Ringer v. City of Schenectady

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

CARLYN RINGER,

Plaintiff,

1:22-CV-1001

V. (DJS)

CITY OF SCHENECTADY; POLICE OFFICER

BRIAN POMMER; JOHN DOE #1-5

Defendants.

APPEARANCES: OF COUNSEL:

LAW OFFICES OF JOHN R. SEEBOLD JOHN R. SEEBOLD, ESQ.

Attorney for Plaintiff

1536 Union St.

_| Schenectady, New York 12309

JOHNSON LAWS, LLC APRIL J. LAWS, ESQ.

Attorneys for Defendants GREGG T. JOHNSON, ESQ.

646 Plank Road, Suite 205

Clifton Park, New York 12065

DANIEL J. STEWART

United States Magistrate Judge

MEMORANUM-DECISION and ORDER

I. INTRODUCTION

Defendants have filed a comprehensive Motion for Summary Judgment in this

matter. Dkt. No. 35. Plaintiff opposes certain aspects of the Motion. See Dkt. No. 43-7,

Pl.’s Mem. of Law in Opp. Defendants filed a reply. Dkt. No. 45. For the reasons that

follow, the Defendants’ Motion is granted in part and denied in part.

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If. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff's Complaint was filed on September 21, 2022, and arises out of a police-

civilian encounter that occurred in Schenectady, New York, on September 24, 2019. Dkt.

No. 1, Compl. It is alleged that, at that time and place, Plaintiff Carlyn Ringer was the

victim of an unlawful search and arrest by then Schenectady Police Officer Brian

Pommer.! The Complaint asserts that Officer Pommer searched Plaintiff’s purse without

her consent and without justification. Compl. at □ 19-21. Defendant Pommer then

handcuffed Plaintiff and placed her under arrest for Criminal Possession of a Controlled

Substance in the Seventh Degree, as well as for a prior misdemeanor charge of Loitering

that had allegedly occurred six days earlier. Jd. at 4 22. It is also alleged that, in

effectuating the arrest, Officer Pommer used excessive and unnecessary force, including

slamming Plaintiff's head against the roof of the police vehicle, throwing her into the

back seat, and slamming her foot in the car door, causing severe injuries. /d. at 4 23-24.

According to the Complaint, the misdemeanor charges that were lodged against the

Plaintiff were dismissed on motion in March 2020. Jd. a 935.

The Complaint contains six separate causes of action.” First, Plaintiff makes a

claim under 42 U.S.C. § 1983, alleging that the conduct by Officer Pommer violated her

Fourth and Fourteenth Amendment rights under the United States Constitution, and that

' At the time of the incident, Defendant Pommer was a Schenectady Police Officer, but has since been promoted to

the rank of Detective. For purposes of this Decision, which relates to conduct that occurred prior to his elevation,

he will be referred to as Defendant Pommer or Officer Pommer.

2 The Complaint initially contained claims against John Doe #1-5, but at no point were any of these unnamed officers

identified, nor was there any motion to amend the pleading to add any party. Accordingly, the claims against the

Doe Defendants are dismissed. Gray v. Harder, 2016 WL 4708233, at *4 (N.D.N.Y. Aug. 9, 2016), report and

recommendation adopted, 2016 WL 4703739 (N.D.N.Y. Sept. 8, 2016).

2.

such conduct constituted an unreasonable search and seizure; violated her due process

rights; as well as her right to equal protection. Compl. at 9] 39-46. The second and third

claims in the Complaint, relying upon the same facts as the first claim, are based upon the

New York State Constitution and allege a violation of her equal protection rights, as well

as her rights against unreasonable searches and seizures. The fourth claim in the

Complaint asserts a common law battery claim. /d. at {9 55-58. The fifth claim is against

the City of Schenectady and alleges that the City was negligent in its hiring and retention

of Officer Pommer. /d. at 9 59-66. The final claim under state law 1s that the City is

responsible for the conduct of Officer Pommer, its employee, under the theory of

respondeat superior liability. Jd. at J§ 67-70.

After the City Defendants answered and denied the substantive allegations of the

Complaint, and counsel attended an initial Rule 16 discovery conference with the Court,

the parties engaged in pretrial discovery which helped clarify some, although not all, of

the issues in dispute. As taken from the Defendants’ Amended Statement Of Material

Facts, Dkt. No. 37 (“ASOMF*’’) and agreed to by Plaintiff in her Response, Dkt. No. 43-

8, the following facts have been determined for purposes of this Decision and Order:

At the time of the incident Plaintiff was an active drug user, and was attending a

methadone clinic. Dkt. No. 43-6 at Jf 5-6. On September 18, 2019, she went to Vale Park

in Schenectady with the intent to buy drugs. ASOMEF at 7 16. At that time, she was

arrested by Schenectady Police Officer Sarah McDonald for Loitering. /d. at 17. At the

police station she admitted the facts of the offense to the police and agreed to assist them.

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Id. at {| 18-19. However, she then decided not to do so, and broke off communication

with the police. /d. at 9 21-22.

On September 24, 2019, the investigating detective, Gonzalez, prepared an

information charging the Plaintiff with Loitering in the First Degree, a class B

misdemeanor. ASOMF at § 23. On that same date, Defendant Officer Pommer went to

arrest Plaintiff at 600 Franklin St., Schenectady. Jd. at § 25. The arrest and escort were

recorded by the Defendant’s body worn camera video (BWCV). Dkt. No 35, Ex. C.

Defendant Pommer encountered Plaintiff in the lobby of the building and advised her that

she was under arrest for the September 18 Loitering incident and proceeded to handcuff

her. Jd. at §§ 36, 47. In the BWCV, Plaintiff appears impaired and unsteady on her feet,

_| and requests that she be provided with methadone. BWCV at :53-:58. She was directed

to put down her purse and, when asked by Officer Pommer if there was anything in her

purse, she acknowledged that it contained a “crack pipe.” ASOMF at 4 42; BWCV at

1:25-1:30. A subsequent search discovered a portion of a Xanax bar. ASOMF at § 71.

Plaintiff was then escorted, in handcuffs, outside to the waiting patrol vehicle.

ASOMF at § 50. During the short walk it appears that the Plaintiff was speaking with

someone on the other side of the street, and in response to the question “what happened?”

Plaintiff told the bystander: “I don’t know what I did.” BWCV at 1:40. She continued

to walk cooperatively with the Officer escorting her, but at one point while they were at

the side of the car, she looked back at the officer and stated loudly “don’t grab my hand

like that.” BWCV at 1:49-1:58. Officer Pommer then pushed her, face first, into the side

of the police cruiser and stated: “[inaudible]fucking move” and “stop fucking moving.”

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Id.; ASOMF at 4 60. The body camera falls to the ground but picks up conversation

between Plaintiff and the Officer, including her saying “you bashed by chin into the

fucking door,” and the Officer responding, “get in the car” and “don’t pull away from

me.” Jd. at 2:20-2:33. There was also a discussion about the Defendant shutting the car

door on Plaintiff's leg. /d. at 2:35-2:40.

After the incident, the Plaintiff was brought to the police station and was provided

with medical treatment for her injuries. ASOMF at 72-94. As a result of the conduct

described above, Plaintiff received a laceration to her chin that required five stitches. □□□

Her foot had only a bruise, which did not require active treatment. Jd.

Il. LEGAL STANDARD FOR SUMMARY JUDGMENT

Pursuant to Federal Rule of Civil Procedure 56(a), summary judgment is

appropriate only where “there is no genuine dispute as to any material fact and the movant

is entitled to judgment as a matter of law.” The moving party bears the burden to

demonstrate through “pleadings, depositions, answers to interrogatories, and admissions

on file, together with [ ] affidavits, if any,” that there is no genuine issue of material fact.

FDIC. v. Giammettei, 34 F.3d 51, 54 (2d Cir. 1994) (quoting Celotex Corp. v. Catrett,

“1477 U.S. 317, 323 (1986)).

To defeat a motion for summary judgment, the non-movant must set out specific

facts showing that there is a genuine issue for trial, and cannot rest merely on allegations

or denials of the facts submitted by the movant. FED. R. CIV. P. 56(c); see also Scott v.

Coughlin, 344 F.3d 282, 287 (2d Cir. 2003) (‘Conclusory allegations or denials are

ordinarily not sufficient to defeat a motion for summary judgment when the moving party

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has set out a documentary case.”); Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522,

525-26 (2d Cir. 1994). To that end, sworn statements are “more than mere conclusory

allegations subject to disregard . . . they are specific and detailed allegations of fact, made

under penalty of perjury, and should be treated as evidence in deciding a summary

judgment motion” and the credibility of such statements is better left to a trier of fact.

Scott v. Coughlin, 344 F.3d at 289 (citing Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir.

1983) and Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995)).

When considering a motion for summary judgment, the court must resolve all

ambiguities and draw all reasonable inferences in favor of the non-movant. Nora

Beverages, Inc. v. Perrier Grp. of Am., Inc., 164 F.3d 736, 742 (2d Cir. 1998). “[T]he

_| trial court’s task at the summary judgment motion stage of the litigation is carefully

limited to discerning whether there are any genuine issues of material fact to be tried, not

to deciding them. Its duty, in short, is confined at this point to issue-finding; it does not

extend to issue-resolution.” Gallo v. Prudential Residential Servs., Ltd. P’ship, 22 F.3d

1219, 1224 (2d Cir. 1994). Nonetheless, summary judgment is appropriate “[w]here the

record taken as a whole could not lead a rational trier of fact to find for the non-moving

party.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

IV. ANALYSIS

A. Plaintiff's Claim Involving the Use of Force

Plaintiff asserts a section 1983 claim for excessive force against Defendant

Pommer, as well as the state law claim for battery, and the related claim against the City

of Schenectady under a respondeat superior doctrine. Dkt. No. | at pp. 6, 8, & 10. As

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the battery claim and the constitutional excessive force claim are governed by the same

standard, Humphrey v. Landers, 344 F. App’x 686, 688 (2d Cir. 2009); Cornell v. Village

of Clayton, 691 F. Supp.3d 608, 621 (N.D.N.Y. 2023), they will be analyzed together.

An excessive-force claim arising in the context of an arrest is “properly

characterized as one invoking the protections of the Fourth Amendment.” Graham v.

Connor, 490 U.S. 386, 394 (1989). The standard is one of objective reasonableness. /d.

at 388. In assessing whether the force an officer used 1s “reasonable,” a court (and a jury)

must balance “the nature and quality of intrusion on the individual’s Fourth Amendment

interests against the countervailing government interests at stake.” /d. at 396. This is a

fact-specific inquiry which “requires careful attention to the facts and circumstances of

cach particular case, including the severity of the crime at issue, whether the suspect poses

an immediate threat to the safety of the officers or others, and whether he is actively

resisting arrest or attempting to evade arrest by flight.” /d. In considering these factors,

a court must bear in mind that “[nJot every push or shove, even if it may later seem

unnecessary in the peace of a judge’s chambers, violates the Fourth Amendment.” /d.

(internal quotation omitted). On summary judgment, therefore, a court must “determine

whether a jury, instructed as to the relevant factors, could reasonably find that the force

used was excessive.” Brown v. City of New York, 798 F.3d 94, 103 (2d Cir. 2015). If □□□

it is then up to the jury, using its common sense and life experiences, to determine whether

the Fourth Amendment reasonableness standard was exceeded. /d. at 103-104. That is

the case, “[e]ven though most of the facts concerning the application of force are

undisputed.” /d. at 103.

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Defendants have presented a multifaceted argument in support of this aspect of

their Motion. First, they argue that the 42 U.S.C. § 1983 claim is defective because the

phrase “‘excessive force” does not appear in the Complaint, except on a single occasion

in the state law battery claim. Dkt. No. 38, Defs.” Am. Mem. of Law at p. 15. Second,

Defendants argue that the force used by Officer Pommer was de minimis as a matter of

law, even though it resulted in bruising and a laceration requiring stitches. /d. at p. 17 n.8

& pp. 19-20.

Third, Defendants maintain that any force used by Officer Pommer was

objectively reasonable because at the point in the escort when Plaintiff was at the side of

the police cruiser, Plaintiff raised her voice and began to turn away, leading to the

Officer’s reasonable belief that she might flee. /d. at p. 17-18. Further, they note that the

soft hand techniques utilized by Defendant Pommer were the least severe physical force

options available to the Officer. /d. at p. 18.

Fourth, Defendants argue that even if the force used was considered objectively

unreasonable, Officer Pommer would still be entitled to qualified immunity because it

was not clearly established that his conduct violated the Constitution, as there was no

existing legal precedent that specifically governed the facts in this case. /d. at pp. 23-28.

Finally, Defendants note that if the state law claims of excessive force fail, the claim of

respondeat superior must likewise be dismissed. /d. at p. 21.

Defendants’ first argument that the § 1983 use of force claim is defective because

the Complaint only uses the phrase “excessive force” in connection with the state law

battery claim, is simply not persuasive. See Marbury Mgmt., Inc. v. Kohn, 629 F.2d 705,

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712 n.4 (2d Cir. 1980) (“Generally a complaint that gives full notice of the circumstances

giving rise to the plaintiffs claim for relief need not also correctly plead the legal theory

or theories and statutory basis supporting the claim.”). Here the Complaint unequivocally

invokes the Fourth Amendment and sets forth facts regarding the excessive nature of the

force used during the arrest, see Compl at 4] 23 & 39, and that provided sufficient notice

and allowed the parties to prepare an appropriate defense, as shown by the nature of the

discovery undertaken by defense counsel.

Second, Defendants are also incorrect that the limited nature of the injury, which

they characterized as de minimis, prevents this excessive force case from going forward.

The Second Circuit has routinely held that assertions of injury even less severe than

Presented in this case were sufficient to prevent the summary dismissal of a § 1983 claim

for excessive force. See Robison v. Via, 821 F.2d 913, 924 (2d Cir. 1987) (Plaintiff alleged

that she was pushed against the door of her car, “yanked” and thrown up against the

fender, and had her arm twisted behind her back, causing bruising); Bellows v. Dainack,

555 F.2d 1105, 1106 & n.1 (2d Cir. 1977) (upholding excessive force claim involving

twisting of plaintiff's arm, pushing him into the back seat of a police car, pulling him by

the scruff of the neck, and striking him in the ribs). As recently summarized by the Second

Circuit:

we have never held that a court may grant summary judgment to officers

on an excessive force claim merely because the injuries were minor even

where the force was unreasonable. Any such holding would violate the rule

announced in Graham and would grant a windfall to officers who commit

misconduct but could escape liability based upon the hardiness of their

victims. While the absence of serious injury is certainly a matter that the

jury can consider in assessing both the reasonableness of the force and

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potential damages from any misconduct, a district court should not grant

summary judgment on this basis alone.

Ketcham v. City of Mount Vernon, 992 F.3d 144, 150-51 (2d Cir. 2021)

Turning next to Defendants’ argument that summary judgment on the excessive

use of force and battery claims can be granted on the present record, the Court again

“! disagrees. Here, the parties offer vastly different versions and interpretations of the

incident, and even though there is a video of at least some of the events that took place, it

does not offer a definitive picture of what occurred. In the end, how a jury would, or

could, view the need and justification for the force applied is a question which cannot be

decided by this Court at this time. Defendants’ arguments miss the mark largely because

they draw all necessary inferences in the Officer’s favor, and not in the Plaintiffs. See

Borley v. United States, 22 F.4th 75, 78 (2d Cir. 2021).

Viewing the evidence in a manner most favorable to Plaintiff, a jury could

reasonably find that the severity of the crime, a nonviolent misdemeanor, was very low;

that Plaintiff, a young and slight woman, had complied with all the Officer’s inquiries

and requests, including voluntarily turning around to allow handcuffs to be applied; that

she appeared distraught, impaired, and possibly in need of medication; that she responded

to the police inquiries by alerting the officer to contraband in her purse; that she walked

with the police officer to the back of the police vehicle voluntarily and cooperatively; that

she posed no threat to the officer due to the fact that she was handcuffed and compliant;

that she believed that the officer was doing something with his hand to her that she

objected to, and turned to voice that objection; that at the time of this occurrence she was

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not a flight risk and was not actively and intentionally resisting arrest; and, finally, that

the officer, without issuing any prior verbal commands and giving her a chance to comply,

drove her face into the car doorframe causing a laceration requiring stitches, followed by

slamming the car door into her legs. See generally Dkt. No. 43-6, Ringer Decl.

Having reviewed the evidence presented on this Motion, the Court concludes that

questions of fact exist which preclude summary judgment. It may well be that after

hearing the testimony, and viewing the video and relevant medical records, the jury

concludes that this was an objectively reasonable use of force. That the jury may find in

favor of the officer, however, is not the standard to be applied in connection with a motion

for summary judgment. See Bowling v. Jamison, 2020 WL 1270475, at *3 (N.D.N.Y.

_| Mar. 17, 2020) (“The Court has carefully reviewed the video and other record evidence

and finds that, although a jury viewing the incident would probably conclude that

Defendants acted reasonably, the jury could not be deemed irrational for concluding that

Defendants acted unreasonably.) (emphasis in the original). Further, though Officer

Pommer may have personally believed that the Plaintiff was attempting to flee, it does

not follow that his perception, or in the Plaintiff's view — overreaction, was reasonable

based upon the objective facts.

Finally, because of the outstanding questions of fact, the Court cannot grant

Officer Pommer’s request for qualified immunity. Defendants’ argument that the

wrongfulness of the alleged conduct was not clearly established at the time of the incident,

is belied by existing precedent. In Ketcham v. City of Mount Vernon, the Circuit noted:

“there is presumably no proper law enforcement justification for deliberately pushing a

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restrained individual’s head into a car’s hard, metal doorframe. Thus, if a jury credits

[plaintiff's] testimony that [the officer] deliberately slammed his head into the car’s

doorframe despite him being restrained and not resisting, that force would be excessive.”

992 F.3d at 151. The Second Circuit emphasized that this was clearly established law

prior to 2017 when it stated, “we have previously reversed a grant of summary judgment

where the plaintiff adduced evidence that a police officer ‘shoved her head first into his

police car, causing her head to strike the metal partition between the front and back

seats.’” Jd. at p. 151 (quoting Maxwell v. City of New York, 380 F.3d 106, 109 (2d Cir.

2004)).

The denial of qualified immunity on this Motion is without prejudice. At the trial

_|in this matter, Defendant Pommer can raise the issue of qualified immunity again. The

Second Circuit has identified the procedure by which trial courts should resolve disputes

on factual issues at trial that are relevant to the qualified immunity analysis. Jones v.

Treubig, 963 F.3d 214, 224-25 (2d Cir. 2020). In particular, “[i]f there are unresolved

factual issues which prevent an early disposition of the defense [of qualified immunity],

the jury should decide these issues on special interrogatories.” Warren v. Dwyer, 906 F.2d

76 (2d Cir. 1990); see also Stephenson v. Doe, 332 F.3d 68, 81 (2d Cir. 2003) (“We

believe that use of special interrogatories in this case resolves the difficulty of requiring

the jury to decide what the facts were that the officer faced or perceived and requiring the

court to make the ultimate legal determination of whether qualified immunity attaches on

those facts.”’).

For the reasons set forth above, the Motion for Summary Judgment on Plaintiff's

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excessive force claim is denied. For the same reasons, Plaintiff's battery and related

respondeat superior claims will also proceed to trial. Cornell v. Vill. of Clayton, 691 F.

Supp.3d at 622.

B. Plaintiff’s Remaining Claims

Defendants’ Motion also seeks dismissal of Plaintiffs’ other claims as well. Defs.’

Am. Mem. of Law at pp. 3-13.

First, Defendants’ note that the search of the Plaintiff's purse was in all respects

constitutional, as the search was done with her consent, was performed as an incident to

a lawful arrest, and was supported by probable cause. Dkt. No. 38, Defs’ Am. Mem. of

Law at pp. 4-6. Plaintiff, through her counsel, does not dispute this argument, see Pl.’s

Mem. of Law in Opp. at p. 12, and therefore the illegal search claim is dismissed.

Next, the Complaint, construed in a fashion most favorable to the Plaintiff, alleges

that both the original Loitering charge, and the Criminal Possession in the 7 degree

charges, violated her rights, in that they were not based upon probable cause, she was

maliciously prosecuted, and the charges violated her right to equal protection. Comp. at

22, 41, 43. However, a review of the evidence submitted to the Court establishes that

charges were properly filed. Plaintiff conceded engaging in the conduct outlined in

the first charge of loitering, which was not initiated by Defendant Pommer, who was

simply effecting the arrest after the Misdemeanor Complaint had been filed. ASOMF at

q§| 19, 23-25. Regarding the possession charge, this was based upon the Xanax bar that

was found in Plaintiff's purse which, as noted above, was the result of a legal search.

Accordingly, the Court agrees with Defendants that the claims associated with the arrest

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and prosecution of Plaintiff must be dismissed.

Relatedly, the state law claims for New York State constitutional violations

involving due process, unlawful search, and improper arrest and prosecution, are

premised upon the same facts as those just articulated. Therefore, and for the reasons set

forth above, these claims are likewise dismissed.

Defendants additionally argue, and Plaintiff's counsel concedes, that there is

insufficient evidence to establish a Monell claim against the City of Schenectady, a claim

under the Equal Protection Clause, and claims related to medical care. Defs.” Am. Mem.

of Law at pp. 11-12; Pl.’s Mem. of Law in Opp., at p. 12. Summary Judgment is granted

as to those claims as well.

Vv. CONCLUSION

WHEREFORE, it is hereby

ORDERED, that Defendants’ Motion for Summary Judgment is granted in part

and denied in part as set forth above; and it is further

ORDERED, that the Plaintiff's 42 U.S.C. § 1983 claim for excessive force against

Defendant Pommer, and her state law claims for battery and respondeat superior liability

against Defendant Pommer and/or Defendant City of Schenectady, shall proceed to trial;

and it is further

ORDERED, that the remaining claims asserted in the Complaint are dismissed,

and it is further

ORDERED, that an in-person status conference will be held in this matter on

December 19, 2024 at 11:00 a.m. to set the matter for trial; and it is further

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ORDERED, that the Clerk of the Court serve a copy of this Decision and Order

upon the parties to this action.

IT IS SO ORDERED.

Dated: November 21, 2024

Albany, New York

anil 7 Siewght

US-Magistrate Judge

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