Solomon v. City of Rochester

449 F.Supp.3d 104

Jonathan SOLOMON, Plaintiff,

v.The CITY OF ROCHESTER, Rochester Police Department, and Rochester Police Officer(s) Identities Unknown, Defendants.

6:17-CV-06659 EAW

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

Signed March 27, 2020

Leland T. Williams, Rochester, NY, for Plaintiff.

Christopher Noone, City of Rochester Law Department, Rochester, NY, for Defendants.

DECISION AND ORDER

ELIZABETH A. WOLFORD, United States District Judge

INTRODUCTION

Plaintiff Jonathan Solomon ("Plaintiff") brings this action against defendants the City of Rochester (the "City"), the Rochester Police Department (the "RPD"), and unknown RPD officers (collectively "Defendants"), alleging claims based on an incident on June 25, 2016, wherein the unknown RPD officers allegedly attacked and beat him during the course of an arrest. (Dkt. 1). Currently before the Court is a motion for summary judgment filed by the City and the RPD (collectively "Moving Defendants"). (Dkt. 10). For the reasons set forth below, Moving Defendants' motion is granted.

BACKGROUND

I. Factual Background

The following facts are taken from Moving Defendants' Rule 56 Statement (Dkt. 10-6) ("Defendants' Statement") and the evidence submitted in support thereof, which was submitted in compliance with Local Rule of Civil Procedure 56(a)(1). Plaintiff did not, as required by Local Rule 56(a)(2), submit an opposing statement of facts that included a response to each of the statements set forth in Defendants' Statement. See L.R. Civ. P. 56(a)(1) ("Each numbered paragraph in the moving party's statement of material facts may be deemed admitted for purposes of the motion unless it is specifically controverted by a correspondingly numbered paragraph in the opposing statement."). As discussed further below, Plaintiff in this case failed to file any response whatsoever to the instant motion.

The Court has discretion to excuse a party's failure to comply with Local Rule 56, and the Second Circuit has indicated that a district court should not deem unopposed facts admitted when those facts are unsupported by the record. See Holtz v. Rockefeller & Co. , 258 F.3d 62, 73-74 (2d Cir. 2001). However, in this case, each factual assertion within Defendants' Statement is supported by a citation to the exhibits and declarations they have submitted. Accordingly, the Court deems the factual allegations set forth in Defendants' Statement admitted for purposes of the instant motion.

On June 25, 2016, Plaintiff had two outstanding bench warrants for his arrest. (Dkt. 10-6 at ¶ 2). The first was issued on May 18, 2016, by Rochester City Court Judge Charles F. Crimi related to a charge of assault in the third degree and the second was issued on May 25, 2016, by Rochester City Court Judge Melchor E. Castro related to a charge of felony aggravated unlicensed operation of a motor vehicle. (Id. ; Dkt. 10-7 at 2, 4).

As of June 25, 2016, Plaintiff was also wanted in connection with the first-degree kidnapping and second-degree assault of Devon Holmes on May 13, 2016. (Dkt.10-6 at ¶ 3). Plaintiff and two accomplices had kidnapped Holmes at gunpoint and then:

[F]orced him into a car, bound him with rope, pistol whipped him, assaulted him, drove him to a vacant house located at 649 Jay Street in Rochester, lowered him through a window into the basement, tied him to a chair, beat him with a board and pistol whipped him, then threatened to ignite a Molotov Cocktail and burn the house down with him in it, all related to the belief that Holmes had stolen money from [Plaintiff's] mother's home.

(Id. ). Holmes had freed himself and called 911 when Plaintiff and his accomplices left the house. (Id. ). Holmes identified Plaintiff from a photo lineup as having orchestrated the kidnapping and assault. (Id. ).

Plaintiff fled to Florida to avoid arrest, but returned to New York at some point prior to June 22, 2016. (Id. at ¶ 4). On June 22, 2016, Plaintiff and an accomplice carjacked Plaintiff's brother's girlfriend at gunpoint. (Id. ). Plaintiff was also wanted in connection with this carjacking. (Id. at ¶ 5).

RPD officers Sam Giancursio ("S. Giancursio") and Pat Giancursio ("P. Giancursio") attempted to arrest Plaintiff on the morning of June 24, 2016, at 104 Jay Street in Rochester. (Id. at ¶ 6). However, Plaintiff saw the officers outside and leapt from a second story window to avoid them. (Id. ). A K-9 dog attempted to track Plaintiff but failed due to an abundance of pedestrian traffic in the area. (Id. ).

On or about June 24, 2016, the RPD obtained a search warrant for Plaintiff's cell phone. (Id. at ¶ 7). On June 25, 2016, S. Giancursio observed Plaintiff's vehicle in a parking lot and further observed Plaintiff standing outside the vehicle with a few other men. (Id. ). S. Giancursio was informed that a "ping" had been established on Plaintiff's cell phone in the same parking lot. (Id. ). S. Giancursio and P. Giancursio followed Plaintiff's vehicle when it left the parking lot and effected a traffic stop. (Id. ).

Plaintiff's uncle Leroy Lucas ("Lucas") was operating the vehicle. (Id. at ¶ 8). Lucas pulled into the driveway at 234 Maple Street in Rochester and Plaintiff, who was in the front passenger seat, leapt from the car and began running through backyards. (Id. ). S. Giancursio and P. Giancursio, who were both operating marked police cars and in full uniform, shouted at Plaintiff to stop and that he was under arrest. (Id. ). RPD officer Angel Pagan ("Pagan") and RPD sergeant Michael Malecki ("Malecki") both heard what was happening over their police radios. (Id. at ¶¶ 9-10). Pagan and Malecki, who were both driving marked police cars and in full uniform, reported to the area and joined in the chase. (Id. ). All of the officers pursuing Plaintiff knew him to be involved with firearms crimes and they assumed that he was armed and dangerous. (Id. at ¶ 11).

Malecki began running toward Plaintiff, shouting "Stop! Get down on the ground! You're under arrest." (Id. at ¶ 10). Plaintiff did not obey these commands and instead continued running towards Malecki. (Id. ).

Malecki tried to tackle Plaintiff but Plaintiff pushed him, causing Malecki to fall to the ground and injure his hands and knees. (Id. at ¶ 12). Pagan continued to pursue Plaintiff, with S. Giancursio and P. Giancursio following behind. (Id. ). Pagan saw Plaintiff knock Malecki to the ground and shouted at him to stop running. (Id. ). Pagan then withdrew his taser and yelled to Plaintiff that he would use the taser if Plaintiff did not stop running. (Id. ). When Plaintiff continued to run, Pagan fired his taser, but did not make a successful connection. (Id. ). Plaintiff continued running and Pagan yelled a second warning. (Id. ). Pagan shot his taser a second time and hit Plaintiff with both probes, causing Plaintiff to fall to the ground onto his stomach. (Id. ).

As soon as the taser completed its five-second cycle, Plaintiff attempted to push himself off the ground. (Id. at ¶ 13). Pagan attempted to use a defensive tactic known as a forearm strike to hit Plaintiff's left shoulder to stop him from standing up and running again, but because they were both moving, Pagan missed and struck Plaintiff in the left cheek. (Id. ). Plaintiff continued to resist, struggling to keep his hands under his body to avoid being handcuffed. (Id. ).

Malecki, S. Giancursio, and P. Giancursio arrived and attempted to assist Pagan in arresting Plaintiff. (Id. at ¶ 14). The officers used various defensive tactics, "including blows and knee strikes to the sides of Mr. Solomon's torso and his thighs," to attempt to restrain Plaintiff. (Id. ). Ultimately, S. Giancursio "delivered a straight punch to the right side of [Plaintiff's] face," which overcame Plaintiff's resistance and allowed Malecki to handcuff Plaintiff. (Id. ).

Plaintiff was taken to Strong Memorial Hospital for evaluation, per protocol requiring medical evaluation whenever a taser is deployed. (Id. at ¶ 15). Plaintiff was noted to have swelling to his left check and discoloration to the white of his left eye and was treated and discharged with over-the-counter analgesics. (Id. ).

Plaintiff was interviewed post-arrest and the interview was videotaped. (Id. ). Plaintiff can be seen on the videotape standing and walking, moving all four of his extremities without any apparent distress, drinking water, and wrapping and rewrapping himself in a bedsheet. (Id. ).

Plaintiff was indicted by a grand jury on charges of kidnapping and assault, and ultimately pled guilty to a lesser kidnapping charge. (Id. at ¶ 16). Plaintiff also pled guilty to the felony aggravated unlicensed operation of a motor vehicle charge. (Id. ). These convictions have never been overturned, reversed, expunged, or otherwise called into questions. (Id. ).

II. Procedural Background

Plaintiff commenced this action on September 21, 2017. (Dkt. 1). Discovery closed on February 28, 2019. (Dkt. 7). Moving Defendants filed the instant motion for summary judgment on April 11, 2019. (Dkt. 10). The Court set a deadline of May 10, 2019, for Plaintiff to file a response. (Dkt. 11). Plaintiff failed to file any response to the motion.

DISCUSSION

I. Legal Standard

Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment should be granted if the moving party establishes "that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The Court should grant summary judgment if, after considering the evidence in the light most favorable to the nonmoving party, the Court finds that no rational jury could find in favor of that party. Scott v. Harris , 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) ).

"The moving party bears the burden of showing the absence of a genuine dispute as to any material fact[.]" Crawford v. Franklin Credit...