United States District Court, S.D. New York
OPINION AND ORDER
KATHERINE POLK FAILLA, District Judge :
Timothy John Kennedy alleges excessive force under 42 U.S.C.
§ 1983, as well as state-law assault and battery,
against three current and former officers of the New York
City Police Department who were involved in Plaintiff's
arrest and related events on February 26, 2011. This Court
previously granted Defendants' motion to dismiss
additional claims against other individual defendants and the
City of New York. (Dkt. #109). The Court assumes familiarity
with that Opinion and the facts described therein. The three
remaining individual defendants - Retired Police Officer
Christopher Noto, Detective Jennifer O'Connell, and
Lieutenant Andrew Arias - have now moved for summary judgment
on all remaining claims pursuant to Rule 56 of the Federal
Rules of Civil Procedure. For the reasons set forth in the
remainder of this Opinion, the Court grants Defendants'
motion in part and denies it in part. Specifically, as to the
excessive force claims, the Court denies the motion as to
Defendants Noto and O'Connell and grants it as to
Defendant Arias; and as to the state-law claims, the Court
grants Defendants' motion in full.
about December 17, 2010, a complaining witness reported to a
non-party police officer that she saw “an unknown male
white, in his mid-forties, approx[imately] 5'10, ”
slim build, dark hair, clean shaven, with very large,
distinct eyes” kneeling near the rear driver's side
of a vehicle, and that when she approached the man ran away
and “she heard a hissing noise emanating from the rear
[driver's] side door.” (Def. 56.1 ¶ 9). A
canvass of the area “revealed that a [male fitting] the
listed description, [Plaintiff], reside[d] within the
building” into which the perpetrator fled. (Def. Ex. J
(Arrest Report)). Officer Christopher Noto, now retired,
arrested Plaintiff on or about February 26, 2011, at
approximately 7:30 p.m. on charges of Criminal Mischief in
the Fourth Degree and Resisting Arrest (Def. 56.1
¶¶ 10-11); of particular relevance to the instant
motion, Plaintiff denies having resisted (Pl. 56.1 Opp.
¶ 1). Detective Jennifer O'Connell, then Jennifer
Longo, was Officer Noto's assigned partner on February
26, 2011, and thus was also present for Plaintiff's
arrest. (Def. 56.1 ¶ 12).
alleges that during his arrest, he was “attacked from
behind, knocked to the ground, and his face was repeatedly
bashed into the sidewalk” (Second Amended Complaint,
“SAC, ” ¶ 2 (Dkt. #63)), and that Officer
Noto “grabbed his crotch” two times (id.
at ¶ 4). Plaintiff cannot “visually
identify” his assailants. (Pl. 56.1 Opp. ¶ 9). He
does not remember seeing a female officer (Def. 56.1 ¶
26), but “may have heard a female voice” (Pl.
56.1 Opp. ¶ 10; Def. Ex. P (Kennedy Dep.) at 52:5-6).
Plaintiff claims to have lost consciousness sometime after
being placed into a vehicle at the scene of his arrest (Def.
56.1 ¶ 27), but has some recollection of later events
(Pl. 56.1 Opp. ¶ 11).
his arrest, Plaintiff was transported to the 20th Precinct.
(Def. 56.1 ¶ 13). Plaintiff alleges that, while at the
stationhouse, “someone representing himself as a
sergeant, was digging something into his [chest saying, ]
‘Talk to me, Mr. Kennedy. If you don't talk to me,
I'm going to keep doing this all night.'” (SAC
¶ 7). Lieutenant Andrew Arias was the desk sergeant on
duty at the 20th Precinct on the evening of February 26,
2011. (Def. 56.1 ¶ 15). Plaintiff did not see the person
who allegedly dug an object into his chest, possibly because
he was in and out of consciousness. (Pl. 56.1 Opp. ¶ 8).
Emergency Medical Technicians were called at approximately
7:43 p.m. and arrived at the 20th Precinct at approximately
7:55 p.m. (Def. 56.1 ¶ 14). Plaintiff was then
transported to St. Luke's Roosevelt Hospital at
approximately 8:03 p.m. (Id. at ¶ 16).
was admitted to St. Luke's Roosevelt Hospital and
intubated for airway protection following a period of
unresponsiveness. (Def. 56.1 ¶ 17). While there, a
series of head trauma etiologies came back negative.
(Id.). Defendants acknowledge that on February 26,
2011, after physical examinations, Plaintiff was found to
have a “small abrasion to the right eye, small right
facial forehead abrasion, and bruising over the right
zygomatic area and right eyebrow[.]” (Id. at
¶ 18). Plaintiff objects to Defendants'
“partial list, ” which he considers an attempt to
“trivialize” his injuries. (Pl. 56.1 Opp. ¶
4). The additional injuries that Plaintiff lists, for which
there is supporting evidence in the record, are: (i) a
three-centimeter abrasion to the upper sternum (Pl. Ex. C,
Dkt. #159-5, at 37); (ii) disc protrusion at ¶ 4-C5 (Dkt.
#159-6, at 10; Dkt. #159-5, at 13-14); and (iii) complaints
of an eye injury with vision impairment (Dkt. #159-5, at 3).
Plaintiff also claims Post-Traumatic Stress Disorder
(“PTSD”) attributable to the incident. (Pl. 56.1
Opp. ¶ 4; Def. Ex. R, at ¶ 000096-97). Somewhat
curiously, Defendants make no argument that these other
injuries existed prior to Plaintiff's arrest. In fact,
they wholly fail to address these injuries in their briefing.
was eventually diagnosed with a factitious coma and
discharged from St. Luke's Roosevelt Hospital on March 3,
2011. (Def. 56.1 ¶ 19; Def. Ex. R, at ¶ 000091).
Plaintiff's Prosecution and Conviction
a criminal trial before Justice Thomas Farber of the Supreme
Court of New York, New York County, Plaintiff was convicted
of Attempted Criminal Mischief in the Fourth Degree on
December 17, 2012. (Def. 56.1 ¶ 23; Pl. Ex. K (Trial
Transcript)). He was sentenced to a conditional
discharge with restitution and ten days of community service.
(Pl. Ex. K, Dkt. #159-22, at 28).
Original Pleadings and Defendants' Motion to
filed a Notice of Claim against the City of New York on or
about May 27, 2011. (Def. 56.1 ¶ 20; Def. Ex. S (Notice
of Claim)). The Notice of Claim listed Jason A. Steinberger
as Plaintiff's attorney. (Def. 56.1 ¶ 21; Def. Ex.
S). Notice of a hearing under New York General Municipal Law
§ 50-h (the “50-h Hearing”) was mailed to
Steinberger on June 20, 2011. (Def. Ex. T (Notice of 50-h
Hearing); Def. Ex. X ¶ 8 (Decl. of Michael Harary)).
Plaintiff and his counsel did not appear for the 50-h Hearing
or request an adjournment. (Def. 56.1 ¶ 22). Plaintiff
states that he did not receive notice of the 50-h Hearing.
(Pl. 56.1 Opp. ¶ 6).
filed his original pro se complaint in this matter
on May 24, 2012, naming the City of New York, seven John Doe
police officers, and one civilian Jane Doe as defendants.
(Dkt. #2). On November 27, 2013, Kennedy filed his First
Amended Complaint (Dkt. #29), and finally, on August 11,
2014, he filed his Second Amended Complaint - the operative
complaint in this litigation. (Dkt. #63). The City filed its
Answer on August 21, 2014. (Dkt. #64). On March 5, 2015, the
City and Individual Defendants Arias, Bast, Clifford, Conde,
and Gbonoi jointly filed a motion to dismiss pursuant to
Federal Rules of Civil Procedure 12(c) and 12(b)(6). (Dkt.
October 23, 2015 Opinion and Order, this Court dismissed
Plaintiff's claim against the City for failure to
instruct, supervise, and control under 42 U.S.C. § 1983;
his claims against the moving Individual Defendants for false
arrest, false imprisonment, malicious prosecution, and
defamation under both New York law and § 1983;
deliberate indifference, unlawful search and seizure, and
deprivation of property under § 1983; and his claim for
intentional infliction of emotional distress under New York
law. Kennedy v. City of New York, No. 12 Civ. 4166
(KPF), 2015 WL 6442237, at *18 (S.D.N.Y. Oct. 23, 2015). The
Court denied Defendants' motion to dismiss
Plaintiff's claims of excessive force, assault, and
battery against Defendant Arias. (Id.). As
Defendants Noto and O'Connell had not moved to dismiss,
these same three claims remain as to them. (Id.).
Medical Record Discovery Disputes
16, 2016, Defendants requested a four-month extension of the
deadline for fact discovery in this case. (Dkt. #129). In its
Endorsement issued the same day, the Court granted the
request, but noted that “[n]o further extensions will
be granted” because the additional four-month period
“strikes the Court as likely longer than
necessary[.]” (Dkt. #130). Then on September 21, 2016,
Defendants submitted a letter requesting a further two-month
extension for fact discovery. (Dkt. #141). Discovery was
scheduled to conclude on September 27, 2016, but was stayed
by the Court's endorsement of that same date.
(Id.). After an October 18, 2016 conference - having
considered the submissions of the parties (Dkt. #141-42), and
spoken with each - the Court denied the defense application
in its October 21, 2016 Order (Dkt. #143).
Court denied the extension application in part because it was
not convinced that Defendants had acted with sufficient
diligence to obtain the medical records at issue. (Dkt.
#143). However, because several requests for documents to
various medical treatment facilities had gone unanswered, the
Court allowed a brief window of time for Defendants to
receive materials from those providers, with the conditions
that they be received from the providers and produced to
Plaintiff by November 4, 2016. (Id.). Regarding
Plaintiff's objections to any extension of the discovery
period, the Court observed that Plaintiff's own failure
to produce substantiating medical records “may restrict
him to seeking only ‘garden variety' emotional
distress damages. (Id. (citing Olsen v. Cty. of
Nassau, 615 F.Supp.2d 35, 46 (E.D.N.Y. 2009))).
Discovery was thus concluded. (Id.).
The Instant Motion for Summary Judgment
January 6 and 7, 2017, Defendants filed their motion for
summary judgment and supporting documentation. (Dkt.
#152-156). On February 17, 2017, Plaintiff requested an
extension of time to respond to Defendants' motion, which
request was granted. (Dkt. #158). On February 21, 2017,
Plaintiff filed his opposition brief and materials (Dkt.
#159), including supplemental medical records. Defendants
requested an extension of time to reply on March 1, 2017
(Dkt. #160), which request was also granted (Dkt. #161). On
March 20, 2017, Defendants filed a second Declaration in
Support of their motion and a Reply Memorandum of Law,
arguing that the supplemental medical records ought not be
considered. (Dkt. #162-163). And finally, on April 4, 2017,
Plaintiff filed a letter in response to Defendants'
preclusion of medical records argument. (Dkt. #164).
The Court Will Consider Plaintiff's Local Civil Rule 56.1
Local Civil Rules of the United States District Courts for
the Southern and Eastern Districts of New York apply to this
lawsuit. In compliance with Local Civil Rules 56.1(a) and
56.2, Defendants included with their motion papers a
Statement of Material Facts “as to which they contend
there is no genuine issue to be tried” as well as the
appropriate Notice to Pro Se Litigants. (Dkt. #155, 153).
See L. Civ. R. 56.1(a), 56.2. In their Reply,
Defendants contend that Plaintiff has not complied with his
concomitant obligations under the Local Rules and, thus, that
his Opposition ought to be disregarded and Defendants'
56.1 Statement deemed admitted for purposes of this motion.
(Def. Reply 7).
Rule 56.1 requires that “[t]he papers opposing a motion
for summary judgment shall include a correspondingly numbered
paragraph responding to each numbers paragraph in the
statement of the moving party, ” L. Civ. R. 56.1(b),
and that each statement “be followed by a citation to
evidence which would be admissible, set forth as required by
Fed.R.Civ.P. 56(c), ” L. Civ. R. 56.1(d). The rule
further provides that “[e]ach numbered paragraph in the
statement of material facts … will be deemed to be
admitted for purposes of the motion unless specifically
controverted by a correspondingly numbered paragraph in the
statement required to be served by the opposing party.”
L. Civ. R. 56.1(c).
true that Plaintiff's Opposition is not in strict
compliance with Local Rule 56.1. It does, however, present a
series of factual assertions and arguments. It also names
specific paragraphs of Defendants' 56.1 Statement to
which it responds. “[W]here a pro se plaintiff
fails to submit a proper [opposing statement] …, the
Court retains some discretion to consider the substance of
the plaintiff's arguments, where actually supported by
evidentiary submissions.” Wali v. One Source
Co., 678 F.Supp.2d 170, 178 (S.D.N.Y. 2009) (citations
omitted); accord Diagne v. N.Y. Life Ins. ...