Ong v. Park Manor (Middletown Park) Rehab. & Healthcare Ctr.

BIENVENIDO PILAO ONG, Plaintiff, v. PARK MANOR (MIDDLETOWN PARK) REHABILITATIONAND HEALTHCARE CENTER, et al., Defendants.

No. 12-CV-974 (KMK)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

September 28, 2017

OPINION & ORDER

Appearances:

Bienvenido P. Ong

Middletown, NY

Pro Se Plaintiff

James A. Randazzo, Esq.

Portale Randazzo LLP

White Plains, NY

Counsel for Defendants Police Officers Jason Farmingham, Thomas Kleveno, and Andrew Dewey

Caitlin G. Scheir, Esq.

John M. Murtagh, Jr., Esq.

Gaines, Novick, Ponzini, Cossu & Venditti, LLP

White Plains, NY

Counsel for Defendants Police Officers Jason Farmingham, Thomas Kleveno, and Andrew Dewey

KENNETH M. KARAS, District Judge:

Plaintiff Bienvenido Ong ("Plaintiff"), proceeding pro se, brings this Action against former Town of Wallkill police officers Jason Farmingham ("Farmingham"), Thomas Kleveno ("Kleveno"), and Andrew Dewey ("Dewey," and collectively, "Defendants"), alleging various claims arising out of incidents that occurred on March 30 and August 20, 2010.¹ Plaintiff originally asserted a multitude of claims against numerous defendants, but those claims have been dismissed with prejudice; only claims against Farmingham, Kleveno, and Dewey remain. Before the Court is Defendants' Motion for Summary Judgment (the "Motion"). For the following reasons, the Motion is granted in part and denied in part.

I. Background

A. Factual Background

1. March 30, 2010

On March 30, 2010, Plaintiff resided in Middletown, New York, with his wife, two daughters, Bernadette Ong ("Bernadette") and Belinda Ong ("Belinda"), and his granddaughter. (Defs.' Rule 56.1 Statement ("Defs.' 56.1") ¶ 5 (Dkt. No. 281).) In the early evening of March 30, Belinda and Plaintiff had an argument about Belinda's ex-boyfriend. (Id. ¶ 7.) During the argument, Belinda called Bernadette, who in turn called 911. (Id. ¶ 8.) At approximately 5:30 p.m., Town of Wallkill police officers Dewey and Farmingham were dispatched to the Ong residence on the report of a domestic disturbance. (Id. ¶ 9.) Upon arrival, Plaintiff let Dewey and Farmingham into the house. (Id. ¶ 10.)² Once inside, the officers spoke with Belinda. (Id. ¶ 11.)

Belinda explained to the officers that she and Plaintiff got into an argument about Belinda's ex-boyfriend and that Plaintiff became very angry. (Id. ¶ 13.) During the argument, Belinda explained, Plaintiff picked up a nine-inch kitchen knife and a glass vase and chased Belinda around the house. (Id.)³ Belinda, who was holding her baby as she was being chased around, thought that Plaintiff was going to kill her. (Id.; Decl. of James A. Randazzo, Esq., in Supp. of Defs.' Mot. for Summ. J. ("Randazzo Decl.") Ex. O (Sworn Statement of Belinda Ong) (Dkt. No. 284) ("I thought I was going to die as he was chasing me.").) After the officers spoke with Belinda, Plaintiff was arrested. (Defs.' 56.1 ¶ 14.) Farmingham thereafter transported Plaintiff to the Town of Wallkill Police Department. (Id. ¶ 15.)

Dewey remained at the scene to complete a Domestic Incident Report. (Id. ¶ 16.) While Dewey was gathering information from Belinda for the report, Belinda told Dewey that Plaintiff had a pistol permit and kept a pistol in the residence and asked Dewey to remove the gun. (Id. ¶¶ 17-18; see also Randazzo Decl. Ex. D ("Dewey Aff.") ¶ 11.) Belinda then escorted Dewey to a bedroom and told Dewey that the pistol was located in a case underneath her father's bed. (Dewey Aff. ¶ 12 ("Belinda walked me to a bedroom and told me that the pistol was in a green case underneath her father's bed.").) Dewey entered Plaintiff's bedroom and retrieved the unlocked case from underneath Plaintiff's bed. (Defs.' 56.1 ¶ 20; see also Dewey Aff. ¶ 12 ("I retrieved the case and opened it. The case was not locked."); Randazzo Decl. Ex. H ("Pl.'s Dep.") 58 ("It's in my bedroom, underneath, which my daughter doesn't know and my wifedoesn't know.").) Inside the case was a pistol, 100 rounds of ammunition, and a pistol permit. (Defs.' 56.1 ¶ 21.) Dewey seized these items for "safe-keeping and to confirm whether the permit was valid," (Dewey Aff. ¶ 12), and additionally seized the kitchen knife and glass vase, (Defs.' 56.1 ¶ 23). The seized items were placed into evidence at the Wallkill Police Department, and on March 31, 2010, the pistol and permit were turned over to Orange County Deputy Sheriff Justin Butterfield ("Butterfield"). (Id. ¶¶ 24-25.)

Plaintiff was charged with the crimes of Menacing in the Second Degree and Endangering the Welfare of a Child. (Id. ¶ 14.) Bail was set at $1,000 cash or $2,000 bond, but Plaintiff was remanded and remained in jail until he was released on April 4, 2010. (See Second Am. Compl. ("SAC") ¶ 59 (Dkt. No. 32); id. Ex. 1.2.; Pl.'s Dep. 68.)⁴ On April 7, 2010, a county court judge issued an Order of Suspension, directing Plaintiff to surrender all weapons to the Orange County Sheriff's Department. (Defs.' 56.1 ¶ 28.)

2. August 20, 2010

On August 20, 2010, at approximately 3:30 p.m., Town of Wallkill police officers Farmingham and Kleveno were dispatched to Apartment 228 of the Senior Horizons Apartment Complex in Middletown, New York, after a person living in the complex reported that he or she heard slapping noises and someone moaning inside of Plaintiff's apartment. (Id. ¶¶ 29-30.) After the officers knocked on the door to Apartment 228, Plaintiff, who resided in the apartment with his 92 year-old mother, Felicidad Rana ("Rana"), opened the door. (Id. ¶¶ 31-32, 37.)

When Plaintiff opened the door to his apartment, the officers detected a foul odor. (Defs.' 56.1 ¶ 33.) Farmingham explained to Plaintiff that the officers had received a call about a domestic disturbance in the apartment and needed to check on Rana's welfare. (Id. ¶ 34.) At first, Plaintiff refused to let the officers speak with Rana, but relented after Farmingham said the officers would not leave without speaking to her. (Id. ¶¶ 35-36.)

Farmingham located Rana in a hospital-type bed in a bedroom in the apartment. (Id. ¶ 38.) Plaintiff slept on a futon in the same room. (Id. ¶ 39.) Plaintiff followed Farmingham into the bedroom, but was asked to leave so that Farmingham could question Rana. (Id. ¶ 41; Pl.'s Dep. 96 ("Q: Did you follow him into the room? A: I follow, and he puts me go out, and he close the door.").) Farmingham observed that Rana had numerous bruises on her arms and legs, a black eye, and that there was a urine soaked towel on the bed. (Defs.' 56.1 ¶¶ 42-43.) Farmingham attempted to interview Rana, who was shaking and appeared frightened and confused, but was unable to do so because of a language barrier. (Id. ¶¶ 44-45.) Farmingham requested an ambulance and contacted Candice Crain ("Crain") of Adult Protective Services. (Id. ¶ 46.)⁵ After spending approximately five minutes with Rana, Farmingham exited the bedroom. (See Pl.'s Dep. 96-97.) What happened next is subject to dispute.

According to Plaintiff, Farmingham walked into the kitchen area and immediately handcuffed him. (Id. at 98.) After Farmingham placed Plaintiff in handcuffs, Farmingham allegedly began beating Plaintiff. (Id. at 101.)⁶ First, Farmingham allegedly pushed Plaintiffinto a doorknob, (id.), and then punched Plaintiff several times on the left side and grabbed Plaintiff's arm, (id. at 105-08). The alleged beating lasted "somewhere" around 10 minutes. (Id. at 113.) Plaintiff claims that Kleveno stood by and watched as Farmingham beat Plaintiff. (Id. at 112-13.) While Plaintiff was still in the apartment, Farmingham went to Plaintiff's refrigerator and opened it, apparently in search of the source of an odor. (See SAC ¶ 67; Third Am. Compl. ("TAC") 14 (Dkt. No. 162) ("Then Farmingham went to near refrigerator while Plaintiff[] was [in] handcuffs [and] open[ed] the refrigerator and detected a very strong odor of something rotting." (internal quotation marks omitted)).)⁷ Plaintiff was then taken out of the apartment building and placed in a patrol car. (Pl.'s Dep. 125.) While Plaintiff was in the back of the car, he observed an ambulance approaching his residence. (Id. at 127.)

Defendants' version of events differs substantially from Plaintiff's. According to Defendants, after Farmingham requested an ambulance, emergency medical technicians Karen Melendez ("Melendez"), Eric Shorette, and Robert Schertzer of the Town of Wallkill Volunteer Ambulance Corps. arrived on the scene. (Defs.' 56.1 ¶ 48.) Melendez observed that Rana had bruises on her right eyelid, right cheekbone, both forearms, both wrists, right breast, both thighs, right hip, and left ankle, and that her right foot was tied to the bed with a rope. (Id. ¶ 50; Randazzo Decl. Ex. V (pictures of the rope and of the bruising on various parts of Rana's body).)⁸ Melendez untied the rope from Rana's leg. (Defs.' 56.1 ¶ 63.) Upon detecting a foulodor in the apartment, Melendez directed a member of her crew to check the refrigerator to determine whether it was the source of the odor. (Id. ¶ 51.)

While Melendez and her crew were tending to Rana, Plaintiff, Farmingham, and Kleveno were standing in and around the apartment's kitchen. (Id. ¶ 52.) At some point after Plaintiff admitted that he had tied up Rana's legs, (Randazzo Decl. Ex. E ("Farmingham Aff.") ¶ 13), Plaintiff was placed under arrest a "few feet" from the refrigerator, (Defs.' 56.1 ¶¶ 53, 56). Farmingham admits pushing Plaintiff against a closet door to gain control of Plaintiff, but denies striking or punching Plaintiff. (Farmingham Aff. ¶¶ 14-15.) Plaintiff was then patted down for safety reasons and placed into Kleveno's police car. (Defs.' 56.1 ¶ 59.) Kleveno took Plaintiff to the police station. (Id. ¶ 60.)

There is little dispute about what happened after Plaintiff was removed from the apartment. Crain arrived on the scene and attempted to speak with Rana. (Id. ¶ 61.) She observed that one or both of Rana's legs were tied to the bed. (Id. ¶ 62.) At approximately 4 p.m., the ambulance crew transported Rana to Horton Hospital. (Id....