McGuire v. Town of Cheektowaga

UNITED STATES DISTRICT COURT

FOR THE

WESTERN DISTRICT OF NEW YORK

STACIE MCGUIRE, )

)

Plaintiff, )

)

Vv. ) Case No. 1:20-cv-01632

)

TOWN OF CHEEKTOWAGA; )

BRIAN WESOLOSKI, individually, and )

in his capacity as a Town of Cheektowaga )

Police Officer; JOSE DOMENECH, )

individually, and in his capacity as a Town )

of Cheektowaga Police Officer; DENNIS )

KUSAK, individually, and in his capacity as__—)

a Town of Cheektowaga Police Officer; )

JOHN WANAT, individually, and in his )

capacity as a Town of Cheektowaga Police )

Officer; PAT CHLUDZINSKI, )

individually, and in his official capacity asa _ _—+)

Town of Cheektowaga Police Officer; JOHN _)

DOE(S), individually, and in his/her capacity as )

a Town of Cheektowaga Police Officer; and )

COREY MCGUIRE, )

)

Defendants. )

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART THE

TOWN DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

(Doc. 33)

Defendants Town of Cheektowaga (the “Town”), Brian Wesoloski, Jose

Domenech, Dennis Kusak, John Wanat, and Pat Chludzinski (collectively, the “Town

Defendants”) moved for summary judgment on February 10, 2023, (Doc. 33), with regard

to Plaintiff Stacie McGuire’s claims against them under 42 U.S.C. § 1983. Plaintiff

opposed the motion on April 10, 2023, (Doc. 40), arguing that genuine issues of material

fact preclude summary judgment. The Town Defendants filed a reply on April 21, 2023,

(Doc. 45). The court held a hearing on the Town Defendants’ motion on July 20, 2023, at

which point the court took the pending motion under advisement.

Against the Town Defendants, Plaintiff alleges false arrest for violations of her

rights under the Fourth and Fourteenth Amendments (Count I); false imprisonment for

violations of her rights under the Fourth and Fourteenth Amendments (Count II);

malicious prosecution (Count III); failure to intervene for violations of her rights under

the Fourth and Fourteenth Amendments (Count IV); deliberate indifference to her serious

medical needs pursuant to her rights under the Fifth, Eighth, and Fourteenth Amendments

(Count V); conspiracy to violate her rights pursuant to the Fourth and Fourteenth

Amendments (Count VI); and violation of her due process rights pursuant to the

Fourteenth Amendment (Count VII). She also brings a claim against the Town for

violation of her rights pursuant to the Fourth and Fourteenth Amendments for the Town’s

policy, custom, and practice of failing to supervise and train its police officers (Count

VIID. Plaintiff requests compensatory and punitive damages.

Plaintiff is represented by Chad A. Davenport, Esq., R. Anthony Rupp, III, Esq.,

and Young Woo Kim, Esq. The Town Defendants are represented by Kevin Eugene

Loftus, Jr., Esq., and Nicholas M. Hriczko, Esq.

I. Undisputed Facts.

At all relevant times, Plaintiff resided at 22 Christa Place in Cheektowaga, New

York, with her husband, Defendant Corey McGuire. In or around 2015, Plaintiff and Mr.

McGuire began experiencing marital issues.

On November 8, 2017, Mr. McGuire arrived home from work at approximately

3:00 p.m. Plaintiff called Mr. McGuire’s employer, Steuben Foods, to advise that Mr.

McGuire was drunk. A domestic disturbance between Plaintiff and Mr. McGuire ensued.

At an unspecified time, Mr. McGuire called 911 and stated that Plaintiff had struck him

with a pipe wrench. Sergeant Jose Domenech and his partner, Sergeant Brian Wesoloski,

from the Town’s Police Department (collectively, the “Law Enforcement Defendants’)

responded to Plaintiff's and Mr. McGuire’s home.!

At the time of the incident, Sergeant Domenech had been employed by the Town’s

Police Department for approximately sixteen years. Sergeant Wesoloski had been an

officer with the Town since 2006 and was promoted to sergeant in February 2020.

As part of their investigation, the Law Enforcement Defendants separated Plaintiff

and Mr. McGuire. Mr. McGuire told Sergeant Domenech that he and Plaintiff had a

verbal argument which turned into a physical altercation. He reported that Plaintiff struck

him in the ribs with a pipe wrench. Sergeant Domenech observed scratches on Mr.

McGuire’s face that were bleeding and damage to his eyeglasses. Sergeant Wesoloski

similarly noted the “bloody scratches on [Mr. McGuire’s] face and neck.” (Doc. 40-7 at

11, 39) (internal quotation marks omitted). Sergeant Wesoloski also observed the pipe

wrench. Color photographs submitted with the Town Defendants’ motion for summary

judgment, see Doc. 33-9, depict Mr. McGuire’s facial injuries.

The domestic incident report indicates that Plaintiff was also interviewed and

claimed Mr. McGuire attacked her, unprovoked, shoved her to the ground, and hit her in

the face and abdomen. She asserted that she defended herself, including by scratching

Mr. McGuire to get him to stop the attack. At the time, Plaintiff had a bruise on her left

eye. When Mr. McGuire was reportedly asked about the redness and swelling around

Plaintiff's eye, he denied hitting her and stated the injury to her eye must have happened

when the two struggled over the pipe wrench.

The Law Enforcement Defendants determined that Plaintiff was the aggressor due

to Mr. McGuire’s facial injuries and damaged eyeglasses and the allegation that Plaintiff

had struck Mr. McGuire with a pipe wrench. Sergeant Domenech found Mr. McGuire

' The domestic incident report identifies Defendants Dennis Kusak and John Wanat as

responding officers and Defendant Pat Chludzinski as the supervising officer. Officer Kusak

testified in his deposition that he does not recall this incident. Officer Wanat recalls responding,

although he does not recall Officer Kusak’s role. Officer Wanat testified that Officer

Chludzinski’s role was to process the initial domestic incident report. Plaintiff does not allege

any specific individual acts or omissions but instead refers to “defendants” generally. The Law

Enforcement Defendants do not seek dismissal for failure to establish their personal involvement

in the alleged constitutional violations.

“more credible[,]” (Doc. 40-7 at 10, § 35), than Plaintiff “based on a totality of the

circumstances encountered at the scene[,]” id. at § 36. Plaintiff was subsequently arrested

and charged with assault in the third degree and with criminal mischief in the fourth

degree.

Plaintiff was handcuffed and confined in a “Holding Center” until her release the

following day. While Plaintiff was being processed, she called her friend, Frank

Lattanzio. After her release from the police station, she retrieved her belongings from 22

Christa Place and stayed with Mr. Lattanzio at his residence. She was informed about

domestic violence shelters but did not stay at one because of her cat. Mr. McGuire sought

and was issued an order of protection against Plaintiff. To resolve the criminal charges

against her, Plaintiff accepted an adjournment in contemplation of dismissal (an “ACD”).

In December of 2017, Plaintiff requested an order of protection against Mr.

McGuire, which was denied by a Family Court Judge. Thereafter, Plaintiff returned to 22

Christa Place and resumed living with Mr. McGuire. She later obtained orders of

protection against Mr. McGuire from the Family Court on March 20, 2018 and from the

Integrated Domestic Violence Court on April 30, 2018 and July 2, 2018.

Prior to the November 8, 2017 incident, Plaintiff did not report a number of

alleged domestic violence incidents involving Mr. McGuire to the Town’s Police

Department. These include: an alleged incident occurring in or around 2009 or 2010, an

alleged incident in 2016 when Mr. McGuire pushed Plaintiff to the ground, and an

alleged incident in 2017 wherein Plaintiff thought Mr. McGuire broke her hand. In April

of 2017, Plaintiff reported a physical altercation with her mother to the Town’s Police

Department.

II. Disputed Facts.

The Town Defendants assert that, during the domestic disturbance, Plaintiff

grabbed a pipe wrench from the pantry and hid it behind her back. Plaintiff disputes this

statement as incomplete and misleading because she was “thrown to the ground and was

mercilessly beaten and strangled by [Mr.] McGuire, which led to her losing

consciousness temporarily.” Jd. at 3, § 6. Because of their difference in size and her

inexperience fighting, Plaintiff asserts her only option was to attempt to use her hands to

push Mr. McGuire away, which she concedes may have scratched him. Plaintiff claims

that she is a foot shorter than Mr. McGuire and weighs approximately sixty pounds less

than he. She recalls Mr. McGuire’s eyeglasses falling on her during their altercation but

does not recall whether the eyeglasses broke. She asserts Mr. McGuire was wearing the

eyeglasses the next day.

When she regained consciousness, Plaintiff claims she opened the back door and

yelled for help. She asserts she wanted to call 911 immediately but that the phone was

two rooms away and retrieving it would have required her to crawl past Mr. McGuire.

She found the pipe wrench in the pantry and picked it up “to prevent further attack[.]” Jd.

She asserts she only tried to swing the pipe wrench at her husband when he lunged at her

in order to “fend him off, not to hurt him.” /d. at § 7. She claims that the pipe wrench was

too heavy for her to swing and she did not hit Mr. McGuire with it. After being unable to

lift the pipe wrench, Plaintiff dropped it on the floor and crawled to safety.

Plaintiff submits undated photographs of herself and Mr. McGuire, which she

claims were taken shortly after the November 8, 2017 incident. See Doc. 40-8 at 12. The

photograph of Plaintiff depicts a black eye, an injury which she states was “‘so severe that

her orbital bone was fractured.” Jd. The photograph of Mr. McGuire shows scratches on

his neck.

When the Law Enforcement Defendants arrived, Plaintiff asserts she was inside

the home, unaware of what was happening, and having difficulty breathing. She claims

she informed the Law Enforcement Defendants that she “was 100% disabled and needed

medical help due to [her] bipolar disorder and the injuries [she] suffered from [Mr. ]

McGuire.” (Doc. 40-5 at 3, § 22.) She told the Law Enforcement Defendants that Mr.

McGuire “attacked her unprovoked, punched her in the eye, and threw her on the ground,

and she had to defend herself.” (Doc. 40-8 at 12.) She stated that she had to use her hands

to stop Mr. McGuire from punching her but the Law Enforcement Defendants were

dismissive of her answers to their questions. When asked about Mr. McGuire’s broken

eyeglasses and the pipe wrench, Plaintiff claims she told the Law Enforcement

Defendants that the eyeglasses had fallen off while Mr. McGuire was punching her and

that she picked up the pipe wrench to prevent further assault but never hit Mr. McGuire

with it.

Plaintiff contends that the Law Enforcement Defendants should have known “by

simply looking at the faces of Plaintiff and [Mr.] McGuire that the injury on Plaintiffs

face shows undisputable signs of being punched while [Mr.] McGuire’s scratch wounds

were the result of Plaintiff trying to defend herself.” /d. at 12-13. By “deliberately

disregard[ing]” the discrepancy in the severity of her and her husband’s injuries and the

discrepancy in their physical size in deciding whom to arrest, id. at 13, she claims the

Law Enforcement Defendants “solely relied on [Mr.] McGuire’s statement[.]” (Doc. 40-7

at 10, | 36.) Plaintiff claims the Law Enforcement Defendants did not check for the

alleged injury to Mr. McGuire’s ribs, nor did they take photos or collect evidence, secure

the pipe wrench, or examine the complaint history at 22 Christa Place as required by “the

procedures set out under General [O]rder O-44-1 of the Cheektowaga Town Police

Department Domestic Violence Policy[]” (the “Domestic Violence Policy”). Jd. The Law

Enforcement Defendants contest this claim and assert they fulfilled the Town’s Domestic

Violence Policy in their investigation.

The Law Enforcement Defendants’ testimony regarding whether they checked the

injury to Mr. McGuire’s ribs was equivocal. Sergeant Wesoloski testified:

Q. Were there any observable injuries to [Mr. McGuire’s] ribs?

A. I imagine I would have looked. I don’t recall.

Q. Okay. Aside from just looking, though, do you recall seeing any

injuries to [Mr.] McGuire on his ribs?

A. Could you rephrase that?

Q. So your testimony is that you would have looked. But what I’m

asking is, did you observe any injuries to [Mr.] McGuire’s ribs?

A. I don’t recall looking. I imagine I would have if [—] in that instance,

I imagine I would have asked him to lift his shirt.

Q. Okay.

A. — I don’t recall if [—] I don’t recall seeing an injury.

Q. Okay.

A. Not that I didn’t see one. That I don’t [—] I just don’t remember.

(Doc. 33-20 at 28-29.) Sergeant Domenech testified:

Q. Okay. Did you make any visual observations of where [Mr.

McGuire] said he was hit with the pipe wrench?

A. No.

Q. Did [Sergeant] Wesoloski make any observations of where [Mr.

McGuire] was hit in the ribs?

A. I don’t know.

(Doc. 33-14 at 19.)

Plaintiff asserts that she requested medical assistance while being taken into

custody and she was escorted past an ambulance that was at the scene on standby but was

informed that the ambulance was for Mr. McGuire, not her. She claims she requested

medical attention again at the police station where she was held but the Law Enforcement

Defendants ignored her request. The Town Defendants deny Plaintiff's allegation that she

requested medical attention at the scene, pointing to Officer Wesoloski’s testimony that

he did not remember “anyone request[ing] medical attention there at the scene[]” and that

Plaintiff was not “asking for medical attention at the scene.” (Doc. 33-20 at 46-47.)

The Town Defendants assert that law enforcement? escorted Plaintiff to 22 Christa

Place so she could retrieve her personal belongings, including her medications. She

contends that law enforcement only secured some of her medications on November 10

and it took until November 13 for her to obtain the remainder, “despite Plaintiffs

repeated request[s]” to pick up “medications that were imperative for her.” (Doc. 40-7 at

6, | 16.) At the time of the incident, she claims she was “100% disabled with bipolar one

disorder, panic disorder, and other health issues” which she was diagnosed with “in or

around 2005.” (Doc. 40-5 at 1, 45.) She states that she was on multiple medications,

including lithium, lamotrigine, Ativan, and levothyroxine, and that she “cannot go

without these medications,” and that “skipping one would be tremendously detrimental to

* Neither party specifies who from the Town’s Police Department aided Plaintiff in obtaining her

medications.

[her] health.” Jd. The Town Defendants allegedly “deliberately delayed or prevented

Plaintiff from getting access to her essential medications, despite being told and aware of

the issue.” (Doc. 40-8 at 22.) The Town Defendants assert Plaintiff picked up her

medications from the police station on November 10, 2017.

Plaintiff contends that the Town failed to properly screen its law enforcement

officers and retained police officers with a history of inappropriate responses to domestic

violence incidents and who had failed to assist individuals with serious mental disorders.

She identifies no police officers by name who fall within this category. She asserts that,

despite the Town’s awareness that the Law Enforcement Defendants unlawfully arrested

her, they did not review their policies or training or impose any discipline on the Law

Enforcement Defendants.

Finally, Plaintiff asserts there is circumstantial evidence that the Law Enforcement

Defendants made efforts to “shield [Mr.] McGuire through breaching their own written

procedures and training, and their hostile treatment of Plaintiff.” (Doc. 40-7 at 5, § 14.)

On July 9, 2017, she called the Town’s Police Department to report threatening acts by

Mr. McGuire. Upon law enforcement’s arrival, “all of the veteran male police officers

rallied around [Mr. McGuire] in the living room[,]” and she “could hear them talking

about how he had PTSD, and . . . that the officers were veterans as well and sympathized

with him.” (Doc. 40-5 at 2, § 9.) She contends the Town’s Police Department never

followed up on the incident.

Ill. Whether the “Sham Affidavit” Doctrine Applies.

The Town Defendants argue the July 9, 2017 welfare check does not create a

material issue of fact because Plaintiff makes these assertions for the first time in an

affidavit that contradicts her previous deposition testimony, in which she “provided no

substantive testimony concerning the details of that alleged incident.” (Doc. 45 at 10.)

They also assert that Plaintiff's contention that she requested medical assistance the

evening of November 8, 2017 is not supported by the record.

“[A] party may not create an issue of fact by submitting an affidavit in opposition

to a summary judgment motion that, by omission or addition, contradicts the affiant’s

previous deposition testimony.” Hayes v. N.Y.C. Dep’t of Corr., 84 F.3d 614, 619 (2d Cir.

1996). “The purpose of the doctrine is clear: ‘if a party who has been examined at length

on deposition could raise an issue of fact simply by submitting an affidavit contradicting

his own prior testimony, this would greatly diminish the utility of summary judgment as a

procedure for screening out sham issues of fact.’” Moll v. Telesector Res. Grp., Inc., 760

F.3d 198, 205 (2d Cir. 2014) (alteration adopted) (quoting Perma Rsch. & Dev. Co. v.

Singer Co., 410 F.2d 572, 578 (2d Cir. 1969)).

Under the sham affidavit doctrine, “a material issue of fact may be revealed by [a

party’s] subsequent sworn testimony that amplifies or explains, but does not merely

contradict, his prior testimony, especially where the party was not previously asked

sufficiently precise questions to elicit the amplification or explanation.” Rule v. Brine,

Inc., 85 F.3d 1002, 1011 (2d Cir. 1996) (citations omitted). “If there is a plausible

explanation for discrepancies in a party’s testimony, the court considering a summary

judgment motion should not disregard the later testimony because of an earlier account

that was ambiguous, confusing, or simply incomplete.” Langman Fabrics v. Graff

Californiawear, Inc., 160 F.3d 106, 112 (2d Cir. 1998), amended, 169 F.3d 782 (2d Cir.

1998).

At her deposition, Plaintiff was asked why the police were called on July 9, 2017,

and she could not recall specifically,? however, she was not asked about what happened

during the welfare check on that date. She also did not affirmatively deny having a

memory of that event.

Contrary to the Town Defendants’ characterization, details of the alleged

3 Q. Okay. The only other report we have in the Cheektowaga system of a call

regarding 22 Christa is July 9th, 2017 where there was a welfare check. Do you

remember that incident?

A. I don’t know if that’s when I told you that the cops were at my house.

Q. What was the reason that the cops were called that particular day?

A. I’m sure there was some kind of whatever abuse was going on that was

unbearable that day.

(Doc. 33-13 at 102-03.)

interaction at the welfare check were provided during Plaintiff's deposition because she

testified that at some time prior to the November 8, 2017 incident the police visited her

house and “all of the veteran male police officers rallied around [Mr. McGuire] in the

living room,” “talk[ed] about how [Mr. McGuire] had PTSD and . . . was a veteran[,]”

and “let[] [Mr. McGuire] know that they were veterans too.” (Doc. 33-13 at 73.)

Although Plaintiff did not provide a date for this event, it is unlikely there were two such

events. Because there is no direct inconsistency between Plaintiff's deposition testimony

and her affidavit, the sham affidavit doctrine does not apply.

The Town Defendants assert that Plaintiff never mentioned that she requested an

ambulance or any other medical attention on the evening of November 8, 2017 until her

affidavit was submitted in opposition to summary judgment. Plaintiff testified she told an

officer who questioned her at the scene the night of the incident that she “was having a

panic attack.” Jd. at 68. Despite being asked if she remembered “anything else [she]

would have said to the police officers that night[,]” id. at 71-72, Plaintiff only mentioned

needing someone to take care of her cat. Her testimony is otherwise devoid of any

mention that she communicated her medical needs to the Law Enforcement Defendants

the night of the incident. Such allegations are also absent from her complaint.

Although Plaintiff's affidavit adds new allegations, she was not specifically

questioned on whether she requested medical attention on the night of the incident, only

whether she remembered anything else, and therefore her “affidavit does not actually

contradict the prior testimony[.]” Ampong v. Costco Wholesale Corp., 2023 WL

4744185, at *3 (S.D.N.Y. July 25, 2023) (citing White v. ABCO Eng’g, Corp., 221 F.3d

293, 304 (2d Cir. 2000)). “If a declarant’s prior testimony and summary judgment

declaration are not in direct contradiction, mere tensions or inconsistencies go to

credibility, not admissibility, and credibility determinations are not proper at summary

judgment.” Lewis v. Westchester Cnty., 2023 WL 5610302, at *4 (S.D.N.Y. Aug. 30,

2023) (internal quotation marks and citation omitted). In this case, the inconsistency is

based on an omission. Although a close question, because there is no direct contradiction,

the court finds the sham affidavit doctrine does not apply.

10

IV. Conclusions of Law and Analysis.

A. Standard of Review.

Summary judgment is appropriate when “there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a). A “material” fact is one that “‘might affect the outcome of the suit under the

governing law[,]’” Rodriguez v. Vill. Green Realty, Inc., 788 F.3d 31, 39 (2d Cir. 2015)

(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)), while “[a] dispute

of fact is ‘genuine’ if ‘the evidence is such that a reasonable jury could return a verdict

for the nonmoving party.’” Jd. at 39-40 (quoting Anderson, 477 U.S. at 248). On a motion

for summary judgment, the court “constru[es] the evidence in the light most favorable to

the nonmoving party and draw[s] all reasonable inferences in his [or her] favor.”

McElwee v. Cnty. of Orange, 700 F.3d 635, 640 (2d Cir. 2012). If the evidence “presents

a sufficient disagreement to require submission to a jury[,]” the court should deny

summary judgment. Anderson, 477 U.S. at 251-52. “Credibility determinations, the

weighing of the evidence, and the drawing of legitimate inferences from the facts are jury

functions, not those of a judge.” Proctor v. LeClaire, 846 F.3d 597, 608 (2d Cir. 2017)

(internal quotation marks omitted).

The moving party “always bears the initial responsibility of informing the district

court of the basis for its motion, and identifying” the evidence “which it believes

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

477 U.S. 317, 323 (1986) (internal quotation marks omitted). When the moving party has

carried its burden, its opponent must produce “sufficient evidence favoring the

nonmoving party for a jury to return a verdict for that party.” Anderson, 477 U.S. at 249.

“A non-moving party cannot avoid summary judgment simply by asserting a

‘metaphysical doubt as to the material facts.’”” Woodman v. WWOR-TYV, Inc., 411 F.3d 69,

75 (2d Cir. 2005) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.

574, 586 (1986)).

In adjudicating a motion for summary judgment, the district court’s role “is not to

resolve disputed questions of fact but only to determine whether, as to any material issue,

11

a genuine factual dispute exists.” Kaytor v. Elec. Boat Corp., 609 F.3d 537, 545 (2d Cir.

2010). Not all disputed issues of fact, however, preclude summary judgment. “If the

evidence is merely colorable, or is not significantly probative, summary judgment may be

granted.” Anderson, 477 U.S. at 249-50 (citations omitted).

B. Whether the Disputed Facts Preclude Summary Judgment.

“On a motion for summary judgment, a fact is material if it ‘might affect the

outcome of the suit under the governing law.’” Royal Crown Day Care LLC v. Dep’t of

Health & Mental Hygiene, 746 F.3d 538, 544 (2d Cir. 2014) (quoting Anderson, 477 U.S.

at 248). Factual disputes that are irrelevant or unnecessary will not be counted. “[T]he

substantive law will identify which facts are material.” Anderson, 477 U.S. at 248.

In the instant case, the parties dispute whether the Law Enforcement Defendants

correctly determined that Plaintiff, rather than Mr. McGuire, was the primary aggressor

and whether they conducted an adequate investigation. These factual disputes are not

material if, after regarding them in the light most favorable to Plaintiff, the Law

Enforcement Defendants had arguable probable cause to arrest her. On the other hand, if

the evidence is contested as to whether the Law Enforcement Defendants willfully

ignored Plaintiff's injuries in making a probable cause determination, summary judgment

is inappropriate.

C. Whether to Grant Summary Judgment on Plaintiff's Claims for False

Arrest (Count I) and False Imprisonment (Count II).

Plaintiff alleges that the Town Defendants unlawfully seized and arrested her in

violation of the Fourth and Fourteenth Amendments to the U.S Constitution under the

color of state law. As a result, she alleges that the Town Defendants deprived her of the

rights, privileges, and immunities guaranteed to her by the U.S. Constitution. She

contends that the Law Enforcement Defendants handcuffed her and confined her in a

“Holding Center” on November 8, 2017, until her release the following day. The Town

Defendants counter that the Law Enforcement Defendants had probable cause to arrest

Plaintiff and that, even if they did not, they are entitled to qualified immunity because

they had arguable probable cause to do so.

12

Plaintiff's claims arise under 42 U.S.C. § 1983 and allege violations of her federal

constitutional rights. Section 1983 “is not itself a source of substantive rights” but

provides “a method for vindicating federal rights elsewhere conferred[.]” Patterson v.

Cnty. of Oneida, 375 F.3d 206, 225 (2d Cir. 2004) (internal quotation marks omitted)

(quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)). A § 1983 claimant must

allege the violation or deprivation of a federal right committed by a person acting “under

color of state law.” Feingold v. New York, 366 F.3d 138, 159 (2d Cir. 2004) (internal

quotation marks omitted) (quoting West v. Atkins, 487 U.S. 42, 48 (1988)). A § 1983

claimant further “must p[rove] that each [g]overnment-official defendant, through the

official’s own individual actions, has violated the Constitution.” Ashcroft v. Iqbal, 556

U.S. 662, 676 (2009). “‘The factors necessary to establish a [§ 1983] violation will vary

with the constitutional provision at issue’ because the elements of different constitutional

violations vary.” Tangreti v. Bachmann, 983 F.3d 609, 618 (2d Cir. 2020) (quoting Jgbal,

556 U.S. at 676) (alteration in original).

A law enforcement officer is entitled to qualified immunity as a matter of law

where “(1) his conduct does not violate clearly established statutory or constitutional

rights of which a reasonable person would have known, or (2) it was ‘objectively

reasonable’ for him to believe that his actions were lawful at the time of the challenged

act.” Cerrone v. Brown, 246 F.3d 194, 199 (2d Cir. 2001) (internal quotation marks

omitted) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982), and citing Anderson v.

Creighton, 483 U.S. 635, 641 (1987)).

“A § 1983 claim for false arrest, resting on the Fourth Amendment right of an

individual to be free from unreasonable seizures, including arrest without probable

cause, . . . is substantially the same as a claim for false arrest under New York law[.]”

Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996). “Under New York law, false arrest is

considered to be a species of false imprisonment, and the two claims have identical

elements.” Mejia v. City of New York, 119 F. Supp. 2d 232, 252 (E.D.N.Y. 2000). The

elements of the claim under both § 1983 and New York law are: “(1) the defendant

intended to confine the plaintiff, (2) the plaintiff was conscious of the confinement,

13

(3) the plaintiff did not consent to the confinement[,] and (4) the confinement was not

otherwise privileged.” Jd. (alteration adopted) (internal quotation marks omitted) (quoting

Singer v. Fulton Cnty. Sheriff, 63 F.3d 110, 118 (2d Cir. 1995)).

The parties agree Plaintiff has established the first three prongs of her claims. The

only issue is whether her arrest was “otherwise privileged.” /d. (internal quotation marks

omitted). “If an officer has probable cause to arrest, the confinement is privileged.”

Solomon v. City of Rochester, 449 F. Supp. 3d 104, 114 (W.D.N.Y. 2020) (internal

quotation marks omitted) (quoting Nzegwu v. Friedman, 605 F. App’x 27, 29 (2d Cir.

2015) (summary order)). “The existence of probable cause to arrest constitutes

Justification and ‘is a complete defense to an action for false arrest,’ . .. whether that

action is brought under state law or under § 1983.” Weyant, 101 F.3d at 852 (quoting

Bernard v. United States, 25 F.3d 98, 102 (2d Cir. 1994)).

“[P]robable cause to arrest exists when the officers have 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.” /d. “The question of whether or not probable cause existed may be

determinable as a matter of law if there is no dispute as to the pertinent events and the

knowledge of the officers, . . . or may require a trial if the facts are in dispute[.]” Jd.

(internal citations omitted). A conviction following an arrest “would be conclusive

evidence of probable cause.” /d. (internal quotation marks omitted) (quoting Broughton v.

State, 335 N.E.2d 310, 315 (N.Y. 1975)). “On the other hand, evidence of a subsequent

dismissal, acquittal[,] or reversal on appeal would also be admissible to refute the

affirmative defense of justification.” Broughton, 335 N.E.2d at 315.

“When information is received from a putative victim or an eyewitness, probable

cause exists, . . . unless the circumstances raise doubt as to the person’s veracity[.]”

Curley v. Vill. of Suffern, 268 F.3d 65, 70 (2d Cir. 2001); see also Lee v. Sandberg, 136

F.3d 94, 103 (2d Cir. 1997) (“[A]bsent circumstances that raise doubts as to the victim’s

veracity[,] . . . [t]he veracity of citizen complaints who are the victims of the very crime

they report to the police is assumed.”). “[T]he probable cause standard does not require

14

that the arresting officer affirmatively seek out reasons to doubt the victim or a witness

where none are apparent.” Rae v. Cnty. of Suffolk, 693 F. Supp. 2d 217, 224 (E.D.N.Y.

2010). Rather, “the ‘uncorroborated testimony of a victim or other percipient witness’ is

usually sufficient on its own to support a finding of probable cause.” United States v.

Barbosa, 2016 WL 3976559, at *4 (D. Mass. July 22, 2016) (quoting Acosta v. Ames

Dep’t Stores, Inc., 386 F.3d 5, 10 (1st Cir. 2004)). This is because “[a] victim is

considered a ‘reliable informant’ even if ‘his or her reliability has not theretofore been

proved or tested.’” /d. (quoting Nelson v. Moore, 470 F.2d 1192, 1197 (1st Cir. 1972)).

While probable cause is based on “what the officer knew at the time of the arrest[,]” an

officer may not “deliberately disregard facts known to him which establish justification.”

Jocks v. Tavernier, 316 F.3d 128, 135-36 (2d Cir. 2003).

A law enforcement officer is

not required to perform a perfect investigation in order to establish probable

cause. As a result, facts related to the quality of [the defendant law

enforcement officers’] investigation, such as their alleged failure to . . . ask

certain questions, or arrest all of the participants potentially involved in a

suspected crime, do not affect the probable cause determination[. |

Harig v. City of Buffalo, 574 F. Supp. 3d 163, 189-90 (W.D.N.Y. 2021), aff'd, 2023 WL

3579367 (2d Cir. May 22, 2023); see also Rae, 693 F. Supp. 2d at 225 (“While, in

hindsight, it may be that [the arresting officer] could have asked additional questions, or

conducted a fuller investigation, the role of the court is not to overly scrutinize the

decisions of police officers from its vantage in chambers, long after those decisions were

made, but to determine whether the officers acted reasonably and in compliance with

what the law requires based on what they knew at the time.”).

Arguable probable cause exists if “the undisputed facts and all permissible

inferences favorable to the plaintiff show either (a) that it was objectively reasonable for

the officer to believe that probable cause existed, or (b) that officers of reasonable

competence could disagree on whether the probable cause test was met.” Robison v. Via,

821 F.2d 913, 921 (2d Cir. 1987). Arguable probable cause does not mean “almost”

probable cause; at all times “probable cause remains the relevant standard.” Jenkins v.

15

City of New York, 478 F.3d 76, 87 (2d Cir. 2007) (internal quotation marks omitted).

Under New York law, a person is guilty of assault in the third degree when:

1. With intent to cause physical injury to another person, he causes such

injury to such person or to a third person; or

2. He recklessly causes physical injury to another person; or

3. With criminal negligence, he causes physical injury to another person by

means of a deadly weapon or a dangerous instrument.

N.Y. Penal Law § 120.00 (McKinney 2023). As the Second Circuit has explained:

“*Physical injury’ means impairment of physical condition or substantial

pain.” [N.Y. Penal Law] § 10.00(9) [(McKinney 2023)]. “/P/etty slaps,

shoves, kicks and the like delivered out of hostility, meanness and similar

motives constitute only harassment and not assault, because they do not

inflict physical injury.” People v. Chiddick, 8 N.Y.3d 445, 448, 834

N.Y.S.2d 710, 866 N.E.2d 1039 (2007) (emphasis added) (internal

quotation marks omitted). Moreover, “[m]Jere evidence of being struck and

suffering a red mark or a black eye is insufficient for the crime of assault.”

Malte v. State, 125 A.D.2d 958, 959, 510 N.Y.S.2d 353 (4th Dep’t 1986).

Marom v. Town of Greenburgh, 722 F. App’x 32, 35 (2d Cir. 2018) (summary order).

A person is guilty of criminal mischief in the fourth degree under New York law

when, “having no right to do so nor any reasonable ground to believe that he or she has

such a right, he or she [i]Jntentionally damages property of another person[.]” N.Y. Penal

Law 145.00(1) (McKinney 2023). Under New York law, self-defense is “an exculpatory

defense[]” which can “negate the existence of a crime” and “similarly negate probable

cause.” Jocks, 316 F.3d at 135. For this reason, “a police officer’s awareness of the facts

supporting [self-defense] can eliminate probable cause.” Jd.

In this case, there is no dispute that Plaintiff was arrested and physically restrained

without her consent. She received an ACD for the crimes of assault in the third degree

and criminal mischief in the fourth degree. Under New York law, this is not treated as a

conviction. See In re Edwin L., 671 N.E.2d 1247, 1250 (N.Y. 1996) (“[I]n the adult

context, an ACD is neither an acquittal nor a conviction[.]”); People v. Prokopienko, 905

N.Y.S.2d 725, 726 (N.Y. App. Div. 2010) (“Defendant’s acceptance of an ACD on that

charge does not constitute a conviction of that crime.”).

16

There are disputed issues of material fact as to whether there was a visible

discrepancy regarding the severity of Plaintiff's injuries when compared with those of

Mr. McGuire. If the Law Enforcement Defendants purposefully ignored the severity of

Plaintiff's injuries and discounted her claim of self-defense to protect a veteran, there

would neither be probable cause nor arguable probable cause to arrest.

In the light most favorable to Plaintiff, although Mr. McGuire had visible

scratches and asserted he was hit with a pipe wrench, the alleged injury from the pipe

wrench was not documented or apparently verified while Plaintiff's black eye was. The

court therefore cannot determine, as a matter of law, whether it was “objectively

reasonable” for the Law Enforcement Defendants to believe they had probable cause to

arrest Plaintiff until the disputed material facts are established. Lowth v. Town of

Cheektowaga, 82 F.3d 563, 569 (2d Cir. 1996); see also Jones v. Treubig, 963 F.3d 214,

231 (2d Cir. 2020) (“[D]isputed material issues regarding the reasonableness of an

officer’s perception of the facts (whether mistaken or not) is the province of the jury,

while the reasonableness of an officer’s view of the law is decided by the district court.”).

For the foregoing reasons, the court DENIES the Town Defendants’ motion for

summary judgment on Plaintiff's claims for false arrest (Count I) and false imprisonment

(Count II).

D. Whether to Grant Summary Judgment on Plaintiff's Claim for

Malicious Prosecution (Count III).

Plaintiff argues that despite knowing that probable cause did not exist to detain,

arrest, and prosecute her, the Town Defendants acted intentionally and with malice to

pursue criminal charges against her in violation of her Fourth and Fourteenth Amendment

rights.

“Claims for... malicious prosecution, brought under § 1983 to vindicate the

Fourth and Fourteenth Amendment right to be free from unreasonable seizures, are

‘substantially the same’ as claims for . . . malicious prosecution under state law.” Jocks,

316 F.3d at 134 (quoting Weyant, 101 F.3d at 852).

A malicious prosecution claim under New York law requires the plaintiff to

17

prove “(1) the initiation or continuation of a criminal proceeding against

plaintiff; (2) termination of the proceeding in plaintiff's favor; (3) lack of

probable cause for commencing the proceeding; and (4) actual malice as a

motivation for defendant’s actions.”

Id. at 136 (quoting Murphy v. Lynn, 118 F.3d 938, 947 (2d Cir. 1997)). The Town

Defendants argue that Plaintiff cannot establish the second, third, or fourth elements of

her malicious prosecution claim.

1. Whether the Criminal Charges Were Terminated in Plaintiff's

Favor.

The Town Defendants argue that Plaintiffs criminal charges were not terminated

on the merits in her favor because she accepted an ACD. In Fulton v. Robinson, 289 F.3d

188, 196 (2d Cir. 2002), the Second Circuit held that, under New York Law, an ACD “is

not a favorable termination because it leaves open the question of the accused’s guilt.” Jd.

(citing Singleton v. City of New York, 632 F.2d 185, 193 (2d Cir. 1980)).

In Thompson v. Clark, 596 U.S. 36 (2022), however, the United States Supreme

Court effectively overruled Fulton by holding: “[t]o demonstrate a favorable termination

of a criminal prosecution for purposes of the Fourth Amendment claim under § 1983 for

malicious prosecution, a plaintiff need only show that his prosecution ended without a

conviction.” /d. at 39.’ A plaintiff need not show “that the criminal prosecution ended

with some affirmative indication of innocence.” /d. at 49. Because Plaintiff has

established that the prosecution of her ended without a conviction, she has established the

second prong of her claim.

2. Whether the Town Defendants Had Probable Cause to

Commence Criminal Proceedings Against Plaintiff.

The Town Defendants argue that because the Law Enforcement Defendants had

probable cause or arguable probable cause to arrest Plaintiff, there was, in turn, probable

cause to commence criminal proceedings. “[T]he existence of probable cause is a

complete defense to a claim of malicious prosecution in New York.” Savino v. City of

4 Thompson overruled the Second Circuit’s opinion in Lanning v. City of Glens Falls, 908 F.3d

19 (2d Cir. 2018), which concluded that a plaintiff must demonstrate that a criminal prosecution

ended with some affirmative indication of innocence. Jd. at 28.

18

New York, 331 F.3d 63, 72 (2d Cir. 2003). Disputed issues of material fact preclude the

court from concluding, as a matter of law, that probable cause or arguable probable cause

existed to prosecute Plaintiff. A jury must resolve the disputed facts regarding the

circumstances of the assault and the arrest before the court may determine whether there

was probable cause to commence criminal proceedings against Plaintiff.

3. Whether the Town Defendants Acted with Malice.

Plaintiff argues there is support for ‘‘an inference of malice” because the Law

Enforcement Defendants lacked probable cause to arrest her, their investigation of the

incident “was heavily one-sided[,]” and they arrested her without following proper

procedures. (Doc. 40-8 at 18-19.) The Town Defendants counter that there is “absolutely

no evidence[,]” (Doc. 33-24 at 9), that the Law Enforcement Defendants demonstrated

any animus towards Plaintiff, acted improperly in pursuing charges against her, or failed

to follow applicable procedure. (Doc. 33-24 at 9.)

“Under New York law, malice does not have to be actual spite or hatred, but

means only ‘that the defendant must have commenced the criminal proceeding due to a

wrong or improper motive, something other than a desire to see the ends of justice

served.’” Lowth, 82 F.3d at 573 (quoting Nardelli v. Stamberg, 377 N.E.2d 975, 976

(N.Y. 1978)). “In most cases, the lack of probable cause—while not dispositive—‘tends

to show that the accuser did not believe in the guilt of the accused, and malice may be

inferred from the lack of probable cause.’” /d. (quoting Conkey v. State, 427 N.Y.S.2d

330, 332 (N.Y. App. Div. 1980)). In addition, malice “may be manifested in an egregious

deviation from proper investigative procedures.” Ramos v. City of New York, 729

N.Y.S.2d 678, 691 (N.Y. App. Div. 2001). “Actual malice, in fact, is seldom shown by

direct evidence of an ulterior motive, but is usually inferred from the facts and

circumstances of the investigation.” Jd.

The court cannot determine, as a matter of law, whether the Law Enforcement

Defendants had probable cause or arguable probable cause to arrest and commence

criminal charges against Plaintiff. If, as Plaintiff alleges, the Law Enforcement

Defendants purposefully ignored exculpatory evidence in the course of their investigation

19

in order to protect a veteran, this bias and deviation from proper investigatory procedures,

if sufficiently egregious, may support an inference of malice.

The court DENIES the Town Defendants’ motion for summary judgment on

Plaintiff's malicious prosecution claim (Count III) because there are disputed material

facts regarding whether there was probable cause or arguable probable cause to pursue

criminal charges against Plaintiff and whether the Law Enforcement Defendants acted

with malice.

E. Whether to Grant Summary Judgment on Plaintiff's Claim for Failure

to Intervene (Count IV).

Plaintiff alleges that the Law Enforcement Defendants who responded each “failed

to take reasonable steps to prevent their fellow officers from engaging in the illegal acts

alleged],|” even though “they were present at the scene of such violations and were

capable of doing so.” (Doc. | at 23, § 172.) She claims the Law Enforcement Defendants

knew or should reasonably have known that such conduct violated her constitutional

rights and that they acted “with intent to violate, or with deliberate or reckless

indifference to,” those rights under the color of state law. Jd. at 24, | 175.

“Tt is widely recognized that all law enforcement officials have an affirmative duty

to intervene to protect the constitutional rights of citizens from infringement by other law

enforcement officers in their presence.” Anderson v. Branen, 17 F.3d 552, 557 (2d Cir.

1994).

An officer who fails to intercede is liable for the preventable harm caused

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

to know: (1) that excessive force is being used . . . ; (2) that a citizen has

been unjustifiably arrested . . . ; or (3) that any constitutional violation has

been committed by a law enforcement official]. |

Id. (internal citations omitted). “In order for liability to attach, there must have been a

realistic opportunity to intervene to prevent the harm from occurring.” Jd. “Whether an

officer had sufficient time to intercede or was capable of preventing the harm being

caused by another officer is an issue of fact for the jury unless, considering all the

evidence, a reasonable jury could not possibly conclude otherwise.” Jd. “[D]efendants

cannot be liable for both the underlying constitutional deprivation and a failure to

20

intervene to stop themselves from committing that violation.” Buari v. City of New York,

530 F. Supp. 3d 356, 392 (S.D.N.Y. 2021) (internal quotation marks and citation

omitted).

“[A] plaintiff must establish a given defendant’s personal involvement in the

claimed violation in order to hold that defendant liable in his individual capacity under

§ 1983.” Patterson, 375 F.3d at 229. Generally, district courts in this circuit have

concluded that a plaintiff “need not establish who, among a group of officers, directly

participated in the [constitutional violation] and who failed to intervene.” Zainc v. City of

Waterbury, 603 F. Supp. 2d 368, 384 (D. Conn. 2009) (internal quotation marks omitted).

To survive a motion for summary judgment, a plaintiff “need only produce evidence that

the [o]fficer [dJefendants were present on the night in question and participated in his [or

her] arrest.” John v. City of New York, 406 F. Supp. 3d 240, 245 (E.D.N.Y. 2017).

Plaintiff adduced evidence that the Law Enforcement Defendants were present for and

participated to varying degrees in her arrest. She has not established that they played a

material role in bringing charges against her. See Nixon v. City of New York, 2023 WL

2799920, at *5 (E.D.N.Y. Apr. 6, 2023) (concluding failure to intervene claim survived

motion for summary judgment where “a reasonable jury could find that [] there was no

arguable probable cause to arrest” and “the arrest was made in the presence of” two

officers); Coleman v. Cnty. of Nassau, 2022 WL 493207, at *5 (E.D.N.Y. Feb. 17, 2022)

(concluding that where officers “acted as partners” during vehicle stop and subsequent

arrest, plaintiff established both officers were “involved in the decision to or, at least,

aware of the circumstances leading up to [the] [p]laintiff's arrest[]” and therefore were

“directly involved or, alternatively, failed to intervene”).

For the foregoing reasons, the court DENIES the Town Defendants’ motion for

summary judgment on Plaintiffs claim for failure to intervene pertaining to her arrest

and GRANTS the motion as it pertains to her prosecution. (Count IV).

F. Whether to Grant Summary Judgment on Plaintiff’s Claim of

Deliberate Indifference to Serious Medical Needs (Count V).

Plaintiff alleges that the Town Defendants, under color of state law, acted with

21

deliberate indifference to her serious medical needs in violation of her right to due

process and to be free from cruel and unusual punishment under the Fifth, Eighth, and

Fourteenth Amendments to the U.S. Constitution. She alleges they “knew of Plaintiff's

need for her medication,” yet “intentionally refused to provide assistance to . . . Plaintiff

to help her obtain said medication; prevented Plaintiff from obtaining her prescriptions;

failed to take Plaintiffs complaints seriously; and delayed Plaintiffs ability to obtain her

prescriptions.” (Doc. | at 25, J 182.) Plaintiff alleges that she made her medical issues

known to the Law Enforcement Defendants and that, despite their knowledge, they failed

to ensure that she received medical attention.

To state a § 1983 claim under the Eighth Amendment’s Cruel and Unusual

Punishment Clause, a convicted prisoner must establish that the state was deliberately

indifferent to his or her serious medical needs. Estelle v. Gamble, 429 U.S. 97, 104-05

(1976). In contrast, “[a] pretrial detainee’s claims of unconstitutional conditions of

confinement are governed by the Due Process Clause of the Fourteenth Amendment,

rather than the Cruel and Unusual Punishments Clause of the Eight[h] Amendment.”

Darnell v. Pineiro, 849 F.3d 17, 29 (2d Cir. 2017). The rights of pretrial detainees “are at

least as great as the Eighth Amendment protections available to a convicted prisoner.”

City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983). The court thus GRANTS

the Town Defendants’ motion for summary judgment on Plaintiff's Eighth Amendment

claim and turns to her Fourteenth Amendment claim.

“(T]he official custodian of a pretrial detainee may be found liable for violating

the detainee’s due process rights if the official denied treatment needed to remedy a

serious medical condition and did so because of his deliberate indifference to that need.”

Weyant, 101 F.3d at 856. As the Second Circuit observed in Charles v. Orange County,

925 F.3d 73, 85 (2d Cir. 2019):

It is well established that when the state takes a person into custody,

severely limiting his ability to care for himself, and then is deliberately

indifferent to his medical needs, the . . . proscription against the

unnecessary and wanton infliction of pain is violated. That is true whether

the deliberate indifference is manifested by prison doctors in their response

22

to the prisoner’s needs, or by prison guards who intentionally deny or delay

access to medical care or intentionally deny or delay access to the treatment

once prescribed.

Id. (citing Estelle, 429 U.S. at 104-05). “In order to state a cognizable claim, a prisoner

must allege acts or omissions sufficiently harmful to evidence deliberate indifference to

serious medical needs.” Estelle, 429 U.S. at 106.

A “serious medical need” is one that requires urgent treatment and may result in

“death, degeneration, or extreme pain.” Charles, 925 F.3d at 86 (citing Hathaway v.

Coughlin, 99 F.3d 550, 553 (2d Cir. 1996)). It may also arise where “the failure to treat a

prisoner’s condition could result in further significant injury or the ‘unnecessary and

wanton infliction of pain[.]’” Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998)

(quoting Gutierrez v. Peters, 111 F.3d 1364, 1373 (7th Cir. 1997)). To assess seriousness,

courts consider “whether a reasonable doctor or patient would find the injury important

and worthy of treatment, whether the medical condition significantly affects an

individual’s daily activities, and whether the illness or injury inflicts chronic and

substantial pain.” Charles, 925 F.3d at 86 (citing Chance, 143 F.3d at 702). The

conditions “must be evaluated in light of contemporary standards of decency.” Darnell,

849 F.3d at 30 (internal quotation marks omitted). “[I]n most cases, the actual medical

consequences that flow from the alleged denial of care will be highly relevant to the

question of whether the denial of treatment subjected the prisoner to a significant risk of

serious harm.” Smith v. Carpenter, 316 F.3d 178, 187 (2d Cir. 2003). Here, Plaintiff

offers no expert witness opinion that her individual daily activities were affected or

whether she suffered chronic and substantial pain.

“A plaintiff can prove deliberate indifference by showing that the defendant

official ‘recklessly failed to act with reasonable care to mitigate the risk that the condition

posed to the pretrial detainee even though the defendant-official knew, or should have

known, that the condition posed an excessive risk to [the plaintiffs] health or safety.’”

Charles, 925 F.3d at 87 (emphasis and alteration in original).(quoting Darnell, 849 F.3d

at 35). As a result, a delay in medical care may establish deliberate indifference to

23

medical needs, but “‘a prisoner’s [constitutional] rights are violated only where ‘the delay

reflects deliberate indifference to a serious risk of health or safety, to a life-threatening or

fast-degenerating condition or to some other condition of extreme pain that might be

alleviated through reasonably prompt treatment[.]’” Rodriguez v. Ames, 224 F. Supp. 2d

555, 561 (W.D.N.Y. 2002) (quoting Rodriguez v. Mercado, 2002 WL 19978835, at *9

(S.D.N.Y. Aug. 28, 2002)).

Plaintiff argues that at the time of the incident she requested medical attention and

the Law Enforcement Defendants ignored her request. She describes a panic attack as her

reason for requesting medical attention. In addition, she asserts that the Town’s Police

Department failed to provide law enforcement officers to accompany her to her home

after the incident to obtain her prescribed medications, only secured part of her

medication on November 10, and it took until November 13 for her to secure the

remainder. According to Plaintiff, this shows that the Law Enforcement Defendants

“deliberately delayed or prevented Plaintiff from getting access to her essential

medications, despite being told and aware of the issue.” (Doc. 40-8 at 22.)

The Town Defendants argue that there is no evidence that they “made a conscious

decision to disregard any serious medical needs of the Plaintiff on the night of the

incident or in the days following.” (Doc. 33-24 at 12.) Rather, when Plaintiff was

released from custody on November 9, 2017, she coordinated with the police to pick up

her personal belongings and medications from her home, which she did on November 10

and 13, 2017.

Plaintiff has failed to establish she suffered from a life-threatening injury or

painful injury. Any delay in treatment was brief. See Rodriguez, 2002 WL 1997885, at *9

(granting summary judgment where plaintiff failed to establish his injuries were “life-

threatening” or “fast-degenerating” or caused him “extreme pain that more rapid

treatment would have alleviated[]” and treatment was delayed eight or nine hours)

(internal quotation marks omitted). She cites no adverse consequences as a result of not

being treated for her panic attack. The court thus GRANTS the Town Defendants’ motion

for summary judgment on Plaintiff's Fourteenth Amendment claim based on the alleged

24

failure to obtain medical treatment.

To the extent Plaintiff argues that the Law Enforcement Defendants violated her

due process rights by failing to timely assist her in picking up her medications from her

home after she was released from custody, she was no longer a pretrial detainee at that

point, and she cites no authority for finding a due process violation for deliberate

indifference to medical needs post-release. See DeShaney v. Winnebago Cnty. Dep’t of

Soc. Servs., 489 U.S. 189, 196 (1989) (“[T]he Due Process Clauses generally confer no

affirmative right to governmental aid, even where such aid may be necessary to secure

life, liberty, or property interests of which the government itself may not deprive the

individual.”).° The Supreme Court’s precedents regarding deliberate indifference “stand

only for the proposition that when the State takes a person into its custody and holds him

there against his will, the Constitution imposes upon it a corresponding duty to assume

some responsibility for his safety and general well-being.” Jd. at 199-200. At the point of

her release, Plaintiff was no longer in custody and the Law Enforcement Defendants were

not the sole means through which Plaintiff could obtain her necessary medications.

Accordingly, the court GRANTS the Town Defendants’ motion for summary

judgment on Plaintiff's claim for deliberate indifference to her serious medical needs

(Count V).

G. | Whether to Grant Summary Judgment on Plaintiff’s Claim of

Conspiracy to Violate Her Constitutional Rights (Count VI).

Plaintiff alleges that the Town Defendants conspired with Mr. McGuire “to

fabricate a story that . . . Plaintiff was the aggressor and therefore liable for domestic

violence[-]related criminal charges” (Doc. | at 26, § 192) in violation of her rights under

the Fourth and Fourteenth Amendments.

> The Second Circuit has held that the government’s failure to perform discharge planning,

including the provision of sufficient quantities of medication upon release, may state a claim for

deliberate indifference because such treatment should have been provided while the plaintiff was

in custody. See Charles v. Orange Cnty., 925 F.3d 73, 83 (2d Cir. 2019). This case is

distinguishable because, in Charles, the plaintiff was in custody for “many months” and

discharge planning was a necessary component of the medical treatment provided to the plaintiff

throughout detention. Jd. at 77.

25

“To prove a § 1983 conspiracy, a plaintiff must show: (1) an agreement between

two or more state actors or between a state actor and a private entity; (2) to act in concert

to inflict an unconstitutional injury; and (3) an overt act done in furtherance of that goal

causing damages.” Pangburn v. Culbertson, 200 F.3d 65, 72 (2d Cir. 1999). Because

““conspiracies are by their very nature secretive operations,’ [they] . .. may have to be

proven by circumstantial, rather than direct, evidence.” Jd. (quoting Rounseville v Zahl,

13 F.3d 625, 632 (2d Cir. 1994)). The circumstantial evidence must “reasonably lead to

the inference that the defendants positively or tacitly came to mutual understanding to try

to accomplish a common and unlawful plan.” Buari v. City of New York, 530 F. Supp. 3d

356, 394 (S.D.N.Y. 2021) (alterations adopted) (internal quotation marks and citation

omitted).

Plaintiff concedes that she has no evidence of an agreement between the Law

Enforcement Defendants and Mr. McGuire to arrest her. (Doc. 33-13 at 74.) She instead

argues there is “sufficient circumstantial evidence for [her] to prove at trial that the Town

Defendants conspired against [her] due to their association with [Mr.] McGuire or

preference of him and his veteran status over [Plaintiff].” (Doc. 40-8 at 23.) The

circumstantial evidence on which Plaintiff relies is that the Town’s police officers “on a

previous occasion, have shown their sympathy and preferential treatment for [Mr.

McGuire] due to [his] status as a military veteran.” Jd. Plaintiff, however, points to no

evidence that any of the Law Enforcement Defendants responded to this alleged prior

incident. She also does not cite evidence establishing the Law Enforcement Defendants

were aware of the prior incident.

In the absence evidence of a conspiracy, Plaintiffs allegation that the prior

incident supports an inference that on November 8 the Law Enforcement Defendants

came to an agreement to violate her constitutional rights in order to protect Mr. McGuire

due to his veteran status is “not substantiated in any way” and is insufficient evidence to

defeat a motion for summary judgment. Scotto v. Almenas, 143 F.3d 105, 115 (2d Cir.

1998); see also Leon v. Murphy, 988 F.2d 303, 311 (2d Cir. 1993) (affirming grant of

summary judgment in § 1983 conspiracy action where plaintiff's “allegations [were]

26

unsupported by any specifics, and many of them [were] flatly contradicted by the

evidence proffered by defendants”); see also Warr v. Liberatore, 270 F. Supp. 3d 637,

650 (W.D.N.Y. 2017) (“The mere fact that the officers were all present at the time of the

alleged constitutional violations is insufficient to support a conspiracy claim.”).

“To survive a motion for summary judgment, a plaintiff's evidence of a [§ 1983]

conspiracy must, at least, reasonably lead to the inference that the defendants positively

or tacitly came to a mutual understanding to try to accomplish a common and unlawful

plan.” Randle v. Alexander, 170 F. Supp. 3d 580, 591 (S.D.N.Y. 2016) (alteration in

original). Plaintiff's evidence falls far short of this showing. The court thus GRANTS the

Town Defendants’ motion for summary judgment on Plaintiff's conspiracy claim (Count

VI).

H. Whether to Grant Summary Judgment on Plaintiff’s Due Process

Claim (Count VII).

Plaintiff alleges that the Town Defendants violated her right to substantive due

process under the Fourteenth Amendment when they acted “arbitrarily, oppressively, and

in a conscience-shocking manner in falsely arresting . . . Plaintiff.” (Doc. 1 at 27, | 199.)

“[W]here another provision of the Constitution provides an explicit textual source of

constitutional protection, a court must assess a plaintiff's claims under that explicit

provision and not the more generalized notion of substantive due process.” Conn v.

Gabbert, 526 U.S. 286, 293 (1999) (internal quotation marks omitted). The Fourth

Amendment governs Plaintiffs false arrest, false imprisonment, and malicious

prosecution claims. A substantive due process claim does not lie in addition to those

claims.

The court GRANTS the Town Defendants’ motion for summary judgment on

Plaintiff's substantive due process claim (Count VII).

I. Whether to Grant Summary Judgment on Plaintiff's Claim of

Supervisory Liability Against the Town (Count VID.

Plaintiff alleges that the Town’s police officers “developed and maintained

policies, customs, and practices exhibiting deliberate indifference to the constitutional

rights of persons in the Town of Cheektowaga, which caused the violation of...

27

Plaintiff's rights.” (Doc. 1 at 28, § 207.) She asserts that the Town was aware that its

officers were inadequately trained to recognize and respond to domestic violence, yet

“maintained a policy or custom of failing to provide . . . training on how to recognize,

properly address, and correct incidents of domestic violence.” Jd. at § 208. Plaintiff also

alleges that it was the policy and/or custom of the Town to inadequately supervise and

train its police officers with respect to “identifying and correcting incidents of domestic

violence,” thus failing to prevent the constitutional violations Plaintiff suffered. Jd. at 28-

29, { 209. She alleges that the Town failed to properly screen officers and retained

officers with a history of faulty responses to domestic violence and those with serious

mental disorders.

“The elements of a Monell claim are (1) a municipal policy or custom that (2)

causes the plaintiff to be subjected to (3) the deprivation of a constitutional right.” Agosto

v. N.Y.C. Dep’t of Educ., 982 F.3d 86, 97 (2d Cir. 2020). “Official municipal policy

includes the decisions of a government’s lawmakers, the acts of its policymaking

officials, and practices so persistent and widespread as to practically have the force of

law.” Friend v. Gasparino, 61 F.4th 77, 93 (2d Cir. 2023) (internal quotation marks

omitted) (quoting Connick v. Thompson, 563 U.S. 51, 61 (2011)).

[A] local government may not be sued under § 1983 for an injury inflicted

solely by its employees or agents. Instead, it is when execution of a

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

whose edicts or acts may fairly be said to represent official policy, inflicts

the injury that the government as an entity is responsible under § 1983.

Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978).

“Monell does not provide a separate cause of action for the failure by the

government to train its employees; it extends liability to a municipal organization where

that organization’s failure to train, or the policies or customs that it has sanctioned, led to

an independent constitutional violation.” Anilao v. Spota, 27 F 4th 855, 873-74 (2d Cir.

2022) (emphasis in original) (internal quotation marks omitted) (quoting Segal v. City of

New York, 459 F.3d 207, 219 (2d Cir. 2006)). “[I]nherent in the principle that a

municipality can be liable under § 1983 only where its policies are the moving force

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[behind] the constitutional violation, is the concept that the plaintiff must show a direct

causal link between a municipal policy or custom and the alleged constitutional

deprivation.” Jd. at 874 (alterations in original) (internal quotation marks omitted)

(quoting Outlaw v. City of Hartford, 884 F.3d 351, 373 (2d Cir. 2018)).

“A municipality’s ‘“policy of inaction” in light of notice that its program will

cause constitutional violations “is the functional equivalent of a decision by the

[municipality] itself to violate the Constitution.”’” Lucente v. Cnty. of Suffolk, 980 F.3d

284, 297 (2d Cir. 2020) (quoting Connick, 563 U.S. at 61-62) (alteration in original). “In

order to establish Monell liability based upon a ‘persistent and widespread’ practice by a

subordinate municipal employee (or employees) other than a policymaker, the

employee’s unconstitutional conduct must be ‘so manifest as to imply the constructive

acquiescence of senior policy-making officials.’” Jd. at 297-98 (quoting Sorlucco v.

N.Y.C. Police Dep’t, 971 F.2d 864, 870-71 (2d Cir. 1992)).

Plaintiff asserts that the Town Defendants violated her constitutional rights by:

failing to collect any evidence other than the victim’s statement, failing to

take any photographs relating to the case, failing to properly identify the

victim of domestic violence, and failing to obtain medical treatment for the

victim, who was crying out for help and was in the midst of [a] panic attack

due to her pre-existing bipolar disorder that was exacerbated by the

domestic violence that just occurred.

(Doc. 40-8 at 25.) She additionally argues that despite the subsequent orders of protection

granted in favor of her against Mr. McGuire, the Town “did not take any action to review

their policy and training or to discipline the defendant officers in question due to their

failure to abide by the policy or procedure to protect the victim of domestic violence.” Jd.

at 26.

To the extent Plaintiff urges that the Law Enforcement Defendants should have

followed the Domestic Violence Policy when responding on November 8, 2017, the

alleged “failure to comply with th[is] polic[y] is not sufficient to allege Monell liability.”

Winters v. City of New York, 2020 WL 4194633, at *5 (S.D.N.Y. July 21, 2020); see also

Ruiz v. Westchester Cnty., 2020 WL 4340788, at *9 (S.D.N.Y. July 28, 2020) (collecting

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cases for the proposition that “failure to follow policy fails to state a Monell claim by

definition”) (alteration adopted) (internal quotation marks and citation omitted).

Regarding the existence of a policy or custom of inadequate training or

supervision, Plaintiff relies on the allegedly inadequate response to the incident on

November 8, 2017, which alone is insufficient to establish that the Town had a policy of

inadequate training or supervision despite its knowledge that its police officers were

unequipped to address incidents of domestic violence. Cf Reynolds v. Giuliani, 506 F.3d

183, 192 (2d Cir. 2007) (explaining that municipal liability may attach where

municipality “is faced with a pattern of misconduct and does nothing”) (emphasis

supplied). A single incident does not demonstrate or support an inference that the Town

“constructive[ly] acquiesce[d]” to “persistent and widespread” constitutional violations as

a result of its law enforcement’s alleged policy of inadequate training on how to respond

to domestic violence incidents. Lucente, 980 F.3d at 297-98 (internal quotation marks and

citation omitted). Similarly, an allegation that the Town failed to discipline its police

officers “for a single incident” is insufficient to establish the existence of an unlawful

municipal policy of ratification of unconstitutional conduct. Santiago v. City of

Rochester, 481 F. Supp. 3d 152, 160 (W.D.N.Y. 2020); see also Kuiken v. Cnty. of

Hamilton, 2023 WL 2984420, at *7 (N.D.N.Y. Apr. 18, 2023) (collecting cases).

For the reasons stated above, the court GRANTS the Town of Cheektowaga’s

motion for summary judgment on Plaintiff's supervisory liability claim (Count VIII).

J. Whether Plaintiff’s Claim for Punitive Damages Fails as a Matter of

Law.

“Punitive damages are available in a § 1983 action ‘when the defendant’s conduct

is shown to be motivated by evil motive or intent, or when it involves reckless or callous

indifference to the federally protected rights of others.’” Lee v. Edwards, 101 F.3d 805,

808 (2d Cir. 1996) (quoting Smith v. Wade, 461 U.S. 30, 56 (1983)). Although punitive

damages are intended to “punish the tortfeasor whose wrongful action was intentional or

malicious, and to deter him and others from similar extreme conduct[,]” City of Newport

v. Fact Concerts, Inc., 453 U.S. 247, 266-67 (1981) (citations omitted), “an award of

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punitive damages against a municipality ‘punishes’ only the taxpayers, who took no part

in the commission of the tort.” /d. at 267. “For that reason, municipalities are generally

immune from punitive damages.” Zhou v. Roswell Park Cancer Inst. Corp., 2021 WL

4272286, at *4 (W.D.N.Y. Sept. 21, 2021). This rule extends to municipal employees

sued in their official capacities. See Ivani Contracting Corp. v. City of New York, 103

F.3d 257, 262 (2d Cir. 1997) (holding municipal officers sued in official capacity “enjoy

the same immunity from punitive damages” as municipalities). To the extent Plaintiff

seeks punitive damages from the Town or from the Law Enforcement Defendants in their

official capacities, the Town Defendants’ motion for summary judgment is GRANTED.

There is, however, a material issue of fact regarding whether the Law Enforcement

Defendants lacked probable cause, which “may give rise to an inference of malice{]” and

sustain a claim for punitive damages. Cameron v. City of New York, 598 F.3d 50, 69 (2d

Cir. 2010) (internal quotation marks and citation omitted) (concluding punitive damages

instruction was required where police officers allegedly knew they lacked probable cause

to arrest the plaintiffs and provided false information to the prosecutor who later charged

the plaintiffs). Although a close call, the court DENIES WITHOUT PREJUDICE the

request to dismiss Plaintiffs punitive damages claim against the Law Enforcement

Defendants in their individual capacities.

CONCLUSION

For the foregoing reasons, the Town Defendants’ motion for summary judgment

(Doc. 33) is GRANTED IN PART AND DENIED IN PART.

SO ORDERED. st

Dated this at day of January, 2024.

Christina Reiss, District Judge

United States District Court

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