United States District Court, N.D. New York
KEVIN T. KAVANAUGH, Plaintiff,
VILLAGE OF GREEN ISLAND, et al., Defendants.
KINDLON LAW FIRM, PLLC ATTORNEYS FOR PLAINTIFF
NETTER, LAW FIRM ATTORNEYS FOR DEFENDANTS GREEN ISLAND AND
JOHNSON AND RICE
REHFUSS LAW FIRM, P.C. ATTORNEYS FOR DEFENDANTS CITY OF
ALBANY AND SCALISE
GENNARO D. CALABRESE, ESQ. ERIC M. KURTZ, ESQ. STEPHEN J.
MEMORANDUM-DECISION AND ORDER
J. STEWART UNITED STATES MAGISTRATE JUDGE
Kevin Kavanaugh brings this action against the Defendants
pursuant to 42 U.S.C. § 1983 and New York state law,
alleging claims arising out of his arrest on July 21, 2013.
Dkt. No. 103, Second Am. Compl. The case has now been
resolved against a large number of the original Defendants.
Dkt. Nos. 200, 209, & 211. The Defendants that remain
include the Village of Green Island, and its Police Officers
Paul Johnson and William Rice (“The Green Island
Defendants”), as well as the City of Albany and its
Police Officer Anthony Scalise (“The City of Albany
Defendants”). Presently before the Court is the City of
Albany Defendants' Motion for Partial Summary Judgment
and the Green Island Defendants' Motion for Summary
Judgment. Dkt. Nos. 183 & 188. For the reasons that
follow, the City of Albany Defendants' Motion is
granted, and the Green Island
Defendants' Motion is granted in part and denied
21, 2003 Plaintiff Kevin Kavanaugh was smoking marijuana
while operating his girlfriend's Honda Civic in the
Village of Green Island. Dkt. No. 188-5, Kavanaugh 50-h, at
pp. 13-16. The Village of Green Island Police attempted to
execute a traffic stop, but Plaintiff refused to pull over
because he did not have a license and had drugs in the car,
and instead led the police on a high-speed chase down
Interstate 787, reaching speeds in excess of 90 mph.
Id. at pp. 16-17. Engaged in the pursuit were two
Officers from Green Island, Officers Johnson and Rice, and an
Officer from the Watervliet Police, Anthony Harbour. Dkt. No.
188-8, Officer Johnson Dep., at pp. 14-15; Dkt No. 188-9,
Officer Rice Dep., at pp. 16-18; Dkt. No. 188-11, Officer
Harbour Dep., at p. 8. Plaintiff went West on Interstate 90,
and then turned off on the Henry Johnson Boulevard/Arbor Hill
exit. Kavanaugh 50-h, at p. 21. When Plaintiff reached the
Clinton Avenue intersection, he claims he encountered two
police cars from the City of Albany impeding his route,
and, having second thoughts about the actions that he had
taken to that point, he brought his vehicle to a complete
stop, thus ending the chase. Id. at pp. 21-22. While
sitting in his vehicle, Plaintiff then ingested the drug
ketamine, commonly referred to as “Special K.”
Id. at pp. 14 & 22.
at this point that the version of events differ significantly
between those alleged by Plaintiff and the moving Defendants.
Plaintiff maintains that Officer Johnson of the Green Island
Police approached his vehicle, and that Plaintiff got out of
the vehicle and indicated to Officer Johnson that he was not
resisting. Id. at pp. 25-26. Despite that, Plaintiff
claims that Officer Johnson took hold of him and slammed him
to the ground. Id. Other Officers then joined in,
and Plaintiff claims that he was hit with a nightstick; that
Officers had their knees on his back and neck; that other
Officers were standing on the back of his legs; all the while
a State Trooper was kicking him in the side of the head.
Id. Other Officers, including the Albany police,
allegedly observed this occurring but failed to intervene.
Id. at pp. 25-28. Plaintiff alleges that during this
time he told the Officers to stop hitting him. Id.
at p. 35.
Plaintiff alleges that he was handcuffed, picked up by
Officers and was walked by Officer Johnson over to a Village
of Green Island police car where his head was repeatedly
slammed into the roof of that car. Id. at pp. 31-32.
Plaintiff then claims, that while still handcuffed, Officer
Johnson “ripped” his right shoe off his foot, and
in doing so violently twisted his ankle causing him to yell
out. Id. at pp. 30-31; Dkt. No. 203-3, Kavanaugh
Aff'd, at ¶¶ 3-5. Plaintiff had numerous pins
in his right ankle as a result of a 2012 fall from a tree.
Kavanaugh 50-h at pp. 32-33. As a result of this event,
Plaintiff maintains that all portions of his body hurt and it
felt like he had been “hit by a Mack truck.”
Id. at p. 37.
was then transported to the Green Island Police Station,
where he asked for medical attention. Id. According
to Officer Johnson, Plaintiff complained of leg pain shortly
after the incident, and upon viewing the leg “[i]t just
looked like a dead leg, grayish white, like a wax museum leg
or something.” Officer Johnson Dep. at p. 32. Within
twenty minutes he was taken to the Samaritan Hospital and was
seen. Kavanaugh 50-h, pp. 37-38. Ultimately Plaintiff
maintains that as a result of this incident the circulation
to his right foot was severely impacted and, seven days after
the event, his right leg had to be amputated from the knee
down, at Albany Medical Center. Id. at pp. 41-42;
Kavanaugh Aff'd at ¶¶ 9-11; Dkt No. 203-2, pp.
Green Island Defendants, on the other hand, assert that it
was State Trooper Johnson who pulled Plaintiff from his
vehicle and, because Plaintiff was not compliant, Trooper
Johnson then took Plaintiff to the ground using an arm bar
technique. Trooper Johnson Dep. at pp. 15-17. Defendants
claim that while Plaintiff was on the ground he was still
resisting arrest by refusing to give up his arm, or by
pulling away from the Trooper, and it was only at this point
that Officer Johnson began to assist the Trooper in subduing
Plaintiff. Officer Johnson Dep. at p. 21. During the struggle
Trooper Johnson struck Plaintiff two to four times in the
back to gain compliance. Id.; Trooper Johnson Dep.
at p. 25. At that point in time Plaintiff was handcuffed and
put in a patrol car by Officer Johnson. Officer Johnson Dep.
at p. 23. Officer Johnson also took off Plaintiff's shoe,
but denies using any excessive force in doing so.
Id. at p. 26 (“they came off easy.”).
According to Officer Johnson, no other Police Officer struck,
punched or kicked Plaintiff during this time, except as
specifically stated above. Id. at pp. 23-26.
Officer Rice acknowledges being involved in the high-speed
pursuit with Plaintiff, he maintains that he was late to
arrive at the scene of the arrest because he stopped to pick
up a bag of drugs that the Plaintiff had thrown out his car
window during the course of the chase. Officer Rice Dep. at
p. 20. As a result, Officer Rice testified that when he
arrived at the scene the Plaintiff had already been subdued
and was leaning against the car with Officer Johnson removing
his shoes. Id. at pp. 23-25. Thus, he maintains he
did not use any excessive force against Plaintiff, nor was he
present when such force was used. Id.
the Defendants maintain that Plaintiff did not sustain any
acute injury, or aggravation of a previous injury, to his
right foot or ankle on the date of the incident. Defs.'
SMF at ¶ 35.
The Defendants' Motions
behalf of the Village of Green Island and its two officers,
Johnson and Rice, Green Island counsel asserts several points
in his Motion: (1) that the Officers were entitled to use
force to effectuate the lawful arrest of Plaintiff, and that
the admissible evidence establishes that force used was
reasonable as a matter of law and Plaintiff's claims to
the contrary are contradictory and not credible; (2) that
reasonable force does not become excessive simply because it
aggravates a pre-existing condition that was unknown to the
officers; (3) that there is no basis for a claim that the
Police Officers failed to intervene to stop excessive force;
(4) that, in any event, the Police Officers are entitled to
qualified immunity; (5) that Plaintiff's substantive due
process claim is duplicative of his excessive force claim and
must be dismissed; (6) that Plaintiff has failed to establish
a Monell claim regarding the Defendant Village's
alleged failure to train officers to intervene to stop
excessive force by fellow officers; (7) that the state law
claims of assault, battery, and intentional infliction of
emotional distress are barred by the one-year statue
limitations; (8) that any claims against Green Island
alleging vicarious responsibility should be dismissed; (9)
that a negligence claim cannot be properly asserted because
no such claim was included in the Notice of Claim, because
there has been no showing of a special duty, and because a
negligence claim cannot coexist with an excessive use of
force claim; (10) that the state law claim for negligent
infliction of emotional distress is duplicative of
Plaintiff's other claims; and (11) that any punitive
damage claim against a municipality cannot stand.
City of Albany's Motion is more narrowly tailored. The
Albany Defendants maintain that no Monell claim has
been established against the City for its alleged failure to
train its officers to intervene; that the claim for punitive
damages against the City of Albany is improper; and that the
Plaintiff's substantive due process claim should be
dismissed because it merely replicates his Fourth Amendment
opposes both Motions. Dkt. Nos. 193 & 203. However,
Plaintiff's counsel does concede that Plaintiff's
Twelfth Cause of Action, a § 1983 claim premised upon
alleged violations of the Substantive Due Process Clause, is
properly dismissed as duplicative of his Fourth Amendment
claim. Dkt. No. 203-1, Pl's Mem. of Law at p. 20.
Plaintiff also does not oppose dismissal of his Eighth Cause
of Action, alleging negligence against the Village of Green
Island, or his Eleventh Cause of Action, alleging negligent
infliction of emotional distress. Id. at pp. 17
& 20. Finally, Plaintiff concedes that an award of
punitive damages against a municipality is not allowed, and
clarifies that his claim for punitive damages is only against
the individual Police Officers. Id. at p. 20.
light of the foregoing, the only issues left to be decided on
the present Motions are whether a §1983 claim premised
upon Monell liability can proceed against the
Village and the City; whether questions of fact exist which
would require a trial concerning Plaintiff's allegations
of excessive force and failure to intervene, and whether the
Officers involved are entitled to qualified immunity; and
whether Plaintiff's state law claims can proceed, or are
barred on statute of limitations grounds or because of some
Summary Judgment Standard
to Fed.R.Civ.P. 56(a), summary judgment is appropriate only
where “there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of
law.” The moving party bears the burden to demonstrate
through “pleadings, depositions, answers to
interrogatories, and admissions on file, together with [ ]
affidavits, if any, ” that there is no genuine issue of
material fact. F.D.I.C. v. Giammettei, 34 F.3d 51,
54 (2d Cir. 1994) (quoting Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986)). “When a party has moved for
summary judgment on the basis of asserted facts supported as
required by [Federal Rule of Civil Procedure 56(e)] and has,
in accordance with local court rules, served a concise
statement of the material facts as to which ...