outside. The audio transcript of the surveillance video demonstrates that the two officers actually engaged in a brief, but apparently unhurried, discussion about the most effective location to deploy the taser against plaintiff's back. For instance, one officer can be seen gesturing at plaintiff's back while stating "[w]ith
the probes that's a direct hit right there."
Once [plaintiff] was on the ground outside, one of the officers can be overhead for the first time telling plaintiff he is "under arrest." As the bus drives away from the transit hub, the surveillance video ends by depicting Sergeant Galvin dragging plaintiff by his right leg some distance across the pavement as plaintiff's left leg remains trapped at an awkward angle underneath his body.
Hulett , 253 F. Supp. 3d at 478. Neither officer was disciplined after this. Id. at 501.
The plaintiff in Hulett advanced a Monell claim that relied on essentially the same theory that Crawley presses in this litigation: that the Department was deliberately indifferent to a known, ongoing use-of-force problem. And yes, the Hulett plaintiff offered evidence of substantial discrepancies between the CRB and the Department when it came to discipline. Hulett , 253 F. Supp. 3d at 501.
But the discrepancies between what the CRB might have found and what the SPD ultimately decided to do were not the linchpin of the plaintiff's Monell claim against the City. Instead, the plaintiff in Hulett had also adduced specific evidence showing that SPD leadership had not taken any "meaningful" steps to investigate the bus incident at all and might have tried to minimize its significance or even cover it up. Hulett , 253 F. Supp. 3d at 501.
For instance, Hulett ’s evidence tended to show that although there was a written investigation and reporting policy in place within the Department, an internal use-of-force report about the bus incident had not even been generated until local news coverage of the bus video finally prompted Chief Fowler to go looking for it. 253 F. Supp. 3d at 501. And when the internal report turned out to be missing or non-existent, Chief Fowler specifically directed a subordinate to file one to try to get ahead of the news story and any possible litigation. Id. Chief Fowler testified in a deposition that he had never disciplined an officer for inappropriate taser use. Hulett , 253 F. Supp. 3d at 501. Worse still, Chief Fowler made a series of statements that suggested he himself did not understand the limits of the appropriate use of force. Id.
Notably, the officer who failed to follow the reporting policy was not disciplined, either.
This testimony, combined with other evidence about the mishandling of the internal report, suggested a direct connection between leadership's conscious choices and the individual officers’ use of force against the disabled plaintiff. Thus, Hulett concluded that the combined force of this varied evidentiary showing was sufficient to raise a jury question about whether the City was deliberately indifferent to a known, ongoing use-of-force problem inside the Department that had caused the two officers to taser the plaintiff and drag him off the public bus. Hulett , 253 F. Supp. 3d at 501.
But Crawley has not made anywhere near this kind of showing. Again, plaintiff has already admitted for the purpose of this summary judgment motion that all use-of-force incidents were reviewed and investigated under Chief Fowler's tenure in accordance with the Department's use-of-force policies, Pl.’s Response ¶¶ 24-25, 31, that Chief Fowler had at times directed additional use-of-force training in response to certain trends identified by the Department's reporting system, id. ¶ 26, and that Chief Fowler has at times disciplined officers as a result of the Department's internal use-of-force investigations, id. ¶ 28.
To let Crawley's municipal liability claim go forward in the face of these admissions and other shortcomings in his proof would transmogrify nearly every single use-of-force incident into a Monell claim against the tortfeasor's municipal employer. But Monell does not allow for liability to attach absent a far more particularized showing. Accordingly, plaintiff's claim against the City must be dismissed.
Plaintiff's additional material facts do not alter this analysis. Pl.’s Response ¶¶ 64-136. As he does elsewhere, plaintiff relies on individual failures of recollection attributable to individual officers and disputes with the CRB to try to establish his claim against the City. Id.
C. The Does & Chief Fowler
Finally, defendants seek to dismiss the Does and Chief Fowler. As for the Does, defendants argue that Crawley has never taken steps to discern their identities even though discovery in this action is now closed. Defs.’ Mem. at 27. As for Chief Fowler, defendants argue that his name should be removed from the caption because he has not been an appropriate party since the Rule 12(b)(6) motion was granted back in 2018.
Upon review, those requests will be granted. The time for identifying the Does has long passed. See, e.g. , Kenney v. Clay , 172 F. Supp. 3d 628, 642 (N.D.N.Y. 2016) (dismissing Doe defendants where plaintiff failed to identify them by the close of discovery). And while Chief Fowler might have been the municipal policymaker, he is not the appropriate named defendant for Monell purposes. See, e.g. , Benacquista v. Spratt , 217 F. Supp. 3d 588, 599 n.4 (N.D.N.Y. 2016) (explaining the distinction between supervisory liability and municipal liability under § 1983 ). Accordingly, the Does and Chief Fowler will be removed from the caption.
V. CONCLUSION
Therefore, it is
ORDERED that
1. Defendants’ motion to strike is GRANTED in part and DENIED in part;
2. Defendants’ motion for partial summary judgment on plaintiff's Monell claim is GRANTED;
3. Defendants’ motion to dismiss Does 1-200 and Chief of Police Frank Fowler is GRANTED;
4. Does 1-200, Chief of Police Frank Fowler, and the City of Syracuse are DISMISSED as defendants; and
5. A jury trial on plaintiff Maurice Crawley's § 1983 claim against defendant Police Officer Vallon Smith is scheduled for December 7, 2020 at 9:30 a.m. in Utica, New York.
IT IS SO ORDERED.