West v. Harkness
| Decision Date | 16 November 2021 |
| Docket Number | 9:17-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 |
PARRY & SMITH Counsel for Plaintiff JARROD W. SMITH, ESQ.
CITY OF SYRACUSE LAW DEPARTMENT Counsel for Defendants PATRICK R BLOOD, ESQ.
GOLDBERG SEGALLA Co-Counsel for Defendants SHANNON T O'CONNOR, ESQ. ALEXANDER J. BLOOD, ESQ.
DECISION AND ORDER
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 reconsideration of the Court's Decision and Order of September 21 2021. (Dkt. No. 125.) For the reasons set forth below, Defendants' motion is denied.
Plaintiff's Amended Complaint alleges, in pertinent part, that, with the help of Defendant Harkness, Defendant Harriman (Dkt. No. 8, at Part IV.) Based on these factual allegations, the Amended Complaint asserts three claims: (1) a claim of “excessive force” in “violation [of] one or more of [his] constitutional rights”; (2) a claim of “failure to protect” Plaintiff from the use of that excessive force in “violation [of] one or more of [his] constitutional rights”; and (3) a claim of “sexual assault.” (Dkt. No. 8, at Part V.)
In an affidavit regarding a Report-Recommendation by U.S. Magistrate Judge Daniel J. Stewart (which recommended the denial of Defendants' motion to dismiss these three claims for failure to state a claim), Plaintiff stated, “[Although] U.S. Magistrate Judge Daniel J. Stewart . . . recommends that . . . Plaintiff's Fourth Amendment claim of sexual assault be permitted to proceed . . . [, ] I'm not seeking to file charges against . . . [Defendants] for sexual assault and related charges ....” (Dkt. No. 40, at 2.)
In its Decision and Order of August 7, 2018, adopting Magistrate Judge Stewart's Report-Recommendation, the Court liberally construed this affidavit as “either (1) a belated Objection to that portion of the Report-Recommendation recommending that Plaintiff's Fourth Amendment sexual assault claim be permitted to proceed . . ., or (2) a request to voluntarily discontinue his Fourth Amendment sexual assault claim pursuant to Fed.R.Civ.P. 41(a)(2).”
(Dkt. No. 41, at 2-3.) Then the Court explained that, “[r]egardless of the construction, the result would be the same: the Court finds that cause has been shown for the dismissal of Plaintiff's Fourth Amendment sexual assault claim.” (Id. at 3.) As a result, surviving the Court's Decision and Order of August 7, 2018, were two claims: (1) a claim of excessive force in violation of the Fourth Amendment; and (2) a claim of failure to protect in violation of the Fourth Amendment. (Id.)
In its Decision and Order of September 21, 2021 (denying Defendants' motion for summary judgment), the Court “observ[ed] that, although Plaintiff has articulated his [first] claim as one for ‘excessive force' in his Amended Complaint, the factual allegations supporting that claim do not regard a use of force, but rather are more appropriately characterized as supporting a claim for an unreasonable search.” (Dkt. No. 124, at 22.)
In their motion for reconsideration, Defendants assert four arguments. First, Defendants argue, the Court has committed a clear error of law by sua sponte reframing Plaintiff's claim for excessive force as one for an unreasonable search, because that reframing violated the law-of-the-case doctrine given that, in its Decision and Order of September 21, 2021, the Court had dismissed with prejudice Plaintiff's claim for sexual assault, which Magistrate Judge Stewart had previously found (on pages 9, 11 and 12 of his ReportRecommendation of May 29, 2018) arose from an alleged unreasonable search (as such claims can do under the law). (Id. at 4-6.)
Second, the Court has committed a clear error of law by sua sponte reframing Plaintiff's claim for excessive force as one for an unreasonable search, because its belatedness has substantially prejudiced Defendants, who conducted discovery only on a claim for excessive force (the governing elements of which involve consideration of “the severity of the crime at issue, ” “whether the arrestee poses an immediate threat to the officer or passerby, ” and “whether the arrestee is actively resisting arrest or attempting to evade arrest by flight”), which differs from a claim for an unreasonable search (the governing elements of which involve consideration of “the scope of the particular intrusion, the manner in which it is concluded, the justification for initiating, and the place in which it is conduct”). (Id. at 7-11.)
Third, Defendants argue, the Court has committed a clear error of law by sua sponte reframing Plaintiff's claim for excessive force as one for an unreasonable search, because a plaintiff's pro se pleading is no longer entitled to extra-liberal construction after that plaintiff becomes represented by counsel. (Id. at 11-14.)
Fourth, Defendants argue, the Court has committed a clear error of law by neglecting to rule on Defendants' second argument in their reply memorandum of law, which was based on Plaintiff's failure to respond to (and thus his effective concession to) Defendants' substantive arguments regarding his claims. (Id. at 11; see also Dkt. No. 124, at 17 [].)
Because the parties have demonstrated in their memoranda of law an adequate understanding of the governing legal standard, the Court will not repeat it in this Decision and Order, which is intended primarily for the review of the parties. (Dkt. No. 125, Attach. 1. at 3-4; Dkt. No. 131, at 1.)
The Court begins by acknowledging that the claim at issue in Defendants' motion (i.e., the “First Claim” listed in Dkt. No. 8, at 5) has been extra-liberally construed in two different ways by the Court, first as an “excessive force” claim (Dkt. No. 12, at 3-4; Dkt. No. 39, at 8-9; Dkt. No. 41, at 2-3) and then as an “unreasonable search” claim (Dkt. No. 124, at 21-24 & n.19). While the Court certainly regrets this inconsistency, it observes that the inconsistency stems partly from the fact that the incident complained of involved an (allegedly) invasive search by Defendants through the use of force, the fact that Plaintiff was proceeding pro se when he filed the claim, and the fact that the duty to extra-liberally construe a pro se plaintiff's complaint (like the duty to liberally construe any complaint) falls not only on the Court but, as a practical matter, on a defendant.[1] This last fact is true because, if defense counsel fails to extra liberally construe a pro se plaintiff's complaint, the Court must do so;[2] furthermore, if the Court discerns an additional or different claim, the defendant has not filed a dispositive motion that seeks the disposition of the pro se plaintiff's complaint in its entirety.[3] Defense counsel is respectfully advised to remember this fact the next time they endeavor to construe a pro se pleading in preparation for a dispositive motion (as the Court will do in deciding it).
Turning to the four arguments asserted by Defendants on their motion for reconsideration, for ease of analysis, the Court will address those arguments out of order.
The Court answers this question in the negative. In their underlying memorandum of law-in chief, Defendants argued, in pertinent part, that they are entitled to judgment as a matter of law on Plaintiff's excessive-force claim, because of the undisputed record evidence establishing that the force used was reasonable based on (a) the severity of the crime at issue, (b) the fact that Plaintiff had resisted arrest before the search, (c) the fact that Plaintiff had repeatedly pressed his body against the wall of the van and reached toward his waistband, a place where it is common for individuals to carry or conceal weapons, and (d) the fact that Plaintiff suffered only a de minimis injury. (Dkt. No. 117, Attach. 15, at 8-17.)
In his underlying opposition memorandum of law, Plaintiff responded by arguing that the amount of force used was both significant and unnecessary, because Defendants admittedly stripped Plaintiff to his pants and underwear in violation of their own use-of-force policy's directives regarding “the proper execution of a search incident to a lawful arrest.” (Dkt. No. 122, Attach. 19, at 6-7.)
In other words, Plaintiff responded by relying on “Graham factors”[4] other than those relied on by Defendants. In its Decision and Order of September 21, 2019, the Court implicitly found Defendants' argument (that Plaintiff had so completely failed to respond to their arguments as to effectively concede the merits of those arguments) to be so without merit as to not warrant discussion. Simply stated, the Court had (and still has) trouble construing Plaintiff's reliance on some of the relevant Graham factors as a concession to Defendants' reliance on other of the relevant Graham factors.
In any event, even if the Court were so construe Plaintiff's response, the Court would (and does) find that Defendants...
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