DAVID KEITH v. OFFICER COLIN MAHAR, OFFICER DANIEL MEDLOCK, OFFICER JASON LADD, OFFICER DANIEL FAHEY, OFFICER KIMBERLY DISHAW, аnd SEGREANT JONATHAN TUCKER
5:24-cv-1391 (BKS/MJK)
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK
April 14, 2025
Hon. Brenda K. Sannes, Chief United States District Judge
Document 10 Filed 04/14/25 Page 1 of 10
Plaintiff, pro se:
David Keith
Syracuse, NY 13207
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
Plaintiff David Keith commenced this action pro se in the Northern District of New York asserting claims under
II. BACKGROUND1
In the amended complaint, Plaintiff alleges that on November 17, 2021 at 9:53 a.m., at 2200 Onondaga Creek Boulevard, he was “peacefully protesting what [he] believed to be the mishandling of [his] daughter being bullied” at school. (Dkt. No. 6, at 3). Officer Mahar arrived to the scene, and asked Plaintiff to speak with him. (Id.). Plaintiff asked if he was breaking any laws, and Officer Mahar responded “Well you may have that‘s why I‘m trying to talk to you.” (Id.). The two had a brief exchange where Officer Mahar informed Plaintiff that there were allegations he had made serious threats. (Id. at 3–4). Officer Mahar allegedly told his partner, Officer Ladd, that Plaintiff was being “a porkchop,” or “someone who walks into a school, says he‘s going to shoot it up, then stаnds outside and acts like this.” (Id. at 4). Plaintiff denied making any threats. (Id.). Officers Mahar and Ladd put Plaintiff in handcuffs and frisked him. (Id.).
Several minutes later, Officers Medlock, Fahey, and Dishaw arrived and Officer Mahar informed them that Plaintiff was sitting in the back of Officer Mahar‘s cruiser because he was “super uncooperative.” (Id.). At 10:00 a.m., Officers Medlock, Fahey, and Dishaw went inside the school, and confirmed that the school principal had called the police. (Id.). A different staff member informed the Officers that they did not hear Plaintiff make any threats. (Id.). At 10:27
While he was detained, Plaintiff had trouble breathing. (Id.). Plaintiff had previously informed the officers that he had “heart problems.” (Id. at 6). Officer Mahar called an ambulance, and Plaintiff was seen by paramedics but not taken to a hospital. (Id. at 4). The paramedics noted that his blood pressure was high (Id. at 6). After they finished, the paramedics told Officers Mahar and Ladd that they would be standing off to the side “[j]ust in case.” (Id. at 4). Plaintiff subsequently had trouble breathing again, and all of the officers “refused to alert the paramedics,” with Officer Mahar explaining that the paramedics had just checked him and he was fine. (Id. at 4–5). Plaintiff then complained that his handcuffs were tight. (Id. at 5). Officer Mahar adjusted them, pulling on the chain and causing more pain. (Id.). Plaintiff alleges that he experiences pain in his right shoulder and numbness in his right hand and wrist as a result of the handcuffs. (Id. at 8).
Plaintiff was kept in handcuffs while the Officers and Sergeant Tucker investigated whеther Plaintiff‘s daughter had been seen by a mental health professional. (Id. at 5). The officers all discussed the fact that Plaintiff had not committed any crime, and Officer Medlock suggested he be held until his daughter was found. (Id.). After an hour and ten minutes, Plaintiff was released from handcuffs and went home. (Id.). He found Officers Medlock and Fahey standing outside his home with his daughter. (Id.). He subsequently learned that the Officers entered his home while he was detained, and removed his daughter from the home without his permission. (Id.). Plaintiff alleges they transported her to a comprehensive psychiatric emergency program without his permission, and that his daughter asked to be let out of the car or taken home several times and was denied. (Id.).
After the November 17, 2021 incident, Plaintiff submitted a formal complaint to the City of Syracuse. (Id. at 9). Plaintiff has approached and/or notified the City of Syracuse Chief of Police, Syracuse Citizen Review Board, Syracuse Common Council and the Mayor of Syracuse. (Id.). Plaintiff alleges that there has not been “any communication regarding processes, procedures, [or] updates from these entities that addressed this issue in a way that was acceptable regarding the violations.” (Id.). The official response has been that Plaintiff‘s complaints are unfounded. (Id.). The Mayor verbally told Plaintiff, “I‘ve tried to help. I‘m sorry I can‘t do more. God bless you.” (Id.).
In the amended complaint, Plaintiff asserts claims for (1) unlawful detention, (2) unlawful arrest, (3) deliberate indifference, (4) due process, (5) First Amendment retaliation, (6) failure to intervene, (7), excessive use of forсe, (8) failure to supervise, (9) unlawful entry, (10) failure to supervise or discipline against the City of Syracuse, (11) unlawful detainment, and (12) due process. (Id. at 6–9). In his Report-Recommendation, Magistrate Judge Katz recommended that Plaintiff‘s claim for deliberate indifference against Officers Medlock, Ladd, Mahar, Fahey and Sergeant Tucker and claim for failure to supervise or discipline against the City of Syracuse be dismissed without prejudice and with leave to amend, that Plaintiff‘s fifth claim for First
III. STANDARD OF REVIEW
Under
IV. DISCUSSION
A. Claims on Behalf of D.K.
Plaintiff‘s initial complaint identified himself and his minor child, D.K. as Plaintiffs. (Dkt. No. 1, at 1). The initial complaint asserted an unlawful detainment claim and an unreasonable search, seizure and interceptions claim on D.K.‘s behalf. (Id. at 8, 10). In the first Report-Recommendation, Magistrate Judge Katz recommended that these claims be dismissed because a non-attorney plaintiff may not appear pro se on behalf of his minor daughter. (Dkt. No. 5, at 25–26 (citing cases)); see also Berrios v. N.Y. City Hous. Auth., 564 F.3d 130, 132–33
B. First Amendment Retaliation
Magistrate Judge Katz recommended dismissing Plaintiff‘s fifth claim against Officer Mahar for retaliation with prejudice and without leave to amend because (1) the claim is untimely and (2) Plaintiff failed to allege any causal connection between the proteсted speech and the adverse action. (Dkt. No. 8, at 13–16). Magistrate Judge Katz concluded that the claim was untimely because the “underlying events giving rise to plaintiff‘s First Amendment retaliation claim occurred on October 9, 2021, more than three years prior to the filing [sic] this action.” (Id. at 13). Although Plaintiff doеs allege that the protected speech at issue occurred on October 9, 2021, he alleges that the adverse action occurred on November 17, 2021. (Dkt. No. 6, at 7). Accordingly, the claim did not accrue until November 17, 2021 and was timely brought within the three-year statute of limitations when the initial complaint was filed on November 15, 2024. See Smith v. Campbell, 782 F.3d 93, 101 (2d Cir. 2015) (holding that a First Amendment retaliation claim “accrues when all of the elements necessary to state the claim are present“). Magistrate Judge Katz concluded that the there was no causal connection because “the allеged retaliatory act by Officer Mahar occurred thirty-seven months after the October 9, 2021 incident.” (Dkt. No. 8, at 15–16). However, in reality, the alleged retaliatory act occurred thirty-nine days after Plaintiff‘s speech, which is sufficient at this stage to “support an inference of a
C. Failure to Supervise
Plaintiff alleges that Sergeant Tucker “was aware and allowed” Officers Fahey and Medlock to go to his home and interview his “minor child without [his] knowledge and/or permission knowing [he] was in police custody at the time.” (Dkt. No. 6, at 8). Plaintiff further alleges that Sergeant Tuсker “allowed Officer Mahar to detain” Plaintiff, even though “he knew [Plaintiff] wasn‘t suspected or accused of any crime.” (Id.). Magistrate Judge Katz recommended that the claim survive sua sponte review and that a response be required because the amended complaint “plausibly allege[d] a claim against Sergeant Tucker for failure to supervise” and that “Sergeant Tucker was personally involved with plaintiff‘s detention and was aware that plaintiff had not committed a crime.” (Dkt. No. 8, at 22). However, the Court finds this to be clear error because these conclusоry allegations fail to plausibly allege Sergeant Tucker‘s personal involvement. See Tangreti v. Bachmann, 983 F.3d 609, 619 (2d Cir. 2020) (holding that a plaintiff must “establish that [the defendant] violated the [Constitution] by [the defendant‘s] own conduct, not by reason of [the defendant‘s] supervision of others who committed the violation“). Here, therе are no allegations that Sergeant Tucker‘s own conduct formed the basis for any Constitutional violations; rather the theory of liability is solely rooted in Sergeant Tucker‘s supervision of Officers Fahey, Medlock, and Mahar. Accordingly, the Court finds that it was
D. Fourteenth Amendment Due Process
Plaintiff alleges a Fourteenth Amendment due process violation against Officer Mahar for the “defacto arrest” and against Officers Medlock and Mahar for holding him in custody. (Dkt. No. 6, at 7, 9). In the Report-Recommendation, Magistrate Judge Katz found that the amended complaint “plausibly allege[d] that plaintiff‘s constitutional due process rights were violated when he remained handcuffed after all the officers on scene, including Officers Mahar and Medlock, were aware that plaintiff had not committed a crime.” (Dkt. No. 8, at 12). However, “where a specific constitutional provision prohibits government action, plaintiffs seeking redress for that prohibited conduct in a § 1983 suit cannot make reference to the broad notion of substantive due process.” Velez v. Levy, 401 F.3d 75, 94 (2d Cir. 2005); see also Montague v. City of Rochester, No. 20-cv-715, 2021 WL 2044184, at *3, 2021 U.S. Dist. LEXIS 99210, at *8 (W.D.N.Y. Mаy 4, 2021) (dismissing due process claims on
V. LEAVE TO AMEND
After the second Report-Recommendation was filed, Plaintiff filed a Second Amended Complaint. (Dkt. No. 9). The Sеcond Amended Complaint was filed in violation of
The Court has reviewed the remainder of the Report-Recommendation for clear error and found none. The remainder of the Report-Recommеndation is therefore adopted.
VI. CONCLUSION
For these reasons, it is
ORDERED that the Report-Recommendation (Dkt. No. 8) is ADOPTED in part and DENIED in part; and it is further
ORDERED that Plaintiff‘s third claim for deliberate indifference against Officers Medlock, Ladd, Mahar, Fahey and Sergeant Tucker is DISMISSED WITHOUT PREJUDICE and with leave to amend; and it is further
ORDERED that Plaintiff‘s eighth claim for failure to supervise against Sergeant Tucker is DISMISSED WITHOUT PREJUDICE and with leave to amend; and it is further
ORDERED that Plaintiff‘s tenth claim for failure to supervise or discipline against the City of Syracuse is DISMISSED WITHOUT PREJUDICE and with leave to amend; and it is further
ORDERED that Plaintiff‘s fourth and twelfth claims for due process violations against Officers Mahar and Medlock are DISMISSED WITH PREJUDICE and without leave to amend; and it is further
ORDERED that any amended complaint addressing the deficiencies with respect to the third, eighth, and tenth claims must be filed within thirty days of the date of this Order, and any amended complaint must be a complete and separate pleading; and it is further
ORDERED that Plaintiff‘s Second Amended Complaint (Dkt. No. 9), is STRICKEN as improperly filed; and it is further
ORDERED that the Clerk serve a copy of this Order on the Plaintiff in accordance with the Local Rules.
IT IS SO ORDERED.
Dated: April 14, 2025
Syracuse, New York
Brenda K. Sannes
Chief U.S. District Judge