The opinion of the court was delivered by: Michael A. Telesca United States District Judge
Plaintiff Lucille Rodgers ("plaintiff" or "Rodgers") brings this action against the City of Rochester (the "City"), the Rochester Police Department ("RPD"), Police Officer Rene Cruz ("Cruz"), Police Officer Scott Ferro ("Ferro"), Chief of Police Robert Duffy ("Police Chief Duffy"), and Police Officers John Does 1-10 ("John Does"), (collectively "defendants"), alleging that the defendants violated her constitutional rights, and that they were otherwise negligent when they took her into custody on February 5, 2004, due to a mental hygiene arrest. Defendants move for summary judgment against all of plaintiff's claims, alleging that no triable issue of material fact exists and that they are entitled to summary judgment as a matter of law. Plaintiff opposes the motion arguing that numerous questions of fact exist, which preclude summary judgment. For the reasons set forth below, defendants' motion for summary judgment is granted in part and denied in part.
On February 5, 2004, plaintiff Lucille Rodgers was living at 51 Almira Street, Rochester, New York. See Ex. A to Michael Cobbs Declaration ("Ex. A") at 6 lines 7-25. She had a tenant named Ronnie Doty ("Doty") who rented space from her home and had lived with her since November 2003. Id. According to plaintiff, when she arrived home on February 5th, she noticed that Doty had stolen some items*fn1 from her home and as a result she called 911 and requested police assistance. Id. at 14 lines 1-25. Sometime after midnight, police officer Cruz arrived at plaintiff's home. Id. Plaintiff informed Cruz what she thought plaintiff had stolen and Cruz looked around the house and then stepped outside.*fn2 At that moment, Doty arrived*fn3 at plaintiff's house and plaintiff demanded that Doty be removed from the premises. Cruz brought Doty outside the house, informed him of plaintiff's allegations and her demand that he be removed from the premises. During this time plaintiff returned to the house to check if anything else had been stolen. When plaintiff completed checking her home, Cruz had released Doty and came back into her house. Cruz verified that Doty was a tenant at the premises because Doty produced rent receipts to verify his occupancy. See Ex. A at 17 lines 1-23. Plaintiff was advised that she would have to bring an eviction proceeding to remove Doty and that Cruz had no authority to remove Doty from the premises. Id.
Plaintiff acknowledged that Doty did rent from her but she also pointed out that Doty had been stealing from her home and she insisted that she wanted Doty arrested for stealing. Id. However, Cruz refused to arrest Doty. At this time, police officer Ferro arrived at plaintiff's house. Plaintiff stressed that she wanted Doty arrested and alleges that Cruz and Ferro became agitated. Meanwhile, plaintiff was upset because she could not believe that Cruz and Ferro were unwilling to arrest Doty, even though she called 911 to report a larceny.*fn4 Plaintiff then went to her kitchen, picked up a pan and informed the officers that if Doty was allowed back into her house she would essentially hit him on the head with a pan. See Ex. A at 18 lines 3-25. In response to this statement, Cruz informed her she could not do this and plaintiff states she voluntarily put the pan back on her kitchen table and none of the officers took the pan from her. Id. Cruz claims he told plaintiff to put the pan down and then he grabbed the pan from her. See Ex. C at 42 lines 2-25. After returning the pan to her kitchen, plaintiff continued to debate with the officers regarding their refusal to arrest Doty. According to plaintiff, after approximately ten minutes of arguing, she lifted her hands in the air out of frustration and Cruz grabbed her hands immediately and informed her that she was under arrest. See Ex. A at 2-13. However, the officers' version is that after Cruz grabbed the pan from plaintiff, Cruz advised plaintiff that a mental hygiene arrest was being made because of her actions and statements made against Doty. Ferro then handcuffed plaintiff without assistance and walked plaintiff outside. See Ex. B at 30 lines 23-25; 31 lines 2-13.
Contrary to defendants' testimony, plaintiff asserts that Cruz attempted to put her hands behind her back, but was having trouble due to plaintiff's stiff arms. Plaintiff was 64 years old and suffering from arthritis, which accounted for the stiffness in her arms. However, she was not resisting arrest during the process. See Ex. B at 35 lines 10-13. According to plaintiff, Cruz began forcing plaintiff's hands behind her back in a violent manner and placed the handcuffs in an extremely tight grip. See Ex. A at 23 lines 10-18. When she informed Cruz of the tightness of the handcuffs, she claims he tightened them even further causing her extreme pain. Id. at 25 lines 10-13. After Cruz handcuffed plaintiff, she was escorted to one of the patrol cars. Id. at 24 lines 9-12. Ferro on the other hand asserts that plaintiff never complained that she was in any pain while walking to the police car. During this process, plaintiff asserts that Cruz also stepped on her right foot with his boots, which caused her excruciating pain. Id. at 41 lines 6-20. Plaintiff informed Cruz that he was standing on her foot but he refused to move it and when she tried to pull her foot from under his boot to relieve the pain, Cruz stomped on plaintiff's foot causing her to fall on her knees due to the pain. Id. In the process of trying to put plaintiff into the police car, plaintiff fell once again, sliding to the ground because she was too weak to stand. Id. at 25 lines 14-24.
Plaintiff also claims that Ferro and Cruz caused her to hit her head on the police car, which caused her to faint. Id. at 26 lines 2-5.
Plaintiff alleges that while she was laying on the wet, cold ground she woke up from fainting and felt Cruz grinding his hands against her chest.*fn5 Plaintiff claims she was congested with phlegm in her throat, which she coughed out involuntarily after Cruz ground his hand into her chest and she woke up. At this point she heard Cruz accuse her of spitting in his face followed by Ferro spraying pepper spray into her eyes and face. According to plaintiff, she could not breath and felt like she was choking so she began shaking, flailing and trying to remove the spray from her eyes, nose and throat. Plaintiff asserts that although the spray was burning and choking her, neither of the officers offered their assistance. Plaintiff claims she was laying in the street for approximately forty-five minutes before an ambulance responded to the scene. See Ex. A at 26 lines 22-25. Plaintiff insists she was sprayed with pepper spray before the ambulance arrived. Id. at 29 lines 18-21. Plaintiff testified that after the ambulance personnel arrived, she was placed on a Gurney and transported to Rochester General Hospital ("RGH").
Defendants argue that after the mental hygiene arrest, Rural Metro (ambulance) was called to respond to the scene. According to defendants, plaintiff was only on the ground for about five minutes before the ambulance arrived. See Ex. B at 55 lines 22-25. Moreover, upon the arrival of the ambulance, plaintiff was leaning against one of the police cars and appeared unresponsive. Charles Cutler ("Cutler"), a Rural Metro employee, performed a sternum rub on plaintiff, but because she did not respond to the sternum rub procedure, she was placed onto a Gurney. During the process of placing plaintiff on a Gurney the handcuffs behind her back were removed. However, defendants asserts that once the handcuffs were removed, plaintiff started swinging, kicking and spitting both at the Rural Metro ambulance personnel and the police officers. Thereafter, pepper spray was applied on plaintiff's face.
According to defendants, no other police officers played any part in the mental hygiene arrest and any officers that did arrive at the scene, did so after plaintiff was already in the ambulance with no further contact with any defendants. A subject resistance report was prepared for the incident verifying that Cruz and Ferro were the only officers involved in the incident. See Ex. I to Igor Shukoff's Declaration. Robert Duffy, as Chief of Police, did not play any role or participate in any way in this incident.
I. Summary Judgment Standard
Rule 56 of the Federal Rules of Civil Procedure provides that a party is entitled to summary judgment as a matter of law only where, "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. . . ." F.R.C.P. 56(c) (2003). The party seeking summary judgment bears the burden of demonstrating that no genuine issue of material fact exists, and in making the decision the court must draw all reasonable inferences in favor of the party against whom summary judgment is sought. Ford v. Reynolds, 316 F.3d 351, 354 (2d Cir.2003) (citing Marvel Characters v. Simon, 310 F.3d ...