The opinion of the court was delivered by: Norman A. Mordue, U.S. District Judge
MEMORANDUM-DECISION AND ORDER
The present case is one arising under the auspices of 42 U.S.C. § 1983. This is the second lawsuit plaintiff has brought against these defendants in this Court. The first involved a physical altercation in June 2008 that occurred after an election involving Village officials. In that case, plaintiff was involved in a brawl with defendant Conley who is the Police Chief of the defendant Village, the Mayor of the Village of Frankfort and other Village officials. He sued these defendants and the Village itself pursuant to 42 U.S.C. § 1983 alleging violation of his federal and constitutional rights. By Memorandum-Decision and Order dated January 24, 2012, this Court granted summary judgment to the defendant Village but denied summary judgment to defendant Conley. In this case, plaintiff alleges that Conley threatened and assaulted him while he was at a convenience store buying coffee. Plaintiff also asserts that he was placed under false arrest. Defendants move for summary judgment dismissing the complaint. Plaintiff opposes defendants' motion.
II. FACTUAL AND PROCEDURAL BACKGROUND
On May 20, 2009, plaintiff, Harold Griffin, left his home at approximately 3:00 p.m. to go to Stewarts Shops in Frankfort, New York to get a cup of coffee. Plaintiff and defendant Conley both arrived at Stewarts at approximately the same time. According to plaintiff, he opened the door to enter the shop and observed Conley standing to his left behind the glass door. Plaintiff said that he then said "Go ahead sir," and held the door for Conley while Conley walked around his back into the store. Conley testified that as he was walking toward the door of the shop, plaintiff walked very fast to get there before him and as he opened the door with both hands, he "flung it back" at Conley and "tried to hit" Conley with it. Conley said that plaintiff flung the door so hard that he had to move out of the way and as he backed away the door hit the building and "shot back" at plaintiff "he had to catch it with both of his hands."
Plaintiff said he then walked into the shop behind defendant Conley and both men walked straight to the coffee counter where there were four or five coffee pots. According to plaintiff, while the men where standing side by side attending to or pouring their coffee, defendant Conley said to plaintiff in a normal tone of voice that when he was "off duty," they were "going to get together." In response to this comment, plaintiff told Conley that if he had something to say, he should "say it loud enough so everybody in the store could hear him." Plaintiff stated that Conley replied that he had "not threaten[ed]" him. Plaintiff said he announced in the shop "I didn't say you did threaten me. I said, be a man and repeat what you said to me so everybody in the store can hear you." Plaintiff asserted that he then paid for his coffee and attempted to leave the store but Conley blocked him from exiting and told him he was under arrest. Plaintiff denied that he used any vulgarities or foul language up to this point in his confrontation with defendant Conley.
According to Conley, he saw plaintiff approach him with "his fist clenched" while he was fixing his coffee and he thought plaintiff was going to attack him. Conley said he asked plaintiff what "his problem" was. Conley testified that plaintiff immediately started yelling "Did you hear that? Did you hear that? He threatened me." Conley said plaintiff was "screaming at the top of his lungs to all the patrons and everybody that was in the store." Conley stated that he told plaintiff "Harold, I didn't threaten you. All I asked you is what your problem is. You tried to hit me with the door." Conley said plaintiff said "Fuck you" a "couple of times" and "go fuck yourself." Conley said he told plaintiff to back away and stop using vulgar and profane language in front of the other patrons or he was going to be arrested for disorderly conduct. One of the other patrons in the store yelled "Give him hell Harold." Although Conley said that plaintiff did back away from him, he did not stop swearing.
It is undisputed between the parties that on May 20, 2009, at approximately 3:00 p.m. there were other patrons in Stewarts, including Barbara Hight, Jimmy Juliano and employee, Kristie Rabbitt. Plaintiff also testified that at the time of the incident there were "a lot"of children in the shop although another witness recalled only seeing "two little girls." In response to defendant Conley telling plaintiff he was under arrest, plaintiff responded by swearing. Plaintiff acknowledged he was "sure" he used "the 'F' word," and told Conley he was not going with him. Indeed, plaintiff said he told Conley that he would "go with any cop in Herkimer County, but [he] was not walking out of Stewart's with [Conley.]" Thereafter, however, plaintiff told Conley that he would wait for the state police when asked to leave the store with Conley.
According to plaintiff, Conley then went outside and made a telephone call but blocked the door so that plaintiff could not leave the store. Plaintiff said that occasionally while Conley was outside, he would open the door and tell plaintiff to come outside because he was under arrest and plaintiff would tell him he was waiting for the state police. Plaintiff acknowledges using vulgarities in responding to Conley during these exchanges. Plaintiff called his boss and his wife. Plaintiff's wife arrived at the shop just moments later along with another Village police officer named Ameduri who "bumped" plaintiff with his chest and told him he was "fucking under arrest." Plaintiff told him to "turn [his] ass around and walk right back out that door because [he's] waiting for the state police." Plaintiff said that Ameduri then left the shop.
Moments later, both Conley and Ameduri came back in the store. Plaintiff said that Conley told him to put his coffee down but he refused to do so because he said he was not going to be arrested by Conley. Plaintiff said he was holding his coffee cup with both hands and the palm of one hand over the top of the cup. According to plaintiff, defendant Conley reached in, grabbed the top of his hand, squeezed his hand and his coffee went everywhere. Conley then directed Ameduri to pepper spray plaintiff. Ameduri then pepper sprayed plaintiff in his face, neck and shoulder area. Plaintiff believes he was pepper sprayed for about 20 seconds and alleges that Ameduri acted like a "wild man" with the pepper spray. To wit, plaintiff avers that at one point when he bent over the counter of store to avoid being sprayed, Ameduri ran from in front of the counter to behind it to continue spraying him. Plaintiff asserts that Ameduri did not stop spraying him until defendant Conley told him to stop. After the pepper spraying ceased, plaintiff said that both Conley and Ameduri left the shop.
Defendant Conley and Officer Ameduri recalled this part of incident differently. Accordingly to Conley, he and Ameduri entered the store to place plaintiff under arrest. Conley directed plaintiff to put his coffee down a couple of times and he refused. Finally, Conley said he reached for the coffee and plaintiff threw it on his left leg. Conley said he knocked the rest of the coffee out of plaintiff's hand and attempted to place him in hand restraints, but plaintiff started elbowing him. Officer Ameduri told plaintiff to stop resisting, but he continued to "flail his arms and elbow [the officers] as they were trying to put the handcuffs on him." Conley said he then instructed Ameduri to pepper spray plaintiff.
Moments later, they returned and they parties continued exchanging vulgar language until a Town of Franklin Police Officer named Hajec arrived at the store. After speaking with the officers and plaintiff, Hajec told plaintiff that he was going to take him into custody. Plaintiff agreed as long as he would not be handcuffed and left alone with Conley and Ameduri. Hajec arrested plaintiff and turned him over to the state police. Plaintiff was charged with Harassment in the Second Degree, Disorderly Conduct and Resisting Arrest. The Court notes that in his deposition testimony, Officer Ameduri testified that he was out on disability from the Village of Frankfort Police Department because he alleges that was "assaulted" by defendant Conley. Officer Ameduri attributes this assault to the fact that Conley did not want to acknowledge that he ordered Ameduri to take certain statements out of his supporting arrest deposition of plaintiff. Specifically, Ameduri said that Conley ordered him to take out the statement "Sam, pepper spray him" out of the deposition to make it appear that pepper spray was used to control the subject, not at Conley's direction. Ameduri also testified that within minutes of completing his deposition he asked Conley why plaintiff had been so upset and acting out. According to Ameduri, Conley said "Because I got him going . . . I whispered in his ear at the coffee station . . . when I'm off duty, me and you are gonna go."
Summary judgment is appropriate when there is no genuine issue with regard to any material fact, and the moving party is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Stated otherwise, summary judgment is appropriate "[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party[.]" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). When deciding a summary judgment motion, the Court must "resolve all ...