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Warr v. Liberatore

United States District Court, W.D. New York

September 5, 2017

BENNY T. WARR and NINA M. WARR, Plaintiffs,




         Plaintiffs 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. 88).

         For the reasons stated below, the motion is granted in part and denied in part.


         This 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).

         Surveillance 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).

         To 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).

         After 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).

         RPD has 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).


         Warr 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.[2](Id. at ¶¶ 165-67).

         I. Standard of Review

         Federal 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)).

         Once 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).

         II. Warr's Federal Claims

         A. Ferrigno and Liberatore Had Probable Cause to Arrest Warr

         The 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." (citation omitted)).

         Under 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.").

         "In 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).

         Here, 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 disperse; or
7. He creates a hazardous or physically offensive condition by any act which serves no ...

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