United States District Court, S.D. New York
VAUGHN SCOTT; NIGERIA SCOTT; PRINCE SCOTT; ANDRE HARRIS; BRENDA SCOTT; KRAIG UTLEY; COREY MARROW; A.S., a minor child; K.M., a minor child; JULIAN RENE, Plaintiffs,
THE CITY OF MOUNT VERNON, a municipal entity; POLICE OFFICER ALLEN, Mt. Vernon; POLICE OFFICER CAMILO ANTONINI, Mt. Vernon; POLICE OFFICER TIMOTHY BRILEY, Mt. Vernon; DET. BRENT GAMBLE, Mt. Vernon Police officer; SGT. STEVEN SEXTON, Mt. Vernon Police officer; CITY OF MT. VERNON POLICE DEPARTMENT; POLICE OFFICERS JOHN DOES, 1-10, Defendants.
A. Thompson, Esq. Stecklow Cohen & Thompson New York, NY
Counsel for Plaintiffs.
J. Sweeney, Esq. Coughlin & Gerhart, LLP Binghamton, NY
Counsel for Defendants.
Tichina L. Johnson, Esq. City of Mount Vernon, NY Department
of Law Mount Vernon, NY Counsel for Defendants.
K. Wisham, Esq. New York, NY Counsel for Defendants.
OPINION & ORDER
KENNETH M. KARAS, UNITED STATES DISTRICT JUDGE:
Vaughn Scott, Nigeria Scott, Prince Scott, Andre Harris,
Brenda Scott, Kraig Utley, Corey Marrow, A.S. (a minor), K.M.
(a minor), and Julian Rene (collectively,
“Plaintiffs”) filed this suit against Defendants
the City of Mount Vernon, Mount Vernon Police Officer Allison
Allen, Mount Vernon Police Officer Camilo Antonini, Mount
Vernon Police Officer Timothy Briley, Mount Vernon Police
Detective Brent Gamble, Mount Vernon Police Sergeant Steven
Sexton, the City of Mount Vernon Police Department, and
Police Officers John Does 1-10 (collectively,
“Defendants”), pursuant to 42 U.S.C. § 1983
and state law, alleging violations of their First, Fourth,
Fifth, and Fourteenth Amendment rights, as well as alleging
claims for assault and battery, negligence, and respondeat
superior. (See Compl. (Dkt. No. 1).) Before the
Court are the Parties' Cross Motions for partial and full
summary judgment. For the reasons to follow, the Motions are
granted in part and denied in part.
Rule 56.1 Statements
discussing the factual background of these claims, some brief
explanation about the documents the Court will consider on
these Motions is necessary. On April 8, 2016, Defendants made
their first attempt at filing for summary judgment. All but
one of these documents, Defendants' declaration in
support of their Motion, were rejected as improperly filed.
(See Dkt. Nos. 23, 25-28.) On April 11, 2016,
Defendants tried once again to file their Motion for summary
judgment. This time, Defendants were able to file the motion
itself, but the other documents were rejected as improperly
filed. (See Dkt. Nos. 29, 31, 32.) On April 14,
2016, Defendants filed what is listed on the docket as a
“Rule 56.1 Statement, ” but what was, in reality,
an oversized memorandum of law in support of their Motion.
(See Dkt. No. 33.) Following some correspondence
with the Court, detailed below, Defendants were granted
additional time to file their Motion papers. (See
Dkt. No. 37.) Finally, on May 12, 2016, Defendants submitted
a memorandum of law in support of their Motion that conformed
to the Court's individual rules. (See Dkt. No.
in the litany of misfiled documents, it turns out, is
Defendants' actual Rule 56.1 Statement, which was never
properly filed. (See Dkt. No. 31.) In fact, the
document is improperly notated in the docket as a memorandum
of law in support of Defendants' Motion. It was only
through careful parsing of the misfiled documents that the
Court was able to determine that Defendants had even
attempted to electronically file a Rule 56.1 Statement.
Defendants have thus never filed a Rule 56.1 Statement that
conforms to the filing and docketing rules of the Court.
Plaintiffs responded to Defendants' Rule 56.1 Statement.
(See Dkt. No. 46.) While the Court appreciates
Plaintiffs' diligence in determining that there was even
a Rule 56.1 Statement to be responded to, the document filed
by Plaintiffs is deficient in many respects. Instead of the
“short and concise statements” contemplated by
Local Rule 56.1, Plaintiffs have filed what look more like
responses to interrogatories or document requests, levying
general objections and numerous responses to each statement,
many of which merely recite additional facts Plaintiffs find
relevant to the Motion, or which add color and argument to
the statements offered by Defendants.
purpose of Local Rule 56.1 is to streamline the consideration
of summary judgment motions by freeing district courts from
the need to hunt through voluminous records without guidance
from the parties.” Holtz v. Rockefeller &
Co., 258 F.3d 62, 74 (2d Cir. 2001); see also
Monahan v. N.Y.C. Dep't of Corr., 214 F.3d 275, 292
(2d Cir. 2000) (“Local Rule 56.1 is designed to place
the responsibility on the parties to clarify the elements of
the substantive law which remain at issue because they turn
on contested facts.”). In this endeavor, the Parties
have failed. Many of the statements in Defendants' Rule
56.1 Statement are supported by citations to evidence not
appended to the single declaration of Defendants accepted for
filing (though included in some of Defendants' rejected
filings), and other statements appear to be supported by
documents that do not even appear in the record.
Plaintiffs' response, on the other hand, does little to
“streamline” the voluminous record, and instead
exacerbates the process by adding on gratuitous facts, and
even case citations, resulting in a document nearly five
times the size of Defendants' Rule 56.1 Statement.
Rule 56.1 Statement, by contrast, was properly filed, and
follows the guidelines set forth by the Court's
individual practices and the local rules. (See Dkt.
No. 20.) And while Defendants have improperly responded in
their reply brief, instead of in a separate Rule 56.1
response statement, (see Dkt. No. 45), the Court is
able to at least discern which statements are undisputed and
which statements may give rise to genuine disputes of
material fact. For the purpose of setting forth the pertinent
facts in this case, accordingly, the Court will cite only to
Plaintiffs' Rule 56.1 Statement and Defendants'
response thereto. That is not to say, however, that the Court
will ignore the factual issues raised by Defendants, or that
it has not read and considered the documents submitted by
Defendants and cited in their briefs. Nor does this suggest
that the Court has not reviewed Defendants' Rule 56.1
Statement and Plaintiffs' response. The Court does not
presume that Plaintiffs' Rule 56.1 Statement represents
the entire universe of facts in this case; as with every
summary judgment motion, the Court must consider the entire
record, and must deny summary judgment if, in the Court's
judgment, there exist any genuine disputes of material fact.
The Parties and the Apartment
are members of a group of family and friends that were,
allegedly, the target of constitutional violations in their
home on March 20, 2013. (See Compl. ¶ 1.)
Plaintiffs describe themselves by reference to their
relationship to Plaintiff Vaughn Scott:
• Corey Marrow is Vaughn Scott's son, (see
Decl. of David A. Thompson in Opp'n (“Thompson
Opp'n Decl.”) Ex. 1 (“Vaughn Tr.”), at
33 (Dkt. No. 48); see also Pls.' Rule 56.1
Statement (“Pls.' 56.1”) ¶ 9 (Dkt. No.
• Nigeria Scott is Vaughn Scott's
daughter, (see Decl. of David Thompson i[n] Supp. of
Pls.' Mot. for Summ. J. (“Thompson Decl.”)
Ex. P (“Nigeria Tr”), at 25; see also
Pls.' 56.1 ¶ 10);
• Prince Scott is Vaughn Scott's son, (see
Thompson Decl. Ex. N (“K.M. Tr.”), at 9 (Dkt. No.
21); see also Pls.' 56.1 ¶ 11);
• Brenda Scott is Vaughn Scott's mother,
(see Vaughn Tr. 16; see also
Pls.' 56.1 ¶ 12);
• Andre Harris is Vaughn Scott's brother,
(see Vaughn Tr. 16; see also Pls.' 56.1
• A.S. is Vaughn Scott's daughter, (see
Vaughn Tr. 14-15; see also Pls.' 56.1 ¶
• K.M. is Vaughn Scott's son, (see KM. Tr.
9; see also Pls.' 56.1 ¶ 15);
• Kraig Utley and Julian Rene are not related to the
other Plaintiffs, but are treated like family and are
regarded by Vaughn Scott as her godsons, (see
Thompson Decl. Ex. D (“Vaughn Aff.”) ¶ 43;
see also Pls.' 56.1 ¶¶ 16-17).
March 20, 2013, all Plaintiffs, except Utley and Rene, and
Rene's mother lived at the apartment in which the facts
giving rise to this case took place. (See Pls.'
56.1 ¶ 27.) That apartment (the “Apartment”)
is located at 328 South Second Avenue in Mount Vernon, New
York. (See Vaughn Aff. ¶ 2; see also
Pls.' 56.1 ¶ 30.) The Apartment is part of a three
story detached house (the “House”). (See
Vaughn Aff. ¶ 3; see also Pls.' 56.1 ¶
31.) While the precise dimensions of the Apartment and the
House are not pertinent here, the Court notes that the House
has a porch with a roof, (see Vaughn Aff. ¶ 8;
see also Pls.' 56.1 ¶ 36), and a foyer
leading to each of the three apartments in the House,
(see Vaughn Aff. ¶¶ 15-20; see
also Pls.' 56.1 ¶¶ 43-48). The Apartment
is located on the second floor, (see Vaughn Aff.
¶¶ 17-18; see also Pls.' 56.1
¶¶ 45-46), and is separated from the rest of the
House by a door with a doorknob, latch, and lock,
(see Vaughn Aff. ¶ 21; see also
Pls.' 56.1 ¶ 49). In the Apartment, there is a
living room, a kitchen, a bathroom, and several bedrooms.
(See Vaughn Aff. ¶¶ 23-40; see
also Pls.' 56.1 ¶¶ 51-68.)
The Shooting Near West Third Street
March 20, 2013, at approximately 6:15 PM, two individuals
called 911 to report shots fired near 70 West Third Street in
Mount Vernon. (See Thompson Decl. Ex. G
(“Aegis Report”), at 4; see also
Pls.' 56.1 ¶ 69.) The first caller, who called in at
6:17 PM, reported that she heard two shots and noted that she
saw a white minivan with three males in it going down South
Ninth Avenue. (See Aegis Report 4; see also
Pls.' 56.1 ¶ 74.) The second caller stated that he
saw a light-skinned black male wearing a red hoodie running
near the site of the shooting. (See Aegis Report 4.)
The police dispatcher who notified nearby officers of the
shooting stated that witnesses had given
“conflicting” information as to who may have been
involved. (See Thompson Decl. Ex. U (“Dispatch
Recording”); see also Pls.' 56.1 ¶
75.) No witness, and no dispatcher or police officer,
reported seeing anyone injured by the shots. (See
Michael Gregorio and Johanna Santos, neither of whom is named
as a defendant in this action, responded together to the area
of the shooting. (See Thompson Decl. Ex. H
(“Gregorio Report”); see also Pls.'
56.1 ¶ 81.) Gregorio and Santos first set up a perimeter
near South Eighth Avenue in an effort to find the black male
wearing a red hoodie. (See Gregorio Report; see
also Pls.' 56.1 ¶ 82.) When they were unable to
locate that individual, Gregorio and Santos began to canvass
the surrounding area for the white van described by one of
the witnesses. (See Gregorio Report; see
also Pls.' 56.1 ¶¶ 83-84.)
time of the shooting, Utley and Rene were together on West
Third Street. (See Thompson Decl. Ex. R (“Rene
Tr.”), at 7-8; Thompson Decl. Ex. S (“Utley
Tr.”), at 25; see also Pls.' 56.1 ¶
70.) Upon hearing the shots, Utley and Rene started to flee;
during their escape, Rene was grazed in the right buttocks by
a bullet. (See Thompson Decl. Ex. E; Utley Tr.
26-27; see also Pls.' 56.1 ¶¶ 71-72.)
As they ran, Utley and Rene happened to see Marrow driving
his sister Nigeria's white minivan. (See Utley
Tr. 26; see also Pls.' 56.1 ¶ 72.) They got
in the minivan, and Marrow drove the group to the Apartment.
(See Utley Tr. 29; see also Pls.' 56.1
Arrival at the Property
and Santos arrived at a location near the House at 6:37 PM,
approximately 20 minutes after the initial 911 call, seeing
that a white minivan matching the description offered by the
witness was parked in a driveway by the House. (See
Aegis Report 1; see also Pls.' 56.1 ¶ 85.)
The Parties dispute, however, whether Gregorio and Santos
reported that they found the white minivan parked at 328
South Second Avenue (where the House is located), or at 324
South Second Avenue. (See Pls.' 56.1 ¶ 85;
Defs.' Reply Mem. of Law in Further Supp. of Their Mot.
for Summ. J. (“Defs.' Reply”) ¶ 85 (Dkt.
No. 45).) The dispute arises from the fact that the audio
file indicates that Gregorio reported over the dispatch that
the white minivan was parked at 324 South Second Avenue,
(see Dispatch Recording), whereas the report he
filed indicates that the white minivan was parked at 328
South Second Avenue (the Home), (see Gregorio
Report). When Gregorio and Santos arrived, the minivan was
“unoccupied.” (See Dispatch Recording;
see also Pls.' 56.1 ¶ 89.) Gregorio called
the dispatcher to check the license plate of the minivan,
(see Dispatch Recording; see also Pls.'
56.1 ¶ 86), and the dispatcher reported that the
registration was valid, the minivan was registered to Nigeria
Scott, and the address for Nigeria was a P.O. box,
(see Dispatch Recording; see also Pls.'
56.1 ¶ 93).
and Santos waited approximately five minutes for Sergeant
Steven Sexton (a Defendant in this case) to arrive.
(See Aegis Report 2; Thompson Decl. Ex. J
(“Sexton Tr.”), at 16; see also
Pls.' 56.1 ¶ 95.) When Sexton arrived, he took
command and remained in command for the remainder of the time
period in question. (See Sexton Tr. 20-21, 52;
see also Pls.' 56.1 ¶¶ 96-97.) Sexton
was aware that shots had been fired in the area near West
Third Street, (see Sexton Tr. 14), and knew that
shell casings had been recovered from the area of the
shooting, (see Id. at 15). Gregorio informed Sexton
that he believed the white minivan parked in the driveway at
328 (or 324) South Second Avenue was the same one reported on
the dispatch, and noted that the windshield was broken
(consistent with the description offered by one witness) and
that the minivan's engine was still warm. (See
Id. at 17). At Sexton's command, he, Gregorio, and
Santos entered the House, although they did not know which of
the three apartments might contain a person associated with
the white minivan or the shooting. (See Sexton Tr.
17-18, 20; see also Pls.' 56.1 ¶¶
Entry to the Apartment
officers first entered the House, the front door was closed.
(See Vaughn Aff ¶ 46; see also
Pls.' 56.1 ¶ 105.) Upon entering the House, officers
began knocking on every door, including the door to the
Apartment. (See Sexton Tr. 17, 19-20; Thompson Decl.
Ex. M (“Brenda Tr.”), at 9; Thompson Decl. Ex. O
(“Marrow Tr.”), at 10-11; see also
Pls.' 56.1 ¶ 113.) When the officers arrived, the
following people were present in the Apartment:
• Vaughn Scott,
• Prince Scott,
• Andre Harris,
• Brenda Scott,
• Kraig Utley,
• Corey Marrow,
• Julian Rene,
• Demetrius King,
• James Batson,
• Martha Rene,
(see Vaughn Tr. 13-17; Marrow Tr. 7-8; see
also Pls.' 56.1 ¶ 114).
Scott answered the door. (See Sexton Tr. 21; Brenda
Tr. 9; K.M. Tr. 11; Marrow Tr. 9-10; see also
Pls.' 56.1 ¶ 115.) Sexton testified that he told
Brenda that he was looking for the registered owner of the
white minivan, that is, Nigeria Scott, (see Sexton
Tr. 21-22; see also Pls.' 56.1 ¶ 117),
although he testified also that he did not know at the time
whether the registered owner was driving the minivan when it
had been seen near the shooting, (see Sexton Tr.
22-23; see also Pls.' 56.1 ¶ 118). Sexton
told Brenda that he and the other officers wanted to enter
the Apartment. (See Sexton Tr. 25; Brenda Tr. 9;
see also Pls.' 56.1 ¶ 119.) The Parties
dispute what happened next. Brenda testified that she told
Sexton to wait while she asked her daughter, Vaughn, whether
it was okay for police to enter. (See Brenda Tr. 9;
see also Pls.' 56.1 ¶ 122.) Brenda and K.M.
both testified that Brenda told Sexton not to come in.
(See Brenda Tr. 9; K.M. Tr. 11-12; see also
Pls.' 56.1 ¶ 124.) Defendants disagree, however:
Sexton testified that Brenda was cooperative and gave him
consent to enter the apartment. (See Sexton Tr.
24-25.) There is no dispute, however, that Sexton did not
have a warrant to enter, that Brenda asked him whether he had
a warrant, and that Sexton responded that he did not need
one. (See Sexton Tr. 82; Brenda Tr. 9; see
also Pls.' 56.1 ¶¶ 125-27.)
event, Sexton and the other officers made their way into the
Apartment. Plaintiffs contend that Sexton pushed the door
open and struck Brenda's foot with the door,
(see Brenda Tr. 10-12; see also Pls.'
56.1 ¶¶ 149-50), though Defendant Officer Timothy
Briley testified that there was no force used “within
[his] sight, ” (see Thompson Decl. Ex. K
(“Briley Tr.”), at 46). The Court notes, however,
that Briley did not arrive at the scene until after Sexton
and the other officers had entered the Apartment,
(see Briley Tr. 11, 17-18), so the Court cannot
discern how Briley's testimony on this point is helpful.
Upon entry, Prince told Sexton and the officers to leave,
telling them to “[g]et out of here” and to
“get off his property.” (See Sexton Tr.
25, 27; see also Pls.' 56.1 ¶¶
128-30.) Sexton testified that Prince began yelling at him
and threatening him, (see Sexton Tr. 25-26),
although he admitted that he felt threatened only because
Prince was “really passionate and animated” and
made “a lot of physical movements, ” (see
Id. at 27). All of the occupants of the Apartment told
Sexton and the other police officers to leave. (See
Sexton Tr. 41; see also Pls.' 56.1 ¶ 141.)
Indeed, it is undisputed that Defendants knew that the
occupants of the Apartment did not want them inside the
Apartment, and did not give them permission to remain in the
Apartment once they entered. (See Sexton Tr. 25, 27,
41, 54; Briley Tr. 19-20, 23-24; see also Pls.'
56.1 ¶¶ 146-47.)
testified that he recognized Marrow, stating that he had had
“numerous interactions him” and that the
“whole crew [was] actually one of the local gangs who
[were] responsible for a lot of violence in the
community.” (Sexton Tr. 29.) Sexton also stated that he
recognized Prince, Rene, Utley, and Demetrius King as members
of the same gang Marrow belonged to. (See Sexton Tr.
after Defendants entered the Apartment, Prince called the
Mount Vernon Police Station and told them that plainclothes
officers were forcing their way into the Apartment.
(See Thompson Decl. Ex. Q (“Prince
Tr.”), at 25-26; see also Pls.' 56.1
¶ 152.) Although uniformed officers responded to the
call, these officers spoke to Sexton and Officer Antonini
(who by that point had arrived at the scene) and thereafter
did nothing to stop the other officers from occupying the
Apartment. (See Prince Tr. 26-27; see also
Pls.' 56.1 ¶¶ 153-54.)
Occupation and Search of the Apartment
the officers entered the Apartment, all of the occupants were
told they were not free to leave. (See Briley Tr.
47; Marrow Tr. 5-7; Thompson Decl. Ex. T (“A.S.
Tr.”), at 12-13; Vaughn Tr. 7-8; see also
Pls.' 56.1 ¶¶ 155-56.) The police officers
conducted a search for weapons and victims of the shooting.
(See Sexton Tr. 46-48.) The Parties dispute how
extensive the search was, with Plaintiffs alleging that the
officers searched the entire Apartment, broke the bathroom
door, and took everything out of the medicine cabinet and put
it in the sink. (See Brenda Tr. 13-14; K.M. Tr.
14-15; Marrow Tr. 6; Prince Tr. 29; Utley Tr. 19; A.S. Tr.
14- 15; see also Pls.' 56.1 ¶¶ 157-60;
Defs.' Reply ¶¶ 157-59.) Defendants admit that
they removed the contents of the medicine cabinet and placed
them in the sink, but dispute that they searched the entire
Apartment or broke any fixtures during their limited search.
(See Sexton Tr. 53; see also Defs.'
Reply ¶¶ 157-59.) The Parties agree, however, that
the officers searched Marrow, Prince, Rene, and Utley,
(see K.M. Tr. 15; Marrow Tr. 15-17; see
also Pls.' 56.1 ¶¶ 161-62), that they
searched the back bedroom, (see Sexton Tr. 46-47;
see also Pls.' 56.1 ¶ 164), and that they
found no weapons or contraband, (see Marrow Tr.
17-18; see also Pls.' 56.1 ¶ 166). While
searching the Apartment, Sexton discovered some individuals
in the back bedroom and ordered them into the living room
with the others. (See Sexton Tr. 46-49.)
the search and occupation of the Apartment, Sexton required
all occupants of the Apartment to come into the living
room-none of the occupants was free to leave the living room
or move around the apartment. (See Sexton Tr. 48-49;
K.M. Tr. 14; Marrow Tr. 6; Vaughn Tr. 7-8; see also
Pls.' 56.1 ¶ 168.) The occupants were required to
ask permission to use the bathroom and had to be accompanied
by an officer when doing so. (See Marrow Tr. 18;
Vaughn Tr. 28; see also Pls.' 56.1 ¶ 169.)
Brenda, who at the time the officers entered was cooking
dinner, was not allowed to finish cooking. (See A.S.
Tr. 9, 14; see also Pls.' 56.1 ¶ 170.) The
officers turned off the television and informed the occupants
that if they talked, they would be arrested. (See
A.S. Tr. 13-14; see also Pls.' 56.1 ¶¶
officers remained inside the Apartment for several hours.
(See Aegis Report 2-3; Brenda Tr. 20-21; K.M. Tr.
13; Marrow Tr. 6-7; see also Pls.' 56.1 ¶
173.) It was not until 8:30 PM, approximately two hours after
the officers arrived, that the officers learned the Rene had
been grazed by a bullet. (See Aegis Report 4;
see also Pls.' 56.1 ¶ 174.) This was the
first time Sexton learned that any of the occupants had been
in the area of the shooting. (See Sexton Tr. 34-35;
see also Pls.' 56.1 ¶ 177.) Rene informed
Sexton that someone had opened fire and that a bullet had
grazed him. (See Sexton Tr. 35; see also
Pls.' 56.1 ¶ 178.) The officers ordered Rene to pull
his pants down to show his injury, (see Rene Tr.
27-29; see also Pls.' 56.1 ¶ 223), and Rene
did so because he did not believe he had a choice,
(see Rene Tr. 28; see also Pls.' 56.1
¶ 224). Sexton did not look closely at the injury, and
Rene told the officers that he did not need medical
assistance. (See Sexton Tr. 35, 85; see
also Pls.' 56.1 ¶¶ 179-80.)
during their occupation of the Apartment, the officers
compelled Vaughn to leave the Apartment and stand on the
porch. (See Vaughn Tr. 7-8, 17; see also
Pls.' 56.1 ¶ 208.) Vaughn was required to stand on
the porch for approximately two hours and was not allowed to
leave the porch. (See Vaughn Aff. ¶¶
54-55; see also Pls.' 56.1 ¶¶ 209-10.)
Two officers, one of whom was Defendant Brent Gamble, guarded
Vaughn and prevented her from leaving the porch.
(See Vaughn Aff. ¶ 56; see also
Pls.' 56.1 ¶ 212.) After approximately two hours,
the officers took Vaughn back inside and made her sit on the
couch for another two to three hours. (See Vaughn
Aff. ¶ 59; see also Pls.' 56.1 ¶¶
the occupation of the Apartment began, Nigeria, the
registered owner of the minivan and a resident of the
Apartment, was not at home. (See Nigeria Tr. 16-19;
see also Pls.' 56.1 ¶ 201.) When Nigeria
arrived, officers prevented her from entering the House and
made her stand on the porch for a period of time.
(See Nigeria Tr. 17-18; see also Pls.'
56.1 ¶¶ 202-03.) At some point, Nigeria was asked
to sign a form consenting to the search of her vehicle.
(See Nigeria Tr. 7; Decl. of Welton K. Wisham
(“Wisham Decl.”) Ex. C (Dkt. No. 24); see
also Pls.' 56.1 ¶ 197.) Nigeria did so under
duress, believing the officers would remain at the Apartment
indefinitely and would confiscate her vehicle, and indeed,
officers told Nigeria that the vehicle would be confiscated
if she did not sign the consent form. (See Nigeria
Tr. 28-29; see also Pls.' 56.1 ¶¶
196-98.) The Parties dispute whether the vehicle was ever
actually searched, with Plaintiffs, somewhat
counterintuitively, asserting that the minivan was never
searched, (see Pls.' 56.1 ¶ 199; see
also Sexton Tr. 85), and Defendants contending that a
search was conducted, (see Defs.' Reply ¶
199; see also Thompson Decl. Ex. E). Eventually, the
officers told Nigeria to get off the porch and leave the
property. (See Nigeria Tr. 17-18; see also
Pls.' 56.1 ¶ 204.) Nigeria complied and waited on
the sidewalk for some period of time. (See Nigeria
Tr. 18-19; see also Pls.' 56.1 ¶¶
the record is unclear on the number of officers who occupied
the Apartment, the order in which they came, and the duration
for which each officer remained, it is undisputed that
Defendant Officer Camilo Antonini arrived at the Apartment
shortly after Sexton. (See Prince Tr. 28; Utley Tr.
11-13; see also Pls.' 56.1 ¶ 151.) Antonini
testified that he stayed at the Apartment for only about 10
minutes and did not interact directly with any of Plaintiffs,
(see Thompson Decl. Ex. L (“Antonini
Tr.”), at 22-24), although Marrow testified that
Antonini bent Marrow's hand back and confiscated his cell
phone in order to prevent Marrow from filming the officers,
(see Marrow Tr. 30), and Defendants have not
disputed this fact, (see Pls.' 56.1 ¶ 218;
Defs.' Reply). Utley also claimed that he told Antonini
he had no right to be inside the Apartment without a warrant
and that he should get out, (see Utley Tr. 14-18),
which Antonini responded to by threatening to
“choke” Utley, (see Id. at 15-16). Utley
responded that he did not think Antonini was going to do
that, and Antonini thereafter handcuffed Utley. (See
id.) Defendants, again, do not dispute these facts.
(See Pls.' 56.1 ¶¶ 227-33; Defs.'
Officer Allison Allen was also, at one point, at the
Apartment. Allen responded to a radio transmission calling
for assistance at the Apartment and arrived at the Apartment
sometime after 6:00 PM. (See Dep. of Officer Allison
Allen (“Allen Tr.”) 10-11.)Officers were on
the scene when Allen arrived and some had already entered the
Apartment. (See Id. at 11-12.) When she stepped
inside the Apartment, Allen observed Prince and Marrow
cursing at the various officers in the Apartment. (See
Id. at 15-16.) Allen remained in the Apartment for only
about 10 minutes, (see Id. at 16), and while there,
she did not observe any physical contact between any of the
officers and the occupants, (see Id. at
Officer Timothy Briley also responded to the scene. Briley
testified that when he was called to the scene, dispatch
informed him that an injured party had been placed inside the
white minivan before it left the scene of the shooting,
(see Briley Tr. 9), although Plaintiffs point out
that this contention is belied by both the audio recordings
and the police reports produced in this litigation,
(see Aegis Report; Gregorio Report; Dispatch
Recording). Officers were already at the Apartment when
Briley arrived, (see Briley Tr. 11), and he remained
at the Apartment for approximately 30 to 40 minutes, (see
Id. at 25). Briley testified that while at the
Apartment, he saw Sexton and Brenda laughing with one
another, (see Id. at 46), and testified also that he
did not witness any use of force while he was at the
Apartment, (see Id. at 46-47).
Departure and Aftermath
the officers did not find anything during their initial sweep
of the Apartment, they remained inside the Apartment because
they were waiting to see if they could obtain a search
warrant. (See Sexton Tr. 35, 48-49; see
also Pls.' 56.1 ¶ 181.) Sexton specifically
wanted to search for a firearm, and he testified that his
reason for believing a firearm might have been in the
Apartment was that the occupants of the Apartment were
“known for weapons possession . . . or violent
acts.” (Sexton Tr. 36; see also Pls.' 56.1
¶ 183.) Ultimately, however, Sexton was told that the
district attorney would not try to obtain a search warrant
because there was no probable cause. (See Sexton Tr.
52; see also Pls.' 56.1 ¶ 187.) Soon after,
the officers left the Apartment, vacating completely by
around 10:30 PM, (see Vaughn Aff. ¶ 61; see
also Pls.' 56.1 ¶ 188), though some officers
remained on the porch of the House until approximately 11:57
PM, (see Vaughn Aff. ¶ 62; Aegis Report 1;
see also Pls.' 56.1 ¶ 189). Nobody was
formally arrested on March 20, 2013. (See Sexton Tr.
days later, on March 22, 2013, Prince and Marrow were
arrested for “obstructing governmental
administration.” (See Marrow Tr. 39; Wisham
Decl. Ex. Q.) On April 8, 2015, the charge against Prince was
reduced to one for disorderly conduct in exchange for
pleading guilty. (See Defs.' Ex.
Marrow pled guilty to two apparently unrelated drug charges
and the obstruction of governmental administration was
dropped in exchange for that plea. (See id.)
filed their Complaint on June 19, 2014. (See Dkt.
No. 1.) Defendants answered on November 17, 2014.
(See Dkt. No. 3.) A case management order was
entered shortly thereafter, (see Dkt. No. 5), and
the discovery deadlines were twice extended, (see
Dkt. Nos. 8, 12). The Court then set a briefing schedule for
the Parties' Cross Motions for summary judgment.
(See Dkt. No. 18.) Plaintiffs filed their Motion on
April 8, 2016. (See Dkt. Nos. 19- 22.) As discussed
in more detail below, Defendants required an extension, and
eventually completed their filing (somewhat) successfully on
May 12, 2016. (See Dkt. No. 40.) The Motions were
fully briefed on June 10, 2016. On March 15, 2017, the Court
requested supplemental letter briefing regarding whether
Plaintiffs' state law claims were timely filed.
(See Dkt. No. 51.) The Parties submitted their
supplemental briefing on March 20, 2017. (See Dkt.
turning to the merits, some discussion of the conduct of
Defendants' counsel is in order. Reprimand for failure to
follow the individual filing and procedural rules of this
Court and of the Southern District of New York is ordinarily
confined to footnotes, but counsel for Defendants is in need
of special attention. Some of the missteps of counsel have
already been detailed above, namely, his numerous failed
attempts to file the motion papers on time. The deficiencies
of Defendants' counsel's filings included splitting
up exhibits to a declaration among several entries,
(see Dkt. Nos. 24-26), selecting the wrong event or
document name for an entry, (see Dkt. Nos. 23,
28-29, 31, 33), and failing to file at all some documents
cited by Defendants in support of their Motion, see
supra note 4. When Defendants finally did sort out their
ECF filing, they submitted an oversized brief in violation of
the Court's individual practices, (see Dkt. No.
33), and Plaintiffs moved to strike the papers of Defendants
as violating the Court's individual rules and for
untimeliness, (see Dkt. No. 34). Defendants'
counsel, Mr. Wisham, apologized for the mistake, stating that
“[t]o be quite honest with [the Court], [he] was
unaware of the page limitation, ” (Letter from Welton
K. Wisham, Esq., to Court (May 2, 2016) (Dkt. No. 35)), and
sought leave to file an amended brief, (see id.).
The Court granted the request, although it noted that the
individual practices are clear on the page limits and that
the scheduling order specifically reminded counsel that there
were strict page limits. (See Dkt. No. 37.)
Plaintiffs shortly thereafter sought an extension to allow
them time to respond to Defendants' new brief, as under
the original scheduling order, Plaintiffs' opposition
brief was due the same day as Defendants' amended brief.
(See Dkt. No. 38.) The exact language of the request
was as follows: “Accordingly, the plaintiffs
respectfully request that the Court grant the plaintiffs
until May 30, 2016 to respond to the defendants' motion
once it is finally fully submitted.” (See
Letter from David Thompson, Esq., to Court (Dkt. No. 38).)
The Court granted the extension. (See Dkt. No. 39.)
days later, Defendants finally filed their amended brief, now
in compliance with the Court's rules, but more problems
arose. Defendants did not file an opposition to
Plaintiffs' original Motion and accompanying papers
(which had been timely filed). Plaintiffs pointed this out in
a letter to the Court, asking that the Court deem
Defendants' filings complete and bar any further
submissions by Defendants. (See Dkt. No. 41.)
Defendants' counsel's response, styled as an
“Opposition to Plaintiff's [sic] request denying
Defendants' Right to File Reply Opposition to
Plaintiff's [sic] Partial Summary Judgment, ” was
nothing short of incredible. (See Letter from Welton
K. Wisham, Esq., to Court (May 23, 2016) (“Wisham
Letter”) (Dkt. No. 43).) Defendants' counsel,
ostensibly quoting from the Court's endorsement on
Plaintiffs' letter granting them additional time to
respond to Defendants' belated brief, insisted that
“reply motion for Summary Judgment
‘Responses were due by May 30, 2016. The order
is clear that responses are due on May 30, 2016, as opposed
to May 13, 2016, thus extending the time for both parties,
including the defendants, to file responses by May 30,
2016.” (See Id. at 1.) Defendants' counsel
again referenced in the letter the use of the word
“responses, ” and claimed that he relied
“in good faith” on the plain meaning of the word
“responses.” But if Defendants' counsel was
quoting from an order of the Court extending the time for
“responses, ” the ...