Taylor v. City of Rochester

• Decision Date: 06 May 2020
• Docket Number: 16-CV-6606L
• Parties: Phillip TAYLOR, Plaintiff, v. CITY OF ROCHESTER, Rochester Police Department, Rochester Police Department Officer Rizzo, and Rochester Police Department John Doe(s), Defendants.
• Court: U.S. District Court — Western District of New York

458 F.Supp.3d 133

Phillip TAYLOR, Plaintiff,

v.CITY OF ROCHESTER, Rochester Police Department, Rochester Police Department Officer Rizzo, and Rochester Police Department John Doe(s), Defendants.

16-CV-6606L

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

Signed May 6, 2020

Alexander Norman Serles, Alex Serles Law, Michael Jos. Witmer, Rochester, NY, for Plaintiff.

Christopher Noone, City of Rochester Law Department, Rochester, NY, for Defendants.

DECISION AND ORDER

DAVID G. LARIMER, United States District Judge

Plaintiff Phillip Taylor ("plaintiff") brings this action against the City of Rochester, the Rochester Police Department, and two officers who placed him under arrest on June 1, 2015: named defendant Officer Daniel Rizzo ("Rizzo"), and Officer Spenser McAvoy ("McAvoy"), who was originally described in the complaint as a "John Doe" police officer, but has been identified by defendants as the second arresting officer. Plaintiff alleges that the defendants subjected him to excessive force in violation of the United States Constitution and New York State Constitution, assault, battery, and intentional infliction of emotional distress, and seeks compensatory and punitive damages. (Dkt. #1-2).

Defendants now move for summary judgment dismissing the complaint (Dkt. #15), and plaintiff has cross moved (Dkt. #19) to stay consideration of the motion for summary judgment, and to compel additional discovery. For the reasons that follow, plaintiff's motion to stay and for additional discovery is denied, and defendants' motion for summary judgment is granted in part, and denied in part.

FACTUAL BACKGROUND

On June 1, 2015, plaintiff, who was being sought by the Rochester Police Department on two outstanding warrants, was under surveillance by City of Rochester Police Investigator Jeffrey McEntee ("McEntee"). After McEntee recognized plaintiff on a blue light camera located in the City of Rochester engaging in what McEntee believed to be an illegal drug transaction, defendants Officer Rizzo and Officer McAvoy were dispatched to the location with instructions to arrest plaintiff.

When the defendant officers arrived to the designated location, in uniform and driving marked police cars, they witnessed the plaintiff leaving a nearby market. Officer McAvoy stated that he exited his car and commanded plaintiff to come to him, as he was under arrest.

Plaintiff fled on foot, pursued by Officers Rizzo and McAvoy. Officer Rizzo broke off the chase at some point, returned to his vehicle and followed Officer McAvoy's radioed instructions concerning the direction plaintiff was headed. Ultimately, the defendants converged and reached plaintiff. The defendants allege that this occurred after plaintiff attempted to leap over a fence along the front yard of 128 Weld Street, failed to clear the fence completely, and landed face-down on the sidewalk.

According to defendants, plaintiff resisted arrest and physically fought all attempts by the defendant officers to take him into custody. During a struggle on the ground, plaintiff attempted to bring his hand, which was holding pills, to his mouth. When Officer Rizzo tried to cover plaintiff's mouth to prevent him from ingesting the pills, plaintiff bit down on Officer Rizzo's finger. The defendant officers testified that they struck plaintiff on the face and head in order to get him to release Officer Rizzo's finger.

Two other officers arrived on the scene, and plaintiff was handcuffed and taken into custody. Plaintiff, Officer Rizzo and Officer McAvoy were transported to Rochester General Hospital, where plaintiff was treated for superficial abrasions to his nose, forehead and chin, a chipped tooth, and a laceration to his lip. Officer Rizzo was treated for bruising to his finger, and Office McAvoy was found to have a broken bone in his hand.

On June 3, 2015, plaintiff was interviewed by a parole supervisor, and admitted to having been high on "Molly" (MDMA) at the time of his arrest.

DISCUSSION

I. Plaintiff's Cross Motion To Stay the Motion For Summary Judgment, and For Additional Discovery

Plaintiff has not substantively opposed the pending motion for summary judgment. He has offered no counterstatement of facts, submitted no evidence in opposition, and made no attempt to identify any material questions of fact that would preclude summary judgment.

Instead, plaintiff has cross moved to stay the Court's consideration of the instant motion and to gain additional discovery, arguing that a grant of summary judgment would be premature, and that defendants' failure to respond to plaintiff's requests for document discovery has utterly deprived plaintiff of the ability to "present[ ] facts essential to justify opposition [to] Defendants' motion" for summary judgment. (Dkt. #19-1 at ¶14).

The document requests plaintiff claims were ignored by defendants were served on February 18, 2018, and defendants served their Rule 26 disclosures on plaintiff on November 9, 2018. Pursuant to a subsequent, amended Scheduling Order, the final discovery deadline expired on March 22, 2019, and motions to compel discovery were to be made no later than 30 days prior to that date (i.e., on or before February 20, 2019). (Dkt. #12). Plaintiff never objected to the discovery responses (or lack thereof) produced by defendants, and never moved to compel any additional discovery, either before or after expiration of the deadline to do so.

While Fed. R. Civ. Proc. 56(d) permits a party to oppose summary judgment by submission of an affidavit explaining why additional discovery is needed to mount a response, that opposition must be accompanied by a detailed affidavit or declaration which explains: (1) what facts are sought and how they are to be obtained; (2) how those facts are reasonably expected to create a genuine issue of material fact; (3) what effort the affiant has made to obtain them; and (4) why the affiant was unsuccessful in those efforts. See Alphonse Hotel Corp. v. Tran , 828 F.3d 146, 151 (2d Cir. 2016) ; Paddington Partners v. Bouchard , 34 F.3d 1132, 1138 (2d Cir. 1994). Furthermore, "[w]here the applicant has been dilatory in pursuing discovery, its request is ‘disfavored.’ " Wright v. Eastman Kodak Co. , 328 Fed. Appx. 738, 739 (2d Cir. 2009).

The affidavit of plaintiff's counsel fails to satisfy the requisite elements. It provides a brief summary of the chronology of discovery in the case, but provides no explanation as to why plaintiff did not engage in any further attempts to gain discovery from defendants after serving his initial demands. It does not set forth any facts that plaintiff seeks to uncover, identifies no deficiencies or evidentiary gaps in the defendants' disclosures (which defendants represent as having already included "all of the relevant and discoverable information [defendants] possessed"), and does not explain how further discovery could possibly be expected to create a genuine issue of material fact. The evidence in plaintiff's possession (and submitted by defendants in support of their motion for summary judgment) included all of plaintiff's relevant medical records, use of force reports, incident reports with statements by the arresting officers and Investigator McEntee, criminal history reports, sworn declarations by the defendant officers, parole revocation records, and portions of the transcript of plaintiff's deposition. Plaintiff has provided no explanation as to how, in light of all the evidence at his disposal, he was unable to muster any defense to the pending motion for summary judgment without additional document discovery.

Indeed, it appears from the face of plaintiff's outstanding discovery demand that the bulk of plaintiff's requests for document production (including 9-1-1 call logs, ballistics reports, accident reports, seized vehicle reports, command logs, polygraph reports, skin and hair test results, etc.) sought documents that don't exist. Other requests ask for information concerning claims (such as municipal liability) which the complaint did not even allege, or refer to demands mistakenly directed to the New York City Police Department. In short, the outstanding portions of the discovery request amount to little more than a "fishing expedition," the factual goals of which plaintiff has made no attempt to specify. As such, it cannot furnish an appropriate basis on which to make a Rule 56(d) motion.

Plaintiff's cross motion seeking a stay of the defendants' motion for summary judgment, and/or additional discovery, is therefore denied.

II. Defendants' Motion for Summary Judgment

Because plaintiff has not substantively opposed the defendants' motion for summary judgment, the facts set forth by defendants in their Statement of Undisputed Facts are deemed admitted, to the extent that they are supported by evidence in admissible form and not otherwise contradicted by other admissible evidence in the record. See generally Jackson v. Monin , 2016 U.S. Dist. LEXIS 32703 at *7 (W.D.N.Y. 2016).

Nonetheless, the plaintiff's failure to oppose a motion for summary judgment, standing alone, does not merit the granting of the motion, and the Court "must still assess whether the moving party has fulfilled its burden of demonstrating that there is no genuine issue of material fact." Vermont Teddy Bear Co. v. 1-800 BEARGRAM Co. , 373 F.3d 241, 244 (2d Cir. 2004). Moreover, where, as here, the plaintiff has filed a Verified Complaint, the "verified complaint is to be treated as an affidavit ... and [may] be considered in determining whether material issues of fact exist[.]" Colon v. Coughlin , 58 F.3d 865, 872 (2d Cir. 1995) (citations omitted). As such, the Court will consider the Verified Complaint as an affidavit to the extent that the statements it contains are based on plaintiff's personal knowledge and/or are supported by the record. See Jamison v. Metz , 541 Fed. Appx. 15, 18-19 (2d Cir. 2013) ; Young v. Polizzi , 2018 U.S. Dist. LEXIS 116280 at *2-*3 (N.D.N.Y. 2018).

A. Relevant Standard

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