Davis. See Ekstrom Deposition at 116; Shields Deposition at 70, 107; Aloisi Deposition at 247. As Sergeant Shields put his foot on the end table next to the bed to balance himself, he knocked the lamp that was on the table onto the floor in front of Mr. Davis. See Ekstrom Deposition at 120; Shields Deposition at 108; Aloisi Deposition at 252-53. When the lamp fell, Mr. Davis started to jab the serving fork in and out of the lamp shade. See Ekstrom Deposition at 122. Mr. Davis then tried to start up from his position on his knees and elbows. See id. at 123. At this point, Sergeant Shields hit Mr. Davis across his shoulders and back with the nightstick. See id. at 123; Shields Deposition at 135; Aloisi Deposition at 256. Even after being struck, Mr. Davis again started to come up off the floor toward Sergeant Shields. See Ekstrom Deposition at 125. Mr. Davis had a knife in his right hand and other objects in his left hand. See Shields Deposition at 74-75. As Mr. Davis came toward him, Sergeant Shields began to back up, started to drop the nightstick, and drew his gun. See Shields Deposition at 135.
At the same time as these events were occurring in Mr. Davis' apartment, Officer Wells, who was on the roof outside Mr. Davis' bathroom window, looked through the window and saw Mr. Davis in a kneeling position, facing the bedroom. See Wells Deposition at 83-84. Officer Wells told Mr. Davis to lie face down on the floor. See id. at 101. After the third or fourth time, Mr. Davis did as he was instructed. See id. at 102. At this time, Officer Wells could see Sergeant Aloisi in the bedroom. See id. at 90. He could also see that Mr. Davis was holding a large fork in his left hand. See id. at 96. He could not, however, see Mr. Davis' right hand. See id. at 98. In addition, Officer Wells observed Sergeant Shields standing on the bed. See Wells Deposition at 110. He made eye contact with Sergeant Shields, they both nodded and thus understood that they intended to physically jump on Mr. Davis back. See id. at 111.
As Officer Wells was holstering his gun and pulling himself inside the window, Mr. Davis got up from his prone position, up to his hands and knees and started all the way up. See id. When Mr. Davis got halfway up, Sergeant Shields struck him with a nightstick across the back and shoulders. See id. As Mr. Davis began to stand, Officer Wells saw him turn and grab a knife off a table. See id. at 121. Mr. Davis held the knife in his right hand up over his head and the fork in his left hand and took off in a full run out the bathroom door. See id. At that point, Officer Wells, or somebody, hollered "Watch Out." See id. Then, Officer Wells fired twice, striking Mr. Davis in the side or lower back.
See id. at 122, 133. At the time he fired, Officer Wells thought it was necessary to do so to defend Sergeant Aloisi. See id. at 140. After he discharged his weapon, Officer Wells climbed through the window into the apartment to see if the other officers were safe. See id. at 137. At that time, he saw a knife in front of Mr. Davis on the floor. See id. at 148.
At the time Sergeant Aloisi shot Mr. Davis, Sergeant Aloisi thought that Mr. Davis had stabbed, or was about to stab, Sergeant Shields. See Aloisi Deposition at 265. Mr. Davis, however, was not standing erect. See Ekstrom Deposition at 178; Shields Deposition at 77; Aloisi Deposition at 263. At his deposition, Sergeant Shields testified that he saw a set of keys in a leather case in Mr. Davis' left hand. See Shields Deposition at 201. Sergeant Shields also recalled seeing a watch in the same hand. See id. at 202. In addition, Sergeant Shields testified that he remembered seeing a matchbox car on the table next to the bed but could not specifically recall it being in Mr. Davis' hand. See id. at 292. As Mr. Davis started to move in the direction of the bed, Sergeant Aloisi fired again. See id. Mr. Davis then turned toward Sergeant Aloisi in a singular upward movement, at which point Sergeant Aloisi fired, and Mr. Davis fell to the floor. See Ekstrom Deposition at 187; Shields Deposition at 154-55; Aloisi Deposition at 328, 331, 340. Sergeant Aloisi testified that at the time he fired at Mr. Davis he feared for Sergeant Shields' safety and that part of the reason he fired was because he believed that Sergeant Shields' gun was unloaded.
See Aloisi Deposition at 342. He also testified that at that time Mr. Davis held the knife in his right hand and was standing on his feet and on his way to an upright position. See id. at 325.
During this time, Officer Peters was located on the roof outside Mr. Davis' apartment. He heard someone say watch out or look out and then heard shots fired. See Peters Deposition at 94, 98. He also observed Officer Wells discharge his weapon. See id. at 94. He looked into the apartment and saw Mr. Davis lying on the floor. See id. at 101. He also saw Sergeants Aloisi and Shields standing in the room. See id. In addition, Officer Peters saw a knife near Mr. Davis' head or around his body. See id. at 104. At that time, Sergeant Aloisi told Officer Peters to go around to the front of the building to secure it and await the arrival of the ambulance and the EMS Unit. See id. at 106.
Immediately after Mr. Davis fell to the floor, Sergeant Shields advised Officer Ekstrom to call the EMS Unit.
See Ekstrom Deposition at 188. When Officer Ekstrom returned to the front room of the apartment after calling the EMS Unit, Sergeant Shields advised him to go downstairs in the hallway to direct the EMS Unit to Mr. Davis' apartment when they arrived. See id. at 193. Officer Ekstrom did not go into the bedroom again that day. See id.
I. Summary Judgment Standard
Summary judgment is appropriate where there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. The mere existence of some alleged factual dispute, however, will not defeat such a motion. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202, (1986). Rather Rule 56 requires that there be no genuine issue of material fact. Id. at 2488, 106 S. Ct. at 2510, 91 L. Ed. 2d at (emphasis in original). Material facts are defined as those that might affect the outcome of the suit under the governing law. Id.
A party seeking summary judgment bears the initial burden of informing the court of the basis for its motion and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of any genuine issues of material fact. Anderson, 477 U.S. at 247, 106 S. Ct. at 2510, 91 L. Ed. 2d at . Once the moving party has met this burden, the burden shifts to the non-movant to demonstrate that there is a genuine issue of material fact. In this regard, the non-movant must do more "than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538, (1986). "Speculation, conclusory allegations and mere denials are not enough to raise genuine issues of fact. To avoid summary judgment, enough evidence must favor the non-moving party's case such that a jury could return a verdict in its favor." Greenblatt v. Prescription Plan Servs. Corp., 783 F. Supp. 814, 819-20 (S.D.N.Y. 1992) (citing Anderson, 477 U.S. at 248 (interpreting the "genuineness" requirement)).
Moreover, as a preliminary matter, the non-movant must "make a showing sufficient to establish the existence of [the] elements essential to [her] case, and on which [she] will bear the burden of proof at trial." Celotex, at 322, 106 S. Ct. at 2552, 91 L. Ed. 2d at . If the non-movant fails to satisfy this initial burden, there can be no genuine issue as to any material fact because "[a] complete failure of proof concerning an essential element of the non-moving party's case necessarily renders all other facts immaterial." Id. at 323, 106 S. Ct. at 2552, 91 L. Ed. 2d at . Under such circumstances, the moving party is entitled to judgment as a matter of law. Id.
Furthermore, for purposes of determining whether or not to grant summary judgment, the language of Rule 56 limits the information that the court may consider to the pleadings, affidavits, depositions, answers to interrogatories, and admissions on file. In this regard, a movant's uncontested assertions in its 10(j) statement are deemed admitted for purposes of deciding whether summary judgment should be granted. See Local Rule 10(j); see also Blackwelder v. Safnauer, 689 F. Supp. 106, 112-13 n.2. (N.D.N.Y. 1988), appeal dismissed, 866 F.2d 548 (2d Cir. 1989). In contrast, as one court in this circuit has stated
it is now well-settled that legal memoranda and oral argument are not evidence and "cannot by themselves create a factual dispute sufficient to defeat a summary judgment motion where no dispute otherwise exists." British Airways Bd. v. Boeing Co., 585 F.2d 946, 952 ([9th Cir.] 1978)[, cert. denied, 440 U.S. 981, 99 S. Ct. 1790, 60 L. Ed. 2d 241 (1979)]; see also Transurface Carriers, Inc. v. Ford Motor Co., 738 F.2d 42, 46 (1st Cir. 1984); Watts v. United States, 703 F.2d 346, 353 (9th Cir. 1983).
United States v. United States Currency in Amount of $ 23,481.00, 740 F. Supp. 950, 955 (E.D.N.Y. 1990).
It is with these guidelines in mind that the court must analyze the facts of this case to determine whether or not Officer Ekstrom and Officer Peters are entitled to the relief they seek.
II. Conspiracy Claims -- 42 U.S.C. §§ 1985(3), 1986
Plaintiff asserts that defendants conspired to violate Mr. Davis' civil rights in contravention of 42 U.S.C. §§ 1985(3) and 1986. Section 1985(3) provides, in pertinent part, that
if two or more persons in any State . . . conspire . . ., for the purpose of depriving, either directly or indirectly, any person . . . of the equal protection of the laws, or of equal privileges and immunities under the laws; . . .; in any case of conspiracy set forth in this section, if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages occasioned by such injury or deprivation, against any one or more of the conspirators.