Krug v. County of Rennselaer, 1:04-CV-0640 (TJM/DRH).

• Decision Date: 31 March 2008
• Docket Number: No. 1:04-CV-0640 (TJM/DRH).,1:04-CV-0640 (TJM/DRH).
• Parties: Robert L. KRUG and Bonnie S. Krug, Plaintiffs, v. The COUNTY OF RENNSELAER; the City of Troy Police Department; Nicholas Kaiser, Police Chief; Jack Mahar, Captain; John Waters, Sergeant; Richard Schoonmaker, Police Officer; Lee F. Hess, Police Officer; Chirstopher Cieplik, FBI Special Agent, Individually and in their official capacities, Defendants.
• Court: U.S. District Court — Northern District of New York

559 F.Supp.2d 223

Robert L. KRUG and Bonnie S. Krug, Plaintiffs, v. The COUNTY OF RENNSELAER; the City of Troy Police Department; Nicholas Kaiser, Police Chief; Jack Mahar, Captain; John Waters, Sergeant; Richard Schoonmaker, Police Officer; Lee F. Hess, Police Officer; Chirstopher Cieplik, FBI Special Agent, Individually and in their official capacities, Defendants.

No. 1:04-CV-0640 (TJM/DRH).

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

March 31, 2008.

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Robert L. Krug, New Baltimore, NY, pro se.

Bonnie S. Krug, New Baltimore, NY, pro se.

Shawn T. Nash, Thomas J. O'Connor, Napierski, Vandenburgh Law Firm, Albany, NY, Charles A. Sarris, City of Troy, Corporation Counsel, Troy, NY, William F. Larkin, Office of the United States Attorney, Syracuse, NY, for Defendants.

DECISION & ORDER

THOMAS J. McAVOY, Senior District Judge.

I. INTRODUCTION

Plaintiffs Robert L. and Bonnie S. Krug commenced this action pro se on June 4, 2004 asserting thirty-five (35) causes of action contending that their rights secured by the United States Constitution were violated. The claims arise from circumstances surrounding Plaintiff Robert L. Krug's arrest, prosecution, and conviction for attempted armed robbery. See generally Compl. [dkt. # 1]. Plaintiffs amended their Complaint on July 28, 2004 to include additional defendants which increased the number of causes of action to forty-eight (48). See 1st Am. Compl. [dkt. #4]. On April 11, 2005, after obtaining leave, Plaintiffs filed a second Amended Complaint. The second Amended Complaint, which the Court deems to have superseded the first Amended Complaint, does not separate the claims into independent causes of action but rather generally asserts violations of the United States Constitution, the Americans with Disabilities Act, and New York State law. See 2nd Am. Compl. [dkt. #40] ("Am. Compl."). Plaintiffs seek declaratory, monetary, and injunctive relief. Id. pp. 23-25.

In January, February, and March 2006, Defendants filed motions to dismiss or for summary judgment. See Motions, by: (1) the City of Troy, New York and all individual defendants employed by the City of Troy ("the City defendants") [see dkt. # 66]; the County of Rensselaer [see dkt. # 67]; and (3) the Defendant Chirstopher Cieplik ("Cieplik") [see dkt. #77]. On April 6, 2006, Magistrate Judge Homer granted a stay of discovery pending resolution of the outstanding motions. See 4/26/06 Order [dkt. #87]. Because the pending motions relied on documents outside the pleadings,¹ the Court treated them as motions for summary judgment. On September 8, 2006, the Court denied with leave to renew Defendants' motions because Defendants failed to comply with certain procedural requirements, including serving the pro se Plaintiffs with "Critical Notices" advising them of the requirements of the Federal and Local Rules when responding to a motion for summary judgment. See 9/8/06 Dec. & Ord., [dkt. # 97]; N.D.N.Y.L.R. 56.2.

Each set of defendants then promptly corrected their procedural deficiencies and re-filed their motions. See dkt. # 98 (motion by the City of Troy and all individual defendants employed by the City of Troy ("the City defendants")); dkt. # 99 (motion by the County of Rensselaer); and (3) dkt. # 101 (motion Defendant Chirstopher Cieplik ("Cieplik")).² These renewed motions are now before the Court. Because the motions were renewed, the stay of discovery remained in effect.

Soon thereafter, the Court began granting a series of adjournments due to Robert Krug's medical difficulties. See dkt. # 104 (adjourning return date of motions to 12/11/06 and extending opposition filing date to 11/27/06); dkt. # 106 (adjourning return date of motions to 3/12/07); dkt. # 132 (adjourning return date of motions to 7/9/07); dkt. # 136 (adjourning return date of motions to 9/10/07); dkt. #138 (adjourning return date of motions to 11/13/07); dkt. #141 (granting final adjournment of return date of motions to 3/10/08).

On November 30, 2006, the Appellate Division of the New York State Supreme Court, Third Department, issued a decision that reversed Mr. Krug's conviction, vacated his guilty plea, and remitted the matter to Rensselaer County Court for further proceedings. See People v. Krug, 34 A.D.3d 1119, 824 N.Y.S.2d 499, 500 (3rd Dept.2006); O'Connor 12/15/06 ltr. [dkt. # 111]. This Court ordered further briefing on the impact of this development. See 12/22/06 Order [dkt. # 112]. Defendants complied, arguing, essentially, that the motions could and should be decided on their merits. See dkt. # 113, dkt. # 118, and dkt. # 126.

In July of 2007, the Court arranged for an attorney from the Albany area to represent the Plaintiffs pro bono. Plaintiffs declined the proffered representation and requested an additional adjournment. Dkt. #137. The Court granted a "final adjournment" to March 10, 2008. See 10/23/07 Order, dkt. # 141. Pursuant to this Order, Plaintiffs' opposition papers were due on February 22, 2008. Id.; see N.Y.N.D. Local Rule 7.1(b) ("The party opposing the motion must file its opposition papers with the Court and serve them upon the other parties not less than SEVENTEEN DAYS prior to the return date of the motion.") (emphasis in original). Plaintiffs did not file timely opposition, but, instead, filed a letter on March 6, 2008 indicating that they were intending to file opposition papers but did not do so because they believed that their opposition papers were due on the return date of the motion — April 10, 2008. See dkt. # 143.³ Despite the representation that they believed that their papers were due on April 10, 2008 (e.g. 4 days after they filed their letter of "intent" to oppose the motions), they requested yet another adjournment. Id. The Court denied the request but granted Plaintiffs leave to file late papers by 4:00 P.M. on March 19, 2008. Plaintiffs did not comply with this last extension,⁴ and instead filed opposition papers to two of the three motions mid-morning on March 20, 2008. In that the Court finds that Plaintiffs have been afforded more than ample opportunity to submit timely responses, the Court will decide the motions on the materials submitted to date.⁵

II. STANDARD OF REVIEW

The Court may grant summary judgment only where "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c). An issue is genuine if the relevant evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A party seeking summary judgment bears the burden of informing the court of the basis for the motion and of identifying those portions of the record that the moving party believes demonstrate the absence of a genuine issue of material fact as to a dispositive issue. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

If the movant is able to establish a prima facie basis for summary judgment, the burden of production shifts to the party opposing summary judgment who must produce evidence establishing the existence of a factual dispute that a reasonable jury could resolve in his favor. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The nonmoving party must show, by affidavits or other evidence, admissible in form, that there are specific factual issues that can only be resolved at trial. Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir.1995).

In determining whether to grant summary judgment, the Court must view all facts in the light most favorable to the nonmoving party, but "only if there is a `genuine' dispute as to those facts." Scott v. Harris. ___ U.S. ___, 127 S.Ct. 1769, 1776, 167 L.Ed.2d 686 (2007). "When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts' for purposes of ruling on a motion for summary judgment." Id. at 1776.

The nonmoving party cannot defeat summary judgment by "simply show[ing] that there is some metaphysical doubt as to the material facts," Matsushita, 475 U.S. at 586, 106 S.Ct. 1348, or by a factual argument based on "conjecture or surmise." Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir.1991). In this regard, a party opposing a properly supported motion for summary judgment may not rest upon "mere allegations or denials" asserted in the pleadings, Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522, 525-26 (2d Cir. 1994), or on conclusory allegations or unsubstantiated speculation. Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir.1998).

"[P]roceeding pro se does not otherwise relieve a litigant from the usual requirements of summary judgment." Viscusi v. Proctor & Gamble, 2007 WL 2071546, at *9 (E.D.N.Y. July 16, 2007). The Plaintiffs, like all parties, must follow the procedural formalities of Local Rules, including Local Rule 7.1(a)(3).⁶ Govan v. Campbell, 289 F.Supp.2d 289, 295 (N.D.N.Y.2003); see also Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 2541 n. 46, 45 L.Ed.2d 562 (1975) ("The right of self-representation is not a license ... not to comply with relevant rules of procedural and substantive law."); Edwards v. INS, 59 F.3d 5, 8 (2nd Cir.1995) ("While a pro se litigant's pleadings must be construed liberally, ... pro se litigants generally are required to inform themselves regarding procedural rules and to comply with them.").

III. BACKGROUND⁷

Plaintiffs claim that in the early morning of June 6, 2001, Robert Krug "suffered a heart attack and or stroke, blacked out causing a fall and concussion precipitating: hallucinations, delirium, dementia, amnesia,...