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Regels v. Giardono

United States District Court, N.D. New York

June 25, 2015

JOANN REGELS, Plaintiff,
PATROLMAN NICHOLAS J. GIARDONO, Schenectady Police Dep't; PATROLMAN MICHAEL J. FARRAND, Schenectady Police Dep't; and CITY OF SCHENECTADY, Defendants



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Hon. Glenn T. Suddaby, United States District Judge.

Currently before the Court, in this civil rights action filed by Joann Regels (" Plaintiff" ) against Patrolman Nicholas J. Giardono, Patrolman Michael J. Farrand and the City of Schenectady (" Defendants" ), are Defendants' motion for summary judgment and Plaintiff's cross-motion for summary judgment. (Dkt. Nos. 24, 33.) For the reasons set forth below, Defendants' motion is granted, and Plaintiff's cross-motion is denied.



A. Plaintiff's Claims

B. Statement of Undisputed Material Facts

1. Events of January 2012 Through May 2012

2. Events of June 3, 2012

3. Events of June 4, 2012--Before Calling of Police

4. Events of June 4, 2012--After Arrival of Police

5. Events of June 4, 2012--After Arrival at Police Department

6. Events of June 5, 2012

7. Events of June 6, 2012

8. Events of June 13, 2012

9. Plaintiff's Criminal Proceeding

10. Schenectady Police Department's General Order 0-36

C. Briefing on Parties' Motions for Summary Judgment

1. Defendants' Motion for Summary Judgment

2. Plaintiff's Response and Cross-Motion for Summary Judgment

3. Defendants' Reply and Response


A. Standard Governing Motions for Summary Judgment

B. Standards Governing Plaintiff's Claims and Defendants' Defenses


A. Plaintiff's First Claim (for Invasion of Privacy / Illegal Search)

B. Plaintiff's Second Claim (for False Arrest)

C. Plaintiff's Third, Fifth and Ninth Claims (for False Arrest,

Assault and Battery, and Negligence)

D. Plaintiff's Fourth Claim (for Excessive Force)

E. Plaintiff's Sixth and Seventh Claims (for Malicious Prosecution)

F. Plaintiff's Eighth Claim (for Municipal Liability)

G. Plaintiff's Claim for Punitive Damages

H. Plaintiff's Cross-Motion for Summary Judgment

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A. Plaintiff's Claims

Generally, in her Amended Complaint, Plaintiff alleges that, on June 4, 2012, Defendant Officers entered her apartment in Schenectady without justification, falsely arrested her for harassing her daughter, used excessive force against her in effecting that arrest (by grabbing her and slamming her against her bed without justification, causing her to land partially on the floor), and then maliciously prosecuted her for both harassment in the second degree and resisting arrest (the former charge being subsequently dismissed following a jury trial, and the latter charge being dismissed by a city court judge upon Plaintiff's motion). (Dkt. No. 10.) Plaintiff further alleges that Defendant City maintained an unconstitutional policy requiring that police officers make arrests in all domestic violence cases, and that it negligently maintained the detention cell in which she was confined for eight hours (causing her to catch and injure her arm between a wooden cot and a cement wall). ( Id. )

Based on these factual allegations, Plaintiff asserts the following nine claims against Defendants: (1) a claim that Defendant Officers invaded her privacy and subjected her to an illegal search under the Fourth Amendment; (2) a claim that Defendant Officers illegally detained her under the Fourth Amendment; (3) a claim that Defendant Officers falsely arrested her under New York State common law; (4) a claim that Defendant Officers used excessive force against her under the Fourth Amendment; (5) a claim that Defendant Officers subjected her to assault and battery under New York State common law; (6) a claim that Defendant Officers subjected her to malicious prosecution under the Fourth Amendment; (7) a claim that Defendant Officers subjected her to malicious prosecution under New York State common law; (8) a claim that Defendant City is liable as a municipality by adopting and/or promulgating a policy that encouraged and/or caused the constitutional violations alleged, specifically, a policy mandating that police officers make an arrest when responding to calls alleging domestic violence; and (9) a claim that Defendant City negligently maintained the

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detention cell in which Plaintiff was confined, causing her personal injury, under New York State common law. ( Id. )

B. Statement of Undisputed Material Facts

The following facts are undisputed in the record currently before the Court.[1]

1. Events of January 2012 Through May 2012

Plaintiff began renting her apartment at 266 State Street, Apartment B, in Schenectady in approximately January of 2012. The front door to the apartment opens into a living room, off of which is a bedroom. As one walks through the living room, one goes into a kitchen, through which is a bathroom. By the kitchen, also in the back of the apartment, is a storage room used only for storage.

Plaintiff's adult daughter,[2] Colleen Fountain, began staying with Plaintiff in early May 2012, while her own apartment was being painted.[3] When Ms. Fountain came to stay with Plaintiff, she brought with her food, clothing, toiletries, a plastic dresser, garbage and cloth bags, makeup, a blanket, a pillow and a cat. The plastic dresser had three drawers, was approximately three feet tall, was made out of a Tupperware-like material, and had a white plastic top. When she stayed at Plaintiff's apartment, Ms. Fountain slept on a couch in the living room.

Plaintiff provided Ms. Fountain with a key to the apartment, which Ms. Fountain kept during her residency there. Ms. Fountain was permitted by Plaintiff to enter the apartment and to leave it as she pleased, even when Plaintiff was not present. While living at the apartment, Ms. Fountain would purchase food to be consumed by both Plaintiff and her.

2. Events of June 3, 2012

At approximately 11:00 p.m. on Sunday, June 3, 2012, Plaintiff called the Schenectady Police Department due to an argument she was having with Ms. Fountain. During the call, she told the dispatcher that she wanted the police to remove Ms. Fountain from her apartment.

As a result of Plaintiff's call, two Schenectady police officers (neither of whom is a party to this action) arrived at her apartment. One of the two officers was Officer Anthony Savignano. Officer Savignano was present on scene for approximately 22 minutes. During that time, Plaintiff told the officers that she wanted Ms. Fountain to leave and why.

The officers questioned Plaintiff how long Ms. Fountain had been staying at the apartment. Plaintiff explained that Ms. Fountain had been staying there for more than a month.[4] In addition, the officers

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were told (by either Plaintiff or Ms. Fountain) that Ms. Fountain had personal belongings at the apartment.

Ms. Fountain told the officers that she did not want to leave the apartment. The officers told Ms. Fountain that, because she had been there for over a month, the apartment became her legal residence and she did not need to leave. Plaintiff informed the officers that the apartment was not Ms. Fountain's legal residence, which was 1329 Alden Place. However, the officers told Plaintiff that, if Ms. Fountain had been at the apartment for 30 days, then it became her legal residence and she did not have to leave.

The incident ended without any arrests or Ms. Fountain leaving Plaintiff's apartment.[5]

3. Events of June 4, 2012--Before Calling of Police

At approximately 8:00 a.m. or 9:00 a.m. on Monday, June 4, 2012, Plaintiff awoke, exited her bedroom and watched television in the living room with Ms. Fountain. The two of them ate pizza for lunch and watched television. Between noon and 2:45 p.m., Plaintiff drank three or four beers (and part of another beer), took two Benadryl pills, probably took Prevacid, and possibly took Lexapro.[6] At approximately 1:30 p.m. or 2:00 p.m., Plaintiff and Ms. Fountain got into an argument about Ms. Fountain not leaving the apartment. Plaintiff again asked Ms. Fountain to leave, and Ms. Fountain responded that she had no reason to leave and that she was not going to do so.

Nonetheless, Ms. Fountain attempted to get in touch with her brother or father so that they could pick her up and take her and her belongings from the apartment. As Ms. Fountain was attempting to reach her brother or father, Plaintiff decided to take back some clothing from Ms. Fountain because of the disrespect Ms. Fountain had been showing her: as a result, Plaintiff demanded the return of the clothing that she had given to Ms. Fountain as a gift approximately four days before (which consisted of some underwear, some shirts and possibly jeans).[7] Believing the underwear was in Ms. Fountain's dresser, Plaintiff went toward the dresser and asked where the underwear was.[8] In an effort to guard her belongings, Ms. Fountain ran over and sat on top of her dresser and refused to remove herself from it, despite Plaintiff's two demands for her to do so.[9] Plaintiff then grabbed Ms. Fountain's

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arm, despite the fact that Ms. Fountain had not requested help getting off the dresser or demonstrated a need for such help.[10] After Plaintiff stopped grabbing Ms. Fountain's arm for several minutes, a red mark was visible.[11]

4. Events of June 4, 2012--After Arrival of Police

At 3:20 p.m., Plaintiff walked away from Ms. Fountain and called the Schenectady Police Department with the intention of having Ms. Fountain removed from the apartment. She told the police dispatcher that the call of a non-emergency nature, but requested police assistance in the removal of Ms. Fountain from her apartment. Twice during the call, she falsely stated that Ms. Fountain was stealing her clothing. In addition, she twice stated that she had attempted to pull Ms. Fountain off of a dresser. She also acknowledged that Ms. Fountain's arm had a " mark" on it as a result of Plaintiff's attempting to pull her off of the dresser. Three times she acknowledged that she had grabbed Ms. Fountain's arm. Finally, she lied to the dispatcher that she had not been drinking alcohol, and that she had been in bed all day.[12]

When Plaintiff called the Schenectady Police Department on June 4, 2012, she wanted police to come to her apartment, and she did not object to police coming to her apartment. In fact, during the call, she was told by the dispatcher that police would be coming to her apartment shortly and that they would be investigating the incident as described by her. Indeed, the dispatcher specifically said to Plaintiff, " Okay, well, I'm not saying that the officers are going to arrest you [on Ms. Fountain's charge that you hit her]; I'm not saying they're not; I don't really know; it's at their discretion when they arrive, okay?" to which Plaintiff responded, " All right, thank you." [13] At the time of the call, Plaintiff expected that the police would enter her apartment.[14] After Plaintiff finished the call, she went into her bedroom and Ms. Fountain remained in the kitchen.

While driving to the location, Defendant Giardono asked the dispatcher whether there had been a call to the same address

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the night before, and the dispatcher responded affirmatively. The Remarks Detail for the call (" call remarks" ) states that " co[mplainant's] daughter is here and she shouldnt be." The call remarks also state that " [complainant's daughter] is trying to take clothes that the co[omplainant] bough[t]." The call remarks would have been sent to the computer into Defendant Officers' police cars at the time of dispatch, and Defendant Officers would have been able to view all of the information on the call remarks. Officer Giardono " might have had the unit history [up] on the computer" when he was in his police car. The unit history would show all calls to the address to which the officer was being dispatched. If he had the unit history up, he would have been able to view the call remarks on his computer screen in his police car.

Approximately 10 to 15 minutes after Plaintiff placed the call, Defendant Officers arrived at her apartment, as requested by her. At the time, Defendant Farrand had been employed with the Schenectady Police Department for more than 12 years, while Defendant Giardono had been so employed for approximately 16 years. Defendant Farrand was the first to arrive at 266 State Street, followed shortly by Defendant Giardono. When Defendant Giardono exited his police car, he saw Ms. Fountain standing on the sidewalk with a male (who was her brother, Kerry Fountain) and said, " Jesus Christ." [15]

Defendant Farrand knew Ms. Fountain because he had been previously introduced to her by their mutual friend, Dana Livingston, at a bar before the events of June 4, 2012, and Defendant Farrand recognized Ms. Fountain. At some point before June 4, 2012, Ms. Fountain stopped talking to Ms. Livingston.[16] (Defendant Farrand did not tell Defendant Giardono that he was acquainted with Ms. Fountain until later, when they were in the muster room at the police station.)

Upon arriving at the scene, Defendant Officers approached Ms. Fountain on the sidewalk outside of the apartment. Ms. Fountain recognized Defendant Ferrand, although she did not acknowledge that fact.[17] Defendant Officers spoke with Ms. Fountain about the incident involving her and Plaintiff. At that time, while still outside of the apartment, Ms. Fountain told Defendant Officers that she had been residing with Plaintiff for an extended period of time,[18] and that Plaintiff had grabbed her arm and pulled her away (twisting her arm) as items were being removed from the apartment.[19] She then

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asked that Plaintiff be placed under arrest.[20] To Ms. Fountain's brother Kerry, Defendant Officers " seemed friendly toward [her] and disposed toward arresting [Plaintiff]." [21] Defendant Officers had not observed the prior incident between Plaintiff and Ms. Fountain at the dresser.

Defendant Officers and Ms. Fountain walked upstairs to the apartment. When Defendant Officers arrived at the apartment, Ms. Fountain let them into the apartment. After Defendant Officers were in the apartment, Plaintiff asked them what her rights were with regard to the clothing that she had gifted to Ms. Fountain. Defendant Officers responded that, because the clothing had been a gift, it belonged to Ms. Fountain. After this conversation about the clothing, Plaintiff told Defendant Giardono, " I just want her out of here." At that point, one or both of Defendant Officers may have stepped into an " interior hallway." [22] (The " interior hallway" was located between the front door of Plaintiff's apartment and a door to the stairway to the ground floor; no other apartments were located on the floor on which Plaintiff's apartment and the " interior hallway" was located.)[23] Plaintiff went to her bedroom.[24] When Ms. Fountain's brother Kerry was leaving the apartment, he closed the front door of the apartment behind him.[25]

Defendant Giardono asked Ms. Fountain, " So you're willing to come down to the police station and sit there and sign all the charges?" [26] Ms. Fountain responded in the affirmative.[27] Shortly thereafter, Defendant Giardono said, " Hey, Mike" (referring to Defendant Farrand), and the two Defendant Officers began a conversation regarding a complainant's verbal request to place a suspect under arrest on a violation charge.[28] Defendant Giardono informed Ms. Fountain that, if she wanted Plaintiff arrested, Ms. Fountain had to advise Plaintiff that she desired her to be placed under arrest.[29]

At some point, Plaintiff (who was still in her bedroom and believed Defendant Officers had left her apartment) realized that Defendant Officers were in her apartment.[30]

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Plaintiff came out of her bedroom.[31] In Defendant Officers' presence, Ms. Fountain stated that she wanted Plaintiff arrested for grabbing her arm and for attempting to push her off of the dresser.[32] Ms. Fountain did not place Plaintiff under arrest but requested that she be placed under arrest. Ms. Fountain was not forced or otherwise compelled to request that Defendant Officers arrest Plaintiff; she did not tell them that she did not wish Plaintiff to be arrested. While Defendant Officers were inside of her apartment, Plaintiff did not deny having grabbed Ms. Fountain's arm and in fact admitted having done so.

Defendant Officers informed Plaintiff that Ms. Fountain wanted her to be arrested. Defendant Giardono advised Plaintiff that she was being placed under arrest on the charge of Harassment. Plaintiff asked Defendant Officers, " [H]ow did you get in my apartment?" [33] One of Defendant Officers responded, " Your daughter . . . let us in." [34] Plaintiff said, " [S]he doesn't live here." [35] Plaintiff then asked Defendant Officers for a warrant to be in her apartment.[36] Defendant Officers responded, " We don't need one." [37] Plaintiff told Defendant Officers " goodbye" and that they could leave now; she then went into her bedroom and tried to close the door on them.[38] As she did so, she started yelling.[39]

Defendant Officers followed Plaintiff into the bedroom for the purpose of placing her under arrest. When Defendant Officers came into Plaintiff's bedroom, one or both of them may have said, " You're going to jail." [40] One or both of them may

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have also thrown Plaintiff onto her bed, crisscrossed her legs and held them.[41] At some point, Defendant Giardono told Plaintiff to place her hands behind her back.[42] In an effort to compel her to place her hands behind her back, Defendant Officers grabbed the arms of Plaintiff, who was facedown on the bed.[43] As Defendant Giardono was attempting to place Plaintiff's hands behind her back, she managed to pull her wrist free from his grasp.[44] At some point, one or both of Defendant Officers bent one of Plaintiff's arms behind her back.[45] In addition, one or both of Defendant Officers may have held one of Plaintiff's arms down with his knee.[46] Defendant Giardono was able to grab Plaintiff's wrist and put it behind her back in order to handcuff her; and Defendant Farrand was able to put handcuffs on Plaintiff. The struggle to put Plaintiff in handcuffs did not last very long.

One or both Defendant Officers stood her up by lifting her arms.[47] Defendant

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Giardono told Plaintiff, " [P]ut your shoes on; let's go or you are going barefoot." Defendant Officers walked Plaintiff down the hallway and downstairs to a police vehicle, dragging the tops of her feet when she did not keep pace.[48] As they were doing so, Defendant Farrand told Plaintiff (who was in her pajamas and bathrobe), " [I]t's a little late to worry about your appearance." Once Plaintiff reached the police cars, someone handed her a pair of slippers.

5. Events of June 4, 2012--After Arrival at Police Department

Plaintiff was transported from her apartment to the Schenectady Police Department. She was brought inside and was taken back to speak with a female correction officer. The female correction officer asked Plaintiff how she had gotten all the marks on her arms; and Plaintiff responded that the marks on her arm were from the police officers lifting her up and dragging her out of her apartment. After Plaintiff told the correction officer how many beers she had consumed and that she had taken Benadryl to control her allergies, the correction officer told Plaintiff that she would " be a good one tonight; you'll be asleep." The correction officer warned her about the " night correction officer," telling her to keep her mouth shut and " [D]on't ask for nothing." [49]

During Plaintiff's booking, Ms. Fountain appeared at the Schenectady Police Department for the purpose of executing certain documents charging Plaintiff in connection with the incident that had occurred at the apartment. She was met by one of the two Defendant Officers.

On one occasion during that meeting, Ms. Fountain may have said to the Defendant Officer, " If I wanted to[,] could I have the charges dropped?" [50] The Defendant Officer (who apparently was Defendant Giardono) did not interpret this question (if it was asked of him) as either a statement that she wanted to drop the charges or a request to drop the charges.[51] A heavy female officer appeared and stated that it was too late for Ms. Fountain to drop the charges because Plaintiff had already been charged with resisting arrest.[52]

Ms. Fountain signed a statement charging Plaintiff with Harassment in the Second Degree, and stating, ...

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