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Calvin L. v. Town of Cheektowaga

July 13, 2011


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



Plaintiff commenced this case by filing a Complaint in the Supreme Court for the State of New York, Erie County, on December 28, 2007. On January 23, 2008, the case was removed to this Court. (Docket No. 1.) Plaintiff alleges, under 42 U.S.C. § 1983, that officers from the Town of Cheektowaga Police Department used excessive force against him and deprived him of adequate medical treatment in violation of his Fourth and Fourteenth Amendment rights. Plaintiff also alleges that the Town of Cheektowaga itself is liable under § 1983, under the doctrine of respondeat superior, and through negligent supervision. Finally, Plaintiff alleges state law assault and negligence claims. Presently before this Court are Defendants' Motion for Summary Judgment (Docket No. 33). For the foregoing reasons that motion is granted in part and denied in part.


A. Facts

1. Plaintiff's Version of His Arrest

Plaintiff's recollection of his arrest is as follows: In the cold, early morning hours of Februrary 12, 2007, Plaintiff left his home at 1115 Walden Avenue to buy cigarettes for his girlfriend at a nearby bar. (Bradley Tr., Docket No. 42-2, pp. 10-11.) He noticed a Town of Cheektowaga patrol car drive past him, turn around in a Wilson Farms parking lot ahead of him, and drive back toward him. (Bradley Tr., pp. 29-30.) The patrol car then approached Plaintiff and two officers jumped out of the car. (Bradley Tr., p. 31.) They called out, "Hey you," but Plaintiff did not respond and continued walking. (Bradley Tr., p. 34.) With that, police officers ran up to Plaintiff, twisted his arm behind his back, and sprayed him in the face with "Mace." (Bradley Tr., p. 34.) The officers then began beating Plaintiff, eventually wrestling him to the ground where they kicked, punched, and hit him with night sticks. (Bradley Tr., p. 44; Docket No. 34-2, Exhibit A, p. 10.)

Lying prone on the ground, face down and covering his face, Plaintiff continued to feel kicks and punches all over his body, including his shoulder and face. (Bradley Tr., pp. 49-56.) Eventually other officers arrived on the scene and joined the beating, which the plaintiff described as "brutal". (Bradley Tr., pp. 51 and 55.) Plaintiff did not struggle, resist, or attempt to flee in any way. His only movement was to raise his hands to his face in reaction to the burning sensation of the pepper spray (Bradley Tr., p. 41.)

2. Defendants' Version of Plaintiff's Arrest

Officers Leising and Smith had just started their midnight shift, 12 a.m. to 8 a.m., when they heard a call over the radio of a vehicle break-in near Pine Ridge and Walden in the Town of Cheektowaga. (Leising Tr., Docket No. 42-5, pp. 11,13.) Although it was Officer Murcin who directly responded to the call, Officers Smith and Leising decided to patrol the general area. (Leising Tr., pp. 14-15.) They soon encountered Plaintiff walking down Walden Avenue toward the City of Buffalo. (Leising Tr., p. 15.) Officer Leising exited the vehicle and requested that Plaintiff come to him. After ignoring the first set of requests and cursing at Officer Leising, Plaintiff began to walk in the officer's direction, placing his right hand in his pocket. (Leising Tr., p. 22.) Officer Leising interpreted this as a threatening gesture and instructed Plaintiff to remove his hand. (Leising Tr., p. 22.) Plaintiff refused, and Officer Leising grabbed Plaintiff's elbow to secure his arm. (Leising Tr., p.24.) Officer Leising then moved Plaintiff to the rear of the patrol car and removed Plaintiff's arm from his pocket and placed it on the trunk of his car. With this motion, a crack pipe rolled out of Plaintiff's hand, landing on the trunk of the patrol car. (Leising Tr., p. 24.) With this, Officer Leising informed Plaintiff he was under arrest. (Leising Tr., p. 28.) Next, Plaintiff spun around and faced the officers in a confrontational manner. (Leising Tr., p. 28.) Plaintiff refused to place his hands behind his back and the officers, fearing for their safety, took Plaintiff to the ground. (Leising Tr., p. 30.) Plaintiff continued to struggle. Officer Leising administered pepper spray, but it had no effect. (Leising Tr., p. 36.) Plaintiff continued to kick and fight while on the ground so Officer Leising placed his knee on Plaintiff's chest (Plaintiff was lying face up in this account) in an effort to secure him. (Leising Tr., p. 32.) The two officers were never able to handcuff Plaintiff. They resorted to holding his armsand legs until assistance arrived. (Leising Tr., pp. 33-38.)

Back-up eventually did arrive. When Defendant Officer Kusak arrived, he saw Officers Smith and Leising restraining Plaintiff on the ground. (Kusak Tr. Docket No. 42-7, pp. 12-17.) Officer Leising was so exhausted from the struggle that he backed away and Officers Kusak and Smith handcuffed Plaintiff. (Kusak Tr., pp.12-17.) By the time Officer Murcin arrived, the other officers were already handcuffing Plaintiff. (Murcin Tr. Docket No. 34-3, Exhibit H, pp. 14-19.) Officer Murcin never came into physical contact with Plaintiff. (Murcin Tr., pp.14-19.) By the time Sergeant Grant arrived, Plaintiff already was in a patrol car, and he too did not come into physical contact with Plaintiff. (Grant Tr., Docket No. 34-3, Exhibit I, pp. 10, 25.)

3. Post-Arrest Events and Evidence of Plaintiff's Injuries

After Plaintiff was subdued and placed in the squad car, the officers drove him to a woman who (unbeknownst to Plaintiff) witnessed the nearby vehicle break-in to see if she recognized him. She did not. (Bradley Tr., p. 58.)*fn1 Officers proceeded to take Plaintiff to the Cheektowaga jail, where he contends his complaints of pain and requests for help were ignored for several hours. (Bradley Tr., p. 68.) But, the Prisoner Condition Report notes that Plaintiff first complained of pain at 5:00 a.m. (Docket No. 34-2, Exhibit B) At this time he was escorted to Erie County Medical Center ("ECMC") where he was prescribed Loritab. (Docket No. 34-3)

After his release on recognizance, Plaintiff's pain continued. He visited Sister's of Charity Hospital, where he was diagnosed with a rib and shoulder fracture. (Bradley Tr., pp.73-74; Docket No. 42-3) He had "knots" on the top and back of his head. (Docket No. 42-3) He underwent surgery on his right shoulder on February 20, 2007, with follow-up therapy at ECMC. (Docket No. 42- 4; Bradley Tr. p.75.) Plaintiff asserts that his shoulder pain continues and that he is unable to perform the physical activities needed to cook, coach, and maintain his home. (Bradley Tr., pp. 78-79.)


Plaintiff alleges that Defendants Leising, Smith, Kusak, and Grant used excessive force against him in violation of state law and the Fourth Amendment. He further alleges that the Town of Cheektowaga and the Town of Cheektowaga Police Department negligently supervised and failed to adequately train Defendants. Finally, he asserts § 1983 false arrest, malicious prosecution, and depravation of medical treatment claims.

Defendants argue that the forced used, if any, was reasonable and that, as a matter of law, the Town of Cheektowaga and its police department cannot be held liable under respondeat superior. Defendants also raise issues of collateral estoppel and argue that ...

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