Case 1:12-cv RJA-LGF Document Filed 12/15/14 Page 1 of 15

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1 Case 1:12-cv RJA-LGF Document Filed 12/15/14 Page 1 of 15 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK TIMOTHY BATT, LUANN BATT, and JOSEPH BATT, -vs- JOSEPH BUCCILLI, Plaintiffs Defendant CIV NO. 12-cv RJA DEFENDANT'S MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT Paula M. Eade Newcomb, Esq. BOUVIER PARTNERSHIP, LLP Attorneys for Defendant JOSEPH BUCCILLI 350 Main Street, Suite 1400 Buffalo, New York (716) pnewcomb@bouvierlaw.com

2 Case 1:12-cv RJA-LGF Document Filed 12/15/14 Page 2 of 15 This memorandum of law is submitted in support of the motion for summary judgment pursuant to Fed.R.Civ.P. 56, filed on behalf of Defendant, JOSEPH BUCCILLI. PLAINTIFFS' ALLEGATIONS Plaintiffs commenced this action pursuant to 42 USC The plaintiffs' complaint sets forth one cause of action alleging that Lieutenant Joseph Buccilli violated plaintiffs' Fourth Amendment right against search and seizure with respect to a welfare check, which was conducted by Lt. Buccilli and Officer Joseph Kadi on April17, 2012, at a residence located on Bieler Road in Orchard Park, New York. FACTS OF THE CASE On April 17, 2014, Donna Locicero, a Senior Case Worker for the Department of Social Services, Department of the Aging, received a telephone call from Annette Puntoriero. Ms. Puntoriero was concerned about the condition of her father-in-law, 82 year old Fred Puntoriero. Ms. Locicero was told that the last time Mr. Puntoriero was seen in early Apirl, he was lethargic, unfocused and possibly dehydrated, and his son was denied the opportunity to see his father the day before. Ms. Locicero discussed the case with her supervisor, and it was determined that a welfare check should be conducted because Mr. Puntoriero's condition was an urgent concern and could be fatal. Therefore, Ms. Locicero contacted the Orchard Park Police Department and requested that the police conduct a welfare check on Mr. Puntoriero. Orchard Park police officer Joseph Kadi and Lieutenant Joseph Buccilli responded to the call and went to a residence on Bieler Road where Mr. Puntoriero was residing. While in the driveway, an individual, who would only identify himself as Joe came out of the house and 1

3 Case 1:12-cv RJA-LGF Document Filed 12/15/14 Page 3 of 15 approached the police. The officers explained the reason for their presence at the property, and that they needed to check on the condition of Mr. Puntoriero. Joe confirmed that Mr. Puntoriero was in the home, but refused to bring him to the police officers or allow the officers to confirm Mr. Puntoriero's condition. Joe then started to enter the side door of the house. Given the exigent circumstances of the situation since there was an elderly individual who was possibly in need of medical attention and the resistance from Joe, which raised further concern of a possible problem, Lt. Buccilli followed Joe into the side entrance. After entering the screen door, Joe attempted to slam the wooden door on Lt. Buccilli, who put his foot in the door. Lt. Buccilli and Officer Kadi then followed Joe into the house. The door lead to the kitchen, and both officers entered the kitchen. Lt. Buccilli again explained the reason for their visit, and requested to see Mr. Puntoriero. After a few minutes, another individual in the home advised that Mr. Puntoriero was in the next room. Lt. Buccilli went into the room and found Mr. Puntoriero. Lt Buccilli spoke with Mr. Puntoriero for a few minutes, and evaluated his condition, and determined that Mr. Puntoriero was not in a compromised condition. Lt. Buccilli then left the premises. Adult Protective Services was advised of Mr. Puntoriero's condition, and the resistance encountered at the home, and decided to send a case worker to further evaluate Mr. Puntoriero' s condition. The police officers as well as the Chief of Police, who had arrived at the premises, waited until the case worker arrived and conducted her evaluation to ensure there were no further problems gaining access to Mr. Puntoriero. After the case worker confirmed the condition of Mr. Puntoriero, all officers left the premises. 2

4 Case 1:12-cv RJA-LGF Document Filed 12/15/14 Page 4 of 15 ARGUMENT SUMMARY JUDGMENT IS APPROPRIATE WHERE THERE ARE NO GENUINE ISSUES OF FACT The United States Supreme Court has acknowledged that the purpose of a summary judgment motion to be "[t]o isolate and dispose of factually unsupported claims... " Celotex Corp. vs. Catrett, 477 U.S. 317, 323 (1986) Summary judgment is appropriate where there are no genuine issues as to any material fact, and the moving party is entitled to summary judgment as a matter oflaw. Fed. R. Civ. P. 56( c). The Second Circuit has acknowledged that summary judgment is "a useful device for unmasking frivolous claims and putting a swift end to meritless litigation." Quinn vs. Syracuse Model Neighborhood Corp., 613 F.2d 438, 445 (2nd Cir. 1980). Summary judgment reinforces the purpose of the federal rules to achieve the just, speedy and inexpensive determination of actions, and, when appropriate afford a merciful end to lengthy and expensive litigation. Fontenot vs. Upjohn Co., Inc., 750 F.2d 1190 (5th Cir. 1986) The United States Supreme Court has held that summary judgment is encouraged as a device of disposing of claims barred by immunity. Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982) and Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct (1985) See also Kaminsky v. Rosenblum, 929 F.2d 922 (2nd Cir. 1991). Once the moving party has met its burden of "demonstrating the absence of a genuine issue of material fact, the nonmoving party must come forward with enough evidence to support a jury verdict in its favor, and the motion will not be defeated merely upon a 'metaphysical doubt' concerning the facts,... or on the basis of conjecture or surmise." Maffucci, 923 F.2d at 3

5 Case 1:12-cv RJA-LGF Document Filed 12/15/14 Page 5 of (citing Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). According to the Second Circuit Court of Appeals, a party seeking to defeat a motion for summary judgment "must do more than make broad factual allegations and invoke the appropriate statute. The [party] must also show, by affidavits or as otherwise provided in Rule 56..., that there are specific factual issues that can only be resolved at trial." Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995). In order to defeat a motion for summary judgment, plaintiffs must come forward with sufficient evidence to support their claim and show that there is a genuine or material issue of fact. Celotex, supra. A fact is "material" only if the fact has some effect on the outcome of the suit. Anderson v. Liberty Lobby, Inc, 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); see Catanzaro v. Weiden, 140 F.3d 91, 93 (2d Cir. 1998). A dispute regarding a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248; see Bryant v. Maffucci, 923 F.2d 979 (2d Cir.), cert. denied, 502 U.S. 849, 112 S.Ct. 152, 116 L.Ed.2d 117 (1991); and Lizardo v. Denny's, Inc., 270 F.3d 94, 101 (2d Cir. 2001). An examination of the relevant evidence in this action demonstrates that the Plaintiffs have no cognizable legal or factually supported claim against Lt. Buccilli, and that, accordingly, summary judgment in favor of the defendant is proper. PLAINTIFFS' CIVIL RIGHTS CLAIM MUST BE DISMISSED Plaintiffs commenced this action pursuant to 42 U.S.C In order to state a claim under 1983, plaintiffs must prove (1) that the challenged conduct was attributable at least in 4

6 Case 1:12-cv RJA-LGF Document Filed 12/15/14 Page 6 of 15 part to a person acting under color of state law, and (2) that such conduct deprived the plaintiff of a right, privilege, or immunity secured by the Constitution or laws of the United States. Adickes v. S.H. Kress & CO., 398 U.S. 144 (1970) and Dwares v. City ofnew York, 985 F.2d 94, 98 (2d Cir. 1993). Naked, improbable and unsubstantiated accusations are wholly inadequate to allege a 1983 violation. Neustein v. Orbach, 732 F. Supp. 333, 344 (E.D.N.Y. 1990). "The Second Circuit has repeatedly held, complaints relying on the civil rights statutes are insufficient unless they contain specific allegations of fact indicating a deprivation of rights, instead of a litany of general conclusions that shock but have no meaning." Carrasco v. New York City Off-Track Betting Corp., 858 F. Supp. 28,31 (S.D.N.Y. 1994); Barrv. Abrams, 810 F.2d 358, (2d Cir. 1987); Ostrer v. Aronwald, 567 F.2d 551, 553 (2d Cir. 1977). While it is a basic principle of Fourth Amendment law that "searches and seizures inside a home without a warrant are presumptively unreasonable," Groh v. Ramirez, 540 U.S. 551, 559 (2004), the Supreme Court has specifically stated that "because the ultimate touchstone of the Fourth Amendment is "reasonableness," the warrant requirement is subject to certain exceptions." Brigham City v. Stuart, 547 US 398, 403 (2006) citing Flippo v. West Virginia, 528 U.S. 11, 13 (1999); See also Katz v. United States, 389 U.S. 347, 357 (1967). "[W]arrants are generally required to search a person's home or his person unless 'the exigencies of the situation' make the needs oflaw enforcement so compelling that the warrantless search is objectively reasonable under the Fourth Amendment." Mincey v. Arizona, 437 U.S. 385, (1978). In Mincey, the Supreme Court acknowledged a police officer's community caretaking function and the right of police to respond to emergencies, reasoning that the entry that would otherwise be 5

7 Case 1:12-cv RJA-LGF Document Filed 12/15/14 Page 7 of 15 barred by the Fourth Amendment is justified by the need to protect life or avoid serious injury. "One exigency obviating the requirement of a warrant is the need to assist persons who are seriously injured or threatened with such injury. 'The need to protect or preserve life or avoid serious injury is justification for what would be otherwise illegal absent an exigency or emergency."' Brigham, 547 US 398 at 403 citing Mincey, 437 U. S. at 392 (quoting Wayne v. United States, 318 F. 2d 205,212 (CADC 1963) (Burger, J.)). Accordingly, the Supreme Court has repeatedly held that "law enforcement officers may enter a home without a warrant to render emergency assistance to an injured occupant or to protect an occupant from imminent injury." Brigham, supra, at 403 and Mincey, supra, at 392; see also Georgia v. Randolph, ante, at 118 ("[I]t would be silly to suggest that the police would commit a tort by entering... to determine whether violence (or threat of violence) has just occurred or is about to (or soon will) occur"). In Georgia v. Randolph, 547 US 103, 118 (2006), the Supreme Court went on to state: "Thus, the question whether the police might lawfully enter over objection in order to provide any protection that might be reasonable is easily answered yes." (emphasis added) In analyzing claims under the Fourth Amendment, a reasonableness standard is utilized. Reasonableness is measured by an examination of the totality of the circumstances. Ohio v. Robinette, 519 U.S. 33 (1996). The Supreme Court has repeatedly held that "an action is "reasonable" under the Fourth Amendment, regardless of the individual officer's state of mind, "as long as the circumstances, viewed objectively, justify [the] action." Scott v. United States, 6

8 Case 1:12-cv RJA-LGF Document Filed 12/15/14 Page 8 of U.S. 128, 138 (1978). "The officer's subjective motivation is irrelevant." Brigham supra, at The Second Circuit in Montanez v. SharQQ,_ 444 Fed. Appx 484 (2nd Cir 2011), involved a warrantless entry and search of a home during a child welfare check. The police had been informed that the plaintiff was armed, dangerous, and a convicted felon who was wanted for other violations and that there was a risk to plaintiffs children given weapons and drugs that had been seized less than 24 hours earlier. In reversing the district court and dismissing the complaint, the Second Circuit determined that the warrantless entry did not violate the plaintiffs Fourth Amendment rights -again confirming that officers are permitted to enter a dwelling without a warrant to render emergency aid or assistance to a person whom they reasonably believe to be in distress and in need of their assistance. The Second Circuit went on to advise that "[c]ourts must apply an objective standard to determine the reasonableness of the officer's belief, taking into account 'the circumstances then confronting the officer, including the need for a prompt assessment of sometimes ambiguous information concerning potentially serious consequences."' (citations omitted) Montanez, supra at 486. In the present case, it was objectively reasonable for Lieutenant Buccilli and Officer Kadi to have believed that exigent circumstances existed requiring his entry into the home. The report from Adult Protective Services that Mr. Puntoriero, an elderly unhealthy individual was in eminent danger, and family members had not been permitted to see him, created a clear and urgent exigent circumstance necessitating a warrantless entry to confirm the condition of the gentleman. The elderly individual could be in the need of medical assistance or have passed 7

9 Case 1:12-cv RJA-LGF Document Filed 12/15/14 Page 9 of 15 away. This coupled with Joseph Batt's refusal of entry and belligerent behavior only furthered an already deep concern over Mr. Puntoriero's safety. A similar situation occurred in Wolfv. City of Stockton, 2010 U.S. Lexis (ED Calf. 2010), affd 2011 U.S. App. Lexis (9th Cir ). In Wolf, the police searched the plaintiffs van without a warrant based on a report of a father's concern for the welfare of his child who was living in a van with the child's mother. When the officers approached the van, they opened the door and asked the woman to step out. Once outside, the officers explained the report and asked if there was a child in the van. The woman answered affirmatively, tried to make a cell phone call, and then tried to get to the front door of the van and screamed to her child to close and lock the doors, and not let the officers inside. The court found that the officer's suspicions and concerns for the child's welfare were heightened by the plaintiffs conduct. "Such behavior by Wolf supported the officers' reasonable belief that 'they had a duty under the community caretaking function to investigate a potential emergency situation."' Wolf. supra at 16, citing Martin v. City of Oceanside, 360 F.3d 1078, 1082 (9th Cir. 2004). Just as in Georgia v. Randolph, it is "silly" to suggest that Mr. Buccilli should be suggested to a tort for carrying out his duty to ensure the health and welfare of Mr. Puntoriero. When the underlining facts are viewed objectively, there is no doubt that exigent circumstances existed necessitating a warrantless entry. It is respectfully submitted that the plaintiffs cannot prove a case of a violation of any constitutional rights, and that it was objectively reasonable for the officers to enter the home. In fact, each of the plaintiffs admitted in their depositions that the police have the right to check on 8

10 Case 1:12-cv RJA-LGF Document Filed 12/15/14 Page 10 of 15 the welfare of an individual such as Mr. Puntoriero. Due to the exigent circumstances present in this case there is no cognizable violation of the Plaintiffs Fourth Amendment rights by the Defendant Joseph Buccilli, and, accordingly, summary judgment in favor of Lt. Buccilli is appropriate. PLAINTIFFS' FOURTH AMENDMENT CLAIMS MUST BE DISMISSED BECAUSE THE DEFENDANT IS PROTECTED BY THE DOCTRINE OF QUALIFIED IMMUNITY "A defendant is entitled to summary judgment on qualified immunity grounds when, 'looking at the evidence in the light most favorable to, and drawing all inferences most favorable to, the plaintiff,' the court determines that no reasonable jury could conclude that it was objectively unreasonable for the defendant to believe that his or her conduct or actions did not violate an established federally protected right." (citations omitted) Dill v. Village of Gowanda,, 952 F.Supp. 989, 996 (WDNY 1996), adopted and summary judgment granted by 952 F.Supp. 989 (WDNY 1997). Here, it was objectively reasonable for Lt. Buccilli, as well as Officer Kadi, to believe that their conduct did not violate any established federally protected right as they were checking on the welfare of an elderly individual with health conditions and concerns by a family member, and only entered the house for enough time to confirm the condition of the elderly gentleman. Neither of the officers used any force nor did they conduct searches of the house. Given the exigent circumstances exception which has been established by the U.S. Supreme Court, it was reasonable for the lieutenant to believe that his conduct did not violate the plaintiffs' Fourth 9

11 Case 1:12-cv RJA-LGF Document Filed 12/15/14 Page 11 of 15 Amendment right. See Ryburn v. Huff, 132 S.Ct. 987 (2012) unanimously granting immunity and dismissing the complaint against officers conducting a warrantless search. "An officer conducting a search is entitled to qualified immunity where clearly established law does not show that the search violated the Fourth Amendment." Pearson v. Callahan, 129 S. Ct. 808, 823 (2009), citing Anderson v. Creighton, 483 US 635, 641 (1987). The inquiry of qualified immunity turns on the "objective legal reasonableness of the action, assessed in light of the legal rules that were clearly established at the time it was taken." Pearson, 129 S. Ct. at 822, citing Wilson v. Layne, 526 U.S. 603, 614, 119 (1999) (internal quotation marks omitted); see also Hope v. Pelzer, 536 U.S. 730, 739 (2002) ("[Q]ualified immunity operates to ensure that before they are subjected to suit, officers are on notice their conduct is unlawful" (internal quotation marks omitted). Decisions of the United States Supreme Court have established that the "good faith" defense has both an "objective" and a "subjective" aspect. The objective element involves a presumptive knowledge of and respect for "basic, unquestioned constitutional rights." Wood v. Strickland, 420 U.S. 308, 322 (1975) while the subjective component refers to "permissible intentions." Id. Referring both to the objective and subjective elements, the Supreme Court has held that qualified immunity would be defeated if an official "knew or reasonably should have known that the action he took within his sphere of official responsibility would violate the constitutional rights of the [plaintiff], or if he took the action with the malicious intention to cause a deprivation of constitutional rights or other injury..." On a motion for summary judgment, the judge may appropriately determine, not only the 10

12 Case 1:12-cv RJA-LGF Document Filed 12/15/14 Page 12 of 15 currently applicable law, but whether that law was clearly established at the time an action occurred. If the law at that time was not clearly established, a police officer cannot reasonably be expected to anticipate subsequent legal developments, nor could the officer be found to have known that the law forbade conduct not previously identified as unlawful. Harlow v. Fitzgerald, 457 us 800 (1982). In the present case, the Defendant Lieutenant Buccilli is entitled to the defense of qualified immunity because it was objectively reasonable for Lieutenant Buccilli to believe a warrantless entry was permitted when exigent circumstances, such as an elderly individual's health and possibly death are present. As set forth above, the reports that Mr. Puntoriero was in eminent danger created a clear and urgent exigent circumstance necessitating a warrantless entry, and Joseph Batt's refusal of entry and belligerent behavior only furthered an already deep concern over Mr. Puntoriero's safety. Just as in Ryburn, supra, the officer was in the house a short period of time and did not conduct a search, but only checked on the welfare of Mr. Puntoriero. Again, when the underlining facts are viewed objectively, there is no doubt that exigent circumstances existed necessitating a warrantless entry. Further, it is clear from Lieutenant Buccilli's deposition that based on his own understanding of welfare checks and exigent circumstances; he reasonably believed he was acting lawfully. Lt. Buccilli had no notice that he would have been doing anything improper or tortious by following directions to ensure the safety of Mr. Puntoriero. While it is clear that exigent circumstances were present in this case, if the court finds otherwise, then alternatively, there can be no doubt that detective Buccilli had a good faith basis to believe he was acting 11

13 Case 1:12-cv RJA-LGF Document Filed 12/15/14 Page 13 of 15 lawfully. Accordingly, summary judgment based on qualified immunity is required. ALL CLAIMS AGAINST LT. BUCCILLI IN HIS OFFICIAL CAP A CITY MUST BE DISMISSED Naming a government official in his official capacity is the equivalent of naming the government entity itself as the defendant, and requires the plaintiffs to allege and prove an official custom or policy as the cause of the constitutional violation. Kentucky v. Graham, 4 73 U.S. 159, , 105 S. Ct. 3099,3105, 87 L.Ed.2d 114 (1985). Without alleging and proving an official custom or policy, plaintiffs cannot recover under 1983 against a municipal employee acting in his official capacity. It is undisputed that Lt. Buccilli was acting in his official capacity as a police lieutenant at the time he entered the home, and the complaint must be dismissed, as plaintiffs have not asserted specific allegations of an official custom or policy of the police department which violated their constitutional rights. Because plaintiffs have failed to make sufficient allegations of any municipal custom or policy, the 1983 claims against the defendant should be dismissed as a matter of law. The Second Circuit has held that "The mere assertion that a municipality has a custom or policy is insufficient in the absence of allegations of fact tending to support such an inference." Dwares v. City ofnew York City, 985 F.2d 94 (2"d Cir. 1993) The Dwares court further held that " [A] single incident alleged in a complaint, especially if it involved only actors below the policy making level, generally will not suffice to raise an inference of the existence of a custom or policy." 985 F.2d. at 100 Therefore, the complaint against Lt. Buccilli must be dismissed. 12

14 Case 1:12-cv RJA-LGF Document Filed 12/15/14 Page 14 of 15 ALL CLAIMS FOR PUNITIVE DAMAGES MUST BE DISMISSED Punitive damages cannot be awarded against a police officer in their official capacity. Ivani Contracting Corp. v. City ofnew York, 103 F.3d 257, (2"d Cir. 1997), cert denied, 520 U.S (1997). Plaintiffs have also sued Lt. Buccilli in his individual capacity, but punitive damages are only warranted if the conduct was "motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally protected rights of others."session v. Erie County SheriffDep't, 2013 U.S. Dist. LEXIS 46818, (WDNY 2013), adopted and summary judgment granted 2013 U.S. Dist. Lexis (WDNY 2013), citing Smith v. Wade, 461 U.S. 30. As set forth in the undisputed facts in this case, there are no assertions or factual basis to support any claim of punitive damages in this case. Thus, all claims for punitive damages should be dismissed. CONCLUSION It is respectfully submitted that based that the plaintiffs' complaint against Lt. Buccilli must be dismissed in its entirety. DATED: December 15,2014 Buffalo, New York Yours, etc. s/paula MEade Newcomb Paula M. Eade Newcomb, Esq. BOUVIER PARTNERSHIP, LLP Attorneys for Defendant JOSEPH BUCCILLI 350 Main Street, Suite 1400 Buffalo, New York (716) pnewcomb@bouvierlaw.com 13