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John J. Bourgeois v. Brandy Pelkey and Jerrod Trombley

March 25, 2011

JOHN J. BOURGEOIS, PLAINTIFF,
v.
BRANDY PELKEY AND JERROD TROMBLEY, DEFENDANTS.



The opinion of the court was delivered by: Gary L. Sharpe District Court Judge

MEMORANDUM-DECISION AND ORDER

I. Introduction

Plaintiff John Bourgeois commenced this action under 42 U.S.C. § 1983 against defendants Brandy Pelkey and Jerrod Trembley, asserting claims of false arrest, malicious prosecution, and excessive force in violation of the Fourth and Fourteenth Amendments of the United States Constitution and New York State law. (See Compl., Dkt. No. 1.) Pending is defendants' motion for summary judgment. (Dkt. No. 19.) For the reasons that follow, the motion is granted and Bourgeois's claims are dismissed.

II. Background

A. Factual History

On July 23, 2005, plaintiff John Bourgeois and his wife, Amy Demars-Bourgeois, spent the evening drinking in bars located in the City of Plattsburgh, New York, becoming intoxicated in the process. (See Defs. SMF ¶ 1, Dkt. No. 19:2.) At approximately 1:50 a.m., while at Peabody's bar, Bourgeois approached Demars-Bourgeois after becoming jealous that she was talking to a co-worker and ignoring him. (See id. at ¶ 2.) In response, Demars-Bourgeois proceeded to leave the bar, and Bourgeois followed her out. (See id.)

Once outside, Demars-Bourgeois began walking away with Bourgeois following a few feet behind. (See Pl. Resp. SMF ¶ 3, Dkt. No. 22:5.) Bourgeois then "tried to grab [Demars-Bourgeois]'s hand, and ended up grabbing ... the wrist area," (Stewart Aff., Pl. Ex. I, Bourgeois Trial Test. at 179, Dkt. No. 22:2), but Demars-Bourgeois pulled away, (see Pl. Resp. SMF ¶ 3, Dkt. No. 22:5).

Shortly thereafter, after observing this exchange, defendant Officer Brandy Pelkey approached Bourgeois, stepped in front of him, and told him to leave Demars-Bourgeois alone or he would be arrested. (See Defs. SMF ¶ 4, Dkt. No. 19:2.) Bourgeois responded to Officer Pelkey, telling her that Demars-Bourgeois was his wife and that they were having a conversation. (See Pl. Resp. SMF ¶ 5, Dkt. No. 22:5.) Bourgeois next walked around Officer Pelkey, continuing towards his wife. (See id.; Defs. SMF ¶ 6, Dkt. No. 19:2.)

As Bourgeois began crossing the Bridge Street bridge, Demars-Bourgeois, who had already crossed the bridge, turned around and began walking back across the bridge towards Bourgeois. (See Defs. SMF ¶¶ 6-7, Dkt. No. 19:2.) At about the midpoint of the bridge, Bourgeois and Demars-Bourgeois came back into contact, whereby Bourgeois again tried to grab Demars-Bourgeois's hand, grabbing her arm instead. (See Pl. Resp. SMF ¶ 7, Dkt. No. 22:5.) Demars-Bourgeois again pulled away, and, for a third time, Bourgeois grabbed her, but Demars-Bourgeois fell into the wall of the bridge and onto the ground. (See id.; see also Stewart Aff., Pl. Ex. I, Bourgeois Trial Test. at 183-85, Dkt. No. 22:2.) Demars-Bourgeois sustained two scrapes to her back as a result. (See Pl. Resp. SMF ¶ 10, Dkt. No. 22:5.)

Upon observing this second interaction, which culminated in DemarsBourgeois's fall, Officer Pelkey and defendant Officer Jerrod Trombley placed Bourgeois under arrest, charged him with attempted assault in the third degree under New York Penal Law §§ 110 and 120. (See Defs. SMF¶ 9, Dkt. No. 19:2.) Bourgeois was then placed in a police car, transported to the Plattsburgh Police Department, and, at some point in the morning of July 23, was arraigned and released. (See Murphy Aff., Defs. Ex. H, Bourgeois Dep. at 73-83, Dkt. No. 19:11.)

On October 11, 2005, a hearing was held before the Plattsburgh City Court, wherein the court made a finding that probable cause existed for Bourgeois's arrest. (See Defs. SMF ¶ 11, Dkt. No. 19:2.) In her incident report, arrest report, information and complaint, and at the October 11, 2005 hearing, Officer Pelkey recounted her observations of the July 23 incident, while also averring that, after Demars-Bourgeois fell on the bridge, she saw Bourgeois pick Demars-Bourgeois up and put her up against the bridge wall with his right hand around her neck. (See Murphy Aff., Defs.Ex. C, Dkt. No. 19:6; Murphy Aff., Defs. Ex. D, Pelkey Hr'g Test. at 9, Dkt. No. 19:7.) Officer Trombley testified to the same: "I saw [Bourgeois] pick [Demars-Bourgeois] up ... [h]is hands was [sic] on -- on [DemarsBourgeois]'s throat, placed [her] against the bridge and actually pushed her up, like -- her back was arched on the bridge." (Murphy Aff., Defs. Ex. D, Trombley Hr'g Test. at 38, Dkt. No. 19:7.) However, both Bourgeois and Demars-Bourgeois denied that he grabbed her by the neck. (See id., Demars-Bourgeois Hr'g Test. at 56; id., Bourgeois Hr'g Test. at 67-68, 74; Stewart Aff., Pl. Ex. I, Bourgeois Trial Test. at 186, Dkt. No. 22:2.)

Prior to Bourgeois's trial, the information charging attempted assault was replaced by a prosecutor's information charging two counts of disorderly conduct, New York Penal Law § 240.20. (See Defs. SMF ¶ 12, Dkt. No. 19:2.) Bourgeois's trial was held on June 20, 2006, with Plattsburgh City Court Judge Penelope D. Clute presiding. (See Stewart Aff., Pl. Ex. I, Trial Tr., Dkt. Nos. 22:1-2.) At trial, Bourgeois, Demars-Bourgeois, and Officers Pelkey and Trombley testified. (See generally id.) In a written decision and order dated July 28, 2006, Judge Clute found Bourgeois guilty beyond a reasonable doubt on the first count of disorderly conduct and not guilty on the second count. (See Murphy Aff., Defs. Ex. E, Clute Order at 8-9, Dkt. No. 19:8.)

Bourgeois appealed his conviction to the Clinton County Court, and in a decision and order dated September 17, 2007, County Court Judge Patrick R. McGill reversed the conviction and dismissed the information, finding: (1) that the prosecutor's information was facially insufficient because it did not contain a factual allegation as to the mental state required for disorderly conduct; (2) that the evidence presented at trial was legally insufficient for the trial court to find that Bourgeois "intended to 'cause public inconvenience, annoyance or alarm, or recklessly created a risk thereof' by engaging in 'fighting or in violent tumultuous or threatening ...


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