The opinion of the court was delivered by: Marian W. Payson United States Magistrate Judge
Plaintiff Arthur Jennejahn ("Jennejahn") has initiated the above-captioned action under 42 U.S.C. § 1983 against the Village of Avon, the Village of Avon Police Department, Avon Chief of Police James Carney and Avon Police Officer Brian Sexstone ("Sexstone"). (Docket # 1). Pursuant to 28 U.S.C. § 636(c), the parties have consented to have a United States magistrate judge conduct all further proceedings in this case, including the entry of final judgment. (Docket # 9). Currently before this Court is defendants' motion for summary judgment. (Docket # 21). For the reasons discussed below, defendants' motion is granted.
The following facts are derived from the parties' statements of material facts submitted pursuant to Rule 56.1 of the Local Rules of Civil Procedure for the Western District of New York. (Docket ## 21, 24, 25, 26). They are undisputed except where otherwise noted.
For over thirty-five years, Arthur Jennejahn and his wife have resided on South Avenue in Avon, New York. In the early 1990s, Jay and Joyce Brown moved into the house across the street from the Jennejahn residence. Almost immediately after the Browns moved to the neighborhood, they and the Jennejahns developed a discordant relationship, resulting in numerous calls by both sides to the Village of Avon Police Department (the "Police Department").
Particularly relevant to this litigation is a dispute that occurred on the afternoon of June 14, 2004, when Jennejahn and his wife were at home planting flowers. While they were planting in the front yard, the Browns' dog began to bark. Jennejahn remarked to his wife, "I guess we have to listen to the dog while we are out here." Apparently overhearing the comment, Joyce Brown appeared from around the corner of a fence on her property, waved her finger and stated, "[M]y dog can bark if it wants to." Jennejahn responded, "[N]ot like that," and Joyce Brown replied, "[W]e'll see about that" and took the dog into her house.
After Jennejahn and his wife had finished gardening, they left their home to dine at a restaurant. While they were out, Jay Brown called the Police Department to report his wife's encounter with Jennejahn. Officer Sexstone responded to the call by driving to the Browns' residence and speaking to Jay Brown in person. Prior to this encounter, Sexstone had not had any contact with either the Browns or the Jennejahns and had not been aware of their ongoing disputes.*fn1 Brown reported to Sexstone the ongoing problems that existed between Jennejahn and himself, specifically complaining that Jennejahn honked his car horn at all hours of the night, yelled obscenities and harassed guests who entered and exited the Browns' residence. Sexstone prepared an incident report documenting these reported interactions. Jay Brown also swore out a complaint against Jennejahn accusing him of harassment in the second degree, a violation under Section 240.26(3) of the New York Penal Law.*fn2
Later that evening, at approximately 8:00 p.m., Sexstone came to Jennejahn's residence, knocked on the door and asked whether he could come inside to talk "about the Browns." Jennejahn responded, "[I]f you are with the Village of Avon Police, I will not talk to you without counsel." Jennejahn inquired "[A]m I under arrest?" and Sexstone replied, "[Y]es, I got to do what I got to do."
According to Jennejahn, Sexstone violently grabbed his arm, spun him around, released his arm and forcefully grabbed his shoulders. Sexstone then allegedly pushed Jennejahn into the stove and pat frisked him. Following the frisk, Sexstone placed Jennejahn in handcuffs, ignoring Jennejahn's complaint that they were too tight, and escorted him to the patrol car that was parked in front of the Browns' residence. Jennejahn asserts that he was cooperative and told Sexstone that he would leave willingly and did not need to be handcuffed.
Defendants dispute Jennejahn's account of his arrest. According to Sexstone, he attempted to discuss the matter with Jennejahn, but Jennejahn refused to speak to him. Sexstone affirms that he used no force to arrest Jennejahn and did not apply the handcuffs until he was prepared to place Jennejahn in his patrol car. Sexstone further maintains that because Brown had requested that an order of protection be issued against Jennejahn, he was required to take Jennejahn before a judge.
Following his arrest, Sexstone transported Jennejahn to court, where he was arraigned before a judge on the violation charge. The judge issued an order of protection requiring Jennejahn to stay away from the Browns, and the case was adjourned in contemplation of dismissal. The charge against Jennejahn was dismissed six months later.
Jennejahn asserts three claims under Section 1983 arising from the above-described events: (1) a claim against all defendants that Sexstone used excessive force in effecting Jennejahn's arrest; (2) a claim against all defendants that Sexstone used excessive force in accordance with the policies and practices of the Village of Avon; and (3) a claim against all defendants that they selectively enforced the law against Jennejahn in violation of the Equal Protection Clause.*fn3 (Docket # 1). Defendants move for summary judgment on each of the claims. (Docket # 21). Jennejahn opposes the motion, arguing that genuine disputes of material fact remain as to each claim. (Docket # 24).
A. Standard for Summary Judgment
Summary judgment is appropriate "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 judgment as a matter of law." Fed. R. Civ. P. 56(c). In reaching this determination, the court must assess whether there exist any disputed material facts and, in so doing, must resolve all ambiguities and draw all reasonable inferences against the moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986); Coach Leatherware Co., Inc. v. AnnTaylor, Inc., 933 F.2d 162, 166-67 (2d Cir. 1991).
A fact is "material" only if it has some effect on the outcome of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. at 248; Catanzaro v. Weiden, 140 F.3d 91, 93 (2d Cir. 1998). A dispute regarding a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248; see also Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir.), cert. denied, 502 U.S. 849 (1991).
The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact, after which the nonmoving party must come forward with sufficient evidence to support a jury verdict in its favor; the motion will not be defeated based upon conjecture, surmise or the existence of "metaphysical doubt" concerning the facts. Bryant v. Maffucci, 923 F.2d at 982 (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). The party seeking to avoid summary judgment "must do more than make broad factual allegations and invoke the appropriate statute. The [party] must also show, by affidavits or as otherwise provided in Rule 56 . . . , that there are specific factual issues that can only be resolved at trial." Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995); see also Driscoll v. Townsend, 60 F. Supp. 2d 78, 80 (W.D.N.Y. 1999).
As the Second Circuit has explained:
[T]he trial court's task at the summary judgment motion stage of the litigation is carefully limited to discerning whether there are any genuine issues of material fact to be tried, not to deciding them. Its duty, in short, is confined at this point to issue-finding; it does not extend to issue-resolution . . . . It must be kept in mind that only by reference to the substantive law can it be determined whether a disputed fact is material to the resolution of the dispute.
Gallo v. Prudential Residential Serv. Ltd. P'ship, 22 F.3d 1219, 1224 (2d Cir. 1994).
B. Jennejahn's Claims of Excessive Force
Jennejahn's first and second claims assert, respectively, that he was subjected to excessive force at the time of his arrest by Officer Sexstone and that such force was authorized by the policies and practices of the Village of Avon Police Department. Defendants argue that Jennejahn's claims of excessive force fail because he cannot demonstrate that he suffered any injury.
To establish a claim under Section 1983, a plaintiff must demonstrate that the challenged conduct (1) was "committed by a person acting under color of state law;" and (2) "deprived [the plaintiff] of rights, privileges or immunities secured by the Constitution or laws of the United States." Pitchell v. Callan, 13 F.3d 545, 547 (2d Cir. 1994). By itself, Section 1983 creates no substantive rights; instead, it provides a "procedure for redress for the deprivation of rights established elsewhere." Thomas v. Roach, 165 F.3d 137, 142 (2d Cir. 1999). Here, no genuine dispute exists that defendants were acting under color of state law. Rather, the central inquiry is whether Sexstone's actions violated Jennejahn's constitutional rights.
Claims arising from the use of force during an arrest are judged by the "objective reasonableness" standard of the Fourth Amendment. Graham v. Connor, 490 U.S. 386, 397 (1989). Determination of whether the amount of force used to seize someone was reasonable "requires a careful balancing of the nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing governmental interests as stake." Graham v. Connor, 490 U.S. at 396 (internal quotations omitted).
Courts have long recognized that a police officer's right to make an arrest or investigatory stop "necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it." Id. "Because the test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application, however, its proper application requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight." Id. (internal quotations omitted). A police officer's application of force is excessive if it is objectively unreasonable "in light of the facts and circumstances confronting [the officer], without regard to [the officer's] underlying intent or motivation." Id. at 397.
Jennejahn concedes that probable cause existed for his arrest, and thus implicitly concedes that Sexstone was authorized to use some degree of force or the threat thereof to effect that arrest. He simply maintains that the amount of force Sexstone used was excessive. Id. at 396. For a claim of excessive force to be actionable, a plaintiff must demonstrate that it was "objectively sufficiently serious or harmful." United States v. Walsh, 194 F.3d 37, 50 (2d Cir. 1999). Stated another way, "the force used by the defendant [generally] must be more than de minimis in order for the plaintiff's claim to be actionable." Bell v. Chemung County, 2006 WL 839413, *3 (W.D.N.Y. 2006) (citing Graham, 490 U.S. at 397; Romano v. Howarth, 998 F.2d 101, 105 (2d Cir. 1993) (a de minimus use of force will rarely suffice to state a ...