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Diefenbacher v. Davenport

January 12, 2007

MICHAEL DIEFENBACHER, PLAINTIFF,
v.
SGT. GARY DAVENPORT, OFFICER WILLIAM CLARK, AND OFFICER MICHAEL BLASCZIENSKI, DEFENDANTS.*FN1



The opinion of the court was delivered by: Gary L. Sharpe U.S. District Judge

MEMORANDUM-DECISION AND ORDER

I. Introduction

Pro se plaintiff, Michael Diefenbacher, alleges, pursuant to 42 U.S.C. § 1983, that defendants violated his Fourteenth Amendment rights. Pending under Federal Rule of Civil Procedure 56 is defendants' motion for summary judgment. See Dkt. No. 35. For the reasons that follow, defendants' motion is granted.

II. Facts*fn2

Viewing the facts in the light most favorable to Diefenbacher, the material facts are as follows. On July 18, 2002, Diefenbacher telephoned the Fulton Police Department from his home in Hannibal, New York. See Def. SMF ¶ 3, Dkt. No. 35. Officer Davenport was on duty that day, and he answered Diefenbacher's call. See id. ¶ 4. Diefenbacher reported to Davenport that a man named Adolfo Marquina-Tapia threatened him over the telephone. See id. ¶ 5. Diefenbacher told Davenport that he wished to have Marquina-Tapia arrested for aggravated harassment. See id. Davenport explained to Diefenbacher that he needed to pursue this complaint with the Oswego County Sheriff's Department because Hannibal, Diefenbacher's residence, was outside the jurisdiction of the Fulton Police Department. See Def. SMF ¶ 6, Dkt. No. 35. Instead, Diefenbacher asked Davenport if officers could accompany him to the Clark/Marquina-Tapia residence so that he could check on his son, Timothy Clark, who resided there with Marquina-Tapia and his mother, Judy Clark. See id. ¶ 7. Davenport advised Diefenbacher that all officers were currently involved in other assignments and could not accompany him to the Clark/MarquinaTapia residence at that time. See id. ¶ 8. Davenport strongly advised Diefenbacher not to go by himself or confront Marquina-Tapia. See id. ¶ 10. Nevertheless, Diefenbacher went to the Clark/Marquina-Tapia residence alone. See Def. SMF ¶ 12, Dkt. No. 35.

Shortly thereafter, the Fulton Police Department received a report of a disturbance at the Clark/Marquina-Tapia residence. See id. ¶ 13. In response to the complaint, Officers Clark and Blasczienski arrived at the Clark/Marquina-Tapia residence and interviewed Diefenbacher and his son, Timothy. See id. ¶ 14. Diefenbacher told the officers that he was concerned about Timothy's welfare because Marquina-Tapia owned a machete. See id. To the contrary, Timothy told the officers that MarquinaTapia never threatened anyone nor used his machete toward anyone. See Def. SMF ¶ 16, Dkt. No. 35. Timothy also told them that it was actually Diefenbacher who was threatening Marquina-Tapia. See id. ¶ 16. Judy Clark, Timothy's mother, also confirmed that Timothy was not endangered in any way by Marquina-Tapia. See id. ¶ 20.

Later, Officer Blasczienski located Marquina-Tapia at the Holly Drive Motel and interviewed him about a machete. See id. ¶ 17. Marquina-Tapia was cooperative, showed him the machete, and explained that it was a tool he used while working at a farm. See id. ¶ 18. After interviewing Marquina-Tapia, the officers were satisfied that he had not used, threatened to use, or intended to use the machete against Diefenbacher or Timothy. See Def. SMF ¶ 19, Dkt. No. 35. The officers did not confiscate Marquina-Tapia's machete because they concluded that he did not commit a crime. See id. ¶ 21. After June 18, Diefenbacher did not place any emergency calls for assistance to defendants. See id. ¶ 22.

On the evening of July 12, Diefenbacher, Judy Clark, and others went out drinking at various establishments in the Fulton area. See id. ¶ 23. At the end of the night, Diefenbacher believed that Judy Clark intended to spend the night with him at the Holly Drive Motel. See Def. SMF ¶ 24, Dkt. No. 35. However, Clark returned to her home without Diefenbacher in the early morning of July 13. See id. Meanwhile, Diefenbacher called the Clark/Marguina-Tapia residence at 1:41, 1:44, and 1:46 a.m. from the Holly Drive Motel. See id. ¶ 25. During the third phone call, Diefenbacher told Marquina-Tapia that he was coming to "kick his ass." Id. At approximately 1:58 a.m. on the morning of July 13, Diefenbacher appeared at the Clark/Marquina-Tapia residence and banged on the door. See id. ¶ 28. He yelled to Marquina-Tapia to "come outside or I'll kill you...." See id. Diefenbacher then broke down the rear door of the Clark/Marquina-Tapia residence, and the door struck Marquina-Tapia in the forehead. See id. ¶ 29. Marquina-Tapia struck Diefenbacher with a machete twice. See Def. SMF ¶ 30, Dkt. No. 35.

Both Diefenbacher and Marquina-Tapia were arrested by the Fulton Police Department as a result of this incident, but the charges against Marquina-Tapia were eventually dropped. See id. ¶ 31. After being charged with burglary, assault, and criminal mischief, Diefenbacher was convicted and incarcerated. See id. ¶ 33. He currently resides at Cayuga County Correctional Facility. See id.

III. Procedural History

On September 14, 2004, Diefenbacher filed his original complaint pursuant to 42 U.S.C. § 1983. See Dkt. No. 1. On January 18, 2005, Diefenbacher filed an amended complaint against defendants, Davenport, Clark, and Blasczienski. See Dkt. No. 7. Defendants answered on August 1 and moved for summary judgment on July 26, 2006. See Dkt. Nos. 20, 35. Despite the passage of the due date, Diefenbacher failed to file a response to defendants' motion. On September 6, the court ordered Diefenbacher to either notify the court and opposing counsel of his intention not to respond to defendants' motion or to file his elective response within fourteen days. See Dkt. No. 36. The deadline has now expired. To date, Diefenbacher has failed to either respond to defendants' motion or to notify the court of his intention not to respond pursuant to the court's September 6th order.*fn3 See id.

IV. Discussion A. Motion for Summary Judgment Standard

Summary judgment shall be granted "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." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986) (citing FED. R. CIV. P. 56(c)); Globecon Group, LLC v. Hartford Fire Ins. Co., 434 F.3d 165,170 (2d Cir. 2006) (citation omitted). All reasonable inferences must be drawn in favor of the nonmoving party. See Allen v. Coughlin, 64 F.3d 77, 79 (2d Cir.1995). The moving party "bears the initial responsibility of informing the district 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 a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (citation omitted); see also SEC. v. Kern, 425 F.3d 143, 147 (2d Cir. 2005). "A 'genuine' dispute over a material fact only arises if the evidence would allow a reasonable jury to ...


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