DECISION & ORDER
PRELIMINARY STATEMENT
James Piper, Joseph Piper, Carol Piper and Donald Piper (collectively, “plaintiffs”) have initiated this action against the City of Elmira (the “City”), its police department and the following individual police officers: Scott Drake, III (“Drake”), Michael Marrone (“Marrone”), Paul Mustico (“Mustico”), John Perrigo (“Perrigo”), Benjamin Buck (“Buck”), Michael Suey (“Suey”), Kristen Thorne (“Thome”), Alfred Chandanais (“Chandanais”), Anthony Alvernaz
Pursuant to 28 U.S.C. § 636(c), the parties have consented to have a United States magistrate judge conduct all further proceedings in this case, including the entry of final judgment. (Docket # 8). Currently before the Court is defendants’ motion for summary judgment. (Docket # 62). For the reasons discussed below, defendants’ motion is granted in part and denied in part.
Defendants’ Motion for Summary Judgment
Defendants seek summary judgment dismissing the complaint in its entirety. First, defendants contend that Joseph Piper’s false arrest claim asserted in the seventh cause of action is barred by his conviction for resisting arrest. (Docket # 63-27 at 2-3). Defendants further argue that the claim is time-barred in any event, as are plaintiffs’ other state law intentional tort claims asserted in the first and fifth causes of action. {Id. at 3-4). In addition, defendants maintain that they are entitled to judgment on the negligent supervision and training claims against the City, the Elmira Police Department and Drake asserted in the fourth cause of action because plaintiffs have failed to establish the existence of any municipal policy or practice. (Id. at 9-10).
Defendants also contend that they are entitled to qualified immunity on plaintiffs’ excessive use of force claims asserted in the second and sixth causes of action on the grounds that the force used by the officers was reasonable under the circumstances. (Id. at 4-7). Finally, defendants urge dismissal of the failure to intervene claim alleged in the third cause of action, contending that plaintiffs are unable to raise a triable issue of fact that any individual defendant had actual knowledge that excessive force was used by any of the other officers that evening. (Id. at 8).
Plaintiffs maintain that genuine issues of material fact preclude summary judgment. (Docket # 65). With respect to the second and sixth causes of action, plaintiffs argue that factual disputes exist regarding the circumstances confronting the officers and that those disputes prevent a finding that the officers’ conduct was reasonable under the circumstances. (Id. at 4). Further, plaintiffs contend that the force used by the officers was excessive and unreasonable and that they suffered resulting emotional distress. (Id. at 5). For the same reasons, plaintiffs assert that the third cause of action for failure to intervene should not be dismissed. (Id. at 6-7).
A. Factual Background
The following facts are undisputed except where otherwise noted.
At some point during the evening, various of the partygoers were involved in an altercation with individuals attending an event at a house across the street. (Docket ##62-1 at ¶ 5; 65-11 at ¶¶ 5-8). Plaintiffs contend that the altercation was a “verbal, nonviolent argument” involving approximately ten people from the party at 317 East Miller Street. (Docket # 65-II at ¶¶ 5-6). According to plaintiffs, Joseph Piper was helpful in defusing the argument, and the incident concluded before the police officers arrived. (Id. at ¶¶ 7-8, 10). Plaintiffs allege that the police arrived without lights or sirens activated and, at the time of their arrival, no dispute was occurring inside or outside of 317 East Miller Street. (Id. at ¶¶ 9-11).
According to defendants, the altercation in the street was a “heated confrontation” involving approximately twenty to thirty individuals. (Docket # 62-1 at ¶ 5). Defendants contend that witnesses described the scene as “chaotic” and “frenzied” and identified Joseph Piper as an “instigating figure” in the altercation. (Id. at ¶¶ 15-18). When the officers arrived on the scene, many of the individuals who had been outside went inside 317 East Miller Street. (Id. at ¶ 6).
All parties agree that some of the officers entered 317 East Miller Street through the side door with the consent of the owner. (Id. at ¶¶ 7, 31; Docket # 65-11 at ¶¶ 12-13). Plaintiffs characterize the occupants of 317 East Miller Street as calm.
1. Joseph Piper
The parties agree that Joseph Piper (“Joseph”) encountered several officers on the staircase between the kitchen and the basement of the residence. (Docket ##62-1 ¶ 10; 65-11 at ¶23). The staircase had a landing halfway between the basement and the kitchen that was connected to a door that opened to the driveway located on the side of the house. (Id.). The parties disagree about what happened on the staircase.
According to defendants, Officers Mar-rone and Alvernaz were on or near the landing discussing whether they should break up the party by instructing the attendees to leave. (Docket # 62-1 at
Defendants allege that Alvernaz turned around, grabbed Joseph’s arm and attempted to take him to the ground in order to arrest him. (Docket # 62-1 at ¶ 45 and Def. Ex. H at 18, 74-75, 107-09). Alvernaz was successful in forcing Joseph into a face-down position on the staircase but, despite assistance from Marrone, was unable to place him in handcuffs. (Id.). According to defendants, Joseph was struggling by “throwing] his elbows,” “flailing” his arm, “violently” thrashing his body and tensing his muscles. (Id.). At that point, Officer Perrigo, who had been in the kitchen, came down the stairs to assist Marrone and Alvernaz. (Docket # 62-1 at ¶¶ 11, 48 and Def. Ex. H at 18-21). Perrigo deployed his taser three times to “drive stun” Joseph into submission. (Id.). At that point, Joseph was handcuffed and escorted by Marrone out the side door of the residence and into a police vehicle. (Docket # 62-1 at ¶¶ 48, 58).
Plaintiffs allege that Joseph approached the landing in order to open the door for an individual named Katrina Cramner. (Docket # 65-11 at ¶¶ 23-25 and Def. Ex. K at 47-48, 60-61). Joseph contends that it was Marrone, not Alvernaz, who refused to let Cramner enter the premises. (Id.). Plaintiffs deny that Joseph struck Marrone with the door. (Docket # 65-11 at ¶ 17). According to them, as Marrone attempted to shut the door, Joseph stepped back to allow Marrone to close the door. (Id. at ¶ 25). As Joseph stepped back, Alvernaz grabbed him and forced him to the stairs. (Docket # 65-11 at ¶¶ 26-31 and Def. Ex. K at 47-48, 60-61). Plaintiffs maintain that Joseph did not resist arrest and attempted to comply with the officers’ instructions to place his hands behind his back, but was unable to do so because his hands were pinned underneath his body. (Id.). According to plaintiffs, when Perri-go deployed the taser, Joseph was already pinned to the stairs, with both legs and one of his hands secured by the officers. (Docket # 65-11 at ¶¶ 32-35 and Plaintiffs Exhibit (“PI. Ex.”) F at 91, 95-96).
Plaintiffs contend that as Marrone escorted Joseph from the residence, Mar-rone’s faster pace caused Joseph to slip and fall on the pavement and he dragged Joseph the rest of the way to the police vehicle. (Docket # 65-11 at ¶¶ 35-38 and Def. Ex. K at 66). Defendants do not dispute that Joseph fell — either because he slipped on the ice or continued to struggle — and was dragged to the police car. (Docket # 62-1 at ¶¶ 53-54).
Joseph maintains that he sustained physical injuries, including bumps and bruises on his chest and back and a sprained ankle, as a result of the incident. (Docket # 65-11 at ¶¶ 42^43). In addition, Joseph alleges that he suffered emotional distress that adversely affected his relationship with his parents. (Id. at ¶ 41).
Joseph Piper was convicted of resisting arrest. (Docket # 62-1 at ¶ 46 and Def. Ex. PP).
Defendants’ Statement of Material Facts contains the following factual assertions with respect to Donald Piper (“Donald”). Donald was in the basement of 317 East Miller Street when the officers arrived at the residence. (Docket # 62-1 at ¶ 30). He and other partygoers were instructed not to leave until the officers checked their identifications and completed their inquiry. (Id. at ¶ 31). Despite alleging in the complaint that he was pushed down the basement stairs and fell on his back, Donald testified that he was pushed backwards by an officer after asking a second time if he could leave, but was caught by another officer. (Id. at ¶ 32 and Def. Exs. E at 9, M at 17-29). Donald walked down the remaining steps into the basement where he was instructed by an unidentified officer to place his hands on a sink and to spread his legs. (Docket # 62-1 at ¶ 34 and Def. Ex. M at 25-28). The officer stated that Donald’s legs were not far enough apart and kicked his legs farther apart. (Id.). The officer then searched Donald by “pulling on [his] pants and shaking them.” (Id.). Donald testified that he was not physically injured in any way as a result of the incident and he did not receive treatment for any alleged emotional distress. (Id.; Docket #62-1 at ¶ 36).
Defendants’ Statement of Material Facts also asserts that the record does not indicate “which individual police officer or police officers committed the alleged torts against Donald Piper.” (Docket # 62-1 at ¶ 37). Plaintiffs’ Counter-Statement of Material Facts does not respond to or controvert that assertion; in fact, it contains no facts at all specifically relating to Donald. (See Docket # 65-11).
3. James and Carol Piper
Carol Piper (“Carol”) and James Piper (“James”) were awakened by Cramner, who entered their home to inform them that Joseph Piper was involved in an altercation with the police officers. (Docket # 65-11 at ¶ 44 and Def. Exs. B at 21-23, L at 37-38). Carol and James left then-home and approached the side door of 317 East Miller Street. (Id.). According to plaintiffs, as Carol approached the door, an officer exiting the door screamed at her and pushed her. (Docket # 65-11 at ¶¶ 45-46 and Def. Ex. L at 44). The push did not cause Carol to fall, although it did cause her to lose her balance and to stumble several steps. (Docket # 65-11 at ¶ 46 and Def. Ex. L at 50). Within “seconds,” officers exited the residence with Joseph in handcuffs. (Docket #65-11 at ¶¶ 46-47 and Def. Ex. L at 44-45).
According to plaintiffs, as Marrone and Perrigo were escorting Joseph, James asked them at least twice what Joseph had done to warrant his arrest and asked them to explain what “is going on here.” (Docket # 65-11 at ¶¶ 47-48 and Def. Ex. J at 60-65). James claims that the officers, using expletives, instructed him to be quiet and to back away from them. (Id.). James claims that he stepped back, turned and saw Joseph on the ground, being dragged in the snow. (Id.). According to James, he said, “My God, you are dragging him in the snow,” at which point somebody grabbed both of his arms. (Id.). He then felt four sensations on his chest, which he described as “hot electrical pinches.” (Def. Exs. B at 30, J at 64-65). Carol testified that she observed a blue light hit James in his shoulder area. (Docket # 65-11 at ¶ 48 and Def. Ex. L at 56-59). At that time, Carol ran back to her own residence. (Id.).
Defendants offer a different version, contending that there was no contact between James and the taser. (Docket # 62-1 at ¶¶ 69-72). According to defendants, James was “agitated” by his son’s
The parties dispute the course of events after Joseph Piper was arrested. According to defendants, after Joseph’s arrest, several of the partygoers congregated on the porch of plaintiffs’ residence at 319 East Miller Street. (Docket #62-1 at ¶¶ 13-14, 59-60). According to defendants, the individuals on the porch were “unruly,” “scream[ed] obscenities” and refused to comply with the officers’ instructions to go inside the residence or to calm down. (Id.). Defendants contend that several officers ascended the porch to arrest the individuals who continued to create a public disturbance. (Id. at ¶¶ 60-63). According to defendants, as the officers pushed through the crowd on the porch, Carol was pushed by an officer. (Id.). Three people on the porch were arrested. (Id.).
By contrast, plaintiffs contend that the officers forced the party attendees onto the porch by “screaming profanities” and “physically pushing people.” (Docket # 65-11 at ¶ 50). Plaintiffs deny that anyone swore at or interfered with the officers. (Id. at ¶ 5 1). According to plaintiffs, the officers then attempted to force the individuals inside plaintiffs’ residence. (Id. at ¶ 52). At the time, Carol was standing in the doorway between the porch and her residence, and she observed Perri-go on the porch. (Id. at ¶ 53 and Def. Ex. L at 66-69).
Carol alleges that she told the officer that she did not want anyone entering her residence. (Id.). According to Carol, Per-rigo responded by “grabb[ing] [her] by both [her] shoulders and throwing] [her] to the ground.” (Id.). Carol testified that she began to fall and was caught by another individual, although her bottom touched the floor of the porch. (Id.).
James contends that he returned to his porch and observed Perrigo pushing Carol. (Docket # 65-11 at ¶ 54 and Def. Ex. J at 22-32). According to James, he moved to stand between Perrigo and Carol and asked the officer, “What the hell are you doing to my wife?” (IcL). At that point, James was forcefully pushed against the porch wall by another officer. (Docket # 65-11 at ¶ 54 and Def. Exs. B at 45-47, J at 22-32). According to James, the officer held him against the wall by applying force to his throat with either an object or the officer’s forearm. (Id.).
Neither Carol nor James contend that they suffered any physical injuries as a result of the incident, although both allege they suffered emotional injuries. (Docket # 65-11 at ¶¶ 55-58 and Def. Exs. J at 46, L at 107-08).
B. Discussion
Summary judgment is appropriate “if the movant shows 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). In reaching this determination, the court must assess whether there are any disputed material facts and, in so doing, must resolve all ambiguities and draw all reasonable inferences against the moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49,
The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact, after which the non-moving party must come forward with sufficient evidence to support a jury verdict in its favor; the motion will not be defeated based upon conjecture, surmise or the existence of “metaphysical doubt” concerning the facts. Bryant v. Maffucci,
As the Second Circuit has explained:
[T]he trial court’s task at the summary judgment motion stage of the litigation is carefully limited to discerning whether there are any genuine issues of material fact to be tried, not to deciding them. Its duty, in short, is confined at this point to issue-finding; it does not extend to issue-resolution.... [I]t must be kept in mind that only by reference to the substantive law can it be determined whether a disputed fact is material to the resolution of the dispute.
Gallo v. Prudential Residential Serv., Ltd. P’ship, 22 F.3d 1219, 1224 (2d Cir.1994).
1. State Law Claims
Plaintiffs’ opposing papers do not address defendants’ argument that they are entitled to judgment on the claims asserted in the first, fourth, fifth and seventh causes of action. (Docket ## 62, 65). During oral argument on the motion, plaintiffs’ counsel conceded that judgment in favor of defendants was warranted on these claims. I agree. Accordingly, judgment shall be entered in favor of defendants dismissing the first, fourth, fifth and seventh causes of action.
2. Levine’s Expert Report
Defendants have submitted the report of their expert, Michael Levine (“Levine”), in support of the pending motion. (Docket # 63-17). Levine opines generally that the officers’ conduct during their interactions with plaintiffs was objectively reasonable under the circumstances faced by the officers. (Id. at 12-15, ¶¶ 2, 5, 6, 11). His opinions, however, rest upon defendants’ version of the events. For example, Levine opines that the use of a taser was appropriate given the “volatile and potentially deadly arrest situation” faced by the officers. (Id. at 13, ¶ 2). He further opines that the officers faced “extreme provocation” and that the techniques they used were reasonable given the “volatile situation,” which posed a “risk of injury to the officers and civilians involved.” (Id. at 13, ¶¶ 5-6). As described in detail above, plaintiffs maintain that by the time the officers arrived, the situation had defused and that the individuals inside and outside of 317 East Miller Street were calm. Because the opinions offered by Levine are premised upon disputed facts, they will not
3. Excessive Force Claims
To establish a claim under Section 1983, a plaintiff must demonstrate that the challenged conduct (1) was “committed by a person acting under color of state law”; and (2) “deprived [the plaintiff] of rights, privileges or immunities secured by the Constitution or laws of the United States.” Pitchell v. Callan,
The second and sixth causes of action assert that defendants subjected plaintiffs to excessive force during the early morning hours of January 1, 2009. Defendants argue that they are entitled to summary judgment dismissing these claims on the grounds that the amount of force used was reasonable under the circumstances.
Claims arising from the use of force during an arrest are judged by the “objective reasonableness” standard of the Fourth Amendment. Graham v. Connor,
Where the claim arises outside the context of an arrest or a seizure by law enforcement officials, allegations of excessive force are analyzed under the Due Process Clause of the Fourteenth Amendment. See Hemphill v. Schott,
(1) the need for the application of force,
(2) the relationship between the need and the amount of force that was used,
(3) the extent of the injury inflicted, and
(4) whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm.
Courts have long recognized that a police officer’s right to make an arrest or investigatory stop “necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it.” Graham v. Connor,
Evaluation of the 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. at 396,
For a claim of excessive force to be actionable, a plaintiff must demonstrate that it was “objectively sufficiently serious or harmful.” United States v. Walsh,
At the same time, “[u]nder the law, police are not permitted to use any degree of force in all instances — in some circumstances, no use of force is reasonable because none is required.” Weather v. City of Mount Vernon,
Further, although the “absence of any injury, however slight or fleeting” is an indication that the force used was de minimis, Jennejahn v. Vill. of Avon,
a. Joseph and James Piper
Joseph Piper’s allegations regarding the amount of force used by Mar-rone, Alvernaz and Perrigo during his arrest are sufficient to create genuine issues of material fact as to the objective reasonableness of the force used. According to Joseph, in attempting to arrest him, the officers forcefully pushed his body into the stairs and deployed a taser to stun him three times. According to plaintiffs, Joseph’s hands were pinned underneath his body, preventing him from placing his hands behind his back.
I reach the same conclusion with respect to James Piper’s allegations that he was improperly tased. According to James, he asked the officers why his son was being arrested and complied with their instructions to step back. James contends that despite his compliant behavior, he was tased in the driveway. Defendants contend that although Mustico aimed his red laser at James and Perrigo conducted a “spark test” in James’s general direction, no contact actually occurred between the taser and James. I conclude that James’s assertion that he felt four “hot electrical pinches” on his chest raises a sufficient factual dispute to warrant denial of summary judgment. See Greenfield v. Tomaine,
The existence of factual disputes precluding summary resolution of Joseph’s and James’s excessive force claims also precludes a finding that the officers are entitled to qualified immunity on those
A different conclusion is compelled with respect to James’s allegations that an unidentified officer used excessive force in pinning him against his residence by applying force to his neck. Despite being afforded substantial time to conduct discovery, James has not identified the officer who allegedly committed this act. Defendants are thus entitled to summary judgment dismissing this portion of James’s excessive force and failure to intervene claims. See Sheikh v. Morales,
Accordingly, defendants’ motion for summary judgment dismissing the excessive force claims asserted by Joseph and James in the second and sixth causes of action is denied except as to that portion of James’s claim that seeks to impose liability for the alleged use of force against him on the porch.
b. Donald Piper
As an initial matter, I conclude that Donald Piper’s excessive force claim is appropriately analyzed under the Fourth Amendment considering the allegation that Donald was told that he could not leave the residence. See Barlow v. Male Geneva Police Officer who Arrested me on January 2005,
In any event, even if Donald could identify the officer who committed the challenged acts, he has not adduced evidence from which a trier of fact could conclude that the conduct was objectively sufficiently serious to rise to the level of a constitutional violation. See Graham,
Viewed in the light most favorable to Donald, I conclude the challenged conduct, coupled with the absence of any resulting injuries, are of the type that courts have repeatedly found insufficient to withstand summary judgment. See, e.g., Nolin v. Isbell,
c. Carol Piper
By contrast to Donald’s claim, Carol Piper’s claim should be analyzed under the Fourteenth Amendment because she was not arrested or seized. See Harrell,
Carol’s claims of excessive force concern two shoves: the first by an unidentified officer as Joseph was being removed from 317 East Miller Street; the second by Perrigo when Carol was on her porch at 319 East Miller Street. Defendants are entitled to judgment as to the first because Carol has not identified the defendant who allegedly shoved her. Moreover, even if she could, the claim is not constitutionally cognizable under either the Fourteenth Amendment (or the Fourth Amendment). The undisputed facts demonstrate that she was pushed out of the way seconds before Joseph was removed from the house. Plaintiffs have pointed to no facts to show that this push, which caused Carol to stumble but not fall, was an objectively unreasonable use of force in connection with effectuating Joseph’s arrest or was so egregious as to shock the conscience. Tierney,
Whether Carol’s allegations concerning Perrigo’s shove state a constitutionally cognizable claim is a much closer question. Ultimately, I cannot conclude— as I must to grant defendants’ motion— that no reasonable trier of fact could find for Carol if her version of events were credited. Defendants maintain that Carol was shoved as officers were moving through an unruly and angry crowd gathered on her porch in order to arrest three people. I agree with defendants that summary judgment would likely be warranted if those facts were undisputed. They are not, however. Plaintiffs contends that the crowd was not unruly, that it was the police who forced individuals onto Carol’s porch and, most importantly, that Perrigo shoved her when she verbally objected to his attempt to force the partygoers inside her house. Specifically, she testified as follows:
Q. (Pause) Take me through, if you would, the circumstances surrounding how it is that you say Officer Perrigo threw you on the porch.
A. Okay. When I say I was on my porch, I was in the doorway of my front porch. And I heard some like stomping. And I opened the door. And there was Officer Perrigo, and I believe two other Officers. And I was in front of my door. I put my hands up and said, “No, you can’t. You can’t come in here. You can’t bring these kids.”. (Indicating) And he grabbed me by both my shoulders and threw me to the floor.
Q. You fell to the floor?
A. My bottom touched the floor. Kristen Savino actually caught me.
Q. How did Kristen catch you?
A. She was standing next to me. And Officer Perrigo grabbed me, and threw me, and I fell. And she caught me by my underarms (indicating).
(Def. Ex. L at 66-67). Judged under the four-part test applicable to Fourteenth Amendment claims, I cannot find that Carol’s claim fails as a matter of law. While no dispute exists that she suffered no physical injury, a jury could conceivably find that no force was appropriate in these circumstances and that Perrigo’s two-handed attempt to throw her to the floor was, at the very least, gratuitous and unrelated to any legitimate law enforcement purpose. The issue is not of course how likely or remote such a determination may be; it is simply whether I can conclude that no reasonable jury could reach a conclusion that the Fourteenth Amendment was violated. See Harwe v. Floyd,
Although I conclude Carol’s excessive force claim stemming from the events taking place on her porch survives summary judgment, I reach a different conclusion with respect to her failure to intervene claim. According to plaintiffs, two other officers were on the porch with Perrigo, although, as counsel for plaintiff conceded
Accordingly, defendants’ summary judgment motion as to Carol’s excessive force claims is granted with respect to her allegation that she was shoved at 317 East Miller Street, as well as her failure to intervene claim, and denied with respect to her excessive force claim against Perrigo based on his alleged conduct at 319 East Miller Street.
4. Claims Against Drake, Buck, Suhey, Thome, Chandanais, and Solt
Defendants contend that Drake, Buck, Suhey, Thorne, Chandanais and Solt are entitled to summary judgment because plaintiffs have failed to allege that any of these defendants either directly participated in the wrongful conduct or were in a position to observe and prevent any alleged excessive force by any other officers. (Docket ## 62-1 at ¶ 79; 63-27 at 8). As noted by defendants, at best plaintiffs have shown that the names of these officers were included on police reports relating to these events. (Docket # 62-1 at ¶ 79). Plaintiffs have not, however, adduced any evidence of the involvement or actions of these individual defendants. Plaintiffs contend that their presence at the scene that evening is sufficient to defeat summary judgment. (Docket # 65 at 6-7). Plaintiffs’ position is contrary to applicable caselaw.
In order to hold an officer liable for excessive force, a plaintiff must adduce sufficient evidence to raise an issue of fact as to whether the officer was personally involved in the use of the claimed excessive force. Moffitt v. Town of Brookfield,
Plaintiffs have not come forward with any evidence to raise a triable issue of fact that any of these individual officers participated in the acts of alleged excessive force or that they were in a position to intervene, yet failed to do so. Indeed, plaintiffs’ Statement of Material Facts is devoid of any specific allegations with respect to any of these individual defendants. The incidents of alleged excessive force that have survived summary judgment occurred in different locations — inside 317 East Miller Street, in the driveway on the side of that residence and on the porch of 319 East Miller Street. There is no evidence in the record before the Court as to the location of any of these officers at the scene, much less evidence that these officers were in a position from which they could have intervened during the challenged uses of force. Accordingly, I con-
5. Failure to Intervene Claims Against Perrigo, Mustico, Alvernaz and Marrone
Finally, I turn to defendants’ contention that they are entitled to summary judgment dismissing plaintiffs’ remaining failure to intervene claims against Perrigo, Mustico, Alvernaz and Marrone on the grounds that plaintiffs have failed to raise a triable issue of fact that these officers were present during the alleged incidents of excessive force and failed to intervene.
CONCLUSION
For the foregoing reasons, defendants’ motion for summary judgment (Docket # 62) is GRANTED in part and DENIED in part. The Clerk of the Court is directed to enter judgment in favor of the City of Elmira, the Elmira Police Department, Drake, Buck, Suhey, Thorne, Chandanais and Solt. Defendants are entitled to summary judgment dismissing the claims asserted by Donald Piper, and the Clerk of the Court is direct to terminate Donald Piper as a plaintiff in this action. Defendants are entitled to summary judgment as to those portions of Carol’s claim concerning an alleged shove at 317 East Miller Street and the failure to intervene claims asserted by Carol. Defendants are entitled to summary judgment as to those portions of James’s excessive force and failure to intervene claims involving actions on the porch of 319 East Miller Street. Defendants are entitled to judgment dismissing the claims asserted by James, Joseph and Carol Piper asserted in the first, fourth, fifth, and seventh causes of action.
A trial date status conference will be held with the undersigned at 2310 U.S. Courthouse, 100 State Street, Rochester, New York on May 14, 2014, at 11:40 a.m. IT IS SO ORDERED.
Notes
. The complaint refers to Anthony Alvarez, although it appears that this officer’s last name is Alvernaz. Accordingly, the Court will refer to him as Alvernaz.
. In opposing defendants’ motion for summary judgment, plaintiffs have not complied with this district’s Local Rules. Those rules require a party opposing summary judgment to “include a response to each numbered paragraph in the moving party’s [Statement [of Material Facts], in correspondingly numbered paragraphs and, if necessary, additional paragraphs containing a short and concise statement of additional material facts as to which it is contended there exists a genuine issue to the tried.” W.D.N.Y. Local Rule 56(a)(2). Although plaintiffs have submitted a Counter-Statement of Material Facts, they have not responded to all the material facts asserted in defendants’ Statement of Material Facts. Accordingly, as the rules provide, those statements that have not been specifically controverted will be deemed admitted. One example is defendants’ assertion in paragraph 64 of their Statement that plaintiff Carol Piper suffered no physical injury. (See Docket # 62-1 at ¶ 64).
. In support of this characterization, plaintiffs cite the testimony of Alvernaz. The cited testimony, however, was simply that there was no loud music emanating from the house and that after he searched the second floor, he returned to the kitchen, but was not drawn to that location by any noise. (Def. Ex. H at 36, 42). Nonetheless, some of the affidavits submitted by plaintiffs on this motion assert that the atmosphere was calm and the partygoers were acting responsibly when the officers arrived. (PI. Exs. A, B, D, E).
. This opinion does not address the admissibility at trial of Levine’s testimony or report.
. During oral argument, counsel for defendants asserted that Joseph Piper is precluded from disputing that he did not resist arrest because he is bound by the jury’s factual findings that he did resist arrest when it convicted him of resisting arrest. Although the doctrine of collateral estoppel in certain circumstances may preclude an individual who was convicted of resisting arrest from asserting a claim of excessive force in a subsequent civil action, the party seeking to invoke the doctrine bears a heavy burden of establishing the doctrine’s applicability. See Tracy v. Freshwater,
. The cited cases analyze the issue under the Fourth Amendment. Whether James’s excessive force claims are properly analyzed under the Fourth Amendment, see Zadrowski v. Town of Plainville,
. Before this case was commenced, Donald evidently identified Marrone as the officer who pushed him on the stairs — an identification that appeared consistent with Marrone’s testimony at Joseph’s criminal trial. (Def. Exs. E at 9, H at 103). During his deposition in this case, however, Donald testified unequivocally that he could not identify the name of the officer who pushed him on the stairs and knows no witnesses who could. (Def. Ex. M at 21). For reasons not apparent in the record, plaintiffs apparently believe that they do not have a sufficient basis to identify the officer who allegedly pushed Donald on the stairs, or perhaps they simply made a strategic decision not to press Donald’s claims in response to defendants’ summary judgment motion.
. Defendants have not raised, and the Court does not reach, the question of whether the officers would have "had sufficient time to intercede or [would have been] capable of preventing the harm being caused.” See Zadrowski v. Town of Plainville,