McIntosh v. Reaves Jr.

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

JOHN A MCINTOSH,

Plaintiff,

- vs - DECISION AND ORDER

15-CV-6209 CJS

BING REAVES JR., et al.,

Defendants.

INTRODUCTION

Siragusa, J. Plaintiff John A. McIntosh (“McIntosh”) filed a Civil Rights Act com-

plaint on April 10, 2015, ECF No. 1, alleging that individual members of the County of

Monroe government (“County”) and City of Rochester government (“City”) violated his

right to be free from assault, battery, harassment, intimidation, false arrest, robbery, libel,

obstruction of justice, threats, torture, and violated his right to privacy, et cetera. The Court

dismissed many of his claims after an initial screening and now both sets of defendants

have brought motions asking the Court to dismiss all of McIntosh’s remaining claims. After

review of the papers, the Court grants in part the Monroe County Defendants’ application

for summary judgment, ECF No. 21. All claims against Deputy Schultz, named in the

complaint as John Doe 1 “big, bald jailor,” are dismissed. All claims against Deputy Ken-

ney, with the exception of the claim that the deputy tried to break McIntosh’s wrist, are

also dismissed. The Clerk will enter a partial judgment for Defendants as outlined above.

Further, the City Defendants’ motion for summary judgment, ECF No. 22, is granted in

total. All claims against the City Defendants are dismissed.

STANDARDS OF LAW

Summary Judgment

Summary judgment may not be granted unless Athe pleadings, depositions, an-

swers to interrogatories, and admissions on file, together with the affidavits, if any, …

demonstrate the absence of a genuine issue of material fact,” Celotex Corp. v. Catrett,

477 U.S. 317, 323 (1986), and “the movant is entitled to judgment as a matter of law,”

Fed. R. Civ. P. 56(a) (2015). “In moving for summary judgment against a party who will

bear the ultimate burden of proof at trial, the movant may satisfy this burden by pointing

to an absence of evidence to support an essential element of the nonmoving party’s

claim.@ Gummo v. Village of Depew, 75 F.3d 98, 107 (2d Cir. 1996) (citation omitted).

The burden then shifts to the non-moving party to demonstrate facts showing that

there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250

(1986). To do this, the non-moving party must present evidence sufficient to support a

jury verdict in its favor. Id. at 249. A[F]actual issues created solely by an affidavit crafted

to oppose a summary judgment motion are not >genuine= issues for trial.@ Hayes v. N.Y.

City Dep’t of Corr., 84 F.3d 614, 619 (2d Cir. 1996). Summary judgment is appropriate

only where, Aafter drawing all reasonable inferences in favor of the party against whom

summary judgment is sought, no reasonable trier of fact could find in favor of the

non-moving party.@ Leon v. Murphy, 988 F.2d 303, 308 (2d Cir. 1993). The parties may

only carry their respective burdens by producing evidentiary proof in admissible form.

Fed. R. Civ. P. 56(c)(1). The underlying facts contained in affidavits, attached exhibits,

and depositions, must be viewed in the light most favorable to the non-moving party.

United States v. Diebold, Inc., 369 U.S. 654, 655 (1962). Since Plaintiff is proceeding pro

se, the Court has construed his submissions liberally “to raise the strongest arguments

they suggest.” Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)

Irby Notice

Pursuant to Western District of New York Local rule 56(b), both the County and

the City defendants provided notice to Plaintiff in accordance with the Second Circuit’s

requirement set out in Irby v. New York City Transit Authority, 262 F.3d 412 (2d Cir. 2001).

The notice provided with the moving papers stated as follows:

Revised 05/01 WDNY

IMPORTANT NOTICE TO PRO SE LITIGANTS

RULE 56 MOTIONS FOR SUMMARY

JUDGMENT

This Notice is to advise you that a party in your lawsuit has filed a motion for summary judgment

pursuant to Rule 56 of the Federal Rules of Civil Procedure, which means that summary judgment will

be granted if the Court finds that there is no genuine issue as to any material fact and that the moving

party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c).

Failure to Respond to This Motion for Summary Judgment May Re-

sult in The Grant of Judgment in Favor of The Party Seeking Sum-

mary Judgment and The Dismissal of All or Part of The Case.

Opposing Affidavits and Exhibits

Therefore, if the motion seeks summary judgment against you, you MUST submit opposing papers in

the form of one or more affidavits (or affirmations) made upon the personal knowledge of the person

signing each affidavit. Each affidavit must set forth admissible facts and must show that the person sub-

mitting that affidavit is competent to testify as to the matters stated therein (because he or she has

personal knowledge of the facts set forth in the affidavit). If you wish to submit exhibits in opposition

to the motion, you may attach to the affidavit (or submit separately) sworn or certified copies or all

papers or parts thereof which are referred to in an affidavit.

Statement of Material Facts Requiring a Trial

You MUST also submit a separate, short, and concise statement of the material facts as to which you

contend there exists a genuine issue which must be tried. See Rule 56 of the Local Rules of Civil Pro-

cedure (available on the Western District web site at www.nywd.uscourts.gov). Note that all of the

material facts which have been set forth in the statement served on you by the moving party (which that

party claims are material facts about which there is no genuine issue to be tried) will be deemed to have

been admitted by you unless you controvert the facts in your statement of material facts presenting a

genuine issue requiring a trial.

Memorandum of Law

You MUST also submit a separate answering memorandum of law, Local Rule 7.1(e), which may

not exceed 25 pages in length without prior approval of the Court, Local Rule 7.1(f). Failure to comply

may result in the motion being decided against the non-complying party.

W.D.N.Y. Notice to Pro Se Litigants.

Section 1983

Plaintiff brings this action pursuant to 42 U.S.C. § 1983. To state a claim under

§ 1983, a plaintiff must allege (1) that the challenged conduct was attributable at least in

part to a person acting under color of state law, and (2) that such conduct deprived plaintiff

of a right, privilege, or immunity secured by the Constitution or laws of the United States.

Dwares v. City of New York, 985 F.2d 94, 98 (2d Cir. 1993). Section 1983 provides in

relevant part:

Every person who, under color of any statute, ordinance, regulation, cus-

tom, or usage of any State or Territory or the District of Columbia, subjects,

or causes to be subjected, any citizen of the United States or other person

within the jurisdiction thereof to the deprivation of any rights, privileges, or

immunities secured by the Constitution and laws, shall be liable to the party

injured in an action at law, suit in equity, or other proper proceeding for re-

dress.

Personal Involvement

A prerequisite for liability under a § 1983 claim is “personal involvement” by the

defendants in the alleged constitutional deprivation. Spencer v. Doe, 139 F.3d 107, 112

(2d Cir. 1998).

A defendant may be “personally involved” in causing a constitutional depri-

vation if: (1) defendant participated directly in the alleged infraction; or (2)

acting in a supervisory capacity, defendant (a) failed to remedy a continuing

or egregious wrong after learning of a violation, (b) created a policy or cus-

tom under which the unconstitutional practices occurred or allowed such

policy or custom to continue, or (c) was “grossly negligent” in managing

subordinates who actually caused the constitutional deprivation.

Candelaria v. Coughlin, 787 F. Supp. 368, 372 (S.D.N.Y. 1992); Colon v. Coughlin, 58

F.3d 865, 874 (2d Cir. 1995) (AThe bare fact that [the defendant] occupies a high position

in the New York prison hierarchy is insufficient to sustain [plaintiff=s] claim@). A claim which

fails to demonstrate a defendant=s personal involvement in the alleged constitutional dep-

rivation is subject to sua sponte dismissal. Montero v. Travis, 171 F.3d 757, 761-62 (2d.

Cir. 1999); see Neitzke v. Williams, 490 U.S. 319, 323 n. 2, 109 S. Ct. 1827, 1830 n. 2,

104 L.Ed.2d 338 (1989).

ANALYSIS

Local Rule 56 Statements of Fact

Pursuant to the Court’s rule, both sets of defendants submitted statements of fact.

W.D.N.Y. L.R. 56 (2018).1 The rule permits the Court to deem admitted any statement of

fact that is not opposed by the party opposing summary judgment. Despite having been

warned of the need to respond to the motions, and the consequences for not doing so,

and despite having been given several extensions of time to do so, McIntosh has failed

to oppose any of the statements of fact. Accordingly, the Court will deem admitted the

statements made by the parties, which the Court reproduces below.

County Defendants Statement of Facts Deemed Admitted

1. Plaintiff was arrested by the Rochester Police Department and brought

to the Monroe County Jail on April 10, 2012. Complaint, Docket 1 pages 6-

1 The Corporation Council’s Office submitted papers that were not in compliance with the

Court’s requirement that all documents generated by a word processing program be converted to

a .pdf format allowing the .pdf document to be text searched.

8.

2. Plaintiff claims that at the Monroe County Jail, Deputy Kenney:

“violently put handcuffs way to tightly around my wrists” (Docket #1, p.

8);

“did roll my left hand and push down on my wrist causing extreme

pain” (Docket #1, p. 9); and

That Deputy Kenney tried to break Plaintiff’s wrist (Docket #1, p. 9).

3. As to the “big bald jailor”, Plaintiff claims that “he pushed down on my

neck past my waist while handcuffed and violently pushed forward on the

inside of my elbows while handcuffed.” Docket #1, p. 9.

4. Plaintiff then claims he was “shoved head first into a 6-inch raised con-

crete platform in the filthy cell” but does not identify who pushed him.

5. Plaintiff also claims he was “denied proper medical treatment, an attor-

ney, and a phone call”.

6. Plaintiff brought this lawsuit on April 10, 2015. See Docket #1.

7. By Decision and Order dated December 14, 2015 (Docket #3), the Court

dismissed Plaintiff’s claims against, inter alia, “Prosecutors 1-3 who main-

tained the charge against Plaintiff; Krone; the County of Monroe, New York;

Lt. Donovan; Officer Fennessey; 1-25 Monroe County Officers yet un-

known; and 1-50 Rochester Police Officers yet unknown.” (Docket #3, p. 2).

8. The Court also dismissed Plaintiff’s claims of verbal harassment against

the three unidentified Monroe County Jail Deputies. (Docket #3, p. 7).

9. The Court found that Plaintiff

alleged sufficient allegations to proceed against unnamed defend-

ants the “big bald jailer” and the officer with “light brown hair cut

really short on the sides” who also had “a brush cut on the top.” The

Clerk of Court will be directed to list these John Doe defendants in

the case caption as “John Doe 1, big bald jailer” and “John Doe 2,

officer described as having light brown hair cut really short on the

sides who also had a brush cut on the top.

Docket #3, p. 6.

10. The Court further Ordered that the:

claims may go forward against defendants “John Doe 1, big bald

jailer,” and “John Doe 2, officer described as having light brown hair

cut really short on the sides who also had a brush cut on the top.”

Pursuant to Valentin v. Dinkins, 121 F .3d 72 (2d Cir. 1997), the

Court requests that the Monroe County Attorney ascertain the full

names of the John Doe defendants Plaintiff seeks to sue.

Docket #3, p. 9.

11. Pursuant to the Court Order, the County Attorney’s Office sent a corre-

spondence dated January 13, 2016, to the Pro Se Clerk’s Office, informing:

Plaintiff’s complaint alleges John Doe 1 was a jailer who used ex-

cessive force when handcuffing him, along with “Officer Kenney”,

on April 10, 2012. Monroe County Sheriff records indicate that Dep-

uty Todd Kenney and Deputy Eric Schultz applied wrist locks to Mr.

McIntosh in the Monroe County Jail booking scan room on April 10,

2012. Monroe County and the Monroe County Sheriff deny that ex-

cessive force was used.

Plaintiff’s complaint alleges John Doe 2 assaulted him before his

court appearance on April 11, 2012. Monroe County and the Mon-

roe County Sheriff deny that the alleged assault occurred. While

there is no documented incident, the Monroe County Sheriff’s office

identified the following individuals as deputies who may have trans-

ported Mr. McIntosh to his court appearance: Christopher Carey,

Thomas Crandall, Brian Florack, Michael Gropp, Christopher

Jiminez, Anthony Latore, and David Munnings.

See Exhibit A.

12. By Decision and Order dated March 8, 2016, the Court found:

On January 13, 2016, the Monroe County Department of Law, pur-

suant to the Court’s Valentin request, provided information about

John Doe 1 and John Doe 2. Robert P. Yawman, III, letter to the

Court (Jan. 13, 2016), ECF No. 4. That information included names

of employees of the Monroe County Sheriff who may have fit the

descriptions given by Plaintiff.

Docket #5, p. 1.

13. The Court further found that: “To date, Plaintiff has neither filed an

amended complaint as directed, nor has he requested an extension of time

to do so.” Docket #5, p. 2. The Court therefore:

ORDERED, that the claims against all Defendants except those

named in the Court’s Decision and Order of December 15, 2015,

ECF No. 3 (outlined above) are dismissed without prejudice; and it

is further

ORDERED, that Plaintiff identify the John Doe defendants by name

by moving to substitute them in the complaint within 30 days from

the date of this Decision and Order

Docket #5, p. 2.

14. Plaintiff never moved to substitute any Defendants.

15. Accordingly, the only County Defendant properly in this case is Deputy

Todd Kenny.

16. Despite the March 8, 2016 Decision and Order (docket #5) dismissing

all claims against unsubstituted John Doe Defendants, the Clerk issued a

summons as to Monroe County Deputy Jailor Eric Schultz (see Docket #17)

17. Out of an abundance of caution, Eric Schultz answered the Complaint

(Docket #18).

18. By letter dated December 13, 2016, I requested Plaintiff unseal the crim-

inal records relating to his arrest and jailing.

19. By letter and electronic mail dated February 15, 2017, I again requested

Plaintiff agree to unseal the criminal records relating to his arrest and jailing.

See Exhibit B.

20. By letter dated May 9, 2017, I again requested Plaintiff agree to unseal

the criminal records relating to his arrest and jailing. See Exhibit C.

21. Plaintiff never responded to any correspondence and has not contacted

Defendants to engage in any discovery in this action.

County Defendants’ Rule 56 Statement of Facts Not in Dispute, Feb. 7, 2018, ECF No.

21-1.

City Defendants Rule 56 Statement

1. The incident at issue in this action occurred at just after 4:00 on the af-

ternoon of Tuesday, April 10, 2012 on Mt. Hope Avenue near the intersec-

tion with Reservoir Drive in the City of Rochester (Dkt #1, ,i2, p. 6 of 11;

Exhibit A—Incident Report; Exhibit B—Prisoner Data Report; and Declara-

tions of Sgt. Reaves, Officer Potocki, former Fire Lt. David Schneggen-

burger and Firefighter Sean Balantic).

2. At approximately 4:00 that afternoon, an SUV being operated by Donald

W. Klick northbound on Mt. Hope swerved off the road to the right and struck

a utility pole, causing it to fall into Mt. Hope and exposing live electrical

wires, then the SUV rolled back onto Mt. Hope (Exhibit C—Police Accident

Report; and Exhibit D—Police scene photos). Mr. Klick was injured and un-

responsive and bystanders called 911, whereupon Fire Department first re-

sponders were dispatched (Exhibit C; Exhibit E—RFD Records; Exhibit F-

“Job Card”; and Schneggenburger and Balantic Declarations).

3. Retired Lt. David Schneggenburger and three firefighters, including Sean

Balantic, responded to the 911 call and stopped their firetruck across one

of the travel lanes on Mt. Hope (Exhibit A; Exhibit C; and Reaves, Schneg-

genburger and Balantic Declarations). Lt. Schneggenburger and Firefighter

Balantic attended to Mr. Klick at his vehicle while the other two Firefighters

addressed fluid leaks from it (Exhibit E; and Balantic Declaration).

4. The accident happened at the beginning of rush hour on a weekday on

Mt. Hope, which is quite heavily-travelled at that time, and Officer Reaves

(now Sgt.) travelled to the scene in his marked car to control and direct

traffic (Exhibit F; and Reaves Declaration).

5. Prior to Sgt. Reaves’ arrival, Mr. McIntosh, who had been travelling south-

bound on Mt. Hope in his vehicle, stopped and went to the SUV where Lt.

Schneggenburger and Firefighter Balantic were attending to Mr. Klick (Dkt.

#1, ,¶2, p. 6 of 11; and Reaves, Schneggenburger and Balantic Declara-

tions). Mr. McIntosh was apparently a stranger to Mr. Klick and initially ap-

proached the SUV to offer what assistance he could (Balantic Declaration).

Lt. Schneggenburger and Firefighter Balantic politely declined (Id.). Unde-

terred, Mr. McIntosh persisted in interfering and interrupting Lt. Schneggen-

burger’s and Firefighter Balantic’s assessment and care of Mr. Klick to the

point where he was attempting to direct their care, was insisting that Mr.

Klick be taken to the hospital immediately and was threatening to sue if this

was not done (Exhibit A; and Reaves, Schneggenburger and Balantic Dec-

larations).

6. Lt. Schneggenburger and Firefighter Balantic were occupied with at-

tempting to attend to Mr. Klick on a busy thoroughfare during rush hour and

in contending with traffic, and the other Firefighters were attending to the

fluid spills, all of which was being made more dangerous and hazardous by

Mr. McIntosh’s continued interference (Exhibit A; and Reaves, Schneggen-

burger and Balantic Declarations). Lt. Schneggenburger thus asked Sgt.

Reaves to move him away from the SUV and out of the accident scene (Id.).

7. Despite Sgt. Reaves’ continued directives to Mr. Mclnotsh [sic] to leave

the accident scene and to move his vehicle out of the accident perimeter,

and his repeated escorting of Mr. McIntosh back to his vehicle to have him

move it, Mr. McIntosh protested, used vulgar expletives and engaged in

name-calling of Sgt. Reaves, and delayed his exit from the scene (Exhibit

A; and Reaves and Balantic Declarations). When Sgt. Reaves finally was

able to coax Mr. McIntosh back into his vehicle, Mr. McIntosh produced a

video camera and began recording his interaction with the Sergeant (Dkt

#1, p. 4, “B. SECOND CLAIM”; Exhibit A; and Reaves Declaration). Mr.

McIntosh advised that as soon as an ambulance arrived to attend to Mr.

Klick, he intended to speak with the EMTs, apparently to direct their care

(Exhibit A; and Reaves Declaration), and Sgt. Reaves warned him against

doing so, again directing him to move his vehicle out of the accident perim-

eter and not to intrude again (Id.).

8. When a Rural Metro ambulance arrived, Mr. McIntosh exited his vehicle,

notwithstanding Sgt. Reaves’ directive, and pushed past the Sgt. to make

his way to the EMTs (Exhibit A; and Reaves Declaration). Sgt. Reaves

again escorted him back to his vehicle and directed him to remove it from

the scene and to remain outside of the perimeter (Id.). At that point, Mr.

McIntosh got back into his vehicle, again videotaped Sgt. Reaves, and

called him a vulgar expletive, whereupon Sgt. Reaves directed him to get

out of his vehicle and arrested him (Id.).

9. Sgt. Reaves’ occupation with Mr. McIntosh during these exchanges pre-

vented him from addressing traffic control, which was the reason he came

to the accident scene, and it also prevented him from attempting to help

control the scene and to protect the firemen/first responders safety, as well

as Mr. Klick’s (Exhibit A; and Reaves Declaration). He arrested Mr. McIn-

tosh for obstruction of governmental administration and disorderly conduct,

handcuffed him once he was out of his vehicle, and then escorted Mr. McIn-

tosh to his marked police car and placed him in the backseat to await

transport from the scene for booking [Id.]. Mr. McIntosh did not resist the

arrest and Sgt. Reaves used only the minimal force necessary to actually

place handcuffs on his wrists and to escort him from his vehicle to the

marked police car (Reaves Declaration). Mr. McIntosh was not injured in

any respect, he made no complaints about the handcuffs, nor most signifi-

cantly, did he request medical attention, though there were EMTs at the

scene (Id.).

10. Several minutes after Mr. McIntosh was placed in the back of Sgt.

Reaves’ car, Officer Potocki arrived in his own marked police car to

transport Mr. McIntosh to the Public Safety Building for booking (Exhibit A;

Exhibit B; and Reaves and Potocki Declarations). Officer Potocki moved Mr.

McIntosh from the back of Officer Reaves’ car to the back of his own marked

car and Mr. McIntosh did not resist that at all (Potocki Declaration). So, Of-

ficer Potocki used no force at all during this exchange, nor it is alleged that

he did (Id.; and Dkt #1, ¶2, p. 7 of 11).

11. Officer Potocki was required to prepare documents to effect Mr. McIn-

tosh’s transfer to Monroe County Sheriff’s Deputies at the booking office

(Reaves and Potocki Declarations). These included a Prisoner Data Report,

which he prepared on the data terminal in his car (Exhibit B; and Potocki

Declaration). This took several minutes, during which Sgt. Reaves arranged

to have tow trucks come to the scene to remove Mr. Klick’s SUV and Mr.

McIntosh’s vehicle (Exhibit A; and Reaves and Potocki Declarations). An-

other Police Officer, Jennifer Link, came to the scene to facilitate the towing

of the vehicles and noticed that Mr. McIntosh had manufactured an inspec-

tion certificate, which he apparently copied on Kodak paper, and scotched

[sic] taped it to his windshield (Exhibits A and B; Exhibit G—Police photos;

and Reaves and Potocki Declarations). So, charges of a falsified inspection

certificate and an uninspected vehicle were added to the obstruction of gov-

ernmental administration and disorderly conduct charges (Id.).

12. Upon completing the required paperwork, Officer Potocki transported

Mr. McIntosh to the booking office at the Public Safety Building and trans-

ferred his custody to the Sheriff’s Deputies there (Potocki Declaration).

Upon transfer, booking photographs (mugshots) were taken of Mr. McIn-

tosh, and one of the Deputies conducted a medical screening (Potocki Dec-

laration; Exhibit H—Booking Photos; and Exhibit I—Medical Receiving

Screening Form and Booking Officer’s Visual Opinion Form).

13. The video camera Mr. McIntosh used to record part of his interaction

with Sgt. Reaves was turned into evidence by the Sergeant (Exhibit A; and

Reaves Declaration). It was returned to Mr. McIntosh upon the resolution of

his criminal matter (Dkt #1, ¶2, p. 8 of 11 ). At the time of the Rule 16 Con-

ference held in this case in September 2016, Mr. McIntosh was directed to

preserve the footage and to provide copies to defense counsel, but he has

failed to do so.

14. At the Rule 16 Conference, Mr. McIntosh was also asked to preserve

videotape he took of New York City Police Officers on or about September

23, 2009, which resulted in his arrest and for which he commenced a federal

civil lawsuit against the City of New York and several of the Officers (Exhibit

J—Summons and Complaint; and Exhibit K—Settlement Documents). Mr.

McIntosh’s videotaping of his interaction with Sgt. Reaves was not the first

time that he has used his video camera to record Police, nor the first occa-

sion on which he has commenced suit, though he rather curiously omits any

reference to this in his Complaint in this action, despite claiming that the

actions of the Police Officers here were taken in retaliation for videotaping

them (Dkt #1, p. 4, “B. SECOND CLAIM”, and ¶2, pp. 6 and 7 of 11).

15. At the time he commenced this suit, Mr. McIntosh also moved for leave

to proceed in forma pauperis (Dkt #2). This Court (Hon. Charles J. Siragusa,

USDCJ) granted that relief in a Decision and Order, dated December 12,

2015 (Dkt #3). That Decision and Order eliminated all of the named Defend-

ants except for Sgt. Reaves, Officer Potocki, and two or three Sheriff’s Dep-

uties, described only tonsorially by Mr. McIntosh, and eliminated all but his

excessive force use claim as against them (Id.). It also afforded him the

opportunity to file and serve an Amended Complaint including a false arrest

claim, provided that he included requisite details and that he do so within

30 days of that Decision and Order (Id.). He failed to do so, which resulted

in this Court’s Decision and Order dated March 8, 2016, which relegated

him to proceeding on his original Complaint, but only with regard to exces-

sive force use on the part of the aforesaid four or five Defendants (Dkt #5).

16. As the result of the foregoing, and by operation of the Decisions and

Orders, Mr. McIntosh’s claims against Sgt. Reaves and Officer Potocki are

those contained on page 7 of 11 of his filed Complaint (Dkt #1 ). He seeks

monetary relief, including recovery of attorney’s fees, which is puzzling,

given that he is proceeding pro se, he is not a lawyer, and he was granted

poor persons status.

17. Whatever the circumstances may have been on the afternoon of Sep-

tember 23, 2009 in Manhattan when Mr. McIntosh videotaped New York

City Police Officers involved in some event, he had no business involving

himself in the scene of the subject single-accident with injuries, with which

the firemen/first responders and Sgt. Reaves were involved. Mr. McIntosh

was a stranger to Mr. Klick and his persistent interruptions and interference

with the care being rendered to him was distracting to Lt. Schneggenburger

and Firefighter Balantic and threatened their safety, as well as Mr. Klick’s.

Mr. McIntosh’s re-intrusion into the scene after Sgt. Reaves had ushered

him away and his intent to speak to the EMTs when they arrived, in direct

contravention of Sgt. Reaves’ lawful order, provided clear probable cause

and ample justification for the arrest and Mr. McIntosh makes no claim to

the contrary in his Complaint.

19. Mr. McIntosh did not resist Sgt. Reaves’ arrest, so no force was used to

effect it and to handcuff him. Significantly, Mr. McIntosh did not request

medical attention as the result of any alleges injury, he identifies no specific

injury he sustained as the result of the arrest, and all that he alleged in the

Complaint is that he had momentary pain prior to being placed into the

backseat of Sgt. Reaves’ car.

20. Mr. McIntosh’s claim of excessive force use by Officer Potocki is that

while he was handcuffed in the backseat of Officer Potocki’s car awaiting

transport for booking, Officer Potocki punched him in the mouth (Dkt #1, p.

7 of 11 ). Mr. McIntosh does not identify any specific injury he sustained as

the result of this alleged punching, nor does he claim that he required, re-

quested or sought medical attention. He was photographed upon his trans-

fer at the booking office approximately 10 to 15 minutes after this, and those

photographs show that he was uninjured (Exhibit H—Booking Photos). Fur-

ther, when the Sheriff’s Deputy conducted the medical screening, it was

noted the Mr. McIntosh was uninjured and there was no mention of him

requesting medical attention (Exhibit I).

21. At the Rule 16 Conference, Mr. McIntosh was asked to identify any

health care providers who treated him and to provide Authorizations permit-

ting the Defendants to acquire copies of their records. He failed to do either

and it appears that he was not seen or treated by anyone.

22. At the Rule 16 Conference, Mr. McIntosh was also asked to locate and

provide copies of photographs taken of his hands and wrists at about the

time of the subject incident. He commenced a lawsuit against a local der-

matology practice and two of its physician-members for alleged malpractice

with regard to treatment of a rash on his hands and feet. The rash on his

feet was successfully treated, but the rash on his hands lingered and were

treated by a New York City-based physician, who took photographs. They

showed an oatmeal-like appearance of his palms. He was also seen by an-

other physician in the New York City area, whom he requested serve as an

expert to oppose a summary judgment motion made in the malpractice suit.

Upon information and belief, both physicians maintained records regarding

their evaluation and/or care of him and he was asked at the Rule 16 Con-

ference to produce copies of those, as well. Had he sustained any injuries

to his wrists or lower arms as the result of the events at the accident scene

on Mt. Hope, it is submitted that those photographs would have shown

them. Ultimately, Monroe County Supreme Court Justice, William Polito,

dismissed that suit, his decision was upheld on appeal (see McIntosh v

Genesee Valley Laser Center, 121 AD3d 1560 [4th Dept. , 2014]) and his

motions for reargument and or for leave to appeal to the New York Court of

Appeals were denied (McIntosh v Genesee Valley Laser Center, 125 AD3d

1460 [4th Dept., 2015); and McIntosh v Genesee Valley Laser Center, 25

NY3d 911 [2015]). Mr. McIntosh has did [sic] not produce photos or records.

City Rule 56 Statement, Feb. 7, 2018, ECF No. 22-6.

County Defendants

The County defendants contend that McIntosh has failed to allege facts stating a

claim for an Eighth Amendment violation, has presented no evidence that the force used

against him was sufficiently serious or that he suffered a serious medical need, and that

the Court should dismiss his claims against the County defendants because McIntosh

has failed to prosecute this action. Further, they argue that McIntosh never moved to

substitute Deputy Eric Schultz (whom the County identified for him) for “John Doe 1, big

bald jailor,” therefore, Deputy Schultz is not a proper defendant.

The County memorandum of law submits that the Court should analyze McIntosh’s

claims of excessive force applied to him while he was at the jail following arrest, but before

any conviction, under the Eighth Amendment. The Court disagrees. Under Graham v.

Connor, 490 U.S. 386 (1989), the Court analyzes the claims “under the Fourth Amend-

ment’s ‘objective reasonableness’ standard….” Id. at 388, 395 (“all claims that law en-

forcement 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….”). The Supreme Court further stated

that the reasonableness of the force used to make the arrest depends on the circum-

stances, such as the severity of the crime, whether the suspect poses an immediate threat

to the safety of the officer or others, or is actively resisting arrest, and that the standard

is viewed “from the perspective of a reasonable officer on the scene, rather than with the

20/20 vision of hindsight.” Id. at 396. Then-Chief Justice Rehnquist further observed:

With respect to a claim of excessive force, the same standard of reasona-

bleness at the moment applies: “Not every push or shove, even if it may

later seem unnecessary in the peace of a judge’s chambers,” Johnson v.

Glick, 481 F.2d, at 1033, violates the Fourth Amendment. The calculus of

reasonableness must embody allowance for the fact that police officers are

often forced to make split-second judgments—in circumstances that are

tense, uncertain, and rapidly evolving—about the amount of force that is

necessary in a particular situation.

As in other Fourth Amendment contexts, however, the “reasonableness” in-

quiry in an excessive force case is an objective one: the question is whether

the officers’ actions are “objectively reasonable” in light of the facts and cir-

cumstances confronting them, without regard to their underlying intent or

motivation.

Graham, 490 U.S. at 396–97.

Deputy Todd Kenney

The County correctly posits that Deputy Todd Kenney is the only County defendant

left in this case and argues that his use of force was objectively reasonable. In its state-

ment of facts, the County does not dispute the allegations McIntosh made in his sworn

complaint, including that Deputy Kenney “violently screamed commands that [McIntosh]

was already obeying and violently put handcuffs way to[o] tightly around [his] wrists.”

Compl. at 8, Apr. 10, 2015, ECF No. 1. McIntosh also stated that Deputy Kenney “did roll

[his] left hand and push on [his] wrist causing extreme pain” and tried to break his left

wrist. Id. Finally, McIntosh stated: “Then I was shoved head first into a 6-inch raised con-

crete platform in the filthy cell.” Id. McIntosh does not identify who shoved him into the

platform.

Violently screaming commands does not amount to an unlawful use of force. As-

suming for the sake of the motions that Defendants had probable cause to arrest McIn-

tosh, placing handcuffs on too tightly only amounts to an unlawful use of force if McIntosh

also alleges that he so informed the deputy, and the deputy refused to correct the prob-

lem. See Burchett v. Kiefer, 310 F.3d 937, 944–45 (6th Cir. 2002) (“Our precedents allow

the plaintiff to get to a jury upon a showing that officers handcuffed the plaintiff excessively

and unnecessarily tightly and ignored the plaintiff's pleas that the handcuffs were too

tight.”); Hamilton v. Fischer, No. 6:12-CV-06449(MAT), 2015 WL 8207459, at *2

(W.D.N.Y. Dec. 7, 2015) (citing Burchett). Plaintiff does not state in his verified complaint

that he informed Deputy Kenney the handcuffs were too tight, or that Deputy Kenney

refused to loosen them Thus, those two allegations are insufficient to state a cause of

action for unlawful use of force under the Fourth Amendment.

The Court turns now to McIntosh’s statements that “Officer Kenney did roll my left

hand and push on my wrist causing extreme pain. While I was screaming in pain and

agony, Officer Kenny did try with all his might to break my left wrist.” Compl. at 9. Without

any evidentiary proof in admissible form from Deputy Kenney or any other witness refuting

McIntosh’s claims against him, the Court is unable to grant judgment to Deputy Kenney.

Therefore, his motion for judgment is denied with respect to the allegations that Deputy

Kenney tried to break McIntosh’s wrist.

Deputy Eric Schultz

Plaintiff referred to this defendant as big, bald, and a jailor. In its Order of March 8,

2016, ECF No. 5, the Court ordered McIntosh to substitute the jailor’s name as a party

based on the information provided by the Monroe County Department of Law pursuant to

the Court’s Valentin request. Valentin v. Dinkins, 121 F.3d 72 (2d Cir. 1997). McIntosh

never substituted a name for the John Doe defendant the Law Department identified.

Accordingly, any claims against Deputy Schultz are dismissed.

Medical Claims

McIntosh alleges he “was denied proper medical treatment, an attorney, and a

phone call.” Compl. at 9. This conclusory claim fails to meet the lesser standard required

for surviving a motion to dismiss, let alone the standard for a summary judgment motion.

This claim is dismissed.

City Defendant Sergeant Bing C. Reaves

McIntosh alleges claims of false arrest and false imprisonment against Rochester

City Police Sergeant Reaves. Based on the undisputed facts outlined above, Sergeant

Reaves had probable cause to arrest McIntosh. Further, the force alleged in the com-

plaint, if true, was not unreasonable under the circumstances of the situation.

City Defendant Officer Mathew Potocki

McIntosh alleges that Officer Potocki punched him in the mouth, and the officer

denies ever striking, or threatening to strike McIntosh. Attached to his declaration is a

photograph of Plaintiff’s face taken shortly after his arrest. The photographs depict no

injury to McIntosh’s face. Consequently, McIntosh has failed to raise a material question

of fact precluding summary judgment. His claim against Officer Potocki is dismissed.

CONCLUSION

For the reasons stated above, the Monroe County Defendants’ application for sum-

mary judgment, ECF No. 21, is granted in part. All claims against Deputy Schultz, named

in the complaint as John Doe 1 “big, bald jailor,” are dismissed. All claims against Deputy

Kenney, with the exception of the claim that the deputy tried to break McIntosh’s wrist,

are also dismissed. The Clerk will enter a partial judgment for Defendants as outlined

above. The case remains open.

Further, the City Defendants’ motion for summary judgment, ECF No. 22, is

granted in total. All claims against the City Defendants are dismissed.

The Court will schedule a status conference by separate Order.

DATED: November 7, 2019

Rochester, New York

/s/ Charles J. Siragusa

CHARLES J. SIRAGUSA

United States District Judge