Pajazetovic v. The City of Utica, New York

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

________________________________________

ENESA PAJAZETOVIC, Executrix of the Estate

of Hasica Pajazetovic,1

Plaintiff, 6:18-cv-1496 (TJM/ATB)

v.

THE CITY OF UTICA, NEW YORK;

DANIEL MAHAFFY; GERALD FOSTER;

ASHLEY BERGER; ZACHARY CIOTTI;

ERIC WHITE; JOHN DOES, agents and

employees of the City of Utica (Bureau of Fire),

the identity and number of whom is presently

unknown; and RICHARD ROES, agents and

employees of the City of Utica (Police Department),

the identity and number of whom is presently

unknown,

Defendants.

_________________________________________

THOMAS J. McAVOY,

Senior United States District Judge

DECISION and ORDER

I. INTRODUCTION

Plaintiff Hasica Pajazetovic commenced this civil rights action in the New York

State Supreme Court, Oneida County. Dkt. No. 2. The action was removed to this court

on the grounds that it alleged federal constitutional violations under 42 U.S.C. § 1983 and

1The plaintiff in the Complaint, Hasica Pajazetovic, died on January 2, 2021. See Dkt. No. 35. The

Court entered a Text Order on June 4, 2021 granting the motion of the Administratrix of the Estate of Hasica

Pajazetovic to substitute the Estate in place of the deceased plaintiff, and directed the Clerk to substitute

Enesa Pajazetovic, Executrix of the Estate of Hasica Pajazetovic as the plaintiff in this action. Dkt. No. 39.

For purposes of this Decision and Order, the Court will refer to Hasica Pajazetovic as the plaintiff.

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sought attorneys fees pursuant to 42 U.S.C. § 1988. See Dkt. No. 1. The Verified

Complaint alleges eight (8) causes of action: New York state common law assault and

battery against Defendants the City of Utica (“Utica”), Daniel Mahaffy (“Mahaffy”), and

Gerald Foster (“Foster”) (First Cause of Action); New York state common law prima facie

tort against Utica, Mahaffy, and Foster (Second Cause of Action); New York state

common law “negligence and recklessness” against all defendants (Third Cause of

Action); “negligent hiring, training, and retention” against Utica (Fourth Cause of Action);

failure to intercede brought pursuant to 42 U.S.C. § 1983 against Mahaffy, Foster, Ashley

Berger (“Berger”), Zachary Ciotti (“Ciotti”), Eric White (“White”), and “John Doe officers

and Richard Roe fire department employees” (Fifth Cause of Action); unreasonable and

excessive force brought pursuant to 42 U.S.C. § 1983 against Mahaffy and Foster (Sixth

Cause of Action); First and Fourteenth Amendment violations brought pursuant to 42

U.S.C. § 1983 against Mahaffy and Berger for depriving Plaintiff of his “rights to have

access to and seek redress in the courts,” and for engaging in “conduct intended to cover

up and conceal the wrongful and unlawful conduct taken against plaintiff by the

defendants herein.” (Seventh Cause of Action); and conspiracy to deprive Plaintiff of his

constitutional rights brought pursuant to 42 U.S.C. § 1983 against Mahaffy, Berger, Foster

and John Does (Eighth Cause of Action). Dkt. No. 2.

Defendants move pursuant to Rule 56 of the Federal Rule of Civil Procedure

seeking summary judgment dismissing all causes of action in the Verified Complaint, see

Dkt. No. 25, and Plaintiff moves pursuant to Rule 56 seeking summary judgment as to

liability on some claims in the Verified Complaint and asking the Court to schedule an

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inquest on damages. See Dkt. No. 30-2.2

II. STANDARD OF REVIEW

On a motion for summary judgment the Court must construe the properly disputed

facts in the light most favorable to the non-moving party, see Scott v. Harris, 127 S. Ct.

1769, 1776 (2007), and may grant summary judgment only where “there is no genuine

issue as to any material fact and the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(a); see O'Hara v. Nat’l Union Fire Ins. Co. of Pittsburgh, PA, 642 F.3d

110, 116 (2d Cir. 2011). The party moving for summary judgment bears the initial burden

of showing, through the production of admissible evidence, that no genuine issue of

material fact exists. Salahuddin v. Gourd, 467 F.3d 263, 272-73 (2d Cir. 2006). The

movant may meet this burden by showing that the nonmoving party has “fail[ed] to make a

showing sufficient to establish the existence of an element essential to that party's case,

and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477

U.S. 317, 322 (1986).

If the moving party satisfies its burden, the nonmoving party must move forward

with specific facts showing that there is a genuine issue for trial. Salahuddin, 467 F.3d at

273. The nonmoving party cannot defeat summary judgment by “simply show[ing] that

there is some metaphysical doubt as to the material facts,” Matsushita Elec. Indus. Co. v.

Zenith Radio Corp., 475 U.S. 574, 586 (1986), or by a factual argument based on

“conjecture or surmise.” Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991). In this

2Although Plaintiff’s Notice of Motion seeks summary judgment as to liability on all causes of action in

the Verified Complaint, see Dkt. No. 30, his Memorandum of Law in support of that motion is directed only to

the First, Second, Third, and Sixth Causes of Action against Mahaffy and Utica, and the Fifth and Eighth

Causes of Action against Mahaffy, Foster, Berger, and Utica. See Dkt. No. 30-2.

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regard, a party opposing a properly supported motion for summary judgment may not rest

upon "mere allegations or denials" asserted in the pleadings, Rexnord Holdings, Inc. v.

Bidermann, 21 F.3d 522, 525-26 (2d Cir. 1994), or on conclusory allegations or

unsubstantiated speculation. Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998).

When considering cross-motions for summary judgment, the Court "must evaluate

each party's motion on its own merits, taking care in each instance to draw all reasonable

inferences against the party whose motion is under consideration." Hotel Employees &

Rest. Employees Union, Local 100 of N.Y. v. City of N.Y. Dep't of Parks & Recreation, 311

F.3d 534, 543 (2d Cir. 2002)(citation omitted). “[N]either side is barred from asserting that

there are issues of fact, sufficient to prevent the entry of judgment, as a matter of law,

against it . . . [and] a district court is not required to grant judgment as a matter of law for

one side or the other.” Heublein, Inc. v. United States, 996 F.2d 1455, 1461 (2d Cir. 1993).

III. BACKGROUND

The Court will set forth the relevant material facts in addressing the motions below.

III. DISCUSSION

The Court starts with the claims that raise federal questions, addressing first the

Defendants’ motion directed to the federal excessive force claims against Foster and

Mahaffy.

a. Excessive Force (Sixth Cause of Action)

Plaintiff claims that Defendant Foster, the Utica Fire Marshall, used unconstitutional

excessive force in removing him from the firefighting perimeter set up near an active fire

scene, and that Defendant Mahaffy, a police officer with the Utica Police Department

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(“UPD”), used unconstitutional excessive force when he rushed in and pushed Plaintiff to

the ground just as Plaintiff was escorted outside the yellow "Caution Do Not Enter" tape

that marked the firefighting perimeter.

1. Background

The claims in this matter arise from circumstances that occurred on Sunday,

December 10, 2017. In the early afternoon of that day a fire engulfed a large building

owned by Plaintiff in Utica. See Defs. Stat. of Mat. Facts, Dkt. No. 25-1, ¶ 1.3 The fire

involved Plaintiff’s auto-mechanic garage where, at the time, Plaintiff’s dog was located

inside. Id. ¶ 12. After Plaintiff learned of the fire, he went to the building in an attempt to

save his dog. Id. ¶¶ 13-14, 18. In doing so, he was confronted by Fire Marshall Foster

who told Plaintiff that he could not enter the building and that Plaintiff needed to move

outside of the firefighting perimeter set up on Seymore Avenue near where Plaintiff

3The Local Rules were amended effective January 1, 2021. In the amendment, L.R. 7.1 was

dissected and various subsections were renumbered and relocated to correspond with the appropriate

Federal Rule. The relevant substance of the rules did not change. However, because the instant motion was

filed in 2020, the Court refers to the Local Rules as they existed at that time.

Local Rule 7.1(a)(3) provided at the time:

The opposing party shall file a response to the Statement of Material Facts. The

non-movant's response 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. Each denial shall set forth a specific citation to the record

where the factual issue arises. The Court shall deem admitted any properly supported facts

set forth in the Statement of Material Facts that the opposing party does not specifically

controvert.

LR 7.1(a)(3)(2020 Ed.)(emphasis in the original). Plaintiff’s responsive Statement of Material Facts, Dkt. No.

31, does not follow this protocol. The Court declines to parse through the record to determine whether there

is evidence in the record that refutes the properly supported facts in Defendants’ Statement of Material Facts.

See Willis v. Cty. of Onondaga, No. 5:14-CV-1306 (GTS/ATB), 2016 WL 7116126, at *19 (N.D.N.Y. Dec. 6,

2016)(“[T]his Court has often enforced Local Rule 7.1(a)(3) by deeming facts set forth in a movant's

statement of material facts to be admitted, where (1) those facts are supported by evidence in the record, and

(2) the non-movant has willfully failed to properly respond to that statement.”), aff'd, 710 F. App'x 47 (2d Cir.

2018).

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encountered Foster. See id. ¶¶ 5-7, 16-19. Plaintiff did not leave the area and continued

to attempt to get to the building to get his dog. Id. ¶ 18; see Hasica Pajazetovic Dep. at

110 (Testifying that Foster said: “I can’t get inside, that nothing . . . can be saved, ... but I

said just help me with my dog.”). Plaintiff contends that he argued with Foster and “talked

about getting the overhead doors open for [Plaintiff’s] dog.” Hasica Pajazetovic Aff., Dkt.

No. 30-15, ¶ 3. Defendants contend that while Plaintiff and Foster argued, Plaintiff was

flailing his arms and accidentally knocked the "Fire Marshal" helmet off of Foster’s head.

Defs. Stat. of Mat. Facts ¶ 19. Plaintiff asserts that he did not "see Fire Marshall Foster

ever wearing a helmet at the time we were arguing, or when we talked about getting the

overhead doors open for my dog, or at anytime that I saw him, including later in the

afternoon . . . ." Hasica Pajazetovic Aff., Dkt. No. 30-15, ¶ 3. Plaintiff contends that

Foster grabbed him by his left arm and Plaintiff said: “[D]on’t touch me with my arm, I have

problem with it.” Hasica Pajazetovic 10/10/19 Dep., Dkt. 25-19, p. 110. Plaintiff had been

involved in a motor vehicle accident in 2013 which resulted in three surgeries on his left

arm. Defs. Stat. of Mat. Facts, ¶ 36. Plaintiff stated in his N.Y. General Municipal Law §

50-h deposition that he had surgery to his left wrist. See Dkt. No. 25-12 at 60.

Both sides rely in substantial part on a video created by a local television news

camera crew that was at the scene covering the fire, see Def. Ex. B; Pl. Ex. I,4 and both

sides ask the Court to rely on the video in resolving relevant questions of fact on their

summary judgment motions. See Dkt. No. 25-2, p. 7, n. 1, & pp. 10-11; Dkt. No. 30-2, p. 7.

4The videos are substantially identical in relevant part, with Defendants’ video containing news

commentators’ statements before the portion showing the relevant actions by Plaintiff, Foster, and Mahaffy,

whereas Plaintiff’s video does not have this introductory commentary. Plaintiff’s video also has a longer

section displaying the scene after Plaintiff falls to the ground and gets back up.

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The video in Defendants’ Exhibit B begins in relevant part at 2:14 showing Fire Marshall

Foster with his back towards the yellow “Caution Do Not Enter” tape and seemingly with

his hand on Plaintiff’s left shoulder. At 2:15, Plaintiff and Foster pivot towards the yellow

tape with Foster pointing away from the fire vehicles towards the yellow tape and saying

loudly "Get out of here, leave." Foster appears to have hold of Plaintiff by the back of his

jacket in the left shoulder area and begins ushering Plaintiff towards the yellow tape.

Following behind Plaintiff and Foster is an individual in civilian clothes with his hood up

over his head.5 Based upon Plaintiff’s affidavit and the video, this appears to be Plaintiff's

cousin Ado Pajazetovic. See Dkt. 30-15, ¶ 5. At 2:16 - 2:17 of the video, Foster pushes

Plaintiff aggressively by the left shoulder towards the caution tape, and says loudly: "I told

you three times." At 2:18, Plaintiff reaches the tape. At 2:19, Plaintiff uses his left arm to

lift the yellow tape over his head, and pivots around so he is facing Foster. Foster can be

heard yelling: "I don't care, I told you to get over here three times." It is unclear from the

video but it appears that Foster is still physically directing Plaintiff to move behind the

yellow tape. Although Foster’s right hand is obscured by Plaintiff’s body, it appears that

Foster is using this hand to physically direct Plaintiff behind the yellow tape and, for a brief

second, uses his left hand to touch Plaintiff’s right elbow presumably for the same

purpose. At 2:20 Plaintiff is a little more than an arm’s length away from Foster and is

behind the yellow tape standing next to another individual in civilian clothing with his hood

over his head. Foster is facing Plaintiff with his right arm extended and Plaintiff's cousin is

next to Foster facing Foster. Foster can again be heard yelling: "I don't care, I told you get

5The video depicts numerous individuals in the area with their hoods up and/or with hats on,

presumably because of the cold temperature that day.

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over here three times."

Officer Mahaffy, who was doing traffic control at an intersection nearby, observed

the exchange between Plaintiff and Foster. Defs. Stat. Mat. Facts, ¶ 21. Mahaffy testified

that what initially caught his attention was that Foster was yelling and that it appeared that

Foster was attempting to keep Plaintiff from going in the building because Foster was

standing between Plaintiff and the building and had his "arms stretched out like this trying

to contain him." Mahaffy 10/07/19 Dep., Dkt. No. 25-13, p. 74. Mahaffy also testified that

based upon his observations he initially believed that Plaintiff had committed the offence

of Harassment in the Second Degree. He based this conclusion upon his observation of

"the altercation [Plaintiff] had with Gerry Foster." Id. p. 59. He contends that this included

witnessing Plaintiff knock Foster's helmet off of his head, that it appeared that Plaintiff

"was trying to get through Gerry Foster to get into the building," that Plaintiff "[w]as putting

hands on Gerry to try to get by him," and that Foster then began to escort Plaintiff "out

away from the fire." Id. pp. 60, 73; see id at 72 ("I saw arms flailing. Gerry standing in

front of the plaintiff with his back to the building. Plaintiff facing the building. And it looked

like his arms were flailing. He knocked Gerry Foster's helmet off."). Mahaffy testified that

when he observed Plaintiff being escorted under the yellow perimeter tape it appeared to

him that Plaintiff took a step back toward Foster. Id. p. 80. He also asserts that at the

time he determined to intervene, it did not appear that Foster was in control of the

situation because there were other people present with Plaintiff. Id. pp. 83- 84.6 Mahaffy

6Mahaffy also testified that the fact that people were there watching the situation had nothing to do

with his decision to put his hands on Plaintiff because "people watch us all the time do things." Id. 155. The

Court does not interpret this line of questioning as meaning that Mahaffy did not consider that there were two

other individuals standing around Plaintiff at the time Mahaffy determined to intervene.

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began to run to Foster and Plaintiff with the intent to “aid a third person” and "create

separation between" Foster and Plaintiff. Defs. Stat. Mat. Facts ¶ 22. At 2:20 of the

video, Mahaffy is seen entering the picture moving at a fast pace from the front right of

Plaintiff, lifting the caution tape, and quickly going under it. At 2:21, Mahaffy places his

left hand on Plaintiff’s back below his right shoulder and, apparently, his right hand on or

near the front of Plaintiff’s left shoulder. Mahaffy pushes Plaintiff backward away from

Foster, Plaintiff's cousin, and the other unidentified individual standing in the group. As

Mahaffy pushes Plaintiff, Plaintiff's right arm flails upward over his head, he attempts to

step backward off the sidewalk onto another slab of concrete behind the sidewalk,

stumbles from Mahaffy's push, and falls on his backside/left side on a patch of grass

behind the slab of concrete seemingly landing on his left elbow and rear end. At this point,

Foster comes under the yellow tape and continues to yell: "I told you three times."

Mahaffy can then be seen briefly facing Plaintiff's cousin and pushing him backward away

from the scene.

Plaintiff then stands up and another unidentified individual with a hood over his

head places his arm around Plaintiff’s shoulder. Although neither video captures what is

being said at this point, Plaintiff appears to be talking to or arguing with Foster and

Mahaffy. The video then shows Foster seemingly arguing with Plaintiff, with Foster

pointing/wagging his finger, and Plaintiff slightly pushing on Foster’s hand and waving his

open palm in a downward motion followed by holding his palm horizontally as if to

emphasize he was distraught by the situation. On Plaintiff’s video, Plaintiff can be heard

saying: “That building [is] my life,” and Foster can be heard telling Plaintiff to calm down

and saying: “I asked you four times to get back over here and you told me no.” Pl. Ex. I.

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After pushing Plaintiff, Mahaffy, in accordance with UPD policy, immediately notified

his supervisor of his use of force, and his supervisor, UPD Sergeant Ashley Berger quickly

arrived at the scene and began an investigation into the use of force. Defs. Stat. of Mat.

Facts, ¶ 27. Sergeant Berger spoke to Officer Mahaffy, Fire Marshal Foster, and Plaintiff.

Id. ¶ 28. Sergeant Berger inquired if Plaintiff was injured and Plaintiff indicated that he

was not and refused any medical treatment. Id. ¶ 29; see Def. Ex. W (video taken from

Sgt. Berger's body camera). Plaintiff asserts, however, that he started to feel pain later in

the afternoon after he spoke to Sergeant Berger. See Hasica Pajazetovic Aff., Dkt. No. 30-

15, ¶¶ 7-8.

The next day, Plaintiff went to St. Elizabeth's Hospital complaining of back and left

elbow pain. Defs. Stat. of Mat. Facts, Dkt. No. 25-1, ¶ 35. X-Rays of the lumbosacral

spine indicated: “Spinal alignment is preserved. Minor endplate sclerosis and anterior

osteophyte formation noted. No compression injury seen. Facets appear to be

appropriately oriented. Pedicles intact. No acute findings. Moderate osteoarthritic change

both hips.” Def. Ex. T, at p. 11. The impression was: “Degenerative changes.

No fracture is seen.” Id. X-Rays of the left elbow indicated: “No convincing effusion is

seen. There is a small spur at the base of the olecranon. There is a small amount of spur

formation at the tip of the coronoid process. No fracture or subluxation seen.” Id. p. 13.

The impression was “degenerative changes; no fracture seen.” Id. Plaintiff was

diagnosed with acute back pain and a left elbow contusion. Defs. Stat. of Mat. Facts, ¶ 37.

On December 19, 2017, Plaintiff treated with Dr. Cemer of Slocum-Dickson Medical

Group, P.L.L.C. complaining of lower back pain and right leg pain. Dkt. No. 30-26, at 1.

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The medical record reflects: “Patient presents here complaining of having lower back pain

and right leg pain (upper aspect, posterior thigh area) for about a week. Reports that he

fell down recently and pain started after the fall. No head trauma. Patient was initially

evaluated for this pain at an emergency room. Had negative Xray of LS spine. No

evidence of degenerative disc disease.” Id. Dr. Cemer assessed “BACK PAIN, LOWER

as new;” “SCIATICA, RIGHT as new,” prescribed Gabapentin, and referred Plaintiff to

physical therapy for evaluation and treatment of lower back pain with right sided sciatica.

Id. at 3.

On February 23, 2018, Plaintiff had an MRI of his lumbar spine as ordered by Dr.

McNulty of Slocum-Dickson Medical Group. Id. at 5-6. The findings in the MRI report

indicate: “The vertebral body alignment is normal. Endplate hypertrophy and disc bulging

is present from L2-3 to L5-S1. Conus medullaris lies at L1. The cauda equina is normal

without intrathecal lesion. There is no marrow edema or bone lesion.” Id. at 5. The axial

images indicate: “L1-2: Capacious canal. Minor left-sided disc bulge with normal cauda

equina and foramina; L2-3: Capacious canal with mild disc bulging without significant

thecal or nerve root compression; L3-4: Mild effacement of the ventral theca from disc

bulge with moderate facet hypertrophy. No significant cauda equina or nerve root

compression; L4-5: Minor disc bulge without significant thecal or nerve root

compression; L5-S1: Facet hypertrophy without thecal or nerve root compression.” Id. at

5-6. The impression was: “Disc bulges are present from L2-3 through L5-S1. Facet

hypertrophy is noted generally without significant thecal or nerve root compression.” Id. at

6.

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On April 12, 2018, Plaintiff again treated with Dr. McNulty. The office notes indicate

that Plaintiff

reports chronic(>6 months), central pain that is described as constant (75 -

100% of the time), achy, dull, sharp. The pain is rated as a 8/10 with the

most pain being 8/10, the least pain being 3/10 over the last 2 weeks and

radiates to the right buttocks down to the foot. It is aggravated by almost all

movements and relieved by pain pills, walking.

Additional Comments: Patient states that his shop was on fire, and was

pushed by a cop and fell on the ground. Denies any numbness/tingling.

Additional Comments: Patient states he was in a car accident 2/11/2013.

Patient was the driven [sic] in the car accident. He was in a truck and hit on

the passenger side of the vehicle and went to stop himself with the left hand,

hit the door and the air bag went off. Complains of numbness/tingling in the

left arm from shoulder to fingers.

Id. at 7. The notes also indicate that “patient denies prior existing shoulder pain until a

recent altercation with police being thrown to the ground.” Id. at 10. Dr. McNulty’s plan

was to continue physical therapy for the low back and left shoulder, and schedule

cortisone injections for Plaintiff’s low back and shoulder. Id. Plaintiff treated with Dr.

McNulty again on May 23, 2018, at which time it was indicated: “4/20/2018 bilateral upper

extremity EMG this [sic] normal without evidence of denervation no evidence of

radiculopathy was seen,” that “[s]houlder pain carpal tunnel syndrome low back pain has

undergone several visits for physical therapy still in pain discussed injections today and

continuing physical therapy also reviewed new imaging and new emg report. discussed

again ... increasing gabapentin to 600 tid. still with pain didn’t undergo injections as

suggested discussed obtaining surgical opinion for shoulder and back.” Id. at 13.

On June 11, 2018, Plaintiff treated with Sarah Waskiewicz, RPA-C of

Slocum-Dickson Medical Group Orthopaedics on referral from Dr. McNulty regarding

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Plaintiff’s left shoulder pain. Id. at 16-19. Ms. Waskiewicz’s plan after that office visit was:

“Patient is 7 months post fall on the left shoulder. He has tried NSAIDS and PT without

relief. He currently follows Dr. McNulty for LBP which is worse than shoulder at this point.

Reviewed xrays Left Shoulder. Due to pain and weakness on exam, I have recommended

MRI Left Shoulder to R/O RCT. Follow up after MRI for further recommendations.” Id. at

18. The record indicates that Plaintiff was also treated by Dr. Buckley of Hamilton

Orthopedic who, on February 4, 2019, diagnosed Plaintiff with right lower extremity

radiculopathy, foraminal stenosis, and sent him to physical therapy. See Defs. Stat. of

Mat. Facts, ¶ 39; Def. Ex. AA, Dkt. No. 25-27, at p. 8.

2. Fire Marshall Foster

As to the excessive force claim, Defendants’ memorandum of law in support of

summary judgment focuses primarily on Officer Mahaffy’s actions. See Dkt. No. 25-2, at

pp. 7-12. Defendants argue, however, that “Defendants are entitled to summary judgment

on the excessive force claim because the video depicts Plaintiff Pajazetovic was within the

fire perimeter and he was resisting a lawful order, making the use of force reasonable as a

matter of law,” id. at 7, and that “the news reporter's camera video indisputably shows

Plaintiff resisting the lawful commands of Fire Marshall Foster to leave the working fire

perimeter, and shows Fire Marshal Foster escorting the Plaintiff out of the established

perimeter area.” Id. at 10. Furthermore, Defendants argue that “the individual defendants

are entitled to qualified immunity on all federal § 1983 claims and state claims.” Id. at 20;

see id. at 20-26.

Although Defendants’ arguments are somewhat conclusory as to Foster, Plaintiff

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offers no opposition to the argument that Foster is entitled to summary judgment on the

excessive force claim or that he is entitled to qualified immunity on this claim. See Dkt.

No. 31-1. Furthermore, in his own motion Plaintiff seeks summary judgment on the

excessive force claim brought directly against Mahaffy but not against Foster. See Dkt.

No. 30-2, pp. 5-8. Based upon Plaintiff’s failure to defend or affirmatively pursue the

claim, the Court deems the excessive force claim against Foster abandoned. See Kovaco

v. Rockbestos-Suprenant Cable Corp., 834 F.3d 128, 143 (2d Cir. 2016)(“‘[G]enerally, but

perhaps not always, a partial response reflects a decision by a party's attorney to pursue

some claims or defenses and to abandon others,’ and ‘a court may, when appropriate,

infer from a party's partial opposition that relevant claims or defenses that are not

defended have been abandoned.’”)(quoting Jackson v. Fed. Express, 766 F.3d 189, 196,

198 (2d Cir. 2014)); Santana v. Racette, No. 9:17-CV-00102 (BKS/ML), 2020 WL

3412728, at *8, n. 12 (N.D.N.Y. June 22, 2020)(“The failure to oppose a motion for

summary judgment on a certain claim is deemed abandonment of the claim.”)(citing

Feacher v. Intercontinental Hotels Grp., 563 F. Supp. 2d 389, 399 (N.D.N.Y. 2008));

Feacher, 563 F. Supp. 2d at 399 (same)(citing Rizzo–Puccio v. College Auxiliary Services,

Inc., 216 F.3d 1073, 2000 WL 777955 (2d Cir. 2000)(claims not addressed in opposition

to defendants' motion for summary judgment were deemed abandoned)); Bucek v.

Gallagher Bassett Servs., Inc., No. 16-CV-1344, 2018 WL 1609334, at *14 n.25 (S.D.N.Y.

Mar. 29, 2018) (deeming claims abandoned where the plaintiff failed to respond to the

defendant's arguments in her opposition); Lipton v. County of Orange, 315 F. Supp. 2d

434, 446 (S.D.N.Y. 2004)(“This Court may, and generally will, deem a claim abandoned

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when a plaintiff fails to respond to a defendant's arguments that the claim should be

dismissed.”)(collecting cases). Accordingly, summary judgment is granted to Defendants

on the federal excessive force claim against Foster.

3. Officer Mahaffy

Defendants argue that Mahaffy is entitled to summary judgment on the federal

excessive force claim because the video depicts that Plaintiff was resisting a lawful order

to leave the fire perimeter making the use of force reasonable as a matter of law, Dkt. No.

25-2 at 7-12, and that he is entitled to qualified immunity on this claim. Id. at 24-26. In

opposition, Plaintiff argues that Mahaffy’s use of force was objectively unreasonable under

the circumstances, see Dkt. No. 31-1 at CM/ECF pp. 3-6, but presents no opposition to

Defendants’ claim that Mahaffy is entitled to qualified immunity. See generally id.

“In this District, where a non-movant has willfully failed to respond to a movant's

properly filed and facially meritorious memorandum of law, the non-movant is deemed to

have ‘consented’ to the legal arguments contained in that memorandum of law under

Local Rule 7.1(a)(3).”7 CF Fresh, LLC, v. Carioto Produce, Inc., No. 1:20-CV-0884

(GTS/CFH), 2021 WL 4129161, at *8 (N.D.N.Y. Sept. 10, 2021). “Stated another way,

when a non-movant fails to oppose a legal argument asserted by the movant, the movant

may succeed on the argument by showing that the argument possesses facial merit,

which has appropriately been characterized as a ‘modest’ burden.” Id. (citing N.D.N.Y.

L.R. 7.1(a)(3) (“Where a properly filed motion is unopposed and the Court determined that

the moving party has met its burden to demonstrate entitlement to the relief requested

7The relevant substance of Local Rule 7.1(a)(3) was formerly contained in Local Rule 7.1(b)(3).

15

therein ....”); Rusyniak v. Gensini, 07-CV-0279, 2009 WL 3672105, at *1, n.1 (N.D.N.Y.

Oct. 30, 2009) (Suddaby, J.) (collecting cases); Este-Green v. Astrue, 09-CV-0722, 2009

WL 2473509, at *2 & n.3 (N.D.N.Y. Aug. 7, 2009) (Suddaby, J.) (collecting cases)).

The Court reviews the excessive force claim against Mahaffy under the Fourth

Amendment’s "objective reasonableness" standard as articulated in Graham v. Connor,

490 U.S. 386, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989), and its progeny. See Frego v.

Kelsick, No. 11-CV-5462 (SJF/SIL), 2015 WL 4728922, at *9 (E.D.N.Y. Aug. 10, 2015),8

aff'd, 690 F. App'x 706 (2d Cir. 2017). Under this standard,

an application of force under color of state law "is excessive, in violation of

the Fourth Amendment, if it is objectively unreasonable ‘in light of the facts

and circumstances confronting [the officers], without regard to their

underlying intent or motivation.'" Figueroa v. Mazza, 11–CV–3160, 2014 U.S.

Dist. LEXIS 139212, at *12–*13, 2014 WL 4853408 (E.D.N.Y., Sept. 30,

2012) (quoting Graham, 490 U.S. at 397)). "‘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 396 (internal

citation and quotation marks omitted)). Rather, "[d]etermining whether the

force used was reasonable ‘requires a careful balancing of the nature and

quality of the intrusion on the individual's Fourth Amendment interests

8The Eastern District wrote in Frego that the principles underlying the Fourth Amendment's "objective

reasonableness" standard “apply equally where, as here, the alleged force used was against a third-party and

not the arrestee.” 2015 WL 4728922, at *9 (citing Kerman v. City of New York, 261 F.3d 229 (2d Cir. 2001)

(applying Fourth Amendment's objective reasonableness standard to excessive force claim by non-arrestee

who was detained and taken by police to a psychiatric hospital; the court noted that "[a]ll claims that law

enforcement officers have used excessive force—deadly or not-in the course of an arrest, investigatory stop,

or other ‘seizure' of a free citizen should be analyzed under the Fourth Amendment and its ‘reasonableness'

standard ...." (citing Graham, 490 U.S. at 395) (emphasis in original)); Estate of Heilbut v. City of New York,

04 Civ. 4332, 2006 U.S. Dist. LEXIS 71907, at *18 n. 12, 2006 WL 2807722 (S.D .N.Y., Oct. 2, 2006)

(declining to analyze non-arrestee, non-inmate's excessive force claim under the Fourteenth Amendment,

instead noting that all such claims are to be considered under the Fourth Amendment rubric);

Gravelet–Blondin v. Shelton, 728 F.3d 1086, 1090–91 (9th Cir.2013), cert. denied, ––– U.S. ––––, 134 S.Ct.

1292, 188 L.Ed.2d 301 (2014) (applying Fourth Amendment's objective reasonableness standard to

excessive force claim by bystander upon whom police used a taser for not immediately complying with an

officer's instruction to back away from the scene of an arrest); Holland v. Harrington, 268 F.3d 1179, 1188

(10th Cir.2001), cert. denied, 535 U.S. 1056, 122 S.Ct. 1914, 152 L.Ed.2d 824 (2002) (applying Fourth

Amendment's objective reasonableness standard to excessive force claim where, in execution of an arrest

warrant, SWAT Team members ordered non-arrestees onto the ground at gunpoint and handcuffed them

while conducting searches for "wants and warrants")).

16

against the countervailing governmental interests at stake.'" Roguz v. Walsh,

CV 09–1052, 2013 U.S. Dist. LEXIS 50985, at *4–*5, 2013 WL 1498126

(D.Conn., Apr. 5, 2013) (quoting Graham, 490 U.S. at 369 (quotations and

citations omitted)). "The assessment involves consideration of the facts and

circumstances confronting the officers, including the severity of the crime at

issue, whether the suspect posed an immediate threat to the officers or

others, and whether the suspect was resisting arrest or attempting to flee to

evade arrest." Id. "Reasonableness is judged ‘from the perspective of a

reasonable officer on the scene, rather than with the 20/20 vision of

hindsight,' while considering 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. (quoting Graham, 490 U.S. at 397).

Frego, 2015 WL 4728922, at *8.

Assuming without deciding that Officer Mahaffy’s push of Plaintiff constituted

unconstitutional excessive force, the Court examines whether Defendants have presented

a facially meritorious claim for qualified immunity in their memorandum of law. See CF

Fresh, 2021 WL 4129161, at *8; Local Rule 7.1(b)(3). Qualified immunity is an affirmative

defense on which the defendant bears the burden of proof. See Jackler v. Byrne, 658 F.3d

225, 242 (2d Cir. 2011). “It ‘protects government officials from liability for civil damages

insofar as their conduct does not violate clearly established statutory or constitutional

rights of which a reasonable person would have known.’” Ismael v. Charles, No.

1:18-CV-3597-GHW, 2020 WL 4003291, at *8 (S.D.N.Y. July 15, 2020)(quoting Pearson

v. Callahan, 555 U.S. 223, 231 (2009))(interior quotation marks and citation omitted).

“The doctrine thus ‘balances two important interests—the need to hold public officials

accountable when they exercise power irresponsibly and the need to shield officials from

harassment, distraction, and liability when they perform their duties reasonably.’” Id.

(quoting Pearson, 555 U.S. at 231).

17

“Courts ‘evaluate claims of qualified immunity at summary judgment using a

two-part inquiry: (1) whether the facts, taken in the light most favorable to the party

asserting the injury, show the officer's conduct violated a federal right and (2) whether the

right in question was clearly established at the time of the violation.’” Id. at *9 (quoting

Sloley v. Vanbramer, 945 F.3d 30, 36 (2d Cir. 2019)(internal quotation marks and citation

omitted). “‘Courts have discretion in deciding the order in which to analyze the two prongs

but under either, they may not resolve genuine disputes of’ material fact.’” Id. (quoting

Sloley, 945 F.3d at 36 (internal quotation marks and citation omitted).

“‘Clearly established’ means that, at the time of the officer's conduct, the law

was sufficiently clear that every reasonable official would understand that

what he is doing is unlawful.” Dist. of Columbia v. Wesby, 138 S. Ct. 577,

589 (2018)(quotation omitted). “[E]xisting law must have placed the

constitutionality of the officer's conduct beyond debate.” Id. (quotation

omitted). “This demanding standard protects all but the plainly incompetent

or those who knowingly violate the law.” Id. (quotation omitted). The

Supreme Court has “repeatedly stressed that courts must not define clearly

established law at a high level of generality, since doing so avoids the crucial

question whether the official acted reasonably in the particular circumstances

that he or she faced.” Id. at 590 (quotation omitted).

Qualified immunity protects an officer so long as “it was objectively

reasonable for the officer to believe the conduct at issue was lawful.” Mudge

v. Zugalla, 939 F.3d 72, 79 (2d Cir. 2019)(quotation omitted). “An officer is

entitled to qualified immunity if any reasonable officer, out of the wide range

of reasonable people who enforce the laws in this country, could have

determined that the challenged action was lawful.” Muschette v. Gionfriddo,

910 F.3d 65, 70 (2d Cir. 2018) (quotation omitted).

Id.

Here, even when taking the facts in the light most favorable to Plaintiff, the Court

concludes that a reasonable officer, situated as Officer Mahaffy was, could have

determined that rushing in and pushing Plaintiff away from Foster was lawful. Even if

18

Mahaffy did not see Plaintiff knock Foster’s helmet off his head, the facts are undisputed

that he witnessed Plaintiff arguing with Foster about getting to the burning building in an

attempt to save Plaintiff’s dog. Further, as evidenced by the video both sides present,

Mahaffy was able to observe that Foster had to physically escort Plaintiff outside the

yellow tape marking the firefighting perimeter. Moreover, the video depicts that when

Plaintiff reached the yellow tape he pivoted around so that he was facing Foster. At this

point, Plaintiff was at close range to Foster, and Foster was seemingly continuing to

physically force Plaintiff to leave the firefighting area while continuing to yell at Plaintiff to

leave. Although Plaintiff may have pivoted around to face Foster only to continue to plead

with him to try to rescue Plaintiff's dog, a reasonable officer in Mahaffy's position could

have interpreted the situation - including that Foster was seemingly continuing to

physically push Plaintiff back and was yelling at Plaintiff to leave the area - as a

continuation or escalation of the confrontation between Plaintiff and Foster from inside the

firefighting perimeter. Under these rapidly evolving circumstances, the Court cannot

conclude that no reasonable officer would have thought it was unlawful to rush in and

push Plaintiff backwards to create separation between Plaintiff and Foster to prevent any

further escalation of what appeared to be a physical confrontation between the two. Thus,

the Court will grant summary judgment to Mahaffy on the excessive force claim on

qualified immunity grounds.

b. Failure to Intercede (Fifth Cause of Action)

Plaintiff alleges in the Fifth Cause of Action: “By their conduct and under color of

state law, it is believed that the defendants Mahaffy, Foster, Berger, Ciotti, White, and

John Doe officers and Richard Roe fire department employees, each had opportunities to

19

intercede on behalf of plaintiff to prevent the excessive use of force and unreasonable

seizure but due to their intentional conduct or deliberate indifference declined or refused to

do so.” Compl. ¶ 65. Defendants move to dismiss the failure-to-intercede claims. See

Dkt. No. 25-2 at pp. 26-27. Plaintiff does not respond in opposition to this aspect of

Defendant’s motion. See Dkt. No. 31-1. Thus, to determine whether Plaintiff will be

deemed to have consented to Defendants’ arguments for dismissal of the failure-to-

intercede claims, the Court must determine whether Defendants have met their modest

burden of showing that their argument possesses facial merit. See CF Fresh, 2021 WL

4129161, at *8; Local Rule 7.1(b)(3).

“An officer who fails to intervene is ‘liable for the preventable harm caused by the

actions of the other officers where that officer observes or has reason to know that

excessive force is being used.’” Gochnour v. Burri, No. 6:15-CV-06174 EAW, 2018 WL

10944594, at *3 (W.D.N.Y. July 9, 2018)(quoting Anderson v. Branen, 17 F.3d 552, 557

(2d Cir. 1994)). “Thus, liability attaches where (1) the officer had a realistic opportunity to

intervene to prevent the harm; (2) a reasonable person in the officer's position would have

known that the victim's constitutional rights were being violated; and (3) the officer did not

take reasonable steps to intervene.” Id. (citing Jean–Laurent v. Wilkerson, 438 F. Supp. 2d

318, 327 (S.D.N.Y. 2006), aff'd, 461 F. App'x 18 (2d Cir. 2012)); see Vann v. Sudranski,

No. 16-cv-7367 (VB), 2020 WL 3001072, at *6 (S.D.N.Y. June 4, 2020)(“[F]or liability to

attach, there must have been a realistic opportunity to intervene to prevent the harm from

occurring.”)(quoting Jean-Laurent v. Wilkerson, 461 F. App'x 18, 21 (2d Cir. 2012)).

“Whether the officer had a ‘realistic opportunity’ to intervene is normally a question for the

20

jury, unless, considering all the evidence, a reasonable jury could not possibly conclude

otherwise.” Sloley v. Vanbramer, 945 F.3d 30, 47 (2d Cir. 2019)(citation omitted).

Assuming without deciding that Foster, as a firefighter, had a legal obligation to

intervene to stop Officer Mahaffy’s use of excessive force by pushing Plaintiff, the video

makes clear that the push occurred so rapidly and so suddenly that Foster did not have a

realistic opportunity to intervene to stop it, and no reasonable factfinder coould conlude

otherwise. See O'Neill v. Krzeminski, 839 F.2d 9, 11 (2d Cir. 1988)(Holding that an officer

could not be held liable for failing to intervene in a beating because “[t]he three blows were

struck in such rapid succession that [the defendant] had no realistic opportunity to attempt

to prevent them.”); McLeod v. Llano, No. 17-CV-6062 (ARR/SMG), 2019 WL 1129429, at

*3 (E.D.N.Y. Mar. 12, 2019)(“[I]t is well-established that an officer is not liable for failing to

intervene if the use of force is ‘sudden and brief.’”)(citing Cusamano v. Sobek, 604 F.

Supp.2d 416, 428 n.9 (N.D.N.Y. 2009)); Elufe v. Aylward, No. 09-CV-458 (KAM)(LB), 2011

WL 477685, at *9 (E.D.N.Y. Feb. 4, 2011)(“Where the alleged force consists of a single

push or a ‘rapid succession’ of blows, courts have found that the officer did not have a

realistic opportunity to intervene.”) (citing O'Neill, 839 F.2d at 11–12)); see also Jackson v.

City of White Plains, No. 05-cv-0491 (NSR), 2015 WL 4739762, at *8 (S.D.N.Y. Aug. 7,

2015) (holding that a police officer who was in close proximity to the plaintiff did not have a

realistic opportunity to intervene where another officer “punched [the plaintiff], spoke one

short sentence, and punched him again”); Johnson v. City of N.Y., 05-cv-7519, 2008 WL

4450270 at *6 (S.D.N.Y. Sept. 29, 2008)(granting summary judgment for police officers on

failure-to-intervene claims where the alleged force lasted only a couple of seconds);

21

Jean-Laurent v. Wilkerson, 438 F. Supp.2d 318, 327 (S.D.N.Y. 2006)(granting a motion to

dismiss plaintiff's failure to intervene claims where the alleged use of force was too rapid

for the defendants to have a realistic opportunity to intervene), aff'd in relevant part, 461 F.

App'x 18 (2d Cir. 2012). Thus, Defendants’ motion seeking summary judgment on the

failure-to-intercede claim against Foster is granted.

Although Plaintiff seemingly asserts in the Verified Complaint that Officer Mahaffy

had a duty to intercede to stop another officer from using excessive force, Defendants

point out that when Plaintiff was deposed on December 5, 2019, and was questioned as to

who he claims should have interceded, Plaintiff testified: "Nobody. He could have come up

and talk to me nicely. He didn't have any conversation with me. He just pushed me from

the back." Hasica Pajazetovic 12/05/19 Dep. at p. 83. Even assuming that Plaintiff has a

failure-to-intercede claim against Mahaffy for failing to intercede in Foster’s purported

excessive force in touching Plaintiff’s left arm within the firefighting perimeter, a

reasonable person in Officer Mahaffy’s position would not have known that Plaintiff’s

constitutional rights were being violated by this seemingly innocuous conduct. Plaintiff’s

arms were covered by his camouflaged jacket, and there is no indication that Plaintiff

outwardly displayed some infirmity with his left arm that Mahaffy would have been aware

from his position. Furthermore, the video indicates that Foster grabbed Plaintiff by the

back of his coat near his left shoulder when Foster physically directed Plaintiff to the

yellow tape marking the perimeter of the firefighting area. A reasonable officer in

Mahaffy’s position would not have interpreted that this conduct, under the circumstances,

amounted to unconstitutional excessive force. Defendants’ motion for summary judgment

on this ground is granted, and the failure-to-intercede claim against Mahaffy is dismissed.

22

Plaintiff has failed to demonstrate that Defendants Berger, Ciotti, White, the

unidentified John Doe officers, and the unidentified Richard Roe fire department

employees had opportunities to intercede on behalf of Plaintiff to prevent the excessive

use of force by any officer or any defendant. Thus, summary judgment is granted to these

defendants dismissing the failure-to-intercede claims against them.

c. First and Fourteenth Amendments (Seventh Cause of Action)

Plaintiff asserts in the Seventh Cause of Action:

71. By their conduct and under color of state law, the defendants Mahaffy and

Berger deprived defendant [sic] of his First and Fourteenth Amendment rights to

have access to and seek redress in the courts.

72. The defendants engaged in conduct intended to cover up and conceal

the wrongful and unlawful conduct taken against plaintiff by the defendants

herein.

Dkt. No. 2, at ¶¶ 71-72.

Defendants move for summary judgment on this cause of action. See Dkt. No. 25-

2 at 28-29. Defendants point out that when Plaintiff was asked at his deposition how the

defendants’ conduct denied him access to the courts to redress his grievances arising

from the conduct in issue here, Plaintiff responded: "No one has stopped me from going to

court." Hasica Pajazetovic Dep. at p. 92. Moreover, Defendants argue that Defendants

Mahaffy and Berger properly recorded the events of December 10, 2017 in accordance

with the UPD’s use of force protocol. See Dkt. No. 25-2, at pp. 28-29.

Plaintiff has not responded in opposition to this aspect of Defendants’ motion. See

Dkt. No. 31-1. Plaintiff also does not seek summary judgment on the Seventh Cause of

Action in his motion seeking summary judgment. See Dkt. No. 30-2. Thus, the Court

23

deems the Seventh Cause of Action abandoned. Furthermore, under a Local Rule

7.1(b)(3) analysis the Court finds that Defendants meet their burden of demonstrating a

meritorious argument for summary judgment on this claim. Plaintiff has not demonstrated

that he was denied access to any court by Defendants’ actions, and, as discussed next,

Plaintiff has not demonstrated that Defendants engaged in conduct to cover up the actions

taken against Plaintiff. Accordingly, the Court grants summary judgment to Defendants on

the Seventh Cause of Action.

d. Conspiracy (Eighth Cause of Action)

In the Eighth Cause of Action brought pursuant to 42 U.S.C. § 1983, Plaintiff

alleges:

75. Defendants Mahaffy, Berger, Foster, and John Does under color of law

conspired with one another to deprive plaintiff of his constitutional rights,

including the rights to be free from the intentional use of unreasonable force

and to have access to and seek redress in the courts.

76. In furtherance of the conspiracy and in order to cover up the assault and

battery of the plaintiff, defendants engaged in the following, among other

conduct:

a. Submitting false narratives to insulate Mahaffy and Foster from

administrative and criminal sanctions;

b. Upon information and belief, jointly devising a false, exculpatory

version of the events of December 10, 2017;

c. Refusing to come forward with evidence and information that would

incriminate the individuals involved, in violation of individual

defendants' sworn duty as police officers;

d. Although they were aware of the assault and battery of the plaintiff,

and were required to report it immediately, they deliberately

suppressed the truth.

Dkt. No. 2, at ¶¶ 75-76.

24

Defendants move for summary judgment on this cause of action, arguing, inter alia,

that “Plaintiff offers absolutely nothing substantive to support a contention that the

Defendants formed an agreement to violate his rights,” that the claim is barred by the

intracorporate conspiracy doctrine, and that Plaintiff provides no evidence “to suggest that

Defendants were motivated by an independent personal stake in his removal from the fire

scene.” Dkt. No. 25-2, at pp. 29-33. Plaintiff offers no opposition to Defendants’ motion

addressed to the Eighth Cause of Action. See Dkt. No. 31-1.

The Court finds that Defendants’ arguments for summary judgment on the Section

1983 conspiracy claim meet their modest burden of showing that their arguments possess

facial merit. See CF Fresh, 2021 WL 4129161, at *8; Local Rule 7.1(b)(3). Without factual

support for the contention that the Defendants formed an agreement to violate Plaintiff’s

civil rights, the claim is legally deficient. See Ciambrello v. County of Nassau, 292 F.3d

307, 324-25 (2d Cir. 2002)(In order to survive a motion to dismiss on his § 1983

conspiracy claim, plaintiff must allege (1) an agreement between two or more state actors,

or a state actor and a private party; (2) to act in concert to inflict an unconstitutional injury;

and (3) an overt act done in furtherance of that goal causing damages.)(citing Pangburn v.

Culbertson, 200 F.3d 65, 72 (2d Cir.1999)); id. at 325 (“[C]omplaints containing only

conclusory, vague, or general allegations that the defendants have engaged in a

conspiracy to deprive the plaintiff of his constitutional rights are properly

dismissed.”)(quoting Dwares v. City of N.Y., 985 F.2d 94, 100 (2d Cir.1993)); Walker v.

Jastremski, 430 F.3d 560, 564 n. 5 (2d Cir.2005) (“[C]onclusory or general allegations are

insufficient to state a claim for conspiracy under § 1983....”); McIntyre v. Longwood

25

Central School Dist., No. 07 Civ. 1337(JFB), 2008 WL 850263, at * 11 (E.D.N.Y. Mar.27,

2008)(Although “[a] plaintiff is not required to list the place and date of defendants[']

meetings and the summary of their conversations when he pleads conspiracy, [ ] the

pleadings must present facts tending to show agreement and concerted action.”)(internal

quotation marks and citations omitted).

Furthermore, “[t]he intracorporate conspiracy doctrine posits that the officers,

agents, and employees of a single corporate or municipal entity, each acting within the

scope of his or her employment, are legally incapable of conspiring with each other.”

Rodriguez v. City of New York, No. 05 Civ. 5117(JFB), 2008 WL 420015, at *25 (E.D.N.Y.

Feb.11, 2005)(citation omitted); see Peck v. Cty. of Onondaga, New York, No.

5:21-CV-651, 2021 WL 3710546, at *15 (N.D.N.Y. Aug. 20, 2021)(“Courts in the Second

Circuit recognize the ‘intracorporate conspiracy doctrine,’ which holds that the ‘officers,

agents, and employees of a single corporate entity are legally incapable of conspiring

together.’”)(quoting Hartline v. Gallo, 546 F.3d 95, 99 n.3 (2d Cir. 2008) (internal citations

and quotation marks omitted)). “The doctrine's root logic is that ‘because employees

acting within the scope of their employment are agents of their employer, an employer and

its employees are generally considered to be a single actor, rather than multiple

conspirators.’” Johnston v. City of Syracuse, No. 5:20-CV-1497, 2021 WL 3930703, at *9

(N.D.N.Y. Sept. 2, 2021)(quoting Fed. Ins. Co. v. United States, 882 F.3d 348, 368 (2d Cir.

2018)). Although the Second Circuit has only applied the doctrine in the context of

Section 1985 conspiracies, the Court agrees with those courts that have applied the

26

doctrine to Section 1983 conspiracies. See Peck, 2021 WL 3710546, at *15-*16.9 Here,

because all defendants were employed by Utica, the intracorporate conspiracy doctrine

bars the conspiracy claim unless an exception to that doctrine applies.

The “personal stake” exception to the intracorporate conspiracy doctrine allows for

a corporate employee to nevertheless conspire with his or her coworkers if he or she is

“motivated by an improper personal interest separate and apart from that of their

principal.” Peck, 2021 WL 3710546, at *15. “A personal stake typically contemplates that

the defendant ‘exercises official duties in unconstitutional ways to secure personal

benefit.’” Johnston, 2021 WL 3930703, at *9 (quoting Peck, 2021 WL 3710546, at

*15)(citations omitted). “Some examples of a personal stake include infringing a plaintiff's

rights to cover up for a prior use of excessive force, engaging in race-based false arrests

9Judge Hurd wrote in Peck:

The Second Circuit has routinely applied the doctrine to § 1985 claims, although it has not

yet applied it to claims under § 1983. Ali v. Connick, 136 F. Supp. 3d 270, 282 (E.D.N.Y.

2015). However, most courts in this Circuit have applied the intracorporate conspiracy

doctrine to § 1983 conspiracies as well, reasoning that which statute a court is applying does

not alter the doctrine's foundational logic. Chamberlain v. City of White Plains, 986 F. Supp.

2d 363, 388 (S.D.N.Y. 2013) (collecting cases).

That logic runs like this: a conspiracy by definition must involve multiple people. Chamberlain,

986 F. Supp. 2d at 388. But if everyone involved in the conspiracy acted as an agent of the

same corporate entity, in reality the acts were not borne out by a conspiracy of individuals,

but by a single corporate actor. See id. Because municipalities are themselves corporations,

the same logic has been extended to local governments as well. See Broich v. Inc. Vill. of

Southampton, 650 F. Supp. 2d 234, 247 (E.D.N.Y. 2009) (applying intracorporate conspiracy

doctrine to village).

* * *

As an initial matter, this Court agrees that the logic behind the intracorporate conspiracy

doctrine carries over from § 1985 to § 1983. See Chamberlain, 986 F. Supp. 2d at 388

(collecting cases for principle that intracorporate conspiracy doctrine should apply to § 1983

claims as well).

2021 WL 3710546, at *15-*16.

27

to boost arrest numbers in pursuit of a promotion, or acting out of pure malice.” Id. (citing

Ali v. Connick, 136 F. Supp. 3d 270, 282-83 (E.D.N.Y. 2015)).

Although Plaintiff alleges in the Verified Complaint that the defendants conspired “in

order to cover up the assault and battery of the plaintiff” and did so by submitting “false

narratives,” an examination of the claims made here reveals that Plaintiff’s grievance is

that the defendants did not put enough information in the use of force reports which could

have aided him on his claims in this case, or that amounts to quibbles over the verbiage of

the statements made in the use of force reports. See Dkt. No. 30-2 at p. 4;10 Id. at 6.11

A review of the use of force reports by the various UPD officials does not support a

conclusion that the defendants attempted to cover up Officer Mahaffy’s use of force by

submitting false narratives. Officer Mahaffy’s narrative indicates:

10Plaintiff argues in his memorandum of law in support of his summary judgment motion:

In reporting his use of force to the Sergeant, the Defendant Ashley Berger, the Defendant

Daniel Mahaffy reported that he had used force due to a “shouting match” between the

plaintiff and Fire Marshall Foster. Foster never asked for aid. No photos were taken of Mr.

Pajazetovic or of the scene or of the allegedly raised piece of sidewalk upon which the

defendants claim he fell, and no witnesses were interviewed other than a cursory discussion

with the Plaintiff, Defendant Mahaffy, and Defendant Foster. Sergeant Berger then reported

her findings to the Lieutenant, Sean Dougherty, who then sent a report to the captain. That

entire process is documented in narratives contained in the police report, and nowhere do

the narratives indicate that Mr. Pajazetovic knocked Defendant Foster’s helmet off.

Dkt. No. 30-2 at p. 4.

11Plaintiff argues in connection with his failure to train and supervise claim:

There is supervisory liability by the City of Utica in its failure not only to properly train but also

to supervise. There was only a superficial investigation conducted where not all evidence

was gathered. For example (not an exhaustive list), not all witnesses were interviewed, and it

was claimed that the plaintiff tripped on a sidewalk but no photographs of the sidewalk were

secured. This was “rubber-stamped” up the chain of command, demonstrating that there is a

municipal custom to perform only the most cursory investigation to exonerate the officer

without full development of the facts.

Dkt. No. 30-2 at 6.

28

At about 1 :50pm I was standing by a tree next to my car and saw a firemen

involved in an altercation with a civilian dressed in all camo in the parking lot

of 329 South St. I immediately went to aid the firemen [sic] who I now

realized was Fire Marshall Gerald Foster. Foster was yelling at the male to

get back and had him by his shirt collar pulling him west across Seymour

Ave and I immediately ran toward the altercation at which time my BWC

#5182 went flying off of my jacket. Fire Marshall Foster reached the other

side of the tape at which time he let go of the male who I now know to be

Hasic [sic] Pajazetovic. Pajazetovic then lunged forward back at Fire

Marshall Foster at which time I pushed him back and he lost his footing on

the sidewalk and fell. Pajazetovic got right back up at which time Fire

Marshall Foster began to explain the situation to him and he calmed down

and advised us he was the owner of the structure that was on fire and he

only wanted to go in to get his dog.

Dkt. 30-14 at p. 4.

Sgt. Berger’s narrative indicates:

While the building was still on fire a white male went inside the secure area

of the scene and attempted to get into the building several times. The male

had to be physically removed from the scene by Fire Marshall Foster and he

continued to be physically resistant with FM Foster and attempted to get

back into the building. PO Mahaffy observed the male pushing back on FM

Foster while he was forcefully removing him and verbally telling him to leave

for the third time. Believing that the male was fighting with Fire Personnel

and refusing to leave the scene, PO Mahaffy ran to the aid of FM Foster and

got in between the two and pushed the male to get him away from FM Foster

and the active fire scene. When PO Mahaffy pushed the male the male lost

his footing and tripped on the sidewalk, causing him to fall back on to his

rear end. PO Mahaffy then learned that the male is Hasica Pajazetovic and

is the owner of the business that was on fire. Hasica was not injured and did

not make a complaint. He stated he understood why the Fire Marshall and

Police Officer acted the way they did and he was just distraught over his

building being on fire and him having valuables inside.

Id. at pp. 4-5.

In an addendum, Sgt. Berger indicates:

Immediately after the incident PO Mahaffy called my cell phone as I was

checking on the barricades located on Rutger St. PO Mahaffy advised me of

the incident and I responded to his location. Upon my arrival I spoke with

Hasica Pajazetovic about what happened. Another male, which Hasica

identified as his son-in-law, acted as a translator to ensure Hasica and me

29

and the other officials understood each other. Hasica stated that he was

concerned about his dog being in the building and that is why he kept trying

to enter it. He stated several times that the building is all that he has. Hasica

said that he was not injured and that he understood why FM Foster and PO

Mahaffy did what they did. I also spoke with FM Foster who advised me that

Hasica entered the firefighters area of operations and was told to leave

several times. FM Foster said that because Hasica was not complying he

took a hold of Hasica and began to physically escort him out of the scene.

FM Foster stated that he and Hasica had a physical back and forth and it

would have appeared to be a scuffle to PO Mahaffy. FM Foster said PO

Mahaffy came to his aid and pushed Hasica away from the FM to separate

the two and when he did that Hasica lost his footing and fell down onto his

rear end. FM Foster said that Hasica did not hit his head during the fall and

was not at all injured. FM Foster said this all in the presence of Hasica and

his son-in-law. I verified with Hasica that he understood why the officer and

Fire Marshall acted the way they did and he agreed.

Investigative Findings:

Upon reviewing all reports, narratives, and watching the video footage, I

concluded the following: PO Mahaffy acted appropriately to protect the

safety of the Utica Fire Marshal, the property owner, and to protect the

integrity of the scene. Due to the nature of the incident PO Mahaffy chose to

use discretion and not arrest Hasica for Obstructing Firefighting Operations

(PL 195.15), though an arrest for same would have been lawful. The

Response to Resistance was in compliance with Policy and Procedures of

the Utica Police Department and applicable laws. The force used in this

instance was lawful, authorized, justified and within department guidelines.

Id. at p. 7.

Lt. Sean Dougherty’s memo to Chief of Police Mark W. Williams indicates:

While Mahaffy was conducting crowd/traffic control, a white male, Hasica

Pajazetovic, entered the taped off area and attempted to enter the burning

structure. As a result, the Fire Marshal, Gerald Foster, had to physically

remove Pajazetovic from the scene. From his post, Mahaffy observed

Pajazetovic resisting Foster's efforts to remove him and ran over to assist.

Seeing that the two were still engaged, Mahaffy pushed Pajazetovic away

from Foster. Pajazetovic lost his footing and fell backwards, onto the ground.

Some family members of Pajazetovic stepped in and the situation eventually

de-escalated. Mahaffy chose not to arrest Pajazetovic for Obstructing

Firefighting Operations, after learning that he was the owner of the burning

structure. Pajazetovic was not injured as a result of being pushed down and

after being interviewed by Berger, understood why Foster and Mahaffy

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reacted the way they did. Any BWC footage related to the incident was

tagged. No photographs were taken. Footage from a news media outlet was

secured on a memory stick and forwarded to Professional Standards, with

my report.

Findings:

Based upon my review of this incident, I agree with Berger's findings that Mahaffy

acted in accordance with our procedural manual, when he pushed Pajazetovic

away from Fire Marshal Foster. This case-is ready for closure.

Id. at pp. 5-6.

These narratives each recount the situation generally consistent with that displayed

in the videos each side presented. Although the officials say in their reports that Plaintiff

“lost his footing on the sidewalk and fell,” “lost his footing and tripped on the sidewalk,

causing him to fall back on to his rear end,” “lost his footing and fell down,” and “lost his

footing and fell backwards,” all statements indicate that the fall directly followed Mahaffy’s

push of Plaintiff. By connecting Plaintiff’s fall to Mahaffy’s push, the narratives do not

amount to false information intended to cover up Mahaffy’s use of force. Further, even

assuming that there are some deficiencies in the content of the use of force reports that

do not fully comply with the UPD’s policy, these deficiencies do not indicate that the

defendants were attempting to cover up that Mahaffy used force by pushing Plaintiff

causing him to fall. Thus, there is no basis to apply the personal stake exception to the

intracorporate conspiracy doctrine. That being the case, Defendants’ motion seeking

summary judgment on the Section 1983 conspiracy claim alleged in the Verified Complaint

is granted.

e. State Law Claims

Although the parties indicate that the Third Cause of Action might assert a claim

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under Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690 (1978), the claim is specifically

pled as a negligent hiring, training, and retention claim. See Dkt. No. 2 at ¶ 63 (“That the

aforesaid incident and resulting damage to the plaintiff were due to the negligence of the

City of Utica, its agents, servants and/or employees, . . . in the hiring, training, and

retention of the involved UPD officers, . . . [and] in the hiring, training, and retention of the

involved UFD employees, including Foster.”). “Failure to train or supervise city employees

may constitute an official policy or custom supporting Monell liability if the failure amounts

to ‘deliberate indifference’ to the rights of those with whom the city employees interact.”

Martin v. City of New York, No. 11-CV-02862 ENV, 2012 WL 4569757, at *3 (E.D.N.Y.

Sept. 29, 2012) (citing City of Canton v. Harris, 489 U.S. 378, 388, 109 S. Ct. 1197, 103 L.

Ed.2d 412 (1989)). “In establishing deliberate indifference, the ‘operative inquiry is

whether the facts suggest that the policymaker's inaction was the result of a conscious

choice rather than mere negligence.’” Id. (quoting Amnesty America v. Town of West

Hartford, 361 F.3d 113, 128 (2d. Cir. 2004) (internal citations and quotations omitted)).

“Thus, plaintiff[] must show that ‘a policymaking official had notice of a potentially serious

problem of unconstitutional conduct, such that the need for corrective action or supervision

was obvious ... and the policymaker's failure to investigate or rectify the situation

evidences deliberate indifference, rather than mere negligence or bureaucratic inaction.’”

Id. (quoting Amnesty America, 361 F.3d at 128). “Because the complaint itself admits that

the City was merely negligent in its hiring, training and [retention], it fails to state a Monell

claim on that theory.” Id. Furthermore, “[c]ourts have repeatedly held that it is improper to

consider claims not asserted in the complaint and raised for the first time at the summary

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judgment stage.” Comerford v. Vill. of N. Syracuse, No. 5:18-CV-01143 (BKS/TWD), 2021

WL 950974, at *27 (N.D.N.Y. Mar. 12, 2021)(citing Greenidge v. Allstate Ins. Co., 446

F.3d 356, 361 (2d Cir. 2006) (declining to reach the merit of claims asserted for the first

time at the summary judgment stage and not included in the complaint); Gonzalez v. Dist.

Council 37, AFSCME, AFL-CIO, SSEU Local 371, No. 20-cv-551, 2021 WL 329852, at *2,

2021 U.S. App. LEXIS 2802 (2d Cir. Feb. 2, 2021) ("The district court did not err in

declining to address this claim ... since the claim turned on an allegation not made in the

amended complaint and was raised for the first time in opposition to the Union's motion for

summary judgment."); Wade v. Elec. Boat Corp., No. 16-cv-2041, 2019 WL 4805031, at

*3 n.2, 2019 U.S. Dist. LEXIS 169148 (D. Conn. Sept. 30, 2019)("Plaintiff attempts to

allege additional adverse employment actions in her response to defendant's motion for

summary judgment. Plaintiff may not raise new claims in her responsive briefing.")). Thus,

the Court does not consider the Fourth Cause of Action as asserting a federal claim.

Having dismissed all federal claims in this case, the Court has discretion to dismiss

the supplemental state-law claims pled in the Complaint. Federman v. Empire Fire &

Marine Ins. Co., 597 F.2d 798, 809 (2d Cir. 1979). In many cases, “‘if [all] federal claims

are dismissed before trial . . . , the state claims should be dismissed as well.’” Motorola

Credit Corp. v. Uzan, 388 F.3d 39, 56 (2d Cir. 2004) (quoting Castellano v. Bd. of

Trustees, 937 F.2d 752, 758 (2d Cir. 1991)). If, however, “‘the dismissal of the federal

claim occurs late in the action, after there has been substantial expenditure in time, effort,

and money in preparing the dependent claims, knocking them down with a belated

rejection of supplemental jurisdiction may not be fair. Nor is it by any means necessary.’”

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Id. (quoting Purgess v. Sharrock, 33 F.3d 134, 138 (2d Cir. 1994) (internal citation

omitted)).

While the Court recognizes that extensive discovery and motion practice has

occurred in this matter, the Court concludes that the best use of judicial resources would

be to dismiss the State claims without prejudice. The Court notes that three of the

remaining four state-law claims rely on respondeat superior liability that is not available

under federal law, see Agosto v. N.Y. City Dep't of Educ., 982 F.3d 86, 97-98 (2d Cir.

2020) (Federal law "expressly prohibits respondeat superior liability for municipalities," and

"a plaintiff must demonstrate that ‘through its deliberate conduct, the municipality was the

‘moving force' behind the injury alleged.'")(quoting Bd. of Cty. Commr's of Bryan Cty.,

Okla. v. Brown, 520 U.S. 397, 404 (1997) (emphasis in original)), assert claims under New

York state common law for assault and battery, prima facie tort, negligence and

recklessness, and negligent hiring, training, and retention, and Defendants raise the

defense of New York qualified immunity to these claims. The Court finds that a state court

would be better equipped to address the questions raised by these issues, including

determining whether state law qualified immunity would apply, and, if it does, the interplay

between that defense and municipal liability. The Court will therefore dismiss the state-

law claims without prejudice to repleading in an appropriate forum. See N.Y. C.P.L.R. §

205.

IV. CONCLUSION

For the reasons set forth above, Defendants’ motion for summary judgment, Dkt.

No. 25, is GRANTED as to the Fifth, Sixth, Seventh, and Eighth Causes of Action, and

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these causes of action are DISMISSED. The Court also DISMISSES the First, Second,

Third, and Fourth Causes of Action without prejudice to re-pleading in state court.

Defendants’ motion is DENIED without prejudice in all other respects. Plaintiff's motion for

summary judgment, Dkt. No. 30, is DENIED as moot.

IT IS SO ORDERED.

Dated: September 27, 2021 On

Senior, U.S. District Judge

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