The opinion of the court was delivered by: Hon. Glenn T. Suddaby, United States District Judge
Currently before the Court in this civil rights action filed by Angela Staley, as Administrator of the Estate of Dennis Ferguson, deceased ("Plaintiff"), is a motion for summary judgment filed by Jan Mika, John Doe, and the City of Albany ("Defendants"). (Dkt. No. 29, Attach. 2.) For the reasons set forth below, Defendants' motion is granted in part and denied in part.
Generally, liberally construed, Plaintiff's Amended Complaint alleges that, on January 11, 2007, in Albany, New York, Dennis Ferguson's civil rights were violated when he was stopped and taken into physical custody by Defendant Mika, an Albany Police Officer. (See generally Dkt. No. 17 [Plf.'s Am. Compl.].) More specifically, Plaintiff alleges that Ferguson was wrongfully arrested by Defendant Mika and that, during his arrest, he was subject to excessive force by Defendant Mika, who caused him to suffer physical, psychological and emotional injuries. (Id.) Based on these factual allegations, Plaintiff's Amended Complaint asserts the following claims, pursuant to 42 U.S.C. § 1983: (1) a claim of excessive force against Defendant Mika; (2) a claim of false arrest against Defendant Mika; (3) a claim of false imprisonment against Defendant Mika;*fn1 and (4) a claim of municipal liability against the City of Albany.*fn2 (Id.) Familiarity with the remaining factual allegations supporting these claims in Plaintiff's Amended Complaint is assumed in this Decision and Order, which is intended primarily for review by the parties. (Id.)
B. Undisputed Material Facts
In her opposition to Defendants' motion for summary judgment, Plaintiff failed to submit a Statement of Material Facts in accordance with Local Rule 7.1 of the Local Rules of Practice for this Court (which requires, inter alia, numbered paragraphs detailing the material facts as to which it is contended that there exists a genuine issue, with "specific citation[s] to the record where the factual issue arises"). (Dkt. No. 36.) Instead, Plaintiff submitted a Rule 7.1 Statement that (1) fails to admit or deny any of Defendants' factual assertions, and (2) makes a stream of conclusory statements, unsupported by any record citations. Ordinarily, all material facts set forth in a movant's Rule 7.1 Statement are deemed admitted unless specifically controverted by the opposing party. See N.D.N.Y. L.R. 7.1(a)(3); Prive v. Johnson, 04-CV-1024, 2010 WL 3338810, at *2 (N.D.N.Y. Aug. 23, 2010) (Suddaby, J.) [collecting cases]. However, the Court need not, and will not, turn a blind eye to any fact that is clearly in dispute. Burgess v. County of Rensselaer, 03-CV-0652, 2006 WL 3729750, at *1 (N.D.N.Y. Dec. 18, 2006) (McCurn, J.). As a result, only the properly supported facts contained in Defendant's Local Rule 7.1 Statement, which are not clearly in dispute, shall be accepted as true for purposes of the pending motion. With these points of law in mind, the following is a general summary of material facts.(Dkt. No. 29, Attach. 1 [Defs.' Rule 7.1 Statement].)
On January 11, 2007, between 4:30 p.m. and 5:30 p.m.,*fn3 Defendant Mika was traveling by himself in a marked Albany Police Department vehicle, wearing an Albany Police Department uniform, when he saw Ferguson interact with the driver of a car in front of 1 Lincoln Square in the City of Albany.*fn4 After the car pulled away, Defendant Mika called out to Ferguson,*fn5 and Ferguson stopped to speak with Defendant Mika. After a verbal exchange between Defendant Mika and Ferguson, a scuffle took place.*fn6 As a result of the scuffle, Ferguson could not walk. Defendant Mika called for backup and Ferguson was transported by ambulance to Albany Medical Center.*fn7 Ferguson was arrested for obstruction of governmental administration and criminal possession of a controlled substance.
Familiarity with the remaining undisputed material facts of this action, as well as the disputed material facts, as set forth in the parties' Rule 7.1 Statement and Rule 7.1 Response, is assumed in this Decision and Order, which (again) is intended primarily for review by the parties. (Id.)
Generally, in support of their motion for summary judgment, Defendants argue as follows: (1) Plaintiff's claim of excessive force should be dismissed because the amount of force used by Defendant Mika was reasonable under the circumstances; (2) Plaintiff's claim for false arrest should be dismissed because the arrest was based on probable cause; (3) Defendant Mika is protected from liability as a matter of law by the doctrine of qualified immunity; and (4) Plaintiff's municipal liability claim against the City of Albany should be dismissed because she has failed to adduce any admissible evidence from which a rational factfinder could conclude that Ferguson was deprived of his constitutional rights as a result of a custom or policy implemented by Defendant City of Albany. (See generally Dkt. No. 29, Attach. 2 [Defs.' Memo. of Law].)
In her response to Defendants' motion for summary judgment, Plaintiff argues as follows: (1) she has adduced admissible record evidence from which a rational factfinder could conclude that Ferguson was subjected to excessive force; (2) Defendant Mika's stop, search, and seizure/arrest of Ferguson was without reasonable suspicion or probable cause; (3) Defendant Mika is not entitled to qualified immunity because his actions in the stop, search, and seizure/arrest of Ferguson were not objectively reasonable; and (4) because Defendant Mika was acting within the scope of his employment as a police officer with the City of Albany during the time in question, the City of Albany is liable under a theory of respondeat superior. (See generally Dkt. No. 38 [Plf.'s Response Memo. of Law].)
II. RELEVANT LEGAL STANDARDS
A. Legal Standard Governing Motions for Summary Judgment
Under Fed. R. Civ. P. 56, summary judgment is warranted 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 a judgment as a matter of law." Fed. R. Civ. P. 56(c). In determining whether a genuine issue of material fact exists, the Court must resolve all ambiguities and draw all reasonable inferences against the moving party. In addition, "[the moving party] bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the . . . [record] which it believes demonstrate[s] the absence of any genuine issue of material fact." Celotex v. Catrett, 477 U.S. 317, 323-24 (1986). However, when the moving party has met this initial responsibility, the nonmoving party must come forward with "specific facts showing a genuine issue [of material fact] for trial." Fed. R. Civ. P. 56(e)(2).
As for the materiality requirement, a dispute of fact is "material" if it "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). "Factual disputes that are irrelevant or unnecessary will not be counted." Anderson, 477 U.S. at 248 [citation omitted].
As for the genuineness requirement, a dispute of fact is "genuine" if "the [record] evidence is such that a reasonable jury could return a verdict for the novmoving party." Id. As a result, "[c]onclusory allegations, conjecture and speculation . . . are insufficient to create a genuine issue of fact." Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998) [citation omitted; emphasis added]; see also Fed. R. Civ. P. 56(e)(2).*fn8 Similarly, inadmissible hearsay is insufficient to create a genuine issue of fact, "absent a showing that admissible evidence will be available at trial." Burlington Coat Factory Warehouse Corp. v. Esprit De Corp., 769 F.2d 919, 924 (2d Cir. 1985) [citations omitted]. Moreover, "an affidavit . . . that, by omission or addition, contradicts the affiant's previous deposition testimony" is insufficient to create a genuine issue of fact. Hayes v. New York City Dept. of Corr., 84 F.3d 614, 619 (2d Cir. 1996) [citations omitted].
Finally, as this Court has previously observed, "It is well established that issues of credibility are almost never to be resolved by a court on a motion for summary judgment." Cruz v. Church, 05-CV-1067, 2008 WL 4891165, at *4 & n.6 (N.D.N.Y. Nov. 10, 2008) (Suddaby, J.) [emphasis in original; collecting cases]. However, "there is a narrow exception to this well-established rule." Cruz, 2008 WL 4891165, at *4 [citation omitted]. In Jeffreys v. City of New York, 426 F.3d 549 (2d Cir. 2005), the Second Circuit explained that this narrow exception is for testimony by a non-movant that possesses the following two characteristics: (1) it constitutes almost the exclusive basis for a disputed issue of fact in the case (or, expressed differently, it is largely unsubstantiated by any other direct evidence); and (2) it is so lacking in credibility (because the testimony is incomplete and/or replete with inconsistencies and improbabilities) that, even after drawing all inferences in the light most ...