Phillips v. City of Middletown

1

NICOLE PHILLIPS, Administrator of the Estate of Richard G. Dinneny, deceased, Plaintiff, v. THE CITY OF MIDDLETOWN, a municipal corporation, MIDDLETOWN POLICE OFFICER GEORGE NEILSON No. 1152, in his official capacity & individual capacity, MIDDLETOWN POLICE OFFICER JASON BERMAN No. 1179, in his official capacity & individual capacity, MIDDLETOWN POLICE SERGEANT DAVID FRANCK, in his official capacity & individual capacity, and MIDDLETOWN POLICE OFFICER JORDAN McINERNEY, in his official capacity & individual capacity, Defendants.

No. 17-CV-5307 (CS)

United States District Court, S.D. New York

September 29, 2021

Michael D. Meth

Meth Law Offices, PC

Chester, New York

Counsel for Plaintiff

Alex Smith

Corporation Counsel

City of Middletown

Middletown, New York

Counsel for Defendants

OPINION & ORDER

CATHY SEIBEL, U.S.D.J.

Before the Court is the second motion for summary judgment of Defendants City of Middletown (the “City”), George Neilson, Jason Berman, David Franck, and Jordan McInerney (collectively, “Defendants”). (ECF No. 101.)^[1] For the reasons discussed below, Defendants' motion for summary judgment is GRANTED.

I. BACKGROUND

This case stems from a tragic incident in which Richard Dinneny, who was in possession of a pellet gun resembling a handgun, was fatally shot by officers of the Middletown Police Department.^[2] The following facts are based on the parties' Local Civil Rule 56.1 Statements, responsive 56.1 Statements, ^[3] and supporting materials, and are undisputed except as noted.

A. Facts

On July 13, 2016 at around 6:50 p.m., Dinneny called 911 from his girlfriend's residence at 109 Overlook Drive, in Middletown, New York (the “Home”). (P's 56.1 Resp. ¶¶ 1, 3, 23.) Dinneny spoke with Lieutenant George Booth, stating “that he was upset, intoxicated, and armed with a weapon, ” that he wanted to die, and “that he would shoot his girlfriend and any officers that came to the residence.” (Id. ¶¶ 1, 44.) The 911 dispatcher radioed that there was a violent domestic incident in progress at the Home, with a male subject threatening to shoot a female with a firearm, and that the subject was on the phone with the police department. (Id. ¶ 3.)^[4]

Defendants Berman, Franck, and McInerney responded to the Home and approached the front door. (Id. ¶¶ 4, 23, 30.) Defendant Franck knocked repeatedly on the door, identifying the officers as Middletown Police, and directing the door to be opened. (Id. ¶¶ 4, 24, 30.) The sequence of events regarding who opened the door, how, and when, is immaterial, (see Id. ¶¶ 5, 25, 31), but eventually the door was opened and the officers “observed Dinneny standing in the doorway holding what appeared to be a black hand gun in his right hand facing the ground, and a wireless house phone in his left hand, ” (id. ¶ 6). Defendant Franck pointed his firearm at Dinneny and repeatedly told him to drop his gun. (Id.) Dinneny yelled, “No, no” and “shoot me.” (Id.) By this time, Neilson had arrived on the scene. (Id. ¶ 7.)

Dinneny went back into the Home, but reappeared approximately thirty seconds later. (Id. ¶¶ 7, 9.) Dinneny walked towards the door with the firearm, which turned out to be a pellet gun, in his right hand, facing down. (Id. ¶ 9; see Id. ¶ 40.) Multiple officers yelled to Dinneny to drop the gun, (id. ¶¶ 9, 11-12, 26, 33), and according to Berman, Dinneny “‘said the same type of effect as he did prior, you know, shoot me, kill me, things of that nature, '” (id. ¶ 9 (quoting ECF No. 117-4 at 45:21-24).) Defendant Berman also testified that he “‘heard Sergeant Franck actually say [shots] will be fired because we weren't having any compliance. And then at about that same time the firearm started to move with his right hand from behind his thigh or next to his thigh up through a 45, 50-degree angle towards me where I was and at that time I fired rounds from my patrol rifle.'” (Id. ¶¶ 9, 14 (quoting ECF No. 117-4 at 45:24-46:7).) Franck had taken cover and lost sight of Dinneny, (id. ¶ 34), but McInerney also saw him raise the gun, (id. ¶ 27). Neilson fired shots at Dinneny at or around the same time as Berman. (See Id. ¶¶ 20, 34.)^[5] Dinneny was pronounced dead at the hospital at 7:51 p.m. (ECF No. 30 (“AC”) ¶¶ 27, 62-63.)

Plaintiff does not dispute that the Responding Officers repeatedly ordered Dinneny to drop the gun and Dinneny refused, (P's 56.1 Resp. ¶¶ 11, 12, 33), that Dinneny shouted to the officers that they should shoot him, (id. ¶¶ 12, 61), that Dinneny began to lift his right arm with the gun in the direction of the Responding Officers, (id. ¶¶ 9, 14), ^[6] and that when Dinneny began to lift his right arm with the gun, all Defendants were within approximately twelve feet of the door of the Home where Dinneny was standing, (id. ¶ 15). Plaintiff also does not dispute that Defendant Berman thought Dinneny was an immediate threat and that Berman believed he had no alternative but to stop the threat. (Id. ¶ 19.)^[7] Instead, Plaintiff notes that “Dinneny was in a diminished mental and physical state, and was speaking with Lt. Booth on the phone and asking for help when the Defendants approached.” (Id.)^[8]

B. Procedural History

On July 13, 2017, Plaintiff, Dinneny's daughter, filed suit against the Defendants, among others, asserting claims under the Fourth, Eighth, and Fourteenth Amendments, as well as state law claims. (ECF No. 1 (“Complaint”) ¶¶ 52-81.) Plaintiff amended her complaint on October 17, 2017, advancing the same claims asserted in the original Complaint. (AC.)

Defendants moved to dismiss the Amended Complaint on March 5, 2018, (ECF No. 39), and by Opinion and Order dated September 24, 2018, (ECF No. 45 (“2018 Decision”)), the Court granted the motion in part and denied it in part. (See 2018 Decision at 2, 25.) Familiarity with that decision is presumed. I held that the following claims survived:

• Count I (excessive force) against Neilson, Berman, Franck, and McInerney (under the Fourth Amendment only);

• Count VI (assault) against Neilson, Berman, Franck, and McInerney;

• Count VII (battery) against Neilson, Berman, Franck, and McInerney; and

• Count VIII (wrongful death) against Neilson, Berman, Franck, McInerney, and the City.

(Id. at 25-26.)

The AC alleged that Dinneny refused orders to drop the gun, stepped out of sight back into the Home, and then emerged and began to raise his right hand. (AC ¶¶ 57-58.) In the 2018 Decision, with regard to the excessive force claim, I explained that “[a]lthough the logical inference from the Amended Complaint is that the gun was still in Dinneny's hand when he raised it, ” the AC “[did] not allege where Dinneny's gun was located when he raised his right hand, so it [was] not clear from the face of the Amended Complaint that the gun was in his hand or in close reach (or that the officers reasonably perceived it to be so)” when the officers shot him. (2018 Decision at 9.) I further stated, “Because the location of Dinneny's gun when he emerged from the Home the second time will be highly influential as to whether Plaintiff's excessive force claim succeeds or fails, the Court will permit the claim to go forward.” (Id. at 11 (cleaned up).) But I was clear that other theories of liability posited by Plaintiff (described below) were not plausible, (id. at 11-13), and thus that “the excessive force claim will proceed only on the theory that the force was excessive because Dinneny did not have the gun and it was not close by, ” (id. at 13). I cautioned that “[i]f Plaintiff cannot proceed on that theory in good faith, she should withdraw the claim.” (Id. at 13; see Id. at 11 n.5 (“If Dinneny was holding the gun, summary judgment for the officers will almost certainly be appropriate.”).)

I also noted that in Plaintiff's original Complaint, she had alleged that Dinneny “did not drop the pellet gun” when ordered to do so and that he “began to raise his right hand pointing the pellet gun” when the officers shot him, (Complaint ¶¶ 36-38), but those allegations were missing from her Amended Complaint, (2018 Decision at 9). I further stated:

The omissions from the Amended Complaint suggest gamesmanship at its worst, considering that (1) the omission occurred after Defendants argued in a pre-motion letter that Plaintiff could not sustain an excessive force claim because Plaintiff alleged that Dinneny “began to raise his right hand pointing the pellet gun, ” and (2) Plaintiff did not explain in her opposition brief why the fact changed (despite Defendants having pointed out the “curious - if not disingenuous - omission”). Plaintiff's counsel is reminded that if he is indeed omitting a key piece of undisputed factual information in order to avoid dismissal, he and his client run the risk of being sanctioned for vexatiously multiplying the litigation.

(Id. at 10 n.4 (first quoting ECF No. 25 at 1-2, then quoting ECF No. 34 at 4 n.2).)

Following the 2018 Decision, Defendants answered, (ECF No. 47), and the Court entered a case management plan, setting a fact discovery cutoff of April 15, 2019, and an expert discovery cutoff of June 17, 2019, (ECF No. 46). At Defendants' request, (ECF No. 48), the discovery deadline was extended to July 31, 2019, (ECF No. 49). That was the only extension sought by either party.

On August 7, 2019, Defendants filed a pre-motion letter, (ECF No. 57); on August 15, Plaintiff responded, (ECF No. 60); and on August 22, the Court held a pre-motion conference, (Minute Entry dated Aug. 22, 2019). At the conference, the Court set the following briefing schedule: Defendants' motion was due on October 4, 2019; Plaintiff's opposition was due on November 4; and Defendants' reply was due on November 24. (Id.) The Court offered the parties the opportunity to bundle - meaning that they would...