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Kavanaugh v. Village of Green Island

United States District Court, N.D. New York

February 22, 2018

KEVIN T. KAVANAUGH, Plaintiff,
v.
VILLAGE OF GREEN ISLAND, et al., Defendants.

          THE KINDLON LAW FIRM, PLLC ATTORNEYS FOR PLAINTIFF

          COOK, NETTER, LAW FIRM ATTORNEYS FOR DEFENDANTS GREEN ISLAND AND JOHNSON AND RICE

          THE REHFUSS LAW FIRM, P.C. ATTORNEYS FOR DEFENDANTS CITY OF ALBANY AND SCALISE

          GENNARO D. CALABRESE, ESQ. ERIC M. KURTZ, ESQ. STEPHEN J. REHFUSS, ESQ.

          MEMORANDUM-DECISION AND ORDER

          DANIEL J. STEWART UNITED STATES MAGISTRATE JUDGE

         I. Introduction

         Plaintiff 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 in part.

         II. Facts

         On July 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, [1] 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.

         It is 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.

         Next, 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.

         Plaintiff 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. 14-17.

         The 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.

         While 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.

         Finally, 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.

         III. The Defendants' Motions

         On 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.

         The 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 claim.

         Plaintiff 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.

         In 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 other impediment.

         IV. Discussion

         A. Summary Judgment Standard

         Pursuant 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 ...


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