Marcano v. City of Schenectady
| Decision Date | 13 August 2014 |
| Docket Number | No. 1:12–CV–00036.,1:12–CV–00036. |
| Citation | 38 F.Supp.3d 238 |
| Parties | Alexander MARCANO, Plaintiff, v. The CITY OF SCHENECTADY, Michael Hudson, Ryan Kent, Anthony J. Savignano, Kevin Derkowski, Shawn Donovan, William Fennell, Bret Ferris, Jeffrey S. Pardi, Christopher Semione, and Steven Sheldon, Individually and as Agents, Servants, and/or Employees and Police Officers of the City of Schenectady and the City of Schenectady Police Department, Defendants. |
| Court | U.S. District Court — Northern District of New York |
Carlo Alexandre C. De Oliveira, Cooper, Erving Law Firm, Albany, NY, for Plaintiff.
Michael J. Murphy, Alaina K. Laferriere, Carter, Conboy Law Firm, Albany, NY, for Defendants.
DECISION & ORDER
Plaintiff Alexander Marcano (“Plaintiff”) commenced this action on January 9, 2012 alleging violations of rights secured by the United States Constitution and New York State law. His claims, which arise in connection with his arrest on January 7, 2011, sound in false arrest, malicious prosecution, malicious abuse of process, excessive force, intentional and negligent infliction of emotional distress, assault and battery, and negligence.
Presently before the Court are Plaintiff's motion for partial summary judgment, dkt. # 50, and Defendants' cross- motion for summary judgment. Dkt. # 56. The Court has considered all of the submissions presented by the parties relative to these motions in rendering this Decision and Order.
On a motion for summary judgment the Court must construe the properly disputed facts in the light most favorable to the non-moving party, see Scott v. Harris, 550 U.S. 372, 127 S.Ct. 1769, 1776, 167 L.Ed.2d 686 (2007), and may grant summary judgment only where “there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a) ; see O'Hara v. Nat'l Union Fire Ins. Co. of Pittsburgh, PA, 642 F.3d 110, 116 (2d Cir.2011). When considering cross-motions for summary judgment, the Court “must evaluate each party's motion on its own merits, taking care in each instance to draw all reasonable inferences against the party whose motion is under consideration.” Hotel Employees & Rest. Employees Union, Local 100 of N.Y. v. City of N.Y. Dep't of Parks & Recreation, 311 F.3d 534, 543 (2d Cir.2002) (citation omitted). “[N]either side is barred from asserting that there are issues of fact, sufficient to prevent the entry of judgment, as a matter of law, against it ... [and] a district court is not required to grant judgment as a matter of law for one side or the other.” Heublein, Inc. v. United States, 996 F.2d 1455, 1461 (2d Cir.1993).
II. BACKGROUND1
On January 7, 2011, at approximately 7:50 P.M., the Schenectady Police Department's Special Investigation Unit (“SIU”) received a complaint that a black male had brandished a gun at a location on Paige Street. Hudson Dep. p. 23; Savignano Dep., pp. 34, 36. The SIU called in the complaint to the police department. Hudson Dep. p. 28; Savignano Dep., p. 37. The police dispatcher, in turn, instructed “all units” to respond, and indicated that the “perpetrator,” a black male with a gun, had jumped over a fence around 501–503 Paige Street and was headed towards Mumford Street. See In–Cruiser Video (“ICV”) recordings, Def. Ex. 1. Defendants Savignano and Hudson, both Schenectady police officers, were on duty in the City of Schenectady and responded by driving in their police cruiser to Mumford Street, arriving moments after they received the dispatch. Id.
At the time, it was dark out, it was snowing, the roadways were covered with snow, and there were very few people on the streets. Id., at 007KVY00. Driving down Mumford Street from Strong Street, the officers passed a man shoveling snow on the left side of the street. They asked if he had “just seen a black guy come through here,” and received a negative response. Id. Continuing down the street, the officers saw a lone individual (later identified as Plaintiff) walking on the right side of Mumford Street (the side closest to Paige Street) moving toward them and away from the corresponding address on Mumford Street where the suspect had allegedly jumped over the fence. Id. Savignano attests that when he first observed Plaintiff, he could tell he was either a black or Hispanic male because of his dark skin tone. Savignano Dep. 39. At that time, Plaintiff was not engaged in any illegal or suspicious behavior beyond the possibility that he was the individual who had brandished a gun on Paige Street. Although no weapon was observed, Savignano testified that he “couldn't see [Plaintiff's] hands.” DRPSOF ¶ 8.2
Hudson and Savignano decided to approach Plaintiff because he matched the dispatcher's description, was one of the few individuals on Mumford Street during the snow storm, was near where the incident allegedly occurred, and was walking away from where the suspect reportedly jumped over the fence to Mumford Street. The officers shined the vehicle's spotlight on Plaintiff, pulled their car to the side of the street adjacent to where Plaintiff was walking, and both officers exited the vehicle.3 The In–Cruiser Video/Audio recording indicates that, although out of sight of the video recording (which only displays events in front of the vehicle), Savignano4 can be heard stating: 5 Def. Ex. 1, 007KVY00. At this point Plaintiff began to flee from the police, apparently attempting to run down a driveway headed toward Paige Street. PSOF ¶¶ 12–15;6 PRDCSOF at ¶ 14. Both officers gave chase and, in a matter of moments, both officers and Plaintiff fell on ice. Hudson grabbed Plaintiff's foot but Plaintiff was able to get away. See PSOF ¶ 15 (). Plaintiff then turned back across Mumford Street and continued to flee with Hudson and Savignano in pursuit. The In–Cruiser Video recording depicts Plaintiff fleeing in front of the vehicle and running to the opposite side of Mumford Street with the officers in close pursuit. See Def. Ex. 1, 007KVY00 (starting) at 14:01:23. It is clear in the video recording that Plaintiff was running with his left hand held on or at his left hip near the waist band of his pants, and the next recorded statement, which occurs as the officers run past the camera, provides: “37.
In foot pursuit. On Mumford. Back yard. Grabbing his waistband. Going toward Summit.” Id.
Hudson and Savignano testified that Plaintiff's unprovoked flight and the fact that he was seen reaching for his waistband, as well as their experience in the field, heightened their suspicion that Plaintiff had been involved in the Paige Street incident and, therefore, could be armed. Savignano Dep., pg. 46; Hudson Dep., pg. 27. Hudson and Savignano pursued Plaintiff across Mumford Street and down a driveway of an adjacent residence. There, the officers lost track of Plaintiff and thought that Plaintiff had gone into a residence at 516 Mumford Street. Hudson went to the back of the residence looking for Plaintiff while Savignano went to the front. Savignano radioed for back-up and, when Hudson spotted Plaintiff running through the yards behind the residences on Mumford and Summit Streets, directed that a perimeter of officers be set around the area to aid in apprehending Plaintiff. PSOF at ¶ 15. Plaintiff continued to flee by running through the backyards and jumping over at least one chain-link fence. DCSOF ¶¶ 24, 27.7
Defendants claim that during the chase, Hudson instructed Plaintiff to stop running and to let the officers see his hands; Marcano denies that Hudson gave such an order. The officers further allege that during the chase Plaintiff kept reaching for his waistband, but Plaintiff alleges that he reached for his waistband only when he crossed Mumford Street. Compare DCSOF at ¶ 14; PRDCSOF at ¶ 14. During the chase, Savignano used his radio to communicate with other officers. Savignano communicated Plaintiff's direction of travel, his description, and an indication that Plaintiff was seen reaching for his waistband. DRPSOF ¶ 19.
Hudson chased Plaintiff through several backyards in an attempt to apprehend him, but Plaintiff jumped over a fence and escaped the immediate pursuit. Hudson cut his hand attempting to also jump over the chain-link fence, and the injury later required stitches to close a laceration. DCSOF ¶ 26.
Plaintiff was eventually found hiding beneath a tree under foliage in a vacant yard behind the chain link fence that he had jumped over. See Hudson Dep. pp. 31–35. Defendant Pardi first located Plaintiff, shined his flashlight at Plaintiff, drew his weapon, and said: Pardi Dep. at 30; PSOF at % 23; DRPSOF at ¶ 23. Pardi then took refuge behind a garage so as to ensure his safety if a gun battle ensured. Defendants contend that when Pardi found Plaintiff, Plaintiff was already bleeding from the head.
Hudson then caught up with Plaintiff, slid into him “baseball style,” “grabbed [Plaintiff's left] arm as soon as he could,” and “tried to attempt to control [Plaintiff] as best that [he could].” Hudson Dep. pp. 35–37. Hudson held Plaintiff against the tree in an effort to prevent him from escaping but, Defendants contend, Plaintiff struggled with Hudson and attempted to pull away. Officers Savignano, Donovan, Semione, Fennell, Ferris, Derkowski and Kent arrived and aided in Plaintiff's apprehension. Defendants contend that Plaintiff refused to comply with verbal commands issued by numerous officers to show them his hands and come out of the bushes, requiring his physical removal.
See Savignano Dep., p. 57. Defendants also contend that Plaintiff resisted having his hands cuffed. Hudson Dep. p. 40.
Plaintiff alleges that while Hudson held his arm, Derkowski and Pardi held their guns on him; Kent struck him several times in the...
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...and quotations omitted). A plaintiff cannot reassert a claim for an intentional tort as negligence. See Marcano v. City of Schenectady, 38 F. Supp. 3d 238, 265 n.23 (N.D.N.Y. 2014) (dismissing the plaintiff's negligence claim because the complaint "contain[ed] no allegations of negligent co......