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Hardy v. Plante

February 3, 2009

STEVEN HARDY, PLAINTIFF,
v.
B.C. PLANTE, J.A. MARTIN, MENELAOS, AND CORT, POLICE OFFICERS OF THE CITY OF ALBANY POLICE DEPARTMENT, DEFENDANTS.



MEMORANDUM-DECISION AND ORDER

Plaintiff Steven Hardy ("Plaintiff" or "Hardy") commenced this section 1983 action against Defendants asserting excessive force claims arising out of his arrest on January 23, 2006. See Am. Compl. (Dkt. No. 6). Presently before the Court is Plaintiff's Motion for summary judgment (Dkt. No. 51). Also before the Court is Defendants' Cross-Motion for summary judgment (Dkt. No. 52). For the reasons discussed below, Defendants' Motion is granted and Plaintiff's Motion is denied.

I. BACKGROUND

A. Procedural History and Plaintiff's Compliance with the Local Rules

On March 30, 2008, Plaintiff filed a Motion for summary judgment. Dkt. No. 51. However, that Motion failed to comply with the Local Rules, as it did not include a memorandum of law or a Statement of Material Facts. See N.D.N.Y. L.R. 7.1(a). Defendants argue that Plaintiff's Motion should be dismissed due to this procedural failure. As Plaintiff is proceeding pro se, the Court must read his submissions liberally; yet his pro se status does not wholly exempt him from compliance with the Local Rules. Because the Court denies Plaintiff's Motion for summary judgment on the merits, the Court need not address whether Plaintiff's failure to comply with all of the requirements of Local Rule 7.1 would otherwise warrant dismissal of his Motion.

On April 11, 2008, Defendants filed a Cross-Motion for summary judgment and a Response in opposition to Plaintiff's Motion for summary judgment. Dkt. No. 52. Defendants filed a Statement of Material Facts with their Motion. Dkt. No. 52, Attach. 4. Plaintiff submitted a memorandum of law in his response to Defendants' Cross-Motion for summary judgment. Dkt. No. 59. Plaintiff also submitted a Statement of Material Facts in response. Dkt. No. 59, Attach. 1. Defendants argue that this document failed to comply with the Local Rules, because Plaintiff "did not specifically address each and every statement made by the defendants in their Statement Pursuant to Local Rule 7.1 with citations to the record specifically refuting the defendants' statements" and that this failure to follow procedure "requires the Court to deem the statements made by the defendants as admitted." Dkt. No. 60, Attach. 1, ¶ 29.

Local Rule 7.1(a)(3) provides that a party opposing a summary judgment motion shall file a response to the [movant's] Statement of Material Facts . . . [that] 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 Court shall deem admitted any facts set forth in the Statement of Facts that the opposing party does not specifically controvert.

N.D.N.Y. L.R. 7.1(a)(3) (emphasis omitted). Plaintiff's Statement of Material Facts contains a recitation of facts in numbered paragraphs, but those paragraphs do not mirror those in Defendants' Rule 7.1 Statement. Dkt. No. 59, Attach. 1. Rather, Plaintiff's Rule 7.1 Statement contains a paragraph asserting that he denies all the statements in Defendants' Rule 7.1 Statement. Id. ¶ 29. Finally, some of the paragraphs in Plaintiff's Statement do not contain citations to the record. Thus, Plaintiff has not strictly complied with the requirements of Local Rule 7.1(a)(3). Again, however, the Court recognizes that Plaintiff is proceedings pro se in this action. Plaintiff's compliance with the Local Rules, although not perfect, is sufficient to apprise Defendants of the nature of Plaintiff's arguments and factual allegations. Thus, the Court will not disregard Hardy's Statement of Material Facts due to his failure to strictly comply with the Local Rules. See Holtz v. Rockefeller & Co., 258 F.3d 62, 73 (2d Cir. 2001) ("A district court has broad discretion to determine whether to overlook a party's failure to comply with local court rules") (citations omitted).

However, the Court cannot consider Plaintiff's version of the facts to the extent that he denies resisting arrest, as his prior conviction for resisting arrest precludes him from arguing that he fully cooperated with Defendants during the altercation. See discussion infra. Thus, the following recitation of Facts is drawn from Defendants' Statement of Facts and Hardy's Statement except insofar as he denies resisting arrest.

B. Facts

On the evening of January 23, 2006, Defendants B.C. Plante and J.A. Martin, both officers with the Albany Policy Department, were on patrol when they received a report of a stabbing at 634 Clinton Avenue, Albany, NY. Plante Aff. ¶ 2 (Dkt. No. 52, Attach. 6 at 2).*fn1 The suspect was described as a black male, who was possibly bleeding and was wearing a fur coat. Id. ¶ 2. Shortly thereafter, the officers saw a black male who they believed matched the suspect's description, wearing a fur coat, at the intersection of First Street and North Lake in Albany. Id. ¶ 3. Officer Martin broadcast a description of the person they viewed and indicated that they were going to approach the suspect. Martin Aff. ¶ 4 (Dkt. No. 52, Attach. 6 at 6). Officer Plante exited his vehicle and approached the suspect, later known to him as Plaintiff. Plante Aff. ¶ 5.

Officer Plante had his gun drawn and pointed at Plaintiff while ordering him to "get on the ground face down." Hardy L.R. 7.1 Statement (Dkt. 59, Attach 1., ¶ 10). Officer Plante approached Hardy, who physically pushed the officer. Plante Aff. ¶ 6. Officer Martin tackled Hardy to the ground, where Hardy then struggled with the officers. Id. ¶¶ 7-8. The officers issued multiple commands to Hardy to remove his hands from underneath him. Id. ¶ 9. Hardy alleges that while on the ground, one of the Defendants "violently twisted [his] arm in a matter to cause great pain, which made him jerk involuntarily." Hardy L.R. 7.1 Statement ¶ 11. Hardy also alleges that this involuntary movement caused Defendants "to assault plaintiff by hitting and beating him about the body and head." Id. ¶ 12.

During the struggle, Officer Plante punched Plaintiff once on the right side of his face/ head. Plante Aff. ¶ 11. As Hardy continued to struggle with Officers Plante and Martin, Officer Cort and Officer Menelaos arrived on the scene. See id. ¶ 13. Plaintiff continued to refuse the Officers' commands as they attempted to pry Plaintiff's arms free and ascertain whether he had a weapon in his possession. See Menelaos Aff. ¶¶ 8-9 (Dkt. No. 52, Attach. 6 at 11). Officer Menelaos applied a Taser three times to Plaintiff's thigh. Id. ¶ 10; Hardy L.R. 7.1 Statement ¶ 20. Plaintiff argues that one of the Taser shots was applied after he was handcuffed, while Defendants argue that all three shots with the Taser gun were applied before Plaintiff was handcuffed. Hardy Dep. at 24 (Dkt. No. 59, Attach. 2 at 25); Menelaos Aff. ¶ 10. Plaintiff admits to consuming cocaine during the morning of January 23, 2006. Hardy Dep. at 12; Pl.'s Mem. of Law at 1 (Dkt. No. 59). However, he alleges that he was no longer under the influence of any drugs during his altercation with Defendants. Hardy L.R. 7.1 Statement ¶ 16. While Plaintiff claims that the arresting officers did not find a knife handle on him following his arrest, Albany Police Department records indicate that a knife handle was recovered from Plaintiff. Hardy L.R. 7.1 Statement ¶ 27; Albany Police Department Property Report (Dkt. No. 52, Attach. 6 at 52).

In 2006, Hardy was tried before the County Court of Albany County, in connection with events earlier in the day on January 23, 2006, as well as with his interaction with Defendant police officers on that day. Hardy was acquitted of burglary in the first degree, attempted assault in the first degree, and assault in the second degree, and convicted of grand larceny in the third degree, criminal possession of stolen property in the third degree ...


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