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granting summary judgment motion in favor of defendants on remand
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12-CV-2973 (GRB)(AYS)
2022-04-29
Christopher CALLAHAN, Individually and as Administrator of the Estate of Kevin Callahan and Patricia Callahan, Individually, Plaintiffs, v. The COUNTY OF SUFFOLK and Police Officer Thomas Wilson #5675, Defendants.
Alexander R. Klein, Barket Epstein Kearon Aldea & LoTurco, LLP, Garden City, NY, Bruce A. Barket, Barket Marion Epstein & Kearon LLP, Garden City, NY, Amy Beth Marion, Abrams Fensterman Fensterman Eisman Formato Ferrara Wolf & Carone, LLP, Lake Success, NY, for Plaintiffs. Brian C. Mitchell, Susan A. Flynn, Suffolk County Dept. of Law-County Attorney, Hauppauge, NY, for Defendants.
Alexander R. Klein, Barket Epstein Kearon Aldea & LoTurco, LLP, Garden City, NY, Bruce A. Barket, Barket Marion Epstein & Kearon LLP, Garden City, NY, Amy Beth Marion, Abrams Fensterman Fensterman Eisman Formato Ferrara Wolf & Carone, LLP, Lake Success, NY, for Plaintiffs.
Brian C. Mitchell, Susan A. Flynn, Suffolk County Dept. of Law-County Attorney, Hauppauge, NY, for Defendants.
MEMORANDUM AND ORDER
GARY R. BROWN, United States District Judge:
Plaintiffs assert claims against the County of Suffolk and Officer Thomas Wilson under 42 U.S.C. § 1983 (" Section 1983") for use of excessive force against Kevin Callahan ("Callahan") who was killed during a response to a 911 call, which advised that an unknown gunman was in the house threatening Callahan. There was no gunman, but during a struggle in which Callahan pinned Wilson with a door, Callahan was tragically shot and killed. In a trial before the Honorable Leonard D. Wexler held in 2015, a jury returned a verdict in favor of defendants as to all claims, but the verdict as to excessive force was vacated on appeal due to an erroneous jury instruction. Defendants now seek summary judgment, arguing that Officer Wilson's use of deadly force was protected under qualified immunity, an issue not substantively considered by the Court. Plaintiffs oppose and additionally seek to amend the complaint to add state law claims for battery and respondeat superior. For the reasons set forth below, the defendants’ motion is GRANTED and plaintiffs’ motion to amend the complaint is DENIED.
After the conclusion of evidence at the trial, Wilson's counsel made an oral motion under Rule 50 for a directed verdict on the grounds of qualified immunity; Judge Wexler rejected the application as untimely. Tr. at 389-90.
FACTS
Consistent with the standards for review in the context of a summary judgment motion, the following facts are recounted with all ambiguities and reasonable inferences drawn in the nonmoving party's favor.
On September 20, 2011, Kevin Callahan's brother called 911 to report that "my mother just tried to call my younger brother at our house and when he picked up the phone she heard in the background [from someone other than Callahan] ‘I'm gonna fucking kill you’ and my brother was telling her that [someone else in the house] got a gun." Pl. Ex. A., DE 91-11, 911 Call. "She heard a kid apparently yelling at my brother and then my brother said to my mother on the phone ‘mom he's got a gun.’ " Id. The brother explained that Callahan had recently been hospitalized after being "all messed up on pills" and their mother was staying elsewhere in order to avoid Callahan. Id. ; see also Pl. Ex. B, DE 91-12 at 2, Suffolk Cty. Police Dep't Report. At approximately 12:37 PM, Suffolk County police officers Thomas Wilson, Dan Furey and Elisa McVeigh received a radio dispatch regarding a possible gunman at the Callahan residence: "Possible gun involved. Mother was on the phone with her son at that location, said she overheard him state to someone else that he's got a gun and then disconnected." Pl. Ex. J, DE 91-20, Suffolk Cty. Police Dep't Dispatch. As the officers drove to the residence, Furey, apparently familiar with Callahan, told Wilson via radio that Callahan was "not violent." Tr. at 93, 177. Minutes later, Wilson arrived at the home. Tr. at 120-21. Although the front door was open, the screen door was closed. Tr. at 94, 125. Wilson knocked on the screen door and said, "Police! Anyone inside? Police! Anyone in there? Anyone need help?" Tr. at 125-26. Not knowing that the mother was elsewhere and concerned that she could be in the house, the officers entered to determine if there was someone with a gun inside. Tr. at 97, 127, 213.
Once inside, the officers divided their efforts to search the split-level ranch home. Tr. at 95-97. Wilson and Furey went downstairs to the ground level while McVeigh covered the upper level. Tr. at 97, 130. After descending the stairs, Wilson turned off the TV in the den and observed a cleaver, which he pointed out to Furey with a flashlight. Tr. at 102. Although the ground level had windows facing the backyard, it was dark enough that the officers needed flashlights. Tr. at 96, 131. Furey moved through the right wing of the ground floor while Wilson checked the left. Tr. at 137.
According to one site, "Split-level houses generally have limited access to natural light. This is because of their low-pitched roofs, minimal windows, and budget-friendly design." What Is a Split-Level House? All About This Mid-Century Style , Redfin Blog (Mar. 3, 2022), https://www.redfin.com/blog/what-is-a-split-level-house/.
As Wilson entered a room down the hall, he saw a man through the crack of the door and said, "Police, I see you. Police, I see you. Don't move." Tr. at 105, 140. Furey confirmed that he heard Wilson yell something. Tr. at 222. Nevertheless, the man began to move towards the door. Tr. at 106. Wilson saw the unknown man – who turned out to be Callahan – thrust towards him with an object and heard a growl that sounded like a "bench pressing exertion." Tr. at 110, 112, 144. The door closed on Wilson, "pinning" him between the door and the door frame. Tr. at 142. As a result, Wilson's "left arm, part of his left leg and his foot and just the edge of his hip [were] exposed beyond the edge of the door." Tr. at 142. Since Wilson is left-handed and had already unholstered his gun, his arm and the hand holding the revolver were trapped in the opening of the partially-closed door. Tr. at 107-09. Fearing that the assailant, who was pressing against the door, might take his gun, Wilson fired. DE 91-12 at 6; Tr. at 143-45. After the first shot, the door released and Wilson fell backward. Tr. at 113, 145. As he fell back, Wilson fired two shots through the door. Tr. at 113, 145, 162. Wilson could not recall the total number of times he fired. Tr. at 145.
Furey did not observe Wilson get stuck in the door, nor could he see the door from where he was standing. Tr. at 187. While walking across the den, Furey overheard Wilson yell, heard three or four shots, and saw Wilson fall backwards as he fired through the door. DE 91-12 at 4; Tr. at 222, 229. Furey moved to the stairway and saw Wilson – bearing a "look of terror" – stand up and kick the door, which had just slammed shut. DE 91-12 at 4; Tr. at 223. Seeking cover, Wilson ran toward Furey. Tr. at 146-47, 223. In a recorded radio transmission, Wilson stated: "I got one male behind the door, he just shut the door, he was hiding behind the door, displayed something; uh, I'm OK, shots fired." Def. R. 56.1 Statement, ¶ 24, DE 91-2; Tr. at 147.
Approximately twenty minutes later, police officers with the emergency services unit arrived. Tr. at 225. The officers opened the door with a sledgehammer and handcuffed Callahan, who was unresponsive. Tr. at 245-47. No weapons were found in Callahan's room. Tr. at 246-47. Two shell casings were recovered inside the room and two were found outside the room. Tr. at 285, 295. Two bullets passed through the middle portion of the door above the doorknob, travelling slightly downward at an angle of approximately 14-16 and 7-9 degrees, respectively. DE 91-16 at 3. Only three bullets were recovered. Tr. at 285.
The autopsy report determined that the cause of Callahan's death was three gunshot wounds. DE 91-16 at 1. One bullet entered the lower left chest and exited the lower left flank. Tr. at 274; DE 91-16 at 10. The bullet failed to expand, which according to expert ballistics testimony, is consistent with being shot through the door, as wooden fragments plug the bullet's hollow-point cavity which would otherwise cause the projectile to expand. Tr. at 276, 304; DE 91-16 at 8, 12. A second bullet entered the right shoulder and was recovered in the left side of the chest. Tr. at 278; DE 91-16 at 10. The stippling around that wound was consistent with a contact shot. Tr. at 281, 303; DE 91-16 at 10, 12. A third bullet entered Callahan's right shoulder and exited the right abdomen. Tr. at 276, 278; DE 91-16 at 10. Given the lack of stippling, i.e., propellant from the cartridge which adheres to skin and clothing, that wound appeared to have been made from a bullet fired from a further distance, and not through the door. Tr. at 275-77; DE 91-16 at 10, 12.
The County crime lab concluded that all four cartridge casings were fired from Wilson's pistol, and the positioning of Kevin Callahan and the wounds he suffered were consistent with the account provided by Officer Wilson. DE 91-16 at 3; Tr. at 336-38. Notably, plaintiffs’ forensic consultant also found Callahan's wounds were consistent with the general account given by Wilson and largely agreed with the findings of the County's medical examiner. Tr. at 283-84, 301, 305; Pl. R. 56.1 Counterstatement, ¶ 43, DE 91-8.
PROCEDURAL HISTORY
In 2012, Kevin Callahan's mother Patricia Callahan and his brother Christopher Callahan filed this action against Suffolk County, Wilson and several other Suffolk County employees no longer party to this suit under Section 1983, asserting federal claims of excessive force, denial of medical treatment, unlawful search and seizure, Monell liability, supervisory liability, and failure to intervene, along with state law claims for false imprisonment, intentional or negligent infliction of emotional distress, and wrongful death. Compl., DE 1; Am. Compl., DE 49. The Court entered a scheduling order setting December 6, 2012 as the deadline to amend the pleadings and advised the parties that the deadline will only be modified upon a timely showing of good cause. DE 7. In 2015, a jury returned a verdict in favor of Wilson on the excessive force claim and in favor of another defendant on the denial of medical treatment claim. DE 65. In 2017, the Second Circuit vacated the judgment as to the excessive force claim and remanded, finding the district court's jury charge on the use of deadly force was erroneous. Callahan v. Wilson , 863 F.3d 144, 146 (2d Cir. 2017).
After a pre-trial conference last year, after which this Court placed the case on the trial ready calendar, defendants moved for summary judgment. DE 91. Plaintiffs opposed, filed several motions in limine , DE 92, and in January 2022, filed a motion to amend the complaint to add state law claims for battery and respondeat superior in light of Triolo v. Nassau Cty. , 24 F.4th 98 (2d Cir. 2022).
DISCUSSION
Defendant's Motion for Summary Judgment
Standard of Review
The Second Circuit has described the standard of review for a summary judgment motion asserting the defense of qualified immunity against an excessive force claim as follows:
In ruling on a motion for summary judgment and assessing whether there is a genuine issue to be tried as to any material fact, the court is required to resolve all ambiguities and draw all factual inferences in favor of the party against whom summary judgment is sought. See, e.g., Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ; United States v. Diebold, Inc. , 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962) (per curiam) (inferences to be drawn from the underlying facts revealed in materials such as affidavits, exhibits, and depositions, must be viewed in the light most favorable to the party opposing the motion). Summary judgment should not be granted on the basis of a qualified immunity defense premised on an assertion of objective reasonableness unless the defendant "show[s] that no reasonable jury, viewing the evidence in the light most favorable to the Plaintiff, could conclude that the defendant's actions were objectively unreasonable in light of clearly established law." Ford v. Moore , 237 F.3d 156, 162 (2d Cir. 2001) ; see also Thomas v. Roach , 165 F.3d 137, 143 (2d Cir. 1999) ; Lennon v. Miller , 66 F.3d 416, 420 (2d Cir. 1995).
Further, given the difficult problem posed by a suit for the use of deadly force, in which "the witness most likely to contradict [the police officer's] story—the person shot dead—is unable to testify[,] ... the court may not simply accept what may be a self-serving account by the police officer." Scott v. Henrich , 39 F.3d at 915. Rather, the court must also consider "circumstantial evidence that, if believed, would tend to discredit the police officer's story, and consider whether this evidence could convince a rational factfinder that the officer acted unreasonably." Id. ; see, e.g. , Maravilla v. United States , 60 F.3d 1230, 1233–34 (7th Cir. 1995) (where "the witness most likely to contradict the officers’ testimony is dead," the court should "examine all the evidence to determine whether the officers’ story is consistent with other known facts"); Plakas v. Drinski , 19 F.3d 1143, 1147 (7th Cir.) ("in deadly force cases[,] ... where the officer defendant is the only witness left alive to testify[,] ... a court must undertake a fairly critical assessment of," inter alia , "the officer's original reports or statements ... to decide whether the officer's testimony could
reasonably be rejected at a trial"), cert. denied , 513 U.S. 820, 115 S.Ct. 81, 130 L.Ed.2d 34 (1994).
O'Bert ex rel. Est. of O'Bert v. Vargo , 331 F.3d 29, 37 (2d Cir. 2003).
Under the Fourth Amendment, an officer is entitled to use such force as is objectively reasonable under the circumstances. Id. at 36. "It is not objectively reasonable for an officer to use deadly force to apprehend a suspect unless the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others." Id. (citing Tennessee v. Garner , 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985) ). "[T]he question [of] whether an officer has used excessive force ‘requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.’ " Kisela v. Hughes , ––– U.S. ––––, 138 S. Ct. 1148, 1152, 200 L.Ed.2d 449 (2018) (quoting Graham v. Connor , 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) ). "The ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight." Id. (quoting Graham , 490 U.S. at 396, 109 S.Ct. 1865 ). The objective reasonableness inquiry "depends only upon the officer's knowledge of circumstances immediately prior to and at the moment that he made the split-second decision to employ deadly force[.]" O'Bert , 331 F.3d at 37 (quoting Salim v. Proulx , 93 F.3d 86, 92 (2d Cir. 1996) ). Finally, "[t]he 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." Kisela , 138 S. Ct. at 1152 (quoting Graham , 490 U.S. at 396-97, 109 S.Ct. 1865 ).
The doctrine of qualified immunity protects government officials "from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Pearson v. Callahan , 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (quoting Harlow v. Fitzgerald , 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982) ). A court may determine whether a defendant is entitled to qualified immunity without determining whether there was a deprivation of a constitutional right. Id. at 236, 129 S.Ct. 808. "Qualified immunity shields an officer from suit when she makes a decision that, even if constitutionally deficient, reasonably misapprehends the law governing the circumstances she confronted." Brosseau v. Haugen , 543 U.S. 194, 198, 125 S.Ct. 596, 160 L.Ed.2d 583 (2004). "[I]f officers of reasonable competence could disagree on [whether the conduct is constitutional], immunity should be recognized." Malley v. Briggs , 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986).
As "existing precedent must have placed the statutory or constitutional question beyond debate[,]" "[qualified] immunity protects all but the plainly incompetent or those who knowingly violate the law." Kisela , 138 S. Ct. at 1152 (quoting White v. Pauly , 580 U.S. 73, 137 S.Ct. 548, 551, 196 L.Ed.2d 463 (2017) ). Thus, an officer is entitled to qualified immunity unless "existing precedent ‘squarely governs’ the specific facts at issue." Id. at 1153 (citing Mullenix v. Luna , 577 U.S. 7, 13, 136 S.Ct. 305, 193 L.Ed.2d 255 (2015) ). As the Supreme Court has emphasized, clearly established law should not be defined at a high level of generality. Id. at 1152. Rather, "the general rules set forth in ‘ Garner and Graham do not by themselves create clearly established law outside an ‘obvious case.’ " Id. at 1153 (quoting White , 137 S.Ct. at 552 ). "Where constitutional guidelines seem inapplicable or too remote, it does not suffice for a court simply to state that an officer may not use unreasonable and excessive force, deny qualified immunity, and then remit the case for a trial on the question of reasonableness." Id.
Defendant Wilson's Qualified Immunity Defense
As this Court has previously held:
To oppose a motion for summary judgment, though, a party is required by the Court's Local Rules to submit a Statement of Material Facts upon which it contends there "exists a genuine issue to be tried" and "each statement controverting any statement of material fact ... must be followed by citation to evidence which would be admissible, set forth as required by Fed. R. Civ. P. 56(c)." L. Civ. R. 56(d) ; Tuccio v. FJC Sec. Servs., Inc. , No. CV 12-5506(JFB)(GRB), 2014 WL 4438084, at *5 (E.D.N.Y. Aug. 18, 2014), adopted by , 2014 WL 4438469 (E.D.N.Y. Sept. 8, 2014), appeal dismissed , (2d Cir. Mar. 18, 2015). A party may not rest on a mere denial without citing supporting admissible evidence. "Merely denying certain statements in the moving party's statement of undisputed material facts without stating the factual basis for such denial and without disclosing where in the record is the evidence relied upon in making such denial does not constitute a ‘separate, short, and concise statement of the material facts as to which it is contended that there exists a genuine issue to be tried’—as is required to controvert the moving party's statement of undisputed material facts." Covelli v. Nat'l Fuel Gas Distrib. Corp. , No. 99-cv-0500E( ), 2001 WL 1823584, at *1 (W.D.N.Y. Dec. 6, 2001) (citing Holtz v. Rockefeller & Co. , 258 F.3d 62, 74 (2d Cir. 2001) ), aff'd, Covelli v. Nat'l Gas Distrib. Corp. , 49 Fed.Appx. 356 (2d Cir. 2002).
Upon the failure to properly controvert a movant's statement of material fact, such statement "will be deemed admitted for the purposes of the motion." L. Civ. R. 56.1(c); D.N. ex rel. D.N. v. Bd. of Educ. of Ctr. Moriches Union Free Sch. Dist. , No. CV 14-99(GRB), 2015 WL 5822226, at *3 n.3 (E.D.N.Y. Sept. 28, 2015) ; see also Edmonds v. Seavey , No. 08 CIV. 5646 (HB), 2009 WL 2949757, at *1 n.2 (S.D.N.Y. Sept. 15, 2009), aff'd , 379 Fed.Appx. 62 (2d Cir. 2010) ; AFL Fresh & Frozen Fruits & Vegetables, Inc. v. De-Mar Food Servs. Inc. , No. 06 Civ. 2142(GEL), 2007 WL 4302514, at *5 (S.D.N.Y. Dec. 7, 2007). At the same time, of course, district courts have "broad discretion to determine whether to overlook a party's failure to comply with local court rules." Holtz , 258 F.3d at 73. And the Court may not rely solely upon the failure to controvert assertions made in a Rule 56.1 statement if those assertions are not supported in the record. See Giannullo v. City of New York , 322 F.3d 139, 140 (2d Cir. 2003) ("[E]ven though plaintiff's Rule 56.1 counter-statement failed to specifically controvert these assertions, the unsupported assertions must nonetheless be disregarded and the record independently reviewed."); compare Jackson v. Fed. Express , 766 F.3d 189, 196 (2d Cir. 2014) (distinguishing Giannullo and upholding default where "each statement of proposed undisputed facts
was supported by a citation to the record sufficient to prove each such fact").
Gervis v. Target Corp. , No. CV 16-380 (GRB), 2017 WL 3669009, at *2 (E.D.N.Y. July 20, 2017). These requisites would seem to be heightened where, as here, summary judgment occurs not only after the close of discovery, but upon a full trial record.
In this case, the Court recognizes, as it must, that plaintiffs face particular challenges. As the Second Circuit has observed, "given the difficult problem posed by a suit for the use of deadly force, in which ‘the witness most likely to contradict [the police officer's] story—the person shot dead—is unable to testify[,] ... the court may not simply accept what may be a self-serving account by the police officer.’ " O'Bert , 331 F.3d at 37 (quoting Scott , 39 F.3d at 915 ). At the same time, that does not leave the parties and the Court without any tools to evaluate the veracity of such an account. "Rather, the court must also consider ‘circumstantial evidence that, if believed, would tend to discredit the police officer's story, and consider whether this evidence could convince a rational factfinder that the officer acted unreasonably." Id. To defeat summary judgment, the nonmoving party "may not rely on conclusory allegations or unsubstantiated speculation" but "must offer some hard evidence showing that its version of the events is not wholly fanciful." Jeffreys v. City of New York , 426 F.3d 549, 554 (2d Cir. 2005) (citations omitted) (affirming summary judgment where no evidence supported plaintiff's allegation of defenestration by an officer other than plaintiff's contradictory and incomplete testimony).
Yet, on this motion, counsel for plaintiffs have opted to deny nearly every assertion with a boilerplate paragraph purporting to challenge Wilson's credibility with a litany of arguments. DE 91-8, ¶¶ 4, 6, 7, 9, 10-14, 16-23. This scattershot approach is problematic for a number of reasons. For example, the first assertion attacking defendant's credibility is that "Wilson claims he feared a gun was in the home but had been told by his colleague that Kevin Callahan was ‘not violent.’ " Id. However, this contention proves inapposite, as the evidence shows that the initial report to 911 involved a gunman in the home other than Callahan and the radio dispatch suggested the gunman was a third party. Pl. Ex. A., DE 91-11; Pl. Ex. J, DE 91-20. Moreover, counsel has interposed these generalized assertions even where they are inapposite to the matter being asserted, including matters that appear innocuous, prosaic or indisputable. See, e.g. , DE 91-2 ¶ 6 (asserting that Wilson knocked on the door and announced his presence) ; ¶ 10 (Wilson's observation of the cleaver); ¶ 12 (Wilson turned off the TV and identified himself as a police officer). Indeed, counsel even asserts this generalized credibility-based denial as against facts about which Wilson's "story is consistent with other known facts." O'Bert , 331 F.3d at 37 (quoting Maravilla , 60. F.3d at 1147); ¶ 11 (Wilson pointed out cleaver to Furey).
Compare, e.g. , DE 91-12 at 5 (Officer McVeigh reporting "As entry to the house was made, PO Wilson, PO Furey and I were screaming, "POLICE, POLICE, SUFFOLK COUNTY POLICE").
Plaintiffs posit that Wilson may have never been stuck in the door. See Pl. Opp., DE 91-10 at 8. Specifically, counsel theorizes as follows:
[W]hile Officer Wilson claims that he observed Kevin near the door-hinge, tried to enter the room, got trapped, and then started firing, it is also plausible that he fired his gun through the closed
door first, heard Kevin yelp in pain, and then entered the room to shoot him twice more.
Id. at 8. Wilson's account, including "being unable to see, trapped by an aggressor and falling backwards," is "belied" by counsel's exegesis. Id. However, counsel proffers no evidence to support plaintiffs’ alternate version of the facts. Despite plaintiffs’ efforts to sow doubt by highlighting supposed inconsistencies between Wilson's testimony and the ballistics evidence, see id. at 6–8, plaintiffs’ own forensics expert agreed with the County crime lab that the ballistics evidence is consistent with the general account given by Wilson. Pl. R. 56.1 Counterstatement, ¶ 43, DE 91-8; Tr. at 301, 305.
Moreover, this is not a situation where there are no other witnesses except the surviving officer. Officer Furey witnessed Wilson fall backwards as he fired through the door, stand up, kick the door – which was shut – and saw Wilson run to Furey seeking cover. Tr. at 222-23, 229; DE 91-12 at 4. Furey's recollections further undermine plaintiffs’ fanciful version. See 91-12 at 4 (Furey records that he "was turning towards PO Wilson when I heard 3 or 4 rounds go off and simultaneously saw him move backwards while firing his weapon"). Based on Furey's account – which is undisputed – there was no opportunity for Wilson to enter the room and shoot Callahan in the back after shooting through the door. As plaintiffs have not disputed the veracity of Furey's testimony and there is no evidence to dispute Furey's version of events, there is no genuine dispute as to any material fact regarding the manner in which Wilson shot Callahan.
Plaintiffs’ only response to these portions of Furey's testimony is an erroneous evidentiary objection. See Pl. R. 56.1 Counterstatement, ¶¶ 26-28 (arguing Furey's testimony relies upon inadmissible hearsay). Furey's testimony at trial that he saw Wilson fall backwards while shooting, stand up, kick the door and run is not hearsay.
Thus, Wilson's use of deadly force did not violate clearly established law of which any reasonable officer should have been aware. As the Supreme Court has held:
[A] defendant cannot be said to have violated a clearly established right unless the right's contours were sufficiently definite that any reasonable official in the defendant's shoes would have understood that he was violating it. [ Ashcroft v. al-Kidd , 563 U.S. 731, 741, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011) ]. In other words, "existing precedent must have placed the statutory or constitutional question" confronted by the official "beyond debate." Id. In addition, "[w]e have repeatedly told courts ... not to define clearly established law at a high level of generality," id. , at [742, 131 S.Ct. 2074], since doing so avoids the crucial question whether the official acted reasonably in the particular circumstances that he or she faced. We think our decision in Brosseau v. Haugen , 543 U.S. 194 [125 S.Ct. 596, 160 L.Ed.2d 583] (2004) (per curiam ) squarely demonstrates that no clearly established law precluded petitioners’ conduct at the time in question. In Brosseau , we held that a police officer did not violate clearly established law when she fired at a fleeing vehicle to prevent possible harm to "other officers on foot who [she] believed were in the immediate area, ... occupied vehicles in [the driver's] path[,] and ... any other citizens who might be in the area." Id. , at 197 .
Plumhoff v. Rickard , 572 U.S. 765, 778–79, 134 S.Ct. 2012, 188 L.Ed.2d 1056 (2014).
Here, Wilson was responding to a report regarding a possible gunman at the Callahan residence. After entry, Wilson spotted a cleaver in the den of the dark ground-floor, heightening concerns of the potential for violence. In the dark, Wilson saw an unidentified man through the crack of a door holding an object, identified himself as a police officer and ordered the man to freeze. Instead, the man growled, and forced the door shut, pinning Wilson to the doorframe. The incapacitated officer's gun was exposed, presenting additional safety concerns. Wilson then fired several shots, including two that went through the door as he fell backwards. This is not a case where an officer "seize[d] an unarmed, nondangerous suspect by shooting him dead." Garner , 471 U.S. at 11, 105 S.Ct. 1694. Rather, by all accounts, Wilson was faced with a dangerous, unpredictable, and largely unprecedented situation. Neither the parties nor this Court can identify any precedent that "squarely governs" the use of deadly force under such extraordinary circumstances.
Plaintiffs assert that "the constitutional line crossed by defendant Wilson was clearly established" by the Second Circuit's decision in O'Bert, see DE 91-10 at 13, yet O'Bert is readily distinguishable. In that case, police were dealing with an identified individual in a domestic violence situation, who had "stepped out [of his trailer]—in a very restrained, controlled, and nonthreatening manner" to speak with the officers. 331 F.3d at 33. After returning to the trailer, the decedent in O'Bert refused to come out and made violent threats against the officers Id. However, at the time that the officers made a forced entry into the trailer, one of the officers could observe him in the "brightly lit" trailer, and advised the other officers that he was unarmed. Id. "The officers decided to enter the trailer immediately, without summoning other forces, because O'Bert was unarmed; they would not have entered had they believed he was armed." Id. While O'Bert refused to take his hand out of his pocket, the officers knew he only had access to a rifle, and hence could not be hiding a firearm. Id. at 34. One of the officers lunged toward him, and another shot O'Bert through the chest. Id. While the defendant officers disputed how long O'Bert was out of sight, the testimony of other officers "create[d] a genuine dispute as to how long, if at all , O'Bert remained out of [the officer's] sight after they entered the trailer." Id. at 35.
In this case, there is no such testimony. The undisputed testimony establishes that Wilson, while responding to a report of an armed assailant, encountered a weapon – the cleaver – in the home, that a then-unknown assailant wielding an object pinned him to the doorframe, disobeying his direction not to move, and that his handgun was, as a result, exposed and vulnerable to the assailant. As noted, the crime lab analysis found that the physical evidence generally supported Wilson's account and, importantly, plaintiffs’ forensic expert admitted that he could not controvert these findings.
Given the unique circumstances of this case, including but not limited to the report of a gunman in the home, Callahan's refusal to obey Wilson's lawful direction to freeze, his assault of the officer with the door, and Wilson's vulnerability after being pinned in the doorjamb, it cannot be said that Wilson's use of deadly force violated a clearly established right. Indeed, the facts and circumstances of this case are more akin to those considered by the Supreme Court in Kisela :
Viewing the record in the light most favorable to Hughes, Chadwick said "take it easy" to both Hughes and the officers. Hughes appeared calm, but she did not acknowledge the officers’ presence or drop the knife. The top bar of
the chain-link fence blocked Kisela's line of fire, so he dropped to the ground and shot Hughes four times through the fence. Then the officers jumped the fence, handcuffed Hughes, and called paramedics, who transported her to a hospital. There she was treated for non-life-threatening injuries. Less than a minute had transpired from the moment the officers saw Chadwick to the moment Kisela fired shots.
* * * *
Kisela says he shot Hughes because, although the officers themselves were in no apparent danger, he believed she was a threat to Chadwick. Kisela had mere seconds to assess the potential danger to Chadwick. He was confronted with a woman who had just been seen hacking a tree with a large kitchen knife and whose behavior was erratic enough to cause a concerned bystander to call 911 and then flag down Kisela and Garcia. Kisela was separated from Hughes and Chadwick by a chain-link fence; Hughes had moved to within a few feet of Chadwick; and she failed to acknowledge at least two commands to drop the knife. Those commands were loud enough that Chadwick, who was standing next to Hughes, heard them. This is far from an obvious case in which any competent officer would have known that shooting Hughes to protect Chadwick would violate the Fourth Amendment.
138 S. Ct. at 1151, 1153. In those circumstances, the Supreme Court held that "even assuming a Fourth Amendment violation occurred—a proposition that is not at all evident—on these facts Kisela was at least entitled to qualified immunity." Id. at 1152. The same must be said concerning officer Wilson, and hence his use of lethal force is protected by qualified immunity.
The County's Motion for Summary Judgment on the Monell Claim
Given plaintiffs’ failure to respond to defendants’ arguments regarding Monell liability, the Court considers the Monell claim abandoned. See Taylor v. City of New York , 269 F. Supp. 2d 68, 75 (E.D.N.Y. 2003) ("Federal courts may deem a claim abandoned when a party moves for summary judgment on one ground and the party opposing summary judgment fails to address the argument in any way."), order clarified , No. 01-CV-5750 (ILG), 2003 WL 21781941 (E.D.N.Y. July 29, 2003) ; Nzegwu v. Friedman , No. 10-CV-02994 (CBA)(RML), 2014 WL 1311428, at *1, n.2 (E.D.N.Y. Mar. 31, 2014), aff'd , 605 Fed. Appx 27 (2d Cir. 2015) (unreasonable search and seizure claim abandoned where plaintiff failed to respond to defendant's defense on summary judgment). Even if plaintiffs’ cursory denial of defendants’ assertion that the County had no custom or policy giving rise to Monell liability were to be construed as a defense of the Monell claim, see R. 56.1 Counterstatement, ¶ 46, DE 91-8, the Court would find plaintiffs failed to establish Monell liability. Plaintiffs’ expert witness report merely opines that Wilson and Furey should have been trained to clear each room together instead of individually. See Pl. Ex. D, DE 91-14. Nothing in the report suggests the County's police training was so inadequate that it amounted to "deliberate indifference to the rights of persons with whom the police come into contact." City of Canton, Ohio v. Harris , 489 U.S. 378, 388, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989) ; see also Brandon v. City of New York , 705 F. Supp. 2d 261, 277 (S.D.N.Y. 2010) (dismissing Monell claim on summary judgment where plaintiff failed to submit relevant evidence). Nor have plaintiffs submitted any evidence that there was a "sufficiently widespread practice among police officers of [using excessive force] to support reasonably the conclusion that such abuse was the custom of the officers of the Department and that [the County] must have been aware of it but took no adequate corrective or preventive measures." Jones v. Town of E. Haven , 691 F.3d 72, 82 (2d Cir. 2012). For these reasons, defendants’ motion to dismiss the Monell claim is granted.
Plaintiffs’ Motion to File an Amended Complaint
Standard of Review
After the time for amending a pleading as a matter of course has expired, "a party may amend its pleading only with the opposing party's written consent" or with "the court's leave," which "[t]he court should freely give leave when justice so requires." Fed. R. Civ. P. 15(a)(2). Additionally, a scheduling order's deadline for amending the pleadings "may be modified only for good cause and with the judge's consent." Fed. R. Civ. P. 16(b)(4). "The period of ‘liberal’ amendment ends if the district court issues a scheduling order setting a date after which no amendment will be permitted." Sacerdote v. New York Univ. , 9 F.4th 95, 115 (2d Cir. 2021), cert. denied , ––– U.S. ––––, 142 S. Ct. 1112, 212 L.Ed.2d 9 (2022). Hence, when a scheduling order governs amendments to the complaint, "the lenient standard under Rule 15(a) ... must be balanced against the requirement under Rule 16(b) that the Court's scheduling order ‘shall not be modified except upon a showing of good cause.’ " Holmes v. Grubman , 568 F.3d 329, 334–35 (2d Cir. 2009) (citations omitted).
"[A] finding of ‘good cause’ depends on the diligence of the moving party." Parker v. Columbia Pictures Indus. , 204 F.3d 326, 340 (2d Cir. 2000). "A party fails to show good cause when the proposed amendment rests on information that the party knew, or should have known, in advance of the deadline." Perfect Pearl Co. v. Majestic Pearl & Stone, Inc. , 889 F. Supp. 2d 453, 457 (S.D.N.Y. 2012) (citations and quotation marks omitted). "Courts in this Circuit have found good cause to support amendment when plaintiffs have diligently sought leave upon a change in controlling law." Elsevier Inc. v. Grossmann , No. 12 CIV. 5121 (KPF), 2017 WL 1843298, at *9 (S.D.N.Y. May 8, 2017). Generally, "[a] district court has discretion to deny leave for good reason, including futility, bad faith, undue delay, or undue prejudice to the opposing party." Holmes , 568 F.3d at 334 (citation omitted); see also Cohen v. Am. Airlines, Inc. , 13 F.4th 240, 247 (2d Cir. 2021). An amendment is futile "if the proposed amended complaint would be subject to ‘immediate dismissal’ for failure to state a claim or on some other ground." Goldberg v. Cablevision Sys. Corp. , 281 F. Supp. 2d 595, 605 (E.D.N.Y. 2003) (citation omitted). Although "the primary consideration is whether the moving party can demonstrate diligence[,]" the court "also may consider other relevant factors including, in particular, whether allowing the amendment of the pleading at this stage of the litigation will prejudice defendants." Kassner v. 2nd Ave. Delicatessen Inc. , 496 F.3d 229, 244 (2d Cir. 2007). Although there is a "strong preference for resolving disputes on the merits," Chan v. City of New York , No. 19-CV-7239 (RPK)(SJB), 2021 WL 6502292, at *5 (E.D.N.Y. 2021) (citations and quotation marks omitted), the decision to modify a scheduling order is in the "sound discretion" of the district court. Soley v. Cty. of Nassau , No. 18-CV-377 (ARR)(SJB), 2021 WL 1554834, at *4 (E.D.N.Y. Apr. 20, 2021) ; see also Campoli v. HealthExtras , Inc., 232 F. Appx 20, 23 (2d Cir. 2007).
Discussion
Plaintiffs have failed to establish the requisite diligence to satisfy Rule 16(b)(4) ’s good cause standard. That a municipality can be liable under respondeat superior for battery by a police officer is not a novel legal theory. As Triolo stated, "New York law is clear that municipalities can be liable for the actions of police officers on [tort] claims under a theory of respondeat superior. " 24 F.4th at 110–11. Indeed, the year before Callahan was shot, a court held that the "state law claim of assault and battery against the [municipality] is alive due to the potential for vicarious liability for actions of its police officers as its employees" because "[u]nlike cases brought under [ Section] 1983, municipalities may be liable for the common law torts, like false arrest and malicious prosecution, committed by their employees under the doctrine of respondeat superior. " Williams v. City of White Plains , 718 F. Supp. 2d 374, 381 (S.D.N.Y. 2010) (quoting L.B. v. Town of Chester , 232 F. Supp. 2d 227, 239 (S.D.N.Y. 2002) ). Triolo dealt with the related but distinct question of whether a municipality can be vicariously liable although an officer is protected by qualified immunity. 24 F.4th at 111. While Triolo ’s holding may be interesting, it is irrelevant: plaintiffs could have included a respondeat superior claim against the County along with their state law tort claims at the time the complaint was filed since whether the officers were protected by qualified immunity was still to be determined. As there has been no change in law on whether a municipality can be held liable under respondeat superior for the intentional torts of an officer unprotected by qualified immunity, plaintiff has failed to show good cause. See Perfect Pearl Co. , 889 F. Supp. 2d at 457–59. Compare Elsevier , 2017 WL 1843298, at *9 (granting leave to amend complaint following change in RICO law regarding domestic injury). For these reasons, the motion to amend the complaint to include state law claims for battery and respondeat superior is denied.
Even supposing plaintiffs believed the respondeat superior claim was futile because they knew the officers would be protected by qualified immunity (which had not been established until this determination), the very case plaintiffs rely on for that proposition cites contrary authority which holds that "while the individual police officers are entitled to immunity, the Defendant City of New York is not immune from such state law claims, and may still be liable for the police officers’ actions pursuant to doctrine of respondeat superior. " See Johnson v. City of New York , No. 05-CV-7519 (PKC), 2011 WL 2693234, at *4 (S.D.N.Y. June 30, 2011) (quoting Verponi v. City of New York , 2011 WL 1991719, *12 (N.Y. Sup. Ct. May 19, 2011) ). Thus, it was not "settled law" that an officer's entitlement to qualified immunity precluded municipal liability.
Even assuming plaintiffs could establish good cause, this Court would still deny the motion to amend the complaint because of the undue prejudice of prolonging this litigation for defendants who have already endured a decade of litigation, including trial and an appeal, and completed discovery long ago. See Kassner , 496 F.3d at 244 (district court has discretion to consider factors other than diligence, including prejudice to defendants). Finally, the motion to amend is futile because this Court would decline to exercise supplemental jurisdiction over the state law claims since all the federal claims over which it had original jurisdiction have been dismissed. 28 U.S.C. § 1367(c)(3) ; Valencia ex rel. Franco v. Lee , 316 F.3d 299, 305 (2d Cir. 2003) ("[I]n the usual case in which all federal-law claims are eliminated before trial, the balance of factors to be considered under the pendent jurisdiction doctrine—judicial economy, convenience, fairness, and comity—will point toward declining to exercise jurisdiction over the remaining state-law claims.") (quoting Carnegie-Mellon Univ. v. Cohill , 484 U.S. 343, 350 n.7, 108 S.Ct. 614, 98 L.Ed.2d 720 (1988) ); see also Rodriguez v. City of New York , 535 F. Supp. 2d 436, 444 (S.D.N.Y. 2008) (declining to exercise supplemental jurisdiction over remaining state law claim where plaintiff's Section 1983 claim was dismissed).
It is time to bring this very sad tale – a tragedy for all involved – to a conclusion.
CONCLUSION
For the foregoing reasons, defendants’ motion for summary judgment is granted and plaintiffs’ motion to amend the complaint is denied. As such, the pending motions in limine are denied.