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DANIELS v. CITY OF BINGHAMTON

November 16, 1996

FOSTER DANIELS, Plaintiff,
v.
THE CITY OF BINGHAMTON; RICHARD A. BUCCI, Mayor; JOSEPH T. ZIKUSKI; TERRANCE HESLIN; MICHAEL TALBUT; MARTIN BURNETT; DENNIS GORMAN, Officer; JOSEPH D. LYNCH, Police Chief, Defendants.



The opinion of the court was delivered by: MCAVOY

MEMORANDUM DECISION & ORDER

 This civil rights action arises out of an incident that occurred on February 20, 1994 involving plaintiff, his daughter, several civilians and five off-duty City of Binghamton police officers. Defendants now move, pursuant to Fed.R.Civ.P. 12(b)(6), to dismiss the Complaint for failure to state a claim upon which relief may be granted, or in the alternative, for summary judgment dismissing the Complaint pursuant to Fed.R.Civ.P. 56(c).

 I. BACKGROUND

 A. Summary of Facts:

 The Amended Complaint alleges a series of events that occurred on February 20, 1994. Since the instant motion is based upon Fed.R.Civ.P. 12(b)(6), these allegations are accepted as true. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S. Ct. 1683, 1686, 40 L. Ed. 2d 90 (1974); Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 101-102, 2 L. Ed. 2d 80 (1957). The following are the events alleged in the Amended Complaint:

 At approximately 10:30 p.m. on the evening of February 20, 1994, in the City of Binghamton, New York, defendants Joseph Zikuski ("Zikuski"), Michael Talbut ("Talbut"), Terrance Heslin ("Heslin"), Dennis Gorman ("Gorman") and Martin Burnett ("Burnett"), while under the influence of alcohol, failed to detain Kevin Giblin ("Giblin"), who was verbally abusing plaintiff's daughter by way of racial epithets in front of her home at 194 Main Street. (Am. Compl. P II(A)(1)). When the defendant officers arrived at the scene, they failed to disperse a crowd that had gathered and further failed to identify themselves as police officers. (Am. Compl. P II(A)(2)). Defendant officers additionally allowed a civilian, Timothy Reardon ("Reardon") to make an aggressive action toward plaintiff, who was forced to lash out in self-defense. (Am. Compl. P II(A)(3)). Defendant officers then trespassed onto plaintiff's property and used excessive force to effect an illegal seizure, inciting a riot. (Am. Compl. P II(A)(4)).

 Zikuski then conspired to cover these illegal actions by informing arriving on-duty officers of his version of the incident, thereby "inflaming their passions to protect fellow officers in distress." (Am. Compl. P II(A)(5)). Plaintiff does not specify with whom Zikuski conspired.

 While inside the apartment effecting plaintiff's arrest, Zikuski assaulted plaintiff while saying "So you think you're so tough." (Am. Compl. P II(A)(6)). Plaintiff contends that this assault amounted to an excessive use of force, "sadistically used for the purpose of causing harm." (Am. Compl. P II(A)(6)).

 After his arrest, plaintiff was taken to the police station, where he was handcuffed to a rail in a hallway for several hours while awaiting booking. (Am. Compl. P II(A)(7)). Plaintiff was never medically examined for any injuries although defendants knew he was a diabetic. Upon returning to the police station, defendants conspired to conceal their illegal acts by omitting certain facts regarding the incident. The source or document from which they omitted these facts is not specified.

 Plaintiff contends defendant Joseph Lynch ("Lynch") violated his constitutional rights because of Lynch's "nonchalant attitude relative to the situation." Plaintiff seems to contend that certain remarks Lynch made to the press about the defendant officers' alleged intoxication at the time of the incident, and his failure to reprimand Zikuski for his "admitted violation of DWI laws," comprise "deliberate indifference" to plaintiff's rights. (Am. Compl. P II(B)). Plaintiff also alleges that Lynch took part in a conspiracy to effect the promotion of Zikuski to Assistant Police Chief. (Am. Compl. P II(B)).

 Finally, plaintiff alleges that Bucci should have called for an independent investigation of the incident, and that the City has a practice of failing to adequately investigate situations involving the minority community. (Am. Compl. P II(D)). Plaintiff also alleges that the City failed to discipline the defendant officers. (Am. Compl. P II(D)).

 B. Procedural History:

 Pro se plaintiff Foster Daniels brought this action on May 19, 1995, alleging civil rights violations under 42 U.S.C. §§ 1983, 1985 and 1986. All defendants appeared by way of answer filed July 5, 1995. Plaintiff filed an Amended Complaint on December 29, 1995, alleging violations of his Fourth, Eighth, and Fourteenth Amendment rights under the United States Constitution, and seeking five million dollars in compensatory and two million dollars in punitive damages. Defendants filed their Amended Answer on June 13, 1996, consisting of denials, several affirmative defenses, and three counterclaims for attorneys' fees and damages allegedly sustained by the various defendants. Defendants now move, pursuant to Fed.R.Civ.P. 12(b)(6), to dismiss the Complaint for failure to state a claim upon which relief may be granted, or in the alternative, for summary judgment dismissing the Complaint pursuant to Fed.R.Civ.P. 56(c).

 The Court notes that insofar as the defendants' motion is for summary judgment under Fed.R.Civ.P. 56(c), it is seriously deficient. Defendants' Local Rule 7.1(f) statement, which should consist of a "short and concise statement of the material facts as to which the moving party contends there is no genuine issue," merely consists of a summary of the arguments relied upon in their motion to dismiss for failure to state a claim. Thus, the defendants have not made it clear upon what undisputed issues of fact they rely for their summary judgment motion. Furthermore, the affidavits submitted in support of the summary judgment motion, except that of defendant Zikuski, consist largely of legal arguments and purported legal insufficiencies regarding plaintiff's Amended Complaint. The Court refers defendants to Fed.R.Civ.P. 56(e), which states that "supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." (emphasis added). Local Rule 7.1(c)(1) states that "an affidavit shall not contain legal arguments, but shall contain factual and procedural background as appropriate for the motion being made." (emphasis added). A large part of the affidavits submitted on this motion clearly do not comport with these requirements.

 Local Rule 7.1(f) provides that a motion for summary judgment "shall be denied if the moving party fails to file and serve the statement required by this paragraph." Because of defendants failure to submit a proper Rule 7.1(f) statement, and because of the deficiencies in the affidavits, the Court denies the defendants' motion for summary judgment, without prejudice. The ...


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