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August 16, 2001


The opinion of the court was delivered by: Lawrence E. Kahn, United States District Judge

Presently before the Court is Plaintiff's motion for partial summary judgment as to defendant Siler's and Barnett's liability to him for various violations of federal and state law. For the following reasons Plaintiff's motion is GRANTED in part and DENIED in part.
As Plaintiff sat on the porch, defendants Barnett and Siler asked him if he lived there. When he stated that he did not know who lived there, the Officers performed a pat down search to ensure that he was not armed.*fn1 A short time later, a young male arrived and indicated that the home belonged to his aunt. He also stated that he did not know Plaintiff and went to retrieve his aunt. When his aunt arrived, she also stated that she did not know Plaintiff and that Plaintiff did not have permission to be on her porch. Plaintiff stated that he was there to visit the woman's daughter.
The owner of the house allegedly told defendants Barnett and Siler that although she did not want Plaintiff arrested she did want him removed from the area. Although Plaintiff's and the Officer's version of events differ somewhat at this point, neither dispute that Plaintiff was eventually placed in the back of defendant Barnett's and Siler's patrol car*fn2 and driven outside the city limits of Schenectady. During the drive, Plaintiff alleges that he protested to the Officers and feared for his life. He also alleges that defendant Barnett struck him in the head while he was confined in the back of the police car. Eventually, defendant Siler pulled the car to the side of Rector Road, located in the Town of Glenville, and, according to Plaintiff, defendant Barnett ordered him to stick his feet outside the vehicle. Defendant Barnett then allegedly removed Plaintiff's shoes and threw them into a densely wooded area before throwing Plaintiff to the ground and striking him in the head.*fn3 Defendant Barnett then reentered the vehicle and drove away from Plaintiff leaving him on the side of Rector Road, stating, "You'll have a long walk back, maybe you should think about moving to Albany."

On the basis of the events that occurred on July 28, 1999, Plaintiff filed suit against Defendants on August 23, 1999 alleging, in part, that Defendants deprived him of various Constitutional rights and privileges in violation of 42 U.S.C. § 1983 and that Defendants falsely arrested, unlawfully imprisoned, and committed assault and battery against him.*fn4 During the pendency of the above captioned case, the United States Attorney has been investigating both defendants Barnett and Siler for a host of felony charges related to their conduct while employed as police officers for the City of Schenectady. As a result of this ongoing criminal investigation, the Court stayed all discovery related to the charges contained in the instant complaint until July 28, 2000. On January 2, 2001, the United States Attorney sought to intervene and stay discovery once again.

Magistrate Judge Smith denied the United States Attorney's motion to intervene on January 9, 2001 but stayed all depositions of any City of Schenectady representatives until after defendant Siler's criminal trial.*fn5 Defendant Siler also invoked his Fifth Amendment right against self-incrimination when Plaintiff attempted to serve interrogatories upon him, stating that he would appear for a deposition once the criminal proceedings were resolved. Magistrate Judge Smith subsequently adjourned discovery through June 30, 2001 to ensure that discovery in this case would not prejudice or interfere with defendant Siler's ongoing criminal trial.

Plaintiff filed the instant motion for partial summary judgment as to both defendant Siler's and Barnett's individual liability to him less than one week after Judge Smith stayed discovery.*fn6 The Officers oppose that motion, inter alia, on the grounds that the Court should not use defendant Siler's invocation of his Fifth Amendment rights to draw any adverse inference against him, that Plaintiff has not met his burden of showing that the Officer's actions were the proximate cause of his alleged injuries, that the Officers are entitled to qualified immunity, that Plaintiff has not provided sufficient proof that either officer assaulted or committed battery against him, and that, pursuant to Federal Rule of Civil Procedure 56(f), because discovery has been stayed they require more time to prepare affidavits and take depositions to defend against the instant motion. The Court will address each of these issues in turn.

A. Standard for Summary Judgment
The standard for summary judgment is well-established. Summary judgment is appropriate if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). A material fact is genuinely disputed only if, based on that fact, a reasonable jury could find in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). On a motion for summary judgment, all evidence must be viewed and all inferences must be drawn in a light most favorable to the nonmoving party. See City of Yonkers v. Otis Elevator Co., 844 F.2d 42, 45 (2d Cir. 1988).
The party seeking summary judgment bears the initial burden of "informing the district court of the basis for its motion" and identifying the matter "it believes demonstrate[s] the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Upon the movant's satisfying that burden, the onus then shifts to the non-moving party to "set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 250. The non-moving party "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 (1986), but "must set forth specific facts showing that there is a genuine issue of fact for trial." First Nat'l Bank of Az. v. Cities Serv. Co., 391 U.S. 253, 288 (1968).
B. Section 1983 Claims Generally
To succeed on a section 1983 claim, Plaintiff must prove two essential elements: (1) defendants Siler and Barnett acted under color of state law; and (2) as a result of their actions, Plaintiff suffered a denial of his federal statutory or constitutional rights or privileges. See Annis v. County of Westchester, 136 F.3d 239, 245 (2d Cir. 1998). In the instant case, both defendants Siler and Barnett admit that they were acting under color of law at the time they left Plaintiff on Rector Road. Nevertheless, each contends that they are entitled to qualified immunity for their actions because they were acting pursuant to an informal relocation policy that the City of Schenectady condoned. Additionally, defendant Siler argues that because discovery has been limited, the instant motion for partial summary judgment is premature. Before addressing these issues, the Court must first determine, however, if defendant Siler's and Barnett's actions violated Plaintiff's Fourth Amendment Rights.*fn7
1. Fourth Amendment Unlawful Seizure Claim*fn8
a. Seizure
The Fourth Amendment safeguards "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. Amend IV; Atwater v. City of Lago Vista, 121 S.Ct. 1536, 1543 (2001). For purposes of Fourth Amendment analysis a "seizure" occurs when a police officer "by means of physical force or show of authority, has in some way restrained the liberty of a citizen." Florida v. Bostick, 501 U.S. 429, 434 (1991). A seizure does not occur simply because an officer approaches an ...

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