APPEARANCES: James R. Fisher, Jr., Plaintiff pro se 13-A-1445 Franklin Correctional Facility P.O. Box 10 Malone, NY 12953 Sugarman Law Firm LLP 211 West Jefferson Street Syracuse, NY 13202 OF COUNSEL: Paul V. Mullin, Esq.
James R. Fisher, Jr., Plaintiff pro se
Franklin Correctional Facility
P.O. Box 10
Malone, NY 12953
Sugarman Law Firm LLP
211 West Jefferson Street
Syracuse, NY 13202
Paul V. Mullin, Esq. Hon. Brenda K. Sannes, United States District Judge ORDER
On February 26, 2013, plaintiff James R. Fisher, Jr. filed a pro se complaint under 42 U.S.C. § 1983 alleging that the defendant Ogdensburg police officers violated the Eighth Amendment by subjecting him to excessive force during an arrest. Dkt. No. 1. Following defendants' motion to dismiss, the Court construed plaintiff's alleged Eighth Amendment claim as a Fourth Amendment excessive force claim. See Dkt. No. 18 (dismissing plaintiff's Eighth Amendment claim and directing defendants to respond to plaintiff's excessive force Fourth Amendment claim).
On January 20, 2015, defendants filed a motion for summary judgment. Dkt. No. 26. After United States Magistrate Judge Thérèse Wiley Dancks granted plaintiff three extensions of time to respond to the motion, plaintiff failed to file any response. Dkt. Nos. 30, 32, 34. On July 15, 2015, Magistrate Dancks issued a Report-Recommendation and Order, recommending that defendants' motion for summary judgment be granted in its entirety. Dkt. No. 35. Magistrate Dancks advised plaintiff that he had fourteen days to file written objections to the report and that the failure to object would preclude appellate review. Id., p. 11 The Report-Recommendation was served on plaintiff by regular mail on July 15, 2015, and no objections to the Report and Recommendation have been filed. Id.
Since no objections to the Report-Recommendation have been filed, and the time for filing objections has expired, the Court has reviewed the Report-Recommendation for clear error. Petersen v. Astrue, 2 F. Supp. 3d 223, 228-29 (N.D.N.Y. 2012); Fed. R. Civ. P. 72(b) advisory committee's note to the 1983 addition. Under this standard, "the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation." Id. A report is clearly erroneous only if the Court, upon reviewing the entire record, is "left with the definite and firm conviction that a mistake has been committed." Mateo v. Bristow, 12-cv-5052, 2015 WL 925933, at *2, 2015 U.S. Dist. LEXIS 26761, at *6 (S.D.N.Y. Mar. 4, 2015) (quoting Easley v. Cromartie, 532 U.S. 234, 242 (2001)). For the reasons that follow, the Report-Recommendation is adopted in part and rejected in part.
A. Standard for Consideration of An Unopposed Motion For Summary Judgment
As Magistrate Dancks noted, plaintiff failed to oppose defendants' motion after plaintiff had been warned of the consequences of failing to respond and after plaintiff had been granted several extensions of time to file a response. Dkt. No. 35, p. 5; see Dkt. Nos. 27, 30, 32, 34. Plaintiff thereby failed to comply with the local rules of the Northern District of New York which required him to file a response to the defendants' Statement of Material Facts, admitting or denying the defendants' assertions in matching numbered paragraphs. N.D.N.Y. L.R. 7.1(a)(3). Under Local Rule 7.1(a)(3), the Court "shall deem admitted any properly supported facts set forth in the Statement of Material Facts that the opposing party does not specifically controvert."
As Magistrate Dancks further noted, however, "[t]he fact that there has been no response to a summary judgment motion does not . . . mean that the motion is to be granted automatically." Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996). See Dkt. No. 35, p. 6. Summary judgment may only be granted "if the facts as to which there is no genuine dispute 'show that the moving party is entitled to judgment as a matter of law.'" Id. (quoting Fed. R. Civ. P. 56(c)). In considering whether there are material issues of fact "[a] verified complaint is to be treated as an affidavit for summary judgment purposes . . . provided that it meets the other requirements for an affidavit" under Rule 56. Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995).
This standard is now codified in Fed. R. Civ. P. 56(a). See Advisory Committee Notes 2010 Amendments.
Affidavits in support or opposition of a motion for summary judgment must "be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated." Fed. R. Civ. P. 56(c)(4).
In the Report-Recommendation, Magistrate Dancks concluded that the court was "not required to consider the version of events set forth in the verified complaint as evidence" because plaintiff failed to oppose the motion for summary judgment. Dkt. 35, p. 9. Nothing in Colon, however, indicates that the treatment of a verified complaint as an affidavit is dependent on the filing of an opposition to a summary judgment motion. In Colon, the plaintiff opposed the defendants' motion for summary judgment with an affidavit which was "virtually devoid of facts," and the defendants argued that the plaintiff could not rely on the "more detailed factual allegations" in the complaint to defeat their motion. Colon, 58 F.3d at 872. The Second Circuit disagreed, ruling that "[a] verified complaint is to be treated as an affidavit for summary judgment purposes, and therefore will be considered in determining whether material issue of fact exist." Id. The Second Circuit in Colon found "sufficient evidence in the verified complaint to withstand the defendants' motion for summary judgment." Id.; cf. Jamison v. Metz, 541 F. App'x 15, 18-19 (2d Cir. 2013) (summary order) (noting that "the verified complaint . . . [was] properly before the district court" and created an issue of fact in a case in which the plaintiff had failed to comply with the requirements in N.D.N.Y. Local Rule 7.1 for a responsive Statement of Material Facts); see Roberson v. Hayti Police Dep't, 241 F.3d 992, 995 (8th Cir. 2001) (reversing summary judgment ruling because district court "failed to accord the verified complaint its proper weight . . . as an affidavit for summary judgment purposes" in a case in which the plaintiff failed to respond to a defendant's summary judgment motion).
Courts in this district have considered facts in a verified complaint in determining whether there are material issues of fact, and whether facts are controverted for the purposes of deeming admitted the defendant's Statement of Facts, under Local Rule 7.1(a)(3), when a plaintiff has failed to respond to a summary judgment motion. See, e.g., Jones v. Fischer, No. 9:11-cv-774, 2013 WL 4039377, at *4, 2013 U.S. Dist. LEXIS 111319, at *3 (N.D.N.Y. Mar. 21, 2013); Rivera v. Dianardo, No. 10-cv-1500, 2013 WL 1975437, at *1, 2013 U.S. Dist. LEXIS 68051, at *3 (N.D.N.Y. Apr. 16, 2013), report-recommendation adopted by 2013 WL 1975435, 2013 U.S. Dist. LEXIS 68051 (N.D.N.Y. May 13, 2013). Therefore, the Court declines to ignore the verified complaint in determining whether there are material issues of fact for trial. Pursuant to Local Rule 7.1(a)(3) and Fed. R. Civ. P. 56(e)(2), the Court deems all of the properly-supported facts in the defendants' Statement of Material Facts which are not controverted by the allegations in the verified complaint to be undisputed for the purposes of this motion.
The defendants' Statement of Material Facts is properly supported by affidavits from the defendants. Dkt. No. 26-11. --------
B. The Uncontroverted Facts
In the early morning of January 9, 2013, defendant Polniak saw plaintiff carrying an object and attempting to leave the backyard of an area designated for the parking of police vehicles. Dkt. 26-11, ¶¶ 5-7. Polniak ordered plaintiff to stop and drop the object - later determined to be a spray can - but plaintiff threw it. Id., ¶6. Polniak informed plaintiff that he was under arrest and placed him in handcuffs. Id., ¶ 7. Defendant Jenks arrived to help Polniak escort plaintiff into the building. Id., ¶8. Plaintiff alleged that the defendants "roughly pushed and man handled [him] into the police station . . . making disrespectful and degrading comments such as 'you piece of shit.'" Dkt. No. 1, p. 4. Plaintiff had been near patrol cars parked behind the police station; two or three of the cars had been marked with obscenities and other markings. Dkt. 26-11, ¶ 9. Jenks saw sugar falling from the inside of plaintiff's winter coat; it was later discovered that sugar had been placed inside the gas tank of the patrol car used by the Police Chief. Id., ¶¶ 10-11.
As Polniak and Jenks attempted to escort plaintiff into the police station, he became belligerent; he yelled obscenities and made verbal threats, threatening to kill the officers' families and slit their throats. Id., ¶¶ 12-13. Plaintiff tripped Jenks, causing Jenks to fall and hit his head on the wall, causing minor injuries. Id., ¶ 14. Plaintiff was "inebriated." Dkt. No. 1, p. 5. The defendants have provided affidavits describing how plaintiff struggled with the officers; was uncooperative; resisted them; and acted aggressively by attempting to get out of a chair and lunging at them. Dkt. No. 26-11 ¶¶ 13, 16, 19, 21-22, 24, 27, 34. Plaintiff alleges that at "no time did [he] resist," Dkt. No. 1, p. 5.
Jenks and Polniak state that they only used reasonable force to effect plaintiff's arrest and detention. Dkt. No. 26-11, ¶ 33. Plaintiff has alleged that
Jenks threw plaintiff face first into a wall causing severe pain & swelling, which lasted approximately 2 weeks also other injuries were received bruises on upper arms bicep/tricep area, a ½ inch cut on right knee.Dkt. 1, p. 5. Plaintiff alleges that this occurred when he was "handcuffed behind his back," and that he was thereafter placed in a holding cell. Id.
When he was in the holding cell plaintiff placed what appeared to be wet toilet paper over the cell's camera lens and clogged the cell's toilet with large amounts of toilet paper, socks and a t-shirt. Id., ¶¶ 28- 29. Plaintiff was not booked until several hours later, after Polniak's and Jenks' shifts had ended. Id., ¶ 31. Neither Polniak nor Jenks saw visible injuries on plaintiff. Id., ¶ 36. Plaintiff did not complain of any pain or injuries and he did not have any visible injuries when he was booked. Id., ¶ 38.
During these events, defendant Layng was at home. Id., ¶ 39. Layng arrived at the police station to conduct an investigation and process the damage that had been done, but did not at any time come in contact with plaintiff. Id., ¶ 41-42.
C. Consideration of the Allegations of the Complaint
In this case, Magistrate Dancks concluded that even if the allegations in the verified complaint were considered, "no reasonable juror would credit Plaintiff's testimony." Dkt. No. 35, p. 10. As Magistrate Dancks notes, the plaintiff's version of the events is inconsistent with that of defendants; plaintiff's injuries are not documented; and there are booking photographs which appear to depict plaintiff's face without injury. Nevertheless, assessing the credibility of the conflicting versions of this incident is a matter for the jury, not the court on summary judgment. Jeffreys v. City of New York, 426 F.3d 549, 553-54 (2d Cir. 2005). This is not one of the "extraordinary cases, where the 'facts alleged are so contradictory that doubt is cast upon their plausibility [and] the court may pierce the veil of the complaint's factual allegations and dismiss the claim.'" Rojas v. Roman Catholic Diocese of Rochester, 660 F.3d 98, 106 (2d Cir. 2011) (quoting Jeffreys, 426 F.3d at 554). In Rojas and Jeffreys, the Second Circuit affirmed summary judgment rulings against plaintiffs whose allegations were discredited by the district court because the allegations were contradicted by and inconsistent with the plaintiffs' earlier statements. Here, there is no evidence that plaintiff has contradicted himself; there is no evidence of any statement by him other than the allegations in the complaint. The Court therefore declines to discredit plaintiff's allegations.
While law enforcement officers have the right to use "some degree of physical coercion or threat thereof to effect" an arrest, they violate the Fourth Amendment if the amount of force they use is "objectively unreasonable in light of the facts and circumstances confronting them." Rogoz v. City of Hartford, 14-0876, ___ F.3d ___, 2015 WL 4716570, at *7, 2015 U.S. App. LEXIS 13945, at *19 (2d Cir. Aug. 10, 2015) (quoting Graham v. Connor, 490 U.S, 386, 396 (1989)) (internal quotations and marks omitted). A determination of reasonableness
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.Id. (quoting Graham, 490 U.S. at 396) (internal citation omitted). The doctrine of "[q]ualified immunity shields government officials from civil damages liability unless the official violated a statutory or constitutional right that was clearly established at the time of the challenged conduct," Rogoz, 2015 WL 4716570, at *8, 2015 U.S. App. LEXIS 13945, at *20 (quoting Reichle v. Howards, 132 S. Ct. 2088, 2093 (2012)).
1. Defendants Layng and Polniak
The Court adopts Magistrate Dancks' recommendation that summary judgment be granted as to defendants David M. Layng and Ryan H. Polniak. Plaintiff's allegations regarding the events as he was being transported into the police station - that the defendants "roughly pushed and man handled" him, while making "disrespectful and degrading comments" - are insufficient to withstand summary judgment. "Courts in the Second Circuit have consistently held that [m]ere threats, verbal harassment or profanity, without any injury or damage, are not actionable under Section 1983." Justice v. McGovern, No. 11-CV-5076, 2012 WL 2155275, at *3, 2012 U.S. Dist. LEXIS 82077, at *9 (E.D.N.Y. June 12, 2012). The uncontroverted facts establish that the plaintiff was drunk, belligerent, and threatening the officers. Dkt. No. 26-11, ¶¶ 12-13; Dkt. No. 1, p. 5. Moreover, "[n]ot every push or shove, even if it may seem unnecessary in the peace of a judge's chambers, violates the Fourth Amendment." Graham, 490 U.S. at 396. Plaintiff's allegation of being "roughly pushed and man handled" as he was brought into the police station, without more, is insufficient to withstand summary judgment. See, e.g., Breitkopf v. Gentile, 41 F. Supp. 3d 220, 245-46 (E.D.N.Y. 2014) (collecting cases regarding de minimis use of force). Alternatively, the defendants' alleged conduct in bringing the plaintiff into the station would be protected by the doctrine of qualified immunity. Id.
With respect to the alleged incident inside the police station by Jenks, there is no evidence that either Layng or Polniak were present. "An individual may be held liable under . . . § 1983 only if that individual is 'personally involved in the alleged deprivation.'" Littlejohn v. City of New York, 14-1395-cv, ___ F.3d ___, 2015 WL 4604250, at *10, 2015 U.S. App. LEXIS 13475, at *32 (2d Cir. Aug. 3, 2015) (citation omitted). Plaintiff does not describe who, if anyone, was present when Jenks allegedly threw plaintiff into the wall. Dkt. No. 1, p. 5. Layng has submitted an affidavit explaining that he was at home when the vandalization occurred. Dkt. No. 26-16, p. 1. Layng stated that he was called in to the police station to investigate the damage to the police vehicles, and that he did not see plaintiff or come into contact with plaintiff at any point. Dkt. No. 26-16. Summary judgment is therefore appropriate as to Layng because plaintiff has failed to raise a material issue of fact regarding Layng's personal involvement in any Fourth Amendment violation.
Nor is there any evidence that Polniak was present for the alleged incident in which plaintiff was thrown into the wall. Polniak arrested plaintiff, and brought plaintiff into the police station with Jenks, but Jenks escorted Fisher towards the processing room with another officer. Dkt No. 26-11, ¶ 7-8. 15. When Polniak entered the processing room, plaintiff was face down on the ground on his stomach, being searched for weapons. Id., ¶ 18; Dkt. No. 26-17, ¶ 9. Polniak has submitted an affidavit stating that "[a]t no time did either I, or any other officer I observed, strike, punch, or throw [plaintiff] into a wall." Dkt. No. 26-17, ¶ 14. There is no allegation that Polniak used excessive force or that Polniak was present during the excessive use of force, which might have created an obligation to prevent the use of excessive force by another officer. See O'Neill v. Krzeminski, 839 F.2d 9, 11 (2d Cir. 1988) ("A law enforcement officer has an affirmative duty to intercede on the behalf of a citizen whose constitutional rights are being violated in his presence by other officers.") (emphasis added). Polniak is therefore entitled to summary judgment.
2. Defendant Jenks
Defendants' motion for summary judgment as to defendant Fay Jenks is denied because, in light of the verified complaint, there is a material issue of fact regarding whether Jenks used excessive force. While the uncontroverted facts establish that the plaintiff was drunk and belligerent, and that he tripped Jenks, plaintiff denied that he resisted the officers. There are therefore material issues of fact regarding whether plaintiff resisted the officers and whether any use of force by Jenks was objectively unreasonable. Although defendants argue that the Fourth Amendment claim is not viable because the plaintiff's alleged injuries were de minimis, plaintiff has alleged that he was thrown into a wall, face first, when he was handcuffed behind his back and not resisting the officers, and that he had pain and swelling for two weeks, bruises on his upper body, and a cut on his right knee. These allegations are sufficient to raise a material issue of fact and preclude summary judgment. See, e.g., Robison v. Via, 821 F.2d 913, 923-24 (2d Cir. 1987) (allegations that defendant pushed the plaintiff against the inside of a car door, yanked her out, threw her up against the fender and twisted her arm behind her back, resulting in bruises lasting a couple of weeks were sufficient to prevent the summary dismissal of a § 1983 excessive force claim).
Nor is Jenks entitled to summary judgment based upon the doctrine of qualified immunity. Actions which are less extreme than the conduct alleged here have been held sufficient to support a Fourth Amendment violation. See, e.g., Robison, 821 F.2d at 923-24; see also Maxwell v. City of New York, 380 F.3d 106, 108 (2d Cir. 2004) (holding that summary judgment was inappropriate when plaintiff alleged that the officer's "use of force in making the arrest was sufficient to send pain into arm and lower back and leave her with a post-concussive syndrome"). Moreover, "the use of entirely gratuitous force is unreasonable and therefore excessive." Tracy v. Freshwater, 623 F.3d 90, 99 n.5 (2d Cir. 2010). The material issues of fact regarding whether plaintiff resisted and what, if any, force was used by Jenks preclude resolution of the issue of qualified immunity on summary judgment. Hemphill v. Schott, 141 F.3d 412, 418 (2d Cir. 1998).
For these reasons, it is
ORDERED that the Report-Recommendation (Dkt. No. 35) is ADOPTED insofar as it recommends that defendants' motion for summary judgment (Dkt. No. 26) be granted as to defendants David M. Layng and Ryan H. Polniak, and REJECTED only insofar is it recommends that summary judgment be granted as to defendant Fay Jenks; and it is further
ORDERED that defendants' motion for summary judgment (Dkt. No. 26) is GRANTED as to defendants David M. Layng and Ryan H. Polniak and DENIED as to defendant Fay Jenks; and it is further
ORDERED that the plaintiff's complaint (Dkt. No. 1) be dismissed as to defendants David M. Layng and Ryan H. Polniak; and it is further
ORDERED that the Clerk of the Court is directed to provide plaintiff with copies of the unpublished decisions cited in this Memorandum-Decision and Order; and it is further
ORDERED that the Clerk of the Court shall serve a copy of this Order upon plaintiff in accordance with the Local Rules.
IT IS SO ORDERED. Dated: August 17, 2015
Syracuse, New York
Brenda K. Sannes
U.S. District Judge