The opinion of the court was delivered by: FOSCHIO
A consent to proceed before a magistrate judge, pursuant to 28 U.S.C. § 636(c), was filed on February 11, 1997. The matter is presently before the court on Plaintiff's motion for leave to file a second amended complaint (Doc. # 7) filed January 31, 1997; Defendants' cross-motions for summary judgment and dismissal of the complaint or to compel discovery (Doc. # 10) filed February 28, 1997; Plaintiff's cross-motion for partial summary judgment (Doc. # 23) filed April 30, 1997; Plaintiff's motion to amend the scheduling order (Doc. # 28) filed June 4, 1997; Plaintiff's motion to compel and extend the period within which to identify experts (Doc. # 30) filed July 31, 1997; Plaintiff's motion to amend the scheduling order (Doc. # 34) filed September 30, 1997; and Defendants' motion for summary judgment (Doc. # 36) filed November 14, 1997.
On February 5, 1994, Phil A. Santos ("Santos"), 16, killed himself with a single blast from a shotgun following an encounter with the City of Tonawanda Police Department. Plaintiff, Gisele Mroz ("Mroz"), Santos's mother, was appointed administratrix of her son's estate on January 30, 1996. Thereafter, on February 2, 1996, Plaintiff filed in New York Supreme Court a summons and complaint on behalf of herself and her deceased son's estate.
The complaint alleged a claim for common law negligence and claims for violations of Santos's civil rights under 19 U.S.C. §§ 1983 and 1988, specifically the First, Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments based on Defendants' arrest of Santos on February 5, 1994, and their failure to properly respond to a telephone call asserting Santos had threatened suicide. On February 2, 1996, Plaintiff served a notice of claim upon Defendant City of Tonawanda ("City" or "City of Tonawanda") as required by state law. (Affidavit of Proof of Service, Exhibit C to Plaintiff's Attorney Affidavit). However, neither the summons nor the complaint were ever served upon Defendants.
Thereafter, on May 31, 1996, Mroz filed and served an amended complaint in which Defendants were charged with wrongful death, negligence and various intentional torts based on state law. Plaintiff also reasserted the § 1983 claims. All of Plaintiff's claims arise out of the encounter between Santos and the Defendant City of Tonawanda's police officers. Defendants removed the case, pursuant to 28 U.S.C. § 1441, by petition filed June 19, 1997. In their answer, filed the same date, Defendants asserted several defenses, including the statute of limitations.
To borrow the words of Chief Justice Rehnquist, "the facts of this case are undeniably tragic."
On the evening of Saturday, February 5, 1994, Plaintiff gave Santos permission to go to a local roller skating rink with his friend Jose Ortiz and another boy. As Plaintiff had planned to attend a movie, she expected Santos to be home by 11:00 P.M. According to Plaintiff, Santos was well behaved with no history of emotional or mental problems. Affidavit of Plaintiff Gisele Mroz in Opposition to Defendants' Cross Motions (Mroz Affidavit"), Attached to Plaintiff's Attorney's Affidavit in Opposition to Defendants' Cross Motions (Doc. # 18), filed March 27, 1997, PP 7, 9, 10.
Later that evening, the Defendant's police department received a telephone call from Gary Kasprzak, a resident of the City of Tonawanda, who lived at 471 Broad Street. Exhibit D to Defendants' Statement of Undisputed Facts, filed February 28, 1997 (Doc. # 12)("Police Report").
The information received from Kasprzak was that a young woman had just come to his house complaining that she had been confronted by "a black or hispanic male" wearing a long brown coat and hat who brandished a hand gun. Police Report. The caller also stated that the male was last seen walking on Wheeler Street toward Fletcher Street. Police Report.
Lieutenant Daniel Thiebolt the police officer who responded to the call, stated that, according to the report, the woman who made the complaint to Kasprzak was "extremely frightened." Affidavit of Daniel M. Thiebolt ("Thiebolt") ("Thiebolt Affidavit"), Exhibit C to Defendants' Statement of Undisputed Facts (Doc. # 12), P 3. On the way to investigate the incident as described in Kasprzak's call, Thiebolt met Kasprzak who told Thiebolt he had seen two young Hispanic males near Fletcher and Bouck Streets fitting the description given by the woman. Thiebolt Affidavit, P 3. Thiebolt intercepted the boys, exited his car, and questioned them regarding the complaint. Thiebolt Affidavit, P 6; Police Report. Upon determining that one of the boys matched the description given by Kasprzak, Thiebolt then "checked" the boys and seized what later proved to be a starter pistol from Santos, the boy who matched the description, who had immediately admitted to Thiebolt that he had the pistol. Police Report; Thiebolt Affidavit, P 7. Upon deciding that there was reason to "detain" Santos on state harassment and menacing charges, Santos was handcuffed and transported to police headquarters.
Thiebolt Affidavit, PP 8, 9, 11. However, as the woman who had sought Kasprzak's assistance was unwilling to sign a formal complaint, no charges were filed against Santos. Thiebolt Affidavit, P 15.
During his contact with Santos on Fletcher Street and while at the police station, Thiebolt observed that Santos was polite and courteous, and exhibited no signs of emotion. Deposition Testimony of Daniel Thiebolt, ("Thiebolt Deposition") Exhibit D to Defendants' Motion for Summary Judgment (Doc. # 36), filed November 14, 1997, at 27. According to Thiebolt, Santos's respectful conduct during the investigation made it unnecessary to apply any physical force to Santos. Id.; Thiebolt affidavit at 3, P 14.
Upon their arrival at the City of Tonawanda police headquarters, Santos and Ortiz were placed in a booking room where they were administered Miranda warnings and advised to call their parents.
Thiebolt Affidavit at 27, 37. According to police officer Reiss, who assisted Thiebolt in the investigation, neither boy was able to reach his parents. Deposition of Peter J. Reiss ("Reiss Deposition"), Exhibit E to Defendants' Motion for Summary Judgment (Doc. # 36), filed November 14, 1997, at 13. Reiss recalled that Santos displayed no emotion and thought Santos would have been "more nervous than he was" considering the problem for which he was being investigated. Reiss Deposition at 18. After it was determined that Santos would not be charged, he and Ortiz were told by Thiebolt that they were free to go. Thiebolt Deposition at 32. According to Thiebolt, Ortiz immediately left the building and, after "everything was explained" to Santos, he was offered a ride home. Id. at 32-33.
In support of her claims, Plaintiff relies on a statement made by Ortiz on July 31, 1995 in which Ortiz describes the events by which he and Santos were taken into police custody on February 5, 1994, the event which Plaintiff maintains precipitated Santos's suicide. Statement of Jose Ortiz ("Ortiz Statement"), Exhibit F to Plaintiff's Attorney Affidavit in Opposition to Defendants' Cross Motions (Doc. # 18), filed March 27, 1997.
According to Ortiz, the police officer who arrested Ortiz and Santos placed them against the patrol car and threatened to shoot them if they did not keep their heads down. (Ortiz Statement at 3-4). Ortiz also stated that the officer slammed Santos's head into the hood of the patrol vehicle when Santos attempted to apologize for threatening the woman with the toy gun. (Ortiz Statement, at 12-13, 23, 24, 45). Ortiz further stated that Santos was extremely upset with the incident and was nervous, shaking and crying in the back of the patrol car while en route to the Tonawanda police headquarters where, after his arrival, Santos continued to cry. (Ortiz Statement, at 8, 13, 21, 34). According to Ortiz, Santos began to cry after the police slammed Santos's face against the patrol car and continued to cry when the police told them they would be going to jail. (R. 42). Ortiz indicated that Santos believed he was going to jail and that his parents would be very upset with him, (Ortiz Statement at 8-10), and that Santos stated he was going to kill himself. (Ortiz Statement, at 19, 38, 43). According to Ortiz, Santos's emotional state was evident to the police officers. (Ortiz Statement, at 13). Ortiz also stated that the police officers told them that he and Santos would be going to jail if found guilty. (Ortiz Statement, at 36, 41). When Ortiz last saw Santos before being released from the police station, Santos was still crying and shaking. (Ortiz Statement, at 34). Ortiz believed the police officers did not like him or Santos and treated them badly because Ortiz and Santos were Hispanic. (R. 39-40, 44-45).
Lieutenant Boldt, the shift lieutenant, then drove Santos to his home at 205 Wheeler Street. Deposition of Herbert F. Boldt ("Boldt Deposition"), Exhibit B to Defendants' Motion for Summary Judgment (Doc. # 36), filed November 14, 1997, at 33. Upon escorting Santos to the door of the house, Boldt told Santos he should stay in the house and tell his stepfather what "he got into" and that his stepfather could "probably expect a call from the police." Id. at 10.
At that point, Santos said "goodnight" and, using a key, entered the house. Id. at 10. Boldt described Santos as "very courteous" and "not crying." Id. at 10. Boldt recalled that Santos had no difficulty gaining entry into the house and there were "no cuts, bruises, scrapes, [or] anything on his [Santos's] face." Id. at 13. According to the record of police calls on February 5, 1994, regarding Santos, Boldt arrived with Santos at approximately 8:58 P.M.
Kisloski Affidavit, P 7.
Sometime after arriving at his home, Santos had a telephone conversation with his close friend, Brad Pfalzer, who was then at Pfalzer's uncle's house in the City of Buffalo. Affidavit of Brad Pfalzer dated April 20, 1997 ("B. Pfalzer Affidavit"), Exhibit I to Plaintiff's Cross-Motion for Summary Judgment (Doc. # 23), filed April 30, 1997, P 3. Pfalzer described Santos as "clearly very upset and crying hysterically." Id. According to Pfalzer, Santos was "shouting, 'They are coming to get me, I am going to jail.'" Id., P 4.
Pfalzer stated that Santos repeated this statement several times, that he tried to calm Santos and told him he "would be right over to be with him." Id. Pfalzer was immediately driven to Santos's house by his uncle. Id. Upon arrival, they "pounded on the doors and rang the doorbells" but got no response. Id. Observing that there was light on in the downstairs but none upstairs, Pfalzer placed a telephone call to the house, but the only response was an answering machine. Id. Pfalzer then attempted to reach his mother, Laura Pfalzer, by calling the residence of Donald and Susan White, friends of his mother. Id. Unable to do so and after a further and equally fruitless attempt to raise someone at Santos's house, Pfalzer and his uncle returned to his uncle's home. Id.
Meanwhile, some of Plaintiff's friends, Kate and Casey Rybicki, Jessica and Richard Abbott, and Laura Pfalzer, Jessica Abbott's sister, after bowling earlier the same evening decided to meet at the residence of Don and Sue White in the Town of Tonawanda, a community adjacent to the City of Tonawanda. Upon arriving at the Whites', at about 9:30 P.M., the Rybickis were informed by Susan White that Brad Pfalzer had called the Whites' in attempt to reach his mother and said that Santos had threatened "to kill himself." Affidavit of Casmer Rybicki dated April 30, 1997 ("Rybicki Affidavit"), Exhibit G to Plaintiff's Cross-Motion for Partial Summary Judgment filed April 30, 1997 (Doc. # 23), P 2; Deposition Testimony of Jessica Abbott ("J. Abbott Deposition"), Exhibit J to Plaintiff's Statement of Disputed Facts filed December 29, 1997 ("Doc. # 40) at 53. Rybicki and Don White immediately drove to Santos's home arriving at approximately 9:55 P.M.
Rybicki Affidavit at P 2. Rybicki observed footprints in the snow leading into the house, and he and White rang the doorbell, pounded on the door and called out Santos's name with no response. Id., PP 2, 4. Rybicki also observed other footprints which he later surmised were Brad Pfalzer's, whom he subsequently learned had earlier gone to house in an effort to assist Santos. Deposition Testimony of Casmer Rybicki (Rybicki Deposition"), Exhibits O, P, & Q to Plaintiff's Statement of Disputed Facts filed December 29, 1997 (Doc. # 40) at 22. Looking through the side door, Rybicki saw a pair of wet sneakers which he believed belonged to Santos. Id. at 21. Rybicki and White then located a pay phone, called the White residence and were informed that police assistance had been requested. Rybicki Affidavit, P 5. Don White estimated that he and Rybicki called White's home at between 10:00 and 10:30 P.M. Deposition Testimony of Donald White ("D. White Deposition"), Exhibit N to Plaintiff's Statement of Disputed Facts, filed December 29, 1997, at 26. They returned to Santos's house and waited in Rybicki's car for the arrival of the police and Santos's step-father who was expected to return from work at about 11:15 P.M. Id., P 6.
Arriving at the White residence at approximately 10:00 P.M., shortly after Rybicki and White had left to go to Santos's house, the Abbotts and Laura Pfalzer were also informed by Susan White about Brad Pfalzer's call regarding Santos. Affidavit of Laura Pfalzer ("L. Pfalzer Affidavit") dated April 30, 1997, Exhibit H to Plaintiff's Cross-Motion for Partial Summary Judgment (Doc. # 23), filed April 30, 1997, P 3. Laura Pfalzer then attempted to reach her son and Santos without success. Abbott Deposition at 54. About fifteen minutes after arriving at the White's and following Laura Pfalzer's attempts to reach her son and Santos, Jessica Abbott called the City of Tonawanda police. Id.11 Abbott spoke with Lieutenant James Litz and told him that Brad Pfalzer had called earlier and that according to Brad's information, Santos was "frantic" and "sounded suicidal," however, Litz was initially hesitant to take action because Abbott's information was insufficiently direct. Abbott Deposition at 58; Deposition Testimony of James Litz ("Litz Deposition"), Exhibit A to Defendants' Motion for Summary Judgment (Doc. # 36), filed November 14, 1997, filed at 12. Laura Pfalzer then spoke with Litz and reiterated that Santos was "suicidal" and further stated that Santos had "access to a gun."
After Pfalzer demanded the police respond, the call was terminated. Pfalzer Affidavit, PP 4, 5.
As he had just come on duty, Litz, upon termination of the phone call with Laura Pfalzer, picked up his equipment and drove directly to Santos's home where he encountered Rybicki and White.
Litz Deposition at 14. Litz walked around the house and found nothing suspicious. Id. at 15. Litz explained to Rybicki and White that based on what he considered to be "fourth-hand" information and the absence of evidence of unusual activity, Litz concluded he lacked the authority to break into the house. Id. at 15-16. Litz specifically looked for indications that someone had recently entered the house in an effort to confirm what he had been told by Abbott and Laura Pfalzer, but found nothing. Id. at 16-17, 24. After completing his investigation at Santos's house, which lasted about ten minutes, Litz advised Rybicki and White they could if they desired make a forced entry, but they stated they would wait for Santos's stepfather to get home from work. Id. 15-16. Litz then reminded the two men to contact the police if they needed further assistance and resumed his patrol duty at about 10:50 P.M. Id. at 16; Rybicki Deposition at 42. Shortly thereafter, at approximately 11:21 P.M., the police received a call reporting that Santos had been found dead of a self-inflicted gun-shot wound at his home. Kisloski Affidavit, Exhibit F to Defendants' Notice of Motion (Doc. # 36), filed November 14, 1997, P 11.
Summary judgment will be granted when the moving party demonstrates that there are no genuine issues as to any material fact and that the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 331, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); Rattner v. Netburn, 930 F.2d 204, 209 (2d Cir. 1991). The moving party for summary judgment bears the burden of establishing the nonexistence of genuine issues of material fact. If there is any evidence in the record based upon any source from which a reasonable inference in the nonmoving party's favor may be drawn, the moving party cannot obtain a summary judgment. Celotex, supra, at 331.
The function of a district court in considering a summary judgment motion is not to resolve disputed issues of fact, but to determine whether there is a genuine issue to be tried. Rattner, supra, at 209. In assessing the record, including any affidavits, exhibits, and other submissions, the court is required to resolve all ambiguities and to draw all factual inferences in favor of the nonmoving party. Anderson, supra, at 255; Rattner, supra, at 209.
Summary judgment shall be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits . . . show that there is no issue as to any material fact, and the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). "The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson, supra, at 247-48. See also Lipton v. The Nature Company, 71 F.3d 464, 469 (2d Cir. 1995).
While the court must view the inferences to be drawn from the facts in the light most favorable to the party opposing the motion, Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986), a party may not "rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment." Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 12 (2d Cir. 1986), cert. denied, 480 U.S. 932, 94 L. Ed. 2d 762, 107 S. Ct. 1570 (1987). The non-moving party may defeat the summary judgment motion by producing sufficient specific facts to establish that there is a genuine issue of material fact for trial. Celotex, supra, at 322-23. "Mere conclusory allegations or denials" in legal memoranda or oral argument are not evidence and cannot by themselves create a genuine issue of material fact where none would otherwise exist. Lipton, supra, at *11. "Rule 56 mandates the entry of a summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, supra, at 322.
To defeat a motion for summary judgment, the nonmoving party "must adduce factual material which raises a substantial question of veracity or completeness of movant's showing or presents countervailing facts." Beal v. Lindsay, 468 F.2d 287, 291 (2d Cir. 1972). See also Argus, Inc. v. Eastman Kodak Co., 612 F. Supp. 904, 909 (S.D.N.Y. 1985), aff'd, 801 F.2d 38 (2d Cir. 1986), cert. denied, 479 U.S. 1088, 94 L. Ed. 2d 151, 107 S. Ct. 1295 (1987) (where plaintiffs did not raise any genuine issue of fact by acceptable factual evidence that contradicted or varied the documentary proof, summary judgment could not be defeated). According to Fed. R. Civ. P. 56(e), such factual material is to be presented in affidavits which "shall be made on personal knowledge and shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant so competent to testify to the matters stated therein." Fed. R. Civ. P. 56(e). "This requirement means that 'hearsay testimony . . . that would not be admissible if testified to at the trial may not properly be set forth in [the Rule 56(e)] affidavit. Beyah v. Coughlin, 789 F.2d 986, 989 (2d Cir. 1986)(quoting 6 Moore's Federal Practice, P 56-22, at 56-1312 to 56-1316 (2d ed. 1985)(footnote omitted).
Although the non-moving party is not required to depose her own witnesses, summary judgment must be opposed by "any of the kinds of evidentiary materials listed in Rule 56(c) . . . except the mere pleadings themselves." Celotex, supra, at 324. Fed.R.Civ.P. 56(c) specifies depositions, answers to interrogatories, admissions on file, and affidavits as the means by which the non-moving party may oppose summary judgment by demonstrating the existence of material issues of fact.
In this case, Defendants have moved for summary judgment and to dismiss the removed Amended Complaint in its entirety, based on the expiration of relevant statutes of limitations contending Plaintiff failed to satisfy the prerequisites to an action against a municipality and its police officers under New York General Mununicipal Law §§ 50-e and 50-i. Defendants further contend that Defendant police officers were at all relevant times acting within the official scope of their employment and are thus qualifiedly immune from this suit; that there was no "special relationship" between the City and Santos necessary to support a claim of negligence against the City under state law; and that there is no basis for any federal civil rights claim. Defendants' Memorandum of Law in Opposition to Plaintiff's Motion to Amend the Complaint and in Support of the Defendants' Cross Motion for Summary Judgment and Cross Motion for an Order Dismissing Plaintiff's Complaint or, in the Alternative, Compelling Plaintiff to Respond to the Defendants' Discovery Demands ("Defendants' Memorandum of Law in Opposition to Plaintiff's Motion to Amend the Complaint and in Support of the Defendants' Cross Motion for Summary Judgment") (Doc. # 11), filed February 23, 1997, at 17-20. On April 30, 1997, Plaintiff moved for partial summary judgment seeking a determination that there was no probable cause to arrest Santos and to take him into police custody on February 5, 1994.
2. Statute of Limitations
It is basic that no case may be commenced if the relevant statute of limitations has passed. In a removed action based on federal question jurisdiction, the timeliness of state claims alleged in the removed case is governed by state law. See Carnegie-Mellon University v. Cohill, 484 U.S. 343, 351, 98 L. Ed. 2d 720, 108 S. Ct. 614 (1987); Federman v. Empire Fire and Marine Ins. Co., 597 F.2d 798, 813 (2d Cir. 1979). Thus, if the court after finding that the case has been properly removed, thereby affording a basis for federal subject matter jurisdiction under 28 U.S.C. § 1441(a), the court may, in its discretion, retain any removed state claims joined with the federal claim. 28 U.S.C. § 1441(c). However, the district court must apply applicable state substantive law to the resolution of the state law claims, including a statute of limitations defense. Guaranty Trust Company v. York, 326 U.S. 99, 109, 89 L. Ed. 2079, 65 S. Ct. 1464 (1945). Unless the case is remanded, after removal questions of procedure are governed by federal law. Fed.R.Civ.P. 81(c)(the Federal Rules of Civil Procedure "apply to civil actions removed to the United States District Courts from the state courts and govern procedure after removal"); Granny Goose Foods, Inc. v. Brotherhood of Teamsters and Auto Truck Drivers Local No. 70 of Alameda County, 415 U.S. 423, 438, 39 L. Ed. 2d 435, 94 S. Ct. 1113 (1974). Here, no motion to remand was made. Accordingly, as claims under 42 U.S.C. § 1983 are alleged, the court has jurisdiction over the matter. Further, as Defendants' statute of limitations defense does not present novel questions of state law, the court elects to retain jurisdiction of the state claims. Carnegie-Mellon University v. Cohill, 484 U.S. 343, 98 L. Ed. 2d 720, 108 S. Ct. 614 (1988).
Actions grounded in tort, including a wrongful death action, against a municipality or its officers acting in their official capacity are permitted under New York General Municipal Law ("N.Y. Gen. Mun. Law") § 50. Specifically, the statute provides that
the action or special proceeding shall be commenced within one year and ninety days after the happening of the event upon which the claim is based; except that wrongful death actions shall be commenced ...