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Kennedy v. Arias

United States District Court, S.D. New York

July 5, 2017



          KATHERINE POLK FAILLA, District Judge [1]:

         Plaintiff 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.


         A. Factual Background

         1. Plaintiff's Arrest

         On or 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).

         Plaintiff 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).

         After 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).

         2. Plaintiff's Injuries

         Plaintiff 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);[3] (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.

         Plaintiff 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).

         3. Plaintiff's Prosecution and Conviction

         Following 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)).[4] He was sentenced to a conditional discharge with restitution and ten days of community service. (Pl. Ex. K, Dkt. #159-22, at 28).

         B. Procedural Background

         1. Original Pleadings and Defendants' Motion to Dismiss

         Plaintiff 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).

         Plaintiff 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. #99-100).

         In its 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.).

         2. Medical Record Discovery Disputes

         On May 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).

         The 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.).

         3. The Instant Motion for Summary Judgment

         On 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).


         A. Preliminary Matters

         1. The Court Will Consider Plaintiff's Local Civil Rule 56.1 Opposition Statement

         The 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).

         Local 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).

         It is 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. ...

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