Gustafson v. Vill. of Fairport

• Decision Date: 29 May 2015
• Docket Number: No. 6:12–CV–6147 EAW.,6:12–CV–6147 EAW.
• Parties: William M. GUSTAFSON, Plaintiff, v. VILLAGE OF FAIRPORT, Philip Provenzano, Daniel Chisholm, Mathew A. Nielsen, Defendants.
• Court: U.S. District Court — Western District of New York

106 F.Supp.3d 340

William M. GUSTAFSON, Plaintiff,
v.
VILLAGE OF FAIRPORT, Philip Provenzano, Daniel Chisholm, Mathew A. Nielsen, Defendants.

No. 6:12–CV–6147 EAW.

United States District Court, W.D. New York.

Signed May 29, 2015.

106 F.Supp.3d 343

William M. Gustafson, Fairport, NY, pro se.

Daniel T. Cavarello, Sugarman Law Firm LLP, Buffalo, NY, Jenna W. Klucsik, Sugarman Law Firm, LLP, Syracuse, NY, for Defendants.

DECISION AND ORDER

ELIZABETH A. WOLFORD, District Judge.

INTRODUCTION

Pro se Plaintiff William M. Gustafson ("Plaintiff") alleges that in the early morning hours of November 27, 2010, after becoming involved in a dispute over karaoke singing at Shorts Bar ("Shorts") in the Village of Fairport, the individual defendants, each of whom was an officer with the Fairport Police Department (the "FPD"), assaulted Plaintiff and violated his constitutional rights. Plaintiff's Complaint (Dkt. 2–2) purports to allege four causes of action: (1) assault and battery; (2) "wanton disregard" for Plaintiff's rights under color of law; (3) conspiracy to "wantonly disregard the Plaintiffs rights"; and (4) "wanton disregard and indifference of Plaintiffs rights under 42 U.S.C. § 1983

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and NYS CVR Article 2 Bill of Rights § 8." (Id. at ¶¶ 41–54). The Court liberally construes the complaint as setting forth claims for: (1) false arrest pursuant to 42 U.S.C. § 1983 ; (2) excessive use of force pursuant to 42 U.S.C. § 1983 ; (3) conspiracy pursuant to 42 U.S.C. § 1983 ; (4) violation of New York Civil Rights Law § 8 ; and (5) assault and battery.

Defendants move for summary judgment on all of Plaintiff's claims. (Dkt. 29). For the reasons set forth below, Defendants' motion for summary judgment is denied as to Plaintiff's § 1983 excessive use of force claim against the individual defendants, denied as to Plaintiff's assault and battery claim against the individual defendants and the Village of Fairport, and granted in all other respects.

BACKGROUND

At approximately 1:00 a.m. on November 27, 2010, Plaintiff and his wife, Catherine Gustafson ("Catherine"), arrived at Shorts. (Dkt. 29–30 at ¶¶ 7–8; Dkt. 33 at 5–6). According to Plaintiff, he ordered a drink at Shorts and attempted to sing karaoke. (Dkt. 33 at ¶¶ 7–8). Plaintiff claims that when he "went up to sing Karaoke," he was "told it was another guy's turn." (Id. at ¶ 7). When the other individual began singing, Plaintiff claims to have stated that "he stunk," which allegedly prompted the individual to "le[ave] the stage to confront the plaintiff with two other guys." (Id. at ¶ 8). Plaintiff claims that the three men then began "pushing and shoving" him while he "did absolutely nothing physical." (Id. at ¶ 9). Under Plaintiff's version of events, "a bouncer came over, and did absolutely nothing," and Plaintiff and his wife decided to leave Shorts of their own volition. (Id. at ¶¶ 10–11).

Several witnesses to the events at Shorts on the evening in question claim that Plaintiff physically assaulted another bar patron. (Dkt. 29–30 at 14–20). Two bouncers who were present testified that Plaintiff was removed from the bar. (Id. at ¶ 19).

Angry about the incident at Shorts, Plaintiff decided to report it to the police. (Dkt. 29–30 at ¶ 22; Dkt. 33 at ¶ 12). Plaintiff's daughter, Emily Gustafson ("Emily"), met Plaintiff at the FPD station. (Dkt. 29–30 at ¶¶ 23–24; Dkt. 33 at ¶ 12). The FPD station was not open, as it was approximately 1:30 a.m. (Dkt. 29–30 at ¶ 24; Dkt. 33 at ¶ 13). Plaintiff called 911 and Defendant Daniel Chisholm ("Officer Chisholm") arrived at the FPD and escorted Plaintiff and Emily inside. (Dkt. 29–30 at 24–25; Dkt. 33 at ¶¶ 13–15). Plaintiff claims that he explained what had happened at Shorts and "requested that police, with Plaintiff along, go to Shorts and request an apology from management and/or ownership...." (Dkt. 33 at ¶ 16).

Defendant Phillip Provenzano ("Officer Provenzano") subsequently arrived at the FPD station. (Dkt. 29–30 at ¶ 26; Dkt. 33 at ¶ 17). According to both Plaintiff and Emily, Officer Provenzano was verbally aggressive towards Plaintiff, swearing and name-calling. (Dkt. 33 at ¶¶ 17–20; Dkt. 33–2 at 2). Officer Provenzano left the FPD station to investigate what had happened at Shorts. (Dkt. 29–30 at ¶ 28; Dkt. 33 at ¶¶ 18–20). When Officer Provenzano returned, he told Plaintiff that nothing further would be done about his complaint. (Dkt. 29–30 at ¶ 29; Dkt. 33 at ¶ 20). Plaintiff claims to have told Officer Provenzano that he was going to "contact his superiors and report him for his belligerent, abusive and unprofessional behavior." (Dkt. 33 at ¶ 24). Plaintiff and Emily left the FPD station; Plaintiff claims that as they were leaving, Officers Chisholm and Provenzano told him to call them if he returned to Shorts and "ha[d] any problems." (Id. at 26). According to Defendants,

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Officers Chisholm and Provenzano told Plaintiff not to return to Shorts. (Dkt. 29–30 at ¶ 31). Plaintiff and Emily left the FPD station at roughly 1:55 a.m. and "went back to Shorts for an apology." (Dkt. 29–30 at ¶¶ 31–32; Dkt. 33 at ¶ 27).

Plaintiff's and Defendants' versions of Plaintiff's second visit to Shorts differ greatly. According to Plaintiff's daughter, "all the bouncers were waiting for [Plaintiff and his daughter] and began to scream as soon as [Plaintiff] exited [his daughter's] car." (Dkt. 33–2 at 2). Plaintiff claims to have been "jumped on" by a patron and to have called 911 for a second time. (Dkt. 33 at ¶ 30).

According to Defendants, when Plaintiff returned to Shorts, the bouncers locked the door and would not let him enter. (Dkt. 29–30 at ¶ 33). Plaintiff used a raised voice to tell the bouncers through the window that he wanted an apology. (Id. at ¶ 35). Several eyewitnesses testified that Plaintiff licked the window in the door. (Id. at ¶ 36). Several eyewitnesses also testified that Plaintiff made an unprovoked attack on an individual named Joshua Williams. (Id. at ¶ 39). Mr. Williams was injured and the bouncers brought him into the bar. (Id. at ¶¶ 40–41). Defendants agree that Plaintiff called 911 for a second time. (Id. at ¶ 42).

Officers Provenzano and Chisholm responded to Plaintiff's 911 call. (Dkt. 29–30 at ¶ 43; Dkt. 33 at ¶¶ 32–34). According to Plaintiff, Officer Provenzano immediately began verbally assaulting Plaintiff and did not perform any investigation of what had happened. (Dkt. 33 at ¶ 32). Plaintiff admits to having made several antagonistic comments to Officer Provenzano, including "are you just plain stupid," and "go fuck yourself." (Id. at ¶¶ 36–37). Defendants claim that Plaintiff resisted arrest. (Dkt. 29–30 at ¶¶ 50–54). Non-party witness John Scinta confirmed the officers' version of events. (Id. at ¶¶ 55–62).

According to Plaintiff, the officers "never mentioned arrest." (Dkt. 33 at ¶ 37). Plaintiff claims that he walked away from Officer Provenzano and that Officer Provenzano then "attacked [him] from behind." (Id. at 38). Plaintiff's daughter Emily provided a sworn statement in which she claims that Officer Provenzano "kick[ed] [Plaintiff's] legs out from under him" and continued to kick him while he was on the ground. (Dkt. 33–2 at 2). Plaintiff further claims that Officers Provenzano and Chisholm used pepper spray on him and kicked him "in the side of the torso and on his legs" while he was on the ground. (Dkt. 33 at ¶ 42). According to Plaintiff, he asked to speak to his attorney "at least five times" while being kicked by the officers. (Id. at ¶ 43). Plaintiff further claims that Defendant Mathew Nielsen ("Sergeant Nielsen") arrived on the scene at some point during the altercation and that Sergeant Nielsen kicked him. (Id. at ¶ 50; Dkt. 29–7 at 70:19–24).

Plaintiff was taken to the FPD station. (Dkt. 29–30 at ¶ 65; Dkt. 33 at ¶ ¶ 51–52). Plaintiff was charged with assault in the third degree, criminal trespass, and resisting arrest. (Dkt. 29–7 at 16:2–7; Dkt. 29–30 at 69). Plaintiff ultimately pled guilty to attempted assault. (Dkt. 29–7 at 15:10–13; Dkt. 29–30 at 70).

Plaintiff commenced this action in Supreme Court, Monroe County, on February 22, 2012. (Dkt. 2–2). Defendants removed the action to this Court on the basis of federal question jurisdiction pursuant to 28 U.S.C. § 1441. (Dkt. 2). Plaintiff made a motion for remand of this action (Dkt. 10). On June 20, 2012, the Honorable Michael A. Telesca, United States District Judge, entered a Decision and Order denying Plaintiff's motion to remand. (Dkt. 22).

Discovery closed on February 25, 2014. (Dkt. 28). On May 23, 2014, Defendants

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filed the instant motion for summary judgment (Dkt. 29). Plaintiff filed his opposition on August 18, 2014. (Dkt. 33–34). Defendants filed a reply on September 5, 2014. (Dkt. 35). Plaintiff filed a sur-reply on September 9, 2014.¹ (Dkt. 36).

DISCUSSION

I. Legal Standard

Rule 56 of the Federal Rules of Civil...