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Tota v. Bentley

September 30, 2009


The opinion of the court was delivered by: William M. Skretny United States District Judge



Plaintiff commenced this action under 42 U.S.C. § 1983 on July 31, 2006, alleging that officers from the Chautauqua County Sheriff's and Jamestown Police Departments used excessive force against him in violation of his Fourth Amendment rights. Presently before this Court are Defendants' Motion for Summary Judgment (Docket No. 149)*fn1 and Plaintiff's multiple motions for contempt and default judgment (Docket Nos. 164, 166, 167, 169).*fn2


A. Facts

1. The Incident Giving Rise to Plaintiff's Arrest

On August 3, 2003, firefighters responded to a report of a house fire at 48 Sherman Street, in Jamestown, N.Y. (Affidavit of David Bentley, Docket No. 149, ¶¶ 3--4.) When firefighters entered the house, they were confronted by Plaintiff, who was holding a shotgun. (Bentley Aff., ¶ 4.) The firefighters left immediately. (Bentley Aff., ¶ 4.)

After the firefighters left, Plaintiff fired the shotgun at a Jamestown Fire Department truck, piercing it with a deer slug. (Bentley Aff., ¶ 4.) Thereafter, Plaintiff's immediate neighbor and cousin, Thomas Gelbato, arrived at the scene and observed Plaintiff's arm in an upstairs bedroom window. (Affidavit of Daryl P. Brautigam, Docket No. 149, Exhibit A, p. 2.*fn3 ) He next heard broken glass, smelled gasoline, and saw that his garage was on fire. (Brautigam Aff., Exhibit A, p. 2.) Plaintiff apparently threw a flammable mixture at Gelbato's garage. (Brautigam Aff., Exhibit A, p. 2.)

The Jamestown Police Department then responded to the scene. (Bentley Aff., ¶ 5.) Unable to communicate with Plaintiff, Jamestown police officers called in the Chautauqua County Sheriff's Department SWAT team to assist. (Bentley Aff., ¶ 5.) The SWAT team arrived and attempted to communicate with Plaintiff for approximately nine hours before entering the house at 4:30 a.m., on August 4, 2003. (Bentley Aff., ¶ 6.) Upon entering, SWAT officers were confronted by Plaintiff, who was brandishing a tire iron.

(Bentley Aff., ¶ 7.) SWAT officers subdued and arrested Plaintiff.*fn4 (Bentley Aff., ¶ 7.)

Plaintiff denies any independent knowledge or recollection of the events of August 3, 2003, leading up to his arrest. (Brautigam Aff., Exhibit E, pp. 36, 39-40, 42-45, 49.) Rather, Plaintiff insists that he learned the details of these events only through the various reports he received after his arrest. (Brautigam Aff., Exhibit E, pp. 36, 39-40, 42-45, 49.) Plaintiff claims that he did nothing to damage his house or any surrounding houses. (Brautigam Aff., Exhibit E, p. 30.) He denies setting fire to his house, and denies knowing that his front porch was on fire. (Brautigam Aff., Exhibit E, pp. 30, 32-33.) Plaintiff admits that he pled guilty to an arson charge for setting fire to his cousin's garage,*fn5 but states that he did not actually cause the fire and pled guilty only to avoid being sent to the Rochester Psychiatric Center.*fn6 (Brautigam Aff., Exhibit E, pp. 31-32.) Plaintiff insists that his independent recollection does not begin until the point of his arrest.

2. Plaintiff's Version of His Arrest

Plaintiff's recollection of his arrest is as follows: He was sitting at home, unarmed, perhaps sleeping in his kitchen, when he heard a loud noise and people breaking into his house. (Brautigam Aff., Exhibit E, pp. 40-41.) Someone fired a weapon at him, so he ran into the living room, where he was tackled, beaten with billy clubs, and punched and kicked by a group of officers. (Brautigam Aff., Exhibit E, pp. 50-51, 52, 53, 55.) He fell face down on the floor and was unable to move because officers were on his back. (Brautigam Aff., Exhibit E, p. 55.)

When Plaintiff tried to turn his head and speak, a standing officer kicked him in his right eye. (Brautigam Aff., Exhibit E, pp. 55-56.) Another officer stood on his lower back, with both feet together, and jumped up and down, allegedly fracturing his vertebra. (Brautigam Aff., Exhibit E, pp. 56-57.) A third officer kicked Plaintiff in his right shoulder. (Brautigam Aff., Exhibit E, p. 62.) After that blow, an officer on Plaintiff's back twice choked him to the point of almost losing consciousness. (Brautigam Aff., Exhibit E, p. 62.) Plaintiff states that he was then pepper-sprayed in each eye from a distance of less than an inch, and then twice electrocuted by officers using a "shorted-out electric cord" that "was emitting electricity under the floor." (Brautigam Aff., Exhibit E, pp. 63.) After that, Plaintiff was handcuffed behind his back, and pulled out of the house "with such force that [he was] lifted vertically off the ground without [his] knees touching."*fn7 (Brautigam Aff., Exhibit E, p. 64.) On his way out of the house, an officer elbowed Plaintiff in the stomach and smiled at him. (Brautigam Aff., Exhibit E, p. 65.)

Plaintiff maintains that this treatment continued on his front lawn. He testified that he was thrown to the ground, and again kicked, punched, and beaten with billy clubs over his entire body. (Brautigam Aff., Exhibit E, p. 65.) He contends that while he was face-down in the grass, an officer stood on his calves, one foot on each calf, and jumped up and down. (Brautigam Aff., Exhibit E, p. 65.) Finally, officers picked Plaintiff up off the ground, took him to a police car, slammed his face into the hood of the car, and then drove him to the Jamestown Police Department. (Brautigam Aff., Exhibit E, pp. 36, 39-40.)

3. Defendants' Version of Plaintiff's Arrest

Defendants' account of Plaintiff's arrest differs substantially. Defendants deny using excessive force or causing Plaintiff any injury. (Bentley Aff., ¶ 7.) Defendants maintain that the only force used was that necessary to remove the tire iron from Plaintiff and subdue him. (Bentley Aff., ¶ 7.) Beyond that, Defendants maintain that no one struck or abused Plaintiff in any way. (Bentley Aff., ¶¶ 7, 9.) Vincent Capizzi, a Jamestown firefighter, testified at his deposition that he was present at the scene and did ...

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