The opinion of the court was delivered by: Gary L. Sharpe U.S. District Judge
MEMORANDUM-DECISION AND ORDER
Plaintiff pro se Jose Ayuso brings this action pursuant to 42 U.S.C. § 1983 against various municipal defendants alleging, inter alia, excessive force in violation of his Fourth Amendment rights. See dkt. 7. Defendant Arcuri has filed a motion for summary judgment, see dkt. 48, as have defendants Amerosa, Pylman, Julian, and the City of Utica (the "City Defendants"). See dkt. 50.*fn1 For the reasons that follow, defendant Arcuri's motion is granted, and the City Defendants' motion is granted in part and denied in part.
On October 27, 2003, defendant Amerosa, a Utica police officer, attempted to stop Ayuso for a traffic violation. Ayuso, after initially pulling to the side of the road, subsequently sped away in his vehicle, and Amerosa gave chase. During the course of the chase, Ayuso's car struck a house, at which point Ayuso took off on foot. Officer Amerosa, by now also on foot, overtook Ayuso, and attempted to place him under arrest.
It is at this point that the parties' accounts of the facts diverge. According to Amerosa, Ayuso resisted arrest and began to punch him. See City Defs.' Statement of Material Facts ("City Defs.' SMF") ¶ 22; dkt. 50. Amerosa responded by striking Ayuso in the legs with his baton. Id. Upon being struck, Ayuso drew a gun and struck Amerosa across the left side of his face, cursed at Amerosa, and pushed the gun into his neck. Id. at ¶¶ 22-23. Amerosa backed off and saw Ayuso pointing the gun at him. Id. at ¶ 23. Anticipating that Ayuso would shoot him, Amerosa drew his service weapon and shot at Ayuso. Id. at ¶ 23. After being shot, Ayuso threw his gun down on the pavement. Id. at ¶ 24.
Ayuso's version of the facts differs in many respects from Amerosa's account. Ayuso does not deny resisting arrest by Amerosa. See Pl.'s Statement of Material Facts ("Pl.'s SMF") ¶ 1; dkt. 58. However, he claims that Amerosa maliciously attacked him, and he defended himself by fighting back. Id. at ¶ 6. Ayuso also does not deny possession of a gun, but states that the weapon was unloaded throughout the altercation. Id. at ¶ 4. Moreover, Ayuso claims that during the fracas, the gun and magazine clip fell from his pants' pocket, at which time he kicked it away as he attempted to flee from Amerosa. Id. at ¶ 10. While Ayuso admits to striking Amerosa in the face during their struggle, he denies: (1) striking him with the gun, (2) pressing the gun into his neck, and (3) pointing the gun at Amerosa before Amerosa shot him. Id. at ¶¶ 6, 8-10. He also claims that Amerosa struck him in the head with his police baton, resulting in two cuts. Id. at ¶ 7. Lastly, Ayuso claims that as he was running away, Amerosa shot him twice in the back, and one bullet became lodged in his chest. Id. at ¶¶ 10, 12.
On the evidence presented, the court is unable to credit one account over the other. Contrary to the parties' contentions, Ayuso's medical records do not definitively reveal whether Ayuso was shot in the front or the back of his body. Indeed, the records suggest that Ayuso was shot in the side of the chest. See Ayuso Medical Records, p. 5; dkt. 50. A wound to the side could be consistent with both an aggressive posture, or with flight. Additionally, while the defendants assert that the presence of blood on the handle of Ayuso's weapon indicates that it was in his hand at the time he was shot, Ayuso counters that the blood came from a head wound inflicted by Amerosa's baton prior to the shooting. In light of these disputed issues of fact, the court will assume, for purposes of the pending motions, that Ayuso was shot while running away from Amerosa, and that Ayuso had discarded his gun prior to being shot by Amerosa.
Following his arrest, Ayuso subsequently pled guilty to criminal possession of a weapon in the second degree, N.Y. PENAL LAW § 265.03, and assault in the second degree, N.Y. PENAL LAW § 120.05. No criminal action was taken against Officer Amerosa.
While Ayuso's First Amended Complaint purports to assert violations of his rights under the First, Eighth, and Fourteenth Amendments, the precise nature of the constitutional violations is not explicated with a great deal of clarity. In light of Ayuso's pro se status, the court has construed the First Amended Complaint liberally as stating the following claims: (1) an excessive force claim under Fourth Amendment; (2) a Fourteenth Amendment due process claim; (3) a Fourteenth Amendment equal protection claim; and (4) a conspiracy claim under 42 U.S.C. § 1985.*fn2
A. Standard of Review--Motion for Summary Judgment
The standard for the grant of summary judgment is well-established, and will not be repeated here.For a full discussion of the standard, the court refers the parties to its previous opinion in Bain v. Town ...