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Bah v. City of New York

United States District Court, S.D. New York

January 31, 2017

OUMOU BAH, AS THE ADMINISTRATOR OF THE ESTATE OF MOHAMED BAH, Plaintiff,
v.
THE CITY OF NEW YORK, ET AL., Defendants.

          MEMORANDUM AND ORDER

          P. Kevin Castel, United States District Judge

         In the early evening of September 25, 2012, police officers responded to a 911 call from Mohamed Bah's mother, who sought an ambulance to take her emotionally disturbed son to the hospital. The officers unsuccessfully attempted to communicate with Bah and the Emergency Services Unit (“ESU”) was called to Bah's apartment. After various attempts to observe Bah with cameras inserted into his apartment, Bah's door opened and the officers entered Bah's apartment. There is a dispute as to whether Bah wielded a knife. Bah was ultimately Tasered and shot by officers and died.

         Plaintiff Oumou Bah, as the Administrator of the Estate of Mohamed Bah, brings claims under 42 U.S.C. § 1983 for excessive use of force and unlawful entry in violation of decedents' rights to be free from unreasonable searches and seizures under the Fourth and Fourteenth Amendments to the U.S. Constitution, as well as state law claims of negligence, assault, battery, and wrongful death against various officers of the New York City Police Department (“NYPD”) and the City of New York (“City”). Plaintiff also brings claims for supervisory liability against the supervising officers under section 1983. Fact discovery in this action has concluded. Defendants now move for summary judgment on all claims. Additionally, defendants move in limine to exclude from evidence the expert reports of plaintiff's two expert witnesses and preclude them from testifying at trial. Plaintiff moves for sanctions against defendants for spoliation of evidence.

         Plaintiff claims that the officers used excessive force in violation of Bah's constitutional rights and subjected his apartment to unreasonable searches at various points leading up to the officers' entry to his apartment. Defendants claim that the force used was not excessive and that the searches were reasonable. Factual disputes exist between the parties, including as to Bah's location in relation to the ESU officers when the officers entered the apartment and whether Bah was still a threat to the officers when the fatal shot was fired.

         Thus, defendants' motion for summary judgment is denied, except with respect to plaintiff's claims for negligence and due process violations against all defendants and plaintiff's section 1983 municipal liability claim against the City. Plaintiff's municipal liability claim is dismissed because plaintiff has failed to bring forth evidence from which a reasonable finder of fact could find that the City acted with deliberate indifference in failing to train its officers or that additional or alternative training would have prevented excessive force from being used on Bah. Plaintiff's state law negligence claims against the individual defendants are dismissed because plaintiff alleges that the individual defendants purposefully violated Bah's rights, and, as a matter of law, intentional actions may not be the basis for a finding of negligence.

         Defendants move in limine to exclude testimony from plaintiff's two experts; forensic pathologist and medical examiner Michael M. Baden, M.D., and former police officer Gene Maloney. (Dkt. No. 135.) Defendants' motion is denied with respect to the testimony of Maloney and granted in part and denied in part with respect to the testimony of Dr. Baden.

         Plaintiff has moved for sanctions against defendants for spoliation of evidence. (Dkt. No. 132.) The Court will hold an evidentiary hearing regarding the alleged spoliation and requested sanctions.

         Procedural History

         This Court previously dismissed claims against defendants Brian Stanton, Esmerelda Santana, Michael Licitra, Robert Gallitelli, and Vincent Johnson for use of excessive force on Bah, dismissed plaintiff's equal protection claims against these same defendants, as well as the City, and dismissed plaintiff's negligent training and supervision claim against the City. (Dkt. No. 47.) The Court also dismissed plaintiff's negligence claims against Johnson, Stanton, and Santana, as well as any negligence claims against other defendants premised on intentional acts. (Dkt. No. 47.) The period for pretrial discovery has concluded.

         BACKGROUND

         The following facts, taken from materials submitted in connection with the present motion, are undisputed unless noted. On September 25, 2012, Bah's mother spoke to a 911 operator and requested an ambulance take Bah to the hospital. (Pl.'s Rule 56.1 CS ¶ 28.) At approximately 6:41 p.m. a transmission went over the 26th Precinct radio for a job involving an emotionally disturbed person (“EDP”) at 113 Morningside Avenue Apartment 5D. (Pl.'s Rule 56.1 CS ¶ 29.) Defendants Stanton, Santana, Johnson, and Lieutenant Gallitelli (the “Patrol Officers”) arrived at 113 Morningside Avenue in response to the transmission. (Pl.'s Rule 56.1 CS ¶ 30.) Some or all of the Patrol Officers spoke to Bah's mother outside the apartment building, where she told them that “Bah was alone in the apartment and was not violent and/or did not have any weapons.” (Pl.'s Rule 56.1 CS ¶ 32.) The parties dispute precisely what was said during the exchange, but agree that the Patrol Officers entered the apartment building, walked up the stairs to Bah's apartment, and knocked on Bah's door. (Pl.'s Rule 56.1 CS ¶¶ 32-37.)

         Bah opened the door, and Stanton placed his foot towards the door jam. (Pl.'s Rule 56.1 CS ¶ 42.) Santana pushed the bottom of the apartment door with her foot. (Id.) Bah was naked and his eyes had a blank stare and appeared to be open wider than normal. (Pl.'s Rule 56.1 CS ¶¶ 44-46.)

         At least one officer observed Bah holding a kitchen knife in his right hand. (Pl.'s Rule 56.1 CS ¶ 48.) Principally on the basis that no knife was produced in discovery, plaintiff disputes that Bah was holding a knife.[1] (Pl.'s Rule 56.1 CS ¶¶ 48, 169.) Bah attempted to shut the door and at least one officer attempted to prevent the door from closing, although Bah ultimately managed to close the door. (Pl.'s Rule 56.1 CS ¶¶ 49-50.)

         After Bah closed the door Gallitelli used a radio to request that the ESU respond to Bah's apartment. (Pl.'s Rule 56.1 CS ¶ 55.) Five ESU officers responded to the scene: defendants Joseph McCormack, Edwin Mateo, Andrew Kress, Michael Green, and Lieutenant Michael Licitra. (Pl.'s Rule 56.1 CS ¶ 69.) When Licitra arrived he assumed and Gallitelli relinquished command of the area around Bah's apartment door. (Pl.'s Rule 56.1 CS ¶ 119.) The peephole in Bah's apartment door was removed to enable a view of the apartment. (Pl.'s Rule 56.1 CS ¶ 101.) A chemical light was inserted through the peephole to illuminate the apartment. (Pl.'s Rule 56.1 CS ¶ 124.) An officer successfully picked the lock on the door, but the door would not open due to an additional lock on the door. (Pl.'s Rule 56.1 CS ¶ 127.) The ESU officers used a hydraulic jack to crack the door open in order to insert a pole camera to observe the inside of Bah's apartment. (Pl.'s Rule 56.1 CS ¶¶ 131, 139, 144, 146.)

         The pole camera was removed from Bah's apartment. (Pl.'s Rule 56.1 CS ¶ 150.) At some point after the pole camera was removed, the door opened. (Pl.'s Rule 56.1 CS ¶ 151.) There is a dispute over whether Bah opened the door or whether the door was opened by something done by the ESU officers. (Id.)

         There is no dispute that Licitra ordered the team to enter the apartment shortly after the door opened. (Pl.'s Rule 56.1 CS ¶ 155.) There is no dispute that inside the apartment two Tasers were discharged at Bah, (Pl.'s Rule 56.1 CS ¶¶ 166, 179), an Arwen was discharged at Bah, [2] (Pl.'s Rule 56.1 CS ¶ 175), ultimately ten rounds from the officers' service weapons were discharged at Bah, (Pl.'s Rule 56.1 CS ¶¶ 189-91), or that Bah was pronounced dead at 8:16 p.m., (Pl.'s Rule 56.1 CS ¶ 215.) The parties dispute whether Bah attacked the officers with a knife immediately after the door opened. (Pl.'s Rule 56.1 CS ¶ 154.) The parties dispute whether Bah was immediately inside the threshold of the apartment when the door was opened, or whether he was several feet from the threshold of the apartment when the door was opened. (Pl.'s Rule 56.1 CS ¶ 161.) The parties dispute whether Bah was approaching Kress with a knife when Kress deployed his Taser. (Pl.'s Rule 56.1 CS ¶ 166.) Based upon the autopsy report and testimony from plaintiff's expert, there is a dispute as to whether Bah was already on the ground when the fatal shot to his head was fired. (Pl.'s Mem. in Opp. to Summ. J., 9; Decl. of Debra Cohen in Opp. to Summ. J., Ex. 47, Baden Report, 2-3; Defs.' Reply to Pl.'s Rule 56.1 CS ¶¶ 583-84.)

         LEGAL STANDARD

         On a motion for summary judgment, the Court views all evidence of record in the light most favorable to plaintiff as the non-moving party, and draws all reasonable inferences in plaintiff's favor. See Costello v. City of Burlington, 632 F.3d 41, 45 (2d Cir. 2011).

         Summary judgment “shall” be granted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Rule 56(a), Fed.R.Civ.P. A fact is material if it “might affect the outcome of the suit under the governing law, ” meaning that “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 248 (1986). It is the initial burden of a movant on a summary judgment motion to come forward with evidence on each material element of his claim or defense, demonstrating that he is entitled to relief as a matter of law. Vt. Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004). In raising a triable issue of fact, the non-movant carries only “a limited burden of production, ” but nevertheless “must ‘demonstrate more than some metaphysical doubt as to the material facts, ' and come forward with ‘specific facts showing that there is a genuine issue for trial.'” Powell v. Nat'l Bd. of Med. Exam'rs, 364 F.3d 79, 84 (2d Cir. 2004) (quoting Aslanidis v. U.S. Lines, Inc., 7 F.3d 1067, 1072 (2d Cir. 1993)). In reviewing a motion for summary judgment, the court may scrutinize the record, and grant or deny summary judgment as the record warrants. Rule 56(c)(3), Fed.R.Civ.P. In the absence of any disputed material fact, summary judgment is appropriate. Rule 56(a), Fed. R. Civ. P.

         DISCUSSION

         I. Claims against the Individual Defendants.

         Because facts material to plaintiff's claims for excessive force, unlawful entry, assault, battery, wrongful death, and supervisory liability are disputed by the parties, defendants' motion for summary judgment as to those claims is denied.

         Defendants also move for summary judgment on plaintiff's section 1983 claims for equal protection violations against Kress, Green, Mateo, and McCormack, who had not yet appeared in the action when this Court dismissed these claims against the other defendants (Dkt. No. 47). For the reasons stated in the Court's opinion of May 1, 2014 (Dkt. No. 47), the Court dismisses plaintiff's claims for equal protection violations against Kress, Green, Mateo, and McCormack.

         The Court previously dismissed plaintiff's state law negligence claims against Johnson, Stanton, and Santana, as well as any negligence claims against other defendants premised on intentional acts. (Dkt. No. 47.) Plaintiff's theory of negligence is that the officers' lack of care in handling the situation with Bah negligently caused Bah's death. However, regardless of what led to the circumstances in which force was used on Bah, both the entries into Bah's apartment and the use of force against him were intentional acts by the officers. “When a plaintiff asserts excessive force and assault claims which are premised upon a defendant's allegedly intentional conduct, a negligence claim with respect to the same conduct will not lie.” Dineen v. Stramka, 228 F.Supp.2d 447, 454 (S.D.N.Y. 2002); accord Frederique v. Cty. of Nassau, 168 F.Supp.3d 455, 484 (E.D.N.Y. 2016). Consequently, plaintiff's state law negligence claims fail as a matter of law.

         Plaintiff concedes that there is not sufficient evidence in the record to establish the involvement of any of the defendants in any depravation of Bah's due process rights. (Pl.'s Mem. in Opp. to Summ. J., 22.) The Court thus grants defendants' motion for summary judgment with respect to ...


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