The opinion of the court was delivered by: Howard G. Munson Senior United States District Judge
MEMORANDUM - DECISION AND ORDER
Plaintiff, Benjamin Ahern, brings this civil rights action for damages, pursuant to 42 U.S.C. § 1983, alleging excessive force, assault and battery, false arrest and false imprisonment, malicious prosecution, and negligent employment, supervision, and training against defendants the City of Syracuse ("City"), and Syracuse Police Department ("SPD") Officers Sean Goodeve and P. Hanley (collectively "defendants"). Currently before the court is defendants' motion for summary judgment, pursuant to Rule 56 of the Federal Rules of Civil Procedure. Plaintiff opposes defendants' motion. For the reasons that follow below, defendants' motion is GRANTED in part and DENIED in part.
I. Complaint and Procedural History
On March 30, 2001, plaintiff filed a complaint in New York State Supreme Court against defendants. On April 13, 2001, plaintiff filed an amended complaint in the New York State Supreme Court. Plaintiff asserted a federal cause of action pursuant to 42 U.S.C. § 1983 against defendants alleging that Goodeve and Hanley used excessive force in securing his arrest for violating a local ordinance, which proscribed skateboarding. Plaintiff also asserted that defendants: violated his state constitutional rights; committed assault and battery against him; subjected him to false arrest and malicious prosecution; and that the City negligently employed, supervised and trained members of the SPD. On April 20, 2001, defendants removed plaintiff's action to the United States District Court for the Northern District of New York and shortly thereafter filed their answer to plaintiff's amended complaint. The parties have since engaged in discovery and defendants now bring this motion for summary judgment.
Before proceeding further, the court must address and resolve a dispute between the parties with respect to the timeliness of defendants' reply papers. In a letter to the court, plaintiff's counsel asserts that defendants' reply papers, in accordance with Local Rule 7.1(b)(1)(C), were due fourteen calendar days from the date on which the opposition papers were served by the opposing party. Plaintiff's counsel argues that because his client's opposition papers were hand-delivered to defendants' counsel's office on July 29, 2002, the deadline for serving reply papers was no later than August 12, 2002. The court agrees with plaintiff's counsel's calculation: the day of service for plaintiff's opposition papers was July 29, 2002; thus, fourteen days later, exclusive of the date of service, was August 12, 2002. As plaintiff's counsel notes, however, the parties stipulated to extend the motion filing package deadline to August 13, 2002. Plaintiff's counsel, however, did not receive defendants' reply papers until August 14, 2002, and requests that the court disregard defendants' reply papers.
In a letter to the court, defendants' counsel replied to plaintiff's counsel's arguments by asserting that defendants filed their motion package just prior to 5:00 p.m. on August 13, 2002, and that given the late hour and the past difficulty they had experienced in attempting to serve plaintiff's counsel, they opted to mail their reply papers. Defendants' counsel argues that plaintiff's counsel acknowledges having received defendants' reply papers on August 14, 2002, and that because no surreply is permitted under the rules, plaintiff endured no prejudice by the brief tardiness of defendants' reply papers. In this instance, the court finds that the brief tardiness of defendants' reply papers was harmless and declines to disregard them.
Before proceeding to the facts, the court must address a deficiency in plaintiff's opposition papers. In responding to Defendants' six-page, thirty-four paragraph Statement of Material Facts, plaintiff's counsel strayed from the requirements of Local Rule 7.1(a)(3). Although plaintiff's counsel filed a six-page, thirty paragraph "counter-statement of facts" in which he "dispute[d] Defendants' Statement of Material Facts," see Dkt. No. 27, Pl.'s Statement of Material Facts, his response failed to "mirror the movant's Statement of Material Facts by admitting and/or denying each of the movant's assertions in matching numbered paragraphs." L.R. 7.1(a)(3). The Local Rules are not empty formalities and the court is of course aware that "Any facts set forth in the Statement of Material Facts shall be deemed admitted unless specifically controverted by the opposing party." Id. Plaintiff's failure to inform the court of the bases for his disagreement with defendants' Statement of Material Facts has done anything but facilitate the court's judgment. Nonetheless, in the interest of judicial economy, the court exercises its discretion to "conduct an assiduous review of the record in order to weigh the propriety of granting" defendants' motion. Jones v. Smithkline Beecham Corp., 309 F.Supp.2d 343, 346 n. 4 (N.D.N.Y.2004) (citing Monahan v. New York City Dep't of Corrections, 214 F.3d 275, 291 (2d Cir.2000)). The court finds that plaintiff's counsel's response papers, i.e., the Counter-Statement of Material Facts and Memorandum of Law, have sufficiently controverted certain facts asserted by defendants in their Statement of Material Facts, albeit without the convenience of matching numbered paragraphs. Therefore, the following constitutes the court's compilation of established material facts, as well as the parties' disputed accounts, based upon those facts set forth in Defendants' Statement of Material Facts and Memorandum of Law, and Plaintiff's Counter-Statement of Facts and Memorandum of Law.
On July 13, 2000, plaintiff and two acquaintances, Kevin Page and John Cronin, were skateboarding around the City. Specifically, plaintiff, Page and Cronin skateboarded on Marshall Street, at the Everson Museum, and in the Armory Square area. In the Armory Square area, plaintiff skateboarded on Walton and Clinton Streets. See Dkt. No. 25, Defs.' Statement of Material Facts at ¶¶ 1-5. As officers assigned to the Division of Community Policing, SPD Officers Hanley and Goodeve patrolled the City's streets on bicycles. Id. at ¶ 6. Officers Hanley and Goodeve, inter alia, enforced the City's Revised General Ordinances Section 16-14.1,*fn1 which prohibits skateboarding in the City's Special Assessment District.*fn2 See Dkt. No. 25, Defs.' Statement of Material Facts at ¶ 8. At some time during the early evening hours, Officers Hanley and Goodeve informed Page and Cronin that skateboarding was not permitted in the downtown area and asked them to inform plaintiff of same. See Dkt. No. 26, Defs.' Mem. of Law at 1. Nevertheless, Officer Hanley later observed plaintiff skateboarding on Walton Street and told him that he could not skateboard on the street. See Dkt. No. 25, Defs.' Statement of Material Facts at ¶ 7. Soon thereafter, Officer Goodeve also observed plaintiff skateboarding on Walton Street and Clinton Street, pursued him on his bicycle and instructed him to dismount his skateboard. See Dkt. No. 26, Defs.' Mem. of Law at 1. Although plaintiff concedes that he heard someone shout "stop," he contends that he was unaware who made such a command and toward whom the command was made. See Dkt. No. 28, Pl.'s Mem. of Law at 2. In any event, when plaintiff did not comply with Officer Goodeve's request, Officer Goodeve rode his bicycle in front of plaintiff and thereby forced him to stop at the 400 Block of Clinton Street.*fn3 See Dkt. No. 25, Defs.' Statement of Material Facts at ¶ 11; Dkt. No. 32, Finn Aff. at Ex. M, Incident Report.
The occurrence and exact sequence of the following events is unclear because the parties' accounts vary widely; however, it is clear to the court that what was initially a mere violation of a City quality of life ordinance escalated to a physical altercation between the parties, which resulted in the custodial arrest of plaintiff. According to defendants, Officer Goodeve simply approached plaintiff and plaintiff became aggressive. See Dkt. No. 26, Defs.' Mem. of Law at 1. Officer Goodeve then observed plaintiff step back, and he inferred that plaintiff was about to flee on foot. In response, Officer Goodeve grabbed plaintiff's left arm to prevent him from fleeing whereupon plaintiff clenched his fists and puffed out his chest in a threatening manner. See Dkt. No. 26, Defs.' Mem. of Law at 1-2. Officer Goodeve then advised plaintiff that he was under arrest for the skateboarding violation and attempted to corral him. Officer Goodeve maintains that when he attempted to place plaintiff under arrest, a struggle ensued in which plaintiff twisted his body and attempted to pull away. Officer Hanley then joined the fracas and secured plaintiff's right arm. Plaintiff, however, struggled against the officers as they attempted to handcuff him, which caused him to fall to the ground. See id. at 2.
Plaintiff disputes defendants' account of his arrest. Plaintiff alleges that upon stopping in front of him, Officer Goodeve dismounted his bicycle and then without provocation: engaged in confrontational dialogue; immediately grabbed him; and began to handcuff him. See Dkt. No. 28, Pl.'s Mem. of Law at 2. Plaintiff maintains that he did not turn his back to Officer Goodeve. See id. Plaintiff alleges that when Officers Goodeve and Hanley handcuffed him, one of them lifted his arm above his shoulder "like a chick wing and applied pressure." See Dkt. No. 27, Pl.'s Counter-Statement of Material Facts at ¶ 8. Plaintiff alleges that Officers Goodeve and Hanley lifted him off his feet and then pushed him to the ground with his shoulder and hip absorbing the impact. See id.; Dkt. No. 28, Pl.'s Mem. of Law at 2. Plaintiff maintains that at no time did he struggle with Officers Goodeve and Hanley. See id. at ¶ 9.
Once Officers Goodeve and Hanley handcuffed plaintiff, they asked him for identification. See Dkt. No. 27, Defs.' Counter Statement of Material Facts at ¶ 10.*fn4 At the time, plaintiff could only produce a credit card bearing his mother's name, which included plaintiff's surname, but he stated that his driver's license was located in his car parked near the Everson Museum. See Dkt. No. 25, Defs.' Statement of Material Facts at ¶ 16. Officers Goodeve and Hanley arrested plaintiff: for violating the City's Revised General Ordinance section 16.14.1(2), and resisting arrest pursuant to New York State Penal Law Section 205.30. See Dkt. No. 25, Defs.' Statement of Material Facts at ¶¶ 15, 21. According to the SPD incident report, Plaintiff was then transported to the Justice Center by two SPD Officers in an SPD patrol vehicle. See Dkt. No. 25, Defs.' Statement of Material Facts at ¶ 26; Dkt. No. 27, Pl.'s Counter-Statement of Material Facts at ¶ 14. Page and Cronin, who had remained in the vicinity during plaintiff's arrest, see generally Dkt. No. 32, Finn Aff. at Ex. L, Page Dep. at 28-40, then left the scene to retrieve plaintiff's identification. Their retrieval effort somewhat successful, they proceeded to the Public Safety Building where Cronin presented Officer Goodeve with plaintiff's expired Le Moyne College photographic identification card, an insurance card, and an insurance bill. See Dkt. No. 28, Pl.'s Mem. of Law at 3.
There are but minor disputes as to the aftermath of plaintiff's custodial arrest. An SPD officer found a plastic baggie of marihuana in the back seat of the patrol car used to transport plaintiff to the Justice Center. See Dkt. No. 27, Pl.'s Counter-Statement of Material Facts at ¶ 14; Dkt. No. 31, Defs.' Reply Statement at ¶ 14. Prior to plaintiff's transportation, the patrol car was checked for contraband, but none was found. See Dkt. No. 26, Defs.' Mem. of Law at 2. While at the Justice Center, Officer Hanley telephoned Officer Goodeve and stated that "we have to give him [plaintiff] an appearance ticket on the UPM" [unlawful possession of marijuana]. See Dkt. No. 27, Pl.'s Counter-Statement of Material Facts at ¶ 16; Dkt. No. 31, Defs.' Reply Statement at ¶ 16. Shortly thereafter, Officer Hanley informed plaintiff that he was being charged with a misdemeanor crime of Resisting Arrest and with the violation of Unlawful Possession of Marihuana, pursuant to New York State Penal Law Section 221.05. See Dkt. No. 27, Pl.'s Counter-Statement of Material Facts at ¶¶ 14, 17; Dkt. No. 31, Defs.' Reply Statement at ¶¶ 14, 17; Dkt. No. 25, Defs.' Statement of Material Facts at ¶ 23. Plaintiff was jailed overnight at the Justice Center and appeared in City Court the next morning before Judge Brian DeJoseph. On August 22, 2000, the City Court dismissed the Resisting Arrest and the Imprudent Use of a Skateboard charges, but plaintiff plead guilty to the unlawful possession of marijuana violation and paid a fine of $100. See Dkt. No. 27, Pl.'s Counter-Statement of Material Facts at ¶ 18; Dkt. No. 31, Defs.' Reply Statement at ¶ 18; Dkt. No. 32, Finn Aff. at Ex. O. The next day, plaintiff sought medical attention for injuries he allegedly sustained during the course of his arrest. See Dkt. No. 27, Pl.'s Counter-Statement of Material Facts at ¶ 19; Dkt. No. 31, Defs.' Reply Statement at ¶ 19.Specifically, plaintiff complains of a partial rotator cuff tear with secondary impingement. Id.
The standard for summary judgment is familiar and well-settled. Rule 56 allows for summary judgment where the evidence demonstrates that "there is no genuine issue of any material fact and the moving party is entitled to judgment as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed. 2d 202 (1986). Summary judgment is properly regarded as an integral part of the Federal Rules as a whole, which are designed "to secure the just, speedy and inexpensive determination of every action." Celotex Corp. v. Catrett, 477 U.S. 317, 326, 106 S.Ct. 2548, 2554, 91 L.Ed. 2d 265 (1991) (quoting FED.R.CIV.P. 1). A court may grant a motion for summary judgment when the moving party carries its burden of showing that no triable issues of fact exist. See Thompson v. Gjivoje, 896 F.2d 716, 720 (2d Cir.1990). In light of this burden, any inferences to be drawn from the facts must be viewed in the light most favorable to the non-moving party. See id.; United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed. 2d 176 (1962) (per curiam). If the moving party meets its burden, the burden shifts to the non-moving party to come forward with "specific facts showing that there is a genuine issue for trial." FED.R.CIV.P. 56(e). The role of the court on a motion for summary judgment is not to try issues of fact but only to determine whether there are issues of fact to be tried. See, e.g., Anderson, 477 U.S. at 255, 106 S.Ct. at 2513; Gallo v. Prudential Residential Services, Limited Partnership, 22 F.3d 1219, 1223-24 (2d Cir.1994); Donahue v. Windsor Locks Board of Fire Commissioners, 834 F.2d 54, 58 (2d Cir.1987). The drawing of inferences and the assessment of the credibility of the witnesses remain within the province of the finders of fact. To defeat a motion for summary judgment, however, 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, 106 S.Ct. 1348, 89 L.Ed. 2d 538 (1986). A dispute regarding a material fact is genuine "if evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson, 477 U.S. at 248, 106 S.Ct. at 2510. When reasonable minds could not differ as to the import of the evidence, then summary judgment is proper. See Anderson, 477 U.S. at 250-251, 106 S.Ct. at 2511.
In the fifth cause of action of his Amended Verified Complaint, plaintiff asserts that the City "used and exercised unreasonable force against [him] in violation of the Fourth and Fourteenth Amendments to the Constitution of the United States and in violation of 42 U.S.C. § 1983." See Dkt. No. 32, Finn Decl. at Ex. E, Am. V. Compl. Section 1983 states:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . . 42 U.S.C. § 1983. To establish liability under 42 U.S.C. § 1983 against a municipality for conduct by employees such as police officers, a plaintiff must show that the claimed constitutional violation resulted from a municipal custom or policy. See Monell v. New York City Dep't. of Social Services, 436 U.S. 658, 691-95, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) ("We conclude, therefore, that a local government may not be sued under § 1983 for an injury inflicted solely by its employees or agents. Instead, it is when execution of a government's policy or custom . . . inflicts the injury that the government as an entity is responsible under § 1983."). "Custom" denotes "persistent and widespread . . . practices," see Adickes v. S.H. Kress & Co., 398 U.S. 144, 167, 90 S.Ct. 1598, 1613, 26 L.Ed.2d 142 (1970), and thus "[p]roof of a single incident of unconstitutional activity is not sufficient to impose liability under Monell, unless proof of the incident includes proof that it was caused by an existing, unconstitutional municipal policy, which policy can be attributed to a municipal policymaker." City of Oklahoma City v. Tuttle, 471 U.S. 808, 823-34, 105 S.Ct. 2427, 2436, 85 L.Ed.2d 79 (1985). In addition, there is no respondeat superior liability against a municipality under 42 U.S.C. § 1983 for conduct by employees below the policymaking level. Monell, 436 U.S. at 691-95.
In his opposition papers, plaintiff argues not that the City maintains an official policy or custom whereby its police officers are to employ excessive force in the execution of their duties, but rather that it maintains an unconstitutionally vague policy with respect to identification in the context of the issuance of an appearance ticket.*fn5 Plaintiff protests the SPD's Rules and Regulations Volume I, Article 3, Section 4.14(L) ("Regulation"), which states that "[a]n appearance ticket will not be issued when there exists a reasonable uncertainty as to the identity of the person charged." See Dkt. No. 32, Finn Aff. at Ex. J. Plaintiff argues that it is the custom, practice and policy of the SPD to allow the individual officer to determine, not by a set policy, but rather by simply by their own whim, what will constitute sufficient documentation for the issuance of an appearance ticket versus insufficient documentation and the resultant custodial arrest. See Dkt. No. 28, Pl.'s Mem. of Law at 6.
Plaintiff argues that the City's policy allowed Officers Goodeve and Hanley to disregard what they otherwise should have deemed credible sources of identification. In other words, plaintiff's expired Le Moyne College photographic identification card, plaintiff's mother's credit card, the insurance card, and the insurance bill should have sufficed to erase any "reasonable uncertainty" as to plaintiff's identity. To the allegedly deficient Regulation plaintiff attributes his: unreasonable seizure, arrest and handcuffing, bodily injury, transportation in the back of an SPD patrol vehicle, criminal charges, overnight jailing, and appearance in court. See Dkt. No. 28, Pl.'s Mem. of Law at 7.
In their moving papers, defendants largely dismiss plaintiff's argument that the City maintains an unconstitutionally vague policy, stating that plaintiff "will be unable to show the existence of a municipal policy or custom that caused the deprivation of his constitutional rights" and that there is no evidence that Officers Goodeve and Hanley "acted in furtherance of any custom, ...