Davis v. City of Rochester

1

J'ENTLE DAVIS, as administrator of the estate of decedent Phyllis Harmon, Plaintiff, v. CITY OF ROCHESTER, et al., Defendants.

No. 14-CV-6562L

United States District Court, W.D. New York

October 12, 2022

DECISION AND ORDER

DAVID G. LARIMER United States District Judge

This action was brought by Phyllis Harmon in January 2018 asserting claims against the City of Rochester (“City”), the Rochester Police Department (“RPD”), and RPD officers Brian Marone and Joseph Reidy, pursuant to 42 U.S.C. § 1983. In her pro se complaint, Harmon alleged that the individual defendants falsely arrested her and used excessive force during the arrest.

On March 29, 2017, the Court issued a Decision and Order (Dkt #27) granting in part and denying in part defendants' motion for summary judgment. Harmon v. City of Rochester, 2017 WL 1164404 (W.D.N.Y. Mar. 29, 2017). The Court dismissed all the claims against the City and the RPD as well as the false-arrest claim against Marone and Reidy. Harmon's claims for excessive force and failure to protect were allowed to proceed.

Attorney Michael Jos. Witmer appeared as retained counsel for Harmon in April 2018. (Dkt. #52.) On October 13, 2020, counsel for both sides filed a stipulation (Dkt. #105) to substitute J'entle Davis as plaintiff, following Harmon's death in June 2020. An order to that effect was duly entered. (Dkt. #106.)

Following the Court's prior summary judgment decision and Witmer's appearance in the case, discovery continued, and is now closed.

Marone and Reidy have moved again for summary judgment dismissing the remaining claims against them. (Dkt. #128.) Plaintiff has filed a response in opposition to the motion. (Dkt. #130.)

The motion for entry of summary judgment in favor of the remaining defendants is granted and the complaint is dismissed.

FACTUAL BACKGROUND

Much of the relevant factual background is set forth in the Court's 2017 decision, familiarity with which is assumed. Some of the facts laid out here are also taken from defendants' Rule 56 Statement (Dkt. #128-1), which has not been contradicted by plaintiff, as explained later in this Decision and Order.

In brief, on Sunday morning, July 14, 2013, Officers Marone and Reidy were summoned to plaintiff's residence at 111 Atkinson Street in Rochester, in response to a 911 call. Reidy arrived first, parked his vehicle in front of the house, got out and walked toward the house.

Harmon was standing outside the house, as was a man, Ulysses Betances.^[1] Betances explained to Reidy that he was a contractor and had been hired by Harmon to perform some lead abatement work inside her house. He had left some tools in the house, and went there that morning to retrieve them in advance of a job at a different site the next day, but Harmon would not let him in or give him his tools. Harmon confirmed that she would not allow Betances into her home, stating that it would take “God himself” to do so.

During this conversation, Officer Marone arrived in his vehicle, parked and walked over. At some point, Harmon walked away, toward the street. Betances showed the officers documentation from the City authorizing him to do lead abatement work in the house, and that he had a key to the house. The officers told him that he could go in and get his tools, which were visible through a window.

As Betances was entering the house, Harmon came back and walked up the steps toward the door. Marone stepped between Harmon and the door to prevent her from entering.

A physical altercation ensued. Marone testified at his deposition that he put his arms up to block Harmon, and that she “like swatted my hand away and punched me in the chest.” (Def. Ex. F at 9.) He stated that he was not injured, but “kind of shocked” that she would do that. Id.

Marone testified that he told Harmon she was under arrest, and he and Reidy attempted to handcuff her. Harmon physically resisted, and Marone warned her that if she did not cooperate, he would use pepper spray on her. Harmon continued to struggle, and Marone applied a burst of pepper spray into her face. She continued to resist, but the officers got her down onto the floor of the porch and were able to place handcuffs on her behind her back.

At the time of her death, Harmon had not been deposed in this action. In November 2018, however, she was interviewed by two sergeants from the RPD Professional Standards Section (“PSS”), concerning these events. She stated that after Betances entered the house, Marone “barricaded” the door, and when she got down to peer inside, Marone got her in a headlock between his legs. Eventually he released her and she fell backwards. Harmon testified that she when got to her feet, Harmon falsely accused her of hitting him, lifted her up and shoved her against the door, pepper sprayed her, and slammed her to the floor of the porch. Reidy joined in, repeatedly “smashing [her] head into the porch.” Eventually she was handcuffed and gotten to her feet. (Def. Ex. A at 12-22.)

When Harmon complained that she was having difficulty breathing (apparently because of the pepper spray), an ambulance was summoned, and she was taken to the Emergency Department at Strong Memorial Hospital in Rochester. She was administered an eyewash for the pepper spray, and it was noted that she did not appear to have sustained any physical injuries. A few hours later, she was released.^[2]

DISCUSSION

I. Plaintiff's Response to Defendant's Motion

In response to defendants' motion for summary judgment, plaintiff, through counsel, filed a nine-page “Opposition” (Dkt. #130), about half of which recites the factual and procedural history of the case, with the other half given over to legal argument. Accompanying the Opposition are several exhibits: a copy of this Court's prior summary judgment decision, a transcript of a May 23, 2017 status conference in this case, a transcript of Harmon's testimony before the PSS, and a transcript of a proceeding in Rochester City Court from an action that Harmon brought against Betances to recover the value of some items that she alleged he had stolen from her home.

Notably absent from plaintiff's filing is a response to defendants' Rule 56 Statement of material facts (Dkt. #128-1). Rule 56(e) of the Federal Rules of Civil Procedure provides that if the non-moving party fails to respond to a summary judgment motion by setting forth “specific facts showing that there is a genuine issue for trial,” then “summary judgment, if appropriate, shall be entered against the adverse party.” Local Rule 56 also provides that all material facts set forth in the movant's statement of material facts “will be deemed admitted unless controverted by the statement required to be served by the opposing party.”

The Court has enforced that rule in a number of cases, usually in actions brought by pro se litigants. See, e.g., Strong v. Gorman, 310 F.Supp.3d 380, 382 (W.D.N.Y. 2018); Swift v. Tweddell, 582 F.Supp.2d 437, 441-42 (W.D.N.Y. 2008). In pro se cases, out of an abundance of caution the Court routinely sends the pro se litigant a notice advising the litigant of the importance of responding properly to the summary judgment motion, and the consequences of not doing so.

In the case at bar, plaintiff is represented by counsel, who is presumed to be aware of the requirements of the Federal and Local Rules. In response to defendants' motion, however, counsel has submitted only a short response that says little more than that the Court should reject defendants' motion out of hand, on the ground that defendants are attempting to relitigate matters that have already been decided by the Court.

Apparently counsel simply assumed that the Court would agree with that argument, and operating on that assumption, saw no point in including a responsive statement setting forth the facts that are alleged to be in dispute, as required by the Local Rules. As explained below, I do not agree with plaintiff's argument, and I will consider and decide defendants' motion on the merits. Because plaintiff has not properly responded to defendants' Rule 56 Statement, the facts set forth in that statement, to the extent they are supported by the record, may thus be accepted as true by the Court in deciding the motion for summary judgment. See Rabell v. United States, No. 13-cv-780, 2015 WL 2351915, at *1 n.1 (D.Conn. May 15, 2015) (stating that plaintiff, who was represented by counsel, failed to file a statement admitting or denying the specific facts set forth in the defendant's Rule 56 Statement, and that the court would therefore consider the facts contained in the defendant's statement to be undisputed for the purposes of the defendant's summary judgment motion); Harry v. Pentagroup Financial, LLC, 04 CV 4003, 2007 WL 812998, at *1 (E.D.N.Y. Mar. 14, 2007) (same).^[3]

II. Defendants' Motion

A. Effect of the Court's Prior Summary Judgment Decision

In response to defendants' motion, plaintiff contends that defendants are attempting “to relitigate what has been the law of the case for five years, is res judicata and that which they are collaterally estopped from relitigating ....” (Dkt #130 at 5.) Plaintiff states that if the Court does elect to “reconsider[]” its prior summary judgment decision, the Court should take into consideration the aforementioned exhibits, which plaintiff has submitted without any citation to any particular or relevant portions or explanation of how they bear upon the issues before me. Id.

Contrary to plaintiff's argument, there is nothing improper about defendants' moving again for summary judgment, either as a general matter or under the circumstances of this case. A party may move for summary judgment “at any time,” either “until 30 days after the close of...