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Ronald Bunn v. City of Poughkeepsie et al

May 9, 2012

RONALD BUNN,
PLAINTIFF,
v.
CITY OF POUGHKEEPSIE ET AL., DEFENDANTS.



The opinion of the court was delivered by: Paul A. Engelmayer, District Judge:

OPINION & ORDER

Defendants the City of Poughkeepsie (the "City") and three unidentified John Doe police officers (collectively, "defendants") move for summary judgment against the complaint of plaintiff Ronald Bunn, which claims, pursuant to 42 U.S.C. § 1983, that defendants' conduct violated Bunn's rights to due process and equal protection under the Fourteenth Amendment. For the following reasons, the motion is granted and judgment will be entered in favor of defendants.

I.Background and Material Facts*fn1

On April 16, 2007, a man named Joseph Crocco was charged with menacing plaintiff Ronald Bunn, and was remanded to Dutchess County Jail. Def.'s 56.1 ¶ 2; Pl.'s 56.1 ¶ 2. That same day, an order of protection was issued in favor of plaintiff and against Crocco. Def.'s 56.1 ¶ 4; Pl.'s 56.1 ¶ 4. On April 19, 2007, Crocco was released from Dutchess County Jail. Def.'s 56.1 ¶ 3; Pl.'s 56.1 ¶ 3. On the afternoon of April 19, 2007, Bunn and Crocco had a chance encounter on the streets of Poughkeepsie, at which "angry words" were exchanged from opposite sides of a street. See Bunn Dep. 63--66, attached as Ex. E to Kelly Aff. Thereafter, Bunn and his companion went to the Poughkeepsie police station, where he told a desk officer that "we were having a problem with Joe Crocco and how are we going to protect ourselves." Bunn Dep. 72:16--19 The desk officer "said that you have to wait until something happened." Id. Bunn, however, did not specifically inform the desk officer that he had taken out an order of protection against Crocco. Id. at 72:20--24. Bunn and his companion then returned home. Id. at 73:18--20.

Early on the morning of April 20, 2007, Bunn was struck in the arm by a bullet while in his bedroom. Def.'s 56.1 ¶ 5; Pl.'s 56.1 ¶ 5. Bunn believes that Crocco was the assailant, but it does not appear that Crocco was ever arrested or prosecuted for this alleged crime. Bunn Aff. ¶ 18, attached as Ex. 24 to Wotorson Aff.

On March 16, 2010, Bunn filed this lawsuit, claiming that the City failed to respond to his complaint about Crocco because Bunn is a resident of Tubman Terrace, a public housing project in Poughkeepsie, and that this failure deprived him of the equal protection of the laws under the Fourteenth Amendment. Cmplt. ¶¶ 6.l, 7, 12 (Dkt. 1). Bunn also claims that the City's inattention to the complaints of Tubman Terrace residents constitutes a custom, policy, or practice. Id. at ¶ 7. Bunn further alleges that the City's failure to protect him pursuant to the order of protection deprived him of his due process rights under the Fourteenth Amendment. Id. at ¶¶ 10, 14. Following discovery, defendants moved for summary judgment on December 16, 2011. On February 24, 2012, after numerous extensions, plaintiff served papers in opposition. On March 16, 2012, defendants served a reply.

Defendants' motion argues that: (1) Bunn has failed to adduce evidence that residents of Tubman Terrace are afforded any less police protection than the general public; (2) even if Bunn had shown such treatment, a state's failure to protect an individual against private violence is not a due process violation, absent exceptional circumstances not present here, and that, in any event, Bunn's claim fails for the independent reason that defendants' failure to afford police protection does not shock the conscience; (3) Bunn has failed to adduce evidence of an official policy or custom sufficient to ascribe liability to the City under Monell v. Dept. of Soc. Servs.., 436 U.S. 658 (1978); (4) even if Bunn had made out these claims, defendants would be entitled to qualified immunity.

Plaintiff's opposition argues that (1) material facts are disputed as to plaintiff's claims; (2) Bunn has sufficiently pled a Monell claim; and (3) defendants are not entitled to qualified immunity. That submission also attaches an affidavit from Bunn which deviates significantly from his prior deposition testimony in this matter.

Defendants' reply disputes the reliability of Bunn's affidavit, which, defendants correctly observe, benefits from a number of recollections seemingly refreshed by his adversary's summary judgment motion. The reply also reiterates defendants' position that Bunn has not met his burden to support the claims in his complaint with any evidence.*fn2

II.Discussion

A.Summary Judgment Standard

Summary judgment may be granted only where the submissions, taken together, "show [] that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The movant bears the burden of demonstrating the absence of a material factual question; in making this determination, the court must view all facts "in the light most favorable" to the non-movant. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); see also Holcomb v. Iona Coll., 521 F.3d 130, 132 (2d Cir. 2008). "A party may not rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment," because "conclusory allegations or denials cannot by themselves create a genuine issue of material fact where none would otherwise exist." Hicks v. Baines, 593 F.3d 159, 166 (2d Cir. 2010) (citation omitted). Only disputes over "facts that might affect the outcome of the suit under the governing law" will preclude a grant of summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

B.Bunn's Equal Protection Claim

Bunn claims that defendants' failure to protect him (and other Tubman Terrace residents) pursuant to the order of protection deprived him of the equal protection of the law. "The Equal Protection Clause of the Fourteenth Amendment guarantees 'a right to be free from invidious discrimination in statutory classifications and other government activity.'" Laupot v. City of New York, No. 01-cv-3294, 2002 U.S. Dist. LEXIS 912, at *4--5 (S.D.N.Y. Jan. 18, 2002) (quoting Harris v. McRae, 448 U.S. 297, 322 (1980)). "The Clause is 'essentially a direction that all persons similarly situated ...


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