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Guillermo T. Ortiz and Christopher Abreu v. the Village of Monticello

November 2, 2012

GUILLERMO T. ORTIZ AND CHRISTOPHER ABREU, PLAINTIFFS,
v.
THE VILLAGE OF MONTICELLO, NEW YORK, COUNTY OF SULLIVAN, NEW YORK, DOUG SOLOMON, MARK JOHNSTONE, AND DONALD BUCKNER
DEFENDANTS.



The opinion of the court was delivered by: Edgardo Ramos, U.S.D.J.

OPINION AND ORDER

Defendants Sullivan County, New York ("Sullivan County" or the "County") and Donald Buckner ("Detective Buckner" or "Buckner") (collectively, "County Defendants"), and Defendants Village of Monticello, New York ("Village of Monticello" or the "Village"), Doug Solomon ("Chief Solomon" or "Solomon") and Mark Johnstone ("Sergeant Johnstone" or "Johnstone") (collectively, "Village Defendants"), bring Motions for Summary Judgment seeking dismissal of Plaintiffs' First Amended Complaint in its entirety pursuant to Federal Rule of Civil Procedure 56. Docs. 46, 52.*fn1 For the reasons set forth below, the Court GRANTS judgment to Defendants on the federal claims against them, declines to retain supplemental jurisdiction over the state law claims and dismisses Defendants' cross-claims.

I. Background

A. Facts

The following facts are undisputed except where otherwise noted.*fn2

On November 29, 2005, at approximately ten-thirty in the morning, Chief Solomon and Sergeant Johnstone responded to Tyla Walker's ("Walker") home on Hillside Avenue, in Monticello, New York, to investigate complaints of a domestic dispute between Walker and Renando Torres ("Torres"). Cnty. Defs.' 56.1 Stmt. ¶ 1, Doc. 45; Waye Decl. Ex. F ("Solomon Dep.") at 9.*fn3 Solomon and Johnstone were familiar with Torres, a Hispanic male in his twenties, as he had had various contacts with police in the past. Solomon Dep. at 5-7; Piscitelli Decl. Ex. N ("Johnstone Dep.") at 4-5;*fn4 Piscitelli Decl. Ex. P ("Domestic Incident Report") at 7. At Walker's home, her mother informed Solomon that she believed Torres had a gun hidden in her daughter's apartment. However, when Solomon questioned Walker about the weapon, she refused to answer. Cnty. Defs.' 56.1 Stmt. ¶ 3. After spending approximately fifteen minutes at Walker's apartment, Solomon and Johnstone headed back to the police station. Solomon Dep. at12.

While en route, Solomon and Johnstone observed police vehicles with lights and sirens heading in the direction from which they had come. Solomon learned from the police radio that Torres was alleged to have pointed a gun at Walker. Vill. Defs.' 56.1 Stmt. ¶ 1, Doc. 55. Solomon and Johnstone immediately returned to Walker's home, whereupon they learned that Walker's father had called police to report that Torres had pointed a gun at his daughter. Solomon Dep. at 14. Furthermore, they confirmed*fn5 that Torres did have a gun and he had placed the gun in Walker's mouth. Id. at 16; Johnstone Dep. at 9. *fn6

After their second visit to Walker's residence, Solomon and Johnstone responded separately to Torres' home, which they believed to be located at an apartment complex on 100 Wood Avenue, in Monticello, New York. Solomon Dep. at 18; Johnstone Dep. at 10-11.*fn7

Although the exact timing is unknown, at some point Torres' apartment was identified as Apartment # 6. Id. at 18; Johnstone Dep. at 11. Officers from the Village police department, County officers and state troopers went to the apartment complex as well. Solomon Dep. at 18.

Upon arriving at the Wood Avenue apartment complex, Solomon obtained Torres' cellular telephone number from an officer at the scene and telephoned Torres from his police vehicle. Solomon Dep. at 19-20. Solomon's vehicle was parked around the corner from Apartment # 6 and he could not see the apartment. Id. at 20. Over the telephone, Solomon explained to Torres that the police were at his home and they wanted him to surrender. Id.

Torres replied that he was in a car with another male who was driving him to his attorney's office, but Solomon did not credit the story and believed that Torres was inside his apartment. Id. at 21, 27. Solomon made two or three telephone calls to Torres from his vehicle, and at one point spoke to Torres' driving companion. Id. Sometime during these calls, Solomon was informed that officers looking through a window had seen two Hispanic males in their early twenties inside Apartment # 6. Id. at 22-23.

Upon arriving at the Wood Avenue apartment complex, Sergeant Johnstone positioned himself near the doorway of the building housing Apartment # 6. Johnstone Dep. at 14-15. He too was under the impression that Torres was inside the apartment. Id. at 14.

In the meantime, the Village police department's efforts to locate Torres were broadcast over the police radio. Torres was identified as a Hispanic male who was armed, had been involved in a domestic dispute, and was being sought at an apartment located at Wood Avenue in Monticello, New York. Cnty. Defs.' 56.1 Stmt. ¶ 8. Detective Buckner, employed by the County's Sheriff's patrol, overheard the radio broadcast and proceeded to the apartments to assist his fellow officers. Id. ¶ 10. It was common practice for police officers from local jurisdictions to automatically respond to a police radio report when the crime involved a gun. Vill. Defs.' 56.1 Stmt. ¶ 2.

Upon arriving at the apartment complex, Buckner was advised by Village police that the suspect's name was Torres and that he was believed to be inside Apartment # 6. Cnty. Defs.'

56.1 Stmt. ¶ 15. Buckner was also told that police were seeking to arrest Torres. Waye Decl. Ex. I ("Buckner Aff.") ¶ 6. Prior to this date, there is no evidence to suggest that Buckner knew or had ever met Torres. Cnty. Defs.' 56.1 Stmt. ¶ 12. Buckner, along with Johnstone and other officers, took positions near the door of the building housing Apartment # 6. Waye Decl. Ex. E ("Buckner Dep.") at 11; Buckner Aff. ¶ 7. From his vantage point, Buckner could not see inside Apartment # 6, but he was advised by Village police that there appeared to be two Hispanic subjects inside the apartment. Buckner Dep. at 10; Buckner Aff. ¶ 9.

In actuality, Torres did not reside in Apartment # 6, but in Apartment # 7. Waye Decl. Ex. G ("Abreu Dep.") at 43. Apartment # 6 was inhabited by Plaintiff Christopher Abreu ("Abreu") and his parents, and on that day, Plaintiff Guillermo T. Ortiz ("Ortiz") was visiting Abreu at the apartment. Abreu Dep. at 5, 15-16. Abreu and Ortiz (collectively, "Plaintiffs") are Hispanic males in their twenties. Waye Decl. Ex. H ("Ortiz Dep.") at 6; Abreu Dep. at 6, 30.

After this point in the narrative, the parties strongly contest each other's version of events and the Court presents the version of events most favorable to Plaintiffs. According to Plaintiff Abreu, when he opened the door to the building which housed his apartment, Apartment # 6, police officers came rushing out in front of him, while pointing their weapons, and told him to "get the fuck out of the building, get on the floor, [and] put your arms out in the air." Abreu Dep. at 22. Abreu complied and put his hands in the air. Id. at 59. He was then turned around, thrown to the ground, handcuffed and a gun was placed on his back and near his face. Id. at 24, 60. He was then picked up by his hands and forced against a barbed wire fence. Id. at 25. Abreu alleges that Solomon was present during these events, as he was on the scene from the moment Abreu exited his building. Id. at 29-31. Relatedly, at some point, Abreu was escorted past Sergeant Johnstone, who recognized that he was not suspect Torres but did not immediately communicate this knowledge to the other officers. Johnstone Dep. at 18. Abreu does not know the identity of those who allegedly injured him and it is undisputed that neither Solomon nor Johnstone touched Abreu. Abreu Dep. at 24-25; Vill. Defs.' 56.1 Stmt. ¶ 12-13.

After Abreu was forced against the barbed wire fence, officers entered his apartment building, encountered Ortiz and pointed guns at his face. Abreu Dep. at 26-27; Ortiz Dep. at 42. Ortiz testified hearing Solomon say to police, "[L]et him come out on his own." Ortiz Dep. at

42. Police then backed out of the apartment and Ortiz came outside and said to them, "I'm not dangerous, I don't have any weapons." Id. at 43. He was told to "shut the fuck up, get the fuck on the floor." Id. Ortiz next told officers, "I'm turning around slowly, I'm putting my hands on the wall," to which the officers said, "[N]o, don't turn around," and ordered him to get on the ground. Id. at 44. In response, Ortiz began talking to the police, saying "[O]fficer please, with all due respect," and suddenly Buckner grabbed Ortiz's right hand by the wrist, twisted it behind his back and slammed him down to the ground. Id. at 44.*fn8 He then "saw a shotgun get cocked, and [the police] put pressure on [his] back and they put the shotgun in [his] face and they said shut the fuck up." Id. at 45. After being patted down, Ortiz was immediately lifted to the ground and brought to where Abreu was being held. Id. at 47. As soon as Ortiz and Abreu were brought together, police apologized to them for the incident and Plaintiffs allege that both Solomon and Buckner stated, "[T]hrough the window you appeared to be Hispanic." Id. at 47-48; Abreu Dep. at 30.*fn9

Plaintiffs subsequently learned that police had actually been searching for suspect Torres. Abreu Dep. at 32. Abreu described Torres as having long hair and being in his mid-to-late twenties. Id. at 39-40. Abreu also alleged that police have been to Torres' apartment "[n]umerous times." Id. at 33.

As a result of this encounter with police, Abreu claims that he sustained a few scratches for which he did not receive medical treatment. Id. at 35. Ortiz, on the other hand, testified that the incident produced migraine headaches, an injury to the rotator cuff of his right shoulder that required surgery and post-traumatic stress disorder. Ortiz Dep. at 8, 16, 23, 61-62; Isseks Decl. Ex. 1 ("Medical Records of David Mack, M.D.") at 1-18.*fn10

According to the undisputed facts, suspect Torres surrendered to police the following day, was arrested and charged with six offenses, including menacing in the second degree, subdivision 1. Vill. Police Dep't Case Rpt. at 1-5; Piscitelli Decl. Ex. P ("Felony Complaints") at 11-16.

B. Procedural History

The First Amended Complaint filed by Plaintiffs on April 11, 2007 sets forth a civil rights action pursuant to 42 U.S.C. § 1983 ("§ 1983") against the Village and County (collectively, "Municipal Defendants") and Solomon, individually and as Chief of the Village of Monticello Police Department, Johnstone, individually and as a sergeant with the Village of Monticello Police Department, and Buckner, individually and as a detective with the Sullivan County Sheriff's Department (collectively, "the Officers"), alleging probable cause, due process, excessive force and equal protection violations pursuant to the Fourth and Fourteenth Amendments, and state law claims for negligence, false imprisonment, assault and ...


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