Passino v. The City of Plattsburgh

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

BRYCE PASSINO,

Plaintiff,

v. 8:17-CV-1028

(FJS/DJS)

THE CITY OF PLATTSBURGH,

RICHARD TUCKER, ADAM WOOD,

and NATHAN KASPRZAK,

Defendants.

APPEARANCES OF COUNSEL

LUIBRAND LAW FIRM, PLLC KEVIN A. LUIBRAND, ESQ.

950 New Loudon Road

Latham, New York 12110

Attorneys for Plaintiff

FITZGERALD MORRIS BAKER FIRTH, P.C. JOHN D. ASPLAND, ESQ.

16 Pearl Street MICHAEL BRANDI, ESQ.

P.O. Box 2017

Glens Falls, New York 12801

Attorneys for Defendants

MESSNER REEVES LLP ASISH NELLUVELY, ESQ.

805 Third Avenue

18th Floor

New York, New York 10022

Attorneys for Defendants

SCULLIN, Senior Judge

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

Bryce Passino (“Plaintiff”) brings this action against Richard Tucker (“Defendant

Tucker”), Adam Wood (“Defendant Wood”), and Nathan Kasprzak (“Defendant Kasprzak”)

(together referred to as “Defendant Officers”), and the City of Plattsburgh (“Defendant City”),

seeking compensatory damages, attorney’s fees, expenses, and disbursements for alleged

violations of his civil rights. See generally Dkt. No. 1, Complaint. Defendants have moved for

summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. See generally

Dkt. No. 29.

II. BACKGROUND

On the evening of September 17, 2016, Plaintiff was high on LSD, naked, and walking

down the middle of Oak Street (a two-lane, one-way road) in Defendant City in the direction of

oncoming traffic. See Dkt. No. 29-6, Defs’ Stmt. of Material Facts at ¶¶ 17-20. Defendant

Tucker, a police officer with Defendant City Police Department, received a call on his portable

radio to check the situation, and he was the first to arrive on the scene. See id. at ¶ 22.

Defendant Tucker called out to Plaintiff and told him to “stop” and “get on the ground.” See id.

at ¶ 24. Plaintiff did not respond to this request. See Dkt. No. 29-2-5, Record of Exhibits (“R.”)

at 58. Defendant Tucker then grabbed Plaintiff’s arm, but he continued walking away. See

Dkt. No. 29-6 at ¶ 25. After warning Plaintiff, Defendant Tucker tased him twice from afar and

numerous times in drive stun mode (the exact amount is disputed) until he was on the ground

and could not stand back up. See Dkt. No. 29-6 at ¶¶ 30-34, 39-40, 42-44.

At that point, Defendant Wood, another officer with Defendant City Police Department,

arrived on the scene and struck Plaintiff to gain control over him. See id. at ¶¶ 48-51. The

parties dispute where Defendant Wood struck Plaintiff and whether he used his hand or his

flashlight. See id.; see also Dkt. No. 1 at ¶ 15. Defendant Wood eventually administered a

short spray of oleoresin capsicum (“OC spray”) (also known as pepper spray) to Plaintiff’s face.

See Dkt. No. 29-6 at ¶ 77. Plaintiff alleges that Defendant Kasprzak, another officer with

Defendant City Police Department, next arrived on the scene and also struck Plaintiff and

sprayed OC spray in his face. See Dkt. No. 29-6 at ¶¶ 58-61, see also Dkt. No. 29-6 at ¶ 77.

Eventually, seven or eight police officers piled on top of Plaintiff to restrain him, and he was

strapped to a board and taken to the hospital by ambulance. See Wood Dash Cam, 5:17:40,

10:23:051; see also R. at 68. Plaintiff was never charged with any crimes relating to the

incident. See R. at 225-226. Several of the facts pertaining to the incident–-particularly

whether Plaintiff was resisting arrest and threatening the safety of others around him—are in

dispute, as discussed below.

Plaintiff filed a Notice of Claim with Defendant City on December 13, 2016, and he

filed the instant suit on September 14, 2017. See generally Dkt. No. 1. He asserted the

following four causes of action in his complaint:

(1) Denial of civil rights and excessive force against Defendant Officers pursuant to 42

U.S.C. § 1983;

(2) Failure to train or supervise employees against Defendant City pursuant to 42 U.S.C.

§ 1983;

(3) Unreasonable seizure and excessive force against Defendant Officers pursuant to Article

I Section 12 of the Constitution of the State of New York and New York common law;2

and

1 There is video evidence from bystanders, a local laundromat security camera, and the officers’

dash cameras that depict the scene. See Dkt. No. 29-7, Defs’ Memorandum in Support (videos

referenced within and attached to motion).

2 This section of the Constitution of the State of New York prohibits unreasonable searches and

seizures; it does not address excessive force. See N.Y. Const. Art. I, § 12. Furthermore, it

appears from the allegations in the complaint that Plaintiff is claiming that his seizure was

unreasonable because Defendant Officers used excessive force in effecting that seizure. Thus,

the Court dismisses this claim sua sponte as redundant.

(4) Assault and battery against Defendant Officers pursuant to New York common law.

See Dkt. No. 1 at ¶¶ 30-53.

Plaintiff further alleges that he suffered severe injuries from excessive force that caused

his head and face to hit the roadway. See R. at 1; Dkt. No. 1 at ¶ 20. Specifically, Plaintiff

asserts that he suffered severe head trauma, mental suffering, embarrassment, humiliation, fear,

post-traumatic stress disorder, severe emotional distress, and medical expenses. See Dkt. No. 1

at ¶ 33.

III. DISCUSSION

A. Legal standard

Rule 56 of the Federal Rules of Civil Procedure governs motions for summary judgment.

Under this Rule, the entry of summary judgment is warranted “if the movant shows that there is

no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of

law.” Fed. R. Civ. P. 56(a). When deciding a summary judgment motion, a court must resolve

any ambiguities, and draw all reasonable inferences, in a light most favorable to the nonmoving

party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (citation omitted).

B. Plaintiff’s excessive force claim

Defendants move for summary judgment on Plaintiff’s excessive force claim, in which

they argue that the force used was reasonable in light of the circumstances. See Dkt. No. 29-7,

Defs’ Memorandum in Support, at 11-20. “The Fourth Amendment prohibits the use of

unreasonable and therefore excessive force by a police officer in the course of effecting an

arrest.” Tracy v. Freshwater, 623 F.3d 90, 96 (2d Cir. 2010) (citing Graham v. Connor, 490

U.S. 386, 395, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989)). “Because ‘[t]he Fourth Amendment

test of reasonableness “is one of objective reasonableness,”’ … the inquiry is necessarily case

and fact specific and requires balancing the nature and quality of the intrusion on the plaintiff’s

Fourth Amendment interests against the countervailing governmental interests at stake.” Id.

(quoting Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 123 (2d Cir. 2004)) (internal

citations omitted). In conducting that balancing test, courts are to consider the following three

factors: “(1) the nature and severity of the crime leading to the arrest, (2) whether the suspect

poses an immediate threat to the safety of the officer or others, and (3) whether the suspect was

actively resisting arrest or attempting to evade arrest by flight.” Id. (citing Graham, 489 U.S. at

396, 109 S. Ct. 1865; Jones v. Parmley, 465 F.3d 46, 61 (2d Cir. 2006)).

In balancing these interests, courts must be “careful to evaluate the record ‘from the

perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.’”

Id. (quoting Jones, 465 F.3d at 61 (quoting Graham, 390 U.S. at 396, 109 S. Ct. 1865)).

“Moreover, [courts] are required to ‘make “allowance for the fact that police officers are often

forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly

evolving—about the amount of force that is necessary in a particular situation.”’” Id. (quotation

omitted). “‘Not every push or shove, even if it may later seem unnecessary in the peace of a

judge’s chambers, violates the Fourth Amendment.’” Id. (quoting Graham, 490 U.S. at 397,

109 S. Ct. 1865) (internal quotation marks and citations omitted)).

“Given the fact-specific nature of the inquiry, granting summary judgment against a

plaintiff on an excessive force claim is not appropriate unless no reasonable factfinder could

conclude that the officers’ conduct was objectively unreasonable.” Amnesty Am. v. Town of W.

Hartford, 361 F.3d 113, 123 (2d Cir. 2004) (citation omitted). In other words, “[a] court’s role

in considering excessive force claims is to determine whether a jury, instructed as to the

relevant factors, could reasonably find that the force used was excessive.” Brown v. City of

New York, 798 F.3d 94, 103 (2d Cir. 2015).

For the most part, the parties agree about the underlying facts of the case. However,

they dispute many of the circumstances surrounding what happened that would show whether

the force was excessive. The Court addresses these disputes of fact and how they relate to each

of the Graham factors in turn.

Regarding the first Graham factor, the parties do not dispute that Plaintiff was engaging

in disorderly conduct and obstructing traffic and that Defendant Tucker was conducting a

“welfare check” when he arrived on the scene. See Dkt. No. 32, Pl’s Memorandum in

Opposition, at 11; Dkt. No. 29-7 at 2, 11; R. at 223. Disorderly conduct and obstructing traffic

are non-criminal violations. See N.Y. Penal Law § 240.20(5). Defendants claim that Defendant

Officers later observed Plaintiff resisting arrest, which is a class A misdemeanor. See N.Y.

Penal Law § 205.30. Even if Plaintiff were resisting arrest, an issue of fact that the Court

addresses below, the fact that Plaintiff committed only non-criminal violations and a non-

violent misdemeanor weighs in his favor.

The parties dispute material facts surrounding the second and third Graham factors, i.e.,

whether Plaintiff posed an immediate threat to the safety of the officers and others and whether

he was attempting to evade arrest by flight. Plaintiff contends that he could not have possibly

posed a serious and immediate threat to Defendant Officers and others while he was merely

walking down the street, unclothed and unarmed, and near no one at all. See Dkt. No. 32 at 15.

However, Defendants assert that Plaintiff posed an immediate threat to Defendant Tucker, to

Plaintiff himself, and to members of the public. See Dkt. No. 29-7 at 11. Defendant Tucker

allegedly perceived Plaintiff as an immediate threat, believing that Plaintiff attempted to punch

him and noting Plaintiff’s apparent mentally altered and naked state. See id.

Plaintiff further asserts that, when Defendants Wood and Kasprzak arrived on the scene,

he had already been tased and was on the ground, prone, naked, unarmed, and, at worst,

attempting a low crawl. See Dkt. No. 32 at 18-19. He also argues that Defendant Tucker was

standing over him holding his taser with the wires attached. See id. at 21. Furthermore, as

more officers arrived on the scene and piled onto him, Plaintiff claims that it further diminished

any possible threat he posed or any possibility of fleeing because the officers prevented his

movement. See id. at 18-19, 21.

Defendants argue, however, that Plaintiff was engaging in a physical struggle, trying to

get away or push back from the officers, and was actively resisting arrest. See Dkt. No. 33,

Defs’ Reply, at 6-7. They further contend that Plaintiff was swearing at Defendant Officers and

failing to comply with their orders. See Dkt. No. 29-7 at 2, 4. Defendants also claim that

Plaintiff’s attempt to stand up and get away exacerbated the tense, uncertain situation and

threatened the officers (including Defendants Wood and Kasprzak), bystanders, and Plaintiff

himself. See Dkt. No. 29-7 at 15; see also Dkt. No. 33 at 7-8.

Plaintiff counters, however, that “struggling on the ground and refusing to offer one’s

hands is merely passive and does not amount to ‘active resistance.’” See Dkt. No. 32 at 19

(citing Garcia v. Dutchess Cnty., 43 F. Supp. 3d 281, 293-95 (S.D.N.Y. 2014)). Furthermore,

Plaintiff asserts that any resistance he might have displayed was to get away from the pain from

the series of tasers. See id. Plaintiff also argues that verbal objections to police actions do not

warrant the use of police force. See id.

The parties dispute other material facts, as well, such as (1) whether Plaintiff swung his

arm at Defendant Tucker before he was tased for the first time, (2) whether Defendant Wood hit

Plaintiff on the head, (3) whether Defendant Wood struck Plaintiff with a flashlight or with his

closed-fist, and (4) whether Defendant Kasprzak hit Plaintiff’s head and face against the

roadway. See Dkt. No. 29-7 at 13, 15; Dkt. No. 32 at 10.

Thus, there are clearly genuine issues of material fact about the circumstances

surrounding the incident, particularly whether Plaintiff was a threat to the officers and if he was

attempting to flee. Because such issues of fact exist, and a factfinder must resolve them, the

Court denies Defendants’ motion for summary judgment with regard to Plaintiff’s excessive

force claim.

C. Qualified immunity

Defendants argue in their motion for summary judgment that Defendant Officers are entitled

to qualified immunity. See Dkt. No. 29-7 at 20-24. However, whether Defendants are entitled

to qualified immunity depends on the resolution of the same factual disputes as discussed

above. Thus, the Court finds that those genuine issues of fact preclude it from granting

Defendants’ motion for summary judgment based on the doctrine of qualified immunity. See

Sloley v. VanBramer, 945 F.3d 30, 36 (2d Cir. 2019) (stating that “the familiar standards that

govern resolution of motions for summary judgment apply equally to such motions based on an

assertion of qualified immunity” (citation omitted)).

D. Plaintiff’s Monell claim against Defendant City

Defendants contend that Defendant City is entitled to summary judgment on Plaintiff’s

Monell claim because Plaintiff has not presented any evidence to support the claim. See Dkt.

No. 29-7 at 24-28. A municipality may only be held liable under 42 U.S.C. § 1983 “when

execution of a government’s policy or custom, whether made by its lawmakers or by those

whose edicts or acts may fairly be said to represent official policy, inflicts the injury[.]” Monell

v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978). “To establish a municipal policy or custom, a

plaintiff may allege, among other things, ‘a failure by policymakers to properly train or

supervise their subordinates, amounting to “deliberate indifference” to the rights of those who

come in contact with the municipal employees.’” Hardie v. City of Albany, No. 1:18-CV-470

(GLS/CFH), 2019 U.S. Dist. LEXIS 184833, *10 (N.D.N.Y. Oct. 25, 2019) (quoting Prowisor

v. Bon-Ton, Inc., 426 F. Supp. 2d 165, 174 (S.D.N.Y. 2006), aff’d, 232 F. App’x 26 (2d Cir.

2007) (citation omitted)).

To show that a municipality has violated § 1983 by failing to train its employees, Plaintiff

must show (1) “the municipality’s policy maker must know ‘to a moral certainty’ that [his or]

her employees will confront a given situation,” (2) “either the situation must present the

employee with the sort of difficult decision that training or supervision would ameliorate or

there is ‘a history of employees mishandling the situation,’” and (3) “the ‘wrong choice by the

city employee will frequently cause the deprivation of a citizen’s constitutional rights.’”

Hardie, 2019 U.S. Dist. LEXIS 184833, at *10-*11 (quoting Walker v. City of New York, 974

F.2d 293, 297-98 (2d Cir. 1992)) (internal quotation marks omitted).

“Proof of a single incident of unconstitutional activity is not sufficient to impose liability

under Monell[.]” Oklahoma City v. Tuttle, 471 U.S. 808, 823-24 (1985). Furthermore, in a case

like this one, “where the policy relied upon is not itself unconstitutional,” the Supreme Court

held that “considerably more proof than the single incident will be necessary … to establish

both the requisite fault on the part of the municipality, and the causal connection between the

‘policy’ and the constitutional deprivation.” Id. at 824 (footnotes omitted).

Here, Plaintiff does not identify any other specific instances where Defendant City police

officers violated a person’s constitutional right against excessive force because they were not

trained in using physical force on, or otherwise subduing, someone suffering from a severe

mental disturbance or under the influence of drugs. See generally Dkt. Nos. 1, 32. Plaintiff

merely generalizes that, without proper use of force training, situations where officers use

excessive force “could happen daily” and making the wrong choice about whether to use force

“would frequently cause the deprivation of a citizen’s Fourth Amendment rights.” See Dkt. No.

32 at 27. Thus, because Plaintiff has failed to allege more than this single incident of

unconstitutional activity, the Court finds that Plaintiff cannot hold Defendant City liable under

Monell and grants Defendants’ motion for summary judgment with regard to this claim.

E. Plaintiff’s state-law assault and battery claims against Defendant Officers

1. Sufficiency of Plaintiff’s notice of claim

Defendants assert that they are entitled to summary judgment on Plaintiff’s state-law assault

and battery claims because Plaintiff did not name the individual Defendant Officers in the

notice of claim that he filed with Defendant City. See Dkt. No. 29-7 at 28-29. However, the

New York Court of Appeals has not yet determined whether a plaintiff must identify individual

defendants in a notice of claim filed pursuant to General Municipal Law § 50-e. There is also a

split among the New York Appellate Divisions and federal district courts on the issue. In

Garcia v. Cnty. of Westchester, the court undertook an in-depth analysis of these splits. See

Garcia v. Cnty. of Westchester, Dkt. Nos. 11-CV-7258, 11-CV-7260, 11-CV-7261, 11-CV-

7262, 11-CV-7264, 11-CV-7265, 11-CV-7267, 2017 U.S. Dist. LEXIS 211882, *95-*97

(S.D.N.Y. Dec. 11, 2017). The court ultimately held,

In light of the fact that three out of the four New York appellate departments have

declined to require plaintiffs to specifically name each individual defendant as a

respondent in the notice of claim, and in light of the New York Court of Appeals’

directive that “[t]he test of the sufficiency of a [n]otice of [c]laim is merely

whether it includes information sufficient to enable the city to investigate” and

that “[n]othing more may be required,” Brown v. City of New York, 95 N.Y.2d

389, 740 N.E.2d 1078, 1080, 718 N.Y.S.2d 4 (N.Y. 2000) (citation and internal

quotation marks omitted), the Court concludes that the requirement imposed by

the First Department [in Alvarez v. City of New York, 134 A.D.3d 599 (1st Dep’t

2015)] to specifically name each individual defendant as a respondent in the notice

of claim is unlikely to be adopted by the New York Court of Appeals.

Id. at *96-*97.

This is the same approach that other courts in this and other Districts within the Second

Circuit have followed. See e.g., Kennedy v. City of Albany, No. 1:15-CV-491, 2015 U.S. Dist.

LEXIS 143568, *7-*11 (N.D.N.Y. Oct. 22, 2015); Joseph v. Deluna, No. 15-CV-5602, 2018

U.S. Dist. LEXIS 48974, *14-*15 (S.D.N.Y. Mar. 23, 2018).

Furthermore, as the Garcia court explained, if the purpose of the notice of claim

requirement is to provide sufficient information to permit Defendant City to investigate the

claim, then Plaintiff has satisfied that purpose. It is clear that, in this case, Defendant City had

sufficient notice to investigate. Chief of Police, Lieutenant Kiroy, and Sergeant Ritter

interviewed Defendants Wood and Kasprzak within a few days to a week after the incident. See

R. at 342-43, 395. Defendant Tucker testified that he learned of the notice of claim from other

officers on duty when the station received it, and so he was on notice of Plaintiff’s intent to file

suit. See R. at 228. In addition, Defendant Tucker testified that detectives and administration

“locked” the incident report in the police department’s system so that patrolmen and supervisors

were unable to look at it further, which indicates that they knew that charges against the

individual officers involved could be pending. See R. at 229.

Because three out of the four New York appellate departments and courts in this District and

the Southern District have declined to require the naming of each individual defendant in a

notice of claim, and because the notice of claim served its purpose of notifying Defendant City

so that it could investigate the claim, the Court finds that Plaintiff satisfied the notice of claim

requirements for his state-law claims. Therefore, the Court denies Defendants’ motion for

summary judgment on this issue.

2. Merits of Plaintiff’s assault and battery claims

Defendants additionally argue that they are entitled to summary judgment on Plaintiff’s

state-law assault and battery claims because Defendant Officers lacked the requisite intent to

cause injury or to make offensive contact. See Dkt. No. 29-7 at 29-30. “Assault and battery

claims under New York law are analogous to excessive force claims under the Fourth

Amendment.” Dukes v. Troy Hous. Auth., No. 1:08-CV-479 (FJS/DRH), 2011 U.S. Dist.

LEXIS 34483, *22 (N.D.N.Y. Mar. 30, 2011) (citation omitted). If a “plaintiff raises a triable

issue of fact regarding the reasonableness of force used during the arrest, defendants’ motion for

summary judgment must also be denied to the extent that it can be construed to apply to

plaintiff’s claims under New York law.’” Minasi v. City of Utica, No. 6:10-CV-0975

(NAM/DEP), 2011 U.S. Dist. LEXIS 149259, *22 (N.D.N.Y. Dec. 28, 2011) (citing Dukes,

2011 U.S. Dist. LEXIS 34483).

Thus, because the Court denies Defendants’ motion for summary judgment on

Plaintiff’s excessive force claims due to the existence of genuine issues of material fact, the

Court further denies Defendants’ motion for summary judgment on Plaintiff’s state-law assault

and battery claims against Defendant Officers for the same reason.

IV. CONCLUSION

After carefully considering the entire file in this matter, the parties’ submissions, and the

applicable law, and for the above-stated reasons, the Court hereby

ORDERS that Defendants’ motion for summary judgment with regard to Plaintiff’s first

cause of action for excessive force pursuant to 42 U.S.C. § 1983 and Plaintiff’s fourth cause of

action for state-law assault and battery against Defendants Tucker, Wood, and Kasprzak, see

Dkt. No. 29, is DENIED; and the Court further

ORDERS that Defendants’ motion for summary judgment based on the defense of

qualified immunity, see Dkt. No. 29, is DENIED; and the Court further

ORDERS that Defendants’ motion for summary judgment with respect to Plaintiff’s

second cause of action pursuant to 42 U.S.C. § 1983 for failure to train or supervise against

Defendant City based on the theory of municipal liability, see Dkt. No. 29, is GRANTED; and

the Court further

ORDERS that Plaintiff’s third cause of action for unreasonable seizure and excessive

force pursuant to the New York State Constitution against Defendants Tucker, Wood, and

Kasprzak is DISMISSED sua sponte as redundant; and the Court further

ORDERS that trial of this action shall commence at 10:00 a.m. on August 3, 2020, in

Albany, New York. The Court will issue a separate Final Pretrial Scheduling Order, setting

forth the deadlines for filing pretrial submissions, including motions in limine, at a later date.

IT IS SO ORDERED.

Dated: January 31, 2020

Syracuse, New York

Freder& J Boulter Jr.

Senior United States District Judge

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