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Piper v. City of Elmira

United States District Court, W.D. New York

March 28, 2014

JAMES PIPER, et al., Plaintiffs,
CITY OF ELMIRA, et al., Defendants

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[Copyrighted Material Omitted]

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For James Piper, Joseph Piper, Carol Piper, Donald Piper, Plaintiffs: Kevin K. McKain, LEAD ATTORNEY, Rochester, NY.

For City of Elmira, Elmira City Police Department, Scott Drake, III, Individually, Michael Marrone, Individually, Paul Mustico, Individually, John Perrigo, Individually, Benjamin Buck, Individually, Anthony Alvarez, Individually, Michael Suey, Individually, Kristen Thorne, Individually, Alfred Chandanais, Individually, William Solt, III, Individually, Defendants: Bryan J. Maggs, LEAD ATTORNEY, Hiscock & Barclay LLP, Elmira, NY.


MARIAN W. PAYSON, United States Magistrate Judge.

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James Piper, Joseph Piper, Carol Piper and Donald Piper (collectively, " plaintiffs" ) have initiated this action against the City of Elmira (the " City" ), its police department and the following individual police officers: Scott Drake, III (" Drake" ), Michael Marrone (" Marrone" ), Paul Mustico (" Mustico" ), John Perrigo (" Perrigo" ), Benjamin Buck (" Buck" ), Michael Suey (" Suey" ), Kristen Thorne (" Thorne" ), Alfred Chandanais (" Chandanais" ), Anthony Alvernaz[1] (" Alvernaz" ) and William Solt, III (" Solt" ). (Docket # 1). Plaintiffs have asserted constitutional

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claims under 42 U.S.C. § 1983 and state law claims arising from events on January 1, 2009, that resulted in Joseph Piper's arrest.

Pursuant to 28 U.S.C. § 636(c), the parties have consented to have a United States magistrate judge conduct all further proceedings in this case, including the entry of final judgment. (Docket # 8). Currently before the Court is defendants' motion for summary judgment. (Docket # 62). For the reasons discussed below, defendants' motion is granted in part and denied in part.

Defendants' Motion for Summary Judgment

Defendants seek summary judgment dismissing the complaint in its entirety. First, defendants contend that Joseph Piper's false arrest claim asserted in the seventh cause of action is barred by his conviction for resisting arrest. (Docket # 63-27 at 2-3). Defendants further argue that the claim is time-barred in any event, as are plaintiffs' other state law intentional tort claims asserted in the first and fifth causes of action. ( Id. at 3-4). In addition, defendants maintain that they are entitled to judgment on the negligent supervision and training claims against the City, the Elmira Police Department and Drake asserted in the fourth cause of action because plaintiffs have failed to establish the existence of any municipal policy or practice. ( Id. at 9-10).

Defendants also contend that they are entitled to qualified immunity on plaintiffs' excessive use of force claims asserted in the second and sixth causes of action on the grounds that the force used by the officers was reasonable under the circumstances. ( Id. at 4-7). Finally, defendants urge dismissal of the failure to intervene claim alleged in the third cause of action, contending that plaintiffs are unable to raise a triable issue of fact that any individual defendant had actual knowledge that excessive force was used by any of the other officers that evening. ( Id. at 8).

Plaintiffs maintain that genuine issues of material fact preclude summary judgment. (Docket # 65). With respect to the second and sixth causes of action, plaintiffs argue that factual disputes exist regarding the circumstances confronting the officers and that those disputes prevent a finding that the officers' conduct was reasonable under the circumstances. ( Id. at 4). Further, plaintiffs contend that the force used by the officers was excessive and unreasonable and that they suffered resulting emotional distress. ( Id. at 5). For the same reasons, plaintiffs assert that the third cause of action for failure to intervene should not be dismissed. ( Id. at 6-7).

A. Factual Background

The following facts are undisputed except where otherwise noted.[2] Beginning on December 31, 2008 and continuing into the early morning hours of January 1,

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2009, approximately twenty to thirty individuals attended a party at 317 East Miller Street, Elmira, New York. (Docket ## 62-1 at ¶ ¶ 1-2; 65-11 at ¶ ¶ 1-3). Plaintiffs lived next door at 319 East Miller Street. (Docket # 62-1 at ¶ 3). Many, but not all, of the attendees consumed alcohol, and some of them were under twenty-one. ( Id. at ¶ 7; Docket # 65-11 at ¶ 2). Joseph and Donald Piper attended the party; their parents, Carol and James, were at their residence next door. (Docket # 62-1 at ¶ ¶ 2-3). Joseph Piper, who was twenty at the time, consumed approximately six beers during the two hours preceding the officers' arrival that evening. ( Id. at ¶ 4).

At some point during the evening, various of the partygoers were involved in an altercation with individuals attending an event at a house across the street. (Docket ## 62-1 at ¶ 5; 65-11 at ¶ ¶ 5-8). Plaintiffs contend that the altercation was a " verbal, nonviolent argument" involving approximately ten people from the party at 317 East Miller Street. (Docket # 65-11 at ¶ ¶ 5-6). According to plaintiffs, Joseph Piper was helpful in defusing the argument, and the incident concluded before the police officers arrived. ( Id. at ¶ ¶ 7-8, 10). Plaintiffs allege that the police arrived without lights or sirens activated and, at the time of their arrival, no dispute was occurring inside or outside of 317 East Miller Street. ( Id. at ¶ ¶ 9-11).

According to defendants, the altercation in the street was a " heated confrontation" involving approximately twenty to thirty individuals. (Docket # 62-1 at ¶ 5). Defendants contend that witnesses described the scene as " chaotic" and " frenzied" and identified Joseph Piper as an " instigating figure" in the altercation. ( Id. at ¶ ¶ 15-18). When the officers arrived on the scene, many of the individuals who had been outside went inside 317 East Miller Street. ( Id. at ¶ 6).

All parties agree that some of the officers entered 317 East Miller Street through the side door with the consent of the owner. ( Id. at ¶ ¶ 7, 31; Docket # 65-11 at ¶ ¶ 12-13). Plaintiffs characterize the occupants of 317 East Miller Street as calm.[3] (Docket # 65-11 at ¶ ¶ 11, 20). Defendants allege that when they entered the house, they encountered approximately twenty-four young people, most of whom appeared to have consumed alcohol that evening and some of whom were " confrontational" with the officers. (Docket # 62-1 at ¶ ¶ 7, 8, 42). The officers began to investigate the allegations of the street fight, as well as the possibility of underage drinking. ( Id. at ¶ 31).

1. Joseph Piper

The parties agree that Joseph Piper (" Joseph" ) encountered several officers on the staircase between the kitchen and the basement of the residence. (Docket ## 62-1 ¶ 10; 65-11 at ¶ 23). The staircase had a landing halfway between the basement and the kitchen that was connected to a door that opened to the driveway located on the side of the house. ( Id.). The parties disagree about what happened on the staircase.

According to defendants, Officers Marrone and Alvernaz were on or near the landing discussing whether they should break up the party by instructing the attendees to leave. (Docket # 62-1 at

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¶ ¶ 43-44 and Defendant's Exhibit (" Def. Ex." ) H at 65-71, 105-107 ). At that time, an individual named Leslieann Corter attempted to enter the house through the side door leading to the landing. ( Id.). Alvernaz testified that he directed her not to come into the house, but to wait outside because everyone would soon be leaving. ( Id.). According to defendants, as Alvernaz was closing the door, Joseph Piper came down the stairs, bumped into Alvernaz's back, told Corter that she did not need to heed the officer's instructions and attempted to force open the door and pull Corter into the residence. ( Id.). According to Alvernaz, the door, which opened inward onto the landing, struck him. ( Id.). At that point, Alvernaz decided to arrest Joseph. ( Id.).

Defendants allege that Alvernaz turned around, grabbed Joseph's arm and attempted to take him to the ground in order to arrest him. (Docket # 62-1 at ¶ 45 and Def. Ex. H at 18, 74-75, 107-09). Alvernaz was successful in forcing Joseph into a face-down position on the staircase but, despite assistance from Marrone, was unable to place him in handcuffs. ( Id.). According to defendants, Joseph was struggling by " throw[ing] his elbows," " flailing" his arm, " violently" thrashing his body and tensing his muscles. ( Id.). At that point, Officer Perrigo, who had been in the kitchen, came down the stairs to assist Marrone and Alvernaz. (Docket # 62-1 at ¶ ¶ 11, 48 and Def. Ex. H at 18-21). Perrigo deployed his taser three times to " drive stun" Joseph into submission. ( Id.). At that point, Joseph was handcuffed and escorted by Marrone out the side door of the residence and into a police vehicle. (Docket # 62-1 at ¶ ¶ 48, 53).

Plaintiffs allege that Joseph approached the landing in order to open the door for an individual named Katrina Cramner. (Docket # 65-11 at ¶ ¶ 23-25 and Def. Ex. K at 47-48, 60-61). Joseph contends that it was Marrone, not Alvernaz, who refused to let Cramner enter the premises. ( Id.). Plaintiffs deny that Joseph struck Marrone with the door. (Docket # 65-11 at ¶ 17). According to them, as Marrone attempted to shut the door, Joseph stepped back to allow Marrone to close the door. ( Id. at ¶ 25). As Joseph stepped back, Alvernaz grabbed him and forced him to the stairs. (Docket # 65-11 at ¶ ¶ 26-31 and Def. Ex. K at 47-48, 60-61). Plaintiffs maintain that Joseph did not resist arrest and attempted to comply with the officers' instructions to place his hands behind his back, but was unable to do so because his hands were pinned underneath his body. ( Id.). According to plaintiffs, when Perrigo deployed the taser, Joseph was already pinned to the stairs, with both legs and one of his hands secured by the officers. (Docket # 65-11 at ¶ ¶ 32-35 and Plaintiff's Exhibit (" Pl. Ex." ) F at 91, 95-96).

Plaintiffs contend that as Marrone escorted Joseph from the residence, Marrone's faster pace caused Joseph to slip and fall on the pavement and he dragged Joseph the rest of the way to the police vehicle. (Docket # 65-11 at ¶ ¶ 35-38 and Def. Ex. K at 66). Defendants do not dispute that Joseph fell -- either because he slipped on the ice or continued to struggle -- and was dragged to the police car. (Docket # 62-1 at ¶ ¶ 53-54).

Joseph maintains that he sustained physical injuries, including bumps and bruises on his chest and back and a sprained ankle, as a result of the incident. (Docket # 65-11 at ¶ ¶ 42-43). In addition, Joseph alleges that he suffered emotional distress that adversely affected his relationship with his parents. ( Id. at ¶ 41).

Joseph Piper was convicted of resisting arrest. (Docket # 62-1 at ¶ 46 and Def. Ex. PP).

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2. Donald Piper

Defendants' Statement of Material Facts contains the following factual assertions with respect to Donald Piper (" Donald" ). Donald was in the basement of 317 East Miller Street when the officers arrived at the residence. (Docket # 62-1 at ¶ 30). He and other partygoers were instructed not to leave until the officers checked their identifications and completed their inquiry. ( Id. at ¶ 31). Despite alleging in the complaint that he was pushed down the basement stairs and fell on his back, Donald testified that he was pushed backwards by an officer after asking a second time if he could leave, but was caught by another officer. ( Id. at ¶ 32 and Def. Exs. E at 9, M at 17-29). Donald walked down the remaining steps into the basement where he was instructed by an unidentified officer to place his hands on a sink and to spread his legs. (Docket # 62-1 at ¶ 34 and Def. Ex. M at 25-28). The officer stated that Donald's legs were not far enough apart and kicked his legs farther apart. ( Id.). The officer then searched Donald by " pulling on [his] pants and shaking them." ( Id.). Donald testified that he was not physically injured in any way as a result of the incident and he did not receive treatment for any alleged emotional distress. ( Id.; Docket # 62-1 at ¶ 36).

Defendants' Statement of Material Facts also asserts that the record does not indicate " which individual police officer or police officers committed the alleged torts against Donald Piper." (Docket # 62-1 at ΒΆ 37). Plaintiffs' Counter-Statement of Material Facts does not respond to or controvert that assertion; in fact, it ...

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