McClendon v. Cnty. of Nassau, 11-CV-0190 (SJF)(ETB)
| Decision Date | 11 October 2012 |
| Docket Number | 11-CV-0190 (SJF)(ETB) |
| Parties | JAMES MCCLENDON, Plaintiff, v. COUNTY OF NASSAU, LAWRENCE MULVEY, Police Commissioner of Nassau County Police Department, RICHARD SOTO, Police Sergeant, JAMES TOBIN, Police Officer, RAYMOND BUTT AC AROLI, Police Officer, JOHN ADERSON, Police Officer, BRANDON HILLMAN, Police Officer, LAURA SVENTORAITIS, Police Officer and KEITH FAIVR, Police Officer, in their official and individual capacities, Defendants. |
| Court | U.S. District Court — Eastern District of New York |
On January 7, 2011, incarcerated pro se plaintiff James McClendon ("plaintiff") commenced this action pursuant to 42 U.S.C. § 1983 against defendants Nassau County (the "County"), Nassau County Police Department 1st Precinct (the "Precinct"), and unidentified Nassau County police officers, alleging that the officers violated his civil rights while placing him under arrest in December 2009. [Docket Entry No. 1]. On May 11, 2011, the Court dismissed the complaint sua sponte with prejudice as against the Precinct and without prejudice as against the County with leave to amend. [Docket Entry No. 7]. On July 27, 2011, plaintiff filed an amended complaint against the County, Lawrence Mulvey, Police Commissioner of Nassau County, Richard Soto, Police Sergeant, and several named police officers (collectively, "defendants")- [Docket Entry No. 28]. On August 2, 2011, defendants moved to dismiss theamended complaint based upon plaintiff's failure to comply with Federal Rule of Civil Procedure 4(m) or, in the alternative, to stay the case pending resolution of a parallel action plaintiff filed in state court. [Docket Entry Nos. 29-31], By order dated November 2, 2011, the Court denied both motions. [Docket No. 39].
Defendants now move for summary judgment pursuant to Federal Rule of Civil Procedure 56. [Docket Entry No. 70]. For the reasons that follow, the motion is GRANTED IN PART and DENIED IN PART.
Plaintiff asserts: a claim pursuant to 42 U.S.C. § 1983 alleging that officers used excessive and unreasonable force in the course of plaintiff's arrest in violation of his rights under the Fourth Amendment;1 common law assault and battery claims under New York law; a claim pursuant to 42 U.S.C. § 1983 alleging that the officers were deliberately indifferent to his serious medical needs in violation of his rights under the Fourteenth Amendment;2 and a claim pursuantto Monell v. Dep't of Soc. Servs., 436 U.S. 658 (1978), against the County based upon its alleged endorsement of racially discriminatory policies and its alleged deliberate indifference to violations of plaintiff's constitutional rights.3
"Summary judgment must be granted where the pleadings, the discovery and disclosure materials on file, and any affidavits show 'that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law."' Brown v. Eli Lilly & Co., 654 F.3d 347, 358 (2d Cir. 2011) (quoting Fed. R. Civ. P. 56(a)). "In ruling on a summary judgment motion, the district court must resolve all ambiguities, and credit all factual inferences that could rationally be drawn, in favor of the party opposing summary judgment and determine whether there is a genuine dispute as to a material fact, raising an issue for trial." McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 202 (2d Cir. 2007) (internal quotations and citations omitted). "A fact is material when it might affect the outcome of the suit under governing law." Id. An issue of fact is genuine only if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby. Inc, 477 U.S. 242, 248 (1986). The moving party bears the initial burden of establishing the absence of any genuine issue of material fact, after which the burden shifts to the nonmoving party to establish the existence of a factual question that must be resolved at trial. See Koch v. Town of Brattleboro. Vt., 287 F.3d 162,165 (2d Cir. 2002) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)).
"In order to defeat a motion for summary judgment supported by proof of facts that wouldentitle the movant to judgment as a matter of law, the nonmoving party is required under Rule 56(e) to set forth specific facts showing that there is a genuine issue of material fact to be tried." Ying Jing Gan v. City of N.Y., 996 F.2d 522, 532 (2d Cir. 1993) (citations omitted). The nonmoving party "may not rely simply on conclusory statements or on contentions that the affidavits supporting the motion are not credible, or upon the mere allegations or denials of the [nonmoving] party's pleading." Id. (internal quotation marks and citations omitted).
Rule 56.1 of the Local Civil Rules of the United States District Courts for the Southern and Eastern Districts of New York ("Local Rule 56.1") requires a party moving for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure to submit a "separate, short and concise statement, in numbered paragraphs, of the material facts as to which the moving party contends there is no genuine issue to be tried." Local Rule 56.1(a). In response to a motion for summary judgment, non-movants must respond to each purportedly undisputed fact and cite to supporting admissible evidence in the record. Local Rule 56.1(b), (d); Fed. R. Civ. P. 56(c). The movant's asserted facts are deemed to be admitted unless specifically controverted by a correspondingly numbered paragraph in the statement required to be served by the opposing party. Local Rule. 56.1(c). Pro se litigants are "not excused from meeting the requirements of Local Rule 56.1." Wall v. One Source Co., 678 F. Supp.2d 170, 178 (S.D.N.Y. 2009).
Plaintiff has failed to submit a proper response to defendants' Rule 56.1 Statement. Plaintiff's response, while sworn, contains no factual allegations supported by admissible evidence in the record to refute defendants' version of purportedly undisputed facts. Nonetheless, the Court retains discretion "to consider the substance of the plaintiff's arguments,"even when the plaintiff fails to comply with Local Rule 56.1. Wali, 679 F. Supp.2d at 178; see also Holtz v. Rockefeller & Co. Inc., 258 F.3d 62, 73 (2d Cir. 2001) (); Haves v. County of Sullivan, Nos. 07-CV-7667, 09-CV-2071,2012 WL 1129373,at *1 n.l (S.D.N.Y. March 30, 2012)("In light of Plaintiff s pro se status, the Court overlooks his failure to file a Local Rule 56.1 Statement and conducts its own independent review of the record."). Therefore, the Court will consider the sworn statements made by plaintiff in his deposition.
On December 5, 2009 between 10:00 p.m. and 10:50 p.m., plaintiff walked from his home to a nearby "deli" where he remained for approximately thirty (30) minutes, during which time he played pool and drank two (2) beers. County Defendants' Statement of Material Facts Pursuant to Rule 56.1 [Docket Entry No. 70-1] ("Def. 56.1 St.") at ¶¶ 15, 18; Defendants' Motion for Summary Judgment ("Mot.") Ex. F, Deposition of James McClendon dated March 22, 2012 [Docket Entry No. 70-12] ("Pl. Dep.") at 18:24-19:10. Plaintiff then exited the deli and stood near the front door to smoke a cigarette. Def. 56.1 St. at ¶ 19. Plaintiff was wearing dark pants and a blue hooded sweatshirt. Id. at ¶ 16.
At approximately 11:16 p.m., an anonymous complainant called 911 to report that she saw a tall black male wearing a blue sweater display a gun to people in the deli. Id. at ¶ 23; Mot. Ex. F, Nassau County Police Dep't I/Dispatcher Event Information [Docket Entry No. 70-9]. Police Officer Laura Sventoraitis responded to the call and saw plaintiff standing in front of the deli. Def. 56.1 St. at ¶¶ 22-24.
The details of the interaction between plaintiff and Officer Sventoraitis are disputed. Defendants claim that "[i]nitially, Officer Sventoraitis peacefully and from an appropriate distance from Plaintiff began asking him questions." Id. at ¶ 27. Plaintiff did not answer the questions and instead attempted to walk away. Id. at ¶ 28. Plaintiff refused to respond to Officer Sventoraitis's commands. Id. at ¶ 29. During this exchange, Officer Sventoraitis noticed a large bulge in plaintiff's right-front pant pocket. Id at If 30. Plaintiff ignored Officer Sventoraitis's instructions to stand still and show his hands and instead tried to walk away. Id. at ¶ 32. Another police officer then "came from behind and blocked Plaintiff from leaving." Id. at ¶ 33. Plaintiff then prevented the officers from conducting a pat down, and Officer Sventoraitis arrested plaintiff with the assistance of other officers at the scene. Id. at ¶¶ 34-35. "During the arrest, Plaintiff displayed resistance to arrest, which threatened the Officer's safety and required for more Officers to assist with his arrest." Id. at 36. During a search of plaintiff incident to the arrest, officers discovered a loaded handgun and several bullets. Id. at ¶¶ 37-38.
Plaintiff's account of his interaction with the arresting officers is drawn from his deposition testimony:
I went outside to smoke a cigarette ... and, then, the next thing you know, you see an officer walking up and she looked around. She walked off. I finished smoking and was getting ready to go back in the store, the officer walks back. She grabs me by the arm, two more officers pull up in the car to get out the car, the officer the middle officer grabs me and, then, the officer grabs me and throws me to the floor.
Pl. Dep. at 19:18-20:05. Plaintiff insists in his testimony that he and the officers did not exchange words at any time during the incident. Id. at...
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