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Saleh v. County of Erie

United States District Court, W.D. New York

April 10, 2015

MANSOOR SALEH, Plaintiff,
v.
COUNTY OF ERIE, ERIE COUNTY SHERIFF'S DEPARTMENT, CITY OF LACKAWANNA, CAPTAIN GREGORY SAVAGE, DEPUTY JORDAN GRABAR, DEPUTY WARREN HAWTHORN, DEPUTY ERIK KADERLI, DEPUTY WARREN LUICK, DEPUTY MATT NOECKER, DEPUTY SCOTT PIEL, DEPUTY DAN WALCZAK, DEPUTY GREGORY KENT, DEPUTY DAVID DELECKI, ROSANNE MYERS AS EXECUTRIX OF THE ESTATE OF DEPUTY DARYL DEMARI, OFFICER JEFFREY WELSH, OFFICER PHILIP FRATERRIGO, OFFICER AARON BRENNAN, OFFICER CHUCK JAWORSKI, OFFICER MARK PACKARD, Defendants.

DECISION AND ORDER

WILLIAM M. SKRETNY, Senior District Judge.

I. INTRODUCTION

In January of 2011, Mansoor Saleh (Plaintiff) was an overnight guest at a house that was subject to a search warrant executed by members of the Erie County Sheriff's Department and the Lackawanna City Police Department. Plaintiff was seized while the search warrant was executed and then later released without charges.

Plaintiff initiated this action in May 2012 asserting claims under 42 U.S.C. § 1983 of excessive force and violations of state law. Presently before this Court is the summary judgment motion of Defendants County of Erie; the Erie County Sheriff's Department (ECSD); ECSD Captain Gregory Savage; ECSD Deputies Jordan Graber, Warren Hawthorn, Erik Kaderli, Warren Luick, Matt Noecker, Scott Piel, Dan Walczak, Gregory Kent, and David Delecki; and Rosanne Myers as executrix of the estate of ECSD Deputy Daryl Demari (collectively the "County Defendants"). Also before this Court is the summary judgment motion of the City of Lackawanna and Lackawanna City Police Officers Jeffrey Welsh, Philip Fraterrigo, Aaron Brennan, Chuck Jaworski, and Mark Packard (collectively the "City Defendants"). For the following reasons, the County Defendants' motion is granted in part and denied in part, and the City Defendants' Motion is granted in its entirety.

II. BACKGROUND

On January 28, 2011, as part of a widespread narcotics investigation involving multiple law enforcement agencies, a search warrant was executed at a residence in the City of Lackawanna. (County Stmt. of Facts ¶14, Docket No. 35-2; City Stmt. of Facts ¶¶ 1-2, Docket No. 36-5.[1]) ECSD Deputies were assigned to enter the residence and secure all occupants therein. (Michel Aff. ¶¶ 7, 11, Docket No. 36-1.) The Lackawanna City Officers were assigned to the search team, which would enter after the residence had been secured. (Michel Aff. ¶¶ 8, 11.)

Plaintiff was an overnight guest at this residence and was asleep on a futon in the living room when the search warrant was executed. (Pl's Aff. ¶¶ 4-5, Docket No. 38-6.) Plaintiff alleges that he first woke up when he was lifted by several ECSD Deputies. (Pl's Aff. ¶ 5.) The ECSD Deputies allegedly slammed Plaintiff face-first onto the floor and then tightly zip tied his hands, causing his wrists to bleed. (Pl's Aff. ¶¶ 7, 9-10; Pl's Dep. at 31-33, 40, Docket No. 40-2.) The ECSD Deputies proceeded to strike, elbow, and kick him in the back, head, face, and jaw while one of the deputies used threatening, offensive language throughout the course of the encounter. (Pl's Aff. ¶¶ 9-13; Pl.'s Dep. at 19, 31-33, 36, 39-40.) Further, Plaintiff alleges that he felt gun rifles jabbing at him during the encounter. (Pl's Aff. ¶ 12.) Plaintiff maintains that he did not resist at any point, that he did not attempt to conceal his hands, and that he did not make a gun-like gesture at the ECSD Deputies. (Pl's Aff. ¶¶ 14-16.) As a result of the physical force used by the deputies, Plaintiff suffered numerous contusions, bruises, and abrasions. (Pl's Aff. ¶¶ 17, 23.)

Plaintiff remained zip tied as he was picked up from the floor by the ECSD Deputies and placed on the futon, where he remained seated during the search of the residence. (Pl's Dep. at 29; County Stmt. of Facts ¶ 27.) Plaintiff asserts that two Lackawanna City Officers entered the residence, but that they were not present until after the ECSD Deputies left the premises. (Pl's Dep. at 19-20, 34.) One of the Lackawanna City Officers removed the zip ties from Plaintiff's wrists when he asked to have them removed. (Pl's Dep. at 34.)

In contrast to Plaintiff's version of events, the ECSD Deputies assert that when they made their initial entry into the dark residence, Deputy Dan Walczak was the first to encounter Plaintiff sleeping on a futon in the living room area. (Walczak Aff. ¶ 6, Docket No. 35-3; see also Hawthorn Aff. ¶¶ 6-14; Noecker Aff. ¶¶ 7-15.) Deputy Walczak pointed his gun at Plaintiff and told Plaintiff to show his hands, which were concealed under a blanket. (Walczak Aff. ¶ 6.) In response, Plaintiff removed his hands from the blanket, pantomimed a shooting gesture with his thumb and forefinger at Deputy Walczak, then he placed his hands back under the blanket and turned to face the wall. (Walczak Aff. ¶ 7.) Deputy Daryl DeMari pulled the blanket off of Plaintiff and commanded him to get on the floor. (Walczak Aff. ¶ 8.) When Plaintiff ignored this command, Deputies Walczak and DeMari lifted him up from the futon and placed him face down on the floor. (Walczak Aff. ¶ 8.)

The ECSD Deputies repeatedly asked Plaintiff to show his hands, which were hidden under his abdominal region, to insure that he did not have a weapon or narcotics. (Walczak ¶ 9.) Plaintiff "continued to be combative and non-compliant by keeping his hands under his abdominal area" where the ECSD Deputies were unable to see them. (Walczak Aff. ¶ 10.) Deputy Walczak attempted to grab Plaintiff's hands and place them in a viewable position, but Plaintiff resisted. (Walczak Aff. ¶ 11.) Deputy DeMari placed his knee between Plaintiffs shoulder blades, which caused Plaintiff to release his hands. (Walczak Aff. ¶ 11.) Deputy Walczak then placed plastic restraints on Plaintiff's hands. (Walczak Aff. ¶ 12.) Plaintiff was picked up off the floor and seated on the futon while the remainder of the search was conducted. (Walczak Aff. ¶ 13.)

Plaintiff commenced this action in New York State Supreme Court, Erie County, in January 2012 alleging federal and state claims of excessive force, assault, battery, and negligent hiring, training, and supervision. Defendants removed the matter to this Court in May 2012.

III. DISCUSSION

"A motion for summary judgment may properly be granted... only where there is no genuine issue of material fact to be tried, and the facts as to which there is no such issue warrant the entry of judgment for the moving party as a matter of law." Kaytor v. Elec. Boat Corp., 609 F.3d 537, 545 (2d Cir. 2010). A court's function on a summary judgment motion "is not to resolve disputed questions of fact but only to determine whether, as to any material issue, a genuine factual dispute exists." Kaytor, 609 F.3d at 545 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). "A dispute regarding a material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000) (quoting Anderson, 477 U.S. at 248), cert denied, 540 U.S. 811 (2003). A court must also "construe the facts in the light most favorable to the non-moving party and must resolve all ambiguities and draw all reasonable inferences against the movant." Dallas Aerospace, Inc. v. CIS Air Corp., 352 F.3d 775, 780 (2d Cir. 2003).

A. Excessive Force Claims against the Individual Officers

In his second and third causes of action, Plaintiff seeks damages pursuant to 42 U.S.C. § 1983 for Defendants' alleged violation of his constitutional rights based on the use of excessive force by law-enforcement officials during the execution of a search warrant. Civil liability is imposed under § 1983 only on persons who, acting under color of state law, deprive an individual of rights, privileges, or immunities secured by the Constitution and laws. On its own, § 1983 does not provide a source of substantive rights; rather, it provides a method for vindicating federal rights that are conferred elsewhere in the federal statutes and Constitution. See Graham v. Connor, 490 U.S. 386, 393-94, 109 S.Ct. 1965, 104 L.Ed.2d 443 (1989)).

Here, Plaintiff's § 1983 claims find their origin in the Fourth Amendment, which is applicable to the States by way of the Fourteenth Amendment. Minnesota v. Dickerson, 508 U.S. 366, 372, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993). The Fourth Amendment protects "[t]he right of the people to be secure in their persons... against unreasonable... seizures." U.S. Const. amend. IV. Fourth Amendment excessive-force claims are analyzed under a standard of objective reasonableness. Graham, 490 U.S. at 394. This requires a court to "balance the nature and quality of the intrusion on the individual's Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion." United States v. Place, 462 U.S. 696, 703, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983). Thus, although an officer is justified in using force when a person who he is trying to seize resists, threatens, or assaults the officer, "the force used by the officer must be reasonably related to the nature of the resistance and the force used, threatened, or reasonably perceived to be threatened, against the officer." Sullivan v. ...


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