West v. Harkness

• Decision Date: 21 September 2021
• Docket Number: 17-CV-0621 GTS/DJS)
• Parties: JESSE D. WEST, Plaintiff, v. JOHN HARKNESS, #0304, Police Officer; and JOHN HARRIMAN, #0463, Police Officer, Defendants.
• Court: U.S. District Court — Northern District of New York

JESSE D. WEST, Plaintiff, v. JOHN HARKNESS, #0304, Police Officer; and JOHN HARRIMAN, #0463, Police Officer, Defendants.

No. 17-CV-0621 GTS/DJS)

United States District Court, N.D. New York

September 21, 2021

OFFICE OF JARROD W. SMITH JARROD W. SMITH, ESQ. Counsel for Plaintiff

CITY OF SYRACUSE LAW DEPARTMENT PATRICK R. BLOOD, ESQ. TODD M LONG, ESQ. Counsel for Defendants

GOLDBERG SEGALLA SHANNON T. O'CONNOR, ESQ. ALEXANDER J BLOOD, ESQ. Co-Counsel for Defendants

DECISION AND ORDER

GLENN T. SUDDABY, Chief United States District Judge

Currently before the Court, in this civil rights action filed by Jesse D. West (“Plaintiff”) against City of Syracuse police officers John Harkness and John Harriman (“Defendants”), is Defendants' motion for summary judgment. (Dkt. No. 59.) For the reasons set forth below, Defendants' motion is denied.

I. RELEVANT BACKGROUND

A. Plaintiff's Amended Complaint

Generally, in his Amended Complaint, Plaintiff asserts a claim of “excessive force” and a claim of failure to protect in violation of the Fourth Amendment and 42 U.S.C. § 1983. (Dkt. No. 8 [Pl.'s Am. Compl.].) Specifically, Plaintiff alleges that, on February 24, 2017, while he was in a police vehicle, Defendants Harkness and Harriman, while conducting a search, pulled down his jeans and boxer briefs and one of them ran a hand between his buttocks, touching his “rectum” barehanded. (Id.) Plaintiff additionally alleges that Defendants failed to protect him from the alleged use of excessive force. (Id. at 5.)

B. Undisputed Material Facts on Defendants' Motion for Summary Judgment

Under N.D.N.Y. Local Rule 56.1, a party opposing summary judgment must file a response to the moving party's Statement of Material Facts that “shall mirror the movant's Statement of Material Facts by admitting and/or denying each of the movant's assertions in a short and concise statement, in matching numbered paragraphs, ” supported by “a specific citation to the record where the factual issue arises.” N.D.N.Y. L.R. 56.1(b). This requirement is not a mere formality; rather “this and other local rules governing summary judgment are essential tools intended to relieve the district court of the onerous task of hunting through voluminous records without guidance from the parties.” LaFever v. Clarke, 17-CV-1206, 2021 WL 921688, at *6 (N.D.N.Y. Mar. 11, 2021) (Hurd, J.) (quoting Frantti v. New York, 414 F.Supp.3d 257, 284 [N.D.N.Y. 2019] [Hurd, J.]). Indeed, “[a] proper response to a movant's statement of material facts streamlines the summary judgment analysis ‘by allocating responsibility for flagging genuine factual disputes on the participants ostensibly in the best position to do so: the litigants themselves.'” LaFever, 2021 WL 921688, at *7 (quoting Alke v. Adams, 16-CV-0845, 2018 WL 5297809, at *2 [N.D.N.Y. Oct. 25, 2018] [Hurd, J.]). “The Court may deem admitted any properly supported facts set forth in the Statement of Material Facts that the opposing party does not specifically controvert.” See L.R. 56.1(b).

In this case, Plaintiff failed to comply with the Local Rules in that his purported “response” to Defendants' Statement of Material Facts does not mirror Defendants' Statement of Material Facts and does not admit or deny the asserted facts in matching numbered paragraphs supported by specific citations in the record. Rather, Plaintiff's purported response is a mishmash of legal arguments and citations to various portions of his testimony at depositions and other evidence, without any reference to the specifically numbered facts asserted by Defendants. (Dkt. No. 122, Attach. 20.) Furthermore, although the Local Rules permit a respondent to “set forth any assertions that the opposing party contends are in dispute in a short and concise Statement of Additional Material Facts in Dispute, ” Plaintiff's statement here is also insufficient pursuant to those standards. Specifically, many of Plaintiff's “facts” are legal arguments with generic citations to exhibits (or no citation at all), while his specific citations to evidence from the deposition testimony are neither “short and concise” nor in “separately numbered paragraphs” as required. L.R. 56.1(b). Indeed, Plaintiff's “response” is nearly identical to his affidavit also submitted with his opposition to Defendants' motion. (Compare Dkt. No. 122 with Dkt. No. 122, Attach. 20.)

The Court has ensured that all of Defendants' asserted facts are supported by the record evidence cited in support of them. In addition, the Court has made a reasonable effort to ensure that Defendants' asserted facts do not conflict with other record evidence cited in support of contrary facts asserted by Plaintiff. However, the Court has not sua sponte scoured the considerable record^[1] for any and all evidence contradicting those asserted facts, nor does it have a duty to do so. See Prive v. Johnson, 04-CV-1024, 2010 WL 3338810, at *2 (N.D.N.Y. Aug. 23, 2010) (Suddaby, J.) (noting that, “[b]ased on the volume of record evidence presented in this case, and the fact that Plaintiff was represented by experienced counsel when he filed his response to Defendants' motion, the Court declines to scour the record for evidence of material questions of fact”); Amnesty Am. v. Town of W. Hartford, 288 F.3d 467, 470 (2d Cir.2002) (“We agree with those circuits that have held that Fed.R.Civ.P. 56 does not impose an obligation on a district court to perform an independent review of the record to find proof of a factual dispute.”); Monahan v. New York City Dep't of Corr., 214 F.3d 275, 291 (2d Cir.2000) (noting that the Local Rules require the parties “to clarify the elements of the substantive law which remain at issue because they turn on contested facts” and the Court “is not required to consider what the parties fail to point out”) (internal quotation marks and citations omitted).

Indeed, given the failure of Plaintiff (who is represented by counsel) to respond appropriately to Defendants' Statement of Material Facts, the Court may and does deem admitted any asserted facts that Defendants have supported with evidence that are not specifically controverted. See N.D.N.Y. L.R. 56.1(b); Bryant v. Whitmore, 14-CV-1042, 2016 WL 7188127, at *3 (N.D.N.Y. Nov. 4, 2016) (Dancks, M.J.) (“Where a party has failed to respond to the movant's statement of material facts in the manner required by L.R. [56.1], the facts in the movant's statement will be accepted as true (1) to the extent they are supported by evidence in the record, and (2) the nonmovant, if proceeding pro se, has been specifically advised of the possible consequences of failing to respond to the motion.”) report-recommendation adopted by 2016 WL 7187349 (N.D.N.Y. Dec. 9, 2016) (McAvoy, J.). As a result, unless otherwise noted, the following facts were asserted and supported with accurate record citations by Defendants in their Statement of Material Facts and deemed admitted by Plaintiff due to his failure to appropriately respond or cite evidentiary support sufficient to create a genuine dispute of material fact. (Compare Dkt. No. 117, Attach. 14 [Defs.' Rule 56.1 Statement] with Dkt. No. 122, Attach. 20.)^[2]

Events Prior to Plaintiff's Arrest

1. On February 23, 2017, Syracuse Police Department (“SPD”) Officer Cody Nellis responded to 217 Aberdeen Terrace in Syracuse, New York, regarding a verbal domestic incident. Upon arrival, Officer Nellis spoke to S.V., who reported that she has “a full stay away order” against Plaintiff, her ex-boyfriend.

2. S.V. explained that Plaintiff had been calling her continuously for the past 24 hours, and she showed Officer Nellis her cell phone, which showed more than 40 unanswered calls from a landline phone No. listed as 1313 Grant Boulevard in Syracuse, New York.

3. S.V. reported to Officer Nellis that Plaintiff had been physically violent with her in the past (with numerous physical altercations dating back several years) and that she finally had had enough of the abuse, so she had ended the relationship approximately a month before. S.V. additionally reported that, after she had left Plaintiff, he had started using drugs frequently and had become increasingly hostile towards her.

4. S.V. advised Officer Nellis that she had answered one of these phone calls from Plaintiff in an attempt to direct him to stop calling her. She reported that, during the call, Plaintiff had claimed that he had recently came into possession of a handgun from his cousin and that he was going to kill her, their child, and the police when they came for him, because he had “nothing else to live for” and was adamant about “going out with a bang.” S.V. expressed that she believed Plaintiff was “very unstable” and that his threats were sincere.

5. Officer Nellis obtained a sworn statement from S.V. regarding Plaintiff and her desire for prosecution against him.

6. Officer Nellis learned from S.V. that Plaintiff had been staying with family members at 1313 Grant Boulevard in Syracuse, New York, 7. After speaking with S.V., Officer Nellis prepared a warrant application for Plaintiff's arrest based on evidence that he had violated a protective order. As a part of this process, SPD issued notice to the Onondaga County 911 Center to flag any potential calls in connection with Plaintiff.

SPD's Response to Report of Suspicious Person with a Weapon

8. The following day, February 24, 2017, at or around 5:06 PM Officer Nellis and multiple other SPD units responded to 1313 Grant Boulevard regarding a call from S.V.

9. S.V had reported to 911 that Plaintiff was standing outside 1313 Grant Boulevard with a gun and threatening to shoot everyone. S.V. had also reported that Plaintiff was on “molly, ” had threatened to come “mess up her van, ” and that her friend had seen Plaintif...