Snyder v. Fish

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

ROBERT SNYDER,

Plaintiff, No. 1:19-CV-1085

(CFH)

V.

a

WILLIAM FISH and

CHRISTOPHER LUBRANT,

Defendants.

APPEARANCES: OF COUNSEL:

Breedlove, Noll, LLP BRIAN BREEDLOVE, ESQ.

i 82 Glenwood Avenue CARRIE MCLOUGHLIN NOLL, ESQ.

Queensbury, New York 12804

Attorneys for plaintiff

Attorney General for the CHRISTOPHER LIBERATI-CONANT

State of New York ESQ.

The Capitol AMANDA K. KURYLUK, ESQ.

Albany, New York 12224 Assistant Attorneys General

Attorneys for defendants

MEMORANDUM-DECISION & ORDER’

1. Background

On August 30, 2019, plaintiff Robert Snyder (“plaintiff’) commenced this action

against defendants New York State Troopers William Fish (“Trooper Fish”) and

Christopher Lubrant (“Trooper Lubrant”) (collectively, where appropriate, “defendants’),

pursuant to 28 U.S.C. § 1983, asserting violations of his constitutional rights, as well as

The parties have consented to magistrate jurisdiction over this matter, including entry of judgment,

pursuant to 28 U.S.C. § 636. See Dkt. Nos. 19, 22.

various state law torts. See generally Dkt. No. 1; Dkt. No. 44 (“Am. Compl.”). Presently

before the Court is defendants’ motion for summary judgment filed pursuant to Federal

Rule of Civil Procedure (“FED. R. Civ. P.”) 56. See Dkt. No. 41. Plaintiff has filed a

response. See Dkt. Nos. 45-47. Defendants have filed a reply. See Dkt. No. 48.

As an initial matter, after defendants filed the instant motion, plaintiff withdrew his

Third and Fourth Causes of Action completely, as well as his Second Cause of Action,

in part. See Dkt. No. 46 at 19; see also Am. Compl. at 11-15 J] 66-89. Those claims

alleged violations of his constitutional rights relative to his First Amendment right to free

speech, Eighth Amendment deliberate indifference to serious medical needs, and

Fourth Amendment unlawful search and seizure. See Am. Compl. at 11-15, Ff] 66-89.

Thus, the remaining claims include plaintiff's First Cause of Action (Section 1983

m| excessive force), Fifth Cause of Action (state law false arrest), Sixth Cause of Action

(state law assault and battery), Seventh Cause of Action (state law negligence), and the

remaining portion of plaintiff's Second Cause of Action (Section 1983 false arrest).2 An

additional, unnumbered cause of action asserting a Section 1983 failure to intervene

claim relative to the excessive force claim is also addressed. See id. at 6, 8, Jf 35, 52.

For the following reasons, defendants’ motion for summary judgment is granted in part

and denied in part.

2On March 15, 2022, after defendants submitted their motion, plaintiff filed an Amended Complaint upon

stipulation of the parties, correcting certain mistakes as to the identity of each defendant. See Am.

Compl.; Dkt. No. 46 at 1, 19. The Court will not consider the portions of the Amended Complaint referring

to the causes of action plaintiff subsequently vont

ll. Summary Judgment Standard

Summary judgment is warranted if there is “no genuine dispute as to any materia

fact and the movant is entitled to judgment as a matter of law.” FED. R. Civ. P. 56(a).

An issue of fact is material if it “might affect the outcome of the suit under the governing

law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is “genuine’

|... if the evidence is such that a reasonable jury could return a verdict for the

nonmoving party.” Id. (citations omitted). “Factual disputes that are irrelevant or

unnecessary will not be counted.” Id. (citations omitted).j

The moving party bears the initial burden of showing, through the production of

admissible evidence, that no genuine issue of material fact exists. See Salahuddin v.

Goord, 467 F.3d 263, 272-72 (2d Cir. 2006). To meet this burden, the moving party can

demonstrate that the non-movant 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.” Celotext Corp. v. Catrett, 477 U.S. 317, 322 (1986).

Where the non-movant

bears the burden of proof at trial, the movant may show prima facie

entitlement to summary judgment in one of two ways: (1) the movant may

point to evidence that negates its opponent's claims or (2) the movant may

identify those portions of its opponent’s evidence that demonstrate the

absence of a genuine issue of material fact, a tactic that requires

identifying evidentiary insufficiency and not simply denying the opponent’s

pleadings.

Salahuddin, 467 F.3d at 272-73 (citing Celotex, 477 U.S. at 323 (citations omitted)).

Where the moving party satisfies its burden “in either manner,” the non-movant

must “point to record evidence creating a genuine issue of material fact.” Salahuddin,

467 F.3d at 273 (citations omitted). However, the non-moving party must do more than

“simply show that there is some metaphysical doubt as to the material facts.”

Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).

Likewise, “[c]onclusory allegations, conjecture and speculation. . . are insufficient to

create a genuine issue of fact.” Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998).

In determining whether a genuine issue of fact exists, the court must resolve all

o ambiguities and draw all reasonable inferences against the moving party. See Major

Leaque Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 309 (2d Cir. 2008).

Nevertheless, “[t]he mere existence of a scintilla of evidence in support of the plaintiff's

position will be insufficient; there must be evidence on which the jury could reasonably

find for the plaintiff.” Jeffreys v. City of N. Y., 426 F.3d 549, 554 (2d Cir. 2005). “At the

summary judgment stage, a nonmoving party must offer some hard evidence showing

| that [his] version of the events is not wholly fanciful.” Id. (citations omitted).

lll. Discussion

A. Undisputed Material Facts

On the afternoon of September 1, 2018, plaintiff picked up his friend Jason

Hayes (“Jason”) and Jason’s son, Jake Hayes (“Jake”), as the two men planned to help

plaintiff clean out his barn in a rural wooded area in Schenectady County. See Dkt. No.

41-1 at 1, ] 1; Dkt. No. 47 at 2, 9.1; Dkt. No. 41-7 at 23. The Hayeses brought along

with them “a couple six packs of beer and a bottle of Bourbon.” Dkt. No. 41-1 at 1, ] 2;

Dkt. No. 47 at 2, J 2. Throughout the day and into the evening, plaintiff consumed

“approximately four beers and ‘two’ sips of Jameson.” Dkt. No. 41-1 at 2, J 3; Dkt. No.

47 at 2,] 2. Sometime around midnight, while alone in the barn, plaintiff overheard an

argument outside between Jason and Jake. See Dkt. No. 41-1 at 2, 7 4; Dkt. No. 47 at

2,94. After plaintiff left the barn, and upon “see[ing] what was going” (the details of

“what was going on” are unclear), plaintiff told Jake to leave. Id. at Dkt. No. 41-1 at 2, J

5; Dkt. No. 47 at 2, 7 5.

° Plaintiff noticed that Jason was injured, with “blood all over his shirt and ‘blood

squirting out” from his head. Dkt. No. 41-1 at 2, J] 6-7; Dkt. No. 47 at 2, J{J 6-7; Dkt.

No. 41-5 at 30; Dkt. No. 45-3 at 42-43. Plaintiff then ran across the street to his home

to get his grandson to call 911. See id. Plaintiff returned to Jason and held a towel ove

his wound. See Dkt. No. 47 at 10, 9 45; Dkt. No. 48-1 at 1, 7 45.

Thereafter, at approximately 2:00 AM, defendants received a 911 dispatch call

for EMS assistance at plaintiff's property concerning the report of a possible assault.

See Dkt. No. 41-1 at 2, J 8; Dkt. No. 47 at 2, J 8; Dkt. No. 41-8 at 1. Defendants drove

to the location together in a single patrol car. See Dkt. No. 41-1 at 2, 7 8; Dkt. No. 47 at

2, 8; Dkt. No. 41-8 at 1. When they arrived, Trooper Fish parked the car directly

behind an ambulance that was already on scene. See Dkt. No. 41-1 at 2, J 9; Dkt. No.

47 at 2,9. 9. Near the ambulance, Trooper Fish observed EMS personnel tending to an

injured person. See Dkt. No. 41-1 at 2, 7 9; Dkt. No. 47 at 2, 9.9. He also noticed three

other individuals on the property, later identified as plaintiff's sons, Timothy Snyder and

Robert J. Snyder, and plaintiff's grandson, Connor Snyder. See Dkt. No. 41-1 at 2, J

10; Dkt. No. 47 at 2-3, | 10.

At some point, Trooper Fish went to talk to the person in the ambulance and

Trooper Lubrant approached plaintiff. See Dkt. No. 41-1 at 2, 911; Dkt. No. 47 at 3, J

11. At the ambulance, Jason identified himself to Trooper Fish. See Dkt. No. 41-1 at 3,

q 12; Dkt. No. 47 at 312. As Jason was bleeding from the side of his head, Trooper

Fish asked him what happened. See Dkt. No. 41-1 at 3, 7 13; Dkt. No. 47 at 3 J 13.

Jason told Trooper Fish that he had been drinking and fell. See id.

Trooper Lubrant approached plaintiff, who had blood “on his arm and stuff.” Dkt.

41-1 at 3, 9 14; Dkt. No. 47 at 3, 7 14. However, plaintiff had no injuries of his own.

See Dkt. No. 47 at 11, 7 49; Dkt. No. 48-1 at 1, ] 49. Trooper Lubrant asked plaintiff

what was going on. See Dkt. No. 41-1 at 3, 7 18; Dkt. No. 47 at 3, 718. At some point

while speaking with Trooper Lubrant, “plaintiff ceased being cooperative.” Dkt. No. 41-1

at 3-4, Jf 19, 21-22; Dkt. No. 47 at 6-8, J] 19, 21-22. When plaintiff ceased being

cooperative and asserted his right to a lawyer, Trooper Lubrant proceeded to handcuff

m| him. See Dkt. No. 41-1 at 4, Jf] 19, 21-22; Dkt. No. 47 at 7-8, J] 19, 21-22.

Once handcuffed, Trooper Lubrant walked plaintiff down to the patrol car. See

Dkt. No. 41-1 at 4, 7 23; Dkt. No. 47 at 8, ] 23. Trooper Lubrant remained behind

plaintiff with “his right arm in [p]laintiff's right arm and his left arm in [p]laintiff's arm all

while [p]laintiff's arms were handcuffed behind his back.” Id. Before reaching the car,

plaintiff's pants fell down to his ankles. See Dkt. No. 41-1 at 4, J 24; Dkt. No. 47 at 8, J

Ultimately, plaintiff fell to the ground on his face. See id. Trooper Lubrant then

picked plaintiff up. See Dkt. No. 41-1 at 4, J 25; Dkt. No. 47 at 8, J 25.

After speaking with Jason, Trooper Fish went to move his car out of the way to

allow the ambulance to get by. See Dkt. No. 41-1 at 4, 9 27; Dkt. No. 47 at 9,927. As

Trooper Fish started walking back up to the scene, he saw Trooper Lubrant walking

plaintiff toward the patrol car. See Dkt. No. 41-1 at 4, J 28; Dkt. No. 47 at 9, J 28.

While the two men approached the patrol car, Trooper Fish noticed plaintiff was in

handcuffs with both hands behind his back as Trooper Lubrant followed from behind.

See Dkt. No. 41-1 at 4, J 29; Dkt. No. 47 at 9, 9 28. Plaintiff appeared to be struggling

as his pants had fallen to his ankles. See Dkt. No. 41-1 at 4-5, J 30; Dkt. No. 47 at 9, J

30.

When plaintiff and Trooper Lubrant reached the patrol car, Trooper Fish opened

the backdoor on the passenger side. See Dkt. No. 41-1 at 5, 9 31; Dkt. No. 47 at 9, J

31. Plaintiff proceeded to sit down on the backseat with his legs facing out of the

vehicle. See id. Trooper Lubrant noticed that plaintiff had a cut on his head, which he

then treated with gauze. See Dkt. No. 41-1 at 5, J 32; Dkt. No. 47 at 9, J 32.

Following his fall, plaintiff lost consciousness for a period of time. See Dkt. No.

m|41-1 at 6, J 38; Dkt. No. 47 at 10, 7 38. After defendants completed searching the area,

plaintiff was released to his sons. See Dkt. No. 45-2 at 33-34; Dkt. No. 41-6 at 44-45;

Dkt. No. 45-1 at 46-48. Plaintiff did not fall again or sustain any additional injuries. See

Dkt. No. 47 at 11, 50; Dkt. No. 48-1 at 1, 7 50.

After defendants left the scene, plaintiff's family called 911 again due to apparent

injuries to plaintiff's arm. See Dkt. No. 45-1 at 48-49; Dkt. No. 45-2 at 43-45. At

approximately 3:15 AM, a second ambulance returned to the scene to assess

complaints from plaintiff about pain in his left elbow. See Dkt. No. 41-1 at 6, J] 39-40;

Dkt. No. 47 at 10, JJ 39-40. Plaintiff does not remember anything after falling on his

way to the patrol car until the second ambulance arrived. See Dkt. No. 41-1 at 5-6, J

36; Dkt. No. 47 at 10, 7 36. Plaintiff was taken to Bassett Hospital and subsequently

diagnosed with a left elbow fracture requiring surgery. See Dkt. No. 41-1 at 6, J 43-44;

Dkt. No. 47 at 10, ff] 43-44. At no point did plaintiff assault anyone or otherwise commit

crime. See Dkt. No. 47 at 11, 9 55; Dkt. No. 48-1 at 2, 7 55.

B. Parties’ Arguments

1. Defendants’ Arguments

o Defendants’ summary judgment motion seeks to dismiss plaintiff's complaint in

its entirety. See Dkt. No. 41 at 1. Defendants argue that plaintiff cannot establish a

genuine issue of material fact and that the record demonstrates that they did not violate

plaintiff's constitutional rights. See Dkt. No. 41-10 at 3. Defendants contend that the

Court should decline exercising supplemental jurisdiction over any remaining state law

claims. See id. at 3-4. In the alternative, defendants argue that dismissal is warranted

because defendants are entitled to qualified immunity from suit. See id. at 4.

Defendants’ first argument addresses the excessive force claim. See Dkt. No.

41-10 at 9-10. Defendants argue that the right to make an arrest or detain a suspect

accompanies inherent authority to use some degree of physical force, including the use

of handcuffs. See id. at 10. They cite authorities indicating that injuries from

handcuffing, such as “short-term pain, swelling, bruising, and numbness,” cannot

Support an excessive force claim. Id. (citations omitted). As to the claim against

Trooper Fish, defendants cite admissible record evidence indicating that he never made

physical contact with plaintiff and that, to the extent he was involved in plaintiff's

“temporary detainment,” his involvement was limited only to “opening the passenger

door of the patrol vehicle.” Dkt. No. 41-10 at 10-11. Accordingly, they argue, Trooper

Fish cannot be liable for excessive force due to his lack of personal involvement. See

id.

Like their excessive force argument in support of Trooper Fish, defendants

contend that any false arrest claim as to Trooper Fish must be dismissed based on his

lack of personal involvement. See Dkt. No. 41-10 at 13. Defendants point out that, “by

/ the time [Trooper Fish] had walked back up to the scene after moving his patrol

vehicle,” plaintiff was already in handcuffs being escorted by Trooper Lubrant. Id. at 13-

14.

On the other hand, however, defendants acknowledge that Trooper Lubrant used

force upon plaintiff when he placed him in handcuffs and escorted him to the patrol car.

See Dkt. No. 41-10 at 11-12. While they concede that plaintiff fell as he was being

m| escorted, defendants contend this occurred because he tripped on his pants as they fell

to his ankles. Id. Defendants assert Trooper Lubrant did not “lift [plaintiff] up by his

handcuffs”; rather, Trooper Lubrant grabbed him by his arms when helping him up. Id.

at 12. Likewise, they assert that Trooper Lubrant neither “hit” plaintiff nor “thr[e]w him

against the patrol car.” Id. To support this contention, they point out that plaintiff

admitted during his deposition that he cannot recall being hit or thrown against the

| patrol car, thus he lacks admissible evidence to support his claim. See id. On the

whole, defendants argue that the force Trooper Lubrant admittedly used upon plaintiff

was objectively reasonable. See id. at 10-12.

As to the false arrest claim against Trooper Lubrant, defendants argue that his

decision to “temporarily detain” plaintiff was supported by “probable cause” based on hi

observations of “[Jason] covered in blood” and plaintiff being “the only other person at

the scene. .. covered in blood.” Dkt. No. 41-10 at 14. In further support of the

probable cause determination, defendants argue that plaintiff appeared to be “highly

intoxicated” and “slurring his words.” Id. They claim that when Trooper Lubrant tried to

question plaintiff, he became combative and refused to cooperate. See id. Defendants

further contend that “exigent circumstances” justified detaining plaintiff considering

Trooper Lubrant “observed a trail of blood on the property” and, after following the trail,

he discovered “a shed where he saw a bloody hammer and an empty bottle of whiskey

lying on the ground in plain sight.” Id. at 14-15. Based on these alleged cumulative

observations, defendants assert that Trooper Lubrant “felt it was necessary to

temporarily detain [p]laintiff for his own safety and the safety of everyone else until he

could complete his investigation.” Id.

Moreover, defendants assert that they are entitled to qualified immunity, arguing

that no reasonable officer of reasonable competence could disagree as to the legality of

the alleged conduct. See Dkt. No. 41-10 at 21. Defendants also request that the Court

decline to exercise supplemental jurisdiction over plaintiff's remaining state law claims

for false arrest, assault and battery, and negligence. See id. at 22. Notwithstanding,

defendants argue that plaintiff's assault, battery, and false arrest claims are

substantively meritless based on the same reasons and authorities supporting dismissal

for the Section 1983 claims. See id. at 22-23. Relative to plaintiff's negligence claim,

however, defendants argue this claim must be dismissed because the conduct at-issue

is alleged to have been intentional, and that if intentional offensive conduct is

established, the actor is liable for assault, not negligence. See id. at 23-24. Finally,

10

defendants assert that, to the extent they are sued in their official capacities, they are

immune from suit under the Eleventh Amendment. See id. at 24.

In their reply memorandum of law, defendants state that plaintiff “concedes in his

opposition papers that at no point in time did Trooper Fish touch or use excessive

force[.]” Dkt. No. 48 at 5. Defendants argue that any claim premised on Trooper Fish’s

“failure to intervene” should not be allowed to proceed because the complaint “failed to

plead a cause of action for failure to intervene.” Id. Nonetheless, defendants contend

that “Trooper Fish did not participate in handcuffing [plaintiff] and was not in any way

involved in escorting [him] to the patrol car.” Id. at 6. Furthermore, defendants contend

that the record is devoid of evidence establishing Trooper Fish had “a realistic

opportunity to intervene and prevent harm or that he was aware that [plaintiff's]

| constitutional rights were being violated[.]” Id.

Concerning Trooper Lubrant, defendants argue that his deposition testimony and

sworn declaration establish that handcuffing and escorting plaintiff to the patrol car “in

order to conduct a search of the property” was reasonable. Dkt. No. 48 at 7.

Defendants assert that allowances are required to be made for police officers’ actions

because they are often forced to make “split-second judgments” in circumstances that

m| are “tense, uncertain, and rapidly evolving.” Id. Defendants emphasize that plaintiff

was the only person “covered in blood in conjunction with the fact that [he] had become

combative and uncooperative, was slurring his words, and was stumbling around the

property.” Id. Defendants categorically dispute that Trooper Lubrant ever hit, punched,

or struck plaintiff. See id. at 8.

11

Defendants counter plaintiff's lack of probable cause argument by contending

that his purported “intoxicat[ion]” and request for an attorney were not the sole factors

prompting Trooper Lubrant to detain him. Dkt. No. 48 at 9. Rather, defendants justify

the detention based on plaintiff's combativeness, refusal to answer questions, and the

fact that he was the only other person covered in blood. See id. Defendants also claim

° Trooper Lubrant had “already discovered a trail of blood, a bloody hammer, and an

empty whiskey bottle on the property,” which contributed to Trooper Lubrant’s concern

for safety. Id. Defendants reiterate that, based on these latter “exigent circumstances,”

any false arrest claim should be dismissed. Id.

2. Plaintiff's Arguments

Plaintiff argues there are material questions of fact that warrant denying

defendants’ motion. See Dkt. No. 46 at 3. Plaintiff asserts that defendants ignore the

sworn testimonies from multiple witnesses in this case, including his sons, Timothy

Snyder and Robert J. Snyder, his grandson, Connor Snyder, and two EMT workers,

Aaron Kellerman and Jessica Gathen, who were on scene when the incident occurred.

See id. at 3-4. He also contends that defendants “directly contradict each other on a

| Variety of important material facts.” Id. at 4.

Relative to the alleged use of force, plaintiff clarifies that “Trooper Lubrant was

the officer involved in handcuffing and striking the plaintiff. Dkt. No. 46. at 12. Plaintiff

argues that “Trooper Fish was shadowing him and failed to intervene.” Id. In this

respect, plaintiff states that the purpose of amending his complaint was to “correct[] a

12

non-substantive error in the original complaint[:] The troopers’ names were mistakenly

transposed.” Id.

Plaintiff adduces admissible record evidence indicating that he was “cooperative

and answered questions until he was accused of assault. . . [and] asserted his right to a

lawyer.” Dkt. No. 46 at 13. He cites testimony from multiple witnesses indicating that

Trooper Lubrant “handcuffed him and dragged him to the patrol car.” Id. More

specifically, he contends that “[w]itnesses testified that Trooper Lubrant handcuffed him

behind his back, lifted him up by the handcuffs causing him pain, knocked him down on

his face, picked him up by the handcuffs, wrists or forearms breaking his arm and

dislocating his elbow, and then dragged to the patrol car.” Id. Plaintiff counters

defendants’ argument that the alleged injuries are insufficient to support an excessive

force claim by citing record evidence, including eyewitnesses and the parties’ respective

medical experts. See id. at 15. He also cites witness testimony calling into question

whether he was “highly intoxicated” or trying to “flee the scene.” Id. Plaintiff argues that

the force used by Trooper Lubrant cannot be considered “objectively reasonable” under

the circumstances. Id. at 16.

As to Trooper Fish, plaintiff cites to the testimony of his son, Timothy Snyder,

who characterized Trooper Fish as “shadowing” Trooper Lubrant when Trooper Lubrant

used force on plaintiff. Dkt. No. 46 at 16; Dkt. No. 45-1 at 39. Plaintiff points out

Trooper Fish’s acknowledgment that he was present as plaintiff was placed into the

patrol car. See Dkt. No. 46 at 16. Based on these allegations, plaintiff argues that

Trooper Fish is liable for his “failure to intervene” as Trooper Lubrant violated plaintiff's

constitutional rights. Id.

13

In support of his false arrest claim, plaintiff argues that he was arrested—not

merely detained. See Dkt. No. 46 at 17. He cites authorities showing that warrantless

arrests are presumptively invalid and that defendants have failed to establish probable

cause as a defense. See id. (citations omitted). Alternatively, plaintiff argues that to the

extent he was “seized” or merely “detain[ed],” there are material issues of fact

o precluding summary judgment. Id.

Furthermore, plaintiff argues that Trooper Lubrant initially told him that he was

under arrest. See Dkt. No. 46 at 17. He disputes Trooper Lubrant’s proffered

“rationale” for arresting and/or detaining him, claiming that safety concerns or his

purported attempt to flee the scene are “after the fact justification[s,]” and that the real

motivation was retaliation against plaintiff “because he committed the cardinal sin of

m| asking for a lawyer.” Id. at 18-19. Plaintiff further points to the testimony of Trooper

Lubrant and Trooper Fish, which plaintiff contends is contradictory as to the sequence

of events. See id. at 17-18.

Plaintiff disputes defendants’ characterization of him being “covered in blood,”

but nonetheless acknowledges that he had blood on his “shirt,” “arm,” and “stuff.” Dkt.

No. 46 at 5. He also asserts that defendants spoke with plaintiff's sons and grandson

before approaching the ambulance and Jason. See id. at 6. He disputes defendants’

characterization that he was “intoxicated” and “slurring his words.” Id. at 8. Although

plaintiff acknowledges that he wanted to go into his house to sleep, he disputes

defendants’ characterization that he was trying to “flee the scene.” Id. at 8-9. Plaintiff

asserts that he was “arrested, taken into custody and placed into the patrol car before

[Trooper] Lubrant searched the shed.” Id. at 9. Moreover, he argues that, while

14

Trooper Lubrant may have found blood on the ground where Jason said he fell, there

was no “blood trail” leading to the shed; nor was there a “bloody hammer” recovered, as

indicated by the absence of any such documentation in Trooper Fish’s incident report.*

Id.

Finally, plaintiff argues that defendants are not entitled to qualified immunity

| because of the material factual disputes at-hand. See Dkt. No. 46 at 19. Furthermore,

plaintiff states generally that he had a clearly established right to be “free from an

unlawful arrest and the use of excessive force.” Id. at 20. More specifically, he asserts

that “[nJo officer would reasonably believe it is appropriate to handcuff someone

because they asserted their right to counsel.” Id. Plaintiff contends that his refusal to

cooperate cannot be a basis for a detention or an arrest and that he had a “clearly

established right to remain silent.” Id. at 14, 18-19. Additionally, he asserts that “[nJo

officer would reasonably believe that he could strike an elderly gentleman in the back

while he was handcuffed, Knock him to the ground on face, pick him up by the wrists or

handcuffs breaking his arm and dislocating his elbow.” Id. at 20.

IV. Analysis

1. Eleventh Amendment Immunity

3 While not addressed in either party’s briefing, the record evidence reveals that multiple witnesses state

Jason was reportedly struck with a “pipe,” not a “hammer.” Dkt. No. 45-3 at 31; Dkt. No. 45-4 at 9-10, 14,

41; Dkt. No. 41-6 at 33. It is unclear whether plaintiff disputes that Trooper Lubrant ever found a

“hammer” and that what he actually discovered was a “pipe,” or whether he is disputing that Trooper

Lubrant found a blunt object at all. In viewing the facts in a light most favorable to plaintiff for the

purposes of this motion, the Court assumes the latter.

15

The Eleventh Amendment “bars a damages action in federal court against a stat

and its officials when acting in their official capacity unless the state has waived its

sovereign immunity or Congress has abrogated it.” Dean v. Univ. of Buffalo Sch. of

Med. & Biomedical Scis., 804 F.3d 178, 193 (2d Cir. 2015) (citing Fulton v. Goord, 591

F.3d 37, 45 (2d Cir. 2009)); see also Will v. Mich. Dept. of the State Police, 491 U.S. 58,

64 (1989) (“[A] suit against a state official in his or her official capacity is not a suit

against the official but rather is a suit against the official’s office. As such, it is no

difference from a suit against the State itself.”) (citations omitted)). Eleventh

Amendment immunity applies whether the claims are asserted under the federal

constitution or a court’s pendent jurisdiction. See Pennhurst State Sch. & Hosp. v.

Halderman, 465 U.S. 89, 117-18 (1984).

To the extent plaintiff seeks to bring this action against defendants in their official

capacities “as member[s] of the New York State Police[,]” such claims are barred by the

Eleventh Amendment. Dkt. No. 44. The Eleventh Amendment does not, however,

shield defendants from claims brought against them in their individual capacities. See

State Emp. Bargaining Agent Coal. v. Rowland, 718 F.3d 126, 137 (2d Cir. 2013).

Thus, while any claims asserted against defendants in their official capacities must be

| dismissed, all remaining claims not otherwise dismissed herein may proceed against

defendants individually.

2. Qualified Immunity

“The doctrine of qualified immunity shields officers from civil liability so long as

their conduct ‘does not violate clearly established statutory or constitutional rights of

16

which a reasonable person would have known.” City of Tahlequah v. Bond, 142 S. Ct.

9, 11 (2021) (quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009)). In examining

whether a right is clearly established, courts look to prior precedent to determine if is “it

is ‘sufficiently clear that every reasonable official would have understood that what he is

doing violates that right.” Rivas-Villegas v. Cortesluna, 142 S. Ct. 4, 7 (2021) (quoting

| Mullenix v. Luna, 577 U.S. 7, 11 (2015)). “It is not enough that a rule be suggested by

then-existing precedent; the ‘rule’s contours must be so well defined that it is clear to a

reasonable officer that his conduct was unlawful in the situation he confronted.” City of

Tahlequah, 142 S. Ct. at 11 (quoting District of Columbia v. Wesby, 138 S. Ct. 577, 590

(2018) (citations and internal quotations marks omitted)). While prior caselaw need not

be “directly on point for a right to be clearly established, existing precedent must have

placed the statutory or constitutional question beyond debate.” Rivas-Villegas, 142 S.

Ct. at 7-8 (quoting White v. Pauly, 137 S. Ct. 548, 551 (2017) (internal quotations marks

omitted)).

The Court addresses qualified immunity’s applicability to plaintiff's false arrest

and use of force claims under the relevant sections herein.

3. False Arrest, Detention, & Imprisonment

“A claim for false arrest, detention or imprisonment is evaluated pursuant to the

Fourth Amendment right to be free from unreasonable searches and seizures.”

Waldron v. Milana, No. 5:10-CV-0065 (NPM-DEP), 2012 WL 3929898, at *6 (N.D.N.Y.

Sept. 10, 2012) (citations omitted) aff'd by 541 F. App’x 5 (2d Cir. 2013) (summary

order). “Claims for ‘false arrest’ and ‘false imprisonment’ are ‘synonymous’ under New

17

York law, and both are ‘substantially the same as a 1983 claim for false arrest.” Hulett

v. City of Syracuse, 253 F. Supp. 3d 462, 494 (N.D.N.Y. 2017) (quoting Jackson v. City

of N.Y., 939 F. Supp. 2d 235, 248 (E.D.N.Y. 2013)). To establish a claim of false arrest,

detention, or imprisonment, the plaintiff must “show that: ‘(1) the defendant intended to

confine him, (2) the plaintiff was conscious of the confinement, (3) the plaintiff did not

| consent to the confinement, and (4) the confinement was not otherwise privileged.”

Ackerson v. City of White Plains, 702 F.3d 15, 19 (2d Cir. 2012) (quoting Broughton v.

State, 37 N.Y.2d 415, 456 (1975)).

“The general rule is that ‘Fourth Amendment seizures are ‘reasonable’ only if

based on probable cause’ to believe that the individual has committed a crime.” Mayes

v. Village of Hoosick Falls, 162 F. Supp. 3d 67, 86 (N.D.N.Y. 2016) (quoting Dunaway v.

m| New York, 442 U.S. 200, 213 (1979)). A police officer has probable cause to arrest

when he has “knowledge or reasonably trustworthy information of facts and

circumstances that are sufficient to warrant a person of reasonable caution in the belief

that the person to be arrested has committed or is committing a crime.” Weyant v. Oskt,

101 F.3d 845, 852 (2d Cir. 1996) (collecting cases). “Probable cause ‘is not a high bar”

and “requires only a probability or substantial chance of criminal activity, not an actual

Showing of such activity.” Dalessandro v. Cnty. of Nassau, 758 F. App’x 165, 167 (2d

Cir. 2019) (summary order) (quoting District of Columbia v. Wesby, 138 S. Ct 577, 586

(2018); Illinois v. Gates, 462 U.S. 213, 243 n.13 (1983) (internal quotation marks

omitted)). “Probable cause is, of course, evaluated on the totality of the circumstances.”

Jenkins v. City of N.Y., 478 F.3d 76, 90 (2d Cir. 2007) (citations omitted).

18

Furthermore, “[p]robable cause is to be assessed on an objective basis.

‘Whether probable cause exists depends upon the reasonable conclusion to be drawn

from the facts known to the arresting officer at the time of the arrest.” Zellner v.

Summerlin, 494 F.3d 344, 369 (2d Cir. 2007) (quoting Devenpeck v. Alford, 543 U.S.

146, 152 (2004)). “[A]n arresting officer’s state of mind (except for the facts that he

o knows) is irrelevant[.]” Zellner, 494 F.3d at 369 (quoting Whren v. U.S., 517 U.S. 806,

812-13 (1996)). “[A]n officer's ‘subjective reason for making the arrest need not be the

criminal offense as to which the known facts provide probable cause.” Zellner, 494

F.3d at 369 (citations omitted); cf. Livingston v. Hoffnagle, 9:19-CV-353 (GLS/CFH),

2019 WL 7500501, at *4 n. 7 (N.D.N.Y. Nov. 8, 2019) (collecting cases) report-

recommendation adopted by 2020 WL 95431 (N.D.N.Y. Jan. 8, 2020) (discussing that a

Fourth Amendment claim, “. . .unlike the Eighth Amendment standard that includes both

objective and subjective elements, is an ‘exclusively objective analysis’ under which the

defendant's ‘intent is irrelevant.’”).

An officer does not have a “duty . . . to investigate exculpatory defenses offered

by the person being arrested or to assess the credibility of unverified claims of

justification[.]” Jocks v. Tavernier, 316 F.3d 128, 135-36 (2d Cir. 2003). However, the

m| Second Circuit has recognized that “the failure to make a further inquiry when a

reasonable person would have done so” may show that the conduct was unjustified.

Manganiello v. City of N.Y., 612 F.3d 149, 161 (2d Cir. 2010) (quotations omitted); see

also Jocks, 316 F.3d at 136. Moreover, the assessment need not be based on the

knowledge of a single officer. Zellner, 494 F.3d at 369; see U.S. v. Colon, 250 F.3d

130, 135 (2d Cir. 2001) (“[A]n arrest . . . is permissible where the actual arresting officer

19

or searching officer lacks the specific information to form the basis for probable cause o

reasonable suspicion but sufficient information to justify the arrest or search was known

by other law enforcement officials initiating or involved with the investigation.”); U.S. v.

Valez, 796 F.2d 24, 28 (2d Cir. 1986) cert denied 479 U.S. 1067 (1987) (‘“[l]n light of the

complexity of modern policework, the arresting officer cannot always be aware of every

o aspect of an investigation; sometimes his authority to arrest a suspect is based on facts

Known only to his superiors or associates.”).

“In some circumstances, however, police may detain without probable cause to

arrest.” Mayes, 162 F. Supp. 3d at 86 (collecting cases). “[A]n ‘investigative detention’

or a ‘Terry stop,’ employs ‘the least intrusive means reasonably available to verify or

dispel the officer's suspicion in a short period of time’ and can be supported by

reasonable suspicion, instead of probable cause.” Posr v. Doherty, 944 F.2d 91, 98 (2d

Cir. 1991) (quoting Florida v. Royer, 460 U.S. 491, 500 (1983) (citations omitted)); see

also Terry v. Ohio, 392 U.S. 1, 30 (1967). An officer has “reasonable suspicion to justif

an investigatory stop if there is ‘a reasonable basis to think that the person to be

detained is committing or has committed a criminal offense.” Lee v. City of Troy, 520 F.

Supp. 3d 191, 210 (N.D.N.Y. 2021) (quoting U.S. v. Singletary, 798 F.3d 55, 59 (2d Cir.

| 2015) (internal citations and quotation marks omitted)). “As language like ‘a reasonable

basis’ suggests, reasonable suspicion is not a high standard to meet.” Id.; see, e.g.,

Singletary, 798 F.3d at 60 (stating that a Terry stop requires “only facts sufficient to give

rise to a reasonable suspicion that criminal activity ‘may be afoot.””) (quoting U.S. v.

Bailey, 743 F.3d 322, 332 (2d Cir. 2014); Terry, 392 U.S. at 30); see also US. v.

Padilla, 548 F.3d 179, 186-87 (2d Cir. 2008) (stating that reasonable suspicion requires

20

“less than a fair probability of wrongdoing, and considerably less than. .. a

preponderance of the evidence”) (internal quotation marks omitted). “[C]onduct that is

as consistent with innocence as with guilty may form the basis for an investigative stop

where there is some indication of possible illicit activity.” Padilla, 548 F.3d at 187.

“There is no bright line rule differentiating an arrest from a detention supported b

less than probable cause.” Posr, 944 F.2d at 98 (citing Royer, 460 U.S. at 506). “A

Terry stop requiring reasonable suspicion may ripen into a de facto arrest requiring

probable cause ‘if the means of detention are more intrusive than necessary.”

Hathorne by Hathorne v. Cnty. of Putnam, 492 F. Supp. 3d 281, 295 (S.D.N.Y. 2020)

(quoting U.S. v. Tehrani, 49 F.3d 54, 61 (2d Cir. 1995) (citations and internal quotations

omitted). “In assessing whether the degree of restraint was ‘too intrusive to be

Classified as an investigative detention,’. . . [the Second Circuit has] considered in

general the amount of force used by police, the need for such force, and the extent to

which an individual's freedom of movement was restrained[.]” U.S. v. Perea, 986 F.2d

633, 645 (2d Cir. 1993) (internal quotations and citations omitted). Additionally, the

Second Circuit has considered “. . . particular such factors as the number of agents

involved[;] whether the target of the stop was suspected of being armedf[;] the duration

| Of the stop[;] and the physical treatment of the suspect[,] including whether or not

handcuffs were used[.] Id. (internal quotations and citations omitted); see also Grice v.

McVeigh, 873 F.3d 162, 167 (2d Cir. 2017) (“Handcuffing is ordinarily not incident to a

Terry stop, and tends to show that a stop has ripened into an arrest.”); U.S. v. Newton,

369 F.3d 656, 676 (2d Cir. 2004) (citations omitted) (stating, for purposes of Miranda,

“[hjandcuffs are generally recognized as a hallmark of a formal arrest.”).

21

In any event, “[e]ven where actual probable cause does not exist, an officer may

be entitled to qualified immunity on a § 1983 false arrest claim if his actions were

objectively reasonable or if ‘arguable probable cause’ existed at the time of the arrest.”

Triolo v. Nassau Cnty., 24 F.4th 98, 107 (2d Cir. 2022) (quoting Figueroa v. Mazza, 825

F.3d 89, 100 (2d Cir. 2016) (citations omitted)). “A police officer has arguable probable

cause if either (a) it was objectively reasonable for the officer to believe that probable

cause existed, or (b) officers of reasonable competence could disagree on whether the

probable cause test was met.” Figueroa, 825 F.3d at 100 (internal quotation marks

omitted). “‘Arguable’ probable cause should not be misunderstood to mean ‘almost’

probable cause.” Jenkins, 478 F.3d at 87. “The essential inquiry in determining

whether qualified immunity is available to an officer accused of false arrest is whether it

objectively reasonable for the officer to conclude that probable cause existed.” Id.

(citations omitted); see also Triolo, 24 F.4th at 108 (quoting Figueroa, 825 F.3d at 100)

(‘The question is ‘not whether the officer should have acted as he did.’””).4

In several instances throughout plaintiff's brief, he argues that Trooper Lubrant

acted with an improper motive or “rationale” for detaining and/or arresting plaintiff,

claiming that Trooper Lubrant acted with “actual malice.” Dkt. No. 46 at 14, 18-20. He

| argues that Trooper Lubrant placed him into custody “because he committed the

In New York, qualified immunity is similarly applicable to state law false arrest claims. See Hogan v.

Lewis County, No. 7:16-CV-1325 (LEK/ATB) 2018 WL 4689094, *20 (N.D.N.Y. Sept. 28, 2008)

(discussing application of qualified immunity to New York false arrest claims); Jenkins, 478 F.3d at 86-7 &

n. 8 (2d Cir. 2007) (acknowledging both federal and New York qualified immunity doctrines look at

whether probable cause determination was “objectively reasonable”); Sanchez v. Port Auth. Of N.Y. and

N.J., 2012 WL 1068078, at *10 n. 7 (E.D.N.Y. Mar. 29, 2012) (noting that New York law recognizes a

similar qualified immunity as applicable to federal law claims, and that “[w]here qualified immunity applies

to federal false arrest and malicious prosecution claims, it is also generally appropriate to dismiss state

analogs.”).

22

cardinal sin of asking for a lawyer.” Id. at 19. However, false arrest claims are

assessed under an objective reasonableness standard, without regard to any alleged

subjective motivations; thus, any claim of a malicious or retaliatory motive is irrelevant t

the analysis, so long as an objectively reasonable basis existed. See Zellner, 494 F.3d

at 369 (citations omitted) (stating that the “subjective reason for making the arrest need

not be the criminal offense as to which the known facts provide probable cause.”).

The parties agree that plaintiff was restrained and placed into custody without his

consent. See Dkt. No. 41-1 at 4 J§] 21-22; Dkt. No. 47 at 7-8 Jf 21-22. Defendants

contend that they “temporarily detain[ed]” plaintiff. Dkt. No. 41-10 at 13-15. Plaintiff

asserts that it was an “arrest” made without “probable cause.” Dkt. No. 46 at 17.

Notwithstanding, both parties address the alternative contentions, with defendants

asserting that, even assuming plaintiff was arrested, probable cause supported taking

him into custody, and plaintiff arguing that, in any event, there exist too many disputed

facts to support even a reasonable suspicion finding. See Dkt. No. 41-10 at 13-15; Dkt.

No. 46 at 18-20; Dkt. No. 48 at 8-9.

Plaintiff contends that he had a “clearly established right to remain silent” and

that his refusal to cooperate cannot be a basis for a detention or an arrest.° Dkt. No. 46

m| at 20. Plaintiff admits that “. . . [he] was cooperative until Trooper Lubrant accused him

of assaulting Jason.” Dkt. No. 47 at 6, Ff] 18-19. Although it is well-established “. . .

that a refusal to cooperate, without more, does not furnish the minimal level of objective

justification needed for a detention or seizure[,]” where an officer has reasonable

5 The Court notes that plaintiff similarly framed this contention as a separate cause of action under the

First Amendment, which he has withdrawn. See 3 at 12-14, Jf] 77-82; Dkt. No. 46 at 19.

suspicion justifying a Terry stop based on other circumstantial factors, recent Supreme

Court law indicates that a suspect’s subsequent refusal to cooperate may be factored

into a probable cause determination. Florida v. Bostick, 501 U.S. 429, 437 (1991)

(collecting cases); see also Nieves v. Bartlett, 139 S. Ct. 1715, 1724 (2019) (stating

“[olfficers frequently must make ‘split-second judgments’ when deciding whether to

| arrest, and the content and manner of a suspect’s speech may convey vital

information—for example, if he is ‘ready to cooperate’ or rather ‘present[s] a continuing

threat.’”) (quoting Lozman v. Riveria Beach, 138 S. Ct. 1945, 1953 (2018) (citations

omitted)).

By comparison, the Supreme Court has noted in First Amendment “retaliatory

arrest” cases “. . . that protected speech is often a legitimate consideration when

deciding whether to make an arrest[.]” Nieves, 139 S. Ct. at 1724 (citing Reichle v.

Howards, 556 U.S. 658, 668 (2012); Lozman, 138 S. Ct. at 1953); see also Hawthorne

by Hawthorne v. Cnty. of Putnam, 492 F. Supp. 3d 281, 303 (S.D.N.Y. 2020)

(discussing on alternative grounds that the defendant-officers “. . . would be entitled to

qualified immunity because ‘it was not clearly established that an individual has a First

Amendment right to refuse to answer an officer's questions during a Terry stop.’”)

| (quoting Koch v. City of Del City, 660 F.3d 1228, 1244 (10th Cir. 2011) (citations

omitted)); Lederman v. Benepe, 2014 WL 1318356, at *9 (S.D.N.Y. Mar. 28, 2014)

(“Where there is probable cause to believe that a plaintiff has committed a crime,

however, the case law indicates that First Amendment interests must yield[.]’).

Although a refusal to answer questions has generally been considered in the First

Amendment context, this Court has also considered a plaintiff's uncooperativeness

24

when determining whether probable cause existed for a false arrest claim. See Hogan

v. Buttofocco, No. 1:07-CV-0731 (NAM/DRH), 2009 WL 3165765, at *6-8 (N.D.N.Y.

Sept. 28, 2009) (factoring into false arrest probable cause determination the plaintiff's

uncooperativeness and refusal to answer officers’ questions following 911 domestic

disturbance call). Thus, it cannot be said that plaintiff had a “clearly established right to

remain silent” in the context of a Terry stop, or that his refusal to answer questions

could not be a basis for his detention or arrest. Dkt. No. 46 at 20. Notwithstanding,

plaintiff's argument in this respect is misplaced as his Fourth Amendment false arrest

claim does not concern a right to refuse cooperation or remain silent, but rather his

constitutional right to be free from arrest absent probable cause. See Caldarola v.

Calabrese, 298 F.3d 156, 161 (2d Cir. 2002) (stating that Ҥ 1983 claim for false arrest

derives from an individual’s right to remain free from unreasonable seizures. This

includes the right to remain free from arrest absent probable cause.”) (citations omitted).

Plaintiff also argues that defendants are not entitled to qualified immunity as to

his false arrest claim because “[n]Jo officer would reasonably believe it is appropriate to

handcuff someone because they asserted their right to counsel.” Dkt. No. 46 at 14, 18-

19. However, although plaintiff had a clearly established right under the Sixth

Amendment to invoke the assistance of counsel, there is no allegation that defendants

violated this right. See generally Am. Compl.; see also O’Hagan v. Soto, 725 F.2d 878,

879 (2d Cir. 1984) (acknowledging that “. . . the Sixth Amendment right to counsel is

well established[.]’). Instead, plaintiffs claim concerns his Fourth Amendment right to

be free from arrest without probable cause. See Dkt. No. 46 at 19-20; see also Jenkins,

478 F.3 at 87-88 (discussing that qualified immunity in false arrest cases concerns “. . .

25

the right to be free from arrest without probable cause[.]’”). As discussed above,

probable cause is assessed objectively, without regard to defendants’ subjective

motivations; thus, plaintiff's claim that defendants violated a clearly established right in

this respect is inapposite. See Zellner, 494 F.3d at 369 (quoting Whren, 517 U.S. at

812-13) (“[A]n arresting officer's state of mind (except for the facts that he knows) is

irrelevant[.]”).

The undisputed facts indicate that defendants had reasonable suspicion to

initiate at least a Terry stop of plaintiff—to wit: defendants were responding to an EMS

assistance call concerning a 911 report of a “possible assault.” Dkt. No. 41-8 at 1; Dkt.

No. 41-6 at 10; Dkt. No. 41-7 at 7-8; Dkt. No. 45-3 at 42-43. After defendants arrived

Jason Hayes told Trooper Fish that he fell and hit his head, even though he was

suspected of having been assaulted. Dkt. No. 41-1 at 3, J 13; Dkt. No. 47 at 3 13.

The parties agree that no witnesses saw how Jason was injured, and that the

undisputed record informs the belief that Jake assaulted his father and fled the scene

prior to defendants’ arrival. See Dkt. No. 47 at 10, J 46; Dkt. No. 48-1 at 1, 7 46; Dkt.

No. 46 at 6. However, excluding Jason, the only non-emergency or police personnel on

scene were plaintiff, his two sons, and his grandson. See Dkt. No. 41 at 3, 410; Dkt.

m| No. 47 at 2,10. Out of these four individuals, plaintiff was the only one observed with

blood on him—blood that undisputedly came from Jason’s injuries. See Dkt. No. 47 at

3-4, 7 14; Dkt. No. 41-5 at 30-31. Thus, even in the absence of a specific accusation

implicating plaintiff in any wrongdoing, it was reasonable to initiate an investigatory

detention of plaintiff to find out how he got Jason’s blood on him and what involvement,

if any, plaintiff had in the 911 possible assault report that brought law enforcement to

26

the scene.® See Hodges, 2010 WL 11530515, at *8-9 (E.D.N.Y. Jul. 2, 2010) reversed

and remanded on other grounds 425 F. App’x 33 (2d Cir. 2011) (summary order).

While the above-discussed undisputed facts support a reasonable suspicion

finding, there is a material factual dispute as to whether the degree of restraint was “too

intrusive to be classified as an investigative detention[,]” and at what point, if at all, the

° Terry stop ripened into a de facto arrest. Perea, 986 F.2d at 645 (citations omitted).

Most importantly, the parties dispute the amount of force used and whether force was

necessary at all. See Dkt. No. 41-1 at 4-5, J] 22, 24-26, 33-34; Dkt. No. 47 at 8-10, □□□

22, 24-26, 33-34; see also Perea, 986 F.2d at 645 (stating that general factors to

consider include “. . . the amount of force used by police, the need for such force, and

the extent to which an individual's freedom of movement was restrained[.]”) (internal

Quotations and citations omitted). Moreover, there are disputed factual contentions as

to whether Trooper Lubrant discovered any supposed “trail of blood” or “a bloody

hammer,” and whether plaintiff was “highly intoxicated” and/or “fleeing the scene.” Dkt.

No. 41-10 at 14-15; Dkt. No. 46 at 8-10; Dkt. No. 41-1 at 3-4, 15-21; Dkt. No. 47 at 4-

7, If] 15-21. These factual contentions are relevant to determining whether plaintiff

presented any alleged safety and/or flight risks that justified placing him in handcuffs,

1

® Notably, the record indicates that prior to detaining plaintiff, defendants may have briefly interacted with

plaintiffs sons, who related that, based on what plaintiff said, Jason had been hit in the head by Jake.

See Dkt. No. 45-2 at 22-23; Dkt. No. 45-3 at 47-49; Dkt. No. 45-8 at 2, 9 3. For the purposes of this

motion, the Court assumes this to be true, but nonetheless finds the initial Terry stop was warranted

considering that no eyewitnesses reported seeing Jake hit Jason, and that plaintiff was the only potential

suspect observed on scene with blood on him. See, e.g., Hodges, 2010 WL 11530515, at *8-9

(explaining that a Terry stop was warranted where the plaintiff was observed on scene in a “torn and

bloodied shirt,” even though the 911 caller specifically informed the defendant-officers that the plaintiff

was not the aggressor); Jocks, 316 F.3d at 135-36 (stating that there is no duty “. . . to investigate

exculpatory defenses offered by the person being arrested or to assess the credibility of unverified claims

of justification before making an arrest.”).

27

which may have transformed the investigative stop into an arrest. See Grice v.

McVeigh, 873 F.3d 162, 167 (2d Cir. 2017) (quoting U.S. v. Alexander, 907 F.2d 269,

272 (2d Cir. 1990)) (“Handcuffing is ordinarily not incident to a Terry stop, and tends to

show that a stop has ripened into an arrest. But a police officer, ‘faced with the

possibility of danger, has a right to take reasonable steps to protect himself. . .

o regardless of whether probable cause to arrest exists.”). Thus, whether plaintiff's

detention ripened into an arrest, and, if so, whether defendants had arguable probable

cause as to warrant qualified immunity from suit, require the resolution of factual

disputes best left for a jury to decide.’ See Singletary v. Allen, No. 18-CV-1023

(EAW/LGF), 2022 WL 610621, at *8 (N.D.N.Y. Mar. 4, 2022) (denying summary

judgment “[b]ecause [inter alia] there are material issues of fact as to whether [the

P]laintiff was arrested[.]).

Accordingly, there are disputed material facts precluding summary judgment as

to plaintiff's false arrest claims.

1

? Although not addressed by either party, “the duration of the stop” is a factor relevant to determining

whether plaintiffs detention ripened into an arrest. Perea, 986 F.2d at 645 (citations omitted); see, e.g.,

U.S. v. Sharpe, 470 U.S. 675, 688 (1985) (“We reject the contention that a 20-minute stop is

unreasonable when the police have acted diligently and a suspect’s actions contribute to the added delay

about which he complains.”); U.S. v. Tehrani, 49 F.3d 54, 61 (2d Cir. 1995) (“We decline to hold that a

thirty minute detention based on a reasonable suspicion is, per se, too long.”). While the undisputed

record shows that defendants arrived at approximately 2:00 AM and that by at least 3:15 AM they had left

the scene, the record is unclear as to how long plaintiff was in custody. See Dkt. No. 41-1 at 2, 6 J 8,

39; Dtk. No. 41 at 2 94/8, 39; Dkt. No. 41-3 at 3-4, Jf] 12-13; see also U.S. v. Place, 462 U.S. 696, 703

(1983) (“[W]e have never approved a seizure of the person for the prolonged 90-minute period involved

here and cannot do so on the facts presented by this case.”).

28

3. Excessive Force and Assault & Battery

“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 (1989)). “Federal excessive force claims and state law assault and battery claims

against police officers are nearly identical.” Hulett v. City of Syracuse, 253 F. Supp. 3d

462, 491 (N.D.N.Y. 2017) (quoting Graham v. City of N.Y., 928 F. Supp. 2d 610, 624

(E.D.N.Y. 2013) (citations and internal quotations marks omitted)). “For either type of

claim to succeed,” the plaintiff must demonstrate that the force applied was “objectively

unreasonable ‘in light of the facts and circumstances confronting them, without regard t

their underlying intent or motivation.” Hulett, 253 F. Supp. 3d at 491 (quoting Hershey

m|V. Goldstein, 938 F.Supp.2d 491, 519 (S.D.N.Y. 2013) (citations omitted)).

The objective reasonableness determination involves “careful attention to the

facts and circumstances of each particular case.” Kingsley v. Hendrickson, 576 U.S.

389, 397 (2015) (citing Graham, 490 U.S. at 397). This analysis considers: “(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.” Tracy, 623 F.3d at 96

(citing Graham, 490 U.S. at 396; Jones v. Parmley, 465 F.3d 46, 61 (2d Cir. 2006)).

“Importantly, a court must evaluate the record from the perspective of a

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

253 F.Supp. at 491 (citations omitted). Thus, the Court must “make ‘allowance for the

fact that police officers are often forced to make split-second judgments—in

29

circumstances that are tense, uncertain, and rapidly evolving—about the amount of

force that is necessary in a particular situation.” Jones, at 465 F.3d at 61 (quoting

Graham, 490 U.S. at 396). “Accordingly, police receive a fairly wide zone of protection

in close cases involving potential danger, emergency conditions, and other exigent

circumstances.” Hulett, 253 F. Supp. 3d at 492 (quoting Lin v. Cnty. of Monroe, 66 F.

| Supp. 3d 341, 358 (W.D.N.Y. 2014) (citations and internal quotation marks omitted)).

In support of their motion, defendants acknowledge that Trooper Lubrant used

force on plaintiff when he placed him in handcuffs and escorted him to the patrol car.

See Dkt. No. 41-10 at 11-12. Although they concede that plaintiff fell as he was being

escorted, defendants contend this occurred because he tripped on his pants as they fell

to his ankles. Id. Defendants assert that Trooper Lubrant did not “lift [plaintiff] up by his

m| handcuffs”; rather, Trooper Lubrant grabbed him by his arms when helping him up. Id.

at 12. Similarly, they aver that Trooper Lubrant neither “hit” plaintiff nor “thr[e]w him

against the patrol car.” Id.

In opposition, plaintiff cites admissible record evidence supporting his claim that

Trooper Lubrant “handcuffed him and dragged him to the patrol car.” Dkt. No. 46 at 13;

Dkt. No. 45-2 at 24-25; Dkt. No. 45-5 at 11; Dkt. No. 45-4 at 31; Dkt. No. 45-8 at 2-3, I]

Specifically, he adduces witness testimony indicating “that Trooper Lubrant

handcuffed him behind his back, lifted him up by the handcuffs causing him pain,

knocked him down on his face, picked him up by the handcuffs, wrists or forearms

breaking his arm and dislocating his elbow, and then dragged to the patrol car.” Id.

Moreover, he cites testimony from his son, Robert J. Snyder, who stated that he saw

Trooper Lubrant bang plaintiff's shoulder into the car as Trooper Lubrant attempted to

30

place plaintiff inside. See id. at 10; Dkt. No. 45-2 at 30. Accordingly, the Court finds that

the parties dispute the nature of the force underlying plaintiff's claims, and that

“[djeciding which version of events to believe requires a credibility determination that is

best left to a jury.” Jennings v. Decker, No. 5:17-CV-54 (LEK/TWD), 2021 WL 3471557,

at *8 (N.D.N.Y. Aug. 6, 2021).

Notwithstanding the parties’ evident dispute as to the nature of the force applied,

there are material issues of fact as to the events preceding the alleged use of force that

would factor into the reasonableness determination. See Jennings, 2021 WL 3471557,

at *8 (denying summary judgment where parties disputed the nature of the force used

and whether plaintiff posed a safety threat, actively resisted, and/or attempted to evade

arrest by flight). For instance, plaintiff disputes he was “highly intoxicated” or trying to

| “flee the scene.” Dkt. No. 46 at 15; Dkt. No. 45-8 at 3, 7 7; Dkt. No. 47 at 7, J 20.

Plaintiff disputes that Trooper Lubrant discovered a “trail of blood” or “bloody hammer”

in the shed on plaintiff's property, which may have factored into any perceived threat

from plaintiff. Dkt. No. 46 at 9; Dkt. No. 47 at 4, J] 15-16. As such, there are material

factual disputes relevant not only to the nature of force used on plaintiff, but also to

whether plaintiff “pose[d] an immediate threat to the safety of the officer or others” and

whether plaintiff “was actively resisting arrest or attempting to evade arrest by flight.”

Tracy, 623 F.3d at 96 (citing Graham, 490 U.S. at 396) (citations omitted).

31

Consequently, the Court finds that there are material issues of fact precluding

summary judgment on plaintiff's Section 1983 excessive force claim and the state law

assault and battery claims.®

4. Failure to Intervene

“A police officer is under a duty to intercede and prevent fellow officers from

subjecting a citizen to excessive force, and may be held liable for his failure to prevent

it.” Figueroa v. Mazza, 825 F.3d 89, 106 (2d Cir. 2016). “Liability attaches on the

theory that the officer, by failing to intervene, becomes a ‘tacit collaborator’ in the

illegality.” Hicks v. Craw, 405 F. Supp. 3d 374, 386 (N.D.N.Y. 2019) (quoting Figueroa,

825 F.3d at 106 (citations omitted)). “An officer who fails to intercede in the use of

m| excessive force. . . is liable for the preventable harm caused by the actions of other

officers.” Terebesi v. Torreso, 764 F.3d 217, 243 (2d Cir. 2014) (citation omitted).

“Whether a defendant had a realistic chance to intercede will turn on such factors as the

number of officers present, their relative placement, the environment in which they

acted, the nature of the assault, and a dozen other considerations.” Figueroa, 825 F.3d

at 107. “Whether the officer had a ‘realistic opportunity’ to intervene is normally a

| question for the jury, unless, ‘considering all the evidence a reasonable jury could not

® Like plaintiff's false arrest claims, given the existence of a material factual dispute as to any remaining

claims, the Court declines to rule on the application of qualified immunity at this time. See Jones v.

Parmley, 564 F.3d 46, 54 (2d Cir. 2006) (affirming district court’s decision not to rule on qualified immunit

where “.. . disputed factual issues remained to be resolved before the court could rule on the qualified

immunity issue.”). Nonetheless, defendants will be permitted to renew their request for qualified immunity

should they be found liable on any of the remaining claims. See West v. Harkness, 9:17-CV-0621

(GTS/DJS), 2021 WL 4289515, at *16 n. 24 (N.D.N.Y. Sept. 21, 2021).

32

possibly conclude otherwise.” Terebesi, 764 F.3d at 244 (quoting Anderson v. Branen,

17 F.3d 552, 557 (2d Cir. 1994)).

Defendants ague that plaintiff's complaint did not plead a Section 1983 failure to

intervene claim as to Trooper Fish, arguing that the claim shows up for the first time in

plaintiff's opposition papers. See Dkt. No. 48 at 5. Defendants’ reply memorandum

| nonetheless addresses the merits of such a claim, arguing that Trooper Fish had no

realistic opportunity to intervene, even assuming that Trooper Lubrant violated a

constitutional right. Id. at 5-6.

Plaintiffs Amended Complaint contains seven numbered subheadings concisely

setting forth his causes of action with a short and plaint statements asserting entitlemen

to relief. See Dkt. No. 1 at 8-16, Jf] 60-105; Am. Compl. at 9-17, Ff] 60-105. Ina

m| preceding paragraph, under the subheading titled “Factual Allegations,” plaintiff asserts

that “Trooper Fish observed the entire interaction between Defendant Trooper Lubrant

and Mr. Snyder and did not intervene to stop Defendant Lubrant from unlawfully

arresting, detaining or assaulting Mr. Snyder despite his duty to do so.” Am. Compl. at

6, 7 35. Likewise, in another paragraph he asserts that “Trooper Fish observed the

illegal manner in which Defendant Lubrant violently battered and threw Mr. Snyder into

the side of the State Police Vehicle multiple times and did nothing to intervene on Mr.

Snyder's behalf as was their duty to do.” Id. at 8, 52. These words signal a failure to

intervene cause of action, which, practically speaking, is often brought with a primary

excessive force claim involving multiple officer-defendants. See Hicks v. Craw, 405 F.

Supp. 3d 374, 385 (N.D.N.Y. 2019); Case v. City of N.Y., 233 F. Supp. 3d 372, 401-02

(S.D.N.Y. 2017) (discussing that a failure to intervene claim is contingent upon the

33

disposition of the “primary claims” asserted) (citations omitted). Accordingly, although

“[a] party may not use his or her opposition to a dispositive motion as a means to

amend the complaint[,]’ the Court finds that plaintiff's pleadings sufficiently stated a

failure to intervene claim against Trooper Fish relative to Trooper Lubrant’s use of force.

Shah v. Helen Hayes Hosp., 252 F. App’x 364, 366 (2d Cir. 2007) (summary order)

° (citing Wright v. Ernst & Young LLP, 152 F.3d 169, 178 (2d Cir. 1998) (collecting

cases)).

The Court further finds that material issues of fact remain as to whether Trooper

Fish had a “realistic opportunity” to intervene. Terebesi, 764 F.3d at 244 (quoting

Anderson v. Branen, 17 F.3d at 557). First, as discussed above, the Court has already

found a material factual dispute concerning Trooper Lubrant’s alleged use of force. □□□

m| Jeanty v. City of Utica, No. 6:16-CV-966 (BKS/TWD), 2021 WL 149051, at *31

(N.D.N.Y. Jan. 14, 2021) (“[T]he failure to intervene claim is contingent upon the

disposition of the primary claims underlying the failure to intervene claim.”) (quoting

Matthews v. City of N.Y., 889 F. Supp. 2d 418, 443-44 (E.D.N.Y. 2012) (internal

quotations omitted)); see also Martinez v. City of N.Y., 2021 WL 4502440, at *12

(E.D.N.Y. Sept. 30, 2021) (granting and denying summary judgment, in part, as to

Multiple failure to intervene claims contingent upon disposition of primary claims of

excessive force.); John v. City of N.Y., 406 F. Supp. 3d 240, 246 (E.D.N.Y. 2017)

(denying summary judgment on failure to intervene claim and qualified immunity, stating

“[t]he Court cannot determine whether excessive force was excessive force was used

and therefore cannot determine whether any of the Officer Defendants failed to

intervene to prevent the deprivation of Plaintiff's constitutional rights.”) (citations

34

omitted). Second, assuming Trooper Lubrant violated plaintiff's constitutional rights, the

record is unclear as to Trooper Fish’s relative placement in proximity to where the

alleged use of force occurred, and how, if at all, he purportedly “shadow[ed]” Trooper

Lubrant, as plaintiff contends. Dkt. No. 46 at 16; Dkt. No. 45-1 at 39. As such,

defendants’ motion for summary judgment as to plaintiff's Section 1983 failure to

| intervene claim is denied.

5. Negligence

Rule 8(d)(3) of the Federal Rules of Civil Procedure permits plaintiffs to ‘plead

two or more statements of a claim. . . regardless of consistency.” Adler v. Pataki, 185

F.3d 35, 41 (2d Cir. 1999) (quoting Henry v. Daytop Village, Inc., 42 F.3d 89, 95 (2d Cir.

m| 1994) (discussing former Rule 8(e)(2)). This “flexibility. . . is especially appropriate in

civil rights cases, in which complex inquiries into the parties’ intent may sometimes

justify raising multiple, inconsistent claims.” Id. Even where allegations are “not

specifically pleaded as ‘in the alternative,” the Second Circuit has ruled that “sufficient

latitude” may be afforded “. . . to construe separate allegations in a complaint as

alternative theories, at least when drawing all inferences in favor of the nonmoving

m| party. . . for summary judgment.” Adler, 185 F.3d at 41 (citations omitted).

Defendants argue that plaintiff's Seventh Cause of Action for state law

negligence must be dismissed because the conduct at-issue is alleged to have been

intentional, and that if intentional offensive conduct is established, Trooper Lubrant is

liable for assault, not negligence. See Dkt. No. 41-10 at 23-24. Whether or not

defendants are correct in this regard, plaintiff has yet to establish the type and degree o

35

conduct because there are material issues of fact relative to any purported intentional

claims, thereby precluding summary judgment. The undersigned notes that defendants

admit Trooper Lubrant intentionally used force on plaintiff when handcuffing him and

escorting him to the patrol vehicle; however, defendants dispute that any subsequent

use of force ever occurred. See Dkt. No. 41-3 at 4-5, J] 14-18. Based on plaintiff's

o allegations—namely, that Trooper Lubrant caused plaintiff's fall to the ground, lifted

plaintiff up by his wrists or handcuffs, dragged plaintiff to the patrol car, and repeatedly

banged plaintiff's shoulder into the side of the vehicle—the Court finds it conceivable

that such actions, if accepted as true by a jury, were the result of negligent, not

intentional, behavior. See Am. Compl. at 9-11; 17-18, Jf] 60-65; 100-105. Considering

that Rule 8(d) permits pleading in the alternative, plaintiff may proceed to trial with two

inconsistent claims. Defendants’ motion seeking dismissal of plaintiff's state law

negligence claim is denied.

6. Supplemental Jurisdiction

Section 1367(c) provides that:

The district course may decline to exercise supplemental jurisdiction over

a claim under [§ 1367(a)] if —

(1) the claim raises a novel or complex issue of State law,

(2) the claim substantially predominates over the claim or claims over

which the district court has original jurisdiction,

(3) the district court has dismissed all claims over which it has original

jurisdiction, or

(4) in exceptional circumstances, there are other compelling reasons for

declining jurisdiction.

36

28 U.S.C. § 1367(c). If one of the § 1367(c) categories applies, the district court may

then undertake the discretionary inquiry of whether to exercise supplemental

jurisdiction. See Catzin v. Thank You & Good Luck Corp., 899 F.3d 77, 85 (2d Cir.

2018).

5 The Court rejects defendants’ request to decline the exercise of supplemental

jurisdiction over plaintiff's remaining state law claims. As set forth above, plaintiff has

viable federal causes of action remaining pursuant to 28 U.S.C. § 1983. Further,

plaintiff's state law claims do not meet the Section 1367(c) criteria. Accordingly, the

Court extends supplemental jurisdiction over plaintiff's state law claims is denied.

I

V. Conclusion

WHEREFORE, for the reasons set forth herein, it is hereby

ORDERED, that defendants’ motion for summary judgment (Dkt. No. 41) is

GRANTED in part and DENIED in part; and it is further

ORDERED, that any claim against defendants in their official capacity is

DISMISSED with prejudice as to both defendants; and it is further

ORDERED, that plaintiff's Section 1983 excessive force claim and his state law

claims for assault and battery remain as to defendant Christopher Lubrant in his

individual capacity; and it is further

ORDERED, that plaintiff's Section 1983 failure to intervene claim remains as to

defendant William Fish in his individual capacity; and it is further

37

ORDERED, that plaintiff's Section 1983 and state law false arrest claims and his

state law negligence claims remain as to both defendants in their individual capacities;

and it is further

ORDERED, that the Clerk of the Court shall serve a copy of this Memorandum-

Decision and Order on the parties in accordance with the Local Rules.

° IT IS SO ORDERED.

Dated: May 27, 2022

Albany, New York

Christian F. Hummel

U.S. Magistrate Judge

38