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Rivera v. City of Rochester

United States District Court, W.D. New York

January 29, 2015



FRANK P. GERACI, Jr., District Judge.


Pro se Plaintiff John Banchs Rivera brings this action under 42 U.S.C. ยง 1983, alleging that the Defendants violated his civil rights. Specifically, Plaintiff alleges causes of action for false arrest, false imprisonment, malicious prosecution, excessive force and retaliation that relate to a search warrant that was executed at his residence on April 3, 2009, and the resultant state court prosecution that followed. The Defendants are three then-employees of the Rochester Police Department, Investigator Freeman Shaw, Officer Martin Logan, and Sergeant Robert Mattick. The Plaintiff also lists as Defendants the City of Rochester, as well as former Chief of Police James Sheppard. Presently before the Court are the Defendants' Motion for Summary Judgment (Dkt. ##57, 62), and the Plaintiff's Motion regarding a conflict of interest (Dkt. #65).


I. Conflict of Interest

Turning first to Plaintiff's Motion regarding a conflict of interest, Plaintiff argues that because a City of Rochester attorney is jointly representing the named Defendants, that each of those Defendants suffers from a conflict of interest. Plaintiff further requests that either (1) the Defendants be required to obtain separate counsel; (2) that their current attorney, John Campolito from the City of Rochester Corporation Counsel's Office, be disqualified; or that (3) the Defendants produce to the Plaintiff written waivers of any conflict of interest.

Joint representation is common in situations like this where the interests of certain parties are aligned, and there is nothing improper about that arrangement. The mere fact of joint representation does not raise the risk of trial taint when "an attorney represents two or more clients who are similarly situated with regard to a lawsuit." Felix v. Balkin, 49 F.Supp.2d 260, 270 (S.D.N.Y. 1999). In such a situation, "each client must reasonably expect that facts learned from one will be available in defense of the other[;]" indeed, "[w]ithout such a common basis, there cannot be a joint representation." Id. (citations omitted); see also Kempner v. Oppenheimer & Co., Inc., 662 F.Supp. 1271, 1277-78 (S.D.N.Y. 1987); Rosman v. Shapiro, 653 F.Supp. 1441, 1446 (S.D.N.Y. 1987)

The Supreme Court has further held that "permitting a single attorney to represent co-defendants, often referred to as joint representation, is not per se violative of constitutional guarantees of effective assistance of counsel. This principle recognizes that in some cases multiple defendants can appropriately be represented by one attorney; indeed, in some cases, certain advantages might accrue from joint representation... Joint representation is a means of insuring against reciprocal recrimination. A common defense often gives strength against a common attack." Holloway v. Arkansas, 435 U.S. 475, 482-483 (1978) (citation omitted).

There is nothing improper about Mr. Campolito's joint representation of the Defendants in this case. Moreover, there is no basis to disqualify Mr. Campolito, and the Plaintiff has no right to receive waivers from any of the Defendants. While the Defendants could elect to retain separate counsel, that is a matter solely within their purview. If any of the Defendants believe that they have an antagonistic defense from that of their co-Defendants, they must raise that with the Court, and appropriate action will be taken at that time. At this stage, there is simply no evidence to suggest that any conflict exists, and in fact, the parties' submissions demonstrate exactly the opposite, in that the Defendants all deny the Plaintiff's allegations, and are unified in their defense.

The second part of the Plaintiff's motion argues that because then-Sergeant Mattick is now a Court Security Officer ("CSO") for the United States Marshals Service and is assigned to the Rochester Federal Courthouse, he should essentially be placed on leave for the pendency of this action. I disagree.

While Plaintiff argues that he "fears in [sic] being harassed by Mr. Mattick's [sic] and his fellow officer friends, " such an allegation is completely speculative and wholly without support. Plaintiff offers no factual support for his claims, and the simple fact that Mattick is now employed in this courthouse provides no basis for the relief Plaintiff seeks.

Indeed, situations have arose before where current CSOs were involved in prior trials before this Court, and that can easily be handled. For example, during any trial of this matter, CSO Mattick would not be assigned to this Courtroom, nor would he be around any of the participants in this case in his current role as a CSO, which would alleviate any potential problem.

For all of the foregoing reasons, Plaintiff's applications regarding conflicts of interest (Dkt. #65) are denied in all respects.

II. Defendants' Motion for Summary Judgment

The standard for ruling on a summary judgment motion is well known. A party is entitled to summary judgment "if the movant shows that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(a). "[W]here the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the pleadings, depositions, answers to interrogatories, and admissions on file." Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986) (internal quotation marks omitted).

When considering a motion for summary judgment, all genuinely disputed facts must be resolved in favor of the non-moving party. Scott v. Harris, 550 U.S. 372, 380 (2007). In order to establish a material issue of fact, the non-movant need only provide "sufficient evidence supporting the claimed factual dispute" such that a "jury or judge [is required] to resolve the parties' differing versions of the truth at trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986) (quoting First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968)). Thus, the "purpose of summary judgment is to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.'" Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed.R.Civ.P. 56(e) advisory committee's note on 1963 amendments). If, after considering the evidence in ...

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