Kenney v. Clay

172 F.Supp.3d 628

Derek Kenney, Plaintiff,

v.Anthony Clay, James Lorenzoni, Edgar Beaudin, John Does 1–5, and the City of Gloversville, Defendants.

6:11–CV–790 (DNH/ATB)

United States District Court, N.D. New York.

Signed March 23, 2016

Elmer R. Keach, III, Esq., Law Offices of Elmer Robert Keach, III, P.C., One Pine West Plaza—Suite 109, Albany, NY 12205, Attorneys for Plaintiff.

Gregg T. Johnson, Esq., April J. Laws, Esq., Lemire, Johnson Law Firm, P.O. Box 2485, 2534 Route 9, Malta, NY 12020, Attorneys for Defendants.

MEMORANDUM–DECISION and ORDER

DAVID N. HURD, United States District Judge

TABLE OF CONTENTS

I. INTRODUCTION...632

II. BACKGROUND...632

III. LEGAL STANDARDS...635

1. Defendants' Motion for Summary Judgment...635

A. Fifth Amendment Right Against Self–Incrimination...636

i. Absolute Immunity...637

ii. Qualified Immunity...637

B. State Tort Claims...638

i. Intentional Infliction of Emotional Distress...638

ii. Negligent Infliction of Emotional Distress...638

C. Punitive Damages...638

D. Remaining Claims...639

2. Plaintiff's Motion to Amend the Complaint...639

III. DISCUSSION...639

1. Defendants' Motion for Summary Judgment...639

A. Fifth Amendment Claim—Third Cause of Action...639

i. Absolute Immunity...640

ii. Qualified Immunity...640

B. State Tort Claims—Sixth Cause of Action...641

C. Punitive Damages...641

D. Remaining Claims—Fourth and Seventh Causes of Action...642

2. Plaintiff's Motion to Amend the Complaint...642

IV. CONCLUSION...644

I. INTRODUCTION

Plaintiff Derek Kenney brought this action pursuant to 42 U.S.C § 1983, alleging that defendants, Gloversville Police Department (“GPD”) officers and the city itself, violated his civil rights. At issue is defendants' motion for summary judgment and plaintiff's cross-motion to amend the complaint.

Defendants collectively moved for summary judgment, requesting dismissal of the complaint in its entirety. Plaintiff opposed, but consented to dismissal of his federal and state law claims for false arrest; federal and state law claims for malicious prosecution; all claims against defendant retired GPD Officer James Lorenzoni; and any Monell claim against defendant retired GPD Officer Edgar Beaudin. See ECF No. 91.

Defendants have moved for summary judgment as to plaintiff's third cause of action, in which he alleges that his right against self-incrimination under the Fifth Amendment was violated; his fourth cause of action, a Monell claim against the City of Gloversville; his sixth cause of action, alleging intentional infliction of emotional distress and negligent infliction of emotional distress claims against all remaining defendants; and his seventh cause of action, alleging negligent supervision and retention of an employee against Officer Beaudin and the City of Gloversville. ECF No. 70. Defendants likewise raise absolute and qualified immunity defenses, and seek dismissal of plaintiff's state law tort claims and request for punitive damages. Id. As a result of defendant's motion, plaintiff made a cross-motion to amend the complaint. ECF No. 83. Oral arguments were heard in Utica, New York.

II. BACKGROUND

Prior to this action, plaintiff was no stranger to the Gloversville Police Department (“GPD”). In fact, he concedes that he been arrested more times that he can recall. Plaintiff's Statement of Material Facts, ECF No. 74, 2 (“Pl.'s Stmt. M. F.”).¹ Defendants paint plaintiff as “a long-time, homeless transient of the City of Gloversville with an extensive violent criminal history.” Defendants' Motion for Summary Judgment, ECF No. 70, 10 (“Defs.' Mtn. Summ. J.). Plaintiff maintains that he is “affectionately known as the “Town Drunk.” Plaintiff's Opposition to the Motion for Summary Judgement, ECF No. 75, 7 (“Pl.'s Opp. Mtn. Summ. J.”). Further arguing that his numerous arrests were for “minor offenses” while intoxicated, such as disorderly conduct and assaulting garbage cans. Id.

With this relationship between plaintiff and GPD in mind, the story of this case began around 11:59 p.m. on July 6, 2010, when GPD was notified that an unresponsive man was on the front lawn of 143 Bleecker Street in Gloversville. Defs.' Mtn. Summ. J., 12. Police responded to find a decedent, Brian Morrison, face down in a pool of blood with a small puncture wound on the right side of his chin. Id. The area was secured as a homicide scene. Id.

Plaintiff, visibly intoxicated, arrived at the scene shortly thereafter. Pl.'s Stmt. M. F., 6. He attempted the cross the police tape, but GPD stopped plaintiff, directing him to bypass the crime scene and proceed to his destination. Id. Defendants contend that plaintiff was “combative” and lingered at the crime for more than thirty minutes. Id. When he did leave the immediate vicinity, he went around the block, continued to watch the scene and smoked marijuana while drinking a beer. Id.

From July 7 through July 9, 2010, defendants collected statements from self-proclaimed eye witnesses and persons who had interacted with plaintiff on the night of the murder. Of note, one such eye witness claimed that he saw plaintiff attack the decedent in the head at the location of the crime scene. Defendants' Statement of Material Facts, ECF No. 70–23, ¶ 45 (“Defs.' Stmt. M. F.”). And the mother of plaintiff's son and girlfriend of six years, Rebecca Abraham reportedly told the police that plaintiff left her apartment at 166 Bleecker Street in an angry and intoxicated state on the night of Morrison's murder. Pl.'s Stmt. M. F., 9.² Defendants collected other statements, including one from plaintiff's brother-in-law Edward Sherry, in which Sherry averred that plaintiff allegedly admitted to murdering the decedent. Id. at 10. After confirming whether the eye witness would have been able to see plaintiff commit the murder from his front porch as he had reported, defendants concluded that they had reason to believe that they eye witness's story was credible. Defs.' Stmt. M. F., ¶¶ 61–68.

With such incriminating information gathered from plaintiff's associates and a purported eye witness to the crime, GPD determined an interview with plaintiff was appropriate. Thus, on the afternoon of July 9, 2010, GPD located plaintiff at a friend's home and sought to question him regarding the homicide. Pl.'s Stmt. M. F., 13. And from this point onward, the parties dispute nearly all relevant facts. When the police found plaintiff, he was drinking a beer, but the parties contest whether he was visibly intoxicated or under the influence of alcohol, illegal drugs, or prescription anti-psychotic medications. Id. Plaintiff later stated that he had consumed “approximately seventy (70) beers, eight (8) glasses of gin, and smoked marijuana and crack” before the police took him to the station for questioning. Defs.' Stmt. M. F., ¶ 133; Pl.'s Stmt. M.F. 36.

Defendants contend that plaintiff was coherent, walked on his own, communicated clearly, followed all commands and was able to understand every aspect of the transport to the station and the interview. Defs.' Stmt. M. F., ¶¶ 72–76. However, plaintiff contends that plaintiff exhibited consistently irrational and bizarre behavior: making sexually explicit comments about defendant Clay's wife and sister; stating that his DNA would be on defendant Clay's wife's lips; stating that he had filmed himself having sex with defendant Clay's wife and sister; stripping out of all of his clothes; and walking around the police station naked. Pl.'s Stmt. M. F., 14.

Both parties agree that plaintiff was not handcuffed during the ride to the police station and that he walked freely into the station without assistance from defendants. Id. at 17–18.

Defendant Clay was the lead investigator and conducted the interview while Detective Michael Calbet took contemporaneous notes. Id. at 19. The parties dispute whether Det. Calbet was directed not to record portions of the interview. Id. at 20. And to that end, plaintiff points to the undocumented, initial forty-five minute portion of the interview in which plaintiff was allegedly read his Miranda rights. Id. Indeed, Det. Calbet, although stating he was directly outside the interview room and could hear everything, could not remember ever hearing defendant Clay read plaintiff his Miranda rights. Id. Both parties agree that the interview was not filmed, although the video recording equipment is readily available to officers. Pl.'s Stmt. M. F., 20–21. Moreover, both parties agree that plaintiff never signed a written Miranda waiver, as is standard GPD protocol. Id. at 22.

There are disputes regarding whether Det. Calbet was able to accurately record plaintiff's statements. Id. Det. Calbet admitted that plaintiff was speaking quickly and he was outside the room, making it difficult to record everything. Id. Det. Calbet ostensibly took notes for five hours while plaintiff was interviewed. Id. at 22–23. Plaintiff disputes this and indicates that eight pages of notes over the course of five hours seems scant if Det. Calbet was accurately transcribing everything. Id. at 23.

The parties further dispute whether the interview should have been recorded. Indeed, defendants note that they discussed whether the interview should be recorded in light of the gravity of the crime. Defs.' Stmt. M. F., ¶ 94. Defendants concluded it was not necessary, because GPD had not yet implemented a policy of recording interviews. Id. ¶ 95. Plaintiff points to conflicting testimony from defendants; specifically, that Defendant Beaudin “admitted that there were polices and procedures in place at the time of [p]laintiff's interrogation and that the interrogation should have been recorded.” Pl.'s Stmt. M. F., 23. Plaintiff's phone calls were likewise not recorded. Id. at 23–24.

Defendants aver that, at 2:58 p.m., defendant “Clay advised plaintiff that he needed to read plaintiff the Miranda warnings,” plaintiff agreed to listen, and Clay “read plaintiff the Miranda warnings off of a Miranda card.” Defs.' Stmt. M. F., ¶¶ 100–02. Further, plaintiff responded “yup, I am”...