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In Smith, the plaintiff testified that he watched police officers shoot a dog in his bedroom and was traumatized by the shooting.
Summary of this case from Aljoe v. AdamsOpinion
17-CV-00639-JLS-MJR
09-29-2020
JOSEPH SMITH and RONALD RAISER, Plaintiffs, v. CITY OF BUFFALO, et. al., Defendants.
REPORT, RECOMMENDATION, AND ORDER
This matter has been referred to the undersigned, pursuant to 28 U.S.C. § 636(b)(1). (Dkt. No. 10). Before the Court are the motions of defendants City of Buffalo ("City of Buffalo"), former Buffalo Police Commissioner Daniel Derenda, Buffalo Police Detective Shawn Adams, and Buffalo Police Detective Joseph Cook for dismissal for failure to state a claim, pursuant to Fed. R. Civ. P. 12(b)(6); for judgement on the pleadings, pursuant to Fed. R. Civ. P. 12(c); and for summary judgment, pursuant to Fed. R. Civ. P. 56. (Dkt. No. 40). For the following reasons, the Court converts the motions to dismiss into a motion for summary judgment and recommends that the motion for summary judgment be granted in part and denied in part as to the City of Buffalo and defendants Adams and Cook, and that all claims against Defendant Commissioner Derenda be dismissed.
BACKGROUND
Plaintiffs' claims in this case arise from the execution of a search warrant during the early morning hours of July 29, 2014, at their residence located at 114 Edson Street, Upper, West Seneca, by members of the City of Buffalo's Police Department and others, during which Defendants Adams and Cook shot and killed Plaintiff Raiser's pet dog, "Rocky." Rocky was killed in or near the bedroom of Plaintiff Smith who was present in the bedroom in his bed when the shooting occurred. Plaintiffs contend that the shooting of Rocky was unnecessary and unreasonable as he did not pose a threat to the officers. The Defendants claim that the shooting was justified because Rocky growled at and ran/charged toward Defendant Cook and Cook had to shoot the dog to protect himself. Defendant Adams then shot Rocky to put him down.
There are three remaining claims in this case, all brought pursuant to 42 U.S.C. § 1983. First, Plaintiffs claim that the shooting of Rocky constitutes an unconstitutional "seizure" of personal property in violation of the Fourth Amendment. This claim is brought against Defendants Adams and Cook in their individual capacities. Second, Plaintiffs assert a Monell municipal-liability claim against the City of Buffalo, Commissioner Derenda and Defendants Adams and Cook, both in their official and individual capacities, claiming violations of Plaintiffs' constitutional rights under the Fourth and Fourteenth Amendments. They claim that there exists a pattern or practice by the Buffalo Police Department of unjustifiably shooting and killing dogs during the execution of search warrants that is so persistent and widespread that it constitutes an unconstitutional custom or practice of which policymakers must have been aware. They also claim a failure by policymakers to properly train and supervise their subordinates in dealing with dogs during the execution of search warrants, such that the policymakers have exercised "deliberate indifference" to the constitutional rights of the Plaintiffs and others encountering those subordinates. Finally, Plaintiff Smith asserts a claim of excessive use of force, in violation of the Fourth Amendment, against Defendants Adams and Cook.
All other claims in this case have been withdrawn or have been dismissed by stipulation.
DISCUSSION
A Rule 12 motion can be converted into a motion for summary judgment if the parties rely upon extrinsic material outside the complaint in support of the request for judgment on the pleadings. See Spear v. City of Buffalo, 11-CV-00012A F, 2014 WL 1053987, at *6-7 (W.D.N.Y. Mar. 18, 2014), adopted, 11-CV-00012A F, 2014 WL 1347759 (W.D.N.Y. Apr. 4, 2014). Here, both sides have relied upon such extrinsic materials and the Court has considered them. Thus, the Court converts the motions to dismiss into a motion for summary judgment.
Pursuant to Federal Rule of Civil Procedure 56, summary judgment is to be granted where "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." See Fed. R. Civ. P. 56. A genuine issue of material fact exists "where the evidence is such that a reasonable jury could decide in the non-movant's favor." Beyer v. Cty. of Nassau, 524 F.3d 160, 163 (2d Cir. 2008). "[V]iewing the evidence produced in the light most favorable to the nonmovant, if a rational trier [of fact] could not find for the nonmovant, then there is no genuine issue of material fact and entry of summary judgment is appropriate." Bay v. Times Mirror Magazine, Inc., 936 F.2d 112, 116 (2d Cir. 1991). When a movant has met this burden, the burden shifts to the non-movant to bring forth evidence establishing the existence of an issue of material fact. Linares v. McLaughlin, 423 Fed. Appx. 84, 86 (2d Cir. 2011).
In evaluating a motion for summary judgment, a court must resolve all ambiguities and draw all reasonable inferences in favor of the nonmoving party, and it is the burden of the moving party to demonstrate the absence of any material genuinely in dispute. Hathaway v. Coughlin, 841 F.2d 48, 50 (2d Cir. 1988). Importantly, a court must not "weigh the evidence, or assess the credibility of witnesses, or resolve issues of fact." Victory v. Pataki, 814 F.3d 47, 59 (2d Cir. 2016) (citations and internal quotations omitted). However, a party cannot defeat a motion for summary judgment by relying upon conclusory statements or mere allegations unsupported by facts. Davis v. New York, 316 F.3d 93, 100 (2d Cir. 2002).
Plaintiffs' Claim of Unconstitutional Seizure of Personal Property
Plaintiffs claim that the shooting of Rocky by Defendants Cook and Adams constituted an unconstitutional seizure of their personal property as the shooting was unreasonable under the circumstances. The Defendants counter that the shooting was reasonable and that they are therefore entitled to summary judgment based on the undisputed facts.
The Fourth Amendment provides that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." The Second Circuit has held that "the unreasonable killing of a companion animal constitutes an unconstitutional 'seizure' of personal property under the Fourth Amendment." Carroll v. Cty. of Monroe, 712 F.3d 649, 651 (2d Cir. 2013) (shooting a family dog is."a severe intrusion given the emotional attachment between a dog and an owner").
To determine whether a seizure is unreasonable, a court must "balance the nature and quality of the intrusion on the individual's Fourth Amendment interests against the importance of the governmental interest alleged to justify the intrusion" and determine whether "the totality of the circumstances justified [the] particular sort of ... seizure." Tennessee v. Garner, 471 U.S. 1, 8-9 (1985) (internal quotation marks omitted). We have long held that the plaintiff has the burden to prove that a seizure was unreasonable. See Ruggiero v. Krzeminski, 928 F.2d 558, 562-63 (2d Cir. 1991).Id. at 651. The reasonableness inquiry is an objective one based on the totality of the circumstances and not an officer's subjective intent. Graham v. Connor, 490 U.S. 386, 397 (1989) (finding that the reasonableness inquiry "is an objective one: the question is whether the officers' actions are 'objectively reasonable' in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation"). "The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation." Id. at 396-97. As one court explained:
In the context of the fatal shooting of a pet, there are several specific considerations that the court must keep in mind. First, it is well-established that the killing of a pet dog constitutes a severe intrusion given the emotional attachment between a dog and an owner. On the other side of the balance, however, the governmental interest is significant: dogs may represent a serious risk to the safety of officers and the general public, and in some circumstances, it may be reasonable for an officer to shoot a dog that he believes poses a threat to his safety or the safety of the community. In particular, the state's interest in protecting life and property may be implicated when there is reason to believe [a] pet poses an imminent danger. As long as it was reasonable for the officer to believe that danger was imminent, a fatal seizure may be justified even if the dog did not actually pose a danger to the officer. [T]he law does not require the officer to wait until the approaching animal is within biting distance or is leaping at him before taking protective action.Azurdia v. City of New York, 18-CV-04189-ARR-PK, 2019 WL 1406647, at *7 (E.D.N.Y. Mar. 28, 2019); see also Cabisca v. City of Rochester, 14-CV-6485-JWF, 2019 WL 5691897, at *10-11 (W.D.N.Y. Nov. 4, 2019).
Here, the Court finds that when viewing the evidence offered by the parties in the light most favorable to Plaintiff Raiser, there exists a genuine issue of material fact as to whether the shooting of Rocky by Defendants Cook and Adams during the execution of the search warrant was reasonable under the circumstances and that a reasonable jury could find for Plaintiff Raiser on this claim.
Defendant Cook testified in his deposition that during the execution of the search warrant, as he was proceeding down the hallway leading to Plaintiff Smith's bedroom, he observed Rocky growling and running/charging from the bedroom towards the hallway and towards him. He shot Rocky once in the head when Rocky was less than two feet from the doorway still inside the bedroom. He stated that Rocky immediately went down, was still alive and no longer posed a threat. Defendant Adams then followed Defendant Cook into the bedroom and quickly shot Rocky again as he laid on the floor of the bedroom. Defendant Cook testified that Rocky was an aggressive dog and that he shot Rocky to protect himself and to stop Rocky from preventing him from addressing other potential threats within the bedroom. (Def. Ex. D at 40-46, 54, 57, 66, 73, 89).
Defendant Adams testified that when he heard the shot fired by Defendant Cook he moved toward Plaintiff Smith's bedroom where he first realized that Defendant Cook had shot a dog. He saw Rocky laying on his side on the floor right next to the bed, alive but suffering. He stated that at that point, Rocky did not pose a threat. Adams then shot Rocky twice with a shotgun. He shot Rocky the first time to put down a suffering animal. When Rocky jumped after being shot the first time by Adams, Adams shot him again to protect himself. Adams admitted that he had no veterinary training. He further stated that Rocky barked once when he shot him. (Def. Ex. C at 42, 44, 50, 52, 63, 68, 72).
Plaintiff Raiser testified that he was present in the residence at the time the search warrant was executed but was not present in the bedroom where Rocky was shot. He was the owner of Rocky. Raiser testified that Rocky liked to lick people, cuddle and play. He never saw Rocky act aggressively towards anyone or bite anyone. He further testified that he never heard Rocky bark on the morning of the search warrant. (Def. Ex. A at 47, 49, 105-06).
Plaintiff Smith testified that on the morning the search warrant was executed he was asleep in his bed with Rocky laying next to him near his feet in the bed. He states that when the police kicked open his bedroom door, he sat up in bed and Rocky put his head up and looked at the door. He states that Rocky did not jump off the bed when the police entered. Nor did Rocky growl at, show his teeth to or bite the police officers. Smith testified that the police immediately shot Rocky when Rocky lifted his head up. Rocky then rolled off the bed onto the floor. The police then shot Rocky again and he started whining. Smith then heard a couple of more shots. Smith was taken into custody by Defendant Cook and was removed from the bedroom. Smith testified that he never saw Rocky growl at or bite anyone previously. (Def. Ex. A at 47-49, 79, 81-84, 88).
Plaintiffs have also presented as evidence the expert report of James W. Crosby, M.S. (Dkt. No. 45). Mr. Crosby holds a Master of Science degree from the University of Florida's College of Veterinary Medicine, with a specialization in Veterinary Forensics. He is a Certified Behavior Consultant-Canine-Knowledge Assessed. He was also a law enforcement officer with the Jacksonville, Florida Sheriff's Office for 22 years. He has provided training to police departments and animal control agencies regarding dangerous dogs, dog aggression, use of force in canine encounters and the investigation of dog-related incidents.
Defendants argue in their reply brief (Dkt. No. 46) that Crosby's expert report is inadmissible under Fed. R. Evid. 702. However, the Court finds that the reasons stated by Defendants for inadmissibility of the report go to the weight of the evidence to be given to the report, not to its admissibility. It is therefore proper for the Court to consider the report on the motion for summary judgment. It will ultimately be up to the trial judge to determine whether Mr. Crosby can testify at trial.
Mr. Crosby opines in his report that after a review of the available evidence, it is his professional opinion that "the use of immediate deadly force against the dog Rocky was objectively unreasonable from the standpoint of the reasonable, well-trained police officer." He further states that "[t]he deployment of deadly force was contrary to what a reasonable, well-trained officer would do in such a circumstance, and was in conflict with recognized professional practices." Crosby also states that the photographs taken at the scene of Rocky's blood are consistent with Plaintiff Smith's testimony that Rocky was shot near the foot of the bed and are inconsistent with the version of events provided by Defendant Cook.
Crosby recognizes that there is general agreement in the parties' testimony that Rocky did not pose a threat after he was initially shot by defendant Cook. He further states that there is no veterinary evidence that Rocky would have necessarily died from the shot or shots fired by Cook or that his injuries were untreatable. He further explains that, had Defendant Adams not fired the killing shot, it is possible that Rocky could have recovered with treatment.
Based on the conflicting testimony of the parties and Mr. Crosby's expert report, the Court finds that there exists a genuine issue of material fact as to whether the shooting and killing of Rocky was reasonable, thereby precluding summary judgment as against Plaintiff Raiser. The Court further finds, however, that summary judgment is appropriate on this claim with respect to Plaintiff Smith. It is undisputed that Plaintiff Smith, while having a close relationship with Rocky, was not Rocky's owner. (Def. Ex. A at 92). This claim sounds in the deprivation of a property right, and since Smith had no property interest in Rocky, he cannot recover as a matter of law.
In Plaintiffs' motion papers (Dkt. No. 45) and during their depositions, Plaintiffs mentioned the loss of other personal property. Plaintiff Smith mentioned that some of his personal property (linens, clothes, shoes, etc.) was destroyed by the police when they used it to clean up Rocky's blood (although he admits that he never observed such activity by the police) (Def. Ex. A at 51-52), and Plaintiff Raiser mentions that the execution of the search warrant resulted in some damage to the residence (although it is not clear that he was the owner of the residence). (Def. Ex. B at 22, 79-80). Plaintiffs, however, do not allege the loss of such property in their Amended Complaint. (Dkt. No. 23). Thus, the loss of such property is not part of this case.
Qualified Immunity
Defendants Cook and Adams argue that they are entitled to summary judgment in this case under the doctrine of qualified immunity. The Court disagrees.
"Qualified immunity shields government officials from liability for civil damages as a result of their performance of discretionary functions, and serves to protect government officials from the burdens of costly, but insubstantial, lawsuits." Lennon v. Miller, 66 F.3d 416, 420 (2d Cir. 1995). "A police officer is entitled to qualified immunity if (1) his conduct does not violate a clearly established constitutional right, or (2) it was 'objectively reasonable' for the officer to believe his conduct did not violate a clearly established constitutional right." Hartline v. Gallo, 546 F.3d 95, 102 (2d. Cir. 2008); see Pearson v. Callahan, 555 U.S. 223 (2009); Reichle v. Howards, 566 U.S. 658 (2012).
With regards to the first consideration, "the focus is on whether the officer had fair notice that [his] conduct was unlawful, reasonableness is judged against the backdrop of the law at the time of the conduct." Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018) (citing Brosseau v. Haugen, 543 U.S. 194, 198 (2004)). "The relevant inquiry is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Stephenson v. Doe, 332 F.3d 68, 76 (2d. Cir. 2003) (internal quotation omitted). "Only Supreme Court and Second Circuit precedent existing at the time of the alleged violation is relevant in deciding whether a right is clearly established." Moore v. Vega, 371 F.3d 110, 114 (2d Cir. 2004).
As to the second consideration, "the relevant question is whether a reasonable officer could have believed the [challenged conduct] to be lawful, in light of clearly established law and the information the . . . officer[ ] possessed." Id. at 115.
A defendant is entitled to summary judgment on qualified immunity grounds only when "no reasonable jury, looking at the evidence in the light most favorable to [] the plaintiffs, could conclude that it was objectively unreasonable for the defendant to believe that he was acting in a fashion that did not clearly violate an established federally protected right." Robinson v. Via, 821 F.2d 913, 921 (2d Cir. 1987) (internal quotation and punctuation omitted).
Applying the above principles to the instant case, the Court finds that the defendants are not entitled to summary judgment on qualified immunity grounds. As stated above, in 2013, before this incident occurred, the Second Circuit held that "the unreasonable killing of a companion animal constitutes an unconstitutional 'seizure' of personal property under the Fourth Amendment." Carroll, 712 F.3d at 651. Also, as stated above, there is a genuine material issue of fact in this case as to whether Defendants Cook and Adams acted reasonably in killing Rocky. Thus, the Court concludes that a reasonable jury, looking at the evidence in the light most favorable to the Plaintiff, could conclude that it was objectively unreasonable for the Defendants to believe that they were acting in a fashion that did not clearly violate an established federally protected right. In other words, if the jury were to find that the defendants automatically killed Rocky even though it was unreasonable for them to believe that he posed an imminent threat, the jury could reasonably find against the Defendants and the Defendants would not be protected by qualified immunity.
Monell Liability
Defendant City of Buffalo argues that it is entitled to summary judgment on Plaintiff Raiser's claim of municipal liability for the killing of Rocky. The Court disagrees.
Defendant Derenda also moves for summary judgment on this claim, but he is entitled to dismissal of the claims against him on other grounds stated below.
Because, for the reasons stated above, Plaintiff Smith does not have an underlying cause of action against defendants Cook and Adams for the killing of Rocky, he cannot recover from the City under a municipal liability theory either. Segal v. City of New York, 459 F.3d 207 (2d Cir. 2006) ("Because the district court properly found no underlying constitutional violation, its decision not to address the municipal defendants' liability under Monell was entirely correct."); Lacey v. Yates Cnty., 30 F. Supp. 3d 213, 228 (W.D.N.Y. 2014) ("a plaintiff cannot allege a Monell claim where he has not alleged a valid underlying constitutional deprivation.").
It is well established that a municipality such as defendant City of Buffalo cannot be held liable under Section 1983 on a respondeat superior theory. See Monell v. Dep't of Soc. Servs. of the City of New York, 436 U.S. 658, 690-91 (1978); Roe v. City of Waterbury, 542 F.3d 31, 36 (2d Cir. 2008). To prevail on a § 1983 claim against a municipality, a plaintiff must show "that 'action pursuant to official municipal policy' caused the alleged constitutional injury." Cash v. Cty. of Erie, 654 F.3d 324, 333 (2d Cir. 2011) (quoting Connick v. Thompson, 563 U.S. 51, 60 (2011)). Local governments may also "be sued for constitutional deprivations visited pursuant to governmental 'custom' even though such a custom has not received formal approval through the body's official decisionmaking channels." Monell, 436 U.S. at 690-91.
A plaintiff can establish the existence of a municipal policy or custom by showing: (1) the existence of a formal policy which is officially endorsed by the municipality; (2) actions taken or decisions made by municipal officials with final decision-making authority, which caused the alleged violation of plaintiff's civil rights; (3) a practice so persistent and widespread that it constitutes a custom of which constructive knowledge and acquiescence can be implied on the part of the policymakers; or (4) a failure by policymakers to properly train or supervise their subordinates, amounting to deliberate indifference to the rights of those who come in contact with the municipal employees. See Moray v. City of Yonkers, 924 F. Supp. 8, 12 (S.D.N.Y. 1996) (citations omitted).
On a failure to train claim, in order to establish deliberate indifference, a plaintiff must show that (1) "a policymaker [knew] 'to a moral certainty' that city employees will confront a particular situation;" (2) "the situation either presents the employee with 'a difficult choice of the sort that training or supervision will make less difficult' or 'there is a history of employees mishandling the situation;' " and (3) "the wrong choice by the city employee will frequently cause the deprivation of a citizen's constitutional rights." Wray v. City of New York, 490 F.3d 189, 195-96 (2d Cir. 2007) (quoting Walker v. City of New York, 974 F.2d 293, 297-98 (2d Cir. 1992)); Reynolds v. Giuliani, 506 F.3d 183, 192 (2d Cir. 2007).
A plaintiff must show that the municipality was on "notice that a course of training is deficient in a particular respect." Connick, 563 U.S. at 60. Thus, a plaintiff must show that the type of police misconduct at issue, e.g., the unreasonable killing of dogs during the execution of a search warrant, was known to the municipality, and not just that the municipality's police officers engaged in misconduct. See id. (holding that claim that district attorney's office was aware of Brady violations was insufficient to make out a Monell claim because the other instances of alleged misconduct involved failures to disclose different materials than those at issue in that case). Generally, a plaintiff must identify other specific instances of police misconduct, because "[a] pattern of similar constitutional violations by untrained employees is 'ordinarily necessary' to demonstrate deliberate indifference for purposes of failure to train." Id. (quoting Board of Comm'rs of Bryan City v. Brown, 520 U.S. 397, 409 (1997)).
"[W]here ... a city has a training program, a plaintiff must ... 'identify a specific deficiency in the city's training program and establish that that deficiency is "closely related to the ultimate injury," such that it "actually caused" the constitutional deprivation.' " Wray, 490 F.3d at 196 (quoting Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 129 (2d Cir. 2004)). The plaintiff must show "that the training program was inadequate, not '[t]hat a particular officer may be unsatisfactorily trained' or that 'an otherwise sound program has occasionally been negligently administered,' and that a 'hypothetically well-trained officer' would have avoided the constitutional violation." Okin v. Vill. of Cornwall-On-Hudson Police Dep't, 577 F.3d 415, 440-41 (2d Cir. 2009) (quoting Canton v. Harris, 489 U.S. 378, 390-91 (1989)).
Applying the above principles to the instant case, the Court finds that Defendant City of Buffalo has failed to show that it is entitled to summary judgment on Plaintiff's Monell claim. Plaintiff has put forth evidence from which a reasonable jury could find that the City of Buffalo's Police Department engages in a practice of killing dogs during the execution of search warrants that is so persistent and widespread that it constitutes a custom of which constructive knowledge and acquiescence can be implied on the part of the City of Buffalo policymakers, and that this practice caused Plaintiff's alleged constitutional injury. Plaintiff has also set forth evidence from which a reasonable jury could find that City of Buffalo's policymakers failed to properly train or supervise their police officers on how to reasonably deal with dogs when executing search warrants, amounting to deliberate indifference to the rights of those dog owners who come in contact with the police in such situations.
Defendant Adams testified that he has participated in the execution of over 1,000 search warrants and that in his experience, dogs are present around half the time. Despite this, he testified that the City of Buffalo has no policy or manual regarding how to deal with dogs in such situations. He testified that he has killed as many as 10 dogs during his career while executing search warrants. He also testified that he has been present when other officers have killed dogs during the execution of search warrants. Adams further testified that every time he discharges his weapon to kill a dog, he must complete a "BPD 1" form reporting why he discharged his firearm. (Def. Ex. C at 9-11, 53, 62).
The filing of these forms would have presumably put City of Buffalo police officials on notice of the frequency of police-dog encounters and the frequent killing of dogs resulting from such encounters.
Like Defendant Adams, Defendant Cook testified that in his experience, when executing search warrants, dogs are present about half the time. Cook further testified that despite police officers encountering dogs on a regular basis when executing search warrants, the City of Buffalo has no specific policies and no specific training for its police officers on dealing with dogs in such situations. Adams testified that he personally had killed over 30 dogs and that had been present when other officers killed dogs. Cook also testified about having to complete a "BPD 1" form when discharging his firearm to kill a dog. (Def. Ex. at 6-7, 11-16, 22-23, 26, 66).
The Plaintiff has also offered as evidence the Buffalo Police Department's "Manual of Procedures," which while discussing procedures regarding search warrants, contains no policies or procedures for dealing with dogs during the execution of a search warrant. (Doc. No. 45).
Plaintiffs further offer the expert report of Mr. Crosby discussed above. Crosby opines that:
Despite recognized, nationally respected professional policing organizations that have produced training materials to establish awareness of the need for proper handling of officer-canine encounters, and despite the duty to protect the property rights of all persons, including companion animal owners, the City of Buffalo Police Department, including in particular Defendants Cook and Adams, have failed to recognize contemporary police practices. They instead used immediate and needless deadly force against a companion animal despite the presence of effective less-lethal and non-lethal means. In my professional opinion, this evidences an abrogation of the civil responsibility to provide safe and effective services to the public. In this instance, the objectively unreasonable and dangerous conduct led to the death of, and from all accounts, a very beloved and friendly companion animal named Rocky.
Moreover, Plaintiff offers the testimony of three other dog owners whose dogs were killed by Buffalo police officers under similar circumstances around the same time Rocky was killed.
Taking all of this evidence together, the Court finds that a reasonable jury could find: (1) a practice by Buffalo police officers of unreasonably killing dogs when executing search warrants that was so persistent and widespread that it constitutes a custom of which constructive knowledge and acquiescence by City of Buffalo police officials can be implied; (2) that City of Buffalo police officials knew to a moral certainty that police officers would confront situations where dogs would be present during the execution of search warrants; (3) that such situations would present police officers with a difficult choice of the sort that training or supervision would make less difficult; (4) that there is a history of Buffalo police officers mishandling such situations; (5) that the wrong choice by police officers could frequently cause the deprivation of a citizen's constitutional rights; and (6) that the City of Buffalo offered no training or inadequate training to Buffalo police officers in dealing with dogs during the execution of search Warrants. Accordingly, the City of Buffalo's motion for summary judgment on Plaintiff's Monell claim should be denied.
Defendant Commissioner Derenda
Defendant Commissioner Derenda argues that the claims against him are duplicative of the claims against the City of Buffalo and that those claims should therefore be dismissed. (Dkt. No. 40). Derenda points out that Plaintiffs never addressed this argument in their opposition papers and therefore have implicitly conceded this point. The Court agrees. See Hutch Enterprises, Inc. v. Cincinnati Ins. Co., No. 16-CV-01010-WMS-JJM, 2019 WL 5783574, at *15 (W.D.N.Y. Aug. 12, 2019); Gustavia Home, LLC v. Hoyer, 362 F. Supp. 3d 71, 86 (E.D.N.Y. 2019) ("a party concedes through silence arguments made by its opponent that it fails to address"); CVS Pharmacy, Inc. v. Press America, Inc., 377 F. Supp. 3d 359, 383 (S.D.N.Y. 2019) ("a party may be deemed to have conceded an argument by failing to address it in its briefing"); Dean v. University at Buffalo School of Medical and Biomedical Sciences, 804 F.3d 178, 187 (2d Cir. 2015) ("given their failure to address [the argument] ... the district court assumed that Defendants conceded that issue"). Accordingly, all claims against Defendant Commissioner Derenda should be dismissed.
Plaintiff Smith's Excessive Force Claim
Plaintiff Smith asserts an excessive force claim against Defendants Cook and Adams, claiming that he was nearly killed by the rounds fired by the Defendants at Rocky and that as a result, he has suffered psychological injuries. Defendants argue that Smith's claim must be dismissed because he was not struck by the fired rounds, was never physically injured and cannot recover for psychological injuries. (Dkt. No. 46).
As stated above, there is a genuine issue of material fact as to whether the Defendants' shooting of Rocky was reasonable. If the jury were to determine that the shooting was reasonable, then Plaintiff would not have a claim for excessive force. However, if the jury were to determine that the shooting was unreasonable, then the jury could also find for Plaintiff Smith on his excessive force claim based on his close proximity to Rocky when Rocky was shot and award Smith damages for psychological injuries if he can prove such injuries. Cf. Terebesi v. Torreso, 764 F.3d 217, 240-41 (2d Cir. 2014) (where plaintiff was asserting a claim of excessive force based on a police officer's shooting of another individual, in close proximity to the plaintiff, thereby allegedly causing the plaintiff emotional and psychological injury, the circuit court affirmed the district court's denial of summary judgment on the defendant officer's qualified immunity defense as there were disputed issues of fact as to whether the shooting was reasonable) (citations omitted). Plaintiff Smith testified at his deposition that as a result of the incident, he suffers from anxiety, paranoia, fear, bad memories, posttraumatic stress, nightmares, has difficulty sleeping, and is afraid of the police, but he has not sought any psychological treatment. (Def. Ex. A at 65-66, 88-92).
In his motion papers, Plaintiff Smith also argues that he is entitled to psychological damages related to seeing Rocky shot and killed. However, Smith does not allege such damages in his Amended Complaint. (Dkt. No. 23). Further, he has not cited, nor has the Court found, any case holding that a person who is not an owner of a dog can recover any type of damages, including psychological damages, for the shooting of that dog by the police.
CONCLUSION
For the foregoing reasons, it is recommended that the motion for summary judgment (Dkt. No. 40) by the Defendant City of Buffalo and Defendants Cook and Adams be granted in part and denied in part, and that all claims against Defendant Commissioner Derenda be dismissed.
Pursuant to 28 U.S.C. §636(b)(1), it is hereby ORDERED that this Report, Recommendation, and Order be filed with the Clerk of Court.
Unless otherwise ordered by the presiding judge, Hon. John L. Sinatra, Jr., any objections to this Report, Recommendation, and Order must be filed with the Clerk of Court within fourteen days of service of this Report, Recommendation, and Order in accordance with the above statute, Rules 72(b), 6(a), and 6(d) of the Federal Rules of Civil Procedure, and Local Rule of Civil Procedure 72. Any requests for an extension of this deadline must be made to Judge Arcara.
Failure to file objections , or to request an extension of time to file objections , within fourteen days of service of this Report , Recommendation , and Order WAIVES THE RIGHT TO APPEAL THE DISTRICT COURT'S ORDER. See Small v. Sec'y of Health & Human Servs., 892 F.2d 15 (2d Cir. 1989).
The District Court will ordinarily refuse to consider de novo arguments, case law and/or evidentiary material which could have been, but were not, presented to the Magistrate Judge in the first instance. See Paterson-Leitch Co. v. Mass. Mun. Wholesale Elec. Co., 840 F.2d 985, 990-91 (1st Cir. 1988).
Pursuant to Local Rule of Civil Procedure 72(b), written objections "shall specifically identify the portions of the proposed findings and recommendations to which objection is made and the basis for each objection, and shall be supported by legal authority." Failure to comply with these provisions may result in the District Court's refusal to consider the objection.
SO ORDERED.
Dated: September 29, 2020
Buffalo, New York
/s/_________
MICHAEL J. ROEMER
United States Magistrate Judge