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Haynes v. Acquino

United States District Court, W.D. New York

June 26, 2018

BRENDA JOYCE HAYNES, Plaintiff,
v.
MIKE ACQUINO, WILLIAM REZABEK, JASON WHITENIGHT, BOHDAN PAPISZ, and JOHN SULLIVAN, Defendants.

          BRENDA JOYCE HAYNES, Pro Se

          TIMOTHY A. BALL CORPORATION COUNSEL, CITY OF BUFFALO Attorney for Defendants ROBERT E. QUINN, of Counsel.

          DECISION AND ORDER

          LESLIE G. FOSCHIO, UNITED STATES MAGISTRATE JUDGE.

         In this civil rights action, commenced April 29, 2010, Plaintiff alleges false arrest, excessive force and malicious prosecution against Defendants, police officers with the City of Buffalo Police Department. As relevant here, on February 3, 2009, Plaintiff was arrested when Defendants, on routine patrol, observed Plaintiff at a bus stop (“the bus stop”) on East Ferry Street in Buffalo, New York, screaming and yelling obscenities. When Plaintiff refused Defendants Acquino and Rezabek's order to approach the patrol vehicle and provide identification, Defendants Acquino and Rezabek exited the vehicle and instructed Plaintiff to place her hands on the patrol vehicle, advising Plaintiff was suspected of disorderly conduct.[1] Plaintiff then, while attempting to produce identification, pulled crack cocaine from her pocket, smashing it on the patrol vehicle. When Plaintiff pulled the crack from her pocket, one of the officers observed a crack pipe in Plaintiff's pocket, and then arrested Plaintiff, charging her with two counts of Criminal Possession of a Controlled Substance in the Seventh Degree (New York Penal Law (“N.Y. Penal Law”) § 220.03) (“Criminal Possession charges”), and one count each of Obstructing Governmental Administration in the Second Degree (N.Y. Penal Law § 195.05) (“Obstruction charge”), Disorderly Conduct (N.Y. Penal Law § 240.20(3)) (“Disorderly Conduct charge”), and Criminal Tampering in the Third Degree (N.Y. Penal Law § 145.14) (“Criminal Tampering charge”). Plaintiff represented herself throughout the ensuing criminal proceedings in Buffalo City Court on the charges, despite repeated admonitions from Buffalo City Court Judge Joseph A. Fiorella (“Judge Fiorella”), that Plaintiff should obtain counsel or accept representation by the Public Defender.

         At the conclusion of a probable cause hearing on July 16, 2009, Judge Fiorella denied Plaintiff's motion to dismiss the accusatory instrument for facial insufficiency and lack of probable cause to arrest. (Dkt. 123-2) (“Preliminary Dismissal Decision”). Similarly, at the conclusion of a suppression hearing on September 17, 2009 (“Suppression Hearing”), Judge Fiorella denied Plaintiff's motion to suppress the crack cocaine and crack pipe. (Dkt. 123-3) (“Preliminary Suppression Decision”). In a decision dated December 22, 2009 (Dkt. 123-4) (“Dismissal Decision”), Judge Fiorella reconsidered, sua sponte, his July 16, 2009 Preliminary Dismissal Decision denying Plaintiff's motion to dismiss the accusatory instrument, and dismissed the Obstruction, Disorderly Conduct, and Criminal Tampering charges for facial insufficiency of the accusatory instrument. As particularly relevant here, Judge Fiorella dismissed the Disorderly Conduct charge for want of any allegation that Plaintiff “specifically annoyed, disturbed, or interfered with any member of the public, ” and the information's failure to allege that Plaintiff's “conduct actually annoyed anyone, ” such that the proscribed conduct could not be “of public rather than individual dimension.” Dkt. 123-4 at 3-4. The Dismissal Decision, however, did not address the validity of the warrantless arrest of Plaintiff on February 3, 2009. In another Decision, also dated December 22, 2009 (Dkt. 123-5) (“Suppression Decision”), Judge Fiorella rescinded the September 17, 2009 Preliminary Suppression Decision, determining Defendants were without probable cause to arrest Plaintiff on February 3, 2009, for disorderly conduct because Plaintiff, when initially seized, i.e., in complying with the officers' request to provide identification, was not suspected of any criminal activity, but only of a disorderly conduct violation for which probable cause was lacking, and suppressed the subsequent discovery of the crack cocaine and crack pipe. Dkt. 123-5.

         On January 21, 2010, the Suppression Decision was appealed to County Court of Erie County (“Erie County Court”) (“Suppression Decision Appeal”), Dkt. 123-6 at 4, and in an August 20, 2010 Memorandum Decision and Order (“Appeal Decision”) (Dkt. 23-7), was reversed by Erie County Court Judge Sheila A. DiTullio (“Judge DiTullio”). In particular, Judge DiTullio found that in holding the police lacked probable cause to arrest Plaintiff for disorderly conduct, Judge Fiorella erroneously relied upon New York Criminal Procedure Law (“N.Y. Crim. Proc. Law”) § 140.50, pertaining to temporary questioning upon reasonable suspicion that a crime has been or is about to be committed, rather than N.Y. Crim. Proc. Law § 140.10(1)(a) and (2)(a), permitting a warrantless arrest for disorderly conduct when committed in the officers' presence. Appeal Decision at 1-2. Because the Suppression Hearing testimony established Defendant Buffalo Police Officers (“police officers”) Michael Acquino (“Acquino”), and Michael Rezabek (“Rezabek”), observed Plaintiff shouting obscenities while at the bus stop loud enough to catch the attention of the police officers “and others in the vicinity, ” id. at 2, Judge DiTullio found the police officers had probable cause to arrest Plaintiff under N.Y. Crim. Proc. Law § 140.10(1)(a) and (2)(a), for disorderly conduct, despite lacking any suspicion that Plaintiff had committed or was about to commit a felony or misdemeanor, such as possession of narcotics and related paraphernalia, as required to justify stopping Plaintiff and making an inquiry pursuant to N.Y. Crim. Proc. Law § 140.50. Id. Judge DiTullio further held that “absent a specific finding by the [lower][2]court that the officers' testimony was not credible and that they had not observed a violation level offense, [Plaintiff's] arrest and the items seized incident thereto should have been deemed lawful.” Id. at 3. Accordingly, the Suppression Decision was reversed. Id.

         While the Suppression Decision was pending on appeal in Erie County Court, Plaintiff, on April 29, 2010, commenced the instant § 1983 action pro se. Discovery ensued with Plaintiff filing on October 6, 2011, a motion to compel responses to discovery requests and for sanctions, which Defendants never opposed and which was granted by the undersigned at oral argument on December 5, 2011. Dkt. 28. Unsuccessful settlement discussions were held and, on October 27, 2012, Plaintiff moved for summary judgment (Dkt. 35), which was denied by District Judge William M. Skretny on January 22, 2014 (Dkt. 45). On July 10, 2014, a notice of appearance of counsel on Plaintiff's behalf was filed by Brian J. Bogner, Esq. (Dkt. 51), and further mediation was pursued at which Bogner represented Plaintiff. On March 4, 2015, jury trial was scheduled for September 23, 2015, (Dkt. 66), and on March 9, 2015, the parties consented pursuant to 28 U.S.C. § 636(c) to proceed before the undersigned. (Dkt. 68). On September 2, 2015, a notice of appearance of counsel on Plaintiff's behalf was filed by Frank L. LoTempio, III, Esq. (Dkt. 69).

         On September 8, 2015, the parties filed pretrial statements. (Dkts. 71 and 72). On September 15, 2015, the parties appeared for a final pretrial conference, (Dkt. 75), and LoTempio was substituted for Bogner as Plaintiff's counsel. (Dkt. 76). Prior to trial the undersigned, on September 16, 2015, granted Defendants' motion in limine seeking to preclude from evidence the Suppression Decision in which Judge Fiorella found a lack of probable cause for Plaintiff's arrest on the underlying criminal charges (Dkt. 77) (“September 16, 2015 Decision”). The scheduled trial was adjourned at the parties' request to allow the parties to continue mediation. (Dkt. 78). Mediation continued and on April 5, 2016, a final pretrial conference was held at which LoTempio moved to withdraw as Plaintiff's counsel. Dkt. 84. The undersigned granted the motion without Plaintiff's objection and Plaintiff proceeded pro se, despite the undersigned's informing Plaintiff trial could be adjourned while Plaintiff sought new counsel. See Dkt. 85-1 ¶¶ 14-15, 22-23 (memorializing that after LoTempio was permitted to withdraw as Plaintiff's counsel, the trial was adjourned for thirty days, at Plaintiff's request, to permit Plaintiff to retrieve her file from LoTempio and seek new counsel). Plaintiff stated she was waiting to hear from some attorneys she had contacted for possible representation, but was ready to try the case pro se. Plaintiff was unable to find new counsel and on June 1, 2016, trial was scheduled for June 7, 2016. (Dkt. 87).

         Following a four-day jury trial, on June 10, 2016, the jury returned a verdict in favor of all Defendants and, based on Special Interrogatories completed by the jury on the existence of Defendants' probable cause to arrest Plaintiff and Defendants' use of reasonable force, the undersigned, by Decision and Order filed June 14, 2016, found Defendants were entitled to qualified immunity on all claims, and dismissed the claims on that ground (Dkt. 100) (“June 14, 2016 Decision”). Judgment in favor of all Defendants based on the verdict also was entered on June 28, 2016 (Dkt. 102).

         Plaintiff filed an appeal to the Second Circuit Court of Appeals. In a Summary Order filed August 24, 2017 (Dkt. 111) (“Second Circuit's Mandate”), the Second Circuit found the undersigned's determination that the City Court Order, i.e., the Suppression Decision, was not entitled to preclusive effect was correct, yet found legal error insofar as the Suppression Decision was precluded under Fed.R.Evid. 403 because the undersigned found the decision was inadmissible, and vacated and remanded the matter to this court for further proceedings. At a scheduling conference held September 21, 2017, the undersigned, in accordance with the Second Circuit's Mandate, inquired whether Plaintiff would like the court to assign counsel, but Plaintiff declined assigned counsel stating she would proceed pro se. (Dkt. 114). By Order entered September 25, 2017 (Dkt. 115), a new trial was scheduled for January 16, 2018. On November 29, 2017, Plaintiff filed a petition for a writ of certiorari with the United States Supreme Court seeking review of the Second Circuit's determination that the Suppression Decision was not entitled to preclusive effect.

         On December 6, 2017, Plaintiff filed a motion for summary judgment (Dkt. 116), which the undersigned denied on December 11, 2017 (Dkt. 117). On December 20, 2017, Plaintiff filed an interlocutory appeal (Dkt. 119), challenging the denial of summary judgment, but did not seek to stay proceedings pending resolution of her interlocutory appeal.

         On January 9, 2018, Defendants filed a motion in limine to alter judgment (Dkt. 123) (“Defendants' Motion in Limine”), again seeking an order precluding from evidence on retrial the Suppression Decision, requesting the undersigned reconsider the Suppression Decision in accordance with the Second Circuit's Mandate and, assuming the court would, upon reconsideration, adhere to its September 16, 2015 Decision of preclusion, reinstate the court's June 28, 2016 order finding Defendants qualifiedly immune from liability on all of Plaintiff's claims, dismissing the claims and reinstating the judgment for Defendants. By motion filed January 9, 2018 (Dkt. 125), Plaintiff moved to stay the court's decision on Defendants' Motion in Limine, which was granted by Decision and Order dated February 1, 2018, because the court's decision on Defendants' Motion in Limine could be affected by a decision of the Supreme Court or the Second Circuit. (Dkt. 130). On January 23, 2018, Plaintiff filed her Objection to Defendants' Dispositive Motion in Limine (Dkt. 128) (“Plaintiff's Response”).

         On February 20, 2018, the Supreme Court denied Plaintiff's petition for writ of certiorari. Haynes v. Acquino, ___ U.S. ___; 138 S.Ct. 989 (2018). On April 27, 2018, the Second Circuit denied Plaintiff's interlocutory appeal (Dkt. 131). On May 14, 2018, Plaintiff's petition for rehearing was denied by the Supreme Court. Haynes v. Acquino, ___ U.S. ___; ___ S.Ct. ___; 2018 WL 2186309 (May 14, 2018). Because the resolution of both matters on which the stay was predicated obviates the need for the stay, the stay is hereby VACATED and the court now addresses Defendants' Motion in Limine.

         On appeal from the trial, the Second Circuit found the undersigned erred by deeming irrelevant and redacting the Suppression Decision ruling, and by analyzing the admissibility of the ruling's probable cause determination on the Disorderly Conduct charge under Fed.R.Evid. 403 (“Rule 403”), without adequately considering its probative effect. Second Circuit Mandate at 3-4. Even assuming, arguendo, the probable cause determination in the Suppression Decision was relevant and thus admissible as found in the Second Circuit's mandate under Fed.R.Evid. 401, it was properly excluded under Rule 403 because its probative value was substantially outweighed by the danger of unfair prejudice to Defendants.

         Specifically, “[t]he court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” Fed.R.Evid. 403. “The trial court has broad discretion in determining whether proffered evidence should be admitted.” Zurich American Ins. Co. v. ABM ...


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