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McZorn v. Endicott Police Dep't

January 16, 2008


The opinion of the court was delivered by: Thomas J. McAVOY, Senior United States District Judge



Plaintiff commenced this action pro se pursuant to 42 U.S.C. § 1983 "seek[ing] damages for the false arrest and false imprisonment of plaintiff C.B. McZorn, and the defamation of plaintiff['s] character." Am. Compl. ¶ 1 [dkt. # 5]. Plaintiff alleges that his rights under the "[F]ourteenth, [E]ighth, [F]irst and [F]ifth [A]mendments to the United States Constitution" were violated. Id. Defendants have moved for summary judgment pursuant to Fed. R. Civ. P. 56 seeking to dismiss the action. Plaintiff has opposed the motion.


a. Summary Judgment Standard

The Court may grant summary judgment only where "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c). An issue is genuine if the relevant evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). A party seeking summary judgment bears the burden of informing the court of the basis for the motion and of identifying those portions of the record that the moving party believes demonstrate the absence of a genuine issue of material fact as to a dispositive issue. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

If the movant is able to establish a prima facie basis for summary judgment, the burden of production shifts to the party opposing summary judgment who must produce evidence establishing the existence of a factual dispute that a reasonable jury could resolve in his favor. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The nonmoving party must show, by affidavits or other evidence, admissible in form, that there are specific factual issues that can only be resolved at trial. Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995). "[P]roceeding pro se does not otherwise relieve a litigant from the usual requirements of summary judgment." Viscusi v. Proctor & Gamble, 2007 WL 2071546, at * 9 (E.D.N.Y. July 16, 2007).

In determining whether to grant summary judgment, the Court must view all facts in the light most favorable to the nonmoving party, but "only if there is a 'genuine' dispute as to those facts."Scott v. Harris, --- U.S. ----, 127 S.Ct. 1769, 1776, 167 L.Ed.2d 686 (2007). "When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment." Id. at 1776.

The nonmoving party cannot defeat summary judgment by "simply show[ing] that there is some metaphysical doubt as to the material facts," Matsushita., 475 U.S. at 586, or by a factual argument based on "conjecture or surmise." Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991). In this regard, a party opposing a properly supported motion for summary judgment may not rest upon "mere allegations or denials" asserted in the pleadings, Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522, 525-26 (2d Cir. 1994), or on conclusory allegations or unsubstantiated speculation. Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998).

b. Local Rules Requirements

The Local Rules of the Northern District require a party moving for summary judgment to submit a "Statement of Material Facts" which shall set forth, in numbered paragraphs, each material fact about which the moving party contends there exists no genuine issue. Each fact listed shall set forth a specific citation to the record where the fact is established. The record for purposes of the Statement of Material Facts includes the pleadings, depositions, answers to interrogatories, admissions and affidavits. It does not, however, include attorney's affidavits.

N.D.N.Y.L.R. 7.1(a)(3). Once a properly supported Local Rule 7.1(a)(3) Statement is submitted, the party opposing the motion must file a response to the [movant's] Statement of Material Facts. The non-movant's response shall mirror the movant's Statement of Material Facts by admitting and/or denying each of the movant's assertions in matching numbered paragraphs. Each denial shall set forth a specific citation to the record where the factual issue arises. The non-movant's response may also set forth any additional material facts that the non-movant contends are in dispute in separately numbered paragraphs. Any facts set forth in the Statement of Material Facts shall be deemed admitted unless specifically controverted by the opposing party.

Id. (underscoring in original).

The responding Statement of Material Facts is not a mere formality, and the courts apply this rule strictly. See N.Y. Teamsters Conference Pension & Ret. Fund v. Express Servs., Inc., 426 F.3d 640, 648-49 (2d Cir. 2005)(upholding grant of summary judgment where "[t]he district court, applying Rule 7.1(a)(3) strictly, reasonably deemed [movant's] statement of facts to be admitted" because the non-movant submitted a responsive Rule 7.1(a)(3) statement that "offered mostly conclusory denials of [movant's] factual assertions and failed to include any record citations."); Gubitosi v. Kapica, 154 F.3d 30, 31 n. 1 (2d Cir. 1998)(per curiam)(accepting as true material facts contained in unopposed local rule statement of material facts); Meaney v. CHS Acquisition Corp., 103 F. Supp.2d 104, 108 (N.D.N.Y. 2000)(deeming movant's Rule 7.1(a)(3) Statement admitted where non-movant's response "set forth no citations -- specific or otherwise -- to the record")(emphasis in original); McKnight v. Dormitory Auth. of State of N.Y., 189 F.R.D. 225, 227 (N.D.N.Y. 1999)(McAvoy, J.)("deem[ing] the portions of Defendants' 7.1(a)(3) statement that are not specifically controverted by Plaintiff to be admitted"); Osier v. Broome County, 47 F. Supp.2d 311, 317 (N.D.N.Y. 1999) (McAvoy, J.)(deeming admitted all facts in defendants' Rule 7.1(a)(3) statement where "plaintiff submitted thirteen pages of purported facts without any indication where those facts can be located in the record").

While the Court must construe a pro se litigant's pleadings and papers liberally and interpret them to raise the strongest arguments that they suggest, Govan v. Campbell, 289 F. Supp.2d 289, 295 (N.D.N.Y. 2003);*fn2 Veloz v. New York, 339 F. Supp.2d 505, 513 (S.D.N.Y. 2004), the application of this lenient standard does not relieve a pro se litigant of the requirement to follow the procedural formalities of Local Rule 7.1(a)(3). Govan, 289 F. Supp.2d at 295; see also Faretta v. California, 95 S.Ct. 2525, 2541 n. 46 (1975)("The right of self-representation is not a license . . . not to comply with relevant rules of procedural and substantive law."); Edwards v. INS, 59 F.3d 5, 8 (2nd Cir. 1995)("While a pro se litigant's pleadings must be construed liberally, . . . pro se litigants generally are required to inform themselves regarding procedural rules and to comply with them.").


On August 25, 2004, Endicott Police Officer J. L. Vanek was dispatched to the scene of a reported sexual assault at 200 North Street, Apt. 9, Endicott, New York. On arrival, Officer Vanek interviewed a number of individuals present at the residence including the putative victim. The putative victim advised that she had been asleep on a couch in the apartment and that a person named "Chris" had also been asleep on the couch with his head on the opposite end of the couch. She stated that she awoke to non- consensual vaginal penetration by Chris, and she screamed and jumped up off the couch. According to the putative victim and other witnesses who were present in the apartment at the time, Chris jumped up off the couch, left the apartment, and drove away in his vehicle. An occupant of the apartment advised Officer Vanek that Chris was known to her only by first name, and she provided the police with Chris's physical description and his telephone number. Officer Vanek caused dispatch to run the telephone number through their computers, and the inquiry returned with Plaintiff's name and his address in Endicott, New York.

Officer Vanek communicated the substance of his initial investigation to Detective Scott A. Evans who, according to Defendants, put into motion a plan of action for the investigation of what was believed to be a rape. The putative victim was transported to the hospital for administration of a rape kit and DNA analysis. She also gave a sworn statement that indicated, inter alia, that she had taken two (2) vicadin pills about an hour and a half before she was awakened by Chris. The putative victim further asserted in her statement: "All I remember was waking up and my pants were down to my thighs and my underwear were [sic] down to my butt, past my butt, and he was pumping his penis inside my vagina from behind me."

Upon learning of Plaintiff's address, police officers went to and remained outside Plaintiff's residence while awaiting a search warrant. Before the warrant arrived, Plaintiff voluntary exited his residence, hands in the air, and agreed to be transported to the Endicott Police Department for questioning.

Plaintiff contends that as he was walking to the interrogation room at the Endicott Police Department with Detective Sergeant Michael A. Kaminsky, he told Kaminsky "that drugs were involved." Plf. Aff. ¶ 10. According to Plaintiff, Detective Kaminsky responded: "We don't want to hear or know about it." Id. Plaintiff claims that he then said he "pleads the 5th and want[s] a lawyer." Id. Detective Kaminsky then responded: "It would take all day for a lawyer. If you don't give a statement I will arrest you. If you cooperate I[']ll let you go." Id. Plaintiff was then lead to the interrogation room for questioning.

A video of the entirety of the questioning was made, and a copy of video was provided to the Court on this motion. At the start of the video, Plaintiff is seen sitting alone in an office next to a desk. He is not handcuffed or shackled and appears to be spitting on his fingers and cleaning his shoes with his fingers. Then, Detective Kaminsky can be seen entering the office and sitting at the desk and addressing Plaintiff. Plaintiff asks Detective Kaminsky a question (which is inaudible) that results in the following exchange:

Kaminsky: Well, to be honest with you, we probably have enough to charge you, but there are always 2 sides to a story, so.

Plaintiff: Should I wait 'till a lawyer gets here, or?

Kaminsky: Well, I'll go through your rights with you, and you tell me what you want to do. I can't make that decision for you.

Plaintiff: Right.

Detective Kaminsky then advises Plaintiff that he is being investigated for a charge of rape, and begins reading Plaintiff the standard Miranda warnings. After each particular warning, Detective Kaminsky asks Plaintiff if he understands the ...

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