Ivery v. Baldauf

• Decision Date: 14 February 2018
• Docket Number: 14–CV–6041L
• Citation: 284 F.Supp.3d 426
• Parties: Dwayne IVERY, Plaintiff, v. Alexander C. BALDAUF, et al., Defendants.
• Court: U.S. District Court — Western District of New York

284 F.Supp.3d 426

Dwayne IVERY, Plaintiff,

v.Alexander C. BALDAUF, et al., Defendants.

14–CV–6041L

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

Signed February 14, 2018

Charles Francis Burkwit, Burkwit Law Firm, PLLC, Rochester, NY, for Plaintiff.

Spencer L. Ash, City of Rochester Law Department, Rochester, NY, for Defendants.

DECISION AND ORDER

DAVID G. LARIMER, United States District Judge

On August 17, 2013, plaintiff Dwayne Ivery was arrested by two officers of the Rochester (New York) Police Department ("RPD"). The arrest followed a 911 call by plaintiff's girlfriend, in connection with an argument between her and plaintiff.

On January 27, 2014, plaintiff brought this action against the City of Rochester ("City"), the two arresting officers (Alexander Baldauf and Rickey Harris), and James Sheppard, who at the time of the arrest was the Chief of Police for the City.

Plaintiff has asserted ten claims against the defendants, as set forth in more detail below. Defendants have moved for summary judgment.

BACKGROUND

On the evening of August 17, 2013, Officers Baldauf and Harris arrived at plaintiff's residence on East Main Street in Rochester, in response to a 911 call. That call had been placed by plaintiff's girlfriend, Winnette Delancy, during an argument between her and plaintiff. See Defendants' Statement of Undisputed Facts ("DSUF"), Dkt. # 28–2, ¶ 5; Plaintiff's Response to Defendants' Statement of Undisputed Facts ("PRDSUF"), Dkt. # 31 ¶ 5. Not surprisingly, the parties' versions of what transpired next differ in some respects.

What is undisputed is that at one point after the officers arrived, Baldauf agreed to Delancy's request that he help remove the license plates from a truck in the driveway. Delancy told the officers that the truck was registered in her name, and that she wanted the plates removed. Plaintiff testified at his deposition that he held title to the car, but that it was registered in Delancy's name, and that he agreed to let her take the plates. Ivery Depo. (Dkt. # 28–3 Ex. F) at 24 lines 3–6.

Plaintiff alleges that as Baldauf was removing the front plate, plaintiff "calmly and slowly" approached Baldauf to ask him a question, and that Baldauf responded by grabbing plaintiff and punching him in the head. Complaint ¶¶ 26–28.

Defendants contend that the officers "calmly spoke to Ms. Delancy and Mr. Ivery in a non-threatening manner," but that plaintiff "aggressively approached" Delancy, "while acting in a belligerent manner." According to the Incident Report filed after this incident, plaintiff was screaming obscenities at the time. Dkt. # 28–3 at 40. Defendants allege that when Baldauf stepped between plaintiff and Delancy, in order to protect Delancy, plaintiff shoved or poked him.

Regardless of how it started, it is not disputed that a physical altercation occurred between Baldauf and plaintiff. That altercation was captured, to some degree, on video taken by a security camera on the adjacent building. Although the image resolution is not the best, what can be seen is that while Baldauf and Delancy are at the front of a parked vehicle in the driveway, plaintiff walks toward them. At that point, Harris is standing near the rear of the vehicle, on the right side of the screen.

Because of the distance of the parties from the camera, the lighting conditions (the incident occurred after dark), and the general lack of resolution in the video, the images are not crystal clear, but it can be seen that a scuffle breaks out between Baldauf and plaintiff. Precisely what precipitated the scuffle is not obvious from the video, which has no audio.

When the scuffle begins, Baldauf attempts to grab plaintiff, who eludes Baldauf's grasp and runs around the far side of the vehicle. Baldauf gives chase, and he and Harris, who moves to intercept plaintiff, bring plaintiff to the ground.

At this point, the glare from one officer's flashlight further obscures the images, but one of the officers (presumably Baldauf) can be seen cocking his arm back and punching plaintiff several times, while plaintiff is on the ground. It is not clear from the video whether plaintiff is physically struggling while this is occurring. But after several seconds, plaintiff is subdued and led away, on foot, apparently in handcuffs. The entire incident, from the start of the scuffle near the front of the vehicle to plaintiff being subdued and taken away, lasts roughly half a minute.

According to plaintiff, he did not shove or menace Baldauf or Delancy, but simply walked toward them, and only ran away after Baldauf's unprovoked, unwarranted attempt to grab him. Plaintiff also alleges that Baldauf unnecessarily punched and kicked him while plaintiff was on the ground and not resisting. Plaintiff alleges that Harris eventually said, "All right, all right, that's enough," and that Baldauf finally stopping hitting him. Plaintiff alleges that he sustained various physical injuries as a result of Baldauf's actions. As stated, defendants contend that plaintiff initiated the confrontation, and that Baldauf used no more force than was reasonably necessary to subdue plaintiff.

After his arrest, plaintiff was charged with harassment in the second degree and with resisting arrest. He received an adjournment in contemplation of dismissal ("ACD") from the state court, as to both charges. DSUF ¶ 24; PRDSUF ¶ 24. Apparently the charges were later dismissed, as is the norm.

Based on these events, plaintiff filed suit under 42 U.S.C. § 1983, asserting ten claims: (1) a § 1983 claim against Baldauf, Harris and the City for false arrest and illegal search and seizure of plaintiff's person; (2) a § 1983 claim against Baldauf, Harris and the City for excessive force, in violation of the Fourth Amendment to the United States Constitution; (3) a claim (ostensibly premised on § 1983 ) against Baldauf and Harris for conspiracy to violate plaintiff's civil rights; (4) a § 1983 claim against the City for failure to adequately train, discipline or supervise its police officers with respect to conspiracies to deprive individuals of their constitutional rights; (5) a § 1983 claim against the City and Sheppard, which is similar to Count 4, but which relates to the use of excessive force, unlawful arrests, and so on; (6) a state-law claim against Baldauf, Harris and the City for battery; (7) a state-law claim against Baldauf, Harris and the City for assault; (8) a state-law claim against Baldauf, Harris and the City for intentional infliction of emotional distress, as well as (9) a similar claim for negligent infliction of emotional distress; and (10) a state-law claim for negligence against all defendants. The individual defendants are sued in both their personal and official capacities.

DISCUSSION

I. Motions for Summary Judgment: General Principles

A court may grant summary judgment only "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." Fed. R. Civ. P. 56(c). Only those "facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

A party moving for summary judgment is not required to prove the absence of genuine issues of material fact. The movant's burden may be discharged by simply showing that there is a lack of evidence to support the non-moving party's case. Celotex v. Catrett , 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If the movant satisfies that initial burden, the party opposing the motion is required to "make a showing sufficient to establish the existence of an element essential to the party's case, and on which the party will bear the burden of proof at trial." Id. at 322, 106 S.Ct. 2548. When deciding whether to grant summary judgment, the court must view the evidence in the light most favorable to the non-moving party, and draw all reasonable inferences in his favor. Consarc Corp. v. Marine Midland Bank , 996 F.2d 568, 572 (2d Cir. 1993) ; Allen v. Ford , 880 F.Supp.2d 407, 408 (W.D.N.Y. 2012).

II. Application to this Case

A. Section 1983 Claims in General

Section 1983 provides a right of action for persons aggrieved by the deprivation of their rights secured by either the Constitution or the laws of the United States. 42 U.S.C. § 1983. See Chroscielewski v. Detective Milton Calix , No. 16 CV 6640, 2018 WL 324872, at *4 (E.D.N.Y. Jan. 8, 2018) (citing Spear v. Town of West Hartford , 954 F.2d 63, 67 (2d Cir.), cert. denied , 506 U.S. 819, 113 S.Ct. 66, 121 L.Ed.2d 33 (1992) ) (other citations omitted). In order to establish a claim under § 1983, the plaintiff must show that the defendants, acting under the color of state law, deprived the plaintiff of a federal right. 42 U.S.C. § 1983. See Candelario v. City of New York , 539 Fed.Appx. 17, 17 n.1 (2d Cir. 2013) (citing Adickes v. S.H. Kress & Co. , 398 U.S. 144, 150, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970) ).

There is no dispute here that defendants Baldauf and Harris were acting under color of state law at the time of plaintiff's arrest, since they were in uniform and acting within the scope of their employment as police officers. The primary questions before the Court, then, involve whether plaintiff was deprived of a constitutional right, whether there are issues of fact related to that question, and whether defendants have established defenses to plaintiff's claims.

B. False Arrest

Plaintiff's first cause of action is captioned as a claim for "illegal search and seizure of plaintiff Dwayne Ivery's person." Count One also alleges that defendants denied plaintiff his right to be free from false arrest. This claim is asserted against Baldauf, Harris and the City.

Based on the facts alleged, the false-arrest and illegal-seizure claims are properly...