15‐1490‐cv Bartels v. Schwarz

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURTʹS LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ʺSUMMARY ORDERʺ). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 17th day of March, two thousand sixteen.

PRESENT: PETER W. HALL, DENNY CHIN, SUSAN L. CARNEY, Circuit Judges.

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JEFFREY BARTELS, Plaintiff‐Counter‐Defendant‐Appellant,

v. 15‐1490‐cv

ROBERT SCHWARZ, GRIMM, Police Officer, CORTES, Police Officer, OʹSHAUGHNESSY, Police Officer, DONNARUMA, Police Officer, Defendants‐Appellees,

MARY MOHRMAN, Defendant‐Counter‐Claimant‐Cross‐Claimant‐Appellee,

INCORPORATED VILLAGE OF LLOYD HARBOR, POLICE CHIEF CHARLES FLYNN, MAYOR LELAND M. HAIRR, DEPUTY MAYOR JEAN THATCHER, JOHN RITTER, JR., SERGEANT RENALD DIFONZO, POLICE OFFICER MORRISSEY, POLICE OFFICER MULLER, POLICE OFFICER BAFFA, BRIAN MADSEN, THOMAS SCHOLL, JOHN DOES, 1 and 2, Defendants‐Cross‐Defendants‐Appellees.

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FOR PLAINTIFF‐COUNTER‐ JAMES M. MALONEY, Law Office of DEFENDANT‐APPELLANT: James Maloney, Port Washington, New York.

FOR DEFENDANTS‐APPELLEES: ARJAY G. YAO, Morris Duffy Alonso & Faley, New York, New York.

Appeal from the United States District Court for the Eastern District of

New York (Chen, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.

Plaintiff‐appellant Jeffrey Bartels appeals the judgment of the district court

entered April 16, 2015, in favor of various officials, police officers, and employees of the

Village of Lloyd Harbor (the ʺVillageʺ), and dismissing his second amended complaint

alleging claims under

and New York law. By Order dated March 31,

2015, the district court granted defendantsʹ motion for summary judgment, adopting

the Report and Recommendation of United States Magistrate Judge Gary R. Brown.

This matter arises from certain encounters between Bartels and Village officials that

Bartels claims resulted in suppression of his speech and violated his rights to due

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process and equal protection. We assume the partiesʹ familiarity with the underlying

facts, the procedural history of the case, and the issues on appeal.

Bartels is a ʺconcerned residentʺ who documents and speaks out against

matters of concern in the Village. App. at 12. His appeal focuses on the dismissal of his

claims relating to two incidents in the Village. The first involves the alleged menacing

of Bartels by a Village‐owned truck. Bartels claims that he had pulled over on the side

of the road and exited his vehicle to take pictures of a dangerous hanging wire when a

Village dump truck accelerated and veered towards him, causing him to leap over the

guardrail and down a 15‐20 foot embankment. The second incident relates to an

encounter between Bartels and two Village police officers who allegedly saw Bartels

traversing his neighborʹs property and shouted to Bartels that he was trespassing.

Bartels claims that these incidents are part of a larger attempt on the part of the Village

to prevent him from gathering and disseminating information about unsafe conditions

and environmental harm around the Village. He alleges deprivation of his First

Amendment, equal protection, and due process rights, and assault under New York

state law.

We review de novo the district courtʹs grant of summary judgment, with

the view that ʺ[s]ummary judgment is appropriate when there is ʹno genuine dispute as

to any material factʹ and the moving party is ʹentitled to judgment as a matter of law.ʹʺ

Chabad Lubavitch of Litchfield Cty., Inc. v. Litchfield Historic Dist. Commʹn,

(2d Cir. 2014) (quoting Fed. R. Civ. P. 56(a)). ʺThere is no ʹgenuineʹ dispute when ʹthe ‐ 3 ‐

record taken as a whole could not lead a rational trier of fact to find for the non‐moving

party.ʹʺ

(quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

(1986)). Upon review, we conclude that the district court correctly granted defendantsʹ

motion for summary judgment and affirm for substantially the reasons stated by the

district court and set forth in the Magistrate Judgeʹs Report and Recommendation.

1. The Swerving Truck

On appeal, Bartels argues that the district court erred in resolving a

material factual dispute as to whether the Village truck swerved at him based on an

evaluation of two contemporaneous photographs taken by Bartels.

According to Bartelsʹs deposition testimony, he took a photo of the truck

after it began veering toward him. App. 48 (ʺInstead of going away from me he started

angling the truck towards me. . . . I took a picture. I donʹt know if I got one or two

shots off.ʺ). He testified that he took another photo after he had leapt over the guardrail

to avoid being hit. App. 48‐49 (ʺAnd then they were still speeding at me so I . . . just

jumped up over the guardrail. And the embankment right off that guardrail drops . . .

like 15 or 20 feet. . . . [A]nd I jumped over. . . . And then I landed, you know, going

down the hillside. And I could remember ‐‐ I think one of the shots came out is that Iʹm

basically down in the woods. And I got a shot of the truck speeding by me up on the

road level. And I was down the hillside by then.ʺ). Contrary to that testimony, the first

photo clearly reveals the truck veering away from him, rather than toward him. App.

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55. The second also contradicts Bartelsʹs version of events, as it was plainly taken from

the roadside, not from the bottom of a 15‐20 foot embankment. App. 56.

ʺWhen opposing parties tell two different stories, one of which is blatantly

contradicted by the record, so that no reasonable jury could believe it, a court should

not adopt that version of the facts for purposes of ruling on a motion for summary

judgment.ʺ Scott v. Harris,

(2007). Under the circumstances, the

district court correctly found that the photographs so belie Bartelsʹs version of events

that no reasonable jury could find in his favor.

2. The Police Encounter

Bartels argues that the district court erred in holding that there was no

violation of his rights to substantive due process when the officers shouted at Bartels

that he was trespassing and pursued him across the property.

ʺTo establish a violation of substantive due process rights, a plaintiff must

demonstrate that the state action was ʹso egregious, so outrageous, that it may fairly be

said to shock the contemporary conscience.ʹʺ Okin v. Vill. of Cornwall‐on‐Hudson Police

Depʹt,

(2d Cir. 2009) (quoting Cty. of Sacramento v. Lewis,

,

847 n.8 (1998)).

According to the second amended complaint, Bartels was traversing his

neighborʹs property wearing a bathrobe and slippers when two Village police officers

shouted at him that he was trespassing, and ʺpursued him.ʺ App. 22. Bartels then

ʺsought refugeʺ in the neighborʹs home and ʺthereby avoided being pursued.ʺ

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Bartels alleged that Officer Morrissey removed a taser from his holster, placing Bartels

in fear of physical harm.

In his deposition, however, Bartels stated that he saw

Officer Morrissey ʺscrewing aroundʺ with something on his belt, which Bartels thought

ʺwas a cellphone.ʺ Dkt. No. 46‐2, at 44‐45. On appeal, Bartels admits that while he

ʺinitially thoughtʺ the object was a taser, it ʺcame to light that the object was a cell

phone.ʺ Appellantʹs Br. 7. At no point did the officers make physical contact with

Bartels. Dkt. No. 46‐2, at 46.

Nothing about the officersʹ actions was improper, let alone ʺshocking,

arbitrary, and egregious.ʺ Anthony v. City of New York,

(2d Cir. 2003).

Their ʺpursuitʺ does not even implicate the Fourth Amendment, as Bartels was not

ʺseizedʺ at any point. See California v. Hodari D.,

(1991) (no Fourth

Amendment seizure occurs until physical force has been applied or there has been

submission to an assertion of authority). Thus, under the circumstances, no reasonable

jury could find that Bartelsʹs substantive due process rights were violated, and

summary judgment was properly granted.

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We have considered all of Bartelsʹs remaining arguments and find them to

be without merit. Accordingly, we AFFIRM the judgment of the district court.

FOR THE COURT: Catherine OʹHagan Wolfe, Clerk

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