Burdick v. Swarts
| Decision Date | 28 March 2019 |
| Docket Number | 5:12-cv-1711 (NAM/DEP) |
| Parties | STEVEN D. BURDICK, Plaintiff, v. DAVID SWARTS, JAMES F. DARLING, RUELL TODD, OSWEGO COUNTY, and JOHN AND JANE DOE 1-10, Defendants. |
| Court | U.S. District Court — Northern District of New York |
APPEARANCES:
Steven D. Burdick
4102 State Route 3
Fulton, New York 13069
Plaintiff, pro se
Office of Frank W. Miller
Frank W. Miller, Esq., of counsel
Christopher M. Militello, Esq., of counsel
6575 Kirkville Road
East Syracuse, New York 13057
Attorney for Defendants Oswego County, Todd, and Darling
Office of Attorney General, State of New York
Timothy P. Mulvey, Esq., of counsel
615 Erie Boulevard West, Suite 102
Syracuse, New York 13204
MEMORANDUM-DECISION AND ORDER
Plaintiff Steven D. Burdick, who at one point in this litigation was represented by counsel but is now proceeding pro se, brings this action under 42 U.S.C. § 1983 asserting claims against Defendants David Swarts, the former New York State Commissioner of Motor Vehicles ("Commissioner Swarts"), Oswego County, retired Oswego County Sheriff Ruell Todd ("Sheriff Todd"), and Oswego County Deputy Sheriff James F. Darling ("Deputy Darling") (collectively, the "Oswego County defendants"), related to a traffic stop and subsequent arrest on November 22, 2009. (Dkt. No. 157). Now before the Court are Defendants' motions for summary judgment. (Dkt. Nos. 201, 209). Plaintiff opposes the motions. (Dkt. Nos. 208, 216, 220). Defendants' motions are granted, for the reasons that follow.
On June 1, 2018, Commissioner Swarts moved for summary judgment, (Dkt. No. 201), and included a Statement of Material Facts pursuant to Local Rule 7.1(a)(3), (Dkt. No. 201-1). The motion also notified Plaintiff of the consequences of not properly responding, pursuant to Rule 56(e) of the Federal Rules of Civil Procedure and Local Rule 56.2. (Dkt. No. 201, p. 1). However, Plaintiff's opposition does not specifically respond to Commissioner Swarts's Statement of Material Facts; rather Plaintiff "relies on his statement of material facts contained within his third amended complaint." (Dkt. No. 208, p. 2). Similarly, on July 31, 2018, the County Defendants moved for summary judgment, (Dkt. No. 209), and included a Statement of Material Facts, (Dkt. No. 209-20). Counsel affirms that Plaintiff was served with the Court's form Notification of the Consequences of Failing to Respond to a Summary Judgment Motion, (Dkt. No. 210). Once again, Plaintiff's opposition does not specifically respond to the movants' Statement of Material Facts; rather Plaintiff sets out his own version of the facts in memoranda of law, without citing any evidence, and attaches several exhibits. (Dkt. Nos. 216, 216-1). Plaintiff later submitted an additional memorandum, (Dkt. No. 220), which Defendants move tostrike as "an improper surreply filed without leave." (Dkt. No. 222). The additional memorandum appears to be simply a notarized version of an earlier one. (See Dkt. No. 216). Neither memorandum is sworn under oath, or declared under penalty of perjury pursuant to 28 U.S.C. § 1746. Therefore, neither memorandum is admissible as evidence. See also Hughes v. Elmira College, 584 F. Supp. 2d 588, 590 (W.D.N.Y. 2008) (). Accordingly, Defendants' motion to strike is denied as moot.
Under these circumstances, the Court may accept Defendants' statements of facts as true where appropriate, supported by the record, and unchallenged by Plaintiff with admissible evidence.1 See Champion v. Artuz, 76 F.3d 483, 485 (2d Cir. 1996) () (quoting Graham v. Lewinski, 848 F.2d 342, 344 (2d Cir. 1988)); Riehl v. Martin, No. 13 Civ. 439, 2014 WL 1289601, at *5, 2013 U.S. Dist. LEXIS 186610, at *12, (N.D.N.Y. Dec. 19, 2013) (), report-recommendation adopted, 2014 WL 1289601, 2014 U.S. Dist. LEXIS 42870 (N.D.N.Y. Mar. 31, 2014).
While the Court "is not required to consider what the parties fail to point out," in deference to Plaintiff's pro se status and out of an abundance of caution, the Court has nevertheless conducted "an assiduous review of the record" to determine whether there is evidence that might support any of Plaintiff's claims. Holtz v. Rockefeller & Co., 258 F.3d 62, 73 (2d Cir. 2001). Therefore, the following facts are largely taken from Defendants' statements of facts and supporting evidence, Plaintiff's deposition and trial testimony, and the evidence submitted by Plaintiff, to the extent it is in admissible form.
Plaintiff is a tow truck operator who resides in Oswego County, New York. (Dkt. No. 201-1, ¶ 6). On January 14, 2009, Plaintiff was issued a traffic ticket for towing on the New York State Thruway without a permit. (Dkt. No. 209-2). Thereafter, Plaintiff's driver's license was suspended on or about July 3, 2009. (Id.). Plaintiff testified that he paid the ticket, faxed the receipt to the Fulton Department of Motor Vehicles ("DMV"), and was told "you're all set." (Dkt. No. 209-4, pp. 15-16).
On November 22, 2009, Plaintiff drove a van to a vehicle checkpoint on State Route 49 in Central Square, Oswego County, which was monitored by Defendant Darling, a deputy employed by Defendant Oswego County in its Sheriff's Department. (Dkt. No. 209-20, ¶¶ 2, 5-6). The van Plaintiff drove had no inspection sticker on it. (Id., ¶ 7). Deputy Darling noticed the inspection sticker was missing and directed Plaintiff to pull over into a nearby parking lot. (Id., ¶ 8). Plaintiff pulled the van over into the parking lot. (Id., ¶ 9). Deputy Darling asked Plaintiff about the missing inspection sticker. (Id., ¶ 10). Plaintiff told Deputy Darling that the sticker must have fallen off. (Id., ¶ 11). Deputy Darling asked Plaintiff to provide proof that thevan had been inspected. (Id., ¶ 12). Plaintiff told Deputy Darling that he did not have the inspection paperwork. (Id., ¶¶ 13-14).
Deputy Darling told Plaintiff that he would give Plaintiff a ticket, and Deputy Darling asked Plaintiff for his driver's license, registration card, and proof of insurance. (Id., ¶¶ 15-16). Plaintiff did not have his driver's license with him, and he did not have a current valid insurance card for the van or the registration card for the van. (Id., ¶¶ 17-19). Deputy Darling went to his patrol car and checked a computer system for vehicle and personal data from the DMV concerning Plaintiff. (Id., ¶ 20). The information returned in response to the inquiry was that Plaintiff's driver's license was currently suspended. (Id., ¶ 21).
When Deputy Darling returned to the van, he found Plaintiff sitting in the driver's seat of the van with his eighteen-month old child in his lap. (Dkt. No. 209-3, p. 10). According to Deputy Darling, he told Plaintiff that his license was suspended and that he had to place the child in the passenger's seat and to step out of the van. (Id). Deputy Darling testified that Plaintiff did not put the child aside or get out of the van as instructed, but rather said that his license was not suspended, and it was "taken care of." (Id.). Deputy Darling testified that Plaintiff repeatedly refused to get out of the van, saying "No, I'm not getting out." (Id., p. 13). Deputy Darling testified that Plaintiff continued to hold the child. (Id.).
According to Deputy Darling, Plaintiff then stepped out of the van with the child, lifted the child up away from his body toward Deputy Darling, pulled the child back to his body, got back in the van, and sat back in the driver's seat with the child on his lap again. (Id.). Plaintiff then continued to argue with Deputy Darling. (Id.). Deputy Darling testified that he had to tell Plaintiff to step out of the van a total of ten times. (Id., p. 15). Eventually, Plaintiff put the child in the passenger's seat, and Deputy Darling arrested him and took him into custody. (Id., p. 16).
Plaintiff admitted that, on November 22, 2009, when Deputy Darling first instructed him to put the child aside and step out of the van because he was under arrest, he did not put the child aside or get out of the vehicle, and instead told Deputy Darling that a ticket he had received in the Town of Van Buren, New York had been paid. (See Dkt. No. 209-4, pp. 15-18; Dkt. No. 209-5, pp. 2-3). Plaintiff further testified that Deputy Darling informed him again that he was under arrest and to put his child to the side, but Plaintiff refused and proposed that Deputy Darling call a tow truck and just give Plaintiff a traffic ticket. (Dkt. No. 209-5, p. 3). Plaintiff testified that he had been pulled over for the same thing three months earlier, that he had gone to the DMV and taken care of it, and that he told Deputy Darling "it's a mistake." (Id.). Plaintiff testified that Deputy Darling again told him that he was under arrest and to put the child aside, but Plaintiff refused because he wanted to first put the child in a car seat. (Id.). Plaintiff testified that Deputy Darling again repeated the instruction, and Plaintiff finally got out. (Id.).
According to Deputy Darling, Plaintiff's positioning of the child...
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