Mroz v. City of Tonawanda

• Decision Date: 31 March 1998
• Docket Number: No. 96-CV-403C(F).,96-CV-403C(F).
• Citation: 999 F.Supp. 436
• Parties: Gisele MROZ, Individually and as Administratrix of the Estate of Phil A. Santos, an infant, Plaintiff, v. CITY OF TONAWANDA, Unknown Agents, or employees of Defendant City of Tonawanda, Defendants.
• Court: U.S. District Court — Western District of New York

999 F.Supp. 436

Gisele MROZ, Individually and as Administratrix of the Estate of Phil A. Santos, an infant, Plaintiff, v. CITY OF TONAWANDA, Unknown Agents, or employees of Defendant City of Tonawanda, Defendants.

No. 96-CV-403C(F).

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

March 31, 1998.

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Tronolone & Surgalla (Daniel G. Tronolone, John B. Surgalla, of counsel), Buffalo, NY, for Plaintiff.

Harris, Beach & Wilcox (Charles E. Graney, of counsel), Hamburg, NY, for Defendants.

DECISION and ORDER

FOSCHIO, United States Magistrate Judge.

JURISDICTION

A consent to proceed before a magistrate judge, pursuant to 28 U.S.C. § 636(c), was filed on February 11, 1997. The matter is presently before the court on Plaintiffs motion for leave to file a second amended complaint (Doc. # 7) filed January 31, 1997; Defendants' cross-motions for summary judgment and dismissal of the complaint or to compel discovery (Doc. # 10) filed February 28, 1997; Plaintiff's cross-motion for partial summary judgment (Doc. # 23) filed April 30, 1997; Plaintiffs motion to amend the scheduling order (Doc. # 28) filed June 4, 1997; Plaintiff's motion to compel and extend the period within which to identify experts (Doc. # 30) filed July 31, 1997; Plaintiff's motion to amend the scheduling order (Doc. # 34) filed September 30, 1997; and Defendants' motion for summary judgment (Doc. # 36) filed November 14, 1997.

BACKGROUND

On February 5, 1994, Phil A. Santos ("Santos"), 16, killed himself with a single blast from a shotgun following an encounter with the City of Tonawanda Police Department. Plaintiff, Gisele Mroz ("Mroz"), Santos's mother, was appointed administratrix of her son's estate on January 30, 1996. Thereafter, on February 2, 1996, Plaintiff filed in New York Supreme Court a summons and complaint on behalf of herself and her deceased son's estate.¹ The complaint alleged a claim for common law negligence and claims for violations of Santos's civil rights under 19 U.S.C. §§ 1983 and 1988, specifically the First, Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments based on Defendants' arrest of Santos on February 5, 1994, and their failure to properly respond to a telephone call asserting Santos had threatened suicide. On February 2, 1996, Plaintiff served a notice of claim upon Defendant City of Tonawanda ("City" or "City of Tonawanda") as required by state law. (Affidavit of Proof of Service, Exhibit C to Plaintiff's Attorney Affidavit). However, neither the summons nor the complaint were ever served upon Defendants.

Thereafter, on May 31, 1996, Mroz filed and served an amended complaint in which Defendants were charged with wrongful death, negligence and various intentional torts based on state law. Plaintiff also reasserted the § 1983 claims. All of Plaintiffs claims arise out of the encounter between Santos and the Defendant City of Tonawanda's police officers. Defendants removed the case, pursuant to 28 U.S.C. § 1441, by petition filed June 19, 1997. In their answer, filed the same date, Defendants asserted several defenses, including the statute of limitations.

FACTS²

To borrow the words of Chief Justice Rehnquist, "[t]he facts of this case are undeniably tragic."³ On the evening of Saturday, February 5, 1994, Plaintiff gave Santos permission to go to a local roller skating rink with his friend José Ortiz and another boy. As Plaintiff had planned to attend a movie, she expected Santos to be home by 11:00 P.M. According to Plaintiff, Santos was well behaved with no history of emotional or mental problems. Affidavit of Plaintiff Gisele Mroz in Opposition to Defendants' Cross Motions ("Mroz Affidavit"), Attached to Plaintiff's Attorney's Affidavit in Opposition to Defendants' Cross Motions (Doc. # 18), filed March 27, 1997, ¶¶ 7, 9, 10.

Later that evening, the Defendant's police department received a telephone call from Gary Kasprzak, a resident of the City of Tonawanda, who lived at 471 Broad Street. Exhibit D to Defendants' Statement of Undisputed Facts, filed February 28, 1997 (Doc. # 12) ("Police Report").⁴ The information received from Kasprzak was that a young woman had just come to his house complaining that she had been confronted by "a black or hispanic male" wearing a long brown coat and hat who brandished a hand gun. Police Report. The caller also stated that the male was last seen walking on Wheeler Street toward Fletcher Street. Police Report.

Lieutenant Daniel Thiebolt the police officer who responded to the call, stated that, according to the report, the woman who made the complaint to Kasprzak was "extremely frightened." Affidavit of Daniel M. Thiebolt ("Thiebolt") ("Thiebolt Affidavit"), Exhibit C to Defendants' Statement of Undisputed Facts (Doc. # 12), ¶ 3. On the way to investigate the incident as described in Kasprzak's call, Thiebolt met Kasprzak who told Thiebolt he had seen two young Hispanic males near Fletcher and Bouck Streets fitting the description given by the woman. Thiebolt Affidavit, ¶ 3. Thiebolt intercepted the boys, exited his car, and questioned them regarding the complaint. Thiebolt Affidavit, ¶ 6; Police Report. Upon determining that one of the boys matched the description given by Kasprzak, Thiebolt then "checked" the boys and seized what later proved to be a starter pistol from Santos, the boy who matched the description, who had immediately admitted to Thiebolt that he had the pistol. Police Report; Thiebolt Affidavit, ¶ 7. Upon deciding that there was reason to "detain" Santos on state harassment and menacing charges, Santos was handcuffed and transported to police headquarters.⁵ Thiebolt Affidavit, ¶¶ 8, 9, 11. However, as the woman who had sought Kasprzak's assistance was unwilling to sign a formal complaint, no charges were filed against Santos. Thiebolt Affidavit, ¶ 15.

During his contact with Santos on Fletcher Street and while at the police station, Thiebolt observed that Santos was polite and courteous, and exhibited no signs of emotion. Deposition Testimony of Daniel Thiebolt, ("Thiebolt Deposition") Exhibit D to Defendants' Motion for Summary Judgment (Doc. # 36), filed November 14, 1997, at 27. According to Thiebolt, Santos's respectful conduct during the investigation made it unnecessary to apply any physical force to Santos. Id.; Thiebolt affidavit at 3, ¶ 14.

Upon their arrival at the City of Tonawanda police headquarters, Santos and Ortiz were placed in a booking room where they were administered Miranda warnings and advised to call their parents.⁶ Thiebolt Affidavit at 27, 37. According to police officer Reiss, who assisted Thiebolt in the investigation, neither boy was able to reach his parents. Deposition of Peter J. Reiss ("Reiss Deposition"), Exhibit E to Defendants' Motion for Summary Judgment (Doc. # 36), filed November 14, 1997, at 13. Reiss recalled that Santos displayed no emotion and thought Santos would have been "more nervous than he was" considering the problem for which he was being investigated. Reiss Deposition at 18. After it was determined that Santos would not be charged, he and Ortiz were told by Thiebolt that they were free to go. Thiebolt Deposition at 32. According to Thiebolt, Ortiz immediately left the building and, after "everything was explained" to Santos, he was offered a ride home. Id. at 32-33.

In support of her claims, Plaintiff relies on a statement made by Ortiz on July 31, 1995 in which Ortiz describes the events by which he and Santos were taken into police custody on February 5, 1994, the event which Plaintiff maintains precipitated Santos's suicide. Statement of José Ortiz ("Ortiz Statement"), Exhibit F to Plaintiff's Attorney Affidavit in Opposition to Defendants' Cross Motions (Doc. # 18), filed March 27, 1997.⁷ According to Ortiz, the police officer who arrested Ortiz and Santos placed them against the patrol car and threatened to shoot them if they did not keep their heads down. (Ortiz Statement at 3-4). Ortiz also stated that the officer slammed Santos's head into the hood of the patrol vehicle when Santos attempted to apologize for threatening the woman with the toy gun. (Ortiz Statement, at 12-13, 23, 24, 45). Ortiz further stated that Santos was extremely upset with the incident and was nervous, shaking and crying in the back of the patrol car while en route to the Tonawanda police headquarters where, after his arrival, Santos continued to cry. (Ortiz Statement, at 8, 13, 21, 34). According to Ortiz, Santos began to cry after the police slammed Santos's face against the patrol car and continued to cry when the police told them they would be going to jail. (R. 42). Ortiz indicated that Santos believed he was going to jail and that his parents would be very upset with him, (Ortiz Statement at 8-10), and that Santos stated he was going to kill himself. (Ortiz Statement, at 19, 38, 43). According to Ortiz, Santos's emotional state was evident to the police officers. (Ortiz Statement, at 13). Ortiz also stated that the police officers told them that he and Santos would be going to jail if found guilty. (Ortiz Statement, at 36, 41). When Ortiz last saw Santos before being released from the police station, Santos was still crying and shaking. (Ortiz Statement, at 34). Ortiz believed the police officers did not like him or Santos and treated them badly because Ortiz and Santos were Hispanic. (R. 39-40, 44-45).

Lieutenant Boldt, the shift lieutenant, then drove Santos to his home at 205 Wheeler Street. Deposition of Herbert F. Boldt ("Boldt Deposition"), Exhibit B to Defendants' Motion for Summary Judgment (Doc. # 36), filed November 14, 1997, at 33. Upon escorting Santos to the door of the house, Boldt told Santos he should stay in the house and tell his stepfather what "he got into" and that his stepfather could "probably expect a call from the police." Id. at 10.⁸ At that point,...