United States District Court, W.D. New York
BENNY T. WARR and NINA M. WARR, Plaintiffs,
ANTHONY R. LIBERATORE, JOSEPH M. FERRIGNO II, MITCHELL R. STEWART II, JAMES M. SHEPPARD, and CITY OF ROCHESTER, Defendants.
DECISION AND ORDER
ELIZABETH A. WOLFORD STATES DISTRICT JUDGE
Benny T. Warr ("Warr") and Nina M. Warr
(collectively, "Plaintiffs") filed this action on
September 19, 2013, alleging various claims pursuant to 42
U.S.C. § 1983, as well as claims under New York state
law. (Dkt. 1). Presently before the Court is a motion for
summary judgment pursuant to Federal Rule of Civil Procedure
56 by defendants Anthony R. Liberatore
("Liberatore"), Joseph M. Ferrigno II
("Ferrigno"), Mitchell R. Stewart II
("Stewart"), James M. Sheppard
("Sheppard"), and the City of Rochester ("the
City") (collectively, "Defendants"). (Dkt.
reasons stated below, the motion is granted in part and
denied in part.
FACTUAL BACKGROUND 
case arises out of Warr's arrest by Rochester Police
Department ("RPD") officers on May 1, 2013.
(See Dkt. 1). Liberatore and Ferrigno were patrol
officers with RPD at the time of the incident, and their area
of patrol included Jefferson Avenue in Rochester, New York.
(Dkt. 88-2 at ¶7; Dkt. 93 at ¶ 7). Both officers
went through police academy and field training prior to the
incident. (Dkt. 88-2 at ¶ 8; Dkt. 93 at ¶ 8). Warr,
who had been previously arrested, was at least six feet tall
and weighed at least 247 pounds at the time of the May 1,
2013, arrest. (See Dkt. 88-2 at ¶¶27, 40;
Dkt. 93 at ¶¶27, 40).
video of the incident shows Warr, who was using a wheelchair
at the time of his arrest, operating the wheelchair on the
street and sidewalk on Jefferson Avenue throughout the
afternoon and early evening of May 1, 2013. (See
Dkt. 88-2 at ¶ 17; Dkt. 93 at ¶ 17). At 8:14 PM,
Liberatore and Ferrigno called police dispatch to report
suspicious activity on the 500 block of Jefferson Avenue, and
proceeded to arrest Warr. (See Dkt. 88-2 at
¶¶ 9-10; Dkt. 93 at ¶ 9). Warr claims he was
waiting for the bus when he was arrested. (Dkt. 88-2 at
¶ 20; Dkt. 93 at ¶ 20).
effectuate the arrest, Ferrigno first administered pepper
spray to Warr's face. (Dkt. 88-2 at ¶ 23; Dkt. 93 at
¶ 23). After the pepper spray, the RPD officers removed
Warr from his wheelchair. (See Dkt. 88-2 at ¶
28; Dkt. 93 at ¶ 28). Warr had not been frisked or
checked for weapons before being removed from his wheelchair.
(Dkt. 88-2 at ¶ 28; Dkt. 93 at ¶ 28). Once on the
ground, Ferrigno administered knee strikes to Warr's
abdomen, and "administered a 3 point stance" in an
attempt to push Warr to the ground. (Dkt. 88-2 at ¶ 29;
see, e.g., Dkt. 93 at ¶ 29). Liberatore then
delivered an "elbow strike" to Warr's head.
(Dkt. 88-2 at ¶ 32; Dkt. 93 at ¶ 32).
being taken into custody, Warr was charged with disorderly
conduct, and transported to the hospital. (Dkt. 88-2 at
¶ 42; Dkt. 93 at ¶ 42). Warr received an
adjournment in contemplation of dismissal as to the
disorderly conduct charge. (Dkt. 88-2 at ¶ 43; Dkt. 93
at ¶ 43).
a Professional Standards Section ("PSS") that is
"assigned to review complaints against the police."
(Dkt. 93 at ¶ 63; see, e.g., Dkt. 88-2 at
¶ 63). "[B]ased upon the PSS investigation
materials . . ., the RPD and [Civilian Review Board]
exonerated Officers Ferrigno and Liberatore as to excessive
force." (Dkt. 93 at ¶ 67; see, e.g., Dkt.
88-2 at ¶ 67).
asserts ten claims. (Dkt. 1). Pursuant to § 1983, Warr
brings claims for: (1) illegal search and seizure against
Ferrigno, Liberatore, Stewart, and the City; (2) excessive
use of force against Ferrigno, Liberatore, Stewart, and the
City; (3) conspiracy to violate Warr's constitutional
rights against Ferrigno, Liberatore, and Stewart; (4)
"failure to implement policies, customs and
practices" claim against the City; and (5) a
Monell claim against the City and Sheppard.
(Id. at ¶¶ 67-117). Warr also brings
claims under New York state law for: (1) battery against
Ferrigno, Liberatore, Stewart, and the City; (2) assault
against Ferrigno, Liberatore, Stewart, and the City; (3)
intentional infliction of emotional distress against
Ferrigno, Liberatore, Stewart, and the City; (4) negligent
infliction of emotional distress against Ferrigno,
Liberatore, Stewart, and the City; and (5) negligence against
all Defendants. (Id. at ¶¶ 118-64).
Additionally, Nina Warr brings a claim for loss of consortium
against all Defendants.(Id. at ¶¶ 165-67).
Standard of Review
Rule of Civil Procedure 56 provides that summary judgment
should be granted if the moving party establishes "that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law."
Fed.R.Civ.P. 56(a). The court should grant summary judgment
if, after considering the evidence in the light most
favorable to the nonmoving party, the court finds that no
rational jury could find in favor of that party. See
Scott v. Harris, 550 U.S. 372, 380 (2007) (citing
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586-87 (1986)).
the moving party has met its burden, the opposing party
"must do more than simply show that there is some
metaphysical doubt as to the material facts. . . . [T]he
nonmoving party must come forward with specific facts showing
that there is a genuine issue for trial."
Caldarola v. Calabrese, 298 F.3d 156, 160 (2d Cir. 2002)
(quoting Matsushita Elec, 475 U.S. at 586-87).
"[T]he mere existence of some alleged factual
dispute between the parties will not defeat an otherwise
properly supported motion for summary judgment. . . ."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
247-48 (1986) (emphasis in original). "[O]nly admissible
evidence need be considered by the trial court in ruling on a
motion for summary judgment." Raskin v. Wyatt
Co., 125 F.3d 55, 66 (2d Cir. 1997).
Warr's Federal Claims
Ferrigno and Liberatore Had Probable Cause to Arrest
Court interprets Warr's claim for illegal search and
seizure as one for false arrest. (See Dkt. 1 at
¶69 (alleging that Defendants violated Warr's
"right to be free from unreasonable searches and
seizures. .. and the right to be free from false arrest. . .
."); Dkt. 92 at 11 (arguing that Defendants
"falsely arrested and unlawfully searched and seized
Warr since they clearly lacked probable cause to believe that
any crime had been committed by Warr prior to his arrest. . .
.")). Claims for false arrest may be brought pursuant to
§ 1983 because they implicate the Fourth Amendment's
protection of an individual's liberty interest.
Singer v. Fulton Cty. Sheriff, 63 F.3d 110, 115 (2d
Cir. 1995); see also Weyant v. Okst, 101 F.3d 845,
852 (2d Cir. 1996) ("A § 1983 claim for false
arrest, resting on the Fourth Amendment right of an
individual to be free from unreasonable seizures, including
arrest without probable cause, is substantially the same as a
claim for false arrest under New York law."). A
plaintiff bringing such a claim must meet the state law
requirements for the underlying tort, Manganiello v. City
of N.Y., 612 F.3d 149, 161 (2d Cir. 2010), and
"show some deprivation of liberty consistent with the
concept of 'seizure'" sufficient to implicate
the Fourth Amendment. Singer, 63 F.3d at 116;
see also Jaegly v. Couch, 439 F.3d 149, 152 (2d Cir.
2006) ("In analyzing § 1983 claims for
unconstitutional false arrest, we have generally looked to
the law of the state in which the arrest occurred."
New York law, a plaintiff claiming false arrest "must
show that '(1) the defendant intended to confine the
plaintiff, (2) the plaintiff was conscious of the
confinement, (3) the plaintiff did not consent to the
confinement, and (4) the confinement was not otherwise
privileged.'" Savino v. City of N.Y., 331
F.3d 63, 75 (quoting Bernard v. United States, 25
F.3d 98, 102 (2d Cir. 1994)). Although the "[l]ack of
probable cause is not an essential element, " to
establishing false arrest, Williams v. City of N.Y.,
No. 14-cv-5123 (NRB), 2015 WL 4461716, at *4 (S.D.N.Y. July
21, 2015) (citations omitted), "[t]he existence of
probable cause to arrest constitutes justification and
'is a complete defense to an action for false arrest. . .
.'" Weyant, 101 F.3d at 852; see, e.g.,
Singer, 63 F.3d at 118 ("There can be no federal
civil rights claim for false arrest where the arresting
officer had probable cause.").
general, probable cause to arrest exists when the officers
have knowledge or reasonably trustworthy information of facts
and circumstances that are sufficient to warrant a person of
reasonable caution in the belief that the person to be
arrested has committed or is committing a crime."
Weyant, 101 F.3d at 852. "The question of
whether or not probable cause existed may be determinable as
a matter of law if there is no dispute as to the pertinent
events and the knowledge of the officers, or may require a
trial if the facts are in dispute." Id.
(internal citations omitted).
Defendants argue that probable cause existed to arrest Warr.
(Dkt. 88-1 at 4-10). Warr was initially arrested for
disorderly conduct under N.Y. Penal Law § 240.20. (Dkt.
88-2 at ¶ 42; Dkt. 93 at ¶ 42; see, e.g.,
Dkt. 88-3 at 83). Under New York law:
A person is guilty of disorderly conduct when, with intent to
cause public inconvenience, annoyance or alarm, or recklessly
creating a risk thereof:
1. He engages in fighting or in violent, tumultuous or
threatening behavior; or
2. He makes unreasonable noise; or
3. In a public place, he uses abusive or obscene language, or
makes an obscene gesture; or
4. Without lawful authority, he disturbs any lawful assembly
or meeting of persons; or
5. He obstructs vehicular or pedestrian traffic; or
6. He congregates with other persons in a public place and
refuses to comply with a lawful order of the police to
7. He creates a hazardous or physically offensive condition
by any act which serves no ...