The opinion of the court was delivered by: Glenn T. Suddaby, United States District Judge
MEMORANDUM-DECISION and ORDER
Currently before the Court, in this civil rights action filed by Willie Danford ("Plaintiff") against the above-captioned individuals and municipalities ("Defendants") pursuant to 42 U.S.C. § 1983, is Defendants' motion for summary judgment. (Dkt. No. 18.) For the reasons set forth below, Defendants' motion is granted.
Generally, liberally construed, Plaintiff's Amended Complaint alleges
that, on or about April 22, 2007, at or near 500 Delaware Street in
Syracuse, New York, Defendants violated Plaintiff's following civil
rights in the following manner: (1) Defendant Officers violated his
rights under 42 U.S.C. § 1983 by falsely arresting him because he is
African American and was driving "a large SUV with chromed wheels in
an area of town targeted by police"; (2) Defendant Officers violated
his rights under the Fourth Amendment and 42 U.S.C. § 1983 by
unlawfully searching his vehicle because he is African American and
was driving "a large SUV with chromed wheels in an area of town
targeted by police"; and (3) Defendant City of Syracuse is liable as a
municipality because the violation(s) in question were caused by (a) a
municipal custom or policy of arresting individuals because they are
African American, present in a certain part of town and/or driving a
large SUV with chromed wheels, (b) failing to train its officers
regarding the type of vehicle stop and arrest in question, (c) being
deliberately indifferent to training its officers regarding that stop
and arrest, (d) failing to develop and review hiring and training
practices and policies to conform to constitutional standards, (e)
failing to review supervisory policies relating to citizen complaints,
and/or (f) failing to procedurally investigate citizen complaints.
(See generally Dkt. No. 11 [Plf.'s Amend. Compl.].)*fn1
Familiarity with the factual allegations supporting these claims in Plaintiff's Amended
Complaint is assumed in this Memorandum-Decision and Order, which is
intended primarily for review by the parties. (Id.)
B. Undisputed Material Facts
On October 31, 2011, in support of their motion, Defendants filed a Statement of Material Facts, containing specific citations to the record where each fact was established, in accordance with Local Rule 7.1(a)(3) of the Local Rules of Practice for this Court. (Dkt. No. 18, Attach. 1.)
On November 14, 2011 (the last day on which to file a response to Defendants' motion), Plaintiff filed an "Attorney Affidavit" in opposition to Defendants' motion. (Dkt. No. 20.) That affidavit neither constituted nor attached a response to Defendants' Statement of Material Facts. (Id.) For example, the affidavit did not admit or deny each of Defendants' factual assertions in matching numbered paragraphs supported by a specific citation to the record where the factual issue arises, as required by Local Rule 7.1(a)(3). (Id.)
The next day, a docket clerk from this Court contacted Plaintiff's counsel, and notified him that his response had omitted, inter alia, a response to Defendants' Statement of Material Facts. Plaintiff's counsel advised the docket clerk that he was aware of the omission, which was caused by the fact that he did not have enough time to prepare a response to Defendants' Statement of Material Facts. However, Plaintiff's counsel did not request an extension of time in which to rectify the omission.
Ordinarily, the Court might sua sponte scour any verified operative
pleading that the plaintiff had filed (which would have the force and
effect as an affidavit), in deciding whether or not the plaintiff has
effectively denied certain of the defendants' supported factual
assertions in their Statement of Material Facts. However, here,
Plaintiff has not personally verified his
Amended Complaint. (See generally Dkt. No. 11.)*fn2
Rather, his attorney has verified that Amended Complaint himself
pursuant to N.Y. C.P.L.R. § 3020(d)(3). (Dkt. No. 11, at 8.) Such a
verification does not automatically transform Plaintiff's Amended
Complaint into an affidavit for purposes of a motion for summary
judgment.*fn3 Rather, personal knowledge of the
affiant is required under such circumstances.*fn4
While Plaintiff's counsel claims second-hand knowledge of
the events in question, he does not claim personal knowledge of those
events. (Id.) Moreover, the Amended Complaint does not allege that
Plaintiff's counsel was present at the time of the events in question,
sufficient to confer on him personal knowledge of those events. (Dkt.
No. 11.) Indeed, if Plaintiff's counsel did possess such personal
knowledge, he would likely not be able to represent Plaintiff in this
action, under New York Rules of Professional Conduct.*fn5
As a result, the Court declines to sua sponte scour
Plaintiff's Amended Complaint in search for a genuine dispute of
material fact. In any event, even if the Court were to do so, the
Court would find that any such sworn allegations contained in it are
not sufficiently material to create a genuine dispute of material fact
with regard to the discrete facts asserted by Defendants in their
Statement of Material Facts. (Compare Dkt. No. 18, Attach. 1 with Dkt.
For all of these reasons, the Court deems admitted all of the facts set forth in Defendants' Statement of Material Facts. The most material of those facts are stated below.
On or about Sunday, April 22, 2007, at approximately 4:55 p.m., on Delaware Street in the City of Syracuse, Plaintiff was operating his 1994 Chevrolet Suburban and carrying his seventeen-year-old niece, Sheaona Elmora, in the passenger seat with the windows of the vehicle down and music playing inside. After seeing the lights of a City of Syracuse Police vehicle behind him, Plaintiff pulled his truck over.
City of Syracuse Police Officers John P. Fay and Fred Lamberton exited their patrol car. Plaintiff produced his driver's license, vehicle registration, and insurance card and handed them to one of the Officers. That Officer asked Plaintiff for his Social Security number and weight measurement. Plaintiff did not provide the information.
Officer Fay told Plaintiff to exit the truck and arrested him for violating Section 40-16(b) of the City of Syracuse Noise Control Ordinance. Officer Fay handcuffed Plaintiff at the rear of the truck, and placed Plaintiff in the rear of the patrol car.*fn6
Ms. Elmore exited the truck and moved to its rear, toward the Officer who had arrested and handcuffed Plaintiff. Officer Fred Lamberton stopped her advance and pushed her back, while she challenged the Officers regarding their arrest of Plaintiff. At this time, a crowd began to form around the scene.
The Officers subsequently removed Plaintiff from the patrol car, removed his handcuffs, returned his driver's license, vehicle registration, and insurance cards, issued him Appearance Ticket DR#07-219798 for a City Noise Ordinance violation, and told him where and when to go to court to appear.
Plaintiff responded to Appearance Ticket DR#07-219798, and appeared before City of Syracuse City Court Judge Langston C. McKinney on May 3, 2007. At that time, Plaintiff entered a plea of "not guilty" to the charges of having committed a violation of the City Noise Ordinance and traffic ticket charging Plaintiff with failing to produce proof of insurance.
Both cases were adjourned to May 24, 2007, for a non-jury trial, at which time the case was dismissed by Judge McKinney for failure of the People to prosecute, because neither Defendant Officer was subpoenaed to appear at that proceeding.
Familiarity with the remaining undisputed material facts of this action, as set forth in the Defendants' Rule 7.1 Statement, is assumed in this Decision and Order, which (again) is intended primarily for review by the parties. (Id.)
C. Defendants' Motion for Summary Judgment
Generally, in support of their motion for summary judgment, Defendants assert the following five arguments: (1) no admissible record evidence exists from which a rational fact finder could conclude that Defendant Officers arrested Plaintiff because he is African American and/or was present in a certain part of town and/or was driving a large SUV with chromed wheels; (2) no admissible record evidence exists from which a rational fact finder could conclude that Defendant City of Syracuse is subject to municipal liability under Monell v. Dep't of Social Servs., 436 U.S. 658 (1978), through any of the six ways alleged by Plaintiff in his Amended Complaint; (3) in the alternative, it is undisputed that Defendant Officers possessed probable cause to arrest Plaintiff under the circumstances, thus precluding his claim of false arrest as a matter of law; (4) in the alternative, no admissible record evidence exists from which a rational fact finder could conclude that Defendants searched Plaintiff's truck (or that they did so without cause), thus precluding his claim of wrongful search as a matter of law; and (5) in the alternative, it is undisputed that Defendant Officers are protected from liability as a matter of law by the doctrine of qualified immunity. (See generally Dkt. No. 18, Attach. 22 [Defs.' Memo. of Law].)
Generally, in Plaintiff's response to Defendants' motion for summary judgment, he submits an "attorney affidavit" setting forth various legal arguments. (See generally Dkt. No. 20.) Under the Local Rules of Practice for this Court, an affidavit must contain factual and procedural background that is relevant to the motion, and may not contain legal arguments.
N.D.N.Y. L.R. 7.1(a)(2).*fn7 Rather, legal arguments must be set forth in a memoranda of law.
N.D.N.Y. L.R. 7.1(a)(1). Here, Plaintiff failed to submit a memorandum of law, even after being advised of that failure by the Court's docket clerk on ...