Layou v. County of Onondaga et al

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_____________________________________________
MICHAEL JAMES LAYOU,
Plaintiff,
v.
COUNTY OF ONONDAGA; WILLIAM J.
FITZPATRICK; MELISSA CONSTANZA; 	5:25-CV-0033
MATTHEW TYNAN; ANTHONY ALOI; AMY 	(AMN/ML)
BOLLINGER; CINDI NEWTON; RALPH
HABIB; DANIEL G. BROGAN; DANIEL
BIELING; JASON WASHO; ADAM QUKU;
JOHN ROSELLO; POTTS; TOWNSEND;
SUMMERS; REYNOLDS; and JOHN DOE,
Onondaga County Sheriff Deputies from
January 1, 2022,
Defendants.
_____________________________________________
APPEARANCES: 	OF COUNSEL:
MICHAEL JAMES LAYOU
Plaintiff, Pro Se
Fishkill Correctional Facility
Post Office Box 1245
Beacon, New York 12508
ONONDAGA COUNTY LAW DEP’T 	JOHN HEISLER, ESQ.
Counsel for Defendants County of Onondaga, 	Assistant County Attorney
William J. Fitzpatrick, Melissa Constanza,
Matthew, Tynan, Anthony Aloi, Amy
Bollinger, Cindi Newton, Brogan, Bieling,
Washo, Quku, and Rosello
421 Montgomery Street, 10th Floor
Syracuse, New York 13202
COSTELLO, COONEY & FEARON, PLLC 	PAUL FERRARA, ESQ.
Counsel for Defendant Habib
211 West Jefferson Street
Syracuse, New York 13202
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MIROSLAV LOVRIC, United States Magistrate Judge
REPORT and RECOMMENDATION
I. 	SECOND AMENDED COMPLAINT
Construed as liberally1 as possible, Plaintiff’s Second Amended Complaint alleges
violations of Plaintiff’s civil rights by Defendants dating back to 1998. (See generally Dkt. No.
43.)
More specifically, the Second Amended Complaint alleges that in October 2020, the
Onondaga County Sheriff’s Office Special Investigation Unit (“SIU”) began an investigation
into alleged drug sales occurring at the residence that Plaintiff inhabited. (Dkt. No. 43 at 5.) The
Second Amended Complaint alleges that on November 4, 2020, SIU conducted a traffic stop of
non-party Matthew Correia, who advised that he had just purchased cocaine from Plaintiff. (Id.
at 5-6.) Plaintiff alleges that on November 4, 2020, SIU conducted a vehicle and traffic stop of
him “with negative results.” (Id. at 6.)
The Second Amended Complaint alleges that on March 9, 2021, Plaintiff was arraigned
on two felony drug charges related to the incident on November 4, 2020 (the “November 2020
Charges”). (Dkt. No. 43 at 6.) The Second Amended Complaint alleges that on June 30, 2021,
non-party Kelly Gardynski met Defendant Habib and provided Defendant Habib with a cashier’s
check in the amount of $7,500. (Id.) Plaintiff alleges that the payment represented a retainer for
Defendant Habib to represent Plaintiff on the November 2020 Charges. (Id.)
1 	The court must interpret pro se complaints to raise the strongest arguments they suggest.
Soto v. Walker, 44 F.3d 169, 173 (2d Cir. 1995) (quoting Burgos v. Hopkins, 14 F.3d 787, 790
(2d Cir. 1994)).
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Plaintiff alleges that on August 4, 2021, he met with Defendant Constanza and “another
SIU officer” and during that meeting they agreed that Plaintiff would act as a confidential
informant and refrain from all criminal activity and arrests. (Dkt. No. 43 at 7.) Plaintiff alleges
that on August 15, 2021, he was released pursuant to N.Y. C.P.L. § 180.80. (Id.)
Plaintiff alleges that on September 29, 2021, he entered an inpatient drug facility and on
October 12, 2021, he spoke with Defendant Habib and Plaintiff expressed “his unequivocal
intent to testify before any convened grand jury.” (Dkt. No. 43 at 8.)
Plaintiff alleges that on January 1, 2022, he was assaulted at his residence. (Dkt. No. 43
at 8.) Plaintiff alleges that during the assault, a bookshelf fell over and injured a bystander. (Id.)
The Second Amended Complaint alleges that as a result, Plaintiff was charged with felony
assault, which resulted in a parole violation. (Id.)
The Second Amended Complaint alleges that Plaintiff pleaded guilty to a parole
violation, which also satisfied the felony assault charge. (Dkt. No. 43 at 9.) Plaintiff alleges that
at his first parole report date, he was presented with a certificate for successfully completing
parole supervision. (Id.)
The Second Amended Complaint alleges that on September 7, 2022, Defendants
Constanza, Brogan, Bollinger, Bieling, Washo, Quku, Tynan, Rosello, Aloi, Potts, Townsend,
Summers, and Reynolds executed a search warrant on Plaintiff that resulted in a use of force
incident. (Dkt. No. 43 at 9-10.) Plaintiff alleges that after he was assaulted, Defendant
Constanza informed him that he was under arrest for possession of cocaine and made a “personal
dig about his refusal to work for SIU” (“the September 2022 Charges”). (Id. at 10.) The Second
Amended Complaint alleges that after several requests, Plaintiff was eventually brought to the
hospital where exams revealed that, as a result of the excessive force that Defendants Constanza,
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Brogan, Bollinger, Bieling, Washo, Quku, Tynan, Rosello, Aloi, Potts, Townsend, Summers, and
Reynolds utilized, Plaintiff suffered several broken bones in the face and a laceration to his
posterior scalp, which required staples to close. (Id. at 11.)
Plaintiff alleges that on October 6, 2022, he was brought before Judge Miller for
arraignment and Nicholas DeMartino was appointed to represent him. (Id.) Plaintiff alleges that
the court was informed that Plaintiff was represented by retained counsel—Defendant Habib—
for the November 2020 Charges. (Id.)
Plaintiff alleges that during a court appearance on October 13, 2022, Judge Miller
informed him that Defendant Habib was not representing Plaintiff on the November 2020
Charges or the September 2022 Charges. (Id.)
Plaintiff alleges that in September 2023, he informed the criminal court that he would
accept a seven-year sentence, which the criminal court agreed to, but Chief Assistant District
Attorney Bednarski opposed and refused to include the November 2020 Charges. (Dkt. No. 43
at 12.) The Second Amended Complaint alleges that, as a result, on September 28, 2023,
Plaintiff was sentenced to a determinate seven-year sentence that did not include the November
2020 Charges. (Id.) Plaintiff alleges that on December 29, 2023, the November 2020 Charges
were returned to Syracuse City Court “for the purpose of ‘Reduction.’” (Id.) Plaintiff alleges
that on February 5, 2023, the November 2020 Charges were dismissed upon Plaintiff’s forfeiture
of the currency in his possession when he was arrested on September 7, 2022. (Dkt. No. 43 at
12.)
The Second Amended Complaint alleges that Plaintiff has experienced a “lifetime of
constitutional violations” and provides a criminal history dating back to 1998. (Dkt. No. 43 at
13-18.) By way of summary, the Second Amended Complaint alleges the following:
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• 	June 1998 and July 1998, Plaintiff sold cocaine to an Onondaga County Sheriff (Dkt. No.
43 at 13),
• 	August 10, 1998, Plaintiff was involved in a two-car fatality accident (id.),
• 	August 12, 1998, Plaintiff was arrested on a misdemeanor bench warrants (id.),
• 	Some date after August 12, 1998, Plaintiff was arraigned on the charge of vehicular
manslaughter related to the motor vehicle collision that occurred on August 10, 1998
(id.),
• 	At an unspecified time, Eric Jeshke was appointed to represent Plaintiff on the vehicular
manslaughter charge, but he was not on the assigned counsel capital crime list, which
resulted in the appointment of “co-counsel who was never present” (id. at 14-15),
• 	Before the start of Plaintiff’s vehicular manslaughter trial, Plaintiff was arraigned on two
drug sales (id. at 15),
• 	Plaintiff pleaded guilty to criminally negligent homicide (id.),
• 	At some unspecified time between 2007 and 2014, in Onondaga County, Plaintiff and his
vehicle were searched which resulted in the seizure of twenty-three grams of powder
cocaine and a switch blade knife (id. at 15-16),
• 	On February 1, 2008, Plaintiff was arrested in Oswego County on a felony drug charge
(cocaine) and several misdemeanors (id. at 16),
• 	The charges in Oswego County were dismissed on appeal (id. at 17),
• 	Following an unsuccessful suppression hearing, Plaintiff’s was sentenced to six years
incarceration on his December 2007 drug charges in Onondaga County (id. at 16),
• 	On September 3, 2015, Plaintiff was the passenger in a vehicle that was searched, which
resulted in the seizure of thirteen grams of cocaine. Plaintiff was charged with criminal
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possession of a controlled substance and sentenced to six-years incarceration (Dkt. No.
43 at 17-18).
Based on these factual assertions, Plaintiff appears to assert the following seven causes of
action: (1) a claim of excessive force in violation of the Fourth Amendment and 42 U.S.C. §
1983 against Defendants Tynan, Aloi, Constanza, Bollinger, Brogan, Bieling, Washo, Quku,
Rosello, Potts, Townsend, Summers, and Reynolds based on the incident on September 7, 2022;
(2) a claim of failure to intervene in violation of the Fourth Amendment and 42 U.S.C. § 1983
against Defendants Bollinger, Brogan, Bieling, Washo, Quku, Rosello, Potts, Townsend,
Summers, and Reynolds based on the incident on September 7, 2022; (3) a claim of malicious
prosecution against Defendant Constanza in violation of the Fourth Amendment and 42 U.S.C. §
1983, related to the false statement that she filed in the November 2020 Charges action; (4) a
claim of manipulation against Defendant Constanza in violation of the Fifth, Sixth, and
Fourteenth Amendments and 42 U.S.C §§ 1981, 1983 related to the filing of the November 2020
Charges; (5) a claim of state law excessive force against Defendants Tynan, Aloi, and 1-3 other
unknown Onondaga County Sheriffs Deputies who were present on September 7, 2022; (6) a
claim of breach of contract pursuant to state law against Defendant Habib; and (7) a claim of
legal malpractice pursuant to state law against Defendant Habib. (Dkt. No. 43 at 19-20.) As
relief, Plaintiff seeks compensatory and punitive damages. (Id. at 20-21.)
As set forth in the undersigned’s Report and Recommendation dated June 24, 2025,
although Plaintiff has paid the filing fee (Docket entry dated 3/12/2025), due to his status as a
“prisoner” defined by 28 U.S.C. § 1915A(c), this Court must screen his pleading pursuant to 28
U.S.C. § 1915A(b). (Dkt. No. 32 at 7 [citing Shakur v. Selsky, 391 F.3d 106, 112 (2d Cir. 2004);
28 U.S.C. § 1915A(a)].)
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II. 	LEGAL STANDARDS GOVERNING REVIEW OF THE SECOND AMENDED
COMPLAINT
The undersigned outlined the legal standard governing review of a pleading pursuant to
28 U.S.C. § 1915A(b), in the Report and Recommendation dated June 24, 2025, and will not
repeat that standard here. (Dkt. No. 32 at 7-8.)
III. 	ANALYSIS
A. 	Federal Claims
1. 	Excessive Force Claims Against Defendants Tynan, Aloi, Constanza,
Bollinger, Brogan, Bieling, Washo, Quku, Rosello, Potts, Townsend,
Summers, and Reynolds
“It is well settled in this Circuit that personal involvement of defendants in the alleged
constitutional deprivations is a prerequisite to an award of damages under [Section] 1983.”
Johnson v. Miller, 20-CV-622, 2020 WL 4346896, at *9 (N.D.N.Y. Jul. 29, 2020) (Kahn, J.)
(internal quotation marks and citations omitted). In order to prevail on a section 1983 cause of
action against an individual, a plaintiff must show “a tangible connection between the acts of a
defendant and the injuries suffered.” Bass v. Jackson, 790 F.2d 260, 263 (2d Cir. 1986).
“A police officer is personally involved in the use of excessive force if he ‘directly
participates in an assault, or was present during the assault with reasonable opportunity to
intercede on plaintiff’s behalf yet failed to do so.’” Durr v. Slator, 558 F. Supp. 3d 1, 20
(N.D.N.Y. 2021) (quoting Mcrae v. City of Hudson, No. 14-cv-236, 2015 WL 275867, at *6,
(N.D.N.Y. Jan. 21, 2015) (Hurd, J.)).
A “[g]roup pleading,” or “fail[ure] to differentiate as to which defendant was involved in
the alleged unlawful conduct[,]” is usually insufficient to plausibly suggest a claim upon which
relief may be granted pursuant to 42 U.S.C. § 1983. Arnold v. Town of Camillus, 662 F. Supp.
3d 245, 266 (N.D.N.Y. 2023) (D’Agostino, J.). However, “broadly pleading multiple
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defendants’ involvement may be acceptable if the allegations ‘can be liberally construed as
plausibly alleging that all [the identified defendants] engaged in the alleged [constitutional
violations].’” Witherspoon v. Jones, 24-CV-0296, 2026 WL 1396585, at *5 (N.D.N.Y. May 19,
2026) (D’Agostino, J.) (quoting King-Knight v. New York, 25-CV-0317, 2026 WL 523067, at *7
(N.D.N.Y. Feb. 25, 2026) (Suddaby, J.)). “[A] collective reference to multiple defendants may
satisfy the pleading standard when, given the specific circumstances of the case and drawing all
reasonable inferences in the plaintiff’s favor, there [is] an understandable explanation for why
the [c]omplaint was not more particularized.” Lawrence v. Shattick, 24-CV-0656, 2026 WL
237648, at *5-6 (N.D.N.Y. Jan. 29, 2026) (D’Agostino, J.) (citation and internal quotation marks
omitted) (finding that a pro se plaintiff’s broad reference to multiple defendants was sufficient
because he allegedly experienced hallucinations and fell unconscious during the claimed
constitutional violation); see Gomez-Kadawid v. Lee, 20-CV-1786, 2022 WL 676096, at *6-7
(S.D.N.Y. Feb. 3, 2022) (determining that a pro se plaintiff’s broad allegations of personal
involvement were acceptable because the plaintiff was allegedly anesthetized while the
challenged conduct was taking place), report and recommendation adopted, 2022 WL 558125
(S.D.N.Y. Feb. 24, 2022).
Out of an abundance of caution, mindful of the Second Circuit’s instruction that a pro se
plaintiff's pleadings must be liberally construed, see, e.g., Sealed Plaintiff, 537 F.3d at 191, and
without expressing an opinion as to whether Plaintiff can withstand a properly filed motion to
dismiss or for summary judgment, I recommend that a response be required to Plaintiff’s Fourth
Amendment excessive force claims against Defendants Tynan, Aloi, Constanza, Bollinger,
Brogan, Bieling, Washo, Quku, Rosello, Potts, Townsend, Summers, and Reynolds.
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2. 	Failure to Intervene Claims Against Defendants Tynan, Aloi,
Constanza, Bollinger, Brogan, Bieling, Washo, Quku, Rosello, Potts,
Townsend, Summers, and Reynolds
“[A]ll law enforcement officials have an affirmative duty to intervene to protect the
constitutional rights of citizens from infringement by other law enforcement officers in their
presence.” Anderson v. Branen, 17 F.3d 552, 557 (2d Cir. 1994). Liability for failure to
intervene pursuant to the Fourth Amendment attaches if police “fail to intervene to protect the
constitutional rights of citizens from infringement by other law enforcement officers in their
presence.” Morris v. City of New York, No. 14-CV-1749, 2015 WL 1914906, at *5 (E.D.N.Y.
2015); see Sanabria v. Tezlof, No. 11-CV-6578, 2016 WL 4371750, at *5 (S.D.N.Y. Aug. 12,
2016) (explaining that liability attaches if an officer “observes or has reason to know . . . that a
citizen has been unjustifiably arrested”).
“[W]here plaintiffs have properly alleged at least one constitutional violation, courts
regularly permit such plaintiffs to plead in the alternative as to multiple defendants, finding that
such plaintiffs are entitled to discovery to determine which officers participated directly in the
constitutional violation.” Lalonde v. City of Ogdensburg, 22-CV-0164, 2023 WL 2537626, at
*10 (N.D.N.Y. Mar. 16, 2023) (citing Matthews v. City of New York, 889 F. Supp. 2d 418, 444
(E.D.N.Y. 2012)) (“Because plaintiffs properly allege at least one constitutional violation,
plaintiffs are entitled to discovery to determine which officers participated directly in the alleged
constitutional violation and which officers were present and failed to intervene.”); Durr v. Slator,
558 F. Supp. 3d 1, 26 (N.D.N.Y. 2021) (“Plaintiff does not allege that either Defendant in
particular acted with deliberate indifference by transporting Plaintiff to the Oneida Police Station
rather than the Upstate Emergency Department. As such, Plaintiff is permitted to plead in the
alternative that Defendants Clark and Slator failed to intervene in the alleged constitutional
violation.”).
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Out of an abundance of caution, mindful of the Second Circuit’s instruction that a pro se
plaintiff's pleadings must be liberally construed, see, e.g., Sealed Plaintiff, 537 F.3d at 191, and
without expressing an opinion as to whether Plaintiff can withstand a properly filed motion to
dismiss or for summary judgment, I recommend that a response be required to Plaintiff’s Fourth
Amendment failure to intervene claims against Defendants Tynan, Aloi, Constanza, Bollinger,
Brogan, Bieling, Washo, Quku, Rosello, Potts, Townsend, Summers, and Reynolds
3. 	Malicious Prosecution Claim Against Defendant Constanza2
The elements of a Fourth Amendment malicious prosecution claim under § 1983 are
substantially the same as the elements under New York law. Boyd v. City of New York, 336 F.3d
72, 75 (2d Cir. 2003). To state a malicious prosecution claim under New York law, the plaintiff
must allege facts plausibly showing: (1) the initiation of a criminal proceeding; (2) its
termination favorably to plaintiff; (3) lack of probable cause; and (4) malice. Manganiello v.
City of N.Y., 612 F.3d 149, 161 (2d Cir. 2010). In addition, the Second Circuit requires that a
plaintiff demonstrate there was a “post arraignment seizure,” since a § 1983 malicious
prosecution claim is “grounded ultimately on the Fourth Amendment’s prohibition of
unreasonable seizures.” Swartz v. Insogna, 704 F.3d 105, 112 (2d Cir. 2013); see also
Washington v. Cnty. of Rockland, 373 F.3d 310, 316 (2d Cir. 2004) (“[T]o sustain a § 1983
malicious prosecution claim, there must be a seizure or other perversion of proper legal
2 	The undersigned notes that the statute of limitations for malicious prosecution suits
pursuant to 42 U.S.C. § 1983 begin to run when the prosecution terminates in the plaintiff’s
favor. Harris v. Tioga Cnty., 663 F. Supp. 3d 212, 236 (N.D.N.Y. 2023) (Hurd, J.). The Second
Amended Complaint alleges that the November 2020 Charges were dismissed on February 5,
2025. (Dkt. No. 43 at 12.) Plaintiff commenced this action or about December 27, 2024, and
filed this Second Amended Complaint on November 25, 2025. (Dkt. No. 1 at 20; Dkt. No. 43.)
Hence, Plaintiff’s malicious prosecution claim appears to be timely.
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procedures implicating claimant’s personal liberty and privacy interests under the Fourth
Amendment.”) (internal quotation marks omitted).
Out of an abundance of caution, mindful of the Second Circuit’s instruction that a pro se
plaintiff's pleadings must be liberally construed, see, e.g., Sealed Plaintiff, 537 F.3d at 191, and
without expressing an opinion as to whether Plaintiff can withstand a properly filed motion to
dismiss or for summary judgment, I recommend that a response be required to Plaintiff's Fourth
Amendment malicious prosecution claim against Defendant Constanza.
4. 	Manipulation Claim Against Defendant Constanza Pursuant to 42
U.S.C. § 1981
“To state a claim under Section 1981, ‘a plaintiff must allege facts in support of the
following elements: (1) the plaintiff is a member of a racial minority; (2) an intent to
discriminate on the basis of race by the defendant; and (3) the discrimination concerned one or
more of the activities enumerated in the statute (i.e., make and enforce contracts, sue and be
sued, give evidence, etc.).’” Gaddy v. Waterfront Comm'n, 13-CV-3322, 2014 WL 4739890, at
*5 (S.D.N.Y. Sept. 19, 2014). “Essential to an action under Section 1981 are allegations that the
defendants’ acts were purposefully discriminatory and racially motivated.” Haggood v. Rubin &
Rothman, LLC, 14-CV-0034L, 2014 WL 6473527, at *7 (E.D.N.Y. Nov. 17, 2014) (quoting
Albert v. Carovano, 851 F.2d 561, 571 (2d Cir.1988)).
The Second Amended Complaint does not allege facts plausibly suggesting that
Defendant Constanza (or any other Defendant) took any action against Plaintiff that was
purposefully discriminatory and racially motivated. (See generally Dkt. No. 43.) Indeed, the
Second Amended Complaint does not allege that Plaintiff is a member of a racial minority or
identify his race at all. (Id.) Moreover, Plaintiff fails to allege that he experienced
discrimination concerning an activity enumerated in the statute. (Id.)
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As a result, I recommend that Plaintiff’s claim pursuant to 42 U.S.C. § 1981 be dismissed
for failure to state a claim upon which relief may be granted.
B. 	State Law Claims
1. 	Excessive Force Claims Pursuant to State Law Against Defendants
Tynan, Aloi, and 1-3 other unknown Onondaga County Sheriffs
Although the Second Amended Complaint refers to this claim as an excessive force claim
pursuant to state law, the undersigned liberally construes it as a claim alleging assault and battery
under New York State law.3
“Except for § 1983’s requirement that the tort be committed under color of state law, the
essential elements of excessive force and state law assault and battery are substantially
identical.” Humphrey v. Landers, 344 F. App'x 686, 688 (2d Cir. 2009) (summary order)
(quoting Posr v. Doherty, 944 F.2d 91, 94-95 (2d Cir. 1991)).
Out of an abundance of caution, mindful of the Second Circuit’s instruction that a pro se
plaintiff's pleadings must be liberally construed, see, e.g., Sealed Plaintiff, 537 F.3d at 191, and
without expressing an opinion as to whether Plaintiff can withstand a properly filed motion to
dismiss or for summary judgment, I recommend that a response be required to Plaintiff's assault
and battery claims against Defendants Tynan, Aloi, and 1-3 other unknown Onondaga County
Sheriff’s Deputies.
3 	Although Plaintiff’s assault and battery claims under New York state law appear to be
duplicative of his excessive force claim pursuant to Section 1983, this Court has permitted
assault and battery claims under New York state law to proceed alongside a plaintiff’s Fourth
Amendment excessive force claim based on the same factual circumstances. Funaro v. City of
Glens Falls, 25-CV-0706, 2026 WL 797414, at *9 (N.D.N.Y. Mar. 23, 2026) (Nardacci, J.)
(citing Lalonde v. City of Ogdensburg, 662 F. Supp. 3d 289, 311 (N.D.N.Y. 2023) (Kahn, J.)).
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2. 	Claims Against Defendant Habib4
a. 	Breach of Contract
“To state a claim for breach of contract under New York law, ‘the complaint must allege:
(i) the formation of a contract between the parties; (ii) performance by the plaintiff; (iii) failure
of defendant to perform; and (iv) damages.’” Orlander v. Staples, Inc., 802 F.3d 289, 294 (2d
Cir. 2015). “[A] plaintiff must at the very least identify a contractual provision that the
defendant breached.” La Pecora Bianca Holdings, LLC v. Empowered Hosp. LLC, 19-CV-9655,
2021 WL 1164267, at *2 (S.D.N.Y. Mar. 25, 2021).
Out of an abundance of caution, mindful of the Second Circuit’s instruction that a pro se
plaintiff's pleadings must be liberally construed, see, e.g., Sealed Plaintiff, 537 F.3d at 191, and
without expressing an opinion as to whether Plaintiff can withstand a properly filed motion to
dismiss or for summary judgment, I recommend that a response be required to Plaintiff's breach
of contract claim against Defendant Habib.5
b. 	Legal Malpractice
The elements of a claim of legal malpractice under New York law are: (1) an attorney-
client relationship at the time of the alleged malpractice; (2) attorney negligence; (3) proximate
causation, and (4) actual damage to the client. Kirk v. Heppt, 532 F. Supp. 2d 586, 591
4 	Although Plaintiff does not assert any federal law claims against Defendant Habib, his
assertions regarding Defendant Habib appear to “form part of the same case or controversy under
Article III.” 28 U.S.C. § 1367(a). As a result, I recommend that the Court in its discretion, elect
to exercise pendent jurisdiction over these supplemental claims against Defendant Habib. See
Smith v. Ruszkowski, 24-CV-0828, 2025 WL 1462767, at *2 (N.D.N.Y. May 22, 2025)
(Nardacci, J.) (finding a common law battery claim against one defendant and electing to
exercise pendant jurisdiction over the supplemental claim).
5 	Under New York law, a breach of contract claim is governed by a six-year statute of
limitations, N.Y. C.P.L.R. § 213(2), and “accrues at the time of the breach.” Ely-Cruikshank Co.
v. Bank of Montreal, 81 N.Y.2d 399, 402 (1993).
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(S.D.N.Y. 2008) (Sweet, D.J.) (citations omitted); see also O'Callaghan v. Brunelle, 84 A.D.3d
581, 582 (N.Y. App. Div. 1st Dep’t 2011); Parola, Gross & Marino, P.C. v. Susskind, 43 A.D.3d
1020, 1022 (N.Y. App. Div. 2d Dep’t 2007). An attorney is negligent if he or she fails to
exercise that degree of care, skill and diligence commonly possessed and exercised by ordinary
members of the legal community. Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 N.Y.3d
438, 442 (2007).
Out of an abundance of caution, mindful of the Second Circuit’s instruction that a pro se
plaintiff's pleadings must be liberally construed, see, e.g., Sealed Plaintiff, 537 F.3d at 191, and
without expressing an opinion as to whether Plaintiff can withstand a properly filed motion to
dismiss or for summary judgment, I recommend that a response be required to Plaintiff's legal
malpractice claim against Defendant Habib.6
C. 	Claims Against Defendant Onondaga County
The Second Amended Complaint appears to include Defendant Onondaga County as a
party to this action. (Dkt. No. 43 at 1.) Notwithstanding, Plaintiff does not appear to assert any
claims against Defendant Onondaga County. (Dkt. No. 43 at 19-20.) As a result, I recommend
6 	A cause of action for legal malpractice must be brought within three years from the time
of accrual. Campbell v. L. Off. of Solomon Rosengarten, 238 N.Y.S.3d 679, 680, 241 A.D.3d
771 (N.Y. App. Div. 2025) (citing N.Y. C.P.L.R. §§ 203(a), 214(6)). Nonetheless, New York
recognizes the continuing representation doctrine, which “‘recognizes that a person seeking
professional assistance has a right to repose confidence in the professional’s ability and good
faith and realistically cannot be expected to question and assess the techniques employed or
manner in which the services are rendered.’” Shumsky v. Eisenstein, 750 N.E.2d 67, 70 (N.Y.
2001) (quoting Greene v. Greene, 436 N.E.2d 496, 500 (N.Y. 1982)). “In such cases, the three-
year statute of limitations will not begin to run until the representation ends.” MIG, Inc. v. Paul,
Weiss, Rifkind, Wharton & Garrison, L.L.P., 701 F. Supp. 2d 518, 525 (S.D.N.Y. 2010) (citing
Glamm v. Allen, 439 N.E.2d 390, 393 (N.Y. 1982)). Plaintiff alleges that he was informed on
October 13, 2022, that Defendant Habib no longer represented him with respect to the November
2020 Charges. (Dkt. No. 43 at 11.) Hence, Plaintiff’s legal malpractice claims, appear to be
arguably timely.
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that any claims against Defendant Onondaga County be dismissed for failure to state a claim
upon which relief may be granted.
Moreover, as set forth in the undersigned’s Report and Recommendation dated June 24,
2025, to hold a municipality liable under § 1983, a plaintiff must allege sufficient facts to show
that the municipality’s conduct “amounted to a custom or policy of the municipality.” (Dkt. No.
32 at 14 (citing Gray v. GC Servs./Apple, 20-CV-0714, 2020 WL 6729413, *5 (N.D.N.Y. Jul. 9,
2020) (Baxter, M.J.)). The Second Amended Complaint fails to allege facts plausibly suggesting
that Defendant Onondaga County violated Plaintiff’s constitutional rights pursuant to a custom
or policy. As a result, I recommend that, in the alternative, Plaintiff’s claims against Defendant
Onondaga County be dismissed for failure to state a claim upon which relief may be granted.
D. 	Claims Against Defendants Fitzpatrick and Newton
The Second Amended Complaint appears to include Defendants Fitzpatrick and Newton
as parties to this action. (Dkt. No. 43 at 1-2.) Notwithstanding, Defendants Fitzpatrick and
Newton are not otherwise referenced anywhere in the body of the Second Amended Complaint,
and the pleading lacks factual allegations sufficient to allege that these individuals were
personally involved in conduct that violated Plaintiff’s constitutional rights. Accordingly, I
recommend that Plaintiff’s claims against Defendants Fitzpatrick and Newton be dismissed. See
Cipriani v. Buffardi, 06-CV-0889, 2007 WL 607341, *1 (N.D.N.Y. Feb. 20, 2007) (“Dismissal is
appropriate where a defendant is listed in the caption, but the body of the complaint fails to
indicate what the defendant did to the plaintiff.”) (citation omitted); see also Casino v. Rohl, 14-
CV-2175, 2014 WL 5425501, at *6 (E.D.N.Y. Oct. 23, 2014) (dismissing complaint since the
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16
plaintiff had not adequately pled the defendant’s personal involvement in any of the
constitutional deprivations alleged in the amended complaint).7
IV. 	OPPORTUNITY TO AMEND
Generally, a court should not dismiss claims contained in a complaint filed by a pro se
litigant without granting leave to amend at least once “when a liberal reading of the complaint
gives any indication that a valid claim might be stated.” Branum v. Clark, 927 F.2d 698, 704-05
(2d Cir. 1991); see also Fed. R. Civ. P. 15(a)(2) (“The court should freely give leave when
justice so requires.”). An opportunity to amend is not required, however, where “the problem
with [the plaintiff's] causes of action is substantive” such that “better pleading will not cure it.”
Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000); see also Cortec Indus. Inc. v. Sum Holding
L.P., 949 F.2d 42, 48 (2d Cir. 1991) (“Of course, where a plaintiff is unable to allege any fact
sufficient to support its claim, a complaint should be dismissed with prejudice.”). Stated
differently, “[w]here it appears that granting leave to amend is unlikely to be productive, . . . it is
not an abuse of discretion to deny leave to amend.” Ruffolo v. Oppenheimer & Co., 987 F.2d
129, 131 (2d Cir. 1993); accord, Brown v. Peters, 95-CV-1641, 1997 WL 599355, at *1
(N.D.N.Y. Sept. 22, 1997) (Pooler, J.).8
In this instance, I conclude that any further amendments to Plaintiff’s Second Amended
Complaint would be futile. Plaintiff has already amended his pleading twice. (Compare Dkt. No.
7 	In addition, as set forth in undersigned’s Report and Recommendation, “[p]rosecutors
sued under § 1983 enjoy absolute immunity ‘from claims for damages arising out of
prosecutorial duties that are intimately associated with the judicial phase of the criminal
process.’” Joyner v. Cnty. of Cayuga, 20-CV-0060, 2020 WL 1904088, at *9 (N.D.N.Y. Apr.
17, 2020) (D’Agostino, J.) (quoting Doe v. Phillips, 81 F.3d 1204, 1209 (2d Cir. 1996)). Hence,
any claims against Defendants Fitzpatrick and Newton are likely also barred pursuant to the
doctrine of prosecutorial immunity.
8 	See also Carris v. First Student, Inc., 132 F. Supp. 3d 321, 340-41 n.1 (N.D.N.Y. 2015)
(Suddaby, C.J.) (explaining that the standard set forth in Gomez v. USAA Fed. Sav. Bank, 171
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17
1, and Dkt. No. 26, with Dkt. No. 43.) Any additional amendments to Plaintiff’s Second
Amended Complaint are not likely to be productive. See Official Comm. of Unsecured Creditors
of Color Tile, Inc. v. Coopers & Lybrand, LLP, 322 F.3d 147, 168 (2d Cir. 2003) (quoting
Dluhos v. Floating & Abandoned Vessel, Known as “New York,” 162 F.3d 63, 69 (2d Cir. 1998))
(finding that the “District Court did not abuse its discretion in denying [the plaintiff] leave to
amend the complaint because there was a ‘repeated failure to cure deficiencies by amendments
previously allowed.’ ”); Salinger v. Projectavision, Inc., 972 F. Supp. 222, 236 (S.D.N.Y. 1997)
(“Three bites at the apple is enough.”).
ACCORDINGLY, it is respectfully
RECOMMENDED that Plaintiff’s Second Amended Complaint (Dkt. No. 43) be (1)
ACCEPTED for filing to the extent that it asserts the following six claims: (a) excessive force
claims pursuant to the Fourth Amendment and 42 U.S.C. § 1983 against Defendants Tynan,
Aloi, Constanza, Bollinger, Brogan, Bieling, Washo, Quku, Rosello, Potts, Townsend, Summers,
and Reynolds related to the incident on September 7, 2022; (b) failure to intervene claims
pursuant to the Fourth Amendment and 42 U.S.C. § 1983 against Defendants Tynan, Aloi,
Constanza, Bollinger, Brogan, Bieling, Washo, Quku, Rosello, Potts, Townsend, Summers, and
Reynolds related to the incident on September 7, 2022; (c) a malicious prosecution claim
pursuant to the Fourth Amendment and 42 U.S.C. § 1983 against Defendant Constanza related to
filing a false instrument in the November 2020 Charges case; (d) assault and battery claims
pursuant to state law against Defendants Tynan, Aloi, and 1-3 other unknown Onondaga County
F.3d 794, 796 (2d Cir. 1999)—that the Court should grant leave to amend “unless the court can
rule out any possibility, however unlikely it might be, that an amended complaint would be
successful in stating a claim”—is likely not an accurate recitation of the governing law after Bell
Atl. Corp. v. Twombly, 550 U.S. 544 (2007)), rev’d on other grounds, 682 F. App’x 30.
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18
Sheriffs; (e) a breach of contract claim against Defendant Habib; and (f) a legal malpractice
claim against Defendant Habib; and (2) DISMISSED without leave to amend to the extent that
it asserts the following claims: (a) a manipulation claim pursuant to 42 U.S.C. § 1981 against
Defendant Constanza; (b) claims against Defendant Onondaga County; and (c) claims against
Defendants Fitzpatrick and Newton; and it is further
ORDERED that the Clerk of the Court shall file a copy of this report and
recommendation on the docket of this case and serve a copy upon the parties in accordance with
the local rules.9
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen days within
which to file written objections to the foregoing report.10 Such objections shall be filed with the
Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN
DAYS WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1) (Supp. 2013);
Fed. R. Civ. P. 6(a), 6(d), 72; Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v.
Sec’y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)).
Dated: June __, 2026
Binghamton, New York
9 	The Clerk shall also provide Plaintiff with copies of all unreported decisions cited herein
in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
10 	If you are proceeding pro se and served with this report, recommendation, and order by
mail, three additional days will be added to the fourteen-day period, meaning that you have
seventeen days from the date that the report, recommendation, and order was mailed to you to
serve and file objections. Fed. R. Civ. P. 6(d). If the last day of that prescribed period falls on a
Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day
that is not a Saturday, Sunday, or legal holiday. Fed. R. Civ. P. 6(a)(1)(C).
11
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Brown v. Peters, Not Reported in F.Supp. (1997)
WESTLAW © 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
1997 WL 599355
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Kenneth BROWN, Plaintiff,
v.
Andrew PETERS, Warden, Watertown Correctional
Facility; Joseph Williams, Warden, Lincoln Work–
Release Center; Francis J. Herman, Senior Parole
Officer Interstate Bureau; T. Stanford, Senior Parole
Officer; Deborah Stewart, Parole Officer; John Doe #
1, Parole Agent, Watertown Correctional Facility; John
Doe # 2, Parole Agent, Lincoln Work Release Center;
Susan Bishop, Director of Interstate Compact, South
Carolina; Cecil Magee, Parole Officer, South Carolina;
Frank Barton, Parole Officer, South Carolina; John
McMahan, Parole Officer, South Carolina, Defendants.
No. Civ.A. 95CV1641RSPDS.
|
Sept. 22, 1997.
Attorneys and Law Firms
Kenneth Brown, State Court Institute–Greene, Waynesburg,
PA, plaintiff, pro se.
Dennis C. Vacco, New York State Attorney General, The
Capitol Albany, NY, for defendants Peters, Herman Stewart,
Doe # 1, Doe # 2, and Williams, Jeffrey M. Dvorin, Assistant
Attorney General, Carl N. Lundberg, Chief Legal Counsel,
South Carolina Department of Probation, Columbia, SC, for
defendants Bishop, Magee, Barton, McMahan, and Stanford,
Carl N. Lundberg, of Counsel.
DECISION AND ORDER
POOLER, J.
*1 The above matter comes to me following a Report–
Recommendation by Magistrate Judge Daniel Scanlon, Jr.,
duly filed on April 17, 1997. Following ten days from the
service thereof, the Clerk has sent me the entire file, including
any and all objections filed by the parties herein.
Plaintiff Kenneth Brown commenced this Section 1983 civil
rights action on November 17, 1995. On February 12,
1996, Magistrate Judge Scanlon ordered Brown to submit an
amended complaint alleging the specific acts committed by
the individuals named as defendants which Brown claimed
violated his constitutional rights. Brown filed an amended
complaint on March 21, 1996. In his amended complaint,
Brown alleged that defendants violated his rights under the
Eighth and Fourteenth Amendments by failing to process
properly his interstate compact paperwork, resulting in Brown
being imprisoned pursuant to a parole hold when in fact
he had never violated the conditions of his parole. For a
more complete statement of Brown's claims, see his amended
complaint. Dkt. No. 5.
On August 5, 1996, defendants Peters and Williams made
a motion to dismiss for failure to state a claim pursuant to
Fed.R.Civ.P. 12(b)(6). Dkt. No. 13; Dkt. No. 14, at 2. On
August 19, 1996, defendants Bishop, Magee, Barton, and
McMahan made a motion to dismiss the complaint against
them or, in the alternative, for summary judgment. Dkt. No.
20. On October 17, 1996, defendants Herman, Stewart, and
Stanford made a motion to dismiss for failure to state a
claim. Dkt. No 34. On April 17, 1996, Magistrate Judge
Scanlon recommended that all defendants' motions to dismiss
be granted and that the complaint be dismissed. Dkt. No. 50.
On June 9, 1997, Brown filed objections to the
magistrate judge's report-recommendation, having been
granted additional time in which to do so. Dkt. No. 52. In
addition, Brown filed on June 9, 1997, a motion for leave to
file a second amended complaint and a copy of his proposed
amended complaint. Dkt. No. 53. I turn first to the last motion
filed, Brown's motion for leave to amend his complaint a
second time.
Brown seeks to file a second amended complaint “setting
forth in detail the personal involvement of each defendant
and how their acts of commission and omission served to
deprive plaintiff of Constitutionally secured rights.” Dkt. No.
53. The district court has discretion whether to grant leave
to amend. Ruffolo v. Oppenheimer & Co., 987 F.2d 129,
131 (2d Cir.1993). In exercising that discretion, the court
should freely grant leave to amend when justice so requires.
Fed.R.Civ.P. 15(a). However, the court need not grant leave
to amend where it appears that amendment would prove to be
unproductive or futile. Ruffolo, 987 F.2d at 131.
Here, Brown moved to amend his complaint to add additional
allegations against the named defendants. However, the
additional allegations fail to cure the deficiency which
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Brown v. Peters, Not Reported in F.Supp. (1997)
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forms the basis of defendants' motion to dismiss—
the absence of defendants' personal involvement in a
constitutional deprivation. Section 1983 imposes liability
upon an individual only when personal involvement of that
individual subjects a person to deprivation of a federal right.
See Monell v. Dep't of Soc. Servs., 436 U.S. 658, 98 S.Ct.
2018, 56 L.Ed.2d 611 (1978). A complaint is fatally defective
if it fails to allege personal involvement sufficient to establish
that a supervisor was “directly and personally responsible for
the purported unlawful conduct.” Alfaro Motors, Inc. v. Ward,
814 F.2d 883, 886 (2d Cir.1987).
*2 Brown's proposed amended complaint alleges in
conclusory fashion that defendants acted “in a grossly
negligent and concerted manner which breached their duties
owed to Plaintiff and is the proximate cause of [the violation
of plaintiff's constitutional rights].” Proposed Am. Compl.,
at 3. Brown continues in the same vein, stating that
defendants owed duties to plaintiff to carry out their jobs in a
professional manner and they failed to carry out those duties
appropriately. The complaint states that defendants held
specific responsibilities, such as checking for outstanding
warrants, which if performed properly should have alerted
them to a problem. However, nowhere does the complaint
set forth allegations that these defendants either participated
directly in any constitutional infraction or that they were even
aware of such an infraction. The proposed amended complaint
merely alleges that these defendants failed in performing their
supervisory and ministerial functions. “These bare assertions
do not state a claim under 42 U.S.C. § 1983.” Smiley v. Davis,
1988 WL 78306, *2 (S.D.N.Y.).
This plaintiff previously has had the opportunity to amend his
complaint for the same reason asserted here, to allege personal
involvement on the part of defendants. Brown's first amended
complaint failed to accomplish that task, and it appears that
even if allowed to amend again Brown would be unable to
make the requisite allegations with sufficient specificity to
sustain his complaint. Consequently, I find that amendment
would be futile, and I deny Brown's motion for leave to amend
his complaint.
I turn now to the magistrate judge's report-recommendation
and defendants' motions. The magistrate judge recommends
that I grant defendants' motions and dismiss the complaint
as to all defendants. The report-recommendation clearly
describes the grounds on which the magistrate judge
recommends dismissal as to each defendant. Fed.R.Civ.P.
72(b) requires the district judge to make a de novo
determination on “any portion of the magistrate's disposition
to which specific, written objection has been made.” Brown's
objections fail to address directly any of the analysis.
Brown's objections state (1) that he has been deprived of
his constitutional rights; (2) that he has stated a cause of
action; (3) that the court wrongly refused to appoint an
attorney for him and wrongly stayed discovery pending the
outcome of these motions; (4) that he seeks to file an amended
complaint; (5) the standard of review for a Fed.R.Civ.P. 12(b)
(6) motion; (6) that he disagrees with the magistrate judge's
recommendation to grant defendants' motions because the
allegations in his complaint, which he repeats, show that his
rights were violated; and (7) the text of the Fourteenth and
Eighth Amendments.
Even affording the objections the liberal reading required
for pro se pleadings, I find that these objections fail to
state any basis whatsoever, much less a specific one, for
the court not to adopt the magistrate judge's rulings. They
simply re-state the relief sought and the facts on which Brown
grounds his complaint and conclude that the magistrate
judge's conclusions are wrong. When the parties make only
frivolous, conclusive, or general objections, the court reviews
the report-recommendation for clear error. See Camardo v.
General Motors Hourly–Rate Employees Pension Plan, 806
F.Supp. 380, 382 (W.D.N.Y.1992) (court need not consider
objections which are frivolous, conclusive, or general and
constitute a rehashing of the same arguments and positions
taken in original pleadings); Chambrier v. Leonardo, 1991
WL 44838, *1 (S.D.N.Y.) (restatement of allegations already
before the court and assertion that valid constitutional claim
exists insufficient to form specific objections); Schoolfield
v. Dep't of Correction, 1994 WL 119740, *2 (S.D.N.Y.)
(objections stating that magistrate judge's decisions are
wrong and unjust, and restating relief sought and facts
upon which complaint grounded, are conclusory and do not
form specific basis for not adopting report-recommendation);
Vargas v. Keane, 1994 WL 693885, *1 (S.D.N.Y.) (general
objection that report does not address violation of petitioner's
constitutional rights is a general plea that report not be
adopted and cannot be treated as objection within the meaning
of 28 U.S.C. § 636), aff'd, 86 F.3d 1273 (2d Cir.), cert.
denied, 519 U.S. 895, 117 S.Ct. 240, 136 L.Ed.2d 169
(U.S.1996). See also Scipio v. Keane, 1997 WL 375601, *1
(1997) (when objections fail to address analysis directly, court
reviews report-recommendation for clear error); Fed.R.Civ.P.
72(b), Advisory Comm. Note (when no specific, written
objections filed, “court need only satisfy itself that there is
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no clear error on the face of the record in order to accept the
recommendation”).
*3 Because Brown fails to make specific objections or
provide any basis for his general objections, I review the
report-recommendation for clear error. After careful review,
I conclude that the magistrate judge's report-recommendation
is well-reasoned and is not clearly erroneous. 1 The
magistrate judge employed the proper standard, accurately
recited the facts, and reasonably applied the law to those facts.
Consequently, I adopt the report-recommendation.
CONCLUSION
Because plaintiff's proposed amendment demonstrates that
amendment would be futile, I deny plaintiff's motion for leave
to amend his complaint. I approve the magistrate judge's
recommendation and grant defendants' motions to dismiss.
Plaintiff's complaint is dismissed in its entirety.
IT IS SO ORDERED.
ORDER and REPORT–RECOMMENDATION
This matter was referred to the undersigned for report and
recommendation by the Hon. Rosemary S. Pooler, United
States District Judge, by Standing Order dated November
12, 1986. Currently before this Court are a number of
motions. Defendants Peters and Williams have filed a motion
to dismiss (dkt.13); defendants Bishop, Magee, Barton and
McMahan have filed a motion for summary judgment, or in
the alternative to dismiss (dkt.20); and defendants Herman,
Stewart and Stanford also have filed a motion to dismiss
(dkt.34). Plaintiff opposes these three motions (dkts.27, 29,
33, 38). Defendants Bishop, Magee and McMahan have filed
a motion to stay discovery (dkt.41) and plaintiff has filed a
motion to extend time (dkt.44) in which to file opposition to
the latter motion for a stay of discovery.
The Court addresses these issues seriatim.
BACKGROUND
Plaintiff's amended complaint, which he has brought pursuant
to 42 U.S.C. § 1983, alleges the following facts. In
October, 1991, plaintiff was incarcerated in the Watertown
Correctional Facility in Watertown, New York. He applied
for an interstate compact because he wanted to return to
South Carolina to live with his common law wife, Pamela
Reid. During the application process, he was interviewed by
the facility's parole officer, identified only as defendant John
Doe # 1. After signing the necessary papers, his application
was forwarded to defendant Andrew Peters, the facility's
superintendent, who reviewed, signed and forwarded the
papers to the Interstate Bureau. Amend. Compl. at ¶¶ 1–2;
Exs. A, B.
On or about January 15, 1992, while his compact was waiting
for review at the Interstate Bureau, plaintiff was approved for
work release and sent to the Lincoln Work Release Center
in New York City. While at the center, plaintiff spoke to a
parole officer, defendant John Doe # 2, and told him that
he was seeking a compact that would return him to South
Carolina upon his conditional release. Plaintiff claims the
parole officer told him that he would handle the necessary
paperwork, although the officer had had no experience with
an interstate compact. Amend. Compl. at ¶¶ 3, 4.
*4 Plaintiff, meanwhile, asked Reid whether any officials
had contacted her in South Carolina regarding his prospective
residence in that state. Upon discovering no one had contacted
her, plaintiff asked a lawyer he knew, Navron Ponds, to
inquire as to his compact status. In March, 1992, the
lawyer spoke with defendant Susan Bishop, who is the
director of the interstate compact program in South Carolina.
Bishop allegedly told Ponds that plaintiff “was disapproved
because there was a discrepancy about approving plaintiff['s]
compact.” The “discrepancy” was the fact that plaintiff owed
the state of South Carolina eighty-six days of confinement
from a previous sentence. Plaintiff claims Bishop told Ponds
to contact defendants Cecil Magee and Frank Barton, who
worked for the South Carolina Parole Department. Sometime
in March, 1992, Ponds made some calls to Barton and Magee.
A verbal agreement was reached, and plaintiff, upon speaking
with Barton and Magee was told that his compact had been
approved. He also was told that he should report to the South
Carolina Department of Parole upon being released. Amend.
Compl. at ¶¶ 5–7.
Prior to leaving the Lincoln Work Release Center, plaintiff
processed paperwork related to his interstate compact. His
paperwork was sent by Doe # 2 to defendant Joseph Williams,
the superintendent of the center. Williams reviewed, signed
and returned the paperwork to plaintiff. On May 1, 1992,
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upon his release from the center, plaintiff traveled to South
Carolina. Three days later, he entered a South Carolina parole
office and promptly was arrested because of the eighty-
six days of confinement that he owed the state. Plaintiff's
paperwork was given to defendant John McMahan, a parole
officer. Plaintiff claims that McMahan never returned this
paperwork to him. On May 20, 1992, the state of South
Carolina revoked plaintiff's parole and plaintiff was returned
to prison to serve the eighty-six days that he owed. When he
asked McMahan what would happen to his one year of parole
from New York, the officer allegedly told him that his New
York parole would run concurrently with his South Carolina
parole, and that when he finished his South Carolina parole,
he would not owe any parole whatsoever. Plaintiff served the
eighty-six days he owed and was released on July 31, 1992.
Amend. Compl. at ¶¶ 8–10.
In February, 1993, plaintiff was arrested on robbery charges
in South Carolina. The charges ultimately were dropped,
but he apparently encountered some difficulties regarding
this arrest as a result of a parole hold that New York state
had placed upon him. Bishop's office told him that it had
nothing to do with his parole hold and that any problem that
he had was between him and the state of New York. He
talked to authorities in Albany, New York regarding the parole
hold, but was not successful in his efforts to have the hold
removed. On September 30, 1993, after had been extradited
to New York as a fugitive from justice, plaintiff was given a
preliminary hearing at Riker's Island, New York. The hearing
officer found no probable cause that plaintiff had violated any
condition of parole. He was released. Amend. Compl. at ¶¶
11–14; Exs. C–J.
*5 Plaintiff claims that he would not have suffered hardships
if his interstate compact had been handled correctly. He
alleges that defendant Deborah Stewart failed to follow up
and see whether plaintiff had arrived in South Carolina. If she
had, he argues, she would have discovered that he had been
arrested upon his arrival. He alleges that defendant Francis
Herman, a parole officer at the Interstate Bureau failed to
do his job by not investigating plaintiff's violation reports.
Amend. Compl. at ¶¶ 15–17; Exs. F–I.
Plaintiff asserts that the foregoing amounts violations of his
Eighth and Fourteenth Amendment rights, wherefore he both
compensatory and declaratory relief.
DISCUSSION
A. Motion to Dismiss by Williams and Peters.
Williams and Peters have filed a motion to dismiss plaintiff's
complaint pursuant to FED.R.CIV.P. 12(b)(6) on the grounds
that it fails to state a claim upon which relief may be
granted. In a Rule 12(b)(6) motion, all factual allegations
in the complaint must be taken and construed in plaintiff's
favor. See LaBounty v. Adler, 933 F.2d 121, 122 (2d
Cir.1991) (citing Ortiz v. Cornette, 867 F.2d 146, 149 (1989)).
The Court's role is not to assess whether plaintiffs have
raised questions of fact or demonstrated an entitlement
to a judgment as a matter of law, as in a motion made
pursuant to FED.R.CIV.P. 56 for summary judgment, but
rather to determine whether plaintiff's complaint sufficiently
alleges all of the necessary legal elements to state a claim
under the law. See Christopher v. Laidlaw Transit, Inc.
899 F.Supp. 1224, 1226 (S.D.N.Y.1995), (citing Ricciuti v.
New York City Transit Authority, 941 F.2d 119, 124 (2d
Cir.1991)). Factual allegations in brief or memoranda may not
be considered. Fonte v. Board of Managers of Continental
Towers Condominium, 848 F.2d 24, 25 (2d Cir.1988). The
Court now turns to the issues presented.
Personal involvement of defendants in alleged constitutional
deprivations is a prerequisite to an award of damages under
§ 1983. Wright v. Smith, 21 F.3d 496, 501 (2d Cir.1994).
As superintendents at New York State Correctional facilities,
Williams and Peter may be found personally involved in the
alleged deprivation of plaintiff's constitutionally protected
rights by a showing that they: (1) directly participated in the
infraction; (2) knew of the infraction, but failed to remedy
the wrong; (3) created or continued a policy or custom under
which unconstitutional practices occurred; or (4) were grossly
negligent in managing subordinates who caused unlawful
conditions or events. Id., (quoting Williams v. Smith, 781
F.2d 319, 323–24 (2d Cir.1986)). Supervisory liability also
may be imposed against Williams or Peters with a showing
of gross negligence or deliberate indifference to plaintiff's
constitutional rights. Id. Absent some personal involvement
by Williams or Peters in the allegedly constitutionally infirm
conduct of their subordinates, neither can be held liable under
§ 1983. Gill v. Mooney, 824 F.2d 192, 196 (2d Cir.1987).
*6 Plaintiff has not provided any evidence linking either
Williams or Peters to his alleged constitutional deprivations.
All that plaintiff has alleged is that Williams and Peters,
as superintendents, have reviewed and signed paperwork
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relating to plaintiff's compact. Though it has long been held
that pro se complaints are held to “less stringent standards
than formal pleadings drafted by lawyers” for the purpose of a
motion to dismiss under Rule 12(b)(6), Haines v. Kerner, 404
U.S. 519, 520, 92 S.Ct. 594, 595–96, 30 L.Ed.2d 652 (1972),
plaintiff has not explained how the ministerial conduct of
these two defendants was violative of the Constitution. Their
motion to dimiss should be granted.
B. Motion for Summary Judgment or to Dismiss by Bishop,
Magee, Barton and McMahan.
Bishop, Magee, Barton and McMahan have filed a motion
for summary judgment, or in the alternative a motion to
dismiss. The Court will treat their motion as a motion to
dismiss. “[C]omplaints relying on the civil rights statutes are
insufficient unless they contain some specific allegations of
fact indicating a deprivation of rights, instead of a litany
of general conclusions that shock but have no meaning.”
Barr v. Adams, 810 F.2d 358, 363 (2d Cir.1987). Plaintiff
has not alleged specifically how the conduct of these four
defendants infringed upon his constitutional rights. In his
amended complaint, he contends that defendants violated the
Constitution by “continuously breaching [[[their] duty” to
him. This language underscores the defect with the complaint:
if it alleges anything at all, it alleges that defendants were
negligent in handling plaintiff's interstate compact and parole.
To state a cognizable § 1983 claim, the prisoner must allege
actions or omissions sufficient to demonstrate deliberate
indifference; mere negligence will not suffice. Hayes v.
New York City Dept. of Corrections, 84 F.3d 614, 620 (2d
Cir.1996); Morales v. New York State Dep't of Corrections,
842 F.2d 27, 30 (2d Cir.1988) (section 1983 does not
encompass a cause of action sounding in negligence).
The Court finds that the claims against Bishop, Magee, Barton
and McMahan should be dismissed.
C. Motion to Dismiss by Herman, Stewart and Stanford.
Plaintiff's claim against Stewart is that she failed to follow
up and see whether plaintiff had arrived in South Carolina.
Herman, he likewise asserts, failed to do his job because he
did not investigate plaintiff's violation reports. Plaintiff has
not alleged how these actions run afoul of the Constitution;
and again, these claims seem to be grounded in negligence,
which is not actionable under § 1983. Hayes, 84 F.3d at 620.
Plaintiff's claim against Stanford must fail because his
complaint literally fails to state a claim against that
defendant. Aside from naming Stanford as a defendant, and
alleging that he was the appointed Senior Parole Officer at
plaintiff's September 30, 1993 revocation hearing at Riker's
Island, plaintiff does not detail how Stanford violated his
constitutional rights. Absent some personal involvement by
Stanford in the allegedly constitutionally infirm conduct of
his subordinates, he cannot be held liable under § 1983. Gill,
824 F.2d at 196.
*7 Accordingly, the Court finds that Stanford, Stewart and
Herman's motion to dismiss should be granted.
D. Plaintiff's “John Doe” Claims.
In so far as neither John Doe # 1 nor John Doe # 2 have been
identified and served in this matter, the Court does not have
jurisdiction over these parties and does not reach the merits
of plaintiff's claims against them.
E. Discovery Motions.
Defendants Bishop, Magee and McMahan have filed a motion
to stay discovery until the Court has made a ruling on their
motion to dismiss. Plaintiff has filed a motion to extend
the time in which he may file opposition to defendants'
motion. Plaintiff, however, has filed his opposing response
(dkt.47), therefore his instant discovery motion is denied as
moot. In that the Court recommends granting defendants'
motion to dismiss, discovery in this matter would be fruitless.
Accordingly, defendants' motion for a stay of discovery
pending the resolution of their motion to dismiss is granted.
CONCLUSION
WHEREFORE, based upon the foregoing analysis, it is
hereby
ORDERED, that plaintiff's motion to extend the time to file
an opposing reply (dkt.44) is denied as moot; and it is further
ORDERED, that defendants Bishop, Magee and McMahan's
motion to stay discovery until their motion to dismiss is
decided (dkt.41) is granted; and it is further
RECOMMENDED, that defendants Peters and Williams'
motion to dismiss (dkt.13) be granted; and it is further
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Brown v. Peters, Not Reported in F.Supp. (1997)
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RECOMMENDED, that defendants Bishop, Magee, Barton
and McMahan's motion to dismiss (dkt.20) be granted; and it
is further
RECOMMENDED, that defendants Herman, Stewart and
Stanford's motion to dismiss (dkt.34) be granted.
Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c),
the parties have ten (10) days within which to file written
objections to the foregoing report. Such objections shall be
filed with the Clerk of the Court. FAILURE TO OBJECT
TO THIS REPORT WITHIN TEN (10) DAYS WILL
PRECLUDE APPELLATE REVIEW. Roldan v. Racette,
984 F.2d 85, 89 (2d Cir.1993) (citing Small v. Secretary of
Health and Human Services, 892 F.2d 15 (2d Cir.1989)); 28
U.S.C. § 636(b)(1); FED.R.CIV.P. 6(a), 6(e) and 72.
All Citations
Not Reported in F.Supp., 1997 WL 599355
Footnotes
1 I note, however, that the report-recommendation would survive even de novo review.
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Casino v. Rohl, Not Reported in F.Supp.3d (2014)
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2014 WL 5425501
Only the Westlaw citation is currently available.
United States District Court,
E.D. New York.
Eileen CASINO, Plaintiff,
v.
“ ‘Mr R. ROHL’ or ‘John Doe’ Owner/Administrator
of Woodhaven Nursing Home,” Defendant.
No. 14–CV–2175 (SJF)(GRB).
|
Signed Oct. 23, 2014.
Attorneys and Law Firms
Eileen Casino, South Haven, NY, pro se.
ORDER
FEUERSTEIN, District Judge.
*1 On April 3, 2014, pro se plaintiff Eileen Casino
(“plaintiff”) 1 filed a fourth in forma pauperis complaint
pursuant to 42 U.S.C. § 1983 (“Section 1983”) challenging
the quality of care Donato J. Casino allegedly received
at, inter alia, Woodhaven Nursing Home (“Woodhaven”), 2
accompanied by an application to proceed in forma pauperis.
On May 30, 2014, plaintiff filed an amended complaint
pursuant to Section 1983 against ‘ “MR. R. ROHL’ or
‘JOHN DOE’ Owner/Administrator of Woodhaven Nursing
Home” (“defendant”).
Since plaintiff's financial status, as set forth in her declaration
in support of her application to proceed in forma pauperis,
qualifies her to commence this action without prepayment of
the filing fees, see 28 U.S.C. § 1915(a)(1), her application
to proceed in forma pauperis is granted. However, for the
reasons set forth below, the amended complaint is sua sponte
dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for failure
to state a claim for relief.
I. Background
A. Prior Litigation
1. The First Casino Action
On September 11, 2013, plaintiff filed in this Court, inter
alia, a complaint pursuant to Section 1983 against Brian
Cassidy (“Cassidy”) and “Mr, Rohl, as owner/admin,” 3
among others, alleging violations of Mr. Casino's civil rights
relating to his treatment and care in an unidentified nursing
home and to court proceedings in which Cassidy acted as his
law guardian, which was assigned docket number 13–CV–
5095 (“the first action”). By Order dated November 8, 2013,
inter alia: (1) plaintiff's claims in the first action were sua
sponte dismissed with prejudice pursuant to 28 U.S.C. §§
1915(e)(2)(B)(ii) for lack of standing and failure to state a
claim for relief; and (2) Mr. Casino's claims in the first action
were sua sponte dismissed without prejudice on the basis that
plaintiff, who is not an attorney, could not assert pro se claims
on his behalf.
2. The Second Complaint
On October 28, 2013, plaintiff filed another complaint in
this court pursuant to Section 1983 against “Stonybrook
[sic] University Medical Center” (“Stony Brook”), Cassidy
and Woodhaven alleging, inter alia, that those defendants
were “not always acting in the best interest of [Mr.] Casino
or his family or according to all our wishes” and “unfair
competition for family time with my husband” (Compl. under
docket number 13–6357 at 1–2), which was assigned docket
number 13–CV–6357 (“the second action”). By Order dated
January 27, 2014, inter alia: (1) plaintiff's claims against
Stony Brook were sua sponte dismissed for lack of subject
matter jurisdiction pursuant to Rule 12(h)(3) of the Federal
Rules of Civil Procedure; (2) plaintiff's Section 1983 claims
against Woodhaven and Cassidy were sua sponte dismissed
with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for
failure to state a claim for relief; and any state law claims were
dismissed without prejudice pursuant to 28 U.S.C. § 1367.
3. The Third Complaint
*2 On or about January 22, 2014, plaintiff filed a third
complaint (“the third action”) pursuant to Section 1983
on behalf of herself and Mr. Casino against Stony Brook,
Cassidy, Woodmere Nursing Home (“Woodmere”) and the
New York State Mental Health Court (“the State Court”)
alleging, inter alia, that those defendants' actions concerning
Mr. Casino's care were “against [the] best interest[s] &
wish[es] of p[atien]t & [his] family resulting in setbacks of
health at Stonybrook [sic] Hospital” (Compl. under docket
number 14–CV–00629 at ¶ III), which was assigned docket
number 14–CV–00629 (“the third action”). By Order dated
April 10, 2014, inter alia: (1) plaintiff's claims against Stony
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Brook and the State Court were sua sponte dismissed pursuant
to Rule 12(h) (3) of the Federal Rules of Civil Procedure
for lack of subject matter jurisdiction; (2) plaintiff's Section
1983 claims against Woodmere and Cassidy were sua sponte
dismissed with prejudice pursuant to 28 U.S.C. § 1915(e)
(2)(B)(ii) for failure to state a claim for relief; (3) any state
law claims were dismissed without prejudice pursuant to 28
U.S.C. § 1367; and (4) Mr. Casino's claims were sua sponte
dismissed without prejudice because plaintiff, who is not an
attorney, could not assert pro se claims on his behalf.
B. The Instant Complaint 4
Since the original complaint filed by plaintiff was not signed,
the Court's pro se office sent plaintiff a Notice of Deficiency
(“Notice”) on May 14, 2014, informing her that she must
file a signed complaint within fourteen (14) days from the
date of the Notice in order to proceed with this case. [See
Docket Entry No. 5]. On May 30, 2014, plaintiff filed a signed
amended complaint against defendant alleging that the “right
to life[,] liberty[,] happiness guarantee [sic] in Constitution of
USA was denied [and] there is now wrongful death of Donato
Casino caused by criminal negligence [and] human rights
abuses.” (Amended Complaint [“Am. Compl.”], ¶ II(B))
(case converted to lowercase).
The following is plaintiff's statement of her claims
against defendant in the amended complaint, which she
alleges occurred “[b]etween June of 2013–Sept 10 of
2013,” (Am.Compl., ¶ III(A));
“At all visits from myself I found Dan in a dark room,
no company, no radio or tv turned on, on his back, no
care given yet that day incl. no diaper change or feeding
or fluid/ice [indecipherable] Approx. 2 visits or more per
[week]. Approx. 2 [weeks] per [month]. Actually Dan on
their premises....
[ ] No ability or available call bell[.]
[ ] ‘Sterile[’] dressing table filthy at each visit[.]
[ ] ‘Sterile’ dressing to be used left on table unattended,
open to dirty air for who knows how long w/ointments on
them open to air[ .]
5 different hosp. stays-only they sent him later rather than
in timely fashion. Also-last hosp. stay at Stony Brook
Hosp. was 5 months from Sept–2013 to end of Jan/Feb
′14[,] which consisted of health crisis after health crisis
requiring heroic means to save Dan's life during that 5 mos.
After [transfer] to new home in Nassau Co. Dan was never
the same-responsive, but min. interactive–1 more stay at
Franklin Hosp. (2–3 wk) back to Woodmere-then final stay
at S. Nassau Hosp. Dan did not get his last wish for me to be
by his side in his last hour because of location. I arr[ived]
at Nassau after (Cassidy) (law guardian) approved a DNR.
*3 At Nassau Hosp.–3 handwritten pps. of meds
scheduled on 1 shift shown to me[.] Feeding at 30 ml. (only
1/3 what they [brought] him up to at Franklin (90 ml) still
insufficient for his frame[.) ]
I saw 5 dark spots (large) on Doplar in his stomach-they
were ulcers, yet hosp. claims they could not determine
cause of bleeding or infection. Nassau continued use of
Tylenol, though Franklin had said they would not use it-
contraindicated by a condition Dan had.
Woodmere had Dan off [of] ventilator, IV P/C Line, feeding
& hydration at 2 visits and failed [indecipherable] to
hosp[.]”
(Am.Compl.¶¶ III–IV) (emphasis in original; case converted).
Plaintiff seeks, inter alia, compensatory damages in the
amount of “½ a million dollars.”
(Am.Compl.¶ V) (case converted).
II. Discussion
A. Standard of Review
Under the in forma pauperis statute, 28 U.S.C. § 1915(e)
(2) (B), a district court must dismiss a complaint if it “(i) is
frivolous or malicious; (ii) fails to state a claim upon which
relief may be granted; or (iii) seeks monetary relief against a
defendant who is immune from such relief.”
It is axiomatic that district courts are required to read pro
se complaints liberally, Erickson v. Pardus, 551 U.S. 89, 94,
127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (quoting Estelle
v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251
(1976)); Hogan v. Fischer, 738 F.3d 509, 515 (2d Cir.2013),
and to construe them “to raise the strongest arguments that
they suggest.” Gerstenbluth v. Credit Suisse Securities (USA)
LLC, 728 F.3d 139, 142–43 (2d Cir.2013) (quotations and
citations omitted). Moreover, at the pleadings stage of the
proceeding, the Court must assume the truth of “all well-
pleaded, nonconclusory factual allegations in the complaint.”
Harrington v. Cnty. of Suffolk, 607 F.3d 31, 33 (2d Cir.2010);
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see also Ashcroft v. Iqbal 556 U.S. 662, 678–79, 129 S.Ct.
1937, 173 L.Ed.2d 868 (2009).
Nevertheless, a complaint must plead sufficient facts “to state
a claim to relief that is plausible on its face.” Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 1974, 167
L.Ed.2d 929 (2007). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the
misconduct alleged.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937,
173 L.Ed.2d 868. The plausibility standard requires “more
than a sheer possibility that a defendant has acted unlawfully.”
Iqbal, 556 U.S. at 678, 129 S.Ct. 1937, 173 L.Ed.2d 868; see
also In re Amaranth Natural Gas Commodities Litig., 730
F.3d 170, 180 (2d Cir.2013).
“A pleading that offers ‘labels and conclusions' or ‘a
formulaic recitation of the elements of a cause of action will
not do.’ “ Iqbal, 556 U.S. at 678, 129 S.Ct. 1937, 173 L.Ed.2d
868 (quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955, 167
L.Ed.2d 929). “Nor does a complaint suffice if it tenders
‘naked assertion[s]’ devoid of ‘further factual enhancement.’
“ Id. (quoting Twombly, 550 U.S. at 557, 127 S.Ct. 1955, 167
L.Ed.2d 929); see also Pension Benefit Guar. Corp. ex rel.
St. Vincent Catholic Med. Ctrs. Ret. Plan v. Morgan Stanley
Inv. Mgmt. Inc., 712 F.3d 705, 717 (2d Cir.2013) (accord).
“Factual allegations must be enough to raise a right to relief
above the speculative level, on the assumption that all the
allegations in the complaint are true (even if doubtful in fact).”
Twombly, 550 U.S. 544, 127 S.Ct. at 1959, 167 L.Ed.2d 929.
B. Section 1983
*4 Section 1983 of Tile 42 of the United States Code
provides, in relevant part:
“Every person who, under color of any
statute, ordinance, regulation, custom,
or usage, of any State ... subjects, or
causes to be subjected, any citizen of
the United States ... to the deprivation
of any rights, privileges, or immunities
secured by the Constitution and laws,
shall be liable to the party injured....”
42 U.S.C. § 1983. “Section 1983 provides a cause of action
against any person who deprives an individual of federally
guaranteed rights ‘under color’ of state law.” Filarsky v.
Delia, ––– U.S. ––––, 132 S.Ct. 1657, 1661, 182 L.Ed.2d
662 (2012). Thus, to state a Section 1983 claim, a plaintiff
must allege: (1) that the challenged conduct was “committed
by a person acting under color of state law,” and (2) that
such conduct “deprived [the plaintiff] of rights, privileges, or
immunities secured by the Constitution or laws of the United
States.” Cornejo v. Bell, 592 F.3d 121, 127 (2d Cir.2010)
(quoting Pitchell v. Callan, 13 F.3d 545, 547 (2d Cir.1994));
see also Rehberg v. Paulk, ––– U.S. ––––, 132 S.Ct. 1497,
1501–02, 182 L.Ed.2d 593 (2012).
Although Section 1983 liability may only be imposed upon
wrongdoers “who carry a badge of authority of a State and
represent it in some capacity, whether they act in accordance
with their authority or misuse it,” Nat'l Collegiate Athletic
Ass'n. v. Tarkanian, 488 U.S. 179, 191, 109 S.Ct. 454, 102
L.Ed.2d 469 (1988) (quotations and citation omitted); see
also Hafer v. Melo, 502 U.S. 21, 28, 112 S.Ct. 358, 116
L.Ed.2d 301 (1991) (“Congress enacted § 1983 to enforce
provisions of the Fourteenth Amendment against those who
carry a badge of authority of a State and represent it in
some capacity, whether they act in accordance with their
authority or misuse it.” (quotations and citations omitted)),
“[a] private actor may be liable under § 1983 * * * if there is a
sufficiently close nexus between the State and the challenged
action that seemingly private behavior may be fairly treated
as that of the State itself.” Sykes v. Bank of Am., 723 F.3d
399, 406 (2d Cir.2013) (quotations, internal quotations and
citations omitted); see also Fabrikant v. French, 691 F.3d 193,
206–07 (2d Cir.2012) (“Conduct that is formally ‘private’
may become so entwined with governmental policies or so
impregnated with a governmental character that it can be
regarded as governmental action. * * * [T]here must be
such a close nexus between the state and the challenged
action that the state is responsible for the specific conduct
of which the plaintiff complains.” (quotations, alterations,
emphasis and citations omitted)). “Anyone whose conduct
is fairly attributable to the state can be sued as a state
actor under § 1983.” Filarsky, 132 S.Ct. at 1661 (quotations
and citation omitted); see also Fabrikant, 691 F.3d at 207
(“The fundamental question * * * is whether the private
entity's challenged actions are ‘fairly attributable’ to the
state.” (quoting Rendell–Baker v. Kohn, 457 U.S. 830, 838,
102 S.Ct. 2764, 73 L.Ed.2d 418 (1982))). “Three main tests
have emerged:
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*5 For the purposes of section 1983,
the actions of a nominally private
entity are attributable to the state ...
(1) [when] the entity acts pursuant
to the coercive power of the state
or is controlled by the state (‘the
compulsion test’); (2) when the state
provides significant encouragement to
the entity, the entity is a willful
participant in joint activity with the
state, or the entity's functions are
entwined with state policies (‘the joint
action test’ or ‘close nexus test’); or (3)
when the entity has been delegated a
public function by the state (‘the public
function test’).”
Fabrikant, 691 F.3d at 207 (quoting Sybalski v. Indep. Grp.
Home Living Program, Inc., 546 F.3d 255, 257 (2d Cir.2008)
(alteration in original)).
Defendant, as the owner or administrator of Woodhaven, a
private nursing home, was not acting “under color of state
law” for purposes of Section 1983 with respect to the conduct
alleged in the amended complaint. White v. St. Joseph's Hosp.,
369 F. App'x 225, 226 (2d Cir. Mar.10, 2010) (summary
order) (“[P]rivate actors and institutions, such as the * * *
nursing home * * * are generally not proper Section 1983
defendants because they do not act under color of state law.
* * * [T]he presence of state funding or regulation, in the
absence of some concerted action with state officials, does
not transform a private party's actions into state action.”);
Baum v. Northern Dutchess Hosp., 764 F.Supp.2d 410, 430–
33 (N.D.N.Y.2011) (dismissing Section 1983 claims against
private nursing home because it is not a state actor); Mitchell
v. Home, 377 F.Supp.2d 361, 370 (S.D.N.Y.2005) (accord).
Moreover, in order to state a claim for relief under Section
1983, a plaintiff must allege the personal involvement of
the defendant in the purported constitutional deprivation.
Spavone v. New York State Dep't of Corr. Servs., 719 F.3d
127, 135 (2d Cir.2013) (“It is well settled in this Circuit that
personal involvement of defendants in alleged constitutional
deprivations is a prerequisite to an award of damages under
§ 1983.” (citation and quotation marks omitted)); Grullon
v. City of New Haven. 720 F.3d 133, 138–39 (2d Cir.2013).
“Personal involvement” may be established by evidence
of direct participation by a supervisor in the challenged
conduct, or by evidence of a supervisory official's “(1) failure
to take corrective action after learning of a subordinate's
unlawful conduct, (2) creation of a policy or custom fostering
the unlawful conduct, (3) gross negligence in supervising
subordinates who commit unlawful acts, or (4) deliberate
indifference to the rights of others by failing to act on
information regarding the unlawful conduct of subordinates.”
Hayut v. State Univ. of New York, 352 F.3d 733, 753 (2d
Cir.2003); see also Grullon, 720 F.3d at 139. “An individual
cannot be held liable for damages under Section 1983 ‘merely
because he held a high position of authority’....” Back v.
Hastings on Hudson Union Free Sch. Dist., 365 F.3d 107,
127 (2d Cir.2004) (quoting Black v. Coughlin, 76 F.3d 72,
74 (2d Cir.1996)). A complaint based upon a violation under
Section 1983 that does not allege the personal involvement
of a defendant fails as a matter of law. See Costello v. City of
Burlington, 632 F.3d 41, 48–49 (2d Cir.2011).
*6 Since, inter alia, defendant is nowhere mentioned or
referenced in the body of the amended complaint, plaintiff has
not adequately pled his personal involvement in any of the
constitutional deprivations alleged in the amended complaint.
Accordingly, plaintiff's Section 1983 claims are dismissed
pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) for failure to state
a claim for relief.
1. Leave to Amend
Rule 15(a) (2) of the Federal Rules of Civil Procedure
provides that a party shall be given leave to amend “when
justice so requires.” Although, “when addressing a pro se
complaint, a district court should not dismiss without granting
leave to amend at least once when a liberal reading of the
complaint gives any indication that a valid claim might be
stated,” Thompson v. Carter. 284 F.3d 411, 416 (2d Cir.2002)
(quotations and citation omitted), leave to amend is not
required, inter alia, where a proposed amendment would be
futile. See Grullon, 720 F.3d at 140; Anderson News, L.L.C.
v. American Media, Inc., 680 F.3d 162, 185 (2d Cir.2012),
cert. denied sub nom Curtis Circulation Co. v. Anderson
News, L.L.C., ––– U.S. ––––, 133 S.Ct. 846, 184 L.Ed.2d 655
(2013). “Futility is a determination, as a matter of law, that
proposed amendments would fail to cure prior deficiencies or
to state a claim under Rule 12(b)(6) of the Federal Rules of
Civil Procedure.” Panther Partners. Inc. v. Ikanos Commc'ns,
Inc., 681 F.3d 114, 119 (2d Cir.2012).
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Since, inter alia, even a liberal reading of the amended
complaint does not give any indication that plaintiff can
state a plausible federal claim against defendant, and this is
plaintiff's fourth unsuccessful attempt to litigate essentially
the same claims, any amendment to the amended complaint
to replead the Section 1983 claims against defendant would
be futile. Accordingly, plaintiff's Section 1983 claims against
defendant are dismissed with prejudice.
C. Supplemental Jurisdiction
Although the dismissal of state law claims is not required
when the federal claims in an action are dismissed, see
Wisconsin Dep't of Corr. v. Schacht, 524 U.S. 381, 391–92,
118 S.Ct. 2047, 141 L.Ed.2d 364 (1998), a federal court may
decline to exercise supplemental jurisdiction over the state
law claims pursuant to 28 U .S.C. § 1367(c)(3). See Carlsbad
Tech., Inc. v. HIF Bio, Inc., 556 U.S. 635, 129 S.Ct. 1862,
1866–1867, 173 L.Ed.2d 843 (2009) (holding that a district
court's decision whether to exercise supplemental jurisdiction
after dismissing every claim over which it had original
jurisdiction is purely discretionary); Lundv v. Catholic Health
Svs. of Long Island Inc., 711 F.3d 106, 117 (2d Cir.2013)
(“The exercise of supplemental jurisdiction is within the
sound discretion of the district court.”). The court must
“consider and weigh in each case, and at every stage of
the litigation, the values of judicial economy, convenience,
fairness, and comity in order to decide whether to exercise
jurisdiction” over the pendent state law claims. Carnegie–
Mellon Univ. v. Cohill, 484 U.S. 343, 350, n. 7, 108 S.Ct.
614, 98 L.Ed.2d 720 (1988); see also Lundy, 711 F.3d at 117–
18 (accord). Generally, where all of the federal claims in an
action are dismissed before trial, the balance of factors will
favor declining to exercise supplemental jurisdiction over the
remaining state law claims. See Cohill, 484 U.S. at 350 n. 7;
Lundy, 711 F.3d at 118 (“Once all federal claims have been
dismissed, the balance of factors will usually point toward a
declination.”); Delaney v. Bank of Am. Corp., 766 F.3d 163,
170 (2d Cir.2014) (“In general, where the federal claims are
dismissed before trial, the state claims should be dismissed as
well.” (quotations and citation omitted)).
*7 In light of the dismissal of all federal claims in this action
prior to service of a summons and the amended complaint
upon defendant, and upon consideration of all relevant
factors, i.e., judicial economy, convenience, fairness and
comity, I decline to exercise supplemental jurisdiction over
any remaining state law claims in this action. Accordingly, to
the extent the amended complaint asserts any state law claims,
those claims are dismissed without prejudice pursuant to 28
U.S.C. § 1367(c)(3). Plaintiff is advised that pursuant to 28
U.S.C. § 1367(d), the statute of limitations for any state law
claims, to the extent those claims were timely filed in this
Court, is tolled for a period of thirty (30) days after the
date of this order, unless a longer tolling period is otherwise
provided under state law.
D. Filing Injunction
Under the All Writs Act, district courts are empowered
to “issue all writs necessary or appropriate in aid of their
respective jurisdictions and agreeable to the usages and
principles of law.” 28 U.S.C. § 1651(a). “The All Writs Act
grants district courts the power, under certain circumstances,
to enjoin parties from filing further lawsuits.” MLE Realty
Assocs. v. Handler, 192 F.3d 259, 261 (2d Cir.1999); see
also Matter of Hartford Textile Corp., 613 F.2d 388, 390
(2d Cir.1979) (holding that the All Writs Act “grant[s] the
district court power sua sponte to enjoin further filings in
support of frivolous and vexatious claims.”) “The district
courts have the power and the obligation to protect the public
and the efficient administration of justice from individuals
who have a history of litigation entailing vexation, harassment
and needless expense to other parties and an unnecessary
burden on the courts and their supporting personnel.” Lau
v. Meddaugh, 229 F.3d 121, 123 (2d Cir.2000) (quotations
and citation omitted); see also Hong Mai Sa v. Doe, 406
F.3d 155, 158 (2d Cir.2005) (“If a litigant has a history of
filing vexatious, harassing or duplicative lawsuits, courts may
impose sanctions, including restrictions on future access to
the judicial system.” (quotations and citations omitted)); Safir
v. United States Lines, Inc., 792 F.2d 19, 24 (2d Cir.1986)
(“A district court not only may but should protect its ability
to carry out its constitutional functions against the threat
of onerous, multiplicitous, and baseless litigation.” (quoting
Abdullah v. Gatto. 773 F.2d 487, 488 (2d Cir.1985) (per
curiam )).
“The filing of repetitive and frivolous suits constitutes
the type of abuse [of the judicial process] for which an
injunction forbidding further litigation may be an appropriate
sanction.” Shafii v. British Airways, PLC, 83 F.3d 566,
571 (2d Cir.1996); see also Lau, 229 F.3d at 123 (“The
issuance of a filing injunction is appropriate when a plaintiff
abuses the process of the Courts to harass and annoy
others with meritless, frivolous, vexatious or repetitive
proceedings.” (quotations, alterations and citations omitted)).
The following factors should be considered in determining
whether to restrict a litigant's future access to the courts:
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Casino v. Rohl, Not Reported in F.Supp.3d (2014)
WESTLAW © 2026 Thomson Reuters. No claim to original U.S. Government Works. 6
*8 “(1) the litigant's history of
litigation and in particular whether
it entailed vexatious, harassing or
duplicative lawsuits; (2) the litigant's
motive in pursuing the litigation, e.g.,
does the litigant have an objective
good faith expectation of prevailing?;
(3) whether the litigant is represented
by counsel; (4) whether the litigation
has caused needless expense to other
parties or has posed an unnecessary
burden on the courts and their
personnel; and (5) whether other
sanctions would be adequate to protect
the courts and other parties.”
Safir, 792 F.2d at 24; see also Iwachiw v. New York State Dep't
of Motor Vehicles, 396 F.3d 525, 528 (2d Cir.2005) (accord).
“Ultimately, the question the court must answer is whether
a litigant who has a history of vexatious litigation is likely
to continue to abuse the judicial process and harass other
parties.” Safir. 792 F.2d at 24.
The court must first provide a litigant with notice and an
opportunity to be heard before imposing a filing injunction,
see Lau, 229 F.3d at 123; Moates v. Barkley, 147 F.3d 207,
208 (2d Cir.1998) (per curiam), and the filing injunction must
be narrowly tailored so as to preserve the litigant's right of
access to the court, see Bd. of Managers of 2900 Ocean Ave.
Condo. v. Bronkovic, 83 F.3d 44, 45 (2d Cir.1996) (holding
that filing injunctions “must be appropriately narrow.”); e.g.
SBC 2010–1, LLC v. Morton, 552 F. App'x 9, 12–13 (2d Cir.
Dec.18, 2013) (summary order) (affirming the district court's
issuance of a filing injunction on the basis, inter alia, that it
was “narrowly crafted”); Malcolm v. Bd. of Educ. of Honeoye
Falls–Lima Cent. Sch. Dist., 506 F. App'x 65, 70 (2d Cir.
Dec.26, 2012) (summary order) (accord).
This lawsuit is plaintiff's fourth unsuccessful attempt in this
Court to litigate essentially the same claims regarding the
treatment and care of Mr. Casino since September 2013.
Given the court's “obligation to protect the public and the
efficient administration of justice from individuals who have
a history of litigation entailing vexation, harassment and
needless expense to other parties and an unnecessary burden
on the courts and their supporting personnel,” Lau, 229 F.3d
at 123, plaintiff is warned that similar, future actions will
not be tolerated. If plaintiff persists in filing actions asserting
claims previously asserted and dismissed by this Court with
prejudice or for lack of subject matter jurisdiction, the Court
will issue an order to show cause why she should not be
required to seek leave of this Court before filing any future
actions in this Court.
Finally, plaintiff is cautioned that Rule 11 of the Federal Rule
of Civil Procedure applies to pro se litigants, see Maduakolam
v. Columbia Univ., 866 F.2d 53, 56 (2d Cir.1989) (“Rule 11
applies both to represented and pro se litigants * * *.”); e.g.,
Ginther v. Provident Life and Cas. Ins. Co., 350 F. App'x 494,
496 (2d Cir.2009) (affirming a district court's imposition of
Rule 11 sanctions against a pro se litigant), and that should she
file another frivolous action, it is within the Court's authority
to consider imposing sanctions upon her. See Fed.R.Civ.P.
11. 5
III. Conclusion
*9 For the reasons set forth above, plaintiffs application to
proceed in forma pauperis is granted; plaintiff's Section 1983
claims against defendant are sua sponte dismissed in their
entirety with prejudice pursuant to 28 U.S.C. § 1915(e)(2)
(B)(ii) for failure to state a claim for relief; any state law
claims are dismissed without prejudice pursuant to 28 U.S.C.
§ 1367(c)(3); and any claims asserted by plaintiff on behalf of
her children and grandchild are dismissed without prejudice.
Plaintiff is warned that her repetitive filing of actions in
this Court asserting similar claims relating to the care and
treatment of Mr. Donato will not be tolerated. If plaintiff
persists in filing actions asserting claims previously asserted
and dismissed by this Court with prejudice or for lack of
subject matter jurisdiction, the Court: (1) will issue an order
to show cause why she should not be required to seek leave
of this Court before filing any future actions in this Court
relating to the care and treatment of Mr. Donato; and (2)
will consider imposing sanctions upon her pursuant to Rule
11 of the Federal Rules of Civil Procedure.
The Clerk of the Court shall close this case and, pursuant to
Rule 77(d)(1) of the Federal Rules of Civil Procedure, serve
notice of entry of this Order upon all parties as provided in
Rule 5(b) of the Federal Rules of Civil Procedure and record
such service on the docket.
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that
any appeal from this Order would not be taken in good
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faith and therefore in forma pauperis status is denied for the
purpose of any appeal. See Coppedge v. United States, 369
U.S. 438, 444–45, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962).
SO ORDERED.
All Citations
Not Reported in F.Supp.3d, 2014 WL 5425501
Footnotes
1 Although the caption of the complaint indicates that plaintiff is also asserting claims on behalf of her “children
and grandchild,” “[a] person who has not been admitted to the practice of law may not represent anybody
other than himself.” Guest v. Hansen, 603 F.3d 15, 20 (2d Cir.2010); see 28 U.S.C. § 1654. Accordingly any
claims asserted by plaintiff on behalf of her children and grandchild are dismissed without prejudice.
2 As set forth below, each of plaintiff's earlier cases were sua sponte dismissed.
3 In her application to proceed in forma pauperis in this action, plaintiff identifies Mr. Rohl as the “owner/
administrator” of Woodhaven. (Application to Proceed In Forma Pauperis [“IFP Applic.”] at 1).
4 All material allegations in the Complaint are assumed to be true for the purposes of this order, see, e.g.
Rogers v. City of Troy, N.Y., 148 F.3d 52, 58 (2d Cir.1998) (in reviewing a pro se complaint for sua sponte
dismissal, a court is required to accept the material allegations in the complaint as true), and do not constitute
findings of fact by the Court.
5 This Court's April 10, 2014 order in the third action also warned plaintiff that the Court is considering issuing
an order to show cause why a filing injunction should not be imposed upon her and imposing sanctions upon
her pursuant to Rule 11 of the Federal Rules of Civil Procedure based upon her filing of repetitive and frivolous
lawsuits. However, this action was commenced one (1) week before the Court issued the April 10, 2014 order.
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 5:25-cv-00033-AMN-ML Document 46 Filed 06/11/26 Page 31 of 201

Cipriani v. Buffardi, Not Reported in F.Supp.2d (2007)
WESTLAW © 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2007 WL 607341
Only the Westlaw citation is currently available.
United States District Court,
N.D. New York.
Paul CIPRIANI, Plaintiff,
v.
Harry C. BUFFARDI, Sheriff; Schenectady County Jail;
Cheryl Clark, M.D.; Kevin J. O'Connor, Defendants.
No. 9:06-CV-0889(LEK/DRH).
|
Feb. 20, 2007.
Attorneys and Law Firms
Paul Cipriani, Plaintiff, pro se.
DECISION and ORDER
LAWRENCE E. KAHN, U.S. District Judge.
*1 Presently before the Court is an amended complaint
filed by Plaintiff Paul Cipriani (“Plaintiff”). Amended Compl.
(Dkt. No. 10). This amended complaint was submitted
in compliance with the Memorandum-Decision and Order
issued by this Court on November 27, 2006 (“November
Order”). Mem.-Decision and Order (Dkt. No. 7).
In its November Order, the Court advised plaintiff that he
must set forth facts demonstrating that Defendants were
personally involved in a violation of Plaintiff's rights. Id. at 4.
Plaintiff was also advised that in order to establish the liability
of a municipality, he must allege a custom or policy which is
the moving force behind the violation. Id.
In his amended complaint, Plaintiff names thirteen defendants
and asserts numerous claims against them arising from his
confinement at Schenectady County Jail. Amended Compl.
(Dkt. No. 10).
The Court notes that plaintiff has not named “Schenectady
County Jail,” “Cheryl Clark,” or “Kevin J. O'Connor” in
his amended Complaint. Therefore, “Schenectady County
Jail,” “Cheryl Clark,” and “Kevin J. O'Connor” are hereby
dismissed as defendants in this action.
The Court also notes that Plaintiff's amended Complaint
mentions “Mr. Booth” and “Mr. Purdy” only in the caption,
and fails to allege any act or omission by these individuals.
Dismissal is appropriate where a defendant is listed in the
caption, but the body of the complaint fails to indicate what
the defendant did to the plaintiff. Gonzalez v. City of New
York, No. 97 CIV. 2246(MGC), 1998 WL 382055, at *2
(S.D.N.Y. July 9, 1998) (citing Crown v. Wagenstein, No. 96
CIV. 3895(MGC), 1998 WL 118169, at *1 (S.D.N.Y.Mar.16,
1998) (mere inclusion of warden's name in complaint
insufficient to allege personal involvement) and Taylor v. City
of New York, 953 F.Supp. 95, 99 (S.D.N.Y.1997)). Because
plaintiff has failed to allege any personal involvement on the
part of defendants “Mr. Booth” and “Mr. Purdy”, they are
hereby dismissed as defendants in this action.
In his amended Complaint, Plaintiff alleges that the remaining
Defendants committed various violations of his constitutional
rights, including inadequate medical care, breach of doctor-
patient confidentiality, excessive force, denial of due process
in a disciplinary proceeding, and interference with the
grievance process. Amended Compl. (Dkt. No. 10).
Based on the foregoing, Plaintiff's amended complaint as
against the remaining Defendants is accepted for filing.
Plaintiff is advised, however, that the U.S. Marshals cannot
effect service on a “John Doe” defendant. In the event
that plaintiff wishes to pursue this claim against the “John
Doe” defendants named in the amended Complaint, he must
take reasonable steps to ascertain their identities. Plaintiff
may then file a Motion to amend his complaint and seek
leave of the Court to add such individuals, by name, as
defendants to this lawsuit. Plaintiff is further advised that if
these individuals are not timely served, the action will be
against them will be dismissed.
*2 WHEREFORE, it is hereby
ORDERED, that “Mr. Booth,” “Mr. Purdy,” “Schenectady
County Jail,” “Cheryl Clark,” and “Kevin J. O'Connor” are
DISMISSED as defendants in this action, and it is further
ORDERED, that the Clerk revise the docket to add
“Schenectady County,” “Mr. Burns,” “Mr. Jones,” “Mr.
Adams,” “Ms. Jones,” “Ms. Hull,” “John Doe # 1,” “John Doe
# 7,” “John Doe # 10,” and “Loraine Walker” as defendants
in this action, and it is further
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Cipriani v. Buffardi, Not Reported in F.Supp.2d (2007)
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ORDERED, that the Clerk issue summonses naming the
remaining defendants and forward them, along with copies of
the amended Complaint (Dkt. No. 10), to the United States
Marshal for service upon the defendants, together with a copy
of this Order. 1 The Clerk shall also forward a copy of the
summons and amended Complaint by mail to the County
Attorney for Schenectady County, together with a copy of this
Order, and it is further
ORDERED, that a formal response to Plaintiff's amended
Complaint be filed by Defendants or their counsel as provided
for in Rule 12 of the Federal Rules of Civil Procedure
subsequent to service of process on Defendants, and it is
further
ORDERED, that Plaintiff take reasonable steps to ascertain
the identities of any other individual(s) that purportedly
violated Plaintiff's civil and/or constitutional rights and, if
appropriate, file a Motion to amend his complaint and add
such individuals, by name, as defendants to this lawsuit, and
it is further
ORDERED, that all pleadings, motions and other documents
relating to this action must bear the case number assigned to
this action and be filed with the Clerk of the United States
District Court, Northern District of New York, 7th Floor,
Federal Building, 100 S. Clinton St., Syracuse, New York
13261-7367. Any paper sent by a party to the Court or the
Clerk must be accompanied by a certificate showing that
a true and correct copy of it was mailed to all opposing
parties or their counsel. Any document received by the Clerk
or the Court which does not include a proper certificate of
service will be returned, without processing. Plaintiff must
comply with requests by the Clerk's Office for any documents
that are necessary to maintain this action. All parties must
comply with Local Rule 7.1 of the Northern District of New
York in filing motions, which must be returnable before the
assigned Magistrate Judge with proper allowance for notice as
required by the Rules. Plaintiff is also required to promptly
notify the Clerk's Office and all parties or their counsel of
any change in his address; his failure to do so will result
in the dismissal of this action. All motions will be decided
on submitted papers without oral argument unless otherwise
ordered by the Court; and it is further
ORDERED, that the Clerk serve a copy of this Order on
plaintiff by regular mail.
IT IS SO ORDERED.
All Citations
Not Reported in F.Supp.2d, 2007 WL 607341
Footnotes
1 Plaintiff was granted leave to proceed with this action in forma pauperis. Mem.-Decision and Order (Dkt.
No. 7).
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 5:25-cv-00033-AMN-ML Document 46 Filed 06/11/26 Page 33 of 201

Funaro v. City of Glens Falls, Slip Copy (2026)
WESTLAW © 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2026 WL 797414
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
David J. FUNARO, Jr. Plaintiff,
v.
CITY OF GLENS FALLS; Glens
Falls Police Department; Hunter
Mckenna; Zachary Swartz, Defendants.
1:25-cv-00706 (AMN/PJE)
|
Signed March 23, 2026
Attorneys and Law Firms
FINN LAW OFFICES, 12 Sheridan Avenue, Albany, New
York 12207, Attorneys for Plaintiff, RYAN M. FINN.
MURPHY BURNS GROUDINE LLP, 407 Albany Shaker
Road, Loudonville, New York 12211, Attorneys for
Defendants, STEPHEN M. GROUDINE.
MEMORANDUM-DECISION AND ORDER
Anne M. Nardacci, United States District Judge
I. INTRODUCTION
*1 On May 16, 2025, Plaintiff David J. Funaro Jr. filed a
Summons with Notice in New York State Supreme Court,
Warren County, alleging claims pursuant to 42 U.S.C. § 1983
(“Section 1983”) and New York state law, against the City of
Glens Falls (the “City”), the Glens Falls Police Department
(“Police Department”), and Glen Falls Police Department
Officers Hunter McKenna and Zachary Swartz (together,
“Individual Defendants”) (collectively with the City and
Police Department, “Defendants”). Dkt No. 1-1. Plaintiff's
claims arise out of incidents relating to his arrest by the
Individual Defendants on June 15, 2024. Id. at 3. 1 Plaintiff
previously filed a Notice of Claim in Warren County (“Notice
of Claim”) indicating his intention to file state law claims
against Defendants on September 13, 2024. Dkt. No. 17-2.
Defendants removed this action to the Northern District of
Northern New York on June 4, 2025, along with a demand for
a complaint. Dkt. No. 1. Plaintiff filed a complaint on June 24,
2025, see Dkt. No. 6, and Defendants filed a motion to dismiss
on July 14, 2025. Dkt. No. 14. On August 4, 2025, Plaintiff
amended his complaint as of right. Dkt. No. 16 (“Amended
Complaint”); see Fed. R. Civ. P. 15(a)(1)(B).
Presently before the Court is Defendants’ partial motion to
dismiss the Amended Complaint for failure to state a claim,
Dkt. No. 17 (the “Motion”), Plaintiff's opposition, Dkt. No.
21, and Defendants’ reply in further support. Dkt. No. 23. For
the reasons set forth below, the Court grants the Motion in
part and denies it in part.
II. BACKGROUND
Unless otherwise noted, the following facts are drawn from
the Amended Complaint, its attachments, or materials it
incorporates by reference, and are assumed to be true for
purposes of ruling on the motion, see Div. 1181 Amalgamated
Transit Union-N.Y. Emps. Pension Fund v. N.Y.C. Dep't of
Educ., 9 F.4th 91, 94 (2d Cir. 2021) (per curiam), or are
otherwise matters of public record. Williams v. N.Y.C. Hous.
Auth., 816 F. App'x 532, 534 (2d Cir. 2020).
A. The Parties
Plaintiff is an individual residing in the state of New York.
Dkt. No. 16 at ¶ 10. The City is a municipal corporation
organized under New York law, see id. at ¶ 11, and the
Police Department is a department of the City. Id. at ¶ 12.
The Individual Defendants are both employed by the City as
officers in the Police Department. Id. at ¶ 13.
B. The Amended Complaint
The Court presumes the Parties’ familiarity with the facts
as alleged in the Amended Complaint. See generally id.
Plaintiff brings claims against all Defendants for false arrest,
fabrication of evidence, unlawful entry, and excessive force
pursuant to Section 1983, as well as state law claims for
assault, battery, and false arrest. Id. at ¶¶ 59-80.
Plaintiff alleges that on March 18, 2024, Defendant Swartz
conducted a routine traffic stop of Plaintiff's vehicle. Id. at
¶ 16. During the stop, Plaintiff alleges that he requested to
speak to a supervisor after he and Defendant Swartz engaged
in a verbal dispute regarding whether his vehicle registration
was suspended. Id. at ¶¶ 17-18. Plaintiff further alleges that
Defendant Swartz “became noticeably hostile and angry,”
told Plaintiff that he was going to physically remove him
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Funaro v. City of Glens Falls, Slip Copy (2026)
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from the vehicle, and then “lunged” through the driver's side
window. Id. at ¶¶ 19-20, 22. Plaintiff then fled the scene in his
vehicle, alleging that he feared for his safety. Id. at ¶ 23.
*2 Defendants submit a copy of a warrant to arrest Plaintiff
issued on March 20, 2024, which sets forth charges for fleeing
an officer in a motor vehicle, resisting arrest, and obstruction
of governmental administration. Dkt. No. 17-3. Defendants
also submit a Certificate of Disposition that enumerates
charged misdemeanors and traffic violations relating to the
traffic stop on March 18, 2024. Dkt. No. 17-4.
On June 15, 2024, the Individual Defendants went to
Plaintiff's home to arrest him on the March 20, 2024
warrant. Upon arriving at Plaintiff's home, Plaintiff was in
his backyard. Dkt. No. 16 at ¶ 25. Plaintiff alleges that
Defendant Swartz called out, “Hey David, what's up man,
I got your [license] plates.” Id. Plaintiff ignored Defendant
Swartz and entered his home, closing the exterior door behind
him. Id. at ¶ 26. According to Plaintiff, Defendant Swartz
proceeded to follow Plaintiff into his home, entering through
the exterior door, and as he approached the interior door, he
yelled at Plaintiff to “get over here.” Id. at ¶¶ 27-28. Plaintiff
then pushed against the door to prevent Defendant Swartz
from entering, but Defendant McKenna subsequently joined
Defendant Swartz, resulting in the Individual Defendants
successfully pushing through the interior door. Id. at ¶¶ 29-30.
Thereafter, Plaintiff ran from his kitchen to his living room,
causing Defendant Swartz to tackle Plaintiff to the ground and
arrest him. Id. at ¶¶ 32, 34.
Plaintiff also alleges that he did not resist arrest and complied
with the Individual Defendants’ commands. Id. at ¶ 35. Yet,
according to Plaintiff, during his arrest, Defendant Swartz
repeatedly punched Plaintiff in the face and slammed his
knee into Plaintiff's testicles, while Defendant McKenna
kneed Plaintiff in the back and testicles. See id. at ¶ 37.
This purportedly caused Plaintiff to sustain serious physical
injuries and emotional trauma. Id. at ¶ 38.
Following his arrest, Plaintiff was charged with felony assault
upon a police officer—a class D felony—as well as resisting
arrest and obstruction of governmental administration. Id. at
¶ 39; see Dkt. No. 17-5. According to Plaintiff, his felony
assault charge was based entirely upon false statements made
by Defendant Swartz and Lieutenant Ryan S. Pedone, a non-
party. Dkt. No. 16 at ¶¶ 40, 42-43.
Ultimately, Plaintiff pled guilty to and was convicted of one
misdemeanor count of fleeing an officer in a motor vehicle in
the third degree in satisfaction of the charges relating to the
traffic stop on March 18, 2024, and one misdemeanor count of
obstructing governmental administration in the second degree
in satisfaction of the charges relating to his arrest on June 15,
2024. Id. at ¶ 56; Dkt. No. 17-1 at ¶ 9; see also Dkt. No. 17-6.
III. STANDARD OF REVIEW
A motion to dismiss for failure to state a claim pursuant to
Rule 12(b)(6) tests the legal sufficiency of a party's claim
for relief. See Patane v. Clark, 508 F.3d 106, 111-12 (2d
Cir. 2007). In considering legal sufficiency, a court must
accept as true all well-pled facts in the complaint and draw
all reasonable inferences in the pleader's favor. See ATSI
Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir.
2007). This presumption, however, does not extend to legal
conclusions. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Although a court's review of a motion to dismiss is generally
limited to the facts presented in the pleadings, the court may
consider documents that are “integral” to the pleadings even
if they are neither physically attached to, nor incorporated by
reference into, the pleadings. See Mangiafico v. Blumenthal,
471 F.3d 391, 398 (2d Cir. 2006) (quoting Chambers, 282 F.3d
at 152-53).
*3 To survive a motion to dismiss, a party need only plead
“a short and plain statement of the claim,” Fed. R. Civ. P. 8(a)
(2), with sufficient factual “heft to sho[w] that the pleader
is entitled to relief.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 557 (2007) (alteration in original) (quotation omitted).
Under this standard, a pleading's “[f]actual allegations must
be enough to raise a right to relief above the speculative
level,” id. at 555, and present claims that are “plausible on
[their] face.” Id. at 570. “The plausibility standard is not akin
to a ‘probability requirement,’ but it asks for more than a
sheer possibility that a defendant has acted unlawfully.” Iqbal,
556 U.S. at 678 (citation omitted). “Where a complaint pleads
facts that are ‘merely consistent with’ a defendant's liability,
it ‘stops short of the line between possibility and plausibility
of ‘entitlement to relief.’ ” Id. (quoting Twombly, 550 U.S.
at 557). Ultimately, “when the allegations in a complaint,
however true, could not raise a claim of entitlement to relief,”
Twombly, 550 U.S. at 558, or where a plaintiff has “not
nudged [his or her] claims across the line from conceivable to
plausible, [the] complaint must be dismissed.” Id. at 570.
IV. DISCUSSION
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Defendants move to dismiss all claims except for Plaintiff's
excessive force claim against the Individual Defendants. See
Dkt. No. 17.
A. Materials Considered
As an initial matter, Defendants attach several extrinsic
materials to their Motion: Plaintiff's Notice of Claim, the
warrant for Plaintiff's arrest, a certificate of disposition
showing charges related to the traffic stop of March 18,
2024, a certificate of disposition showing charges related to
the arrest on June 15, 2024, and a certificate of disposition
showing the charges to which Plaintiff pled guilty. See Dkt.
Nos. 17-2-17-6.
Defendants argue that the Court should consider the arrest
warrant because the Amended Complaint incorporates it by
reference. Dkt. No. 17-8 at 6-7. Plaintiff does not respond
to this argument. The Court agrees with Defendants that
the Court can consider the arrest warrant because it is both
incorporated by reference, see Dkt. No. 16 at ¶¶ 27, 54, 80,
and integral to the Amended Complaint. See Mortimer v. City
of New York, No. 15-cv-7186, 2018 WL 1605982, at *10
(S.D.N.Y. Mar. 29, 2018) (considering the arrest warrant in
case alleging false arrest because the third amended complaint
“relies heavily on the terms and effect of the arrest warrant,”
concluding that it is integral to plaintiffs’ claims); see also
Schafer v. Direct Energy Servs., LLC, 845 F. App'x 81, 82 (2d
Cir. 2021) (“Where an extrinsic document is not incorporated
by reference, the district court may nevertheless consider it if
the complaint relies heavily upon its terms and effect, which
renders the document integral to the complaint.” (internal
quotation marks and citation omitted)).
Defendants also argue that the Court should take judicial
notice of the three certificates of disposition. Dkt. No. 17-8 at
7. Plaintiff seeks to have the Court consider the contents of
the Notice of Claim and one of the certificates of disposition,
but does not contest that the Court may take notice of the
other certificates of disposition. See Dkt. No. 21 at 6-7. The
Court may take judicial notice of the Notice of Claim and the
certificates of disposition because they are matters of public
record. See, e.g., Clark v. New York City Hous. Auth., 514
F. Supp. 3d 607, 611 n.3 (S.D.N.Y. 2021) (taking judicial
notice of notice of claim documents for purpose of assessing
viability of claim under N.Y. Gen. Mun. L. § 50-e); Smith v.
City of New York, No. 12-cv-4572, 2013 WL 6158485, at *1
(S.D.N.Y. Nov. 25, 2013) (taking judicial notice of plaintiff's
certificate of disposition).
Accordingly, the Court will consider the arrest warrant, the
Notice of Claim, and the three certificates of disposition in
adjudicating the Motion.
B. The Police Department
Next, Plaintiff cannot sue the Police Department separate
and apart from the City because it is an administrative arm
of a municipality and therefore not a legal entity. “Under
New York law, departments which are merely administrative
arms of a municipality do not have a legal identity separate
and apart from the municipality and cannot sue or be sued.”
Schachtler Stone Prods., LLC v. Town of Marshall, No. 21-
cv-1100 (AMN/MJK), 2024 WL 4025862, at *10 (N.D.N.Y.
Sept. 3, 2024) (quoting Town and Country Adult Living, Inc.
v. Village/Town of Mount Kisco, No. 17-cv-8586, 2019 WL
1368560, at *13 (S.D.N.Y. Mar. 26, 2019)); see also Gray v.
Coeymans Police Dep't, No. 16-cv-1239, 2020 WL 871179, at
*8 (N.D.N.Y. Feb. 21, 2020) (dismissing claim against town-
defendant's police department because it cannot be sued as an
entity separate from the town). Both Parties agree. See Dkt.
No. 17 at 6; Dkt. No. 21 at 3. Thus, the Court dismisses the
Police Department from this action.
C. The City
*4 Plaintiff's Section 1983 claims against the City must
also be dismissed because Plaintiff has not plausibly pled
a Monell claim. Municipalities are not liable under Section
1983 “unless action pursuant to official municipal policy of
some nature causes a constitutional tort.” Glassman v. City
of New York, 557 F. App'x 97, 98 (2d Cir. 2014) (quoting
Monell v. Dep't of Soc. Servs., 436 U.S. 658, 691 (1978)).
“To bring a claim for municipal liability under Monell, [a
plaintiff] must plausibly allege the existence of an official
policy or custom that caused him to be denied a constitutional
right.” Thomas v. Town of Lloyd, 711 F. Supp. 3d 122, 138
(N.D.N.Y. 2024) (citations omitted). “The existence of a
municipal policy or custom may be plead in any of four
ways: ‘(1) a policy formally adopted and endorsed by the
municipality; (2) actions taken by policymaking officials that
caused the particular deprivation alleged; (3) practices by
subordinate officials that are not expressly authorized but
are so widespread and consistent that policymakers must
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Funaro v. City of Glens Falls, Slip Copy (2026)
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have been aware of them; or (4) a failure by policymakers
to train or supervise that amounts to deliberate indifference
to the rights of those who come into contact with the
inadequately trained or supervised municipal employees.’ ”
Mendez v. Cayuga Cnty., No. 21-cv-1090, 2024 WL 1251541,
at *3 (N.D.N.Y. Mar. 25, 2024) (quoting Crawley v. City
of Syracuse, 496 F. Supp. 3d 718, 729 (N.D.N.Y. 2020)).
“Boilerplate statements that county employees were acting
in accord with a municipal policy, with no facts to support
those statements, are not sufficient to support a Monell claim.”
Forrest v. Cnty. of Greene, 676 F. Supp. 3d 69, 76 (N.D.N.Y.
2023) (internal quotation marks and citation omitted). “Once
a plaintiff has demonstrated the existence of a municipal
policy, a plaintiff must then establish a causal connection, or
an ‘affirmative link,’ between the policy and the deprivation
of his constitutional rights.” Mendez, 2024 WL 1251541, at
*3 (quoting Deferio v. City of Syracuse, 770 F. App'x 587, 589
(2d Cir. 2019)).
Here, Plaintiff's allegations are conclusory and fail to
sufficiently plead a Monell claim against the City.
Specifically, Plaintiff alleges that Lieutenant Pedone, who is
not a party to this action, fabricated evidence in his capacity as
a supervisor by falsely stating in a “Use of Force” report that
body camera footage showed Plaintiff punching Defendant
Swartz. Dkt. No. 16 at ¶¶ 43-44. Plaintiff further alleges
that Lieutenant Pedone's falsehood, together with Defendant
Swartz's falsehoods, establish the existence of “an informal,
unwritten rule” permitting Glens Falls police officers to
fabricate evidence to paint criminal defendants as aggressors
in order to justify the use of force, see id. at ¶ 44, and
that this informal rule is “well settled” to the point of being
“standard operating procedure.” Id. at ¶ 45. However, a
single instance of alleged misconduct is insufficient to infer
a policy or custom under Monell. 2 See Taranto v. Putnam
Cnty., No. 21-cv-2455, 2023 WL 6318280, at *16 (S.D.N.Y.
Sept. 28, 2023) (noting that “a custom or policy cannot be
shown by pointing to a single instance of unconstitutional
conduct by a mere employee of the municipality” (citations
omitted)); see also Jones v. Town of East Haven, 691 F.3d,
72, 85 (2d Cir. 2012) (holding that pleading only two or
three instances of a constitutional violation falls “far short of
showing a policy, custom, or usage”). Accordingly, Plaintiff's
conclusory allegations are insufficient to support a Monell
claim against the City.
Similarly, Plaintiff fails to establish a failure to train as
a policy for purposes of Monell liability. While Plaintiff
alleges that the City is responsible for the “hiring, training,
supervision, discipline, management, policies and other
aspects of the functioning of the Police Department[,]” see
Dkt. No. 16 at ¶ 14, Plaintiff fails to allege any specific
facts that plausibly suggest that the City's policymakers failed
to train or supervise their employees. Plaintiff alleges that
the City “ratified the conduct” of Defendants Swartz and
McKenna “by reviewing the body cam footage (which shows
that plaintiff was not an aggressor, did not throw a punch,
attempt a headlock, or bite the officers) yet upholding the use
of force” by Defendants Swartz and McKenna as appropriate.
Id. at ¶ 46. However, even if the Court assumes that Plaintiff's
allegations regarding the Individual Defendants’ use of force
is true, “where the only evidence of a policy ... is a failure
to discipline the defendant officers, a policy condoning
unconstitutional action by the [municipality] cannot be
inferred.” Harris v. City of New York, No. 22-cv-1763, 2026
WL 308963, at *5 (S.D.N.Y. Feb. 5, 2026) (citations omitted).
Thus, these allegations are also insufficient to support a
Monell claim against the City.
*5 For these reasons, the Court dismisses Plaintiff's Section
1983 claims against the City.
D. False Arrest
“A [Section] 1983 false arrest claim is grounded in the
Fourth Amendment right of an individual to be free from
unreasonable seizures.” LaFever v. Clarke, 525 F. Supp. 3d
305, 329 (N.D.N.Y. 2021) (citing Weyant v. Okst, 101 F.3d
845, 852 (2d Cir. 1996)). The Court considers Plaintiff's
false arrest claims under Section 1983 and New York state
law together, as they are substantially the same. See Hulett
v. City of Syracuse, 253 F. Supp. 3d 462, 494 (N.D.N.Y.
2017) (“Claims for false arrest and false imprisonment are
synonymous under New York law, and both are substantially
the same as a [Section] 1983 claim for false arrest.” (internal
quotation marks omitted)).
To state a claim for false arrest under Section 1983, a plaintiff
must show that “(1) a defendant intended to confine the
plaintiff, (2) the plaintiff was conscious of the confinement,
(3) the plaintiff did not consent to the confinement and
(4) the confinement was not otherwise privileged.” Adams
v. City of New York, No. 21-cv-3956, 2023 WL 2734611,
at *4 (E.D.N.Y. Mar. 31, 2023) (internal quotation marks
and citations omitted). Regarding the fourth element, in the
context of an arrest, “an act of confinement is privileged if
it stems from a lawful arrest supported by probable cause.”
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Hernandez v. United States, 939 F.3d 191, 199 (2d Cir. 2019)
(citation omitted). “A police officer has probable cause to
arrest when he has ‘knowledge or reasonably trustworthy
information of facts and circumstances that are sufficient to
warrant a person of reasonable caution in the belief that the
person to be arrested has committed or is committing a crime.’
” Hulett, 253 F. Supp. 3d at 494 (quoting Jackson v. City of
New York, 939 F. Supp. 2d 235, 249 (E.D.N.Y. 2013) (quoting
Weyant, 101 F.3d at 852)). If an officer has probable cause to
arrest, that constitutes “a complete defense to an action for
false arrest, whether that action is brought under state law
or under [Section] 1983.” Jenkins v. City of New York, 478
F.3d 76, 84 (2d Cir. 2007) (quoting Weyant, 101 F.3d at 852)
(internal quotation marks omitted).
As relevant here, a subsequent conviction generally bars a
false arrest claim under Section 1983 because false arrest
claims by their very nature challenge the validity of the arrest.
See Moore v. City of Syracuse, 711 F. Supp. 3d 143, 146-47
(N.D.N.Y. 2024) (citations omitted); see also Cameron v.
Fogarty, 806 F.2d 380, 388 (2d Cir. 1986) (“Where the
civil rights plaintiff has been convicted of the offense for
which he was arrested, we have in effect accepted the fact of
that conviction as conclusive evidence of the good faith and
reasonableness of the officer's belief in the lawfulness of the
arrest.”). Here, Plaintiff alleges that his claim for false arrest
is “limited solely to a claim that the plaintiff was arrested,
detained, and jailed on the felony assault charge.” Dkt. No.
16 at ¶ 72. 3 While Plaintiff pled guilty to one count of
obstruction of governmental administration in satisfaction of
all the criminal charges for which he was arrested on June 15,
2024, including the felony assault charge, see id. at ¶ 56, “a
false arrest claim is barred even where the civil rights plaintiff
pl[ed] guilty to a lesser charge pursuant to a plea agreement
that dismissed the charges for which plaintiff was arrested.”
Burris v. Nassau Cnty. Dist. Att'y, No. 14-cv-5540, 2017 WL
9485714, at *6 (E.D.N.Y. Jan. 12, 2017) (internal quotation
marks and citations omitted), report and recommendation
adopted, 2017 WL 1187709 (E.D.N.Y. Mar. 29, 2017); see
also Parkinson v. Town of Niskayuna, No. 22-cv-70, 2023
WL 8574309, at *4 (N.D.N.Y. Dec. 11, 2023) (concluding
that “[b]y pleading guilty to the crimes charged from the
purportedly false arrest, or to any lesser-included offenses to
resolve all of the crimes charged, a plaintiff concedes as a
matter of law that there was probable cause for all charges
covered by the plea agreement”) (citation omitted).
*6 Thus, Plaintiff's subsequent conviction bars his Fourth
Amendment claim for false arrest as a matter of law. For these
reasons, the Court dismisses Plaintiff's claims for false arrest
under Section 1983 and New York state law. 4
E. Fabrication of Evidence 5
A Section 1983 plaintiff “may sue for denial of the right
to a fair trial based on a police officer's fabrication of
information ... when the information fabricated is the officer's
own account of his or her observations of alleged criminal
activity, which he or she then conveys to a prosecutor.”
Garnett v. Undercover Officer C0039, 838 F.3d 265, 274 (2d
Cir. 2016). To succeed on a fabrication of evidence claim,
Plaintiff must establish that “an (1) investigating official
(2) fabricated information (3) that is likely to influence a
jury's verdict, (4) forwarded that information to prosecutors,
and (5) the plaintiff suffered a deprivation of life, liberty,
or property as a result.” Ashley v. City of New York, 992
F.3d 128, 139 (2d Cir. 2021) (quoting Garnett, 838 F.3d
at 279) (brackets omitted). Additionally, “the underlying
criminal proceeding [must] be terminated in such a manner
that the lawsuit does not impugn an ongoing prosecution
or outstanding conviction.” Smalls v. Collins, 10 F.4th
117, 139 (2d Cir. 2021) (citations omitted) (emphasis in
original). “This requirement may be satisfied where a criminal
conviction has been invalidated or a criminal prosecution has
been terminated in the criminal defendant's favor because,
in such circumstances, there is no risk that a [S]ection 1983
plaintiff's claim will impugn an existing conviction or the
basis for an ongoing prosecution.” Id.; see also Williams v.
City of New York, No. 21-cv-3005, 2025 WL 2782810, at
*10 (E.D.N.Y. Sept. 27, 2025) (noting that “fabrication of
evidence claims can accrue at two distinct points—when a
‘criminal proceeding has ended in the defendant's favor,’ i.e.,
acquittal, or when ‘a resulting conviction has been invalidated
within the meaning of [Heck v. Humphrey, 512 U.S. 477
(1994)]” (quoting McDonough v. Smith, 588 U.S. 109, 120
(2019)).
*7 Here, Plaintiff was convicted of obstruction of
governmental administration, see Dkt. No. 16 at ¶ 56.
Plaintiff's conviction has not been reversed on appeal,
expunged, declared invalid, or otherwise called into question.
Cf. Parker v. Kraham, No. 25-cv-6438, 2026 WL 570521,
at *9 (W.D.N.Y. Mar. 2, 2026) (dismissing fabrication of
evidence claim because it would call into question plaintiff's
ongoing prosecution, noting that the prosecution must end
without a conviction before plaintiff may proceed with
the claim). Accordingly, because Plaintiff's fabrication of
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evidence claim would impugn his outstanding conviction, the
Court dismisses Plaintiff's fabrication of evidence claim.
F. Unlawful Entry
The Fourth Amendment protects against “unreasonable
searches and seizures.” U.S. Const. amend IV. “It is a
basic principle of Fourth Amendment law that searches and
seizures inside a home without a warrant are presumptively
unreasonable.” Brigham City, Utah v. Stuart, 547 U.S. 398,
403 (2006) (internal quotation marks and citations omitted).
Plaintiff contends that the Individual Defendants entered his
home without knocking, announcing a warrant, or stating that
Plaintiff was under arrest. Dkt. No. 16 at ¶ 27. Defendants
argue that exigent circumstances justified their entry into
Plaintiff's home unannounced because Plaintiff physically
resisted arrest by immediately fleeing from his backyard upon
hearing and seeing the Individual Defendants, and Plaintiff
has a history of fleeing from the police. See Dkt. No. 17-8 at
12-13; Dkt. No. 23 at 7.
“Under the emergency aid doctrine, exigent circumstances
exist permitting entry if law enforcement has probable cause
to believe that a person is ‘seriously injured or threatened
with such injury.’ ” Chamberlain ex rel. Chamberlain v. City
of White Plains, 960 F.3d 100, 105 (2d Cir. 2020) (quoting
Brigham City, 547 U.S. at 403). “Whether such an urgent
need existed ‘turns on [an] ... examination of the totality
of the circumstances confronting law enforcement agents in
the particular case.’ ” Crespo v. City of New York, 781 F.
Supp. 3d 125, 131 (E.D.N.Y. 2025) (quoting United States
v. MacDonald, 916 F.2d 766, 769 (2d Cir. 1990) (en banc)).
“The core question is whether the facts, as they appeared at
the moment of entry, would lead a reasonable, experienced
officer, to believe that there was an urgent need to render aid
or take action.” Chamberlain, 960 F.3d at 106 (quoting United
States v. Klump, 536 F.3d 113, 117-18 (2d Cir. 2008)).
Here, based on the facts as alleged by Plaintiff, the Court
cannot conclude that a reasonable, experienced officer would
be justified in concluding that entry into Plaintiff's home
was necessary. Specifically, Plaintiff alleges that Defendant
Swartz called out to him about his license plates while he
was in his backyard, and after ignoring Defendant Swartz
and entering his home, Defendant Swartz followed him,
ultimately pushing through the interior door, with the help
of Defendant McKenna, then tackling Plaintiff to the ground.
Dkt. No. 16 at ¶¶ 25-27, 30, 32, 34. Plaintiff does not allege
any facts indicating that “a person within the house [was]
in need of immediate aid.” Michigan v. Fisher, 558 U.S. 45,
47 (2009); compare United States v. Ashburn, No. 11-cr-303,
2014 WL 1800409, at *5, 5 n.6 (E.D.N.Y. May 6, 2014)
(finding that emergency aid doctrine justified entry to search
for shooting victims where there was evidence that shots had
been fired, and collecting cases); with Greene v. City of New
York, 725 F. Supp. 3d 400, 420 (S.D.N.Y. 2024) (finding that
an uncorroborated 911 call paired with officers’ prolonging
their entry to have a colloquy with plaintiff and his fiancé
could not support probable cause for exigent circumstances).
*8 Accordingly, Defendants’ motion to dismiss Plaintiff's
unlawful entry claim on the basis of exigent circumstances is
denied.
G. Assault and Battery Claims
Lastly, Defendants contend that Plaintiff's assault and battery
claims under New York state law must be dismissed because
Plaintiff did not include assault and battery claims in his
Notice of Claim. See Dkt. No. 17-8 at 7-8. Plaintiff argues that
the Notice of Claim must be read liberally to include claims
of assault and battery because the allegations contained in the
Notice of Claim encompass the same conduct that underlies
assault and battery claims. See Dkt. No. 21 at 3-5.
“A notice-of-claim statute generally provides that no action
may be brought ... or maintained against certain government
entities without first providing written notice of the claim.”
Cooper Crouse-Hinds, LLC v. City of Syracuse, New York,
No. 16-cv-1201, 2018 WL 840056, at *8 (N.D.N.Y. Feb.
12, 2018). “[A] plaintiff cannot sue a municipality or any
of its officers, agents, or employees unless he first serves
a notice of claim on the municipality within 90 days after
the claim arose.” King v. City of New York, 581 F. Supp.
3d 559, 577 (S.D.N.Y. 2022) (internal quotation marks and
citation omitted), aff'd, No. 22-231, 2023 WL 2398679 (2d
Cir. Mar. 8, 2023); see also N.Y. Gen. Mun. Law § 50-e. The
notice must state the nature of the claim, as well as the time,
place, and manner in which the claim arose. See O'Brien v.
City of Syracuse, No. 22-cv-948, 2023 WL 6066036, at *22
(N.D.N.Y. Sept. 18, 2023) (citing N.Y. Gen. Mun. Law § 50-
e(2)). A plaintiff “may not raise in the complaint causes of
action or legal theories that were not directly or indirectly
mentioned in the notice of claim and that change ... the nature
of the earlier claim or assert a new one.” LeClair v. Raymond,
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No. 19-cv-28, 2020 WL 5027278, at *13 (N.D.N.Y. Aug. 25,
2020) (citations omitted).
Here, Plaintiff's Notice of Claim asserted “physical injuries”
based on allegations of, among other things, “police brutality”
and “excessive force.” Dkt. No. 17-2 at 1. “Although the
notice must set forth the nature of the claim, it need not state
a precise cause of action in haec verba.” Rentas v. Ruffin,
816 F.3d 214, 227 (2d Cir. 2016) (internal quotation marks
and citations omitted). In this case, Plaintiff's allegations are
sufficiently similar to claims of assault and battery under New
York state law such that Defendants were adequately notified
that Plaintiff may bring assault and battery claims against
them. See, e.g., Jimenez on behalf of J.M. v. Cnty. of Suffolk,
No. 23-cv-9476, 2025 WL 948348, at *20 (E.D.N.Y. Mar. 28,
2025) (finding that notice of claim containing allegations of
police officers causing “physical bodily injury” and noticing
“all common law torts” was sufficient to raise assault and
battery claims); Green-Page v. United States, No. 20-cv-837,
2024 WL 3584194, at *5 (W.D.N.Y. July 30, 2024) (finding
that allegations in notice of claim that mentioned “assault” but
not “battery” or “physical injuries” were sufficient to provide
notice to defendants that plaintiffs intended to assert a battery
claim).
*9 In reply, Defendants contend that Plaintiff's assault and
battery claims under New York state law are duplicative of
his excessive force claim pursuant to Section 1983. See Dkt.
No. 23 at 4. This argument is without merit. See, e.g., Lalonde
v. City of Ogdensburg, 662 F. Supp. 3d 289, 311 (N.D.N.Y.
2023) (permitting plaintiff's assault and battery claims under
New York state law to proceed alongside plaintiff's Fourth
Amendment excessive force claims based upon the same
factual circumstances); cf. Burdick v. New York State Police,
No. 14-cv-1254, 2015 WL 1954616, at *6 (N.D.N.Y. Apr.
28, 2015) (finding that assault and battery claims asserted
under Section 1983 are duplicative of plaintiff's Section 1983
excessive force claim); Acquah v. City of Syracuse, No. 18-
cv-1378, 2019 WL 3975463, at *4 (N.D.N.Y. Aug. 22, 2019)
(same).
Accordingly, Defendants’ motion to dismiss Plaintiff's assault
and battery claims under New York state law is denied.
V. CONCLUSION
Accordingly, the Court hereby
ORDERS that Plaintiff's claims against the Police
Department be DISMISSED with prejudice; and the Court
further
ORDERS that Plaintiff's false arrest claims under Section
1983 and New York state law against the Individual
Defendants be DISMISSED with prejudice; and the Court
further
ORDERS that Plaintiff's fabrication of evidence claims
against the Individual Defendants be DISMISSED with
prejudice; and the Court further
ORDERS that Plaintiff's Section 1983 claims against the City
be DISMISSED without prejudice; and the Court further
ORDERS that Defendants’ motion to dismiss Plaintiff's
unlawful entry claim against the Individual Defendants is
DENIED; and the Court further
ORDERS that Defendants’ motion to dismiss Plaintiff's
assault and battery claims under New York state law is
DENIED; and the Court further
ORDERS that the Clerk serve a copy of this Memorandum-
Decision and Order on the parties in accordance with the
Local Rules.
IT IS SO ORDERED.
All Citations
Slip Copy, 2026 WL 797414
Footnotes
1 Citations to court documents utilize the pagination generated by CM/ECF, the Court's electronic filing system.
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2 At no point does Plaintiff allege that Defendant Swartz or Lieutenant Pedone were official policymakers for
the City.
3 Plaintiff does not dispute the validity of the arrest warrant issued against him, see Dkt. No. 21, nor do
Defendants argue that the Individual Defendants had presumptive probable cause to arrest Plaintiff pursuant
to the warrant. See Dkt. Nos. 17-8, 23.
4 To the extent that Plaintiff argues that his allegations regarding fabricated evidence support “a false arrest
claim based upon a malicious prosecution theory,” see Dkt. No. 21 at 8, the Court notes that false arrest
and malicious prosecution constitute two separate claims and Plaintiff does not raise a cause of action
for malicious prosecution. See generally Dkt. No. 16; see, e.g., Bornschein v. Herman, 304 F. Supp. 3d
296, 300-03 (N.D.N.Y. 2018) (plaintiff brings both false arrest and malicious prosecution claims against
defendants).
5 Plaintiff seeks to bring his fabrication of evidence claim under both the Fourth and Fourteenth Amendments.
Dkt. No. 16 at 8-9. “When a plaintiff brings both Fourth and Fourteenth Amendment claims that arise out of the
same conduct by defendants, the two claims may not proceed simultaneously.” Fraser v. City of New York,
No. 20-cv-5741, 2022 WL 3045524, at *2 (E.D.N.Y. Aug. 1, 2022) (citations omitted). Because a fabricated
evidence claim implicates the right to a fair trial and “sounds in the Due Process Clause,” courts adjudicate
such claims under the Fourteenth Amendment. Barnes v. City of New York, 68 F.4th 123, 128 (2d Cir. 2023).
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Gaddy v. Waterfront Com'n, Not Reported in F.Supp.3d (2014)
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2014 WL 4739890
Only the Westlaw citation is currently available.
United States District Court,
S.D. New York.
Justin S. GADDY, Plaintiff,
v.
WATERFRONT COMMISSION, Nysappgu, Ray
Gorsky, Us Health Works, Po Ports America, Defendants.
No. 13 Civ. 3322(AT)(HBP).
|
Signed Sept. 19, 2014.
MEMORANDUM AND ORDER
ANALISA TORRES, District Judge.
*1 In this action, Plaintiff pro se, Justin S. Gaddy,
alleges that Defendants discriminated against him on the
basis of race. Although Plaintiff's amended complaint (the
“complaint”) does not cite any constitutional provision or
federal law, the Court presumes-in light of Plaintiff's pro
se status-that Plaintiff intends to assert claims under Title
VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e,
et seq. (“Title VII”), 42 U.S.C. § 1981 (“Section 1981”),
and/or 42 U.S.C. § 1983 (“Section 1983”). Defendants
NYSA–PPGU Welfare Fund and Plan (the “Welfare Fund”) 1
and Raymond T. Gorski (“Gorski”) 2 move to dismiss the
complaint pursuant to Rules 12(b)(1) and 12(b)(6) of the
Federal Rules of Civil Procedure. Defendant Ports America,
Inc. (“Ports America”) 3 moves to dismiss pursuant to
Rule 12(b)(6) of the Federal Rules of Civil Procedure.
Defendant Waterfront Commission of New York Harbor (the
“Waterfront Commission”) 4 moves for judgment on the
pleadings pursuant to Rule 12(c) of the Federal Rules of Civil
Procedure. In addition, Plaintiff asks the Court to appoint
pro bono counsel. For the reasons stated below, the Rule
12(b)(1) motion is DENIED and the Rule 12(b)(6) and 12(c)
motions are GRANTED with leave to file a second amended
complaint. Plaintiff's request for counsel is DENIED.
BACKGROUND
On May 15, 2013, Plaintiff filed the original complaint
in this action. That same day, Plaintiff filed a request to
proceed in forma pauperis, ECF No. 1, which Chief Judge
Loretta Preska granted on August 20, 2013, ECF No. 6. On
September 4, 2013, Judge Preska sua sponte issued an order
(1) finding that the complaint did not comply with Rule 8
of the Federal Rules of Civil Procedure; (2) explaining that
Plaintiff had not alleged any facts to establish subject matter
jurisdiction; and (3) directing Plaintiff to file an amended
complaint. ECF No. 7. On November 4, 2013, Plaintiff filed
an amended complaint. The case was reassigned to this Court
on December 18,2013.
Plaintiff's amended complaint appears to allege that, from
2005 until 2011, Plaintiff held a part-time job on the
waterfront in Port Newark and Port New York. Am. Compl. ¶
III.C, ECF No. 8. For this job, Plaintiff was required to have a
“waterfront license.” Id. ¶ V. To maintain the license, Plaintiff
was obligated to undergo periodic physical examinations. Id.
¶¶ III.C, V. Plaintiff asserts that the Waterfront Commission
paid for the physicals “for over six years.” Id. ¶ III.C.
However, in March 2011 (and perhaps again in 2012),
Plaintiff received a letter from Ports America, “NYSA
(Union),” 5 and the Waterfront Commission, instructing
Plaintiff to submit to a physical in Elizabeth, New Jersey, at
a cost to Plaintiff of $380. Id. Plaintiff declined to do so. Id.
Instead, he “went to Queens Hospital” and “had this same
examination for free ... by a doctor who is duly license[d] to
practice medicine in the State of NY.” Id. Plaintiff submitted
the results of the exam (and perhaps a second exam) to the
Waterfront Commission and “NYSA,” but they did not accept
the results. Id. ¶¶ III.C, V. Plaintiff's waterfront license was
subsequently suspended and, as a result, he lost pay and
benefits. Id.
*2 Plaintiff contends that requiring him to undergo and
pay for a physical exam in Elizabeth, New Jersey constitutes
race discrimination. Specifically, Plaintiff asserts that: (1)
he “felt this new procedure is discriminatory toward Black
Americans”; (2) “NYSA ... has a history of being insensitive
towards Black Afro Americans” and tries “to come up with
petty [and] non job essentials to keep certain ethnic groups off
the waterfront”; (3) “they should not cherry pick paying for
selected groups or discriminate against Afro Americans”; and
(4) “race should not play a role in who pays for physicals.” Id.
DISCUSSION
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I. Standard of Review
A. Rule 12(b)(1)
“A case is properly dismissed for lack of subject matter
jurisdiction under Rule 12(b)(1) when the district court
lacks the statutory or constitutional power to adjudicate it.”
Makarova v. United States, 201 F.3d 110, 113 (2d Cir.2000).
To survive a Rule 12(b)(1) motion to dismiss, the plaintiff
“has the burden of proving by a preponderance of the
evidence that [subject matter jurisdiction] exists.” Id. On such
a motion, “the district court must take all uncontroverted
facts in the complaint ... as true, and draw all reasonable
inferences in favor of the party asserting jurisdiction.” Tandon
v. Captain's Cove Marina of Bridgeport, Inc., 752 F.3d 239,
243 (2d Cir.2014). However, “[w]here jurisdictional facts are
placed in dispute, the court has the power and obligation
to decide issues of fact by reference to evidence outside
the pleadings, such as affidavits.” Id. (alteration in original)
(internal quotation marks and citation omitted).
B. Rules 12(b)(6) and 12(c)
To survive a Rule 12(b)(6) motion to dismiss or Rule 12(c)
motion for judgment on the pleadings, “a complaint must
contain sufficient factual matter ... to ‘state a claim to relief
that is plausible on its face.’ “ Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007)); see also Bank of New York v. First Millennium,
Inc., 607 F.3d 905, 922 (2d Cir.2010) (“The same standard
applicable to [Rule 12(b)(6) ] motions to dismiss applies to
[Rule 12(c) ] motions for judgment on the pleadings.”). On
such a motion, the court may consider only the complaint,
documents attached to the complaint, matters of which a court
can take judicial notice, or documents that the plaintiff knew
about and relied upon. See Chambers v. Time Warner, Inc.,
282 F.3d 147, 153 (2d Cir.2002). The court must accept the
allegations in the complaint as true and draw all reasonable
inferences in favor of the non-movant. ATSI Commc'ns, Inc.
v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir.2007).
C. Pro Se Submissions
The court must “liberally construe pleadings and briefs
submitted by pro se litigants, reading such submissions to
raise the strongest arguments they suggest.” Bertin v. United
States, 478 F.3d 489, 491 (2d Cir.2007) (internal quotation
marks and citations omitted). “The policy of liberally
construing pro se submissions is driven by the understanding
that implicit in the right to self-representation is an obligation
on the part of the court to make reasonable allowances
to protect pro se litigants from inadvertent forfeiture of
important rights because of their lack of legal training.”
Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir.2007) (internal
quotation marks, brackets, and citation omitted). Although the
court is “obligated to draw the most favorable inferences that
[a pro se plaintiff's] complaint supports, [the court] cannot
invent factual allegations that [the plaintiff] has not pled.”
Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir.2010). “[T]he
court should not dismiss without granting leave to amend
at least once when a liberal reading of the complaint gives
any indication that a valid claim might be stated.” Cuoco v.
Moritsugu, 222 F.3d 99, 112 (2d Cir.2000) (internal quotation
marks and citation omitted).
II. Subject Matter Jurisdiction
*3 Where, as here, defendants move for dismissal pursuant
to Rule 12(b)(1) “as well as on other grounds, the court should
consider the Rule 12(b)(1) challenge first since if it must
dismiss the complaint for lack of subject matter jurisdiction,
the accompanying defenses and objections become moot and
do not need to be determined .” Rhulen Agency, Inc. v.
Alabama Ins. Guar. Ass'n, 896 F.2d 674, 678 (2d Cir.1990)
(internal quotation marks and citation omitted). Accordingly,
the Court first considers the Welfare Fund and Gorski's
argument that the Court lacks subject matter jurisdiction.
These Defendants contend that the complaint should be
dismissed because they are “left ... guessing as to what
constitutional provision or law is the basis for invoking the
subject matter jurisdiction of this Court.” Welfare Fund–
Gorski Mem. 13. The Court disagrees and concludes that,
because the complaint can plausibly be read to set forth a
federal cause of action, the Court does not lack subject matter
jurisdiction.
To invoke federal question jurisdiction, a plaintiff's claim
must arise “under the Constitution, laws, or treaties of
the United States.” 28 U.S.C. § 1331. “Federal question
jurisdiction may be properly invoked only if the plaintiff's
complaint necessarily draws into question the interpretation
or application of federal law.” New York v. White, 528 F.2d
336, 338 (2d Cir.1975). Thus, “[m]ere invocation of federal
question jurisdiction, without any alleged facts supporting a
federal law claim, is insufficient.” Robinson v. Long Island
Jewish Hosp., 14 Civ. 3344, 2014 WL 4175790, at *2
(E.D.N.Y. Aug. 20, 2014) (citing Nowak v. Ironworkers Local
6 Pension Fund, 81 F.3d 1182, 1188–89 (2d Cir.1996)).
“Whether [a plaintiff] is able to assert a valid claim under
[a federal statute] is irrelevant to the question of whether
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the District Court has subject matter jurisdiction over her
complaint.” TAGC Mgmt., LLC v. Lehman, Lee & Xu Ltd.,
536 F. App'x 45, 48 (2d Cir.2013) (alterations in original)
(quoting Carlson v. Principal Fin. Grp., 320 F.3d 301, 307
(2d Cir.2003)). In evaluating a pro se complaint, the court
should not dismiss for lack of subject matter jurisdiction if
the complaint can plausibly be read to set forth a federal
cause of action. See, e.g., Robinson, 2014 WL 4175790,
at *2; cf. Triestman v. Fed. Bureau of Prisons, 470 F.3d
471, 474–76 (2d Cir.2006) (emphasizing the importance of
liberally construing pro se submissions in the context of a
Rule 12(b)(1) motion). Here, the complaint indicates that
Plaintiff seeks to invoke federal question jurisdiction. Am.
Compl. ¶ II.A. Specifically, Plaintiff states that “violation
of civil rights in selection of doctors/health care” provides
the basis for federal question jurisdiction. Id. ¶ II.B. Plaintiff
goes on to assert, among other things, that: (1) he “felt
this new procedure” (i.e., requiring waterfront licensees to
undergo a physical examination in Elizabeth, New Jersey
and pay $380 for the examination) “is discriminatory toward
Black Americans”; (2) “NYSA ... has a history of being
insensitive towards Black Afro Americans” and tries “to
come up with petty [and] non job essentials to keep certain
ethnic groups off the waterfront”; (3) “they should not cherry
pick paying for selected groups or discriminate against Afro
Americans”; and (4) “race should not play a role in who
pays for physicals.” Id. ¶¶ III.C, V. These assertions, together
with Plaintiff's claim that the alleged discrimination took
place in the context of his employment, see id., can plausibly
be read to set forth a federal cause of action. Although
Plaintiff does not explicitly refer to Title VII, Section 1981,
or Section 1983, the complaint, construed liberally, “draws
into question the interpretation or application of these federal
laws, 6 White, 528 F.2d at 338–as Defendants concede, see
Ports Am. Mem. 3 (“[I]t appears that [Plaintiff] might be
attempting to plead claims of race discrimination under Title
VII of the Civil Rights Act of 1964, 42 U .S.C. § 1983,
and 42 U.S.C. § 1981.”); Welfare Fund–Gorski Mem. 13 &
n. 6 (acknowledging that the complaint “could be possibly
construed as a claim based on a violation of 42 U.S.C. §
1981” or Title VII); Waterfront Comm'n Mem. 1 (noting
that Plaintiff “appears to allege unlawful racial discrimination
against each of the Defendants under either or both Title VII ...
or 42 U.S.C. § 1981 ... and, perhaps, as to the Commission, 42
U.S.C. § 1983 ... as well”). Accordingly, the Court does not
lack subject matter jurisdiction to consider Plaintiff's claims.
III. Failure to State a Claim
*4 The Court's capacity to adjudicate Plaintiff's claims,
however, does not mean that the complaint can withstand a
Rule 12(b)(6) or 12(c) motion. See TAGC Mgmt., 536 F. App'x
at 48. Indeed, affording Plaintiff the most favorable inferences
that his complaint supports, the Court concludes that Plaintiff
has failed to state a claim under Title VII, Section 1981, and
Section 1983. 7
A. Title VII
Under Title VII, a plaintiff “may bring suit in federal
court only if she has filed a timely complaint with the
[Equal Employment Opportunity Commission (“EEOC”) ]
and obtained a right-to-sue letter.” Legnani v. Alitalia Linee
Aeree Italiane, S.P.A., 274 F.3d 683, 686 (2d Cir.2001).
“Exhaustion of administrative remedies through the EEOC is
an essential element of the Title VII ... statutory scheme[ ]
and, as such, a precondition to bringing such [a] claim[ ]
in federal court.” Id. Filing a timely EEOC complaint and
obtaining a right-to-sue letter are requirements that “appl[y]
with equal force to pro se litigants.” Benardo v. Am. Idol
Prods., Inc., 10 Civ. 6487, 2010 WL 4968177, at *2 (S.D.N.Y.
Dec. 6, 2010). “Where a plaintiff does not submit proof of
receipt of a right-to-sue notice from the EEOC, he has failed
to state a claim.” Dixon v. Krasdale Foods, Inc., 13 Civ.
3045, 2013 WL 6334439, at *3 (S.D.N.Y. Dec. 4, 2013).
Here, Plaintiff has not submitted proof of a right-to-sue letter
nor has he provided any indication that he sought to exhaust
administrative remedies through the EEOC prior to filing this
action. Accordingly, Plaintiff has failed to state a Title VII
claim.
Even if Plaintiff had properly exhausted and obtained a right-
to-sue letter, the Court would still find that Plaintiff has
failed to state a Title VII claim. “[T]o survive a motion to
dismiss, a Title VII plaintiff's complaint must be facially
plausible and allege sufficient facts to give the defendant
fair notice of the basis for the claim; it need not, however,
make out a prima face case.” Brown v. Daikin Am. Inc.,
756 F.3d 219, 228 n. 10 (2d Cir.2014); see also Jenkins
v. New York City Transit Auth., 646 F.Supp.2d 464, 469
(S.D.N.Y.2009) (“To state a claim for disparate impact under
Title VII, a plaintiff ... is not required to ... establish a prima
facie case.”) (citations omitted). “Nevertheless, the elements
of a prima facie case provide an outline of what is necessary
to render a plaintiff's employment discrimination claims for
relief plausible.” Kassman v. KPMG LLP, 925 F.Supp.2d 453,
461 (S.D.N.Y.2013) (internal quotation marks, brackets, and
citation omitted). 8 Thus, to state a race discrimination claim
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under Title VII, a plaintiff “must allege sufficient facts to
[support] a plausible claim that her employer took an adverse
action against her because of her race.” Morales v. City of
New York Dep't of Juvenile Justice, 10 Civ. 829, 2012 WL
180879, at *6 (S.D.N.Y. Jan. 23, 2012); see also Edwards
v. New York State Unified Court Sys., 12 Civ. 46, 2012
WL 6101984, at *4 (S.D.N.Y. Nov. 20, 2012) (explaining
that a plaintiff “must show that the adverse employment
actions occurred ‘because of a protected characteristic” and
that “[t]he plaintiff's claim must offer more than conclusory
statements”) (quoting Patane v. Clark, 508 F.3d 106, 112 (2d
Cir.2007)). To state a disparate impact claim under Title VII,
a plaintiff must allege sufficient facts to support a plausible
claim that an employer's facially neutral practice or policy
disproportionately and adversely affects a particular protected
group in operation. See, e.g., Malone v. New York Pressman's
Union No. 2, 07 Civ. 9583, 2011 WL 2150551, at *8 (S.D.N.Y.
May 31, 2011) (finding that a complaint fails to state a
disparate impact claim where “[n]o facts are [pleaded] that
demonstrate that the complained-of, facially neutral polic[y]
affect[s] [a particular protected group] more harshly”); Trezza
v. The Hartford, Inc., 98 Civ. 2205, 1998 WL 912101, at
*8 (S.D.N.Y. Dec. 30, 1998) (concluding that the plaintiff's
“conclusory assertion internal quotation marks and citation
omitted). Such a pleading cannot withstand a Rule 12(b) (6)
or 12(c) motion.
B. Section 1981
*5 To state a claim under Section 1981, “a plaintiff
must allege facts in support of the following elements:
(1) the plaintiff is a member of a racial minority; (2)
an intent to discriminate on the basis of race by the
defendant; and (3) the discrimination concerned one or more
of the activities enumerated in the statute (i.e., make and
enforce contracts, sue and be sued, give evidence, etc.).”
Mian v. Donaldson, Lufkin & Jenrette Sec. Corp., 7 F.3d
1085, 1087 (2d Cir.1993). 9 “Essential to an action under
Section 1981 are allegations that the defendants' acts were
purposefully discriminatory and racially motivated.” Albert
v. Carovano, 851 F.2d 561, 571 (2d Cir.1988) (citations
omitted). Thus, “to survive a motion to dismiss, the plaintiff
must specifically allege the events claimed to constitute
intentional discrimination as well as circumstances giving
rise to a plausible inference of racially discriminatory intent.”
Yusufv. Vassar Coll., 35 F.3d 709, 713 (2d Cir.1994). Naked
assertions of race discrimination, without any supporting
facts, are insufficient to state a Section 1981 claim. Id.;
see also, e.g., Albert, 851 F.2d at 572 (finding the “naked
allegation that [the defendants] ‘selectively enforced the
College rules against plaintiffs because they are black or
Latin’ “ to be “too conclusory to survive a motion to dismiss”)
(alterations omitted); Hines v. F.J.C Sec. Co., 96 Civ. 2632,
1998 WL 60967, at *3 (S.D.N.Y. Feb. 13, 1998) (concluding
that “[t]he bare assertion that [the][d]efendants denied [the]
[p]laintiff access to the government building” because of
the plaintiff's skin color, “without any specific allegation
of a causal link between the [d]efendants' conduct and the
[p]laintiff's race, is too conclusory to withstand a motion to
dismiss”).
Here, Plaintiff has failed to state a Section 1981 claim
because the complaint contains only conclusory assertions
of race discrimination without any supporting facts. These
naked allegations do not give rise to an inference of racially
discriminatory intent.
C. Section 1983
“To state a claim under § 1983, a plaintiff must allege
that defendants violated plaintiff's federal rights while acting
under color state law.” McGugan v. Aldana–Bernier, 752 F.3d
224, 229 (2d Cir.2014). A private entity acts under color of
state law when: (1) “the State compelled the conduct”; (2)
“there is a sufficiently close nexus between the State and
the private conduct”; or (3) “the private conduct consisted of
activity that has traditionally been the exclusive prerogative
of the State.” Id. (internal quotation marks and citation
omitted). Where, as here, the Section 1983 claim concerns an
alleged violation of the Equal Protection Clause, U.S. Const.
amend. XIV, § 1, the plaintiff “must demonstrate that he was
treated differently than others similarly situated as a result of
intentional or purposeful discrimination.” Phillips v. Girdich,
408 F.3d 124, 129 (2d Cir.2005). “To plead intentional
discrimination, a plaintiff must allege that the state expressly
classified on the basis of a suspect characteristic, applied a
neutral program in an intentionally discriminatory manner, or
promulgated a policy that was motivated by discriminatory
animus and that had an adverse effect.” Morales v.. New
York, 13 Civ. 2586, 2014 WL 2158979, at *13 (S.D.N.Y.
May 22, 2014) (citations omitted). A plaintiff's “conclusory
allegations of disparate treatment” and “personal opinion
that such treatment was motivated by discriminatory intent”
are insufficient to state a Section 1983 claim for an Equal
Protection Clause violation. Id. at *14.
*6 Drawing upon these standards, the Court concludes that
Plaintiff has failed to state a Section 1983 claim. As an initial
matter, Plaintiff has not established that Ports America, the
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Welfare Fund, or Gorski, as private actors, may be sued under
Section 1983. Indeed, the complaint provides no indication
that these Defendants' actions are “fairly attributable” to the
state. See McGugan, 752 F.3d at 229. Plaintiff likewise has not
established that the Waterfront Commission-a bi-state agency
created to combat corruption and criminal activity in the Port
of New York and New Jersey, see N.J. Stat. Ann. § 32:23–1,
et seq.; N.Y. Unconsol. Law § 9801, et seq. (McKinney)-is
an entity amenable to suit under Section 1983. In any event,
Plaintiff has failed to state a Section 1983 claim because he
offers only “conclusory allegations of disparate treatment”
and “his personal opinion that such treatment was motivated
by discriminatory intent.” Morales, 2014 WL 2158979, at
*13. The complaint is devoid of factual allegations to support
a plausible inference of intentional discrimination.
IV. Plaintiff's Claim Against U.S. Health Works
Defendant U.S. Health Works has neither moved to dismiss
nor appeared in this case. Nevertheless, pursuant to its
authority under 28 U.S.C. § 1915(e)(2), the Court finds
that Plaintiff has failed to state a claim against U.S. Health
Works. The Court reaches this conclusion for the same
reasons as stated above, see supra Section III, and because
the complaint includes no allegations concerning U.S. Health
Works, see, e.g., Dove v. Fordham Univ., 56 F.Supp.2d
330, 335 (S.D.N.Y.1999) (“It is well-settled that where the
complaint names a defendant in the caption but contains no
allegations indicating how the defendant violated the law
or injured the plaintiff, a motion to dismiss the complaint
in regard to that defendant should be granted.”) (internal
quotation marks and citation omitted), aff'd sub nom., Dove
v. O'Hare, 210 F.3d 354 (2d Cir.2000). Therefore, the Court
must dismiss the complaint as to U.S. Health Works. 28
U.S.C. § 1915(e)(2)(B)(ii) (“[T]he court shall dismiss the case
at any time if the court determines that ... the action ... fails to
state a claim on which relief may be granted ....”); see also,
e.g., Graham v. Bank of Am., 432 F. App'x 41, 41 (2d Cir.2011)
(noting that “a district court must dismiss an action” brought
in forma pauperis “when the complaint ‘fails to state a claim
on which relief may be granted,’ “ and may do so sua sponte
) (quoting 28 U.S.C. § 1915(e)(2)(B)(ii)).
V. Pro Bono Counsel
A district court has “broad discretion” when deciding whether
to appoint counsel for an indigent litigant. Hodge v. Police
Officers, 802 F.2d 58, 60 (2d Cir.1986); see also Burgos v.
Hopkins, 14 F.3d 787, 789 (2d Cir.1994). Unlike in criminal
cases, “[t]here is no requirement that an indigent litigant
be appointed pro bono counsel in civil matters.” Burgos,
14 F.3d at 789. Indeed, appointment of pro bono counsel
must be done judiciously in order to preserve the “precious
commodity” of volunteer lawyers for those litigants who truly
need assistance. Cooper v. A. Sargenti Co., 877 F.2d 170, 172
(2d Cir.1989).
*7 The standard outlined by the Second Circuit in Hodge
governs the evaluation of a plaintiff's request for counsel.
Under this standard, a court must first determine “whether
the indigent's position seems likely to be of substance.”
Hodge, 802 F.2d at 61. “Only if the claim meets this
threshold requirement” should the court “consider other
criteria.” Cooper, 877 F.2d at 172 (internal quotation marks
omitted). These criteria include: (1) “the indigent's ability
to investigate the crucial facts”; (2) “whether conflicting
evidence implicating the need for cross-examination will
be the major proof presented to the fact finder; (3) “the
indigent's ability to present the case”; (4) “the complexity of
the legal issues”; and (5) “any special reason in th[e] case why
appointment of counsel would be more likely to lead to a just
determination.” Hodge, 802 F.2d at 61–62.
For the same reasons that Plaintiff has failed to state a claim,
see supra Sections III–IV, he has failed to meet the threshold
requirement of showing that his case is “likely to be of
substance,” Hodge, 802 F.2d at 61. Plaintiff's application
for pro bono counsel does not provide any information that
suggests otherwise. Notably, the application asks, “What has
happened in your case that demonstrates the potential merit of
your case?” Pl. Appl. ¶ 1.B, ECF No. 40. In response, Plaintiff
merely asserts that Defendants are “moving to dismiss this
case” and “are all stating that they have nothing to do
with action of my suspension.” Id. This statement neither
answers the question nor indicates that Plaintiff's case is
likely to be of substance. Accordingly, Plaintiff's request for
counsel is denied, subject to reconsideration on Plaintiff's
renewed motion if subsequent submissions demonstrate that
his case is sufficiently meritorious to warrant appointment of
an attorney.
CONCLUSION
For the reasons stated above, it is ORDERED that:
1. The Welfare Fund and Gorski's Rule 12(b)(1) motion to
dismiss is DENIED;
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2. The Welfare Fund and Gorski's Rule 12(b)(6) motion to
dismiss is GRANTED;
3. Ports America's Rule 12(b)(6) motion to dismiss is
GRANTED;
4. The Waterfront Commission's Rule 12(c) motion for
judgment on the pleadings is GRANTED;
5. Plaintiff's amended complaint is DISMISSED with leave
to file a second amended complaint;
6. Plaintiff's request for pro bono counsel is DENIED
without prejudice to renewal;
7. Plaintiff may file a second amended complaint by
October 31, 2014, to address the pleading deficiencies
identified above. If Plaintiff fails to file a second
amended complaint by October 31, 2014, and does not
show good cause to excuse such failure, this action will
be dismissed with prejudice. See Fed.R.Civ.P. 41(b).
Pursuant to 28 U.S.C. § 1915(a)(3), the Court certifies that
any appeal from this order would not be taken in good faith
and, therefore, in forma pauperis status is denied for the
purpose of an appeal. See Coppedge v. United States, 369 U.S.
438, 444–45 (1962).
*8 The Clerk of Court is directed to terminate the motions at
ECF Nos. 24, 34, 40, and 42 and to mail a copy of this order
and all unpublished decisions cited therein to Plaintiff pro se.
SO ORDERED.
All Citations
Not Reported in F.Supp.3d, 2014 WL 4739890
Footnotes
1 Although Plaintiff brings this action against “NYSAPPGU,” the Welfare Fund and Gorski claim that they “are
not aware of any entity named NYSAPPGU.” Welfare Fund–Gorski Mem. 1 n. 1, ECF No. 35. The Welfare
Fund notes that it is appearing in this action on the assumption that, by naming “NYSAPPGU,” Plaintiff intends
to assert a claim against the Welfare Fund, id.-which Plaintiff does not dispute.
2 According to the Welfare Fund and Gorski, Plaintiff improperly identifies Gorski as “Ray Gorsky” in the caption
of the complaint. See Welfare Fund–Gorski Mem. 1.
3 According to Ports America, Plaintiff improperly identifies Ports America as “PO Ports America” in the caption
of the complaint. See Ports Am. Mem. 1, ECF No. 25.
4 Although the Waterfront Commission is sued here as “Waterfront Commission,” its full name is Waterfront
Commission of New York Harbor. See Waterfront Comm'n Mem. 1, ECF No. 43.
5 It is unclear whether “NYSA (Union)” refers to the Welfare Fund.
6 Under Title VII, “[i]t shall be an unlawful employment practice for an employer ... to discriminate against any
individual with respect to his compensation, terms, conditions, or privileges of employment, because of such
individual's race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e–2(a). Under Section 1981, “[a]ll
persons within the jurisdiction of the United States shall have the same right in every State and Territory to
make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and
proceedings for the security of persons and property as is enjoyed by white citizens.” 42 U.S.C. § 1981(a).
Under Section 1983, “[e]very person who, under color of any statute, ordinance, regulation, custom, or usage,
of any State or Territory ... subjects, or causes to be subjected, any citizen of the United States ... to the
deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to
the party injured.” 42 U.S.C. § 1983.
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7 Once again, although Plaintiff does not explicitly refer to Title VII, Section 1981, or Section 1983, in light of his
pro se status, the Court reads the complaint as seeking to assert claims under these federal laws. Therefore,
to resolve Defendants' Rule 12(b)(6) and 12(c) motions, the Court considers whether the complaint states
a claim under these laws.
8 To establish a prima facie case of discrimination, a plaintiff must show that: “(1) she is a member of a protected
group; (2) she is qualified for her position; (3) she suffered an adverse employment action; and (4) the
circumstances give rise to an inference of discrimination.” Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d
Cir.2000) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). To establish a prima facie
disparate impact case, a plaintiff must: “(1) identify a specific employment practice or policy; (2) demonstrate
that a disparity exists; and (3) establish a causal relationship between the two.” Chin v. Port Auth. of New
York & New Jersey, 685 F.3d 135, 151 (2d Cir.2012) (internal quotation marks and citations omitted).
9 A plaintiff may bring an employment discrimination claim under Section 1981. Lauture v. Int'l Bus. Machs.
Corp., 216 F.3d 258, 263–64 (2d Cir.2000).
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Gomez-Kadawid v. Lee, Not Reported in Fed. Supp. (2022)
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2022 WL 676096
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Yahkima GOMEZ-KADAWID, Plaintiff,
v.
Dr. LEE; Dr. Alsabban; Dr. Leantt, Defendants.
20cv01786 (VEC) (DF)
|
Signed 02/03/2022
Attorneys and Law Firms
Yahkima Gomez-Kadawid, Ossining, NY, Pro Se.
Darshan Ishvar Patel, Gabrielle Apfel, Heidell, Pittoni,
Murphy & Bach, LLP, New York, NY, for Defendant Dr. Lee.
Daniel Gerard May, Heidell, Pittoni, Murphy & Bach, LLP,
White Plains, NY, Darshan Ishvar Patel, Gabrielle Apfel,
Heidell, Pittoni, Murphy & Bach, LLP, New York, NY, for
Defendants Dr. Alsabban, Dr. Leantt.
REPORT AND RECOMMENDATION
DEBRA FREEMAN, United States Magistrate Judge
*1 TO THE HONORABLE VALARIE CAPRONI,
U.S.D.J.:
In this pro se civil rights action, which has been referred
to this Court for general pretrial supervision and to report
and recommend on dispositive motions, plaintiff Yahkima
Gomez-Kadawid (“Plaintiff”) has asserted a claim under
42 U.S.C. § 1983 against three defendants whom Plaintiff
initially named in the Complaint as Dr. Lee (described by
Plaintiff as a “dentist/doctor”), Dr. Alsabban (also described
as a “dentist/doctor”), and Dr. Leantt (described as a
“doctor/anesthesia”) (collectively “Defendants”). Defendants
have since been identified by their counsel as Dr. Jessica
Lee (“Lee”), Dr. Sarah Alsabban (“Alsabban”), and Dr. Sarah
Leavitt (“Leavitt”). As set out in more detail below, Plaintiff's
constitutional claim arises out of events that allegedly
occurred at the Bellevue Hospital Center (“Bellevue”), while
Plaintiff was in the custody of the City of New York
as a pretrial detainee. 1 Plaintiff alleges that, after having
been transported to Bellevue from Rikers Island (“Rikers”),
Defendants performed a dental surgical procedure on him
without his consent, causing him pain and suffering.
Currently before the Court is a motion by Defendants, stated
to have been brought pursuant to Rule 12(b)(6) of the
Federal Rules of Civil Procedure, seeking dismissal of the
Complaint, in its entirety. (See Dkt. 29 (motion as filed by
defendants Alsabban and Leavitt); see also Dkts. 49 (request
by defendant Lee to join in the motion), 52 (granting Lee's
request).) For the reasons set out below, I recommend: (1)
that Defendants’ motion be denied without prejudice; (2)
that Plaintiff be provided with assistance from Defendants
in identifying which individuals performed surgery on him
while he was anesthetized; and (3) that Plaintiff then be
directed to amend his Complaint to specify each defendant's
personal involvement in the claimed constitutional violation
and to address certain other issues discussed herein.
BACKGROUND
A. Factual Background
Liberally construed, Plaintiff's Complaint, dated February 9,
2020 (“Compl.”) (Dkt. 2), alleges the following facts, which
are taken as true for the purposes of this motion: 2
On May 22, 2017, Plaintiff was examined at Bellevue.
(Compl., at ECF 2. 3 ) Plaintiff had been brought there from
Rikers after he “complain[ed] of a wisdom tooth that was
partly coming out[, for which he requested] painkillers,” and
after he was examined by a dentist at Rikers. (Id.) At Bellevue,
Plaintiff was examined by defendants Lee and Alsabban, both
dentists, who told him that his tooth “needed to be extracted
as it was impacted and the source of the pain.” (Id.) Plaintiff,
however, alleges that he did not want to have his tooth
extracted because, after being told both that “the surgical
procedure may not have the results that were expected,” as
well as “what might happen if no treatment was received,”
he believed that “[t]he risks [of having the surgery] were too
high.” (Id.)
*2 According to Plaintiff, he was told that an
anesthesiologist, Dr. Mastery, would give him medication to
“ ‘calm down.’ ” (Id., at ECF 3.) Plaintiff alleges, though,
that, when he told Dr. Mastery (as well as defendants Lee and
Alsabban) that he “didn't want an invasive surgery performed
on him,” Dr. Mastery refused to administer anesthesia to him.
(Id.) Nonetheless, Plaintiff alleges that defendant Leavitt,
who was also an anesthesiologist, took over Dr. Mastery's
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role and proceeded to administer the anesthesia. (Id.) Plaintiff
asserts in the Complaint that he “never had a chance,” as
he did not have “enough time to discuss his condition and
treatment with the defendant health care providers and none
of his questions [were] answered to his satisfaction.” (Id.)
Plaintiff emphasizes that, “from the beginning[,] [he] [did] not
giv[e] consent for such an invasive surgical procedure.” (Id.;
see also id. (alleging that “[h]e did not agree to have
the surgery[,] but they went and did it without any iota
of consent by [ ] [P]laintiff”).) More specifically, Plaintiff
alleges that he “did not agree to [the surgery] verbally and
most defin[i]tely did not agree to consent [to] the invasive
procedure on paper.” (Id.) Plaintiff claims that Defendants
“capriciously and maliciously operated on [him] without his
permission, thereafter causing [him] the unnecessary and
wonton infliction of permanent pain.” (Id., at ECF 3-4.)
Plaintiff also claims that Defendants “capriciously neglected
to use reasonable care in exercising their skill.” (Id., at ECF
4.)
With respect to his claimed damages, Plaintiff alleges that,
as a result of Defendants’ actions, he “now has perman[ent]
pain and suffering.” (Id.) He asserts that “[e]ven the sof[t]est
foods are painful to eat [and that] [his] bottom left row of
teeth are extremely sensitive to heat and cold.” (Id.) He also
claims to have had “continuous bleeding, severe swelling
and infection,” as well as “perman[ent] los[s] of sensation
[in his] lips, gums, teeth, tongue and chin.” (Id.) He alleges
that the surgery caused “[d]amage to adjacent structure,
teeth, soft tissue and nerves,” that “[b]etween 5-6 teeth
were subsequently chipped and cracked during the invasive
extraction,” and that “a spicula [ ] was stuck in his gums
from the operation site.” (Id., at ECF 4-5.) For his injuries,
Plaintiff seeks $300,000.00 in compensatory and punitive
damages, and an injunction requiring doctors at Bellevue to
“refrain from practicing on pretrial detainees without written
consent.” (Id., at ECF 5.) 4
B. Procedural History
Plaintiff filed his pro se Complaint on February 9, 2020, 5
claiming that defendants Lee, Alsabban, and Leavitt violated
his federally protected rights by, as described above,
performing a surgical procedure on him without his consent,
causing him injury. (See generally Compl.)
After defendants Alsabban and Leavitt were served with
process by the United States Marshals Service (“USMS”)
(Dkts. 13, 14), they filed the instant motion to dismiss
Plaintiff's Complaint, stating in their Notice of Motion (Dkt.
29) that the motion was being made pursuant to Rule 12(b)
(6) of the Federal Rules of Civil Procedure, “for failure to
state a cause of action against Defendants” (id.). That motion,
which was filed on April 16, 2021, was supported by an
attorney declaration (Dkt. 30) and a memorandum of law
(Memorandum of Law in Support of Defendants’ Motion To
Dismiss Plaintiff's Complaint Pursuant to F.R.C.P. 12(b)(6),
dated Apr. 16, 2021 (“Def. Mem.”) (Dkt. 31)). Plaintiff filed
an opposition to the motion on June 15, 2021 (see Motion
To Deny Defendants[’] Motion To Dismiss, dated June 15,
2021 (“Pl. Opp.”) (Dkt. 47)), and Alsabban and Leavitt filed
a reply on July 8, 2021 (Reply Memorandum of Law in
Further Support of Defendants’ Motion To Dismiss Plaintiff's
Complaint Pursuant to F.R.C.P. 12(b)(6), dated July 8, 2021
(“Def. Reply”) (Dkt. 48)).
*3 Although the USMS was unsuccessful in serving
defendant Lee (see Dkt. 12), Lee eventually waived service
(see Dkt. 41), and then, through counsel, wrote to the Court
on July 14, 2021, to request leave to file a separate motion to
dismiss or, alternatively, to join the motion filed by defendants
Alsabban and Leavitt, which was still pending (see Letter to
the Court from Gabrielle Apfel, Esq., dated July 14, 2021
(“Lee Ltr.”) (Dkt. 49)). By Order dated July 21, 2021, this
Court deemed Lee to have joined the pending motion by
incorporation of the arguments made in her counsel's letter
and gave Plaintiff until August 16, 2021 to file a supplemental
opposition, if he wished to do so. (Dkt. 52.) It later became
apparent to this Court, however, that Plaintiff likely did
not receive a copy of the July 21 Order. Accordingly, on
December 23, 2021, this Court issued a follow-up Order,
giving Plaintiff until January 21, 2022 to file a supplemental
opposition. (Dkt. 53.)
Although Plaintiff did not timely file a supplemental
opposition, he apparently served such a submission on
Defendants’ counsel, who then filed it with the Court on
January 25, 2022. (See Letter to the Court from Darshan Patel,
Esq., dated Jan. 25, 2022 (Dkt. 54), appending Pl. Suppl. Opp.
(Dkt. 54-1).) With leave of Court, Defendants then submitted
a letter constituting a supplemental reply. (Letter to the Court
from Darshan Patel, Esq., dated Feb. 2, 2022 (“Def. Supp.
Reply”) (Dkt. 48).)
With the exception of efforts by Defendants’ counsel to
procure Plaintiff's medical records, discovery in this action
has been stayed pending the resolution of the motion to
dismiss. (See Dkt. 37.)
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DISCUSSION
I. APPLICABLE LEGAL STANDARDS
Although defendants Alsabban and Leavitt's motion largely
focuses on Rule 12(b)(6) and was ostensibly filed pursuant to
that Rule, they lead off their legal arguments by contending
that Plaintiff's Complaint fails to satisfy the pleading
standards of Rule 8(a) of the Federal Rules of Civil Procedure,
which requires that a complaint contain “a short and plain
statement of the claim showing that the pleader is entitled to
relief.” Fed. R. Civ. P. 8(a). Likewise, defendant Lee invokes
Rule 8(a) at the start of her letter joining the motion. (See
Lee Ltr., at ECF 2.) Accordingly, this Court will address the
standards governing motions brought pursuant to both Rule
8(a) and Rule 12(b)(6).
A. Rule 8(a)
Under Rule 8(a), a pleaded claim for relief must be “plausible
on its face,” Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007), meaning that the plaintiff must plead enough
factual detail to allow the Court to draw the inference that
the defendant is liable for the alleged misconduct, Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009). “[A] claim has facial
plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id.
The fundamental purpose of Rule 8(a), though, is “to give
the defendant fair notice of what the ... claim is and the
grounds upon which it rests.” Twombly, 550 U.S. at 555
(internal quotation marks and citation omitted); see also
Wynder v. McMahon, 360 F.3d 73, 79 (2d Cir. 2004) (“The
key to Rule 8(a)’s requirements is whether adequate notice
is given.” (citation omitted)); Salahuddin v. Cuomo, 861 F.2d
40, 42 (2d Cir. 1988) (noting that “the principal function of
pleadings under the Federal Rules is to give the adverse party
fair notice of the claim asserted so as to enable him to answer
and prepare for trial” (citation omitted)). As each defendant
must be given fair notice of the claims that he or she is facing,
Rule 8(a) generally prohibits “group pleading,” i.e., where
defendants are jointly named in the plaintiff's allegations,
without differentiation. See, e.g., Fallon v. 18 Greenwich
Avenue, LLC, No. 19cv9579 (MKV), 2021 WL 1105066, at
*2 (S.D.N.Y. Mar. 23, 2021) (citing cases). Dismissal under
Rule 8(a), however, “is usually reserved for those cases in
which the complaint is so confused, ambiguous, vague, or
otherwise intelligible that its true substance, if any, is well
disguised.” Salahuddin, 861 F.2d at 42.
B. Rule 12(b)(6)
*4 A complaint may be dismissed pursuant to Rule 12(b)(6)
of the Federal Rules of Civil Procedure where it fails to state
a claim on which relief may be granted. Fed. R. Civ. P. 12(b)
(6). In deciding a motion to dismiss, the Court must “accept as
true all factual statements alleged in the complaint and draw
all reasonable inferences in favor of the non-moving party.”
McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d
Cir. 2007); accord Jaghory v. New York State Dep't of Educ.,
131 F.3d 326, 329 (2d Cir. 1997). The issue is not whether
the plaintiff will ultimately prevail, but whether his claim, as
pleaded, is sufficient to afford him the opportunity to proceed
on the evidence. See Chance v. Armstrong, 143 F.3d 698, 701
(2d Cir. 1998).
Thus, the Court's function on a motion to dismiss is “not
to weigh the evidence that might be presented at trial but
merely to determine whether the complaint itself is legally
sufficient.” Kopec v. Coughlin, 922 F.2d 152, 155 (2d Cir.
1991) (internal quotation marks and citation omitted). At
the same time, “[c]onclusory allegations or legal conclusions
masquerading as factual conclusions will not suffice to
[defeat] a motion to dismiss.” Achtman v. Kirby, McInerney
& Squire, LLP, 464 F.3d 328, 337 (2d Cir. 2006) (internal
quotation marks and citation omitted, alterations in original).
The “plausibility” standard articulated in Twombly applies to
motions to dismiss under Rule 12(b)(6), such that, to survive
a Rule 12(b)(6) motion, a complaint “must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’ ” Iqbal, 556 U.S. at 678 (2009) (quoting
Twombly, 550 U.S. at 570).
Additionally, where the pleading at issue on a Rule 12(b)(6)
motion has been drafted by a pro se plaintiff, the Court should
be mindful that “the submissions of a pro se litigant must
be construed liberally and interpreted ‘to raise the strongest
arguments that they suggest.’ ” Triestman v. Fed. Bureau of
Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (citation omitted,
collecting cases); accord Green v. Dep't of Educ. of the City
of New York, 16 F.4th 1070, 1074 (2d Cir. 2021); see also
Hughes v. Rowe, 449 U.S. 5, 9 (1980) (noting that a pro se
party's pleadings are held to a less stringent standard than the
pleadings drafted by lawyers); Harris v. Mills, 572 F.3d 66, 72
(2d Cir. 2009) (“Even after Twombly ... we remain obligated
to construe a pro se complaint liberally.”). This is especially
true in the context of civil rights complaints. See Weinstein v.
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Albright, 261 F.3d 127, 132 (2d Cir. 2001); see also Gregory
v. Daly, 243 F.3d 687, 691 (2d Cir. 2001) (noting that a court
must be “mindful of the care exercised in this Circuit to avoid
hastily dismissing complaints of civil rights violations”).
II. DEFENDANTS’ MOTION TO DISMISS
Defendants Alsabban and Leavitt argue in their motion
that Plaintiff has not satisfied the pleading requirements
of Rule 8(a) because his pleading is “vague, sparse, and
does not provide each [d]efendant with fair notice of the
claims asserted against her” (Def. Mem., at 4), and defendant
Lee adds, in the same vein, that Plaintiff's allegations are
too “conclusory” (Lee Ltr., at ECF 2). More specifically,
Defendants contend that Plaintiff's Complaint is deficient
under Rule 8(a) because: (1) by tending to refer collectively
to “defendants” in his Complaint, Plaintiff has failed to
“articulate and differentiate” the manner in which each
defendant separately violated his rights (see Def. Mem., at 4,
Lee Ltr., at ECF 2; see also Def. Reply, at ECF 2-3), and (2)
Plaintiff has purportedly failed to allege facts establishing that
Leavitt had any “personal involvement” at all in the claimed
constitutional deprivation (see Def. Mem., at 4-5).
*5 As for their arguments under Rule 12(b)(6), Defendants
contend that Plaintiff has not adequately pleaded the
elements of a constitutional claim that they were deliberately
indifferent to his serious medical needs (see Def. Mem., at
5-9; Lee Ltr., at ECF 2-3; Def. Reply, at ECF 3-6), or the
elements of a constitutional claim that they violated his right
to medical information (see Def. Mem., at 9-11; Lee Ltr., at
ECF 3; Def. Reply, at ECF 6-7). Lastly, Defendants contend
that, to the extent that Plaintiff's allegations may be construed
to raise state-law claims of medical malpractice and/or lack
of informed consent prior to treatment, Plaintiff has failed
to comply with the state-law notice-of-claim requirement or
shown that those claims are timely. (Def. Mem., at 11-13; Lee
Ltr., at 3; Def. Reply, at 7.)
As a threshold matter, this Court finds that, based
on the fair import of Plaintiff's allegations, Defendants
have significantly mischaracterized Plaintiff's federal claim.
Virtually the entirety of Defendants’ motion is predicated
on a seeming misunderstanding that Plaintiff is attempting
to plead a constitutional claim that Defendants were either
“deliberately indifferent” to his serious medical needs or
failed to secure his “informed consent” before performing
a surgical procedure on him. (See Def. Mem., at 5-11;
Lee Ltr., at ECF 2-3; see generally Def. Reply.) Fairly
read, Plaintiff's Complaint does not suggest that he had
serious medical needs to which Defendants were deliberately
indifferent, 6 or that he gave consent to surgery without
having first been adequately informed of its risks. 7 Rather,
Plaintiff's allegations (construed liberally, in light of his
pro se status), plead that Defendants forcibly performed a
surgical procedure on him without obtaining any consent
from him at all, which, if proven (and if not adequately
justified by a legitimate governmental interest), would
constitute a violation of Plaintiff's federal constitutional right
to substantive due process.
This Court will not, therefore, labor through a strained
analysis of the objective and subjective elements of deliberate
indifference, as Defendants do in their motion papers. Nor
will this Court trek down a path of analyzing the law that
applies in cases where a plaintiff consented to a medical
procedure, but asserted that his or her consent was not fully
informed. To the extent Defendants’ motion to dismiss is
based on Plaintiff's supposed failure to plead the elements of
a constitutional claim based either on deliberate indifference
to his medical needs or the lack of informed consent, I simply
recommend that the motion be denied, as missing the mark.
*6 This Court will, however, consider the more general
argument that Defendants have raised under Rule 8(a) –
that Plaintiff's tendency to engage in group pleading, i.e.,
to lump Defendants together in describing their conduct,
rather than specifying the conduct of each, is insufficient
to give Defendants fair notice of the claims against them.
This Court will also sua sponte consider a corollary issue:
whether Plaintiff's failure to identify exactly which defendant
performed the surgery (while Plaintiff was under anesthesia
and thus unable to perceive their different roles) should be
found fatal to his Section 1983 claim under Rule 12(b)(6),
in light of the requirement that each defendant must be
alleged to have had direct, personal involvement in whatever
constitutional violation is being claimed.
Finally, with respect to any supplemental state-law claims
that Plaintiff may be attempting to assert, this Court agrees in
part, and disagrees in part, with Defendants’ characterization
of any such claims. To the extent Defendants suggest that
Plaintiff may be seeking to plead a state-law claim based on
lack of informed consent (see Def. Mem., at 11-12; Lee Ltr.,
at ECF 3; Def. Suppl. Reply, at 1), this Court once again
finds that Defendants have misread Plaintiff's allegations;
given that Plaintiff alleges that he gave no consent at all to
the surgery, his pleading should be read, instead, to plead
the tort of battery. On the other hand, liberally construing
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Plaintiff's allegations, this Court does find (as Defendants also
suggest), that Plaintiff may be attempting to plead a medical-
malpractice claim, given his allegation that, in performing
the surgery, Defendants “neglected to use reasonable care
in exercising their skill.” (Compl., at ECF 4.) Regardless of
how Plaintiff's potential state-law claims should be construed,
however, this Court will consider the procedural issue raised
by Defendants regarding his failure to plead that he timely
served a notice of claim on their employer, NYC Health +
Hospitals (formerly known as the New York City Health &
Hospitals Corporation) (“H+H”) – an argument that would
apply equally to a lack-of-informed-consent claim, a battery
claim, or a medical-malpractice claim (see Def. Mem., at
11-12, Lee Ltr., at ECF 3) – and will also consider whether
Plaintiff's state-law claims are time-barred. 8
A. Sufficiency of Plaintiff's Pleading Under Rule 8(a)
As set out above, Rule 8(a) requires a complaint to provide
“fair notice of the grounds for entitlement to relief.” Twombly,
550 U.S. at 561. A complaint generally “fail[s] to meet that
minimum requirement where allegations ‘lump[ ] all the
defendants together in each claim and provid[e] no factual
basis to distinguish their conduct.’ ” Farmer v. Cnty. of
Westchester, No. 18cv2691 (NSR), 2021 WL 4199944, at
*6 (S.D.N.Y. Sept. 15, 2021) (quoting Atuahene v. City of
Hartford, 10 F. App'x 33, 34 (2d Cir. 2001) (Summary
Order) (second and third alterations in original)); Monterey
Bay Military Hous., LLC v. Ambac Assurance Corp., 531 F.
Supp. 3d 673, 728 (S.D.N.Y. 2021) (“It is well-established in
this Circuit that plaintiffs cannot simply ‘lump’ defendants
together for pleading purposes.... [Rule 8(a)] ... is violated
where a plaintiff, by engaging in ‘group pleading,’ fails
to give each defendant fair notice of the claims against
it.” (internal quotation marks and citations omitted).)
*7 Nonetheless, a motion to dismiss for group pleading
may fail when, “even though the plaintiff refers to defendants
generally rather than a particular defendant individually, it
is sufficiently clear that in the particular factual context of
[the] case ... the complaint furnishes adequate notice for
initial pleading purposes of plaintiff's claim of wrongdoing.”
Arias v. E. Hartford, No. 3:20-CV-0895 (JCH), 2021 WL
3268846, at *4 (D. Conn. July 30, 2021) (internal quotation
marks and citation omitted; alteration in original). Thus,
a complaint may satisfy Rule 8(a)’s notice requirement,
even when defendants are referred to collectively when,
“given the specific circumstances of the case and drawing
all reasonable inferences in the plaintiff's favor, there [is] an
understandable explanation for why the [c]omplaint was not
more particularized.” Id. (citing Bruce Kirby, Inc. v. Quarter
Moon, Inc., No. 3:17cv1389 (JAM), 2018 WL 3614120, at
*1-2 (D. Conn. July 27, 2018)).
In his opposition to Defendants’ motion, Plaintiff responds to
Defendants’ challenge to the adequacy of his pleading under
Rule 8(a) by arguing that, if his allegations are insufficiently
specific regarding the surgery he underwent against his will,
this is only “because he was drugged, put under, and rendered
unconscious [and] therefore not aware of what subsequently
happened.” (Pl. Opp., at ECF 12.) Plaintiff further argues that
“this can[not] and should not be his fault.” (Id.)
Given the allegations in this pro se action, and drawing all
reasonable inferences in Plaintiff's favor, it is understandable
why Plaintiff would not have been able to specify which
defendant(s) allegedly performed the surgery in question –
according to Plaintiff, he was anesthetized and unconscious
while undergoing that surgery. Under these circumstances,
I recommend that the Court find that, even though Plaintiff
has referred to Defendants collectively with respect to his
allegations that they performed surgery on him without his
consent, his allegations are sufficient to satisfy the notice
requirement of Rule 8(a). See Bruce Kirby, Inc., 2018 WL
3614120, at *2 (“It is true that the complaint here often
refers to all four defendants collectively.... Nonetheless, in
the particular factual context of this case[,] ... and in light
of well-pleaded facts about the prior association of the ...
defendants, I conclude that the complaint furnishes adequate
notice for initial pleading purposes of plaintiff's claim of
wrongdoing.”). 9
B. Sufficiency of Plaintiff's Section 1983 Claim Under
Rule 12(b)(6)
As noted above, courts must liberally construe a pro se
litigant's submissions, “reading such submissions to raise
the strongest arguments that they suggest.” Green, 16 F.4th
at 1074 (internal quotation marks and citation omitted). In
addition, “the mandate to read the papers of pro se litigants
generously makes it appropriate to consider plaintiff's
additional materials, such as his opposition memorandum”
to supplement the allegations made in his pleading. Burgess
v. Goord, No. 98cv2077 (SAS), 1999 WL 33458, at *1
n.1 (S.D.N.Y. Jan. 26, 1999) (internal quotation marks and
citation omitted); see also Sommersett v. City of New York,
No. 09cv5916 (LTS) (KNF), 2011 WL 2565301, at *3
(S.D.N.Y. June 28, 2011) (noting that court may consider
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statements made by a pro se litigant in papers such as legal
memoranda “to supplement or clarify the [litigant's] pleaded
allegations”)).
Here, the main thrust of Plaintiff's allegations, as set forth in
his Complaint and amplified by his opposition submissions, is
that, without first obtaining Plaintiff's consent to anesthetize
him and extract his tooth, Defendants did so anyway, by force.
(Compl., at ECF 2-4; see also Pl. Opp., at ECF 9 (stating that
“Plaintiff told [D]efendants he did not want to undergo any
medical surgeries a couple of times,” but, “[w]hile handcuffed
to the metal rail of the bed[,] [h]e was put under some type
of medical drugs by Dr. Lea[vi]tt, rendering him unable to
resist”); Pl. Suppl. Opp., at ECF 1 (stating that Defendants
“intrud[ed] upon the body of Plaintiff without his oral or
written consent by performing oral surgery ...”).) The Court
therefore liberally construes Plaintiff's Complaint as asserting
a claim that Defendants violated Plaintiff's right to substantive
due process by performing a surgical procedure on him
without his consent. Although Defendants have not addressed
this claim in their motion, the Court would nonetheless have
the authority to dismiss the claim sua sponte, if it fails to
state a claim on which relief may be granted, see 28 U.S.C.
§§ 1915(e)(2)(B)(ii), 1915A(b)(1); Lomax v. Ortiz-Marquez,
140 S. Ct. 1721, 1725 (2020), and this Court will therefore
consider its viability.
1. The Substantive Due-Process
Right To Refuse Medical Treatment
*8 In his opposition (Pl. Opp., at ECF 7), Plaintiff aptly cites
to Cruzan ex rel. Cruzan v. Director, Mo. Dep't of Health,
497 U.S. 261 (1990), a case in which an accident victim in a
state hospital was recognized, by the Supreme Court, to have
had “a general liberty interest in refusing medical treatment”
that was protected by the Due Process Clause of the 14th
Amendment, id., at 278-79 (finding that a competent person
would have a “constitutionally protected right to refuse
lifesaving hydration and nutrition”). This right to refuse
medical treatment has since been recognized, as well, in the
context of persons in state custody because they were accused
or convicted of committing crimes. In Pabon, 459 F.3d 241,
for example, a case involving a convicted prisoner, the Second
Circuit held that the 14th Amendment protected the plaintiff's
“liberty interest in making the decisions that affect[ed] his
health and bodily integrity” and afforded him the right to
make “decisions regarding the administration of treatment,”
id., at 253; see also id., at 249 (“[T]he Supreme Court has told
us that inmates do not abandon their constitutional rights at
the prison door.”).
Determining that an individual “has a ‘liberty interest’ under
the Due Process Clause does not[, however,] end the inquiry;
[rather,] ‘whether [an individual's] constitutional rights have
been violated must be determined by balancing his liberty
interests against the relevant state interests.’ ” Cruzan, 497
U.S. at 279 (footnote, internal quotation marks, and citation
omitted). “A prisoner can establish liability for the violation
of a constitutional right only if his individual liberty interest
outweighs the relevant countervailing state interests.” Pabon,
459 F.3d, at 252 (citing Turner v. Safley, 482 U.S. 78, 89
(1987)). Accordingly, “[w]hile decisions regarding medical
treatment are normally private matters to be resolved between
an individual and his or her physician, when these decisions
occur in the prison [or jail] setting, the government has a role.”
Id., at 249.
In a “prison environment,” there is a legitimate governmental
objective “in combating the danger posed by a person to
both himself and others.” Washington v. Harper, 494 U.S.
210, 225 (1990). Indeed, in the prison setting, government
officials “have not only an interest in ensuring the safety
of ... staff[ ] and administrative personnel, but also the duty
to take reasonable measures for the prisoners’ own safety.”
Id. In short, “a prisoner's right to refuse medical treatment
need not be honored if legitimate penological interests
require the prisoner to be treated.” Pabon, 459 F.3d, at 252
(noting that “[o]bvious examples would be the treatment
of an infectious disease, avoidance of contaminations, or
prevention of disruption by illness-induced behaviors”).
A pretrial detainee, however, is somewhat differently situated
than a convicted prisoner, as, under the 14th Amendment,
a pretrial detainee “may not be punished at all,” Darnell
v. Pineiro, 849 F.3d 17, 35 (2d Cir. 2017), and thus the
court's inquiry cannot turn on whether medical treatment may
be justified by legitimate “penological” interests. A pretrial
detainee may still be made subject to the conditions and
restrictions of government officials, but only “so long as those
conditions and restrictions do not amount to punishment, or
otherwise violate the Constitution.” Bell v. Wolfish, 441 U.S.
520, 536-37 (1979).
“[I]f a particular condition or restriction of pretrial detention
is reasonably related to a legitimate governmental objective,
it does not, without more, amount to ‘punishment.’ ” Id.,
at 539 (footnote omitted). On the other hand, if it “is not
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reasonably related to a legitimate goal – if it is arbitrary
or purposeless – a court permissibly may infer that the
purpose of the governmental action is punishment that may
not constitutionally be inflicted upon detainees [because they
are] detainees.” Id.; accord Almighty Supreme Born Allah v.
Milling, 876 F.3d 48, 55 (2d Cir. 2017). Typically, a pretrial
detainee's liberty interest in refusing medical treatment may
only be “overridden in an emergency, where failure to [treat]
forcibly would result in a substantial likelihood of physical
harm to that patient, other patients, or to staff members of
the institution.” Ambrose v. Dell, No. 12cv6721 (JPO), 2016
WL 894456, at *3 (S.D.N.Y. Mar. 8, 2016) (internal quotation
marks and citation omitted). Further, it has been held that,
before a pretrial detainee may be subjected to forced medical
treatment, “a medical professional must make a finding of
medical necessity.” Id.
*9 As a pleading matter, a pretrial detainee must “plausibly
plead” the following with respect to a claim of a violation
of his right of substantive due process: that the defendant
“(1) with punitive intent, (2) personally engaged in conduct
that caused the challenged [deprivation of a constitutional
right].” Turkmen v. Hasty, 789 F.3d 218, 237-38 (2d Cir.
2015) (citation omitted), judgment reversed in part, vacated
in part, on other grounds, sub nom. Ziglar v. Abassi, 137
S. Ct. 1843 (2017). The element of “punitive intent” may
be inferred from allegations that plausibly suggest that the
challenged deprivation was arbitrary or purposeless (and thus
not reasonably related to a legitimate governmental interest),
see id., at 238, or that it was “excessive” in relation to
a legitimate governmental purpose, see Edrei v. Maguire,
892 F.3d 525, 535 (2d Cir. 2018) (quoting Kingsley v.
Hendrickson, 576 U.S. 389, 398 (2015)). Where the alleged
constitutional violation was forced medical treatment, a
plaintiff's allegations may also be sufficient to plead punitive
intent where they assert that a false reason was given for
the treatment, see Lewis v. Huebner, No. 17cv8101 (KMK),
2020 WL 1244254, at *8 (S.D.N.Y. Mar. 16, 2020) (finding
that psychiatric patient had adequately pleaded that a forced
injection of medication lacked “a rational connection to a
‘legitimate governmental objective,’ ” where she alleged that
a hospital security officer had fabricated the reason for why
she was injected), or where they give rise to a plausible
inference that the situation did not pose an emergency, cf.
Ambrose, 2016 WL 894456, at *3.
In this case, Plaintiff alleges that, after being informed by
defendant Lee and/or defendant Alsabban of the relative risks
of having, and not having, oral surgery (see Compl., at ECF
2 (alleging that he was told that “the surgical procedure
[might] not have the results that were expected” and was also
told “what might happen if no treatment was received”), he
responded that he did not want to have surgery performed,
given his belief that the risks of surgery “were too high” (see
id.). While Plaintiff does allege that Lee and Alsabban told
him that the tooth “needed to be extracted as it was impacted
and the source of the pain” (id.), the fact that Plaintiff also
alleges that he was advised of the relative risks of proceeding
or not proceeding with the surgery gives rise to a plausible
inference that the situation did not, at that time, pose a medical
emergency. The same inference may be plausibly drawn from
Plaintiff's allegation that the first anesthesiologist who was
called in, Dr. Mastery, refused to administer anesthesia, when
Plaintiff stated that he did not consent. (See id., at ECF 3.)
Moreover, a plausible inference may be drawn from the
pleaded facts that, while Plaintiff's condition may have been
causing him pain, nothing about his condition posed any
threat to other detainees or to Rikers or Bellevue staff.
Plaintiff also pleads that, in performing the surgery against his
will, Defendants acted “capriciously” and “maliciously” (id.),
and, in his opposition (which, as noted above, the Court
may consider for the purpose of clarifying or supplementing
his pleaded allegations), he asserts that, in proceeding with
the surgery against his will, Defendants “either wanted to
practice their craft on Plaintiff or they wished him harm,
or[,] at least, were totally unconcerned with his welfare” (Pl.
Opp., at ECF 8; see also Pl. Supp. Opp., at ECF 3
(characterizing Defendants’ actions as “a capr[i]cious and
coordinated intrusive attack on [ ] Plaintiff whom they
thought, because of his mental health[,] that they could do
as they pleased ...”)). Even though these allegations are
speculative as to Defendants’ true intent in proceeding with
the surgery in the absence of Plaintiff's consent, they do,
at a minimum, suggest that Defendants lacked a legitimate
governmental interest in performing the surgery.
Taking Plaintiff's allegations as a whole, this Court finds
that he has adequately pleaded a substantive due-process
violation, at least with respect to the requirement that he allege
that, with punitive intent (i.e., with the lack of a legitimate
governmental interest), Defendants deprived him of a liberty
interest protected by the Due Process Clause of the 14th
Amendment.
2. Personal-Involvement Requirement
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*10 Still, to state a claim under Section 1983 against an
individual government actor, a plaintiff must not only allege a
constitutional deprivation, but must also allege facts showing
that the individual defendant had a direct and personal
involvement in that deprivation. See Spavone v. N.Y. State
Dep't of Corr. Serv., 719 F.3d 127, 135 (2d Cir. 2013) (“It
is well settled in this Circuit that personal involvement of
defendants in the alleged constitutional deprivation[ ] is a
prerequisite to an award of damages under § 1983.” (internal
quotation marks and citation omitted)). A defendant may
not be held liable under Section 1983 solely because that
defendant employed or supervised a person who violated the
plaintiff's rights. See Iqbal, 556 U.S. at 676 (“Government
officials may not be held liable for the unconstitutional
conduct of their subordinates under a theory of respondeat
superior.”). “Instead, a plaintiff must plead and prove ‘that
each Government-official defendant, through the official's
own individual actions, has violated the Constitution.’ ”
Tangreti v. Bachmann, 983 F.3d 609, 618 (2d Cir. 2020)
(quoting Iqbal, 556 U.S. at 676 (emphasis added)); see also
id., at 620 (“To hold a [government] official liable under
§ 1983, a plaintiff must plead and prove the elements of
the underlying constitutional violation directly against the
official....” (emphasis added)).
Here, despite Defendants’ arguments to the contrary (see
Def. Mem., at 4-5), Plaintiff clearly alleges in his Complaint
that defendant Leavitt anesthetized him without his consent
(Compl., at ECF 3 (alleging that, after Plaintiff had
“complained [that he] didn't want an invasive surgery
performed on him,” Dr. Mastery refused to anesthetize him,
but then defendant Leavitt “went and took [Dr. Mastery's]
place, [and] administered anesthesia that put [ ] [P]laintiff
under”).) As to the roles of defendants Lee and Alsabban,
however, Plaintiff has only been able to assert that, before
the surgery, “Dr. Lee was insistent on Plaintiff[’s] getting the
operation, and [that] Dr. Alsab[b]an would back her up” (Pl.
Opp., at ECF 9), and that the surgery was then performed.
Plaintiff makes plain that he has not been able to specify that
one of these two dentists, or both, actually performed the
surgery, as, after he was placed under anesthesia, he did “not
know what subsequently happened or who did what.” (Id.)
In the Section 1983 context, a plaintiff may not state a claim
by relying on the doctrine of res ipsa loquitur, Quick v.
Short, No. 87cv0695 (CSH),1990 WL 29427, at *8 (S.D.N.Y.
Mar. 15, 1990), and thus Plaintiff may not rely on the mere
fact that the surgery evidently occurred to prove that one
or more of the defendants performed it, see, e.g., Smith v.
Cpl. Louriero, No. 3:16-CV-0741, 2017 WL 2952819, at *3
(M.D. Pa. June. 9, 2017) (finding that, where plaintiff alleged
that he was either unconscious or “blacked out” at the time
of his arrest and transport to the hospital, but later woke up
to discover that he had suffered injuries, he could not rely
on a res ipsa loquitur theory to establish that the defendants
had used excessive force against him, as, with respect to a
Section 1983 claim, a plaintiff “must specifically identify
the act that caused his injury” (internal quotation marks and
citation omitted)), report & recommendation adopted, 2017
WL 2926020 (M.D. Pa. July 7, 2017). Rather, in order to
proceed with his constitutional claims, Plaintiff must plead
the specific conduct in which each defendant engaged. See
Tangreti, 983 F.3d, at 620.
This Court, however, takes note of the fact that Plaintiff may
have a viable due-process claim against defendants Lee and
Alsabban, and that the information that would enable him to
assert that claim against those defendants (i.e., information
identifying who performed the surgery) is apparently not
within his knowledge or possession. In light of the Court's
duty to assist a pro se plaintiff in identifying defendants,
especially where the pro se litigant is incarcerated and may
thus have particular difficulty uncovering the information on
his own, see Valentin v. Dinkins, 121 F.3d 72, 75-76 (2d Cir.
1997), it would be appropriate for the Court to allow Plaintiff
to obtain some necessary discovery here, prior to subjecting
his due-process claim against these defendants to dismissal,
see id., at 76 (finding it an abuse of discretion for district
court to have dismissed complaint of pro se prisoner who was
unable to identify arresting officers, without first allowing
plaintiff the opportunity to obtain responses to interrogatories
or enlisting the aid of the City of New York to unseal plaintiff's
case file so that the officers could be identified).
*11 Accordingly, and so as to streamline this aspect of the
discovery process, I recommend that the Court direct counsel
for Defendants to inform Plaintiff and the Court, within a
specified time, of the identity of the person or persons who
performed the surgical procedure on Plaintiff at Bellevue
on May 22, 2017 (and that Defendants’ counsel further be
directed to reach out, if necessary, to Defendants’ employer
(H+H), to obtain this information). I additionally recommend
that, once Plaintiff is informed of the identity of the dentists or
other persons who participated in his surgery, he be directed,
also within a specified time, not only to amend his Complaint,
as needed, to name as defendants those individuals who
performed the surgical procedural on him, but also to allege
facts regarding their personal involvement in the claimed
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violation of his constitutional rights. If the Court adopts this
recommendation, but Plaintiff fails to amend his Complaint
within the time permitted, then I recommend that his Section
1983 due-process claim be dismissed as against defendants
Lee and Alsabban, and that he only be permitted to proceed
with that claim against defendant Leavitt.
C. Viability of Plaintiff's State-Law Claims
In light of the fact that Plaintiff alleges that he never consented
at all to the surgery that was performed on him, this Court
construes Plaintiff's Complaint as asserting a state-law claim
of battery as against all Defendants, as opposed to a claim of
lack of informed consent prior to treatment. See Armstrong
ex rel. Armstrong v. Brookdale Univ. Hosp. & Med. Ctr., 425
F.3d 126, 134 (2d Cir. 2005) (“[A] completely unpermitted
touching by a medical practitioner of a patient is a battery....
[W]e conclude that battery applies in the medical context only
where the patient or her guardian gives no consent and the
doctor intends to cause a bodily contact that a reasonable
person would find offensive.” (internal quotation marks and
citation omitted)); T.P. ex rel. Patterson v. Elmsford Union
Free Sch. Dist., No. 11cv5133 (VB), 2012 WL 860367, at
*10 (S.D.N.Y. Feb. 27, 2012) (“A completely unpermitted
touching by a medical practitioner of a patient is a battery.”);
Cerilli v. Kezis, 16 A.D.3d 363 (2d Dep't 2005) (“The
plaintiffs’ allegations that the defendant doctor performed a
biopsy over the express objections of the injured plaintiff ...
state a cause of action sounding in battery.”); Cross v.
Colen, 6 A.D.3d 306, 307 (1st Dep't 2004) (holding that a
medical procedure that goes beyond the scope of the patient's
consent – like a procedure performed without any consent
– is a battery, and noting that “[t]he absence of consent is
inconsistent with consent that is not sufficiently informed, and
precludes a claim of lack of informed consent”).
This Court further liberally construes the Complaint to assert
a state-law claim of medical malpractice as against defendants
Lee and Alsabban. Under New York law, a defendant commits
medical malpractice where he or she deviates from accepted
medical practice, causing injury to the plaintiff. See Vivar v.
City of New York, No. 18cv5987 (VSB), 2020 WL 1505654, at
*14 (S.D.N.Y. Mar. 30, 2020). On this point, this Court notes
that, if Plaintiff were complaining solely about the fact that the
surgery had been performed against his will, that would not, in
itself, constitute a malpractice claim. See VanBrocklen v. Erie
Cnty. Med. Ctr., 96 A.D.3d 1394 (4th Dep't 2012) (“It is well
settled that a medical professional may be deemed to have
committed battery, rather than malpractice, if he or she carries
out a procedure or treatment to which the patient has provided
‘no consent at all.’ ” (citation omitted)). Here, though,
Plaintiff appears to challenge both the fact that the surgery
was performed, and the manner in which it was performed.
In particular, Plaintiff alleges that Defendants “neglected to
use reasonable care in exercising their skill” (Compl., at ECF
4); that, during the extraction surgery, several of his other
teeth were “chipped and cracked” (id.), and that Plaintiff “also
had a spicula that was stuck in his gums from the operation
site” (id., at ECF 5). These allegations, read together, are
sufficient to give rise to a plausible inference that the surgery
was not performed in accordance with acceptable medical
standards, and fairly suggest that Plaintiff may be seeking
to hold defendants Lee and Alsabban liable for medical
malpractice, as well as battery.
*12 As Defendants point out, however (see Def. Mem.,
at 11-12; Lee Ltr., at ECF 4), H+H employees may not be
sued for actions arising out of the scope of their employment
“unless a notice of claim has been filed with [H+H] within
ninety days after the claim arises.” Pastorello v. City of
New York, No. 95cv0470 (CSH), 2001 WL 1543808, at *8
(S.D.N.Y. Dec. 4, 2001) (citing N.Y. Gen. Mun. Law § 50-
e(1)(a) and N.Y. Unconsol. § 7401(2)). 10 “The notice-of-
claim requirement does not apply to federal claims brought
under Section 1983[, but,] in a federal court, state notice-
of-claim statutes [do] apply to state-law claims.” Mejía v.
N.Y.C. Health & Hosps. Corp., No. 16cv9706 (GHW), 2018
WL 3442977, at *14 (S.D.N.Y. July 17, 2018) (internal
quotation marks and citation omitted, italics in original).
Thus, “[a] plaintiff cannot avoid the statutory notice of claim
requirement[ ] simply by bringing an action in federal court.”
Walter v. N.Y.C. Health Hosp. Corp., No. 02cv0751 (DF),
2005 WL 324242, at *3 (S.D.N.Y. Feb. 9, 2005). Rather, the
plaintiff must plead in his complaint that, with respect to his
state-law claims, he has complied with the notice-of-claim
requirement. See Hardy v. N.Y.C. Heath & Hosp. Corp., 164
F.3d 789, 793 (2d Cir. 1999). A “[f]ailure to comply with th[is]
requirement[ ] ordinarily requires a dismissal for failure to
state a cause of action.” Id., at 794.
There appears to be no question here that, at the relevant
time, Defendants were H+H employees and that Plaintiff is
suing them for actions taken within the scope of their H+H
employment. Plaintiff, however, has not alleged that he ever
filed a notice of claim with H+H with respect to any state-
law claims that he may be seeking to advance here, let alone
that he did so within 90 days from the date that his state-law
claims arose. For this reason, Plaintiff's pleading is deficient,
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and, unless he can remedy the deficiency, this state-law claims
must be dismissed.
In addition, under New York law, both battery and
medical-malpractice claims against H+H employees must be
commenced within one year and 90 days from the date when
the claims accrued. See N.Y. Gen. Mun. Law. §§ 50-i(1), 50-
k(6); N.Y. Unconsol. Law § 7401(2), (6); see also Roundtree
v. NYC, No. 19cv2475 (JMF), 2021 WL 1667193, at *4
(S.D.N.Y. Apr. 28, 2021) (regarding claims of battery and
malpractice). Further, under New York law, both types of
claims accrue on the date of the conduct at issue. See Quiles
v. City of New York, No. 01cv10934 (LTS) (THK), 2003 WL
21961008, at *6 (S.D.N.Y. Aug. 13, 2003) (regarding claim of
battery); Nykorchuck v. Henriques, 78 N.Y.2d 255, 258 (1991)
(regarding claim of medical malpractice).
In this case, the surgery that is the focus of Plaintiff's
Complaint, and that would form the basis of both battery
and medical-malpractice claims, is alleged to have been
performed on May 22, 2017. (See Compl, at ECF 2.) It is thus
clear from the face of the Complaint that the claims are time-
barred, as the one-year and 90-day limitations period for each
type of claim would have therefore expired on August 20,
2018, and Plaintiff did not file his Complaint until February
9, 2020 (see supra, at n.5), one year, five months, and 20
days later. Accordingly, even apart from any failure to file a
notice of claim, Plaintiff may not proceed with these claims
unless he can demonstrate entitlement to equitable tolling of
the applicable limitations period or that Defendants should be
estopped from relying on the limitations bar. 11
*13 As the Second Circuit has cautioned against dismissing
the complaint of a pro se litigant without first affording him
at least one chance to amend, see Abbas, 480 F.3d at 640,
I recommend that, in affording Plaintiff leave to amend his
Complaint to remedy the deficiencies in his federal claims
against defendants Lee and Alsabban (as discussed above),
the Court also give Plaintiff an opportunity to replead his
state-law claims for battery and medical malpractice, so as to
allege that he timely filed the requisite notice of claim and
to plead facts capable of giving rise to a plausible inference
that he is entitled to relief from the governing statutes of
limitations. If he does not do so, then I recommend that these
state-law claims be dismissed.
CONCLUSION
For all of the foregoing reasons, I respectfully recommend:
(1) that Defendants’ motion to dismiss (Dkts. 29, 49) be
denied at this time;
(2) that Defendants’ counsel be directed to assist Plaintiff
in identifying who performed the surgery on him on May
22, 2017, by reaching out to H+H, if necessary, to obtain
that information, and then by providing Plaintiff and the
Court with that information within two weeks of the date
of the Court's order; and
(3) that Plaintiff be directed to amend his Complaint within
two weeks of receiving that information, so as:
(a) to specify the roles played by defendants Lee and
Alsabban in the alleged constitutional violation, as
necessary to satisfy the Section 1983 requirement that
Plaintiff plead each defendant's personal involvement
in the violation, and
(b) with respect to any state-law claims that Plaintiff may
be seeking to assert for battery or medical malpractice,
to plead that he timely served the required notices of
claim on H+H, and to provide any reasons why the
applicable statutes of limitations for those state-law
claims should be equitably tolled or why Defendants
should be equitably estopped from relying on the
statutes of limitations.
I further recommend that, if Plaintiff fails to file an amended
complaint within the period of time set by the Court, then his
federal claim against defendants Lee and Alsabban, as well
as any state-law claims that may reasonably be found to have
been included in his Complaint, be dismissed, but that he be
permitted to proceed with a federal, substantive due-process
claim against defendant Leavitt.
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the
Federal Rules of Civil Procedure, the parties shall have
fourteen (14) days from service of this Report to file written
objections. See also Fed. R. Civ. P. 6. Such objections, and
any responses to objections, shall be filed with the Clerk
of Court, with courtesy copies delivered to the chambers of
the Honorable Valerie Caproni, Thurgood Marshal United
States Courthouse, 40 Foley Square, New York, New York,
10007, if required by Judge Caproni's Individual Practices.
Any requests for an extension of time for filing objections
must be directed to Judge Caproni. FAILURE TO FILE
OBJECTIONS WITHIN FOURTEEN (14) DAYS WILL
RESULT IN A WAIVER OF OBJECTIONS AND WILL
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PRECLUDE APPELLATE REVIEW. See Thomas v. Arn,
474 U.S. 140, 155 (1985); IUE AFL-CIO Pension Fund v.
Hermann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson,
968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd.,
838 F.2d 55, 58 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d
234, 237-38 (2d Cir. 1983).
*14 If Plaintiff does not have access to cases cited herein
that are reported only on Westlaw, he may request copies from
Defendants’ counsel. See Local Civ. R. 7.2 (“Upon request,
counsel shall provide the pro se litigant with copies of [cases
and other authorities cited therein that are unpublished or
reported exclusively on computerized databases] as cited in
a decision of the Court and were not previously cited by any
party.”).
All Citations
Not Reported in Fed. Supp., 2022 WL 676096
Footnotes
1 Plaintiff filed his Complaint while later incarcerated as a convicted prisoner at the Fishkill Correctional Facility.
As reflected on the Docket, Plaintiff is currently incarcerated at the Sing Sing Correctional Facility.
2 See Discussion, infra, at Section I(B).
3 Where a filed document cited herein, such as Plaintiff's Complaint, is not itself marked with page numbers,
this Court will reference the page numbers affixed to the document by the Court's Electronic Case Filing
system, using the prefix “ECF ___.”
4 In opposition to Defendants’ motion, Plaintiff now also requests that the Court “issue an injunction ordering
[him to receive] immediate care through an outside source and specialist,” to be paid for by “the corporation
owning[ ] or running Bellev[ue] Hospital.” (Supplemental Opposition To Deny Dismissal, dated Jan. 9, 2022
(“Pl. Supp. Opp.”) (Dkt. 54-1), at ECF 9.) As this request does not speak to the sufficiency of Plaintiff's pleading
and is not responsive to the arguments raised in Defendants’ pending motion, this Court will not address it
in this Report and Recommendation.
5 Under the so-called “prison mailbox rule,” a pro se prisoner's papers are deemed filed when they are handed
over to prison officials for forwarding to the court. See Houston v. Lack, 487 U.S. 266 (1988). In this case,
even though Plaintiff's Complaint was not entered on the Docket until February 28, 2020 (see Dkt. 2), the
Complaint itself is dated February 9, 2020 (see Compl., at ECF 7). This Court thus deems the Complaint to
have been filed as of February 9, 2020. See Hardy v. Conway, 162 F. App'x 61, 62 (2d Cir. 2006) (Summary
Order) (noting that, “in the absence of contrary evidence, district courts in this circuit have tended to assume
that prisoners’ papers were given to prison officials on the date of their signing.” (citing cases)).
6 Where a state official has been deliberately indifferent to the serious medical needs of a pretrial detainee,
the detainee may assert a constitutional claim against that official, under the Due Process Clause of the 14th
Amendment. See Weyant v. Okst, 101 F.3d 845, 856 (2d Cir. 1996). In order to prevail on such a claim, the
plaintiff must show (1) that the official “denied [him] treatment needed to remedy a serious medical condition,”
and (2) that the official did so “because of his deliberate indifference to that need.” Id.
7 “[I]n order to permit prisoners to exercise their right to refuse unwanted treatment, there exists a [substantive
due process] liberty interest in receiving such information as a reasonable patient would require in order to
make an informed decision as to whether to accept or reject proposed medical treatment.” Pabon v. Wright,
459 F.3d 241, 249-50 (2d Cir. 2006). “To establish a violation of the constitutional right to medical information,
a prisoner must satisfy an objective reasonableness standard, must demonstrate that the defendant acted
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with the requisite state of mind, and must make a showing that the lack of information impaired his right to
refuse treatment.” Id., at 250.
8 Although Defendants argue in their motion that Plaintiff's potential medical-malpractice claim would be barred
by the applicable statute of limitations (see Def. Mem., at 11-12, Lee Ltr., at ECF 3), they do not make a
similar argument regarding Plaintiff's potential battery claim, given that they have mischaracterized that claim.
Nonetheless, and even though “the statute of limitations is ordinarily an affirmative defense that the defendant
must raise at the pleadings stage,” Walters v. Indus. & Commercial Bank of China, Ltd., 651 F.3d 280, 293
(2d Cir. 2011) (internal quotation marks and citation omitted), this Court will consider the timeliness of any
battery claim raised in this case, as the Complaint states the date of the events giving rise to the claim, and
as a court may dismiss a claim sua sponte on limitations grounds “where the facts supporting the statute of
limitations defense are set forth in the papers plaintiff himself submitted,” id. (internal quotation marks and
citations omitted).
9 This Court will separately analyze, below, the effect on Plaintiff's Section 1983 claims of his inability to specify
the precise nature of the personal involvement of defendants Lee and Alsabban in the alleged constitutional
violation. (See Discussion, infra, at Section II(B)(2).)
10 Under N.Y. Gen. Mun. Law. § 50-e(1)(a):
[i]n any case founded upon tort where a notice of claim is required by law as a condition precedent to the
commencement of an action or special proceeding against a public corporation, as defined in the general
construction law, or any officer, appointee or employee thereof, the notice of claim shall comply with and
be served in accordance with the provisions of this section within ninety days after the claim arises.
This requirement has been extended to state-law claims against employees of H+H. See N.Y. Unconsol. Law
§ 7401(1), (2), (6); N.Y. Gen. Mun. Law § 50-k(6); see also N.Y. Unconsol. Law § 7384(1) (H+H is a public
benefit corporation created by New York State law); N.Y. Gen. Constr. Law § 65(b)(3) (definition of public
corporation includes a public benefit corporation).
11 “Under New York law, the doctrines of equitable tolling or equitable estoppel ‘may be invoked to defeat a
statute of limitations defense when the plaintiff was induced by fraud, misrepresentations or deception to
refrain from filing a timely action.’ ” Abbas v. Dixon, 480 F.3d 636, 642 (2d Cir. 2007) (citation omitted). To
be eligible for equitable tolling or equitable estoppel under New York law, the plaintiff needs to show “that
the action was brought within a reasonable period of time after the facts giving rise to the equitable tolling or
equitable estoppel claim ‘have ceased to be operational.’ ” Id. (citation omitted).
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2022 WL 558125
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Yahkima GOMEZ-KADAWID, Plaintiff,
v.
Dr. LEE; Dr. Alsabban; Dr. Leantt, Defendants.
20-CV-1786 (VEC) (DF)
|
Signed 02/24/2022
Attorneys and Law Firms
Yahkima Gomez-Kadawid, Ossining, NY, Pro Se.
Darshan Ishvar Patel, Gabrielle Apfel, Heidell, Pittoni,
Murphy & Bach, LLP, New York, NY, for Defendant Dr. Lee.
Daniel Gerard May, Darshan Ishvar Patel, Gabrielle Apfel,
Heidell, Pittoni, Murphy & Bach, LLP, New York, NY, for
Defendants Dr. Alsabban, Dr. Leantt.
ORDER ADOPTING REPORT & RECOMMENDATION
VALERIE CAPRONI, United States District Judge:
*1 WHEREAS on February 26, 2020, Plaintiff Yahkima
Gomez-Kadawid, proceeding pro se, brought this action
pursuant to 42 U.S.C. § 1983, asserting that, while he was a
pretrial detainee at the Bellevue Hospital Center, Defendants
Dr. Jessica Lee, Dr. Sarah Alsabban, and Dr. Sarah Leavitt 1
performed a dental procedure on him without his consent, see
generally Compl., Dkt. 2;
WHEREAS on April 23, 2020, the Court referred the case
to Magistrate Judge Debra Freeman for general pretrial
supervision and for the preparation of a Report and
Recommendation (“R&R”) on any motions that arose, Order
of Reference, Dkt. 10;
WHEREAS on April 16, 2021, Defendants filed a motion to
dismiss the Complaint, Not. of Mot., Dkt. 29; 2
WHEREAS on February 3, 2022, Judge Freeman issued an
R&R recommending that (1) Defendants' motion be denied
without prejudice; (2) Plaintiff be provided assistance from
Defendants in identifying which individuals performed the
surgery at issue; (3) Plaintiff be directed, after that assistance
is given, to amend his Complaint to specify Defendants Lee
and Alsabban's personal involvement in the claimed actions;
and (4) Plaintiff be directed to plead that he timely served
the required notices of his state law claims on NYC Health +
Hospitals and provide any reasons why the applicable statutes
of limitations for those claims should be equitably tolled or
Defendants should be equitably estopped from relying on
them, R&R, Dkt. 58 at 2, 27;
WHEREAS in the R&R, Judge Freeman notified the parties
that, pursuant to 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P.
72(b), they had 14 days to file written objections to the R&R's
findings, id. at 28;
WHEREAS Judge Freeman further noted that failure to file
objections would result in both the waiver of objections and
the preclusion of appellate review, id. (using capital letters);
WHEREAS neither party filed objections;
WHEREAS on February 14, 2022, Defendants filed a letter
identifying Defendant Alsabban as the attending surgeon and
Defendant Lee as the resident surgeon during the surgery in
question, see Dkt. 59;
WHEREAS in reviewing an R&R, a district court “may
accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge,” 28 U.S.C.
§ 636(b)(1)(C);
WHEREAS when, as here, no party objects to the R&R, the
Court may accept the R&R provided that “there is no clear
error on the face of the record,” Heredia v. Doe, 473 F. Supp.
2d 462, 463 (S.D.N.Y. 2007) (quoting Nelson v. Smith, 618 F.
Supp. 1186, 1189 (S.D.N.Y. 1985)); see also Fed. R. Civ. P.
72(b) advisory committee's note;
WHEREAS an error is clear when the reviewing court is left
with a “definite and firm conviction that a mistake has been
committed,” see Cosme v. Henderson, 287 F.3d 152, 158 (2d
Cir. 2002) (quoting McAllister v. United States, 348 U.S. 19,
20 (1954)); and
*2 WHEREAS careful review of the R&R reveals that there
is no clear error;
IT IS HEREBY ORDERED the Court ADOPTS the R&R
in full. Defendants' motion is DENIED without prejudice.
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Gomez-Kadawid v. Lee, Not Reported in Fed. Supp. (2022)
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Because Defendants have already filed a letter specifying the
roles of Doctors Alsabban and Lee in the surgery that is at
issue, not later than April 4, 2022, 3 Plaintiff is ordered to
amend his Complaint: (i) to specify the personal involvement
of Dr. Lee and Dr. Alsabban in the claimed constitutional
violation, see R&R at 22, 27; (ii) to specify whether he timely
served notice of claims relative to his state law claims of
battery and medical malpractice on NYC Health + Hospitals,
see id. at 26–27; and (iii) to provide any reasons why the
applicable statutes of limitations for those state-law claims
should be equitably tolled or why Defendants should be
equitably estopped from relying on the statutes of limitations,
see id. at 27. If Plaintiff fails to file an Amended Complaint
by that date, the Court will dismiss his Section 1983 claim
against Defendants Lee and Alsabban and his battery and
medical malpractice claims against all Defendants.
Because the R&R gave the parties adequate warning, see id.
at 28, the failure to file any objections to the R&R precludes
appellate review of this decision. See Mario v. P & C Food
Markets, Inc., 313 F.3d 758, 766 (2d Cir. 2002) (“Where
parties receive clear notice of the consequences, failure
timely to object to a magistrate's report and recommendation
operates as a waiver of further judicial review of the
magistrate's decision.”) (citation omitted). Because appellate
review is precluded, the Court certifies pursuant to 28 U.S.C.
§ 1915(a)(3) that any appeal from this Order would not be
taken in good faith, and, therefore, permission to proceed in
forma pauperis for purposes of appeal is denied.
IT IS FURTHER ORDERED that Clerk of Court is
respectfully directed to terminate the open motion at Docket
29. The Clerk is further directed to mail a copy of Defendants'
letter at Docket 59 and this Order to the pro se Plaintiff and
to note the mailing on the docket.
SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2022 WL 558125
Footnotes
1 Defendant Leavitt was initially referred to in the Complaint as “Dr. Leantt”. See Dkt. 2.
2 Although initially filed by Defendants Alsabban and Leavitt, Defendant Lee filed a request to join the motion,
which was granted by Judge Freeman. See Dkts. 49, 52.
3 Although Judge Freeman recommended giving Plaintiff two weeks to amend his Complaint, see R&R at
27, due to constraints associated with receiving and sending mail while incarcerated, the Court is providing
Plaintiff with additional time to prepare and file his Amended Complaint.
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
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Gray v. GC Services/Apple, Not Reported in Fed. Supp. (2020)
WESTLAW © 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2020 WL 6729413
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Michele GRAY, Plaintiff,
v.
GC SERVICES/APPLE, Defendant.
1:20-CV-714 (TJM/ATB)
|
Signed 07/09/2020
Attorneys and Law Firms
MICHELE GRAY, Plaintiff, pro se
ORDER and REPORT-RECOMMENDATION
ANDREW T. BAXTER, United States Magistrate Judge
*1 The Clerk has sent to the court a civil complaint filed
by pro se plaintiff Michele Gray. (Dkt. No. 1) Plaintiff has
also filed an application to proceed in forma pauperis (“IFP”),
a motion for appointment of counsel, and a motion for
permission to file papers electronically. (Dkt. Nos. 2, 3, 4).
I. IFP Application
Plaintiff declares in her IFP application that she is unable
to pay the filing fee. (Dkt. No. 2). After reviewing this
application, this court finds that plaintiff is financially eligible
for IFP status. 1
In addition to determining whether plaintiff meets the
financial criteria to proceed IFP, the court must also consider
the sufficiency of the allegations set forth in the complaint
in light of 28 U.S.C. § 1915, which provides that the court
shall dismiss the case at any time if the court determines that
the action is (i) frivolous or malicious; (ii) fails to state a
claim on which relief may be granted; or (iii) seeks monetary
relief against a defendant who is immune from such relief. 28
U.S.C. § 1915(e)(2)(B)(i) -(iii).
In determining whether an action is frivolous, the court must
consider whether the complaint lacks an arguable basis in
law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989).
Dismissal of frivolous actions is appropriate to prevent abuses
of court process as well as to discourage the waste of judicial
resources. Neitzke, 490 U.S. at 327; Harkins v. Eldridge, 505
F.2d 802, 804 (8th Cir. 1974). Although the court has a duty to
show liberality toward pro se litigants, and must use extreme
caution in ordering sua sponte dismissal of a pro se complaint
before the adverse party has been served and has had an
opportunity to respond, the court still has a responsibility
to determine that a claim is not frivolous before permitting
a plaintiff to proceed. Fitzgerald v. First East Seventh St.
Tenants Corp., 221 F.3d 362, 363 (2d Cir. 2000) (finding that
a district court may dismiss a frivolous complaint sua sponte
even when plaintiff has paid the filing fee).
To survive dismissal for failure to state a claim, the complaint
must contain sufficient factual matter, accepted as true, to
state a claim that is “plausible on its face.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)). “Threadbare recitals of the
elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Id. (citing Bell Atl. Corp., 550
U.S. at 555). The court will now turn to a consideration of the
plaintiff's complaint under the above standards.
II. Complaint
*2 Plaintiff is attempting to sue her former employer, GC
Services/Apple 2 (“GC Service”). (Complaint (“Compl.”)
(Dkt. No. 1). Plaintiff states that she began working for GC
Services as a customer service representative. 3 (Compl. at
1). 4 Plaintiff states that, during the time that she worked for
GC Services, there were many “concerns” that she wished to
address with the company, but that plaintiff's manager, and her
“manager's manager” did not wish to address those concerns.
(Id.)
Plaintiff states that she was preparing to resign her position,
and wrote a letter of resignation, dated January 25, 2020,
stating that her last day with the company would be February
2, 2020. (Compl. at 2). However, after seeing the letter of
resignation, plaintiff's manager Amber Hillert “terminated”
plaintiff by making the resignation effective “immediately”
on January 28, 2020. (Id.) Plaintiff alleges that she was told
that the reason for terminating plaintiff was that she moved
from Las Vegas to New York. 5 (Id.)
Plaintiff states that, while she worked for this employer, she
was not “given the same opportunity as other agents,” and that
she was not allowed to participate in “team meetings” until
the “Plaintiff last[ed] four months.” 6 (Id.) Plaintiff states that
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she was not given proper customer service “coaching” which
was given to “other” agents, until after her first “written”
termination warning. (Compl. at 2-3). Plaintiff states that she
wished to dispute the “written warning” and sent several
emails, which went unanswered by manager Amber Hillert.
(Compl. at 3). Plaintiff states that Ms. Hillert wanted to speak
with plaintiff over the telephone, but plaintiff believed that
a written email could be “checked” with other managers for
“accuracy.” (Id.) Plaintiff states that she never received a reply
to her emails. (Id. at 3-4).
Plaintiff claims that she sent several emails regarding her
first, second, and third warnings. (Compl. at 4). Plaintiff
continues to discuss these “warnings” and appears to state
that she was never properly afforded the opportunity to
“dispute” these warnings. She states that she was told that,
although she could “reject” the warnings, her rejection would
not change the outcome, and the “written warning” would
“stay.” (Compl. at 4). Plaintiff goes on to describe the subjects
of her written warnings. (Compl. at 4-6). Plaintiff claims
that she should have been given “verbal” warnings before
the written warnings, and that “other” agents were allowed
more than three chances to keep their jobs. (Compl. at 5-6).
Plaintiff states that “the extent of the information to assist
customers could not be executed 100% without mistakes of
[sic] flaws,” but that she was held “percent” 7 responsible
for any “mistakes or flaws” within the first thirty days of
employment. (Compl. at 6).
*3 Plaintiff also states that she received several
“occurrences” for “lateness,” which included being 4, 6, and
3 minutes late from her break. (Compl. at 6). Plaintiff states
that there were no exceptions or second chances “as for other
agents.” (Id.) Plaintiff states that she tried to dispute these
occurrences, but was told over the telephone that it did not
“matter,” and that the occurrences would “stay.” 8 (Compl.
at 6-7). Plaintiff states that an employee would be terminated
after ten “occurrences,” but she only had seven when she was
“terminated.” (Compl. at 7).
Plaintiff states that she also had trouble with her “Q n
A,” which apparently involves an “Apple representative”
monitoring the calls of 500 agents. (Id.) Plaintiff states that
her Q n A was “lowered” from 90% to 67%, and that she met
twice per week, with two different managers by video, while
other agents did not have such meetings. (Id.) Plaintiff states
that she asked for a “call sheet,” and her score went back up
to 97%. (Id.)
Plaintiff claims that she did everything to try to prevent
additional written warnings, but that Ms. Hillert dropped
plaintiff's Q n A back down to 70% when she questioned
plaintiff about a call that may not have been transferred
properly. (Compl. at 8). Plaintiff states that the manager
was just looking for a way to terminate the plaintiff, and
that “other” agents were not “receiving the same attention.”
(Id.) Plaintiff states that when the employer created an
“incentive” game, plaintiff held the highest score. 9 Plaintiff
then describes “Slack,” which is a social platform for
communication within the company. (Compl. at 9). Plaintiff
states that “Slack” must be opened at the beginning of an
employee's shift so that the managers could communicate
with the employees. Employees were given a “ ‘verbal or
written’ ” warning if they did not respond to a manager's
message on Slack. (Id.)
Plaintiff states that when she first met Ms. Hillert in July of
2020, 10 she asked plaintiff “ ‘How did you become employed
by GC Services?’ ” (Compl. at 10). Plaintiff believes that
was an inappropriate question. (Id.) Plaintiff states that she
began to “question” the employment from that time and
believed that “termination would occur.” (Id.) Plaintiff states
that she requested a change of manager at the beginning
of her employment, and that she went over Ms. Hillert's
head to her manager and then to someone named “Candy
Keame.” (Id.) However, the meeting with Ms. Keeme was
postponed without date. (Id.) Plaintiff states that she “was
more than willing to resign to prevent termination.” (Id.)
Plaintiff states that with all the “mandatory overtime,” 11
the constant Q n As, the “occurrences,” the “negative video
meetings,” and her attempt at emailing supervisors, plaintiff
did her best to avoid the “written warnings,” but there was
nothing she could do. (Compl. at 10-11). Plaintiff seeks
substantial monetary relief. (Compl. at 21).
III. Subject Matter Jurisdiction
A. Legal Standards
*4 Federal courts are courts of limited jurisdiction, have
only the power that is authorized by Article III of the
Constitution, and may only preside over cases that fall
within the subject matters delineated by Congress. Bender v.
Williamsport Area School Dist., 475 U.S. 534, 541 (1986)
(citation omitted). The court must determine whether it has
subject matter jurisdiction, and must dismiss a case at any
stage of the proceedings if it determines that jurisdiction is
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lacking. Cave. v. East Meadow Union Free School Dist., 514
F.3d 240, 250 (2d Cir. 2008).
In addition, federal courts have an “independent obligation”
to consider the presence or absence of subject matter
jurisdiction sua sponte. Leopard Marine & Trading, Ltd. v.
Easy Street, Ltd., 896 F.3d 174, 181 (2d Cir. 2018) (quoting In
re Quigley Co., Inc., 676 F.3d 45, 50 (2d Cir. 2012)). Subject
matter jurisdiction can never be waived or forfeited. ACCD
Global Agriculture, Inc. v. Perry, No. 12 Civ. 6286, 2013 WL
840706, at *1 (S.D.N.Y. March 1, 2013) (quoting Dumann
Realty, LLC v. Faust, No. 09 Civ. 7651, 2013 WL 30672, at *1
(S.D.N.Y. Jan. 3, 2013)) (citing Gonzalez v. Thaler, 565 U.S.
134, 141 (2012); Henderson ex rel. Henderson v. Shinseki,
562 U.S. 434-35 (2011)).
Federal question jurisdiction pursuant to 28 U.S.C. § 1331
provides a basis for jurisdiction when the plaintiff brings
a civil action that arises “under the Constitution, laws, or
treaties of the United States.” 28 U.S. C. § 1331. Diversity
jurisdiction is present when an action is between citizens of
different states, and when the amount in controversy is in
excess of $75,000.00. 28 U.S.C. § 1332(a)(1).
B. Application
1. Federal Question
Plaintiff asserts various federal statutes as bases for her claims
in this action. However, none of the statutes she cites apply to
the facts she asserts in the complaint. Plaintiff states that her
employer committed a “tort” and attempts in various ways to
claim that this court has jurisdiction to hear her “tort” claim.
The court will discuss each of the statutes cited by plaintiff to
determine whether she has jurisdiction to bring this action. 12
a. 5 U.S.C. § 7105
In 1978, Congress enacted the Federal Service Labor-
Management Relations Statute (“FSLMRS”) to govern labor
relations between the executive branch and its employees.
American Federation of Gov't Employees, AFL/CIO v. Trump,
929 F.3d 748, 752 (D.C. Cir. 2019). The FSLMRS is set
forth in Title VII of the Civil Service Reform Act (“CSRA”),
codified at 5 U.S.C. §§ 7101-35. Id. (citing Pub. L. No.
95-454, § 701, 92 Stat. 1111, 1191-1216 (1978)). The Statute
also establishes a scheme of administrative and judicial
review. Id. Administrative review is provided by the Federal
Labor Relations Authority (FLRA), a three-member agency
charged with adjudicating federal labor disputes, including
“negotiability” disputes and “unfair labor practice” disputes.
Id. (citing 5 U.S.C. § 7105(a)). Thus, statute cited by
plaintiff governs employee relations in the federal sector and
provides exclusive procedures by which federal employees
and bargaining representatives may assert federal labor-
management relations claims. Id. at 755.
*5 Plaintiff does not state that she is a federal employee.
This statute does not apply to her and does not give plaintiff a
basis for claiming that her private company somehow treated
her unfairly or committed any other sort of alleged labor
violation. Thus, 5 U.S.C. § 7105 and any related sections
of that statute, do not provide any basis for federal court
jurisdiction over any claims she may have against her former
employer. 13
b. 29 U.S.C. §§ 157, 158
Plaintiff cites two sections of the National Labor Relations
Act (“NLRA”). Section 157 guarantees the right of
employees to “self-organization, to form, join, or assist labor
organizations, to bargain collectively through representatives
of their own choosing, and to engage in other concerted
activities for the purpose of collective bargaining or other
mutual aid or protection.” 29 U.S.C. § 157. Section 158
defines “unfair labor practices” under the statute, but deals
only with conduct which interferes with the rights protected
in section 157, the rights to organize or bargain collectively.
28 U.S.C. § 158.
Once again, plaintiff has cited a statute that does not apply
to any of the claims that she is making in her complaint.
Plaintiff claims that she was “terminated” unfairly, but not
that she was prevented from joining a union or bargaining
collectively. Thus, plaintiff may not assert jurisdiction under
the cited sections of the NLRA.
c. “Constitutional Tort”
Plaintiff states that the defendant committed a “constitutional
tort” and cites Monroe v. Pape, 365 U.S. 167 (1961)
and Maine v. Thiboutot, 448 U.S. 1 (1980). Monroe v.
Pape was a case brought under 42 U.S.C. § 1983 which
provides jurisdiction over constitutional and other federal
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law violations committed by defendants who act “under
color of state law.” Monroe, supra. The court in Monroe
held that a city was not a proper defendant under section
1983. Id. However, Monroe was overruled in Monell v. Dep't
of Soc. Services of the City of New York, 436 U.S. 658
(1978). The court in Monell held that Congress did intend
that the protection of section 1983 applied to “conduct”
by municipalities and other local government units which
amounted to a custom or policy of the municipality. Id. In
Maine v. Thiboutot, the Supreme Court held that the section
1983 remedy “broadly encompasses violations of federal
statutory as well as constitutional law.” 448 U.S. at 4, 4-8.
Neither of these cases applies to afford plaintiff federal court
jurisdiction based on the facts asserted in her complaint.
Plaintiff does not allege that the defendant is a state actor or
act “under color of state law.” Her former employer appears
to be a private company which distributes Apple products
and for which plaintiff was a customer service representative
for a short time. Thus, section 1983 “constitutional tort” does
not apply to provide federal court jurisdiction over plaintiff's
action. 14
d. Title VII
Plaintiff also mentions Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e et seq. (Compl. at 13-15). Under
Title VII, it is unlawful for an employer to discriminate
against any individual with respect to her compensation,
terms conditions, or privileges of employment, because of
the individual's race, color, religion, sex or national origin.
42 U.S.C. § 2000e-2(a)(1). In order to state a claim under
Title VII, plaintiff must show that she was a member of
a protected class, she was qualified for the position, she
suffered an adverse employment action, and the adverse
employment action occurred under circumstances giving
rise to an inference of discriminatory intent. Roge v. NYP
Holdings, Inc., 257 F.3d 164, 168 (2d Cir. 2001).
*6 The main thrust of plaintiff's claims appears to be that the
defendant harassed her to the point that she submitted a letter
of resignation or was “constructively discharged.” 15 Her
managers did not allow her to participate in certain training,
which adversely affected her performance, and were very
picky with respect to lateness or break time. Plaintiff claims
that “other” agents were not treated as strictly as she was
treated and “other” agents were allowed “extra” occurrences
before they were terminated.
However, plaintiff does not allege that any adverse action
related to her job was based upon plaintiff's membership in a
protected class. Plaintiff simply alleges that she was treated
differently than “other” agents, but does not give the alleged
basis for the disparate treatment. The fact that plaintiff is a
woman, and gender is a protected class, does not save the
complaint for plaintiff. There must be a nexus between the
protected class and the adverse employment action or the
disparate treatment. See Blue v. City of Hartford, No. 3:18-
CV-00974 (CSH), 2019 WL 1559430, at *2-3 (D. Conn. Apr.
10, 2019) (discussing nexus requirement). Thus, plaintiff does
not state a claim under Title VII regardless of her claims that
she was harassed or constructively discharged because she
does not allege that the defendant's actions were committed
because of her membership in a protected class.
e. Federal Tort Claim
Plaintiff also cites 28 U.S.C. § 2671, claiming that this
statute provides for damages in “tort claims” to protect
people from harms, resulting from the wrongful conduct of
“others.” (Compl. at 15). Sections 2671 et seq. of Title 28 of
the United States Code is known as the “Federal Tort Claims
Act” (“FTCA”). The FTCA is a limited waiver of sovereign
immunity which applies to “claims against the United States,
for money damages ... for injury ... caused by the negligent or
wrongful act or omission of any employee of the Government
while acting within the scope of his office or employment,
under circumstances where the United States, if a private
person, would be liable to the claimant in accordance with
the law of the place where the act or omission occurred.”
28 U.S.C. § 1346(b). The FTCA makes a lawsuit against the
United States itself the exclusive remedy for common law
tort actions against federal agencies or employees acting on
behalf of the government. Dowdy v. Hercules, No. 07 Civ.
2488(EVEN) (LB), 2010 WL 169624, at *4 (E.D.N.Y. Jan.
15, 2010) (citing inter alia 28 U.S.C. § 2679(b)(1); Rivera v.
United States, 928 F.2d 592, 608-09 (2d Cir. 1991)).
*7 Clearly, plaintiff may not state a claim under the FTCA
against her former employer. As stated above, the only
defendant in an FTCA action is the United States, and
plaintiff's claim must first be denied administratively as a
prerequisite to filing an action in federal court against the
United States. Collins v. United States Postal Service, No. 18-
CV-4752 (SJF) (ARL), 2020 WL 2734362, at *4 (E.D.N.Y.
May 26, 2020) (citing Celestine v. Mt. Vernon Neighborhood
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Health Ctr., 403 F.3d 76, 82 (2d Cir. 2005)) (citing McNeil v.
United States, 508 U.S. 106, 113 (1993)). This requirement is
jurisdictional and cannot be waived. Id. Plaintiff is not suing
the United States or any agency thereof. Thus, to the extent
that plaintiff attempts to assert jurisdiction under the FTCA,
the complaint may be dismissed.
f. 15 U.S.C. § 6611(b)(5)
Plaintiff claims that she may sue for damages under 15 U.S.C.
§ 6611(b)(5). However, section 6611 of Title 15 of the United
States Code provides for losses incurred as the result of
Y2K, and discusses parties to a “Y2K action.” 15 U.S.C. §
6611. The statute states that “[t]his chapter applies to any
Y2K action brought after January 1, 1999, for a Y2K failure
occurring before January 1, 2003, or for a potential Y2K
failure that could occur or has allegedly caused harm or injury
before January 1, 2003, including any appeal, remand, stay, or
other judicial, administrative, or alternative dispute resolution
proceeding in such an action.” 15 U.S.C. § 6603(a). Clearly,
plaintiff may not take advantage of section 6611 to bring this
law suit.
Plaintiff also cites Federal Rules of Appellate Procedure
(“Fed. R. App. Proc.”) 27(b). (Compl. at 16-17). Fed. R. App.
Proc. 27 provides for motions to be heard on appeal from the
District Court, and Fed. R. App. Proc. 27(b) provides that the
court may act on a motion at any time and may “authorize its
clerk to act on specified types of procedural motions.” This
rule of appellate procedure provides no basis for plaintiff to
bring this action.
Finally, plaintiff cites 5 C.F.R. § 732.301. This section
of the Code of Federal Regulations (“CFR”) is entitled
“Due Process,” but applies to a federal agency's
adjudicative decision “under this part based on an OPM
investigation....” 16 Clearly, this section of the CFR does not
apply to any of the facts asserted by the plaintiff, nor does it
confer jurisdiction over this action.
2. Diversity
While it appears that the plaintiff and defendant are citizens
of different states, and plaintiff might be able to establish
diversity of citizenship, she would still have to state some sort
of legal basis for her claims. Plaintiff cites only the statutes
listed above, and thus does not establish any claims under
either federal question or diversity jurisdiction. If plaintiff
were alleging some state law causes of action, she might be
able to establish diversity jurisdiction, but she fails to clearly
specify any such claims. 17
IV. Opportunity to Amend
A. Legal Standards
*8 Generally, when the court dismisses a pro se complaint
sua sponte, the court should afford the plaintiff the
opportunity to amend at least once; however, leave to re-plead
may be denied where any amendment would be futile. Ruffolo
v. Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir. 1993).
B. Application
Although the court is recommending dismissal of plaintiff's
complaint, the court will afford plaintiff the opportunity
to amend with respect to any claims that she may have
for employment discrimination under Title VII. Although
plaintiff has not stated a claim as the complaint is written,
the court cannot state that she would not be able to amend
her complaint to state a claim if she alleges that she belongs
to a protected class and that there was a nexus between
the employment decision or the constructive discharge and
the protected class to which she belongs. None of the other
statutes remotely apply to plaintiff's stated facts, and no
attempt at amending based on any other of the statutes cites
above should be allowed. 18
If the court approves this recommendation and allows plaintiff
to submit a proposed amended complaint, plaintiff should
be warned that any amended complaint must be a complete
and separate pleading. Plaintiff must state all of her Title
VII claims in the new pleading and may not incorporate by
reference, any part of her original complaint.
V. Appointment of Counsel
Plaintiffs bringing civil actions have no constitutional right
to the appointment of counsel. See, e.g., United States v.
Coven, 662 F.2d 162, 176 (2d Cir. 1981). However, pursuant
to 28 U.S.C. § 1915(e), the court may request an attorney
to represent an indigent party. 28 U.S.C. § 1915(e)(1)
(authorizing the court to “request an attorney to represent any
person unable to afford counsel.”). In this case, plaintiff has
moved for appointment of counsel. (Dkt. No. 3).
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When determining whether to appoint counsel for an indigent
party, the court must first determine whether the indigent's
claim has “substance.” Terminate Control Corp. v. Horowitz,
28 F.3d 1335, 1341 (2d Cir. 1994) (quoting Hodge v. Police
Officers, 802 F.2d 58, 61 (2d Cir. 1986)) (internal quotation
marks omitted). This action was only relatively recently
commenced, and the only facts upon which this Court may
base its decision as to whether this lawsuit is of substance
are the facts stated in plaintiff's complaint, which I have
found insufficient to establish subject matter jurisdiction.
In addition, even if the court had allowed the case to go
forward, where there are merely unsupported allegations, the
moving party does not meet the first requirement imposed
by the Second Circuit for appointment of pro bono counsel.
See Harmon v. Runyon, No. 96 Civ. 6080, 1997 WL
118379 (S.D.N.Y. Mar. 17, 1997). Thus, the court will deny
appointment of counsel at this time without prejudice. If
plaintiff amends her complaint, and if the case ultimately
goes forward, and survives any initial dispositive motions, the
court may reconsider appointment of counsel.
*9 WHEREFORE, based on the findings above, it is
ORDERED, that plaintiff's application to proceed IFP (Dkt.
No. 2) is GRANTED FOR PURPOSES OF FILING at this
time, and it is
RECOMMENDED, that plaintiff's complaint be
DISMISSED WITHOUT PREJUDICE AS TO ANY
TITLE VII CLAIMS, WITH LEAVE TO AMEND, and it
is
RECOMMENDED, that plaintiff's complaint be
DISMISSED WITHOUT PREJUDICE FOR LACK OF
SUBJECT MATTER JURISDICTION IN ALL OTHER
RESPECTS, WITHOUT LEAVE TO AMEND, and it is
RECOMMENDED, that if the District Court adopts this
Order and Report-Recommendation, plaintiff be given the
opportunity to amend her complaint ONLY with respect to
any potential Title VII employment discrimination claims as
discussed above, and if plaintiff does file a proposed amended
complaint, plaintiff should be warned that any amended
complaint must be a complete and separate pleading.
Plaintiff must state all of her Title VII claims in the new
pleading and may not incorporate by reference, any part of
her original complaint, and it is
RECOMMENDED, that if the District Court adopts this
Order and Report-Recommendation, and plaintiff files a
proposed amended complaint, such proposed amended
complaint be returned to me for initial review, and it is
ORDERED, that plaintiff's motion for appointment of
counsel (Dkt. No. 3) is DENIED WITHOUT PREJUDICE,
and it is
ORDERED, that plaintiff's motion to file electronically (Dkt.
No. 4) is DENIED WITHOUT PREJUDICE at this time. If
the court adopts this Order and Report-Recommendation, and
plaintiff submits a viable amended complaint, then plaintiff
may reapply for electronic filing privileges.
Pursuant to 28 U.S.C. § 636 (b)(1) and Local Rule 72.1(c),
the parties have FOURTEEN (14) DAYS within which
to file written objections to the foregoing report. Any
objections shall be filed with the Clerk of the Court.
FAILURE TO OBJECT TO THIS REPORT WITHIN
FOURTEEN DAYS WILL PRECLUDE APPELLATE
REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993)
(citing Small v. Secretary of Health and Human Services, 892
F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636 (b)(1); Fed. R. Civ.
P. 6(a), 6(e), 72.
All Citations
Not Reported in Fed. Supp., 2020 WL 6729413
Footnotes
1 The court must make one observation regarding plaintiff's IFP application. On its face, plaintiff's application
for IFP status shows that she qualifies financially for IFP because her only income appears to be Social
Security Disability Benefits, and she has dependent children who she supports. (Dkt. No. 2). However, the
court is aware that on the same day she filed this action, plaintiff also filed five other actions in the Northern
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Gray v. GC Services/Apple, Not Reported in Fed. Supp. (2020)
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District of New York. See Gray v. United States Department of Justice, No. 1:20-CV-712 (GLS/DJS); Gray
v. Poland Spring Water, No. 1:20-CV-713 (DNH/DJS); Gray v. Amazon, No. 1:20-CV-715 (MAD/DJS); Gray
v. American Broadcast Company, No. 1-20-CV-716 (MAD/CFH); and Gray v. Fidelity Investment, No. 1:20-
CV-718 (DNH/CFH). Plaintiff paid the filing fee for her first-filed action. Gray v. U.S. Dep't of Justice, No.
1:20-CV-712 (GLS/DJS) (Dkt. No. 1).
2 The court notes that plaintiff is not suing “Apple.” Her proposed summons lists only GC Services in Mesa,
Arizona as a defendant. The GC Services website states that the company “provides award-winning customer
care and account receivables management services to some of the most respected companies nationwide,
including many Fortune 500 companies.” https://gcservices. marketing/ It appears to be, inter alia, a debt
collection agency. Id. It appears that Apple was one of GC Services clients. The court notes that the address
for GC Services Limited Partnership on plaintiff's attached 2019 W-2 form is in Houston, Texas. (Compl. at
22, Ex. 1).
3 On her letter of resignation, plaintiff lists her position as “a Home Based Customer Service Rep for
Apple.” (Compl. at 24, Ex. 2).
4 Plaintiff has numbered the pages of her complaint. Thus, I will cite to the page numbers as assigned by the
plaintiff at the bottom center of her pages.
5 The complaint is not very clear. Plaintiff states that she worked “home-based,” and it appears that when she
started working for the defendant, her “home” was in Las Vegas. Plaintiff attached her 2019 W-2 form which
lists a Las Vegas address. (Compl. at 22, Ex. 1).
6 It is not clear from the complaint whether plaintiff was denied attendance at the “Team Meetings” for the
entire time that she worked for GC Services or whether she was denied attendance until she worked for the
company for four months.
7 Plaintiff may have meant to say that she was held “100 percent” responsible for any mistakes or “flaws” within
the first thirty days of employment.
8 Apparently Ms. Hillert also began “watching” the time that employees stayed in the bathroom. (Compl. at 7).
Plaintiff seems to state that this was one of the issues that she was attempting, but was unable to, dispute.
(Id.) The term “watching” may be misleading because it appears that plaintiff was working from her home.
9 Apparently, an employee was given points toward Amazon gift cards if he or she used the customer's name
or used words like “spectacular” during the telephone call. (Compl. at 8).
10 The court assumes that this is a typographical error, and plaintiff meant to write July of 2019.
11 That was the first and last time in the complaint that plaintiff mention anything about “mandatory overtime”
and did not explain the meaning or the context of that statement.
12 The court has a duty to interpret pro se pleadings liberally “to raise the strongest arguments that they suggest.”
McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d
Cir. 1994)).
13 The court notes that, even if plaintiff were a federal employee, the FSLMRS provides complex administrative
and judicial remedies to assert claims. See American Federation of Gov't Employees, 929 F.3d at 752
(outlining the scheme of administrative and judicial review).
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14 Plaintiff also fails to describe what constitutional right was violated by the defendant's actions. The closest
right that could apply would be due process.
15 Although plaintiff alleges that she was “terminated,” she also states that she had written a letter of resignation.
Her manager accelerated plaintiff's last day of work, but did not “terminate” the plaintiff. Thus, plaintiff's only
potential claim is that she was “constructively terminated” due to her managers action or inaction. In order to
state a claim for constructive discharge, “a plaintiff must show that the employer ‘intentionally creates a work
atmosphere so intolerable that [the employee] is forced to quit involuntarily.’ ” Miller v. Praxair, Inc., 408 F.
App'x 408, 410 (2d Cir. 2010) (quoting Terry v. Ashcroft, 336 F.3d 128, 151-52 (2d Cir. 2003)) (alterations in
original). The standard for constructive discharge is “demanding” because “ ‘a constructive discharge cannot
be proven merely by evidence that an employee ... preferred not to continue working for that employer’ or
that ‘the employee's working conditions were difficult or unpleasant.’ ” Id. (quoting Spence v. Maryland Cas.
Co., 995 F.2d 1147, 1156 (2d Cir. 1993)) (alteration in original).
16 OPM refers to the Office of Personnel Management.
17 There may also be a venue issue in this case. Generally, venue in a particular district court is proper if (1)
at least one defendant resides in the district and all the defendants reside in the same state in which the
district is located; (2) a ‘substantial part’ of the events giving rise to the claim occurred in the district; or (3)
the defendant is subject to personal jurisdiction in the district and ‘there is no district in which an action may
otherwise be brought.’ ” Nebgen v. Schentag, No. 18 CIV. 8410 (ER), 2020 WL 1529452, at *3 (S.D.N.Y.
Mar. 31, 2020) (quoting 28 U.S.C. § 1391(b)). In an action brought under diversity jurisdiction, “a case may
be brought in ‘a judicial district in which a substantial part of the events or omissions giving rise to the claim
occurred, or a substantial part of property that is the subject of the action is situated.’ ” Morelli v. Alters, No.
1:19-CV-10707-GHW, 2020 WL 1285513, at *14 (S.D.N.Y. Mar. 18, 2020) (quoting Morgan Stanley & Co.
v. Seghers, No. 10 CIV. 5378 (DLC), 2010 WL 3952853, at *1 (S.D.N.Y. Oct. 8, 2010)) (quoting 28 U.S.C. §
1391(a)(2)). In this case, the defendant appears to be in Las Vegas, (or in Texas where the corporate offices
may be located). Although plaintiff lives in New York, she was working from home in Las Vegas at the time
when a substantial part of the conduct of which plaintiff complains took place. Plaintiff moved to New York,
although it is unclear when the move took place, and plaintiff's citizenship is determinative for venue. The
court is not making any findings regarding venue because there are insufficient facts to make a determination.
However, it is simply noted that this may be an additional issue in this action.
18 If plaintiff is attempting to assert some claims based on diversity jurisdiction, including state law or other
claims, she may assert them in any amended complaint, keeping in mind that venue in this district may be
inappropriate.
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
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Haggood v. Rubin & Rothman, LLC, Not Reported in F.Supp.3d (2014)
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2014 WL 6473527
Only the Westlaw citation is currently available.
United States District Court,
E.D. New York.
Darrel HAGGOOD, Jason Nathaniel,
and Shakeera Hodge, Plaintiffs,
v.
RUBIN & ROTHMAN, LLC, Mary
Lacoste, and Kathie Russo, Defendants.
No. 14–cv–34L (SJF)(AKT).
|
Signed Nov. 17, 2014.
Attorneys and Law Firms
Neil Frank, Peter Arcadio Romero, Frank & Associates P.C.,
Farmingdale, NY, for Plaintiffs.
Jaime Lauren Greenblatt, Jennifer Nicole Self, Rebecca R.
Embry, Landman Corsi Ballaine & Ford P.C., New York, NY,
for Defendants.
ORDER
FEUERSTEIN, District Judge.
*1 On January 16, 2014, plaintiffs Darrel Haggood
(“Haggood”), Jason Nathaniel (“Nathaniel”) and Shakeera
Hodge (“Hodge”) (collectively, “plaintiffs”) filed an
employment discrimination complaint against defendants
Rubin & Rothman, LLC (“R & R”), Mary Lacoste
(“Lacoste”) and Kathie Russo (“Russo”) (collectively,
“defendants”), alleging discrimination on the basis of race,
and retaliation, in violation of Title VII of the Civil Rights
Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e, et seq.;
Title I of the Civil Rights Act of 1991, 42 U.S.C. § 1981
(“Section 1981”); and the New York State Human Rights
Law (“NYSHRL”), N.Y. Exec. Law §§ 296, et seq. On or
about April 4, 2014, plaintiffs filed an amended complaint
against defendants, alleging discrimination on the basis of
race, retaliation and a hostile work environment in violation
of Title VII, Section 1981 and the NYSHRL. Defendants now
move to dismiss plaintiffs' claims against them pursuant to
Rule 12(b)(6) of the Federal Rules of Civil Procedure for
failure to state a claim for relief. In the final sentence of their
memorandum of law in opposition to defendant's motion to
dismiss, plaintiffs “request leave to amend their complaint in
a manner consistent with the Court's opinion[,]” (Plf. Mem. at
21), in the event “the Court should find in favor of Defendants
on any argument.” (Id.) For the reasons set forth below,
defendants' motion is granted and plaintiffs' request for leave
to amend their amended complaint is denied.
I. BACKGROUND
A. Factual Allegations 1
R & R is a consumer collection law firm with is principal
place of business in Islandia, New York. (Am.Compl., ¶¶ 14,
19).
At all relevant times, Lacoste was R & R's director of
operations and Russo was R & R's collection floor manager.
(Am.Compl., ¶¶ 17–18).
1. Allegations of Hodge and Nathaniel
In or about September 2007, Hodge commenced employment
at R & R as a collector in the Collection Department.
(Am.Compl., ¶ 26).
In or about October 2008, Amanda Gonzalez (“Gonzalez”),
presumably a co-worker of Hodge's, was “reprimanded for
using the word ‘nigger’ on the collection floor in front of
African American employees” and was told by Lisa Desz
(“Desz”), one of R & R's managers, to refrain from using that
word “because it was offensive and not appropriate for the
workplace.” (Am.Compl., ¶ 28).
Plaintiffs allege that “[o]n or about January 7, 2009, used [sic]
the phrase ‘nigger knocking’ in the presence of [ ] Hodge.
Gonzalez then asked [ ] Hodge if she ever heard of ‘nigger
knocking .’ [ ] Hodge informed Gonzalez that she found the
phrase offensive.” (Am.Compl., ¶ 29). Later that same date,
Hodge complained to Lacoste about Gonzalez's use of that
phrase on the collection floor. (Id., ¶ 30). In Hodge's presence,
Lacoste “again asked Gonzalez to refrain from using that term
in the office because it is offensive[,]” but defendants failed to
otherwise take any “disciplinary action to eradicate the racial
harassment taking place in [R & R's] offices.” (Id., ¶ 31).
*2 “On or about October 2010, Gonzalez asked [ ] Hodge's
supervisor, Brad Kimble [‘Kimble’], ‘What's up nigger?’
“ (Am.Compl., ¶ 32). According to plaintiffs, “[d]efendants
failed to take appropriate disciplinary action to correct
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Gonzalez's third known use of racially offensive language on
[ ] R & R's premises.” (Id.)
On or about July 1, 2011, after Hodge asked whether “he
would like to contribute to a collection for a pregnant co-
worker,” Raymond Mendez (“Mendez”) responded, “ ‘Nah
nigga, we are doing one with Carina.’ “ (Am.Compl., ¶
33). When Hodge asked Mendez “to refrain from using that
term because it was offensive[,] Mendez replied[,] ‘Should I
call you niggarette then?’ “ (Id., ¶ 34). Hodge again “asked
Mendez to refrain from using such offensive language.” (Id.)
That same afternoon, Hodge “reported Mendez's comment
to several of her supervisors, including [ ] Lacoste and
Russo.” (Id., ¶ 35).
On July 6, 2011, Hodge “filed a formal complaint regarding
Mendez's use of racially offensive language on the collection
floor on July 2[sic], 2011.” (Am.Compl., ¶ 36). Although
Mendez admitted to using the racially offensive terms while
speaking with Hodge on the collection floor, “[d]efendants
failed to take appropriate disciplinary actions to eradicate the
racial harassment taking place in its offices.” (Id., ¶¶ 37–38).
In or about July 2011, Nathaniel commenced employment as
a collector in R & R's Collection Department. (Am.Compl.,
¶ 77).
On or about August 10, 2012, when Hodge “spoke briefly
with [ ] Nathaniel while [she] was sending a fax and
[ ] Nathaniel was waiting for a call to be answered[,]
Desz immediately ordered [them] to stop talking” (“the fax
machine incident”). (Am. Compl., ¶ 39; see also id., 179
[“On or about August 10, 2012, [ ] Nathaniel engaged in
a brief conversation with [ ] Hodge while [ ] Hodge was
sending a fax and [ ] Nathaniel was waiting for a call to
be answered * * * [and] Desz immediately ordered [them]
to stop talking.”] ) Plaintiffs allege, “[u]pon information and
belief[,] [that] Desz did not reprimand non-African American
employees for talking while sending a fax.” (Id., ¶¶ 39, 79).
On or about August 14, 2012, Hodge “made a
formal complaint about the fax machine incident * *
*.” (Am.Compl., ¶ 40). According to plaintiffs, Lacoste (1)
“interviewed several non-African American employees who
were not involved in the [fax machine] incident[,]” but did
not interview Nathaniel, (id., ¶¶ 41, 80); and (2) reprimanded
Hodge and Nathaniel for talking at the fax machine, but not
Desz “for discriminatorily reprimanding [them] [,]” (id., ¶¶
42, 81).
On or about September 4, 2012, Hodge complained to Lacoste
“that all of the African American employees were seated
in a segregated area[,]” but Lacoste “failed to address [her]
complaint of racial segregation.” (Am.Compl., ¶ 43).
*3 On or about October 11, 2012, Frank & Associates, P.C.
informed R & R that they were representing Hodge on her
racial discrimination claims against it (Am.Compl., ¶ 44).
On or about December 11, 2012, Kimble asked Hodge “to
escort another employee, Vanetta Harris [‘Harris'], outside to
help calm [her] down[,]” following a ‘Verbal altercation with
Desz[.]” (Am.Compl., ¶ 45). Upon returning to the building,
Russo confronted Hodge and Harris and asked, “ ‘Can't you
all just do some work?’ ” (Id., ¶ 46). When Hodge attempted to
explain what had happened, Russo refused to listen, (id. ¶ 47),
and prevented Kimble from entering the area where they were
talking (“the December 2012 incident”). (Id., ¶ 49). During
the ensuing conversation with Russo, Hodge also complained
that on or about November 29, 2012, “[d]efendants had sent
six (6) African American employees home for wearing jeans
to the office while a client was present,” but did not send Rissa
Nesbitt (“Nesbitt”), a non-African American employee who
was also wearing jeans in the office while a client was present,
home or otherwise discipline her in any manner. (Id., ¶ 48).
“On December 13, 2012, without conducting an investigation,
[d]efendants falsely accused [ ] Hodge of engaging in a verbal
altercation with [ ] Russo on December 11, 2012, gave her
a written warning, and recommended that she contact [ ]
R & R's Employee Assistance Program [‘EAP’] for anger
management training * * *.” (Am.Compl., ¶ 50). According
to plaintiffs, “[t]his was the first written warning [ ] Hodge
received in her five years of employment with [ ] R &
R[,]” (id.); Russo “was not accused of engaging in a verbal
altercation, was not given a written warning, and was not told
to contact the [EAP] for anger management training!,]” (id.,
¶ 51); and “Desz and Harris were not written up for the
[December 2012] incident[,]” (id., ¶ 52). Plaintiffs allege,
“[u]pon information and belief, [that] non-African American
employees were involved in verbal altercations on [ ] R & R's
premises, but were not written up for those incidents .” (Id.,
¶ 53).
Plaintiffs allege: (1) that Hodge has not received a raise
or performance bonus since the December 2012 incident,
“purportedly because of a ‘wage freeze’ instituted by [ ] R &
R[,]” (Am.Compl., ¶ 54); and, (2) “[u]pon information and
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belief, [that] since December 2012, [ ] R & R has given several
employees raises and performance bonuses, and hired new
employees at significantly higher rates of pay than its current
employees, despite the alleged ‘wage freeze [,]” ’ (id., ¶ 55).
2. Allegations of Haggood and Nathaniel
On or about January 31, 2012, Haggood commenced
employment as a collector in R & R's Collection Department.
(Am.Compl., ¶ 57).
In or about August 2012, Haggood and Nathaniel were
members “of the Dormant Judgment Group [‘DJG’],
managed by Kimble, an African American male [,] * * *
comprised mainly of African American employees, and * *
* seated in an area segregated from non-African American
employees.” (Am.Compl., ¶¶ 58, 78).
*4 Plaintiffs allege that during the week of August 13,
2012, while Haggood and Nathaniel were sitting with two
(2) other African American employees during a break, Desz
“stood up and glared at them[,]” which made them “extremely
uncomfortable because they were being watched at all times,
including personal break time.” (Am.Compl., ¶¶ 59, 82).
On or about August 17, 2012, while waiting for a call to be
answered, Haggood asked a co-worker whose grandmother
had died how she was doing, for which Desz berated him.
(Am.Compl., ¶¶ 60–61). According to plaintiffs, “[a]t the
same time, non-African American coworkers were engaging
in personal conversations during work hours on the collection
floor.” (Id., ¶ 61). Later that morning, “Desz switched seats
with another employee, Rosette Telemaque, so that she could
watch [ ] Haggood work[,]” (id., ¶ 62), and then “had
another manager * * * sit in Telemaque's seat so that [she]
could watch [ ] Haggood work[,]” (id., ¶ 63). Plaintiffs
allege, “[u]pon information and belief, [that] Desz singled out
African American employees for excessive scrutiny.” (Id., ¶
65).
“In or about the middle of August 2012, the [DJG], including
[ ] Haggood and Nathaniel, had a meeting with Kimble in the
lunch room[,]” to which Desz listened “through the cafeteria
door.” (Am.Compl., ¶¶ 66, 83). On or about August 22, 2012,
Haggood (1) “made a formal complaint to [ ] Russo that
Desz listened to the [DJG] meeting through the cafeteria
door[,]” (id., ¶ 67); and (2) asked Nathaniel “a work-related
question about the foreclosure process, because Kimble was
not available[,]” for which they were both “berated” by Desz
for engaging in conversation, (id., ¶¶ 68, 84).
According to plaintiffs, at some unspecified time, Haggood
complained to Lacoste “that Desz did not allow African
American employees to ask each other work related
questions[,]” (Am.Compl., ¶ 69), but Lacoste “failed to
take appropriate disciplinary actions against Desz * *
*[,]” (id., ¶¶ 71, 86). Plaintiffs allege, “[u]pon information and
belief[:]” (1) that “non-African American employees were not
berated for asking each other work related questions[,]” (id.,
¶¶ 70, 85); and (2) that “other managers of [ ] R & R did
not prohibit employees from asking each other work related
questions and having brief conversations while waiting for
calls to be answered[,]” (id., ¶ 72).
Plaintiffs allege that “[o]n or about September 4,
2012, [d]efendants dismantled the [DJG] and transferred
[ ] Haggood [and Nathaniel] to a different collections
group, under circumstances giving rise to an inference
of discrimination, after Kimble filed a claim of race
discrimination against [ ] R & R.” (Am.Compl., ¶¶ 73,
87). According to plaintiffs, Haggood and Nathaniel were
“transferred to another African American supervisor, Wright
[,]” (id., ¶¶ 74, 88), as a result of which they “lost the
opportunity to earn bonus compensation based on [their]
collection goals in the [DJG].” (Id., ¶¶ 75, 89).
*5 “In or about early November 2012, Defendant reduced
the number of clients that were assigned to [ ] Nathaniel,
which made it nearly impossible for [him] to reach his
collection goals and earn the performance bonuses associated
with achieving those goals.” (Am.Compl., ¶ 90). According to
plaintiffs, “[t]hroughout November 2012, [ ] Nathaniel asked
[ ] Russo and his then Manager, Rich Szollosi [‘Szollosi’], a
white male, for help in reaching his collection goals[,]” (id.,
¶ 91), but they “ignored [his] requests and provided no
assistance or advice to help him reach his collection goals
[,]” (id.).
In or about January 2013, Nathaniel was interviewed by the
EEOC with respect to Kimble's discrimination claim against
R & R. (Am.Compl., ¶ 92).
“On or about January 2, 2013, [ ] Nathaniel was seated
separately from all other employees.” (Am.Compl., ¶ 93).
According to plaintiffs, Nathaniel's complaints about his
seating assignment to Russo, Szollosi and Frank Rothman
(“Rothman”), R & R's owner, were ignored. (Id., ¶ 93).
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On or about January 5, 2013, Lacoste terminated Nathaniel's
employment at R & R. (Am.Compl., ¶ 94).
On or about April 10, 2013, Haggood's employment at R &
R was terminated. (Am.Compl., ¶ 76).
B. Procedural History
On January 16, 2014, plaintiffs filed an employment
discrimination complaint against defendants alleging
discrimination on the basis of race and retaliation in violation
of Title VII, Section 1981 and the NYSHRL. On or
about April 4, 2014, plaintiffs filed an amended complaint
against defendants alleging, inter alia, that defendants; (1)
“discriminated against [them] in the terms and conditions of
their employment * * * by taking adverse employment actions
against [them] based on their race,” (Am.Compl., ¶¶ 96, 99,
103), in violation of Title VII (first claim for relief), Section
1981 (second claim for relief) and the NYSHRL (third claim
for relief); (2) that defendants “retaliated against [them] for
opposing discrimination on the basis of race by taking adverse
employment actions against [them] after they reported acts of
racial discrimination,” (id., ¶¶ 106, 110, 113), in violation of
Title VII (fourth claim for relief), Section 1981 (fifth claim
for relief) and the NYSHRL (sixth claim for relief); (3) that
defendants “created and maintained a work environment of
pervasive discriminatory intimidation, ridicule, and severe
insults that altered the conditions of [their] employment[,]
* * * created and maintained a work environment where
disparate treatment of African American employees and the
use of racial slurs, epithets, and jokes on the collection
floor interfered with [their] ability to perform their job
functions!,] * * * [and] subjected [them] to an ongoing
pattern of racially offensive and humiliating conduct[,]” (id.,
¶¶ 117–119, 124–126, 131–133), in violation of Title VII
(seventh claim for relief), Section 1981 (eighth claim for
relief) and the NYSHRL (ninth claim for relief); and (4) that
“Russo and Lacoste aided and abetted Defendant R & R in
discriminating against [them], retaliating against [them], and
allowing a hostile work environment to exist at Defendant
R & R by repeatedly ignoring [their] complaints of racial
discrimination, allowing the use of racial slurs, epithets, and
jokes on the collection floor, failing to adequately discipline
employees who used racially offensive language and who
targeted African American employee for discipline, and for
allowing adverse employment actions to be taken against
[them] [,]” (id., ¶ 137), in violation of the NYSHRL (tenth
claim for relief). Plaintiffs allege that “supervisors!,] [ ]
other employees” and/or “management personnel” at R &
R created a hostile work environment for African American
employees, including themselves, by (1) “[r]egular[ly] and
repeated[ly]” (a) using “the words ‘nigger,’ ‘nigga,’ and
‘niggarette[,]’ “ and other racial slurs and epithets, “to or
about African American employees” and (b) “making [ ]
racial jokes to or about African American employees * *
*[;]” (2) “selectively scrutinizing performance, prohibiting
Plaintiffs and other African American personnel from
asking each other work related questions, and reprimanding
Plaintiffs and other African American employees in front
of other employees;” (3) creating “[s]egregated seating in
the collections department;” and (4) “[i]gnoring Plaintiffs'
repeated complaints of discrimination, harassment, and
disparate treatment * * *.” (Am.Compl., ¶ 20).
*6 Defendants now move to dismiss the amended complaint
pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure for failure to state a claim for relief and
plaintiffs perfunctorily request leave to amend their amended
complaint.
II. DISCUSSION
A. Standard of Review
The standard of review on a motion made pursuant to Rule
12(b) (6) of the Federal Rules of Civil Procedure is that a
plaintiff plead sufficient facts “to state a claim for relief that
is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007). “A claim
has facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868
(2009). The plausibility standard requires “more than a sheer
possibility that a defendant has acted unlawfully.” Id.
“A pleading that offers ‘labels and conclusions' or ‘a
formulaic recitation of the elements of a cause of action will
not do.’ ” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937, 173 L.Ed.2d
868 (quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955, 167
L.Ed.2d 929). “Nor does a complaint suffice if it tenders
‘naked assertion[s]’ devoid of ‘further factual enhancement.”
’ Id. (quoting Twombly, 550 U.S. at 557, 127 S.Ct. 1955, 167
L.Ed.2d 929). “Factual allegations must be enough to raise a
right to relief above the speculative level, on the assumption
that all the allegations in the complaint are true (even if
doubtful in fact) .” Twombly, 550 U.S. 544, 127 S.Ct. at 1959,
167 L.Ed.2d 929.
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In deciding a motion pursuant to Rule 12(b)(6), the
Court must liberally construe the claims, accept all factual
allegations in the complaint as true, and draw all reasonable
inferences in favor of the plaintiff. See Aegis Ins. Servs.,
Inc. v. 7 World Trade Co., L.P., 737 F.3d 166, 176 (2d
Cir.2013) (quotations and citation omitted); Grullon v. City
of New Haven, 720 F.3d 133, 139 (2d Cir.2013). However,
this tenet “is inapplicable to legal conclusions. Threadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.” Iqbal, 556 U.S.
at 678, 129 S.Ct. 1937, 173 L.Ed.2d 868. “While legal
conclusions can provide the framework of a complaint, they
must be supported by factual allegations.” Id. at 679, 556
U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868. “In keeping
with these principles a court considering a motion to dismiss
can choose to begin by identifying pleadings that, because
they are no more than conclusions, are not entitled to the
assumption of truth” Id.; see also Ruston v. Town Bd. for Town
of Skaneateles, 610 F.3d 55, 59 (2d Cir.2010).
Nonetheless, a plaintiff is not required to plead “specific
evidence or extra facts beyond what is needed to make the
claim plausible.” Arista Records. LLC v. Doe 3, 604 F.3d 110,
120–1 (2d Cir.2010); see also Pension Benefit Guar. Corp.
ex rel. St. Vincent Catholic Med. Ctrs. Ret. Plan v. Morgan
Stanley Inv. Mgmt. Inc., 712 F.3d 705, 729–30 (2d Cir.2013)
(accord). “When there are well-pleaded factual allegations,
a court should assume their veracity and then determine
whether they plausibly give rise to an entitlement to relief.”
Iqbal, 556 U.S. at 679, 129 S.Ct. 1937, 173 L.Ed.2d 868.
*7 In deciding a motion pursuant to Rule 12(b)(6) of the
Federal Rules of Civil Procedure, the Court must limit itself
to the facts alleged in the complaint, which are accepted as
true; to any documents attached to the complaint as exhibits or
incorporated by reference therein; to matters of which judicial
notice may be taken; or to documents upon the terms and
effect of which the complaint “relies heavily” and which are,
thus, rendered “integral” to the complaint. Chambers v. Time
Warner, Inc., 282 F.3d 147, 152–53 (2d Cir.2002); see also
ASARCO LLC v. Goodwin, 756 F.3d 191, 198 (2d Cir.2014).
B. Title VII Claims against the Individual Defendants
“Employers, not individuals, are liable under Title VII.”
Reynolds v. Barrett, 685 F.3d 193, 202 (2d Cir.2012); see
also Raspardo v. Carlone, –––F.3d ––––, 2014 WL 4958157,
at * 12 (2d Cir. Oct.6, 2014) (holding that Title VII “does
not create liability in individual supervisors and co-workers
who are not the plaintiffs' actual employers[.]”); Spiegel v.
Schulmann, 604 F.3d 72, 79 (2d Cir.2010) (“[T]he remedial
provisions of Title VII * * * do not provide for individual
liability.”) Accordingly, the branch of defendants' motion
seeking dismissal of plaintiffs' Title VII claims against
Lacoste and Russo (collectively, “the individual defendants”)
pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure is granted and plaintiffs' Title VII claims, i.e.,
their first, fifth and seventh claims for relief in the amended
complaint, are dismissed in their entirety with prejudice as
against the individual defendants for failure to state a claim
for relief.
C. Discrimination Claims
Title VII prohibits an employer from discriminating against
any individual with respect to “compensation, terms,
conditions, or privileges of employment, because of such
individual's race, color, religion, sex or national origin.” 42
U.S.C. § 2000e–2(a)(1). “The NYSHRL mirrors these federal
obligations.” Brown v. Daikin America Inc., 756 F.3d 219, 226
(2d Cir.2014).
Section 1981 provides, in relevant part, that “[a]ll persons
within the jurisdiction of the United States shall have the
same right in every State and Territory to make and enforce
contracts * * * as is enjoyed by white citizens [ ] * * *.”
“For the purposes of § 1981, the term ‘make and enforce
contracts' includes ‘the making, performance, modification,
and termination of contracts, and the enjoyment of all
benefits, privileges, terms, and conditions of the contractual
relationship[,]’ [42 U.S.C] § 1981(b) [,] * * * [and] ‘thus
outlaws discrimination with respect to the enjoyment of
benefits, privileges, terms, and conditions of a contractual
relationship, such as employment.’ “ Green v. District Council
1707, No. 13 Civ. 8671, 2014 WL 3734101, at * 4 (S.D.N.Y.
July 29, 2014) (quoting Patterson v. County of Oneida,
375 F.3d 206, 224 (2d Cir.2004)). “The statute has long
been viewed as prohibiting certain forms of discrimination
based on race, * * * [and] applies to acts of private racial
discrimination.” Albert v. Carovano, 851 F.2d 561, 571
(2d Cir.1988). “Essential to an action under Section 1981
are allegations that the defendants' acts were purposefully
discriminatory!] * * * and racially motivated.” Id .
*8 “The substantive standards applicable to claims of
employment discrimination under Title VII[ ] * * * are also
generally applicable to claims of employment discrimination
brought under § 1981 * * * and the NYSHRL * * *.”
Vivenzio v. City of Syracuse, 611 F.3d 98, 106 (2d Cir.2010):
see also Brown v. City of Syracuse, 673 F.3d 141, 150 (2d
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Cir.2012) (holding that courts analyze “Title VII, § 1981,
and NYHRL discrimination claims under the familiar burden-
shifting framework set forth in McDonnell Douglas Corp.
v. Green, 411 U.S. 792, 802–03, 93 S.Ct. 1817, 36 L.Ed.2d
668 (1973) [ ].”) In order to establish a prima face case
of employment discrimination under any of those statutes,
a plaintiff must show: “(1) that he belonged to a protected
class; (2) that he was qualified for the position * * *; (3)
that he suffered an adverse employment action; and (4) that
the adverse employment action occurred under circumstances
giving rise to an inference of discriminatory intent.” Abrams
v. Dep't of Public Safety, 764 F.3d 244, 251–52 (2d Cir.2014):
accord Kirkland v. Cablevision Systems, 760 F.3d 223, 225
(2d Cir.2014).
“The sine qua non of a * * * discriminatory action claim
under Title VII is that the discrimination must be because
of [a protected characteristic].” Patane v. Clark, 508 F.3d
106, 112 (2d Cir.2007) (emphasis in original) (quotations
and citation omitted); see also Ricci v. DeStefanom 557 U.S.
557, 577, 129 S.Ct. 2658, 174 L.Ed.2d 490 (2009) (“A
disparate-treatment plaintiff must establish that the defendant
had a discriminatory intent or motive for taking a job related
action.” (quotations and citation omitted)). “It is axiomatic
that mistreatment at work ... is actionable under Title VII
only when it occurs because of an employee's * * * protected
characteristic.” Patane, 508 F.3d at 112 (quoting Brown v.
Henderson, 257 F.3d 246, 252 (2d Cir.2001)); see also Rivera
v. Rochester Genesee Reg'l Transp. Auth., 743 F.3d 11, 20
(2d Cir.2014) (accord). Although plaintiff is not required
“to plead specific facts to show a prima facie case of
discrimination * * * dismissal is nevertheless appropriate
where the plaintiff failed to allege even the basic elements
of a discriminatory action claim.” Maldonado v. George
Weston Bakeries, 441 F. App'x 808, 808–09 (2d Cir. Dec.19,
2011) (summary order); see also Patane. 508 F.3d at 112 n.
3 (affirming dismissal where the plaintiff “failed to allege
even the basic elements of a discriminatory action claim.”);
Jackson v. NYS Dep't of Labor, 709 F.Supp.2d 218, 229
(S.D.N.Y.2010), appeal dismissed, 431 F. App'x 21 (2d Cir.
June 15, 2011) (holding that although the plaintiff “need not
allege each element of a prima facie claim to survive a motion
to dismiss, * * * the facts alleged at the very least must
indicate the possibility that she was discriminated against on
the basis of [a protected characteristic].”)
*9 As relevant here, “circumstances that give rise to an
inference of discriminatory motive include actions or remarks
made by decisionmakers that could be viewed as reflecting
a discriminatory animus, * * * [or] preferential treatment
given to employees outside the protected class [ ] * * *.”
Chertkova v. Connecticut Gen. Life Ins. Co., 92 F.3d 81, 91
(2d Cir.1996) (citations omitted); see also Patane, 508 F.3d at
112 (finding that the complaint did not “set forth any factual
circumstances from which a [discriminatory motive] * * *
might be inferred[,] [insofar as] [i]t [did] not * * * allege that
* * * any of the [ ] defendants[ ] made any remarks that could
be viewed as reflecting discriminatory animus[,] * * * [n]or
[did] it allege that any [ ] employees [outside the protected
class] were given preferential treatment when compared to
plaintiff.”)
Although plaintiffs allege: (1) that on or about September 4,
2012, the DJG, comprised “mainly,” but not exclusively, of
African–American employees, was dismantled and Haggood
and Nathaniel, and presumably the other members of the
group, both African–American and non-African American,
were transferred to a different collections group; (2) that
approximately two (2) months later, i.e., in or about early
November 2012, (a) the number of clients assigned to
Nathaniel were reduced, making it “nearly impossible for
[him] to reach his collection goals[,]” (id., ¶ 90), and (b)
Nathaniel's requests to Russo and Szollosi for assistance in
reaching his collection goals were ignored; (3) that Hodge
has not received a raise or performance bonus since the
December 2012 incident, purportedly due to a “wage freeze,”
although, “[u]pon information and belief, * * * R & R has
given several employees [whose identities and race are not
specified] raises and performance bonuses, and hired new
employees [whose identities and race are not specified] at
significantly higher rates of pay than its current employees,
despite the alleged ‘wage freeze[,]’ “ (id., ¶ 55); (4) that
approximately three (3) weeks later, Nathaniel “was seated
separately from all other employees[,]” (id., ¶ 93), including,
presumably, other African American employees, then his
employment at R & R was terminated; and (5) that Haggood's
employment at R & R was terminated on or about April 10,
2013, the amended complaint does not contain any factual
allegations from which it may reasonably be inferred that any
of those acts occurred under circumstances giving rise to an
inference of discriminatory intent. Specifically, the amended
complaint is devoid of any factual allegations from which it
may reasonably be inferred that the individual defendants, or
any other decision-making employee of R & R, made any
remarks that could be viewed as reflecting discriminatory
animus, or that any non-African American employee was
given preferential treatment when compared to plaintiffs with
respect to those actions. Accordingly, to the extent plaintiffs
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base their race discrimination claims upon the aforementioned
acts, those claims are dismissed pursuant to Rule 12(b)(6) of
the Federal Rules of Civil Procedure for failure to state a claim
for relief.
*10 Plaintiffs' allegations of race discrimination, thus,
amount to the following: (a) that over a two (2)-year period,
between October 2008 and October 2010, a co-worker of
Hodge's was reprimanded, but was not otherwise disciplined,
for using an offensive racial slur on R & R premises on three
(3) occasions; (b) that approximately nine (9) months later,
on or about July 1, 2011, another co-worker of Hodge's used
an offensive racial slur while speaking with Hodge on the
collection floor, but was not disciplined after admitting that
he did so; (c) that over one (1) year later, i.e., in August
2012, (i) Desz (A) reprimanded and/or berated Hodge and
Nathaniel and Haggood and Nathaniel for talking together
during work hours, and berated Haggood for talking to a
co-worker during work hours, although, “[u]pon information
and belief, [she] did not reprimand non-African American
employees for talking [under similar circumstances],” (Am.
Compl., ¶¶ 39, 79; see also, id., ¶¶ 61, 70, 85), (B) glared
at Haggood and Nathaniel while they were sitting together
during a break and listened to a DJG meeting through
the cafeteria doors because, “[u]pon information and belief,
* * * [she] singled out African American employees for
excessive scrutiny[,]” (id., ¶ 65), and (ii) Lacoste reprimanded
Hodge and Nathaniel for talking during working hours, but
did not reprimand or otherwise discipline Desz after they,
and Haggood, complained to her about Desz's purported
discriminatory treatment of them; (d) that approximately two
(2) to three (3) weeks later, i.e., on or about September 4,
2012, Hodge complained to Lacoste that all of the African
American employees were seated in a segregated area, but
Lacoste failed to address that complaint; and (e) that more
than three (3) months later, i.e., on or about December 13,
2012, Hodge was given a written warning for engaging in a
verbal alteration with Russo two (2) days earlier, but (i) Russo
was not also given a written warning for engaging in that
verbal altercation, and, (ii) “[u]pon information and belief,
non-African American employees [who] were involved in
verbal altercations on [ ] R & R's premises[ ] * * * were not
written up for those incidents[,]” (id., ¶ 53). For the reasons
set forth below, it may not reasonably be inferred from any
of those allegations that the challenged acts occurred under
circumstances giving rise to an inference of discriminatory
intent.
1. Racially Discriminatory Comments
In determining whether a challenged remark is probative of
discriminatory intent, courts should consider the following
four (4) factors:
“(1) who made the remark (i.e., a
decision-maker, a supervisor, or a
low-level co-worker); (2) when the
remark was made in relation to the
employment decision at issue; (3) the
content of the remark (i.e., whether a
reasonable juror could view the remark
as discriminatory); and (4) the context
in which the remark was made (i .e.,
whether it was related to the decision-
making process).”
*11 Henry v. Wyeth Pharm., Inc., 616 F.3d 134, 149–50 (2d
Cir.2010); see also Wesley–Dickson v. Warwick Valley Cent.
Sch. Dist., ––– F. App'x ––––, 2014 WL 4958166, at * 2 (2d
Cir. Oct.6, 2014) (summary order). However, none of those
factors are dispositive. Henry, 616 F.3d at 150.
Although the challenged comments are undoubtedly racially
offensive and discriminatory, the amended complaint alleges
only that two (2) of Hodge's co-workers uttered those
comments on four (4) occasions over an approximate thirty-
three (33)-month period ending in July 2011, more than one
(1) year prior to any purported adverse employment action
being taken against her. There are no allegations, inter alia:
(1) that either of the individual defendants, or any other
decision-making employee at R & R, uttered any racially
discriminatory or offensive comment; or (2) that any racially
discriminatory comments were ever uttered (i) by anyone on
R & R's premises after July 1, 2011, more than one (1) year
prior to any purported adverse employment action, or (ii)
in relation to a decision-making process that resulted in an
adverse employment action to plaintiffs. See, e.g. Wesley–
Dickson, ––– F. App'x ––––, 2014 WL 4958166, at * 2
(concluding that remarks, assumed to be racially biased, did
not raise a triable issue of employment discrimination because
(1) the individual that uttered them “did not review the
plaintiff's work, write any performance reviews, or otherwise
influence the school superintendents' decisions to extend
plaintiff's probationary term or to deny her tenure[,]” and (2)
they were made six (6) months before the alleged adverse
employment actions); Lioi v. New York City Dep't of Health
& Mental Hygiene, 914 F.Supp.2d 567, 586 (S.D.N.Y.2012)
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(finding that the plaintiff failed to establish a prima facie
case of discrimination because the discriminatory comments
were made “almost a full year before [she] was suspended,
and more than a year before her termination” and there was
no evidence, inter alia, that the comments were in any way
related to the decisionmaking process that resulted in the
adverse employment actions). Since it cannot reasonably be
inferred that defendants acted with discriminatory intent from
the racially discriminatory comments made by Hodge's co-
workers more than one (1) year prior to any purported adverse
action being taken against plaintiffs, to the extent plaintiffs
base their race discrimination claims upon those comments,
those claims are dismissed pursuant to Rule 12(b)(6) of the
Federal Rules of Civil Procedure for failure to state a claim
for relief.
2. Disparate Treatment
“Where a plaintiff seeks to derive an inference of
discrimination from allegations of disparate treatment, he
or she must plausibly allege the existence of at least
one comparator who was more favorably treated despite
being ‘similarly situated to the plaintiff in all material
respects,’ meaning the comparator was ‘(1) subject to the
same performance evaluation and discipline standards and
(2) engaged in comparable conduct.’ “ Green, 2014 WL
3734101, at * 5 (quoting Ruiz v. County of Rockland. 609
F.3d 486, 493–94 (2d Cir.2010)); see also Raspardo, –––
F.3d ––––, 2014 WL 4958157, at *25 (“In order to raise an
inference of discrimination through a showing of disparate
treatment, the plaintiff must demonstrate that the employer
treated him or her less favorably than a similarly situated
employee outside of the protected group. * * * A similarly
situated employee is one ‘similarly situated in all material
respects to the plaintiff.” (quotations and citation omitted));
Graham v. Long Island R.R., 230 F.3d 34, 40 (2d Cir.2000)
(“What constitutes ‘all material respects' [ ] varies somewhat
from case to case and * * * must be judged based on (1)
whether the plaintiff and those he maintains were similarly
situated were subject to the same workplace standards and
(2) whether the conduct for which the employer imposed
discipline was of comparable seriousness.”) “At the motion to
dismiss stage * * * a court still must determine whether, based
on a plaintiff's allegations in the complaint, it is plausible that
a jury could ultimately determine that the comparators are
similarly situated.” Mosdos Chofetz Chaim, Inc. v. Village of
Wesley Hills, 815 F.Supp.2d 679, 698 (S.D.N.Y.2011). “Thus,
well-pled facts showing that the plaintiff has been treated
differently from others similarly situated, remains an essential
component of such a claim and conclusory allegations of
selective treatment are insufficient * * *.” Id.
*12 To the extent plaintiffs seek to compare themselves to
Desz and Russo, i.e., by alleging that Lacoste reprimanded
them and not Desz, and that Russo was not treated the same
as Hodge following their verbal altercation, they, as plaintiffs'
supervisors, are clearly not similarly situated to plaintiffs
in all material respects. 2 It may not reasonably be inferred
from the factual allegations in the Amended Complaint that
any non-African American employee similarly situated to
plaintiffs in all material respects was subject to differential
treatment by defendants because, inter alia, with the
exception of Desz and Russo, who are not similarly situated
to plaintiffs, the Amended Complaint is entirely devoid of
any details regarding the purported comparators, e.g., who
they are, what their positions or responsibilities were at R
& R, how their conduct compared to plaintiffs' or how they
were treated differently by defendants. Since all of plaintiffs'
allegations, made “upon information and belief,” pertaining
to the treatment non-African American employees received
at R & R are entirely conclusory, they are not entitled to
the assumption of truth and are insufficient to withstand a
motion to dismiss. See, e.g. Albert. 851 F.2d at 572 (“The
naked allegation that [the defendants] ‘selectively enforc[ed]
the College rules ... against plaintiffs ... because they are
black [or] Latin’ is too conclusory to survive a motion to
dismiss.” (second and third brackets in original)); Kajoshaj
v. City of New York. No. 11–cv–4780, 2013 WL 249408,
at * 2 (E.D.N.Y. Jan.23, 2013), aff'd, 543 F. App'x 11 (2d
Cir. Oct.15, 2013) (holding that the plaintiffs' allegation that
“[u]pon information and belief, non-Muslim students from
families of non-Albanian origin at the [ ] Academy received
test scores and grades similar to [the infant plaintiff] in the
fifth grade class for the 2009–2010 school year and were
promoted to the sixth grade by the [ ] Academy [,]” absent
any “specific factual allegations concerning th[o]se allegedly
similarly situated individuals, was “a bare conclusion [that]
cannot survive a motion to dismiss.”); D.F. v. Board of
Educ. of Syosset Cent. Sch. Dist., 386 F.Supp.2d 119, 128
(E.D.N.Y.2005), aff'd, 180 F. App'x 232 (2d Cir. May 9, 2006)
(holding that the plaintiff's allegation that “upon information
and belief, other students attending middle school within
the School District who engaged in similar or more severe
conduct * * * received suspensions of a lesser duration
than [the plaintiff's],” absent the identity of any similarly
situated individual “or any set of facts in support of his
allegations of disparate treatment,” was “wholly conclusory[ ]
and * * * insufficient to defeat a motion to dismiss.”); cf.
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JBCHoldings NY. LLC v. Pakter, 931 F.Supp.2d 514, 526–
27 (S.D.N.Y.2013) (holding that although a plaintiff may
plead facts alleged upon information and belief ‘where the
facts are peculiarly within the possession and control of the
defendant or where the belief is based on factual information
that makes the inference of culpability plausible,’ Arista
Records [ ], 604 F.3d [at] 120[ ] (citing Iqbal, 556 U.S.
at 677, 129 S.Ct. 1937, 173 L.Ed.2d 868), such allegations
must be ‘accompanied by a statement of the facts upon
which the belief is founded.’ “ (quoting Prince v. Madison
Square Garden, 427 F.Supp.2d 372, 384 (S.D.N.Y.2006)));
Navarra v. Marlborough Gallery. Inc., 820 F.Supp.2d 477,
485 (S.D.N.Y.2011) (accord). “Without factual amplification,
the generic allegation[s] of disparate treatment related to
an unspecified class of [non-African American] persons is
simply not sufficient to ‘nudge [ ] [plaintiffs'] claims across
the line from conceivable to plausible,’ * * * and thus [are]
insufficient to support [their] racial discrimination claim[s].”
Henry v. NYC Health & Hosp. Corp., No. 13 Civ. 6909, 2014
WL 957074, at * 7 (S.D.N.Y. Mar.10, 2014) (third brackets in
original) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955,
167 L.Ed.2d 929). Accordingly, the branch of defendants'
motion seeking dismissal of plaintiffs' race discrimination
claims pursuant to Rule 12(b)(6) of the Federal Rules of
Civil Procedure is granted and plaintiffs' race discrimination
claims under Title VII (first claim for relief), Section 1981
(second claim for relief) and NYSHRL (third claim for relief)
are dismissed in their entirety for failure to state a claim for
relief. 3
D. Retaliation and Hostile Work Environment Claims
*13 “The standards for evaluating hostile work environment
and retaliation claims are identical under Title VII and the
NYSHRL.” Kelly v. Howard I. Shapiro & Assocs. Consulting
Eng'rs, 716 F.3d 10, 14 (2d Cir.2013); see also Summa v.
Hofstra Univ., 708 F.3d 115, 123–5 (2d Cir.2013). Likewise,
Section 1981 retaliation claims “are analyzed pursuant to
Title VII principles.” Hicks v. Baines, 593 F.3d 159, 164 (2d
Cir.2010); see also Fincher v. Depository Trust and Clearing
Corp., 604 F.3d 712, 720 (2d Ci.2010).
1. Retaliation Claims
Title VII's anti-retaliation provision provides, in relevant part:
“It shall be an unlawful employment practice for an
employer to discriminate against any of his employees * *
* because he has opposed any practice made an unlawful
employment practice by this subchapter, or because he
has made a charge, testified, assisted, or participated in
any manner in an investigation, proceeding, or hearing
under this subchapter.” 42 U.S.C. § 2000e–3(a). In order
to establish a prima facie case of retaliation, the plaintiff
must show: (i) that he or she engaged in a protected activity;
“(ii) of which the employer was aware; (iii) followed by
an adverse employment action of a nature that would
deter a reasonable employee from making or supporting
a discrimination claim; (iv) that was causally connected
to the protected activity.” Cox v. Onondaga Cnty. Sheriff's
Dep't, 760 F.3d 139, 145 (2d Cir.2014); accord Zann Kwan
v. Andalex Grp. LLC, 737 F.3d 834, 844 (2d Cir.2013);
see also Kirkland. 760 F.3d at 225 (“To state a prima
facie case of retaliation under Title VII, a plaintiff must
proffer evidence that he engaged in a protected activity,
such as complaining about race discrimination, and that his
employer took an adverse action in retaliation.”)
a. Protected Activity
“An employee's complaint may qualify as protected activity *
* * so long as the employee has a good faith, reasonable belief
that * * * she was opposing an employment practice made
unlawful by Title VII .” Kelly. 716 F.3d at 14 (quotations,
brackets and citation omitted). “The reasonableness of the
plaintiff's belief is to be assessed in light of the totality of
the circumstances[,]” id. (quoting Galdieri–Ambrosini v. Nat'l
Realty & Dev. Corp., 136 F.3d 276, 292 (2d Cir.1998)),
and “mere subjective good faith belief is insufficient; the
belief must be reasonable and characterized by objective
good faith.” Id. at 16–17 (quotations, brackets, emphasis
and citation omitted). “The objective reasonableness of a
complaint is to be evaluated from the perspective of a
reasonable similarly situated person.” Id. at 17.
Although plaintiffs allege that defendants dismantled the DJG
after Kimble filed a claim of race discrimination against
R & R, as a result of which Haggood and Nathaniel were
transferred to a different collections group, thereby “los[ing]
the opportunity to earn bonus compensation based on [their]
collection goals in the [DJG],” (Am.Comp., ¶¶ 75, 89), they
do not allege that they, themselves, engaged in any protected
activity for which defendants retaliated against them. In other
words, defendants did not transfer Haggood and Nathaniel to
a different collections group in retaliation for anything that
they, themselves, did. Accordingly, to the extent plaintiffs
base their retaliation claim upon the dismantling of the DJG
and resulting loss of bonus compensation, those claims are
dismissed pursuant to Rule 12(b)(6) of the Federal Rules of
Civil Procedure for failure to state a claim for relief.
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b. Knowledge
*14 “[I]mplicit in the requirement that the employer have
been aware of the protected activity is the requirement that
it understood, or could reasonably have understood, that
the plaintiff's opposition was directed at conduct prohibited
by Title VII.” Kelly, 716 F.3d at 15 (quoting Galdieri–
Ambrosini, 136 F.3d at 292); accord Rojas v. Roman Catholic
Diocese of Rochester, 660 F.3d 98, 107–08 (2d Cir.2011).
“Although particular words such as ‘discrimination’ are
certainly not required to put an employer on notice of a
protected complaint, neither are they sufficient to do so if
nothing in the substance of the complaint suggests that the
complained-of activity is, in fact, unlawfully discriminatory.”
Id. at 17.
Although plaintiffs allege that Hodge “made a formal
complaint about the fax machine incident[,]” (Am.Compl.,
¶ 40), and that Haggood “made a formal complaint to [ ]
Russo that Desz listened to the [DJG] meeting through the
cafeteria door[,]” (id., ¶ 67), the amended complaint is bereft
of any factual allegations from which it may reasonably
be inferred that defendants knew, or should have known,
that those complaints were about a racially discriminatory
employment practice. Accordingly, to the extent plaintiffs
base their retaliation claims upon Hodge's complaint about
the fax machine incident and Haggood's complaint to Russo
about Desz's conduct in listening to a DJG meeting, those
claims are dismissed pursuant to Rule 12(b)(6) of the Federal
Rules of Civil Procedure for failure to state a claim for relief.
There are no factual allegations in the amended complaint
from which it may reasonably be inferred that Nathaniel ever
complained to anyone about, or otherwise opposed, a racially
discriminatory employment practice at R & R. Although the
amended complaint alleges that Nathaniel had an interview
with the EEOC with respect to Kimble's discrimination claim
against R & R some time in January 2013, the amended
complaint claims retaliation only under the opposition clause,
not the participation clause, of Title VII's anti-retaliation
provision. (See Am. Compl., ¶¶ 106, 110, 113). In any event,
the amended complaint is bereft of any factual allegations
from which it may reasonably be inferred that defendants
knew, or should have known, about Nathaniel's interview with
the EEOC at any time prior to taking any of the acts of which
he complains in the amended complaint. Accordingly, the
branch of defendants' motion seeking dismissal of Nathaniel's
retaliation claims pursuant to Rule 12(b)(6) of the Federal
Rules of Civil Procedure is granted and Nathaniel's retaliation
claims under Title VII, Section 1981 and the NYSHRL are
dismissed in their entirety for failure to state a claim for relief.
c. Materially Adverse Action
Title VII's “antiretaliation provision, unlike the substantive
[anti-discrimination] provision, is not limited to
discriminatory actions that affect the terms and conditions of
employment[,]” Burlington N. & Santa Fe Ry. Co. v. White,
548 U.S. 53, 64, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006),
and “prohibits any employer action that ‘well might have
dissuaded a reasonable worker from making or supporting a
charge of discrimination,’ “ Thompson v. North Am. Stainless,
L.P., 562 U.S. 170, 131 S.Ct. 863, 868, 178 L.Ed.2d 694
(2011) (quoting Burlington, 548 U.S. at 68, 126 S.Ct. 2405,
165 L.Ed.2d 345). “[T]he provision's standard for judging
harm [is] objective,” Burlington, 548 U.S. at 68, 126 S.Ct.
2405, 165 L.Ed.2d 345, and “the significance of any given
act of retaliation will often depend upon the particular
circumstances.” Id. at 69, 548 U.S. 53, 126 S.Ct. 2405, 165
L.Ed.2d 345. Thus, whether a particular action is “materially
adverse * * * should be judged from the perspective of a
reasonable person in the plaintiff's position, considering ‘all
the circumstances.’ “ Id. at 71, 548 U.S. 53, 126 S.Ct. 2405,
165 L.Ed.2d 345 (quoting Oncale v. Sundowner Offshore
Servs., Inc., 523 U.S. 75, 80, 81, 118 S.Ct. 998, 140 L.Ed.2d
201 (1998)). “Title VII * * * does not set forth ‘a general
civility code for the American workplace[,]’ * * * [and]
[a]n employee's decision to report discriminatory behavior
cannot immunize that employee from those petty slights or
minor annoyances that often take place at work and that all
employees experience.” Burlington, 548 U.S. at 68, 126 S.Ct.
2405, 165 L.Ed.2d 345 (quoting Oncale, 523 U.S. at 80, 118
S.Ct. 998, 140 L.Ed.2d 201).
*15 Although Hodge alleges that she complained to Lacoste
about “racial segregation” at R & R in September 2012,
and that R & R was informed in October 2012 that she
had retained an attorney to represent her on her race
discrimination claims, the only conduct of which Hodge
complains that is temporally proximate to those complaints
is Hodge's verbal altercation with Russo in December 2012,
two (2) to three (3) months later, and the subsequent written
warning and recommendation to contact the EAP for anger
management training. Plaintiffs do not even allege, however,
that those actions were taken in retaliation for Hodge's
complaints of racial segregation or discrimination; only that
the written warning and recommendation to contact the EAP
were discriminatory. Moreover, the verbal altercation itself
does not constitute a materially adverse action. See, e.g.
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Witkowich v. U.S. Marshals Serv., 424 F. App'x 20, 22
(2d Cir. May 27, 2011) (summary order) (holding that the
retaliatory acts alleged, including reprimands and criticisms
by supervisors, did not constitute adverse actions because
they would not have dissuaded a reasonable employee
in the plaintiff's position from complaining of unlawful
discrimination); E.E.O.C. v. Bloomberg L.P., 967 F.Supp.2d
816, 848 (S.D.N.Y.2013) (“[Y]elling, without more, does not
constitute an adverse employment action.”)
Likewise, although plaintiffs allege that Haggood
complained to Lacoste “that Desz did not allow African
American employees to ask each other work related
questions[,]” (Am.Compl., ¶ 69), at some unspecified time,
they do not allege that defendants took any materially
adverse action against him in retaliation for that complaint.
Accordingly, to the extent plaintiffs base their retaliation
claims upon those complaints by Hodge and Haggood, those
claims are dismissed pursuant to Rule 12(b)(6) of the Federal
Rules of Civil Procedure for failure to state a claim for relief.
d. Causation
“[A] plaintiff making a retaliation claim under § 2000e–3(a)
must establish that his or her protected activity was a but-
for cause of the alleged adverse action by the employer[,]”
University of Texas Southwestern Med. Ctr. v. Nassar, –––
U.S. ––––, 133 S.Ct. 2517, 2534, 186 L.Ed.2d 503 (2013)
(5–4 decision), and, unlike Title VII's anti-discrimination
provision, “not simply a ‘substantial’ or ‘motivating’ factor
in the employer's decision.” Zann Kwan, 737 F.3d at 845
(quoting Nassar, ––– U.S. ––––, 133 S.Ct. at 2533, 186
L.Ed.2d 503). “However, ‘but-for’ causation does not require
proof that retaliation was the only cause of the employer's
action, but only that the adverse action would not have
occurred in the absence of the retaliatory motive.” Id. at 846.
Although “mere temporal proximity between an employer's
knowledge of protected activity and an adverse [ ] action [may
be] sufficient evidence of causality to establish a prima facie
case [of retaliation,] * * * the temporal proximity must be
very close[.]” Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268,
273–74, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001) (quotations
and citations omitted); see also Zann Kwan, 737 F.3d at 845
(“[E]ven without direct evidence of causation, ‘a plaintiff
can indirectly establish a causal connection to support a ...
retaliation claim by showing that the protected activity was
closely followed in time by the adverse [ ] action.’ “ (quoting
Gorman–Bakos v. Cornell Coop. Extension of Schenectady
County. 252 F.3d 545, 554 (2d Cir.2001))); Kaytor v. Electric
Boat Corp., 609 F.3d 537, 552 (2d Cir.2010) (“Close temporal
proximity between the plaintiff's protected action and the
employer's adverse employment action may in itself be
sufficient to establish the requisite causal connection between
a protected activity and retaliatory action.”) Nonetheless,
“there is no bright line to define the outer limits beyond
which a temporal relationship is too attenuated to establish a
causal relationship * * *.” Abrams, 764 F.3d at 254 (quoting
Gorman–Bakos, 252 F.3d at 554).
*16 Assuming, arguendo, that Hodge's complaint to Lacoste
about Gonzalez's use of a racially offensive term on the
collection floor in January 2009, and her comments to Lacoste
and Russo about Mendez's use of a racially offensive term
in July 2011, constitute protected activity, Hodge does not
allege that defendants took any adverse action against her
in retaliation for those complaints. Indeed, the first arguably
adverse action alleged to have been taken by defendants
against Hodge did not occur until August 2012, when she was
reprimanded by Desz and Lacoste for talking with Nathaniel
at the fax machine. Plaintiffs do not even allege that Hodge
was reprimanded in retaliation for her complaints more than
thirteen (13) months earlier and, in any event, the temporal
relationship is too attenuated to establish a causal relationship
between Hodge's complaints and the reprimands. See, e.g.
Richards–Byers v. New York City Dep't of Finance, 449 F.
App'x 55, 57 (2d Cir. Nov.30, 2011) (summary order) (holding
that an adverse action occurring more than one year after the
protected activity “cannot support an inference of retaliatory
intent.”); Garcia v. S.U.N.Y. Health Sciences Ctr. of Brooklyn,
280 F.3d 98, 107 (2d Cir.2001) (finding no causal relationship
between the protected activity and the alleged adverse action
more than thirteen (13) months later).
Likewise, even assuming, arguendo, that Haggood's
complaints in August 2012 constitute protected activity,
the only adverse action allegedly taken against him by
defendants was the termination of his employment in
April 2013. The amended complaint does not allege that
Haggood's employment was terminated in retaliation for
his complaints almost eight (8) months earlier and, in any
event, the temporal relationship alone is too attenuated to
establish a causal relationship between Haggood's complaints
and the termination of his employment. See, e.g. Doner–
Hedrick v. New York Inst. of Tech., 874 F.Supp.2d 227,
246 (S.D.N.Y.2012) (finding no causal relationship between
a protected activity and adverse action occurring nearly
eight months later); James v. Countrywide Fin. Corp., 849
F.Supp.2d 296, 314 (E.D.N.Y.2012) (holding that a passage
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of between six (6) to eight (8) months between a protected
activity and the adverse acts “militates against an inference of
retaliation being drawn from the pleadings.”)
For all of the foregoing reasons, the branch of defendants'
motion seeking dismissal of plaintiffs' retaliation claims
pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure is granted and plaintiffs' retaliation claims under
Title VII (fifth claim for relief), Section 1981 (fourth claim for
relief) and the NYSHRL (sixth claim for relief) are dismissed
in their entirety for failure to state a claim for relief
2. Hostile Work Environment Claims
“Title VII prohibits the creation of a hostile work
environment.” Vance v. Ball State Univ., ––– U.S. ––––, 133
S.Ct. 2434, 2441, 186 L.Ed.2d 565 (2013) (5–4 decision).
In order to establish a hostile work environment claim,
“the plaintiff must show that the work environment was so
pervaded by discrimination that the terms and conditions of
employment were altered.” Vance, ––– U.S. ––––, 133 S.Ct.
at 2441, 186 L.Ed.2d 565; see also Fincher, 604 F.3d at
723–24 (“In order to establish a hostile work environment
claim under 42 U.S.C. § 1981, a plaintiff must show that
the workplace was so severely permeated with discriminatory
intimidation, ridicule, and insult that the terms and conditions
of her employment were thereby altered.” (quotations and
citation omitted)); Williams v. County of Westchester, 171 F.3d
98, 100 (2d Cir.1999) (“In order to recover on a claim of a
racially hostile work environment in violation of Title VII,
the plaintiff must establish that his workplace was permeated
with instances of racially discriminatory conduct such as
‘discriminatory intimidation, ridicule, and insult,’ * * * such
that ‘the environment would reasonably be perceived, and
is perceived, as hostile or abusive.’ “ (quoting Harris v.
Forklift Sys., Inc., 510 U.S. 17, 22, 114 S.Ct. 367, 126 L.Ed.2d
295 (1993) (internal quotations and citations omitted))). “In
order to prevail on a hostile work environment claim, a
plaintiff must make two showings: (1) that the harassment
was sufficiently severe or pervasive to alter the conditions
of the victim's employment and create an abusive working
environment and (2) that there is a specific basis for imputing
the conduct creating the hostile work environment to the
employer.” Summa, 708 F.3d at 124 (quoting Duch v. Jakubek,
588 F.3d 757, 762 (2d Cir.2009)); accord Rojas, 660 F.3d at
106–07. Moreover, in order to state a discriminatory hostile
work environment claim, the plaintiff must allege “factual
circumstances that permit the inference that the plaintiff
was subjected to a hostile work environment because of her
[protected characteristic].” Kelly, 716 F.3d at 14; see also
Redd v. New York State Div. of Parole, 678 F.3d 166, 175
(2d Cir.2012) (“[T]he plaintiff must establish that the hostile
or abusive treatment was because of his or her [protected
characteristic].”)
*17 Hodge's allegations of a hostile work environment
amount to: (1) on three (3) occasions between October 2008
and October 2010, Gonzalez, a co-worker of Hodge's, uttered
racially offensive terms on R & R's premises, for which she
was only reprimanded; (2) approximately nine (9) months
after Gonzalez last uttered a racially offensive term, i.e., in
July 2011, Mendez, another co-worker of Hodge's, uttered
a racially offensive term to Hodge on one occasion; (3)
that thirteen (13) months later, i.e., in August 2012, Desz
and Lacoste reprimanded Hodge for talking during work
hours; (4) that Lacoste and Russo ignored Hodge's complaints
of racial discrimination in September and December 2012,
respectively; (5) that Hodge received a written warning for
engaging in a verbal altercation with Russo in December
2012; and (6) that Hodge has not received a raise or
performance bonus since the verbal altercation with Russo.
Nathaniel's allegations of a hostile work environment amount
to: (1) that in August 2012, (a) Desz reprimanded and/or
berated him twice, and Lacoste reprimanded him once, for
talking during work hours, (b) Desz once glared at him
and Haggood while they were on break, (c) Desz once
listened to a DJG meeting through the cafeteria doors, and
(d) Lacoste “failed to take appropriate disciplinary action
against Desz,” (Am.Compl., ¶ 86); (2) that in September
2012, defendants dismantled the DJG after Kimble filed a
claim of race discrimination against R & R, as a result of
which Nathaniel was transferred to a different collections
group and “lost the opportunity to earn bonus compensation
based on [his] collection goals in the [DJG],” (Am.Compl., ¶
89); (3) that two (2) months later, i.e., in November 2012, the
number of clients assigned to Nathaniel were reduced and his
requests for assistance in meeting his collection goals were
ignored; (4) that approximately two (2) months later, on or
about January 2, 2013, he was seated separately from “all
other employees,” (Am.Compl., ¶ 93), African–American or
not; and (5) that on January 5, 2013, Lacoste terminated his
employment at R & R.
Haggood's allegations of a hostile work environment amount
to: (1) that in August 2012, Desz (a) reprimanded and/
or berated him twice for talking during work hours, (b)
glared at him and Nathaniel once while they were on
break, (c) scrutinized, and had another manager scrutinize,
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his work performance one day, and (d) once listened
to a DJG meeting through the cafeteria doors; (2) that
Lacoste “failed to take appropriate disciplinary action against
Desz,” (Am.Compl., ¶ 71), after he complained that she
did not allow African American employees to ask each
other work related questions; (3) that in September 2012,
defendants dismantled the DJG after Kimble filed a claim
of race discrimination against R & R, as a result of which
Haggood was transferred to a different collections group and
“lost the opportunity to earn bonus compensation based on
[his] collection goals in the [DJG],” (Am.Compl., ¶ 75); and
(4) that approximately seven (7) months later, Haggood's
employment at R & R was terminated.
*18 As set forth above with respect to plaintiffs'
discrimination claims, it cannot reasonably be inferred from
any of the factual allegations in the amended complaint
that any of the aforementioned challenged conduct, with
the exception of the use of the racially offensive terms
by two (2) of Hodge's co-workers, was taken because of
plaintiffs' race. See, e.g. Raspardo, –––F.3d ––––, 2014 WL
4958157, at * 20 (finding that conclusory allegations that
unidentified individuals outside the plaintiffs' protected class
were treated differently than the plaintiffs were insufficient
to establish that the defendants singled out the plaintiffs for
adverse treatment based upon their protected characteristic).
Indeed, plaintiffs do not even allege: (1) that Hodge was
denied a raise or performance bonus because she is African–
American; that Nathaniel and Haggood were transferred to a
different collections group, thereby purportedly losing their
compensation bonus, because they are African American;
that the number of clients assigned to Nathaniel was reduced
because he is African American; or that Nathaniel's and
Haggood's employment at R & R was terminated because they
are African American; or (2) that they were treated differently
than non-African American employees with respect to such
conduct.
a. Severity or Pervasiveness of Conduct
In order to establish a claim of a racially hostile work
environment, “the plaintiff must show ‘more than a few
isolated incidents of racial enmity [.]’ “ Williams, 171 F.3d
at 100–01 (quoting Snell v. Suffolk County, 782 F.2d 1094,
1103 (2d Cir.1986)). “[T]here must be a steady barrage
of opprobrious racial comments,' * * *; evidence solely
of ‘sporadic racial slurs' does not suffice[.]” Id. at 101
(quoting Schwapp v. Town of Avon, 118 F.3d 106, 110
(2d Cir.1997)). Accordingly, the use of racially offensive
terms on four (4) occasions over a thirty-three (33) month
period by two (2) of Hodge's co-workers, ending in July
2011, without more, is insufficient to state a claim of a
racially hostile work environment. Compare La Grande v.
DeCrescente Distrib. Co., Inc., 370 F. App'x 206, 210 (2d Cir.
Mar.23, 2010) (summary order) (finding that racial comments
made by the plaintiff's co-worker, coupled with threats that
the plaintiff's employment would be terminated and an
increase in his workload after he complained about those
comments, and four (4) occasions where a company manager
physically threatened the plaintiff and called him a racial
slur, stated a plausible race-based hostile work environment
claim sufficient to survive dismissal), with Albert–Roberts v.
GGG Constr., LLC, 542 F. App'x 62, 64 (2d Cir. Nov.5, 2013)
(summary order) (finding that several incidents involving a
coworker, including a single use by the co-worker of a racial
slur, cannot sustain a hostile work environment claim).
Moreover, even assuming, arguendo, that plaintiffs'
conclusory allegations of disparate treatment with respect
to the reprimands they received, including Hodge's written
warning; the failure to investigate or act upon their complaints
of discrimination; and Desz's glaring, excessive scrutiny
and/or eavesdropping sufficiently state a claim that they
were subjected to such treatment because of their race, such
conduct is insufficient as a matter of law to state a hostile work
environment claim.
*19 “Hostile work environment claims under Title VII[ ]
look to the circumstances of the plaintiff's employment,
and hold the employer liable when the misconduct in the
workplace is so severe [or pervasive] as to alter the terms
and conditions of the plaintiff's employment.” Raspardo,
–––F.3d ––––, 2014 WL 4958157, at * 13; see also
Redd, 678 F.3d at 175 (“When the workplace is permeated
with discriminatory intimidation, ridicule, and insult that
is sufficiently severe or pervasive to alter the conditions
of the victim's employment and create an abusive working
environment, Title VII is violated. * * * Whether an
environment is ‘hostile’ or ‘abusive’ can be determined only
by looking at all the circumstances .” (quotations, alterations
and citations omitted)). “These may include the frequency
of the discriminatory conduct; its severity; whether it is
physically threatening or humiliating, or a mere offensive
utterance; and whether it unreasonably interferes with an
employee's work performance.” Harris, 501 U.S. at 23, 114
S.Ct. 367. “[A] plaintiff need not show that her hostile
working environment was both severe and pervasive; only
that it was sufficiently severe or sufficiently pervasive, or a
sufficient combination of th[o]se elements, to have altered her
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working conditions.” Redd, 678 F.3d at 175 (quoting Pucino
v. Verizon Wireless Commc'ns, Inc., 618 F.3d 112, 119 (2d
Cir.2010)); see also Fincher (“A hostile working environment
is shown when the incidents of harassment occur either in
concert or with a regularity that can reasonably be termed
pervasive.”)
Although “[i]solated incidents usually will not suffice to
establish a hostile work environment[,]” Redd, 678 F.3d at
175–76: see also Fincher, 604 F.3d at 724 (“The plaintiff must
show more than a few isolated incidents of racial enmity”),
“a single incident can create a hostile environment if it is
sufficiently severe.” Summa, 708 F.3d at 126; accord Redd,
678 F.3d at 176. “Generally, incidents must be more than
episodic; they must be sufficiently continuous and concerted
in order to be deemed pervasive.” Demoret v. Zegarelli, 451
F.3d 140, 149 (2d Cir.2006) (quoting Alfano v. Costello, 294
F.3d 365, 374 (2d Cir.2002)). Severity or pervasiveness is to
be determined “both subjectively and objectively[,]” Redd,
678 F.3d at 175; see also Gorzynski v. JetBlue Airways Corp.,
596 F.3d 93, 102 (2d Cir.2010) (“A plaintiff must show not
only that she subjectively perceived the environment to be
abusive, but also that the environment was objectively hostile
and abusive”), and “ ‘[t]he objective hostility of a work
environment depends on the totality of the circumstances,’
viewed from ‘the perspective ... of a reasonable person
in the plaintiff's position, considering all the circumstances
including the social context in which particular behavior
occurs and is experienced by its target.’ “ Redd, 678 F.3d at
176 (brackets omitted) (quoting Petrosino v. Bell Atlantic, 385
F.3d 210, 221 (2d Cir.2004) (internal quotations and citation
omitted)); see also Gorzynski, 596 F.3d at 102 (“[T]o analyze
a hostile work environment claim, [courts] are required to
look to the record as a whole and assess the totality of the
circumstances * * *.”)
*20 Reprimands for disobeying a workplace rule, or the
crediting of another employee's version of events over the
plaintiff's version, are “insufficient as a matter of law to
establish a hostile work environment.” Raspardo, –––F.3d
––––, 2014 WL 4958157, at * 21; see also Chukwuka v. Citv
of New York, 513 F. App'x 34, 36 (2d Cir. Feb.28, 2013)
(summary order) (finding that two (2) reprimands were not
discriminatory, humiliating or insulting as to constitute a
hostile work environment); Batchelor v. City of New York,
12 F.Supp.3d 458, 478–79 (E.D.N.Y.2014) (finding that
claims, inter alia, that the plaintiff was reprimanded twice are
insufficient to establish a hostile work environment claim).
Likewise, “[a] single act of being followed and glared at, even
in an intimidating manner, is insufficient * * * to support
a claim for a hostile work environment[,]” Bowen–Hooks v.
City of New York, 13 F.Supp.3d 179, 235 (E.D.N.Y.2014);
see also Trachtenberg v. Dep't of Educ. of City of New
York, 937 F.Supp.2d 460, 472–73 (S.D.N.Y.2013) (holding
that allegations, inter alia, that the principal would stare at
the plaintiff in an effort to intimidate her was insufficient
to state a hostile work environment claim), as is excessive
scrutiny or criticism of the plaintiff's performance. See, e.g.
Demoret, 451 F.3d at 150 (finding, inter alia, that close
monitoring of the plaintiff's work, criticism of the plaintiff
and mild rudeness to the plaintiff “was not so severe as
to be abusive.”); Nugent v. St. Lukes–Roosevelt Hosp. Ctr.,
303 F. App'x 943, 945 (2d Cir. Dec.22, 2008) (summary
order) (holding that, inter alia, intense scrutiny of the plaintiff
was insufficient to create a hostile work environment);
Batchelor, 12 F.Supp.3d at 478–79 (finding that claim, inter
alia, of constant scrutiny regarding job performance was
insufficient to establish hostile work environment claim);
Colon v. Fashion Inst. of Tech. (State Univ. of New York),
983 F.Supp.2d 277, 292 (S.D.N.Y.2013) (finding that intense
scrutiny, micro-management on a daily basis and a reprimand
were insufficient to sustain a hostile work environment
claim); Trachtenberg, 937 F.Supp.2d at 472–73 (finding that
allegation, inter alia, that the plaintiff was subjected to
excessive scrutiny was insufficient to state a hostile work
environment claim); Plahutnik v. Daikin Am., Inc., 912
F.Supp.2d 96, 106–07 (S.D.N.Y.2012) (holding that excessive
criticism “is generally insufficient to support a claim of * * *
hostile work environment.”) Moreover, a failure to investigate
complaints of discrimination does “not by itself alter the terms
and conditions of [a plaintiff's] employment[,]” Fincher, 604
F.3d at 724, and, thus, cannot “itself have contributed to
or constituted a hostile work environment.” Id.; see also
Raspardo, ––– F.3d ––––, 2014 WL 4958157, at * 21 (finding
that claims that an employer failed to timely investigate the
plaintiff's complaint or to take timely action are “insufficient
as a matter of law to create a hostile work environment.”)
In sum, plaintiffs' allegations amount to nothing more than
“sporadic events, none of which was personally abusive,
[which] as a matter of law do not amount to a series of abusive
and pervasive incidents of discrimination, nor do they include
a single extraordinary one.” Fincher. 604 F.3d at 724.
b. Basis for Imputing Conduct to R & R
*21 Even assuming, arguendo, that the use of racially
offensive terms by two (2) of Hodge's co-workers over an
approximate thirty-three (33) month period ending in July
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2011 rises to the level of a hostile work environment, there is
no basis for imputing such conduct to R & R.
Where, as here, a co-worker, as opposed to a supervisor
or manager, harasses the plaintiff, the “employer is directly
liable for [the] employee's unlawful harassment if the
employer was negligent with respect to the offensive behavior
[,]” Vance, ––– U.S. ––––, 133 S.Ct. at 2441, 186 L.Ed.2d
565, i.e., “if the employer failed to provide a reasonable
avenue for complaint or * * * failed to take appropriate
remedial action” about harassment of which it knew, or in
the exercise of reasonable care should have known. Summa,
708 F.3d at 124 (quotations and citation omitted); see also
Rojas, 660 F.3d at 107 (“When harassment is perpetrated by
the plaintiffs coworkers, an employer will be liable if the
plaintiff demonstrates that the employer either provided no
reasonable avenue for complaint or knew of the harassment
but did nothing about it.” (quotations and citation omitted)).
“Evidence that an employer did not monitor the workplace,
failed to respond to complaints, failed to provide a system for
registering complaints, or effectively discouraged complaints
from being filed would be relevant.” Vance, ––– U.S. ––––,
133 S.Ct. at 2453, 186 L.Ed.2d 565.
Even assuming, arguendo, that the four (4) occasions between
October 2008 and July 2011 in which two (2) of Hodge's co-
workers uttered racially offensive terms on R & R premises
were sufficiently severe or pervasive as to have created a
hostile work environment for Hodge, it cannot reasonably be
inferred from the factual allegations in the amended complaint
that R & R was negligent with respect to that behavior.
“Once [R & R] knew or should have known about the
harassing behavior, it had a remedial obligation to address
and end the harassment.” Summa, 708 F.3d at 124. R & R
satisfied its obligation to do so, as Gonzalez was promptly
reprimanded and told to refrain from using racially offensive
language on R & R's premises, first by Desz, one of R & R's
managers, then by Lacoste, R & R's director of operations,
following the first two (2) comments in October 2008 and
January 2009. Following those reprimands, Gonzalez, indeed,
refrained from uttering any racially offensive language for
approximately twenty-one (21) months, i.e., until October
2010. The amended complaint is devoid of any factual
allegations indicating that defendants even knew, or should
have known about Gonzalez's use of a third racially offensive
comment in October 2010. Moreover, there are no factual
allegations from which it may reasonably be inferred that
defendants negligently failed to remedy such conduct by
Gonzalez, particularly since Gonzalez's racially offensive
behavior finally stopped altogether after the October 2010
comment.
Likewise, there are no factual allegations from which it may
reasonably be inferred that defendants negligently failed to
remedy the racially offensive conduct by Mendez in July
2011, particularly since plaintiffs do not allege that Mendez
ever engaged in any other racially offensive conduct after
he was questioned about, and allegedly admitted to, making
the racially offensive comments to Hodge on that one (1)
occasion in July 2011. Accordingly, Gonzalez's and Mendez's
purported harassment cannot be imputed to R & R. See, e.g.
Summa, 708 F.3d at 124–25 (affirming the dismissal of the
plaintiffs' harassment claims because the defendants took the
needed remedial action, i.e., each complaint that was brought
to the defendant's attention “was dealt with quickly and in
proportion to the level of seriousness of the event.”)
*22 For all of the foregoing reasons, the branch of
defendants' motion seeking dismissal of plaintiffs' hostile
work environment claims pursuant to Rule 12(b)(6) of the
Federal Rules of Civil Procedure is granted and plaintiffs'
hostile work environment claims pursuant to Title VII
(seventh claim for relief), Section 1981 (eighth claim for
relief) and the NYSHRL (ninth claim for relief) are dismissed
in their entirety for failure to state a claim for relief. 4
E. Remaining NYSHRL Claim against the Individual
Defendants
“[A]iding and abetting is only a viable theory where an
underlying violation has taken place.” Falchenberg v. New
York State Dep't of Educ., 338 F. App'x 11, 14 (2d Cir.
June 8, 2009) (summary order). Thus, since the amended
complaint fails to state a plausible claim for discrimination
or retaliation, plaintiffs' aiding and abetting claim under the
NYSHRL fails as well. See, e.g. Id. (affirming dismissal
of the plaintiff's aiding and abetting claims because her
discrimination claims failed); Forrest v. Jewish Guild for the
Blind, 3 N.Y.3d 295, 314, 786 N.Y.S.2d 382, 819 N.E.2d 998
(N.Y.2004) (holding that aiding and abetting claims cannot
survive where the underlying retaliation and discrimination
claims are dismissed). Accordingly, the branch of defendants'
motion seeking dismissal of plaintiffs' NYSHRL aiding and
abetting claim against the individual defendants pursuant to
Rule 12(b)(6) of the Federal Rules of Civil Procedure is
granted and that claim (tenth claim for relief) is dismissed in
its entirety for failure to state a claim for relief.
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F. Leave to Amend
Rule 15(a) (2) of the Federal Rules of Civil Procedure
provides that a party shall be given leave to amend “when
justice so requires.” However, leave to amend is not required
where a proposed amendment would be futile, see Krys v.
Pigott, 749 F.3d 117, 134 (2d Cir.2014); Anderson News,
L.L.C. v. American Media, Inc., 680 F.3d 162, 185 (2d
Cir.2012). cert. denied sub nom Curtis Circulation Co. v.
Anerson News, L.L.C., ––– U.S. ––––, 133 S.Ct. 846, 184
L.Ed.2d 655 (2013), “as when the proposed new pleading fails
to state a claim on which relief can be granted.” Krys, 749
F.3d at 134. Leave to amend may also properly be denied for:
“ ‘undue delay, bad faith or dilatory motive on the part of the
movant, repeated failure to cure deficiencies by amendments
previously allowed, [and] undue prejudice to the opposing
party by virtue of allowance of the amendment * * *.’ “
Ruotolo v. City of New York, 514 F.3d 184, 191 (2d Cir.2008)
(citing Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9
L.Ed.2d 222 (1962)); see also TechnoMarine SA v. Giftports,
Inc., 758 F.3d 493, 505 (2d Cir.2014). Furthermore, “[a]
plaintiff need not be given leave to amend if it fails to specify
* * * how amendment would cure the pleading deficiencies
in its complaint.” TechnoMarine, 758 F.3d at 505–06.
Since, inter alia, plaintiffs already amended their complaint
once after defendants advised them of the pleading
deficiencies in their original complaint, but failed to cure the
pleading deficiencies in their claims against defendants, and
have “made no showing as to how they might amend their
[amended] complaint to cure their pleading deficiencies,” D.
Penguin Bros. Ltd. v. City Nat'l Bank, ––– F. App'x ––––,
2014 WL 5293242, at * 6 (2d Cir. Oct.16, 2014) (summary
order), their request for leave to amend is denied. See, e.g.
TechnoMarine, 758 F.3d at 506 (affirming denial of leave
to amend where the plaintiff already amended the complaint
once without resolving its pleading deficiencies and “entirely
failed to specify how it could cure its pleading deficiencies”
in a second amended complaint).
III. CONCLUSION
*23 For the reasons set forth above, defendants' motion to
dismiss plaintiffs' claims in the amended complaint pursuant
to Rule 12(b) (6) of the Federal Rules of Civil Procedure is
granted; plaintiffs' request for leave to amend their amended
complaint is denied; and plaintiffs' claims against defendants
are dismissed in their entirety with prejudice for failure to
state a claim for relief. The Clerk of the Court shall enter
judgment in favor of defendants and close this case.
SO ORDERED.
All Citations
Not Reported in F.Supp.3d, 2014 WL 6473527
Footnotes
1 The following facts are taken from the amended complaint and considered to be true for purposes of this
motion only. They do not constitute findings of fact by the Court.
2 Moreover, with respect to Desz, plaintiffs do not even allege that she engaged in comparable conduct to them,
i.e., plaintiffs allege that Lacoste reprimanded them for talking during work hours, but failed to reprimand
Desz for “discriminatorily reprimanding” them, not for also talking during work hours.
3 In light of this determination, it is unnecessary to consider defendants' remaining contentions with respect to
the insufficiency of plaintiffs' race discrimination claims.
4 In light of this determination, it is unnecessary to consider defendants' remaining contention seeking dismissal
of Hodge's Title VII hostile work environment claim as time-barred.
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
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Johnson v. Miller, Not Reported in Fed. Supp. (2020)
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2020 WL 4346896
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Angelo D. JOHNSON, Plaintiff,
v.
C. MILLER, et al., Defendants.
9:20-CV-0622 (LEK/ATB)
|
Signed 07/29/2020
Attorneys and Law Firms
Angelo D. Johnson, Romulus, NY, pro se.
DECISION AND ORDER
Lawrence E. Kahn, U.S. District Judge
I. INTRODUCTION
*1 The Clerk has sent to the Court for review a
complaint submitted by pro se plaintiff Angelo D. Johnson
raising claims pursuant to 42 U.S.C. § 1983. Dkt. No. 2
(“Complaint”). 1 Plaintiff, who is incarcerated at Five Points
Correctional Facility (“Five Points C.F.”), has not paid the
filing fee for this action.
Plaintiff asserts claims against the following defendants:
Great Meadow Correctional Facility (“Great Meadow C.F.”)
Superintendent C. Miller; Great Meadow C.F. First Deputy
Superintendent Mrs. McIntosh; Great Meadow C.F. Deputy
Superintendent G. Caron; Great Meadow C.F. Assistant
Deputy Superintendent M. Collins; Great Meadow C.F.
Lieutenant G. Murphy; Great Meadow C.F. Sergeant Gilles;
Great Meadow C.F. Correction Officer P. Boule; Great
Meadow C.F. Correction Officer Rich; Great Meadow C.F.
Correction Officer Papa; Great Meadow C.F. Correction
Officer John Doe #1; Great Meadow C.F. Correction Officer
John Doe #2; Great Meadow C.F. Correction Officer Jane
Doe #3; New York State Department of Corrections and
Community Supervision (“DOCCS”) Dr. Goe; DOCCS Dr.
Karandy; DOCCS Physician Assistant Nesmith; DOCCS
Nurse Rocque; DOCCS Nurse Christy; DOCCS Dr. John
Morley; DOCCS Regional Health Administrator Mary
Tandy-Walters; DOCCS Nurse J. Perez; DOCCS Nurse
Jane Doe; and Five Points C.F. Superintendent Tomas
(collectively, “Defendants”). Id. at 1, 3–9.
II. SUFFICIENCY OF THE COMPLAINT
A. Governing Legal Standard
Under 28 U.S.C. § 1915, when a plaintiff seeks to proceed
in forma pauperis, “... the court shall dismiss the case at any
time if the court determines that ... the action ... (i) is frivolous
or malicious; (ii) fails to state a claim on which relief may be
granted; or (iii) seeks monetary relief against a defendant who
is immune from such relief.” § 1915(e)(2)(B). 2 Thus, even if
a plaintiff meets the financial criteria to commence an action
in forma pauperis, it is the court's responsibility to determine
whether the plaintiff may properly maintain the complaint
before the court permits the plaintiff to proceed with an action
in forma pauperis. See id.
Likewise, under 28 U.S.C. § 1915A, a court must review
any “complaint in a civil action in which a prisoner seeks
redress from a governmental entity or officer or employee of a
governmental entity” and must “identify cognizable claims or
dismiss the complaint, or any portion of the complaint, if the
complaint ... is frivolous, malicious, or fails to state a claim
upon which relief may be granted; or ... seeks monetary relief
from a defendant who is immune from such relief.” § 1915A;
see also Carr v. Dvorin, 171 F.3d 115, 116 (2d Cir. 1999) (per
curiam) (stating that § 1915A applies to all actions brought
by prisoners against government officials even when plaintiff
paid the filing fee); Abbas v. Dixon, 480 F.3d 636, 639 (2d
Cir. 2007) (stating that both §§ 1915 and 1915A are available
to evaluate prisoner pro se complaints).
*2 A court should not dismiss a complaint if the plaintiff
has stated “enough facts to state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (citing Twombly, 550 U.S. at 556). Although the
Court should construe the factual allegations in the light most
favorable to the plaintiff, “the tenet that a court must accept
as true all of the allegations contained in a complaint is
inapplicable to legal conclusions.” Id. “Threadbare recitals
of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Id. (citing Twombly,
550 U.S. at 555). “[W]here the well-pleaded facts do not
permit the court to infer more than the mere possibility
of misconduct, the complaint has alleged—but it has not
‘show[n]’—‘that the pleader is entitled to relief.’ ” Id. at
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679 (quoting Fed. R. Civ. P. 8(a)(2)). Rule 8 of the Federal
Rules of Civil Procedure “demands more than an unadorned,
the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556
U.S. at 678 (citing Twombly, 550 U.S. at 555). Thus, a
pleading that only “tenders naked assertions devoid of further
factual enhancement” will not suffice. Id. (internal quotation
marks and alterations omitted).
In reviewing a pro se complaint, the court has a duty to show
liberality toward pro se litigants, see Nance v. Kelly, 912 F.2d
605, 606 (2d Cir. 1990) (per curiam), and should exercise
“extreme caution ... in ordering sua sponte dismissal of a
pro se complaint before the adverse party has been served
and both parties (but particularly the plaintiff) have had an
opportunity to respond,” Anderson v. Coughlin, 700 F.2d 37,
41 (2d Cir. 1983) (internal citations omitted) (emphasis in
original).
B. Summary of the Complaint
Plaintiff alleges that wrongdoing occurred while he was in
DOCCS custody, including while he was incarcerated at Great
Meadow C.F. and Five Points C.F. See generally Compl. The
following facts arising out of Plaintiff's incarceration at these
facilities are alleged in Plaintiff's Complaint. 3
1. Plaintiff's Medical Conditions
Plaintiff suffers from a number of medical conditions,
including “chronic type 1 and 2 acute migraines,” chronic
sinus infections, high blood pressure, glaucoma, a corneal
defect, rheumatoid arthritis, a severe tear in his shoulder,
two pinched and severed nerves in his lower neck and
back, tears in his right meniscus, depression, post-traumatic
stress disorder, personality disorder, hepatitis C, and seizures.
Compl. at 10–11. At unidentified times, Plaintiff has been
diagnosed with depression, anxiety, post-traumatic stress
disorder, and personality disorder. Id. at 10. Plaintiff has
attempted suicide on at least four occasions and was placed
in a mental health hospital for 30 days in 2006 after one such
attempt. Id.
2. Medical Care at Great Meadow C.F.
Plaintiff was transferred to Great Meadow C.F. on October
29, 2018. Compl. at 15–16. Upon arriving at Great Meadow
C.F., Plaintiff was seen by Defendant Rocque for an “initial
medical assessment.” Id. at 15. Rocque “wantonly stripped ...
plaintiff of all his prior necessary ... medication that was
[prescribed by] a physician,” including pain medication
for pinched nerves and medication for migraine headaches,
despite “knowing that such actions would subject ...
plaintiff to severe pain.” Id. at 16. The discontinuation of
Plaintiff's medications disregarded “prior recommendations”
by specialists. Id. As a result, Plaintiff was in “severe pain”
following his arrival at Great Meadow C.F. Id.
On November 1, 2018, Plaintiff was seen by Goe. Id.
at 16. During the visit, Plaintiff attempted to explain his
medical concerns and “serious chronic issues[,]” but Goe
“maliciously ... stated” that Plaintiff has “to[o] many issues”
and, “despite ... seeing plaintiff in severe pain and witnessing
[his] serious incapacitated condition of limited mobility[,]”
failed to order Plaintiff migraine or pain medication. Id. at
16–18.
*3 On or about November 16, 2018, Plaintiff was seen by
Nesmith. Id. at 17. Nesmith “maliciously and sadistically
refused to hear” about Plaintiff's medical conditions and
concerns and instead advised Plaintiff that he has to choose
“one issue” that he thinks deserves serious attention. Id.
Plaintiff then “attempted to voice[ ] his concern” about
his migraine medication, but Nesmith cut him off “mid-
sentence.” Id. at 17–18. Following the visit, Plaintiff remained
without his previously prescribed medication. Id. at 18.
On or about November 21, 2018, Plaintiff was again seen
by Nesmith, who “repeated the same behavior and reckless
conduct” by “not rendering ... needed ... medical care and
treatment[,]” despite witnessing Plaintiff in “severe” pain and
listening to Plaintiff attempt to “speak[ ] about his medical ...
issues[.]” Id. at 18.
Plaintiff filed administrative complaints regarding the
medical treatment he received in November 2018, including
a complaint with the DOCCS Chief Medical Officer, Morley,
on November 20, 2018. Id. at 18. Plaintiff also filed a
grievance on November 25, 2018, regarding Goe's inadequate
medical treatment. Id.
On or about December 5, 2018, Plaintiff was seen by Karandy.
Id. at 19. During the appointment, Karandy “went over all [of]
plaintiff's serious chronic medical issues” and “admitted” that
he did not “understand” why Plaintiff's migraine medication
was discontinued. Id. Karandy also told Plaintiff that he
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would “immediately ... get [Plaintiff] needed treatment” for
his pinched nerves. Id. at 20.
Karandy, however, only ordered a “partial” month supply of
Plaintiff's migraine medication, which was not sufficient to
treat Plaintiff's medical needs. Id. at 19. In addition, Karandy
failed to order pain medication for Plaintiff's pinched nerves
and other physical ailments. Id. at 20.
Later that month, Plaintiff filed three sick call slips “for
issues of pinch[ed] nerves and right knee [pain]” in which he
detailed “how [his] conditions [were] causing severe pain and
agony[.]” Id.
On December 14, 2018, Plaintiff “received a detailed
response[ ] letter from defendant [Regional Health
Services Administrator] Mary Tandy-Walters ... that showed
full awareness of plaintiff's situation but deliberately
and maliciously failed to remedy plaintiff's underlying
conditions[.]” Id. at 23. 4
On January 11 and January 16, 2019, Plaintiff filed “formal
complaint letters” with Miller and DOCCS Commissioner
Anthony Annucci, regarding inadequate medical treatment
related to his pinched nerves, right knee complications, and
“eyecare[.]” Id. at 20. On February 5, 2019, Plaintiff received
“a detailed response[ ] letter” from Morley, who “allowed
plaintiff's providers to recklessly and maliciously delay[ ]
and ... withhold[ ] necessary adequate pain medications [and]
depriv[e] [Plaintiff of] needed [physical] therapy[,]” despite
knowing about Plaintiff's “serious medical needs.” Id. at 24–
25.
*4 Sometime in January or February 2019, Plaintiff attended
his first session with a physical therapist. Id. at 21. The
physical therapist advised Plaintiff that he had “placed orders
of physical therapy” beginning in early December 2018. Id.
However, as a result of Goe and Karandy's failure to follow up
on these orders, Plaintiff's physical therapy was delayed. Id.
During Plaintiff's second physical therapy session, which
occurred sometime in January or February 2019, the physical
therapist advised Plaintiff that he “has a serious condition[,]”
explained that his “limited mobility is due to the lack[ ] of
treatment and care[,]” and advised that his “severe pain” could
only be “eas[ed] by meds and continual adequate therapy[.]”
Id. at 21–22.
On or about February 14, 2019, Plaintiff was seen by Goe,
who once again denied Plaintiff pain medication for his
pinched nerves and right knee, despite witnessing Plaintiff in
“a serious chronic painful state[.]” Id. at 22.
On or about February 25, 2019, Plaintiff was transported
to Coxsackie Correctional Facility to see an orthopedic
specialist regarding his right knee. Id. at 23. The specialist
ordered an MRI, but no pain medication or physical therapy.
Id.
On or about March 29, 2019, Plaintiff submitted a letter to
Karandy regarding inadequate medical care he was receiving
for his right knee and pain associated with his pinched
nerves. Id. at 25. On or about May 17, 2019, Plaintiff
was seen by Goe, who continued to deny him “adequate
pain medications” and “treatment” for his “chronic medical
conditions[,]” despite again witnessing Plaintiff “in a state of
excruciating pain[.]” Id.
In June and July 2019, Plaintiff continued to submit sick call
slips for “ongoing severe pain to [his] right knee and two
pinch[ed] nerves.” Id. at 26. In September 2019, Plaintiff
submitted three more sick call slips for “ongoing severe pain
that is ... causing great agony mentally.” Id.
In October or November 2019, Plaintiff was seen by an
orthopedic specialist at Coxsackie Correctional Facility. Id. at
26. During the appointment, Plaintiff received a cortisone shot
in his right knee. Id. The specialist told Plaintiff that the shot
was typically “only good for 3 to 6 months[,]” and sometimes
less, and that he should therefore “let [his] provider know
when the pain becomes very severe again[ ] so [he] can
receive another shot.” Id. The specialist also advised Plaintiff
that he had “put in many follow-ups” for further evaluation
after Plaintiff had received an MRI. Id.
3. Use-of-Force Incident at Great Meadow
C.F. and Subsequent Restrictive Confinement
On or about June 17, 2019, while in the recreation yard,
Plaintiff became dizzy and passed out. Compl. at 28. When
Plaintiff regained consciousness, he was en route to the
medical department. Id. Upon arriving at the infirmary, Gilles,
Boule, Rich, Papa, Doe #1, Doe #2, and Doe #3 threw
Plaintiff on the infirmary table. Id. Gilles then “aggressively
question[ed]” Plaintiff and accused him of being “high
on K2,” a synthetic cannabinoid Id. Plaintiff “respectfully
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denied” the accusation and attempted to compose himself to
avoid having a seizure. Id. at 29.
While Plaintiff's hands and feet were in restraints, Nesmith
put a “very harmful concoction on his gloved hands and
viciously cover[ed] [Plaintiff's] mouth and nose” while
applying pressure. Id. at 29. Simultaneously, Gilles ordered
his subordinates to “hold plaintiff's arms and legs down[.]”
Id. The substance that Nesmith placed on Plaintiff's mouth
caused him “extreme pain[.]” Id.
*5 After Plaintiff was unsuccessful in his effort to
struggle out of the hold, Nesmith “stopped and let up,
while laughing[.]” Id. at 30. “Plaintiff immediately start[ed]
yelling[,] ... ‘they are trying to kill me back here.’ ” Id. In
response, Gilles ordered “the C.O. defendants ... to tighten
up the handcuffs[,]” which “caused [Plaintiff's] circulation to
be cut[ ] of[f] and extreme pain to [his] hands.” Id. Nesmith
then “again tried to viciously suff[o]cate ... plaintiff” with the
“harmful concoction on his hands.” Id.
Eventually, Nesmith removed his hands from Plaintiff's face.
Id. at 30. Gilles then ordered the correction officers in the
room to lift Plaintiff up and bring him to the second floor
of the medical department. Id. at 30. While en route to the
second floor, Plaintiff's wrists remained tightly handcuffed
and his arms were “maliciously extended backwards[,]”
which caused him “excruciating pain.” Id. at 31.
Upon arriving at the second floor, Plaintiff was taken to
an observation room, and Gilles ordered the other escorting
officers to remove Plaintiff's restraints. Id. at 31. After the
restraints were removed, Gilles ordered Plaintiff to strip. Id.
Plaintiff removed all of his clothes except his underwear then
asked Gilles if he would remove all the other officers from the
room. Id. Gilles “grew indignant” and ordered the correction
officers in the room to assault Plaintiff, which they did. Id.
Following the assault, Plaintiff was placed back in restraints
and forced onto a mattress, face down. Id. at 32. One of
the officers then removed Plaintiff's underwear and Plaintiff
was held in a compromised position while Gilles conducted
a body cavity search. Id. Thereafter, the officials in the room
took turns mocking Plaintiff while he remained naked on
the mattress. Id. at 32–33. Plaintiff's handcuffs were then
tightened at the direction of Gilles, and the officials left the
room. Id. at 33.
The next day, Plaintiff was cleared by a medical professional
and returned to his cell block, but “unlawfully” placed on
“punitive Adseg. keeplock[.]” Id. at 35.
On or about June 23, 2019, Plaintiff attended a disciplinary
hearing before Correction Lieutenant Murphy. Id. at 35.
Before the hearing began, Murphy encouraged Plaintiff to
plead guilty in exchange for a sentence of 60 days of keeplock
confinement and advised Plaintiff that, if he did not plead
guilty, he would be found guilty and sentenced to more than
60 days of confinement in the special housing unit (“SHU”).
Id. Plaintiff refused to plead guilty, and Murphy responded,
“have it your way[.]” Id.
Murphy began the hearing by reading Plaintiff's “alleged
misbehavior report charges to ... [him].” Id. at 35. Plaintiff
objected because he had not been served with a misbehavior
report or provided assistance preparing for the hearing. Id. at
35–36. Plaintiff then identified on the record the witnesses
he desired to call and cross-examine. Id. at 36. Murphy
adjourned the hearing in light of Plaintiff's objection. Id.
On or about July 1, 2019, Plaintiff was brought back
to the “hearing room” with Murphy, and the disciplinary
hearing resumed. Id. at 36. At some point after the hearing
commenced, Murphy ordered an unidentified correction
official to escort Plaintiff back to his cell. Id. Plaintiff was
removed from the hearing room before he was able to call any
witnesses or cross-examine adverse witnesses. Id. Thereafter,
Murphy falsely represented on the record that Plaintiff did not
want to participate in the hearing. Id. at 37.
*6 On or about July 9, 2019, Gilles and another unidentified
official escorted Plaintiff from his cell to SHU “per his Tier
3 hearing outcome.” Id. Plaintiff never received a copy of
Murphy's written disciplinary disposition. Id.
After Plaintiff arrived at SHU, he was seen by Rocque and
“asked medical questions[.]” Id. at 38. Plaintiff informed
Rocque that he did not have any of his “carry on meds for
his seizures, high blood pres[s]ure, chronic ... migrains [sic],
chronic sinus [issues], [or] glaucoma,” and also did not have a
contact case or contact solution. Id. Rocque advised Plaintiff
that he would receive his medication later in the day. Id.
Plaintiff's SHU cell was “extremely unduly hot” and had
no ventilation. Id. at 38. As a result of the “extreme heat,
inadequate ventilation, and ... cigaret[te] smoke that ...
flooded plaintiff's cell[,]” he experienced a “serious acute
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migrain[e]” and “became dizzy.” Id. at 39. The next day,
Plaintiff suffered a seizure. Id.
Following the seizure, Plaintiff was taken to the medical
department at Great Meadow C.F., where Gilles ordered
unidentified officials to hold his arms and legs down while
Nesmith and Christy “prepare[d] something.” Id. at 39. While
Plaintiff was held down and in restraints, Nesmith again
covered his mouth and nose with “that very very harmful
concoction on his hands[,]” which caused Plaintiff's lips to
burn “severely.” Id.
After “a while,” Nesmith stopped covering Plaintiff's mouth.
Id. at 39. Christy then “proceeded to do the same” while Gilles
repeatedly referred to Plaintiff, an African-American man, as
a “monkey.” Id.
The next day, Plaintiff was discharged from the medical
facility without any treatment for the injury to his lips. Id. at
41. The burn on Plaintiff's lips caused him severe pain for
three days, hindering his ability to eat and drink during this
time. Id.
Plaintiff was kept in SHU under “inhuman living
conditions[,]” forced to shower in “dirty ... stalls” and
fed “insufficient food” from “dirty trays[.]” Id. at 41–42.
Plaintiff repeatedly complained about the conditions of his
confinement to Miller, McIntosh, Collins, and Caron when
these officials made their weekly rounds within SHU. Id.
at 42. Plaintiff also complained to these officials about his
visibly “agonizing state” from the assaults against him, and
“inadequate medical treatment” for his physical ailments, yet
they failed to remedy “the daily constitutional violations.” Id.
On July 15, 2019, Plaintiff received a portion of Murphy's
written disciplinary disposition, which indicated that he was
sentenced to 75 days of SHU confinement beginning on July
2, 2019, and would lose 120 days of packages, commissary,
and telephone privileges. Id. at 42–43. Plaintiff was not
credited for the “Adseg confinement” he served between June
17 and July 1, 2019. Id.
Sometime in “late July, 2019,” Plaintiff was transported
to Coxsackie Correctional Facility, where he was seen by
an orthopedic specialist and given a cortisone shot for
the “excruciating pain” in his left shoulder that he had
experienced daily since June 17, 2019, when he was “brutally
assaulted.” Id. at 43. Goe and Karandy failed to treat Plaintiff's
left shoulder following the assault on June 17, 2019, despite
knowing about Plaintiff's medical needs. Id. at 43–44.
*7 Collins and Caron refused to grant Plaintiff “time cuts”
provided for in the “reform[ed] SHU laws pass[ed] in 2016.”
Id. at 43. As a result, Plaintiff served his entire SHU sentence.
Id.
4. Transfer to Five Points C.F.
On or about January 16, 2020, Plaintiff was told to pack
up his property because he was being transferred. Compl. at
44. After Plaintiff packed “four draft bags” of property, an
unidentified official ordered him to carry the bags out of his
cell. Id. Plaintiff was unable to do so because of his pinched
nerves and right knee condition. Id.
While Plaintiff was “in the draft room being processed [for
his] transfer[,]” Correction Sergeant Cook told Plaintiff that
based on “all the ... complaints” he filed against officers,
and his refusal to carry his property bags, he should not be
surprised if his property did not make it to the next location.
Id. at 44. Thereafter, Plaintiff witnessed officials load inmate
property bags onto a transport bus and return his property bags
back to the facility. Id.
On January 17, 2020, Plaintiff arrived at Auburn Correctional
Facility, where he was incarcerated for five days. Id. at 44.
Upon his arrival, Plaintiff was told that his pain medications
were lost and the medical department could not do anything
for him. Id. Plaintiff was denied a shower, access to hot water,
toothpaste, and a tooth brush, and was forced to sleep in a cold
cell without “sufficient sheets and blankets.” Id. at 44–45.
On or about January 21, 2020, Plaintiff was transferred to
Five Points C.F. Id. at 45. Upon arriving at Five Points C.F.,
Plaintiff was placed in SHU, despite having completed his
prior disciplinary sentence on January 16, 2020. Id. at 47.
Plaintiff was not initially told why he was confined in the
SHU. Id. at 48.
Following his arrival at Five Points C.F., Plaintiff was
seen by Nurse Jane Doe for “his initial medical intake.”
Id. at 45. Plaintiff informed her that his medications and
contact solution were lost in transit and detailed his medical
conditions that require medication and treatment. Id. Nurse
Jane Doe declined to provide Plaintiff with contact solution
or any medications. Id. at 45–46.
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On or about January 27, 2020, Plaintiff received a written
disciplinary disposition based on a disciplinary hearing that
occurred at Great Meadow C.F. on January 10, 2020. Id. at
48. The disciplinary hearing was conducted by Collins and
resulted in a finding of guilt on one or more of the unidentified
disciplinary charges and a sentence of 30 days of SHU
confinement. Id. Plaintiff was never given an opportunity
to attend this hearing, which was conducted without his
knowledge or consent. Id.
On February 9, 2020, another disciplinary hearing was held
by Collins at Great Meadow C.F., once again in Plaintiff's
absence and without his knowledge or consent. Id. at 48. At
the conclusion of the hearing, Collins found Plaintiff guilty
of one or more of the unidentified disciplinary charges and
sentenced him to 54 days of SHU confinement. Id.
Between January and March, 2020, Plaintiff was denied
medical treatment by Perez, which Tomas failed to remedy
despite witnessing Plaintiff in severe pain. Id. at 9, 46–47.
5. Plaintiff's Claims Based on Events
that Occurred at Great Meadow C.F.
*8 Liberally construed, the Complaint asserts the following
claims based on events that occurred at Great Meadow C.F.
against various defendants in their individual and official
capacities: 5 (1) Eighth Amendment medical indifference
claims against Goe, Karandy, Nesmith, Rocque, Christy,
Morley, Tandy-Walters, Gilles, Boule, Rich, Papa, Doe #1,
Doe #2, Doe #3, Miller, McIntosh, Collins, and Caron; (2)
Eighth Amendment excessive force and failure-to-intervene
claims against Gilles, Boule, Rich, Papa, Doe #1, Doe #2,
Doe #3, Nesmith, and Christy; (3) an Eighth Amendment
sexual abuse claim against Gilles, Boule, Rich, Papa, Doe
#1, Doe #2, and Doe #3; (4) a Fourth Amendment unlawful
search claim against Gilles, Boule, Rich, Papa, Doe #1, Doe
#2, and Doe #3; (5) an Eighth Amendment conditions-of-
confinement claim against Miller, McIntosh, Collins, and
Caron; (6) Fourteenth Amendment due process claims against
Murphy and Collins; and (7) a Fourteenth Amendment equal
protection claim against Gilles. 6
Plaintiff seeks injunctive and monetary relief. Compl. at 49–
50. For a complete statement of Plaintiff's claims, reference
is made to the Complaint.
C. Severance and Transfer of Claims Arising at Five
Points C.F.
Rule 21 of the Federal Rules of Civil Procedure permits the
Court to sever any claim against a party and proceed with that
claim separately. Fed. R. Civ. P. 21. In deciding whether to
sever a claim, the Court should consider the following:
(1) whether the claims arise out of
the same transaction or occurrence;
(2) whether the claims present some
common questions of law or fact; (3)
whether settlement of the claims or
judicial economy would be facilitated;
(4) whether prejudice would be
avoided if severance were granted; and
(5) whether different witnesses and
documentary proof are required for the
separate claims.
Morris v. Northrop Grumman Corp., 37 F. Supp. 2d 556, 580
(E.D.N.Y. 1999). “A claim may be severed based upon lack
of a significant relationship between defendants or solely for
the purpose of facilitating transfer. Where the administration
of justice would be materially advanced by severance and
transfer, a court may properly sever the claims against one or
more defendants for the purpose of permitting the transfer of
the action against other defendants.” Cain v. New York State
Bd. of Elections, 630 F. Supp. 221, 225–26 (E.D.N.Y. 1986).
“A decision to sever lies within the discretion of the Court.”
Id. at 225.
Here, the claims arising out of Plaintiff's incarceration at
Five Points C.F. are more appropriately heard in the Western
District of New York, where that facility is located. See 28
U.S.C. § 112(d). 7 Those claims are separate and distinct
from the claims arising out of Plaintiff's incarceration at
Great Meadow C.F. and will require different witnesses and
documentary proof. The remainder of the factors do not weigh
against severance. Thus, pursuant to Fed. R. Civ. P. 21 and
28 U.S.C. § 1404(a), 8 the claims that arose while Plaintiff
was incarcerated at Five Points C.F., in the Western District of
New York, along with the Defendants associated with those
claims, are severed from this action and transferred to the
Western District of New York.
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*9 This District will retain jurisdiction over the claims
that arose while Plaintiff was incarcerated at Great Meadow
C.F., and the Court therefore reviews the sufficiency of those
claims below. The Court takes no position regarding the
sufficiency of the claims that have been severed and will be
transferred to the Western District of New York, leaving that
determination to the Western District of New York.
D. Sufficiency of Plaintiff's Remaining Claims
“42 U.S.C. § 1983 provides a civil claim for damages against
any person who, acting under color of state law, deprives
another of a right, privilege or immunity secured by the
Constitution or the laws of the United States.” Thomas v.
Roach, 165 F.3d 137, 142 (2d Cir. 1999). Section 1983 does
not create any substantive rights; it provides civil litigants
a procedure to redress the deprivation of rights established
elsewhere. Id. (citing City of Oklahoma City v. Tuttle, 471
U.S. 808, 816 (1985)). “To prevail on a § 1983 claim, a
plaintiff must establish that a person acting under the color of
state law deprived him of a federal right.” Id.
“It is well settled in this Circuit that ‘personal involvement
of defendants in alleged constitutional deprivations is a
prerequisite to an award of damages under § 1983.’ ” Wright
v. Smith, 21 F.3d 496, 501 (2d Cir. 1994) (quoting Moffitt
v. Town of Brookfield, 950 F.2d 880, 885 (2d Cir. 1991)).
Thus, “a Section 1983 plaintiff must ‘allege a tangible
connection between the acts of the defendant and the injuries
suffered.’ ” Austin v. Pappas, No. 04-CV-7263, 2008 WL
857528, at *2 (S.D.N.Y. Mar. 31, 2008) (quoting Bass v.
Jackson, 790 F.2d 260, 263 (2d Cir. 1986)) (other citation
omitted). If the defendant is a supervisory official, a mere
“linkage” to the unlawful conduct through “the prison chain
of command” (i.e., under the doctrine of respondeat superior)
is insufficient to show his or her personal involvement in that
unlawful conduct. See Polk Cty. v. Dodson, 454 U.S. 312,
325 (1981); Richardson v. Goord, 347 F.3d 431, 435 (2d Cir.
2003); Wright, 21 F.3d at 501.
Rather, supervisory personnel may be considered “personally
involved” in an alleged constitutional violation only if they
(1) directly participated in the violation, (2) failed to remedy
that violation after learning of it through a report or appeal,
(3) created, or allowed to continue, a policy or custom under
which the violation occurred, (4) were grossly negligent
in managing subordinates who caused the violation, or (5)
exhibited deliberate indifference to the rights of inmates by
failing to act on information indicating that a violation was
occurring. Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir.
1995). 9
1. Official Capacity Claims
The Eleventh Amendment has long been construed as barring
lawsuits against states in federal court, under the fundamental
principle of sovereign immunity. U.S. Const. amend. XI
(“The Judicial power of the United States shall not be
construed to extend to any suit in law or equity, commenced
or prosecuted against one of the United States by Citizens
of another State, or by Citizens or Subjects of any Foreign
State.”); Hans v. Louisiana, 134 U.S. 1, 10–21 (1890); Idaho
v. Coeur d'Alene Tribe of Idaho, 521 U.S. 261, 267 (1997);
Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89,
100 (1984). Eleventh Amendment immunity is lost only if
Congress unequivocally abrogates states’ immunity or a state
expressly consents to suit. Gollomp v. Spitzer, 568 F.3d 355,
365–66 (2d Cir. 2009). It is well-settled that Congress did
not abrogate states’ immunity through § 1983, see Quern v.
Jordan, 440 U.S. 332, 343–45 (1979), and that New York
State has not waived its immunity from suit on the claims
asserted in Plaintiff's Complaint. See generally Trotman v.
Palisades Interstate Park Comm'n, 557 F.2d 35, 38–40 (2d Cir.
1977); Dawkins v. State of New York, No. 93-CV-1298, 1996
WL 156764, at *2 (N.D.N.Y. 1996).
*10 The Eleventh Amendment bars suits for damages
against state officials acting in their official capacities. See
Kentucky v. Graham, 473 U.S. 159, 169 (1985) (explaining
that a claim for damages against state officials in their official
capacity is considered to be a claim against the State and is
therefore barred by the Eleventh Amendment); Ying Jing Gan
v. City of New York, 996 F.2d 522, 529 (2d Cir. 1993) (“To the
extent that a state official is sued for damages in his official
capacity, such a suit is deemed to be a suit against the state,
and the official is entitled to invoke the Eleventh Amendment
immunity belonging to the state.”); Severino v. Negron, 996
F.2d 1439, 1441 (2d Cir. 1993) (“[I]t is clear that the Eleventh
Amendment does not permit suit [under § 1983] for money
damages against state officials in their official capacities.”)
Accordingly, to the extent that Plaintiff seeks monetary
damages under § 1983 against any named defendant
remaining in this action in his or her official capacity, such
claims are dismissed with prejudice pursuant to §§ 1915(e)(2)
(B) and 1915A(b) as barred by the Eleventh Amendment.
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2. Medical Indifference Claims
Claims that prison officials have intentionally disregarded an
inmate's medical needs fall under the Eighth Amendment's
protection from the imposition of cruel and unusual
punishment. Estelle v. Gamble, 429 U.S. 97, 102, 104 (1976).
The Eighth Amendment prohibits punishment that involves
the “unnecessary and wanton infliction of pain” and that
is incompatible with “the evolving standards of decency
that mark the progress of a maturing society.” Id.; see also
Whitley v. Albers, 475 U.S. 312, 319 (1986) (citing Estelle).
While the Eighth Amendment does not mandate comfortable
prisons, neither does it tolerate inhumane treatment of those
in confinement. Farmer v. Brennan, 511 U.S. 825, 832 (1994)
(citing Rhodes v. Chapman, 452 U.S. 337, 349 (1981)).
“In order to establish an Eighth Amendment claim arising out
of inadequate medical care, a prisoner must prove ‘deliberate
indifference to [his] serious medical needs.’ ” Chance v.
Armstrong, 143 F.3d 698, 702 (2d Cir. 1998) (quoting Estelle,
429 U.S. at 104). “First, the alleged deprivation must be, in
objective terms, sufficiently serious.” Chance, 143 F.3d at 702
(internal quotation marks and citations omitted). Addressing
the objective element, to prevail, a plaintiff must demonstrate
a violation sufficiently serious, “in the sense that a condition
of urgency, one that may produce death, degeneration, or
extreme pain exists.” Hathaway v. Coughlin, 99 F.3d 550,
553 (2d Cir. 1996). “Second, the defendant must act with a
sufficiently culpable state of mind.” Chance, 143 F.3d at 702
(internal quotation marks and citations omitted). That is, the
plaintiff must demonstrate that the defendant “kn[ew] of and
disregard[ed] an excessive risk to inmate health or safety.”
Farmer, 511 U.S. at 837; see also Blyden v. Mancusi, 186
F.3d 252, 262 (2d Cir. 1999) (with respect to the subjective
element, a plaintiff must also demonstrate that defendant
had “the necessary level of culpability, shown by actions
characterized by ‘wantonness’ ”).
Non-medical personnel may be held liable for deliberate
indifference to medical needs where a plaintiff demonstrates
that the prison personnel intentionally denied or delayed
access to medical care or intentionally interfered with medical
treatment once it was prescribed. See Banks v. No. 8932
Corr. Officer, No. 11-CV-8359, 2013 WL 673883, at *4
(S.D.N.Y. Feb. 25, 2013) (“A prison guard's deliberate
indifference to a serious medical need of a prisoner means
intentionally denying or delaying access to medical care or
intentionally interfering with medical treatment once it was
prescribed.”); see also Estelle, 429 U.S. at 104–05 (noting that
deliberate indifference may be manifested when prison guards
intentionally deny or delay access to medical care).
*11 At this stage of the proceeding, and mindful of the
Second Circuit's direction that a pro se plaintiff's pleadings
must be liberally construed, 10 Plaintiff has alleged sufficient
facts to warrant a response to his medical indifference claims.
In so ruling, the Court expresses no opinion as to whether
these claims can withstand a properly filed dispositive
motion.
3. Excessive Force and Failure-to-Intervene Claims
The Eighth Amendment's prohibition against cruel and
unusual punishment encompasses the use of excessive force
against an inmate, who must prove two components: (1)
subjectively, that the defendant acted wantonly and in bad
faith, and (2) objectively, that the defendant's actions violated
“contemporary standards of decency.” Blyden, 186 F.3d
at 262–63 (internal quotations omitted) (citing Hudson v.
McMillian, 503 U.S. 1, 8 (1992)). 11
“The Eighth Amendment [also] requires prison officials to
take reasonable measures to guarantee the safety of inmates
in their custody.” Hayes v. New York City Dep't of Corr.,
84 F.3d 614, 620 (2d Cir. 1996) (citing Farmer, 511 U.S. at
832). Law enforcement officials, including prison officials,
can be held liable under § 1983 for failing to intervene in
a situation where another official is violating an inmate's
constitutional rights, including the use of excessive force, in
their presence. Curley v. Vill. of Suffern, 268 F.3d 65, 72 (2d
Cir. 2001); see also Anderson v. Branen, 17 F.3d 552, 557
(2d Cir. 1994) (prison official's Eighth Amendment duty to
take reasonable measures to guarantee the safety of inmates
in their custody includes a duty to protect inmates from harm
threatened by other officers); Terebesi v. Torreso, 764 F.3d
217, 244 (2d Cir. 2014) (“[I]nsofar as the raid plan included
the use of substantial and violent force, the plaintiff alleged
facts suggesting that every defendant had the opportunity to
intervene. Whether some of the defendants were in fact unable
to intercede in particular uses of force, either because they
were not involved in the planning process, or because of the
manner, place, and timing of their deployment in the raid
itself, is properly a question for a jury.”).
Mindful of the Second Circuit's direction that a pro se
plaintiff's pleadings must be liberally construed, the Court
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finds that Plaintiff's Eighth Amendment excessive force and
failure-to-intervene claims require a response. In so ruling,
the Court expresses no opinion as to whether these claims can
withstand a properly filed dispositive motion.
4. Sexual Abuse Claim
“Because sexual abuse of a prisoner by a corrections officer
may constitute serious harm inflicted by an officer with a
sufficiently culpable state of mind, allegations of such abuse
are cognizable as Eighth Amendment claims.” Boddie v.
Schnieder, 105 F.3d 857, 861 (2d Cir. 1997). “A corrections
officer's intentional contact with an inmate's genitalia or other
intimate area, which serves no penological purpose and is
undertaken with the intent to gratify the officer's sexual desire
or humiliate the inmate, violates the Eighth Amendment.”
Crawford v. Cuomo, 796 F.3d 252, 256–57 (2d Cir. 2015).
*12 Once again mindful of the Second Circuit's direction
that a pro se plaintiff's pleadings must be liberally construed,
the Court finds that Plaintiff's Eighth Amendment sexual
abuse claim also requires a response. In so ruling, the Court
expresses no opinion as to whether this claim can withstand
a properly filed dispositive motion.
5. Unlawful Search Claim
The Supreme Court has upheld the practice of conducting
visual body-cavity searches of pre-trial detainees following
contact visits, finding that the Fourth Amendment does not
require probable cause for correction officials to conduct
such searches; instead, such searches are subject to a
reasonableness standard. Bell v. Wolfish, 441 U.S. 520, 558–
60 (1979); see also Florence v. Bd. of Chosen Freeholders of
Cty. of Burlington, 566 U.S. 318, 330 (2012) (holding that
arrestees who are committed to the general population of a
detention center may be subject to a close visual inspection
while undressed). The Second Circuit and district courts
within the Circuit have also upheld routine random strip
searches, including body-cavity inspections, performed on
prison inmates. See Covino v. Patrissi, 967 F.2d 73, 76–80 (2d
Cir. 1992); see also Hurley v. Ward, 584 F.2d 609, 612 (2d
Cir. 1978) (reversing portion of injunction prohibiting strip
searches of prison inmates); Castro-Sanchez v. N.Y. State
Dep't of Corr. Servs., No. 10-CV-8314, 2011 WL 6057837, at
*9 (S.D.N.Y. Dec. 6, 2011) (“Routine random strip searches
of inmates, including body cavity inspections, do not violate
the Fourth Amendment.”). Assessing the reasonableness of
a strip search “requires a balancing of the need for the
particular search against the invasion of personal rights that
the search entails. Courts must consider the scope of the
particular intrusion, the manner in which it is conducted,
the justification for initiating it, and the place in which it is
conducted.” Bell, 441 U.S. at 559.
An inmate bears the burden of showing that a search
was unreasonable, Shabazz v. Pico, 994 F. Supp. 460, 473
(S.D.N.Y. 1998), so at the pleading stage, a plaintiff must
“plead facts sufficient to give rise to a plausible inference”
that the search he challenges was unreasonable under the
standards described above. Simmons v. Cripps, No. 12-
CV-1061, 2013 WL 1290268, at *21 (S.D.N.Y. Feb. 15,
2013), report and recommendation adopted by 2013 WL
1285417 (S.D.N.Y. Mar. 28, 2013).
At this very early stage of the proceeding, the Court finds that
Plaintiff has alleged sufficient facts to warrant a response to
his Fourth Amendment unlawful search claim. In so ruling,
the Court expresses no opinion as to whether this claim can
withstand a properly filed dispositive motion.
6. Conditions-of-Confinement Claims
The Second Circuit, in addressing the rights protected by
the Eighth Amendment, has stated that sentenced prisoners
are entitled to “adequate food, clothing, shelter, sanitation,
medical care and personal safety.” Wolfish v. Levi, 573 F.2d
118, 125 (2d Cir. 1978), rev'd on other grounds sub nom.
Bell, 441 U.S. 520; Lareau v. Manson, 651 F.2d 96, 106 (2d
Cir. 1981). To demonstrate that conditions of confinement
constitute cruel and unusual punishment in violation of the
Eighth Amendment, a plaintiff must satisfy both an objective
and subjective element. See Jolly v. Coughlin, 76 F.3d 468,
480 (2d Cir. 1996). A plaintiff must demonstrate that (1)
the conditions of confinement resulted in “unquestioned and
serious deprivations of basic human needs,” Anderson v.
Coughlin, 757 F.2d 33, 35 (2d Cir. 1985); see also Jolly, 76
F.3d at 480, and (2) the defendants acted with “deliberate
indifference.” Wilson v. Seiter, 501 U.S. 294, 303–04 (1991).
*13 “When a plaintiff alleges multiple unconstitutional
conditions of confinement, the court may aggregate the effect
of all of the conditions, ‘but only when they have a mutually
enforcing effect that produces the deprivation of a single,
identifiable human need such as food, warmth, or exercise.’
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” Walker v. Schult, 717 F.3d 119, 125 (2d Cir. 2013) (quoting
Wilson, 501 U.S. at 304). “Each condition ‘must be measured
by its severity and duration, not the resulting injury,’ and
the conditions are not subject to ‘a bright-line durational or
severity threshold.’ ” Van Hoven v. City of New York, No. 16-
CV-2080, 2018 WL 5914858, at *7 (S.D.N.Y. Aug. 21, 2018)
(quoting Darnell v. Pineiro, 849 F.3d 17, 32 (2d Cir. 2017)),
report and recommendation adopted by 2018 WL 4417842
(S.D.N.Y. Sept. 17, 2018).
Mindful of the Second Circuit's direction that a pro
se plaintiff's pleadings must be liberally construed, the
Court finds that Plaintiff's Eighth Amendment conditions-of-
confinement claims require a response. In so ruling, the Court
expresses no opinion as to whether these claims can withstand
a properly filed dispositive motion.
7. Due Process Claims
To successfully state a claim under § 1983 for denial of due
process, a plaintiff must establish both the existence of a
protected liberty or property interest, and that he or she was
deprived of that interest without being afforded sufficient
process. Shakur v. Selsky, 391 F.3d 106, 118 (2d Cir. 2004)
(citing Kentucky Dep't of Corr. v. Thompson, 490 U.S. 454,
460 (1989)). Due process generally requires that the state
afford individuals “some kind of hearing” prior to depriving
them of a liberty or property interest. DiBlasio v. Novello, 344
F.3d 292, 302 (2d Cir. 2003).
An inmate's protected liberty interest is implicated where
the punishment at issue imposes an “atypical and significant
hardship on the inmate in relation to the ordinary incidents
of prison life.” Sandin v. Conner, 515 U.S. 472, 484
(1995). The duration of the challenged confinement, while
not determinative, is a significant factor under Sandin. The
Second Circuit generally takes the position that normal
confinement in a segregated housing unit of 101 days or
less does not constitute an “atypical and significant hardship”
under Sandin. Colon v. Howard, 215 F.3d 227, 231 (2d Cir.
2000) (citing Sealey v. Giltner, 197 F.3d 578, 589–90 (2d Cir.
1999)). 12 The “atypicality” inquiry under Sandin is normally
a question of law. Colon, 215 F.3d at 230–31; Sealey, 197 F.3d
at 585. In making that determination, the Court must consider
the specific circumstances of the confinement, including both
the duration and the conditions thereof. Id.
The due process protections afforded inmates facing
disciplinary hearings that affect a liberty or property interest
include: advance written notice of the charges; a fair and
impartial hearing officer; a hearing that affords the inmate
the opportunity to call witnesses and present documentary
evidence; and a written statement of the evidence upon which
the hearing officer relied in making his determination. Sira
v. Morton, 380 F.3d 57, 69 (2d Cir. 2004) (citing Wolff
v. McDonnell, 418 U.S. 539, 563–67 (1974)). The hearing
officer's findings must be supported by “some” “reliable
evidence.” Id. (citing Superintendent v. Hill, 472 U.S. 445,
455 (1985)).
*14 Mindful of the Second Circuit's direction that a pro se
plaintiff's pleadings must be liberally construed, the Court
finds that Plaintiff's Fourteenth Amendment due process
claims require a response. In so ruling, the Court expresses no
opinion as to whether these claims can withstand a properly
filed dispositive motion.
8. Equal Protection Claim
The Equal Protection Clause requires that the government
treat all similarly situated people alike. City of Cleburne v.
Cleburne Living Ctr., 473 U.S. 432, 439 (1985). Specifically,
the Equal Protection Clause “bars the government from
selective adverse treatment of individuals compared with
other similarly situated individuals if ‘such selective
treatment was based on impermissible considerations such
as race, religion, intent to inhibit or punish the exercise of
constitutional rights, or malicious or bad faith intent to injure
a person.’ ” Bizzarro v. Miranda, 394 F.3d 82, 86 (2d Cir.
2005) (quoting LeClair v. Saunders, 627 F.2d 606, 609–
10 (2d Cir. 1980)). To state a viable claim for denial of
equal protection, a plaintiff generally must allege “purposeful
discrimination ... directed at an identifiable or suspect class.”
Giano v. Senkowski, 54 F.3d 1050, 1057 (2d Cir. 1995).
In the alternative, under a “class of one” theory, a plaintiff
must allege that he has been intentionally treated differently
from others similarly situated, with no rational basis for the
difference in treatment. Village of Willowbrook v. Olech, 528
U.S. 562, 564 (2000); DeMuria v. Hawkes, 328 F.3d 704, 706
(2d Cir. 2003).
“[V]erbal harassment or profanity alone, unaccompanied by
an injury[,] no matter how inappropriate, unprofessional, or
reprehensible it might seem, does not constitute the violation
of any federally protected right and therefore is not actionable
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under 42 U.S.C. § 1983.” Moncrieffe v. Witbeck, No. 97-
CV-253, 2000 WL 949457, at *3 (N.D.N.Y. June 29, 2000)
(quoting Aziz Zarif Shabazz v. Pico, 994 F. Supp. 460, 474
(S.D.N.Y. 1998)). Additionally, “threats do not amount to
violations of constitutional rights.” Id. (quoting Malsh v.
Austin, 901 F. Supp. 757, 763 (S.D.N.Y. 1995)).
However, “[c]ourts in this circuit and elsewhere have held
that officers’ use of racial epithets may be regarded as
direct evidence of racial animus and, when combined with
physical abuse or other unlawful actions, may establish an
equal protection violation.” Ali v. Connick, 136 F. Supp. 3d
270, 280 (E.D.N.Y. 2015); see also Cole v. Fischer, 379 F.
App'x 40, 43 (2d Cir. 2010) (“When the verbal harassment
and simultaneous physical abuse alleged in the amended
complaint are considered together, we have little trouble
concluding that plaintiff's allegations were sufficient to state
a § 1983 claim for discrimination on the basis of race and
religion.”); cf. Abuhouran v. Acker, No. 04-CV-2265, 2005
WL 1532496, at *4–5 (E.D. Pa. June 29, 2005) (denying
dismissal of an Equal Protection claim where an Arab-
American inmate alleged that the defendant officer mocked
the plaintiff because of his “name, accent, and religion,”
called him “a little terrorist,” and subjected him to harassing
conduct and unfavorable treatment).
Mindful of the Second Circuit's direction that a pro se
plaintiff's pleadings must be liberally construed, the Court
finds that Plaintiff's Fourteenth Amendment equal protection
claim against Gilles requires a response. In so ruling, the
Court expresses no opinion as to whether this claim can
withstand a properly filed dispositive motion.
III. CONCLUSION
*15 Accordingly, it is hereby:
ORDERED, that the claims arising out of Plaintiff's
confinement at Five Points Correctional Facility are severed
and transferred to the Western District of New York; and it
is further
ORDERED, that the Clerk shall advise the Clerk of the
Western District of New York, in writing, of the entry of this
Order and provide that Clerk with all information necessary
for the Western District Clerk to electronically access the
documents filed in this action; and it is further
ORDERED, that Defendants Perez, Tomas, and Nurse Jane
Doe are TERMINATED from this action; and it is further
ORDERED, that the following claims asserted against the
defendants remaining in the action before this Court in
their individual capacities SURVIVE sua sponte review
and require a response: (1) Plaintiff's Eighth Amendment
medical indifference claims against Defendants Goe,
Karandy, Nesmith, Rocque, Christy, Morley, Tandy-Walters,
Gilles, Correction Officer Boule, Correction Officer Rich,
Correction Officer Papa, Correction Officer John Doe #1,
Correction Officer John Doe #2, Correction Officer Jane
Doe #3, Miller, McIntosh, Collins, and Caron; (2) Plaintiff's
Eighth Amendment excessive force and failure-to-intervene
claims against Defendants Gilles, Correction Officer Boule,
Correction Officer Rich, Correction Officer Papa, Correction
Officer John Doe #1, Correction Officer John Doe #2,
Correction Officer Jane Doe #3, Nesmith, and Christy; (3)
Plaintiff's Eighth Amendment sexual abuse claim against
Defendants Gilles, Boule, Rich, Papa, John Doe #1, John
Doe #2, and Jane Doe #3; (4) Plaintiff's Fourth Amendment
unlawful search claim against Defendants Gilles, Boule,
Rich, Papa, John Doe #1, John Doe #2, and Jane Doe #3;
(5) Plaintiff's Eighth Amendment conditions-of-confinement
claim against Defendants Miller, McIntosh, Collins, and
Caron; (6) Plaintiff's Fourteenth Amendment due process
claims against Defendants Murphy and Collins; and (7)
Plaintiff's Fourteenth Amendment equal protection claim
against Defendant Gilles; and it is further
ORDERED, that Plaintiff's official capacity claims against
the defendants remaining in the action before this Court
are DISMISSED with prejudice pursuant to 28 U.S.C.
§§ 1915(e)(2)(B) and 1915A(b) as barred by the Eleventh
Amendment and for failure to state a claim upon which relief
may be granted; 13 and it is further
ORDERED, that upon receipt from Plaintiff of the
documents required for service, the Clerk shall issue
summonses and forward them, along with copies of the
Complaint, to the United States Marshal for service upon
Defendants Goe, Karandy, Nesmith, Rocque, Christy, Morley,
Tandy-Walters, Gilles, Correction Officer Boule, Correction
Officer Rich, Correction Officer Papa, Miller, McIntosh,
Collins, and Caron. 14 The Clerk shall also forward a copy
of the summons and Complaint by mail to the Office of the
New York State Attorney General, together with a copy of this
Decision and Order; and it is further
*16 ORDERED, that Defendants Goe, Karandy, Nesmith,
Rocque, Christy, Morley, Tandy-Walters, Gilles, Correction
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Officer Boule, Correction Officer Rich, Correction Officer
Papa, Miller, McIntosh, Collins, and Caron, or their counsel,
respond to the Complaint as provided for in the Federal Rules
of Civil Procedure; and it is further
ORDERED, that Plaintiff must take reasonable steps to
ascertain the identities of Defendants Correction Officer John
Doe #1, Correction Officer John Doe #2, and Correction
Officer Jane Doe #3 and, when identified, seek to amend the
Complaint to add these individuals as defendants in this action
pursuant to Federal Rule of Civil Procedure 15(a); and it is
further
ORDERED, that all pleadings, motions and other documents
relating to this action be filed with the Clerk of the United
States District Court, Northern District of New York, 7th
Floor, Federal Building, 100 S. Clinton St., Syracuse, New
York 13261-7367. Any paper sent by a party to the Court
or the Clerk must be accompanied by a certificate showing
that a true and correct copy of same was served on all
opposing parties or their counsel. Any document received
by the Clerk or the Court which does not include a proper
certificate of service will be stricken from the docket.
Plaintiff must comply with any requests by the Clerk's Office
for any documents that are necessary to maintain this action.
All parties must comply with Local Rule 7.1 of the Northern
District of New York in filing motions. Plaintiff is also
required to promptly notify the Clerk's Office and all
parties or their counsel of any change in his address;
Plaintiff's failure to do so will result in the dismissal of this
action; and it is further
ORDERED, that the Clerk serve a copy of this Decision and
Order on Plaintiff.
IT IS SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2020 WL 4346896
Footnotes
1 This action was originally commenced in the Southern District of New York. By Order filed May 14, 2020, the
Honorable Colleen McMahon of the Southern District of New York granted Plaintiff's application to proceed
in forma pauperis. Dkt. No. 4. By Order filed June 3, 2020, the Honorable Kenneth M. Karas of the Southern
District of New York severed and transferred Plaintiff's claims arising out of his incarceration at Great Meadow
Correctional Facility and Five Points Correctional Facility to the Northern District of New York. Dkt. No. 6.
2 To determine whether an action is frivolous, a court must look to see whether the complaint “lacks an arguable
basis either in law or in fact.” See Neitzke v. Williams, 490 U.S. 319, 325 (1989).
3 Page numbers cited herein refer to those generated by the Court's electronic filing system (“ECF”).
4 Plaintiff also alleges that on January 15, 2020, he received a response from the Central Office Review
Committee (“CORC”) regarding one of his grievances, which indicated that the Division of Health Services
had conducted an investigation into Plaintiff's concerns about his medical treatment and found that he
was receiving appropriate medical care and had been properly weaned off Neurontin, the pain medication
prescribed to Plaintiff before his transfer to Great Meadow C.F. Compl. at 24. Plaintiff further alleges that
CORC's statements are false because Tandy-Walters knew—on an unidentified date before January 15, 2020
—that he was not receiving treatment for his right knee, medication for his migraine headaches, or adequate
eyecare, and was not weaned off Neurontin, but was instead taken off that medication “cold turkey[.]” Id.
5 Because Plaintiff has not named any officials from Auburn Correctional Facility as defendants, the Court does
not construe the complaint to assert any claims based on Plaintiff's incarceration at that facility. Moreover,
because Plaintiff's claims based on events that occurred during his confinement at Five Points C.F. are
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severed and transferred to the Western District of New York, as discussed below, the Court leaves the
determination of those claims for the Western District of New York.
6 As noted, Plaintiff alleges that Collins and Caron refused to grant him “time cuts” provided for in the “reform[ed]
SHU laws pass[ed] in 2016.” Compl. at 43. Although some courts have recognized a potential Eighth
Amendment claim based on alleged excessive SHU confinement, see Peoples v. Annucci, No. 11-CV-2694,
2012 WL 1575302, at *9 (S.D.N.Y. May 2, 2012), neither Collins nor Caron is alleged to have been responsible
for the duration of Plaintiff's SHU confinement. Moreover, the Complaint is devoid of any allegations which
plausibly suggest that either of these Defendants refused to reduce Plaintiff's SHU confinement period out of
deliberate indifference to his health or safety. For these reasons, the Court does not construe the Complaint
to assert an Eighth Amendment claim against either of these officials based on Plaintiff's SHU confinement.
7 Five Points C.F. is located in Seneca County.
8 “For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil
action to any other district or division where it might have been brought or to any district or division to which
all the parties have consented.” 28 U.S.C. § 1404(a). Under 28 U.S.C. § 1391(b), “[a] civil action may be
brought in—(1) a judicial district in which any defendant resides, if all defendants are residents of the State in
which the district is located; (2) a judicial district in which a substantial part of the events or omissions giving
rise to the claim occurred, or a substantial part of property that is the subject of the action is situated; or (3) if
there is no district in which an action may otherwise be brought as provided in this section, any judicial district
in which any defendant is subject to the court's personal jurisdiction with respect to such action.”
9 The Second Circuit has not yet addressed how the Supreme Court's decision in Iqbal affected the standards
in Colon for establishing supervisory liability. See Grullon v. City of New Haven, 720 F.3d 133, 139 (2d
Cir. 2013) (noting that Iqbal may have “heightened the requirements for showing a supervisor's personal
involvement with respect to certain constitutional violations” but not reaching the impact of Iqbal on Colon
because the complaint “did not adequately plead the Warden's personal involvement even under Colon”).
For purposes of this Decision and Order, the Court assumes that all five categories under Colon remain valid.
10 See, e.g., Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008).
11 In this regard, while “a de minimis use of force will rarely suffice to state a constitutional claim,” Romano v.
Howarth, 998 F.2d 101, 105 (2d Cir. 1993), the malicious use of force to cause harm constitutes an Eighth
Amendment violation per se because in such an instance “contemporary standards of decency are always
violated.” Blyden, 186 F.3d at 263 (citing Hudson, 503 U.S. at 9). The key inquiry into a claim of excessive
force is “whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and
sadistically to cause harm.” Hudson, 503 U.S. at 7 (citing Whitley, 475 U.S. at 321–22); see also Johnson
v. Glick, 481 F.2d 1028, 1033 (2d Cir. 1973).
12 A New York state inmate confined in SHU is placed in a solitary confinement cell for 23 hours a day. The
inmate may exercise in the yard for one hour each day, is limited to two showers a week, and may not work
or attend programming. See Colon v. Howard, 215 F.3d 227, 230 (2d Cir. 2000); N.Y. COMP. CODES R.
& REGS., tit. 7, §§ 304.1–.14.
13 Generally, when a district court dismisses a pro se action sua sponte, the plaintiff will be allowed to amend
his action. See Gomez, 171 F.3d at 796. However, an opportunity to amend is not required where the defects
in the plaintiff's claims are substantive rather than merely formal, such that any amendment would be futile.
Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000); see also Pucci v. Brown, 423 F. App'x 77, 78 (2d Cir.
2011).
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14 Summonses will not issue for the “Doe” defendants because the U.S. Marshal cannot effect service on an
individual who has not been identified by name.
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
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Joyner v. County of Cayuga, Not Reported in Fed. Supp. (2020)
WESTLAW © 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
KeyCite Yellow Flag
Declined to Extend by Broadwater v. County of Onondaga, N.D.N.Y.,
March 11, 2024
2020 WL 1904088
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Michael JOYNER, Plaintiff,
v.
COUNTY OF CAYUGA; Cayuga County Sheriff's
Department; City of Auburn; Shawn I. Butler, Chief of
Auburn Police Department, as an Individual and in his
official capacity; Cayuga County District Attorney's
Office; Jon E. Budelmann, as an Individual and in
his capacity as District Attorney for Cayuga County;
and Anthony Spinelli, as an Individual and in his
capacity as an Auburn City Police Officer, Defendants.
5:20-CV-60 (MAD/TWD)
|
Signed 04/17/2020
Attorneys and Law Firms
OF COUNSEL: JARROD W. SMITH, ESQ., OFFICE OF
JARROD W. SMITH, 11 South Main Street, P.O. Box 173,
Jordan, New York 13080, Attorneys for Plaintiff.
OF COUNSEL: JEFFREY R. PARRY, ESQ., OFFICE OF
JEFFREY R. PARRY, 7030 East Genesee Street, Fayetteville,
New York 13066, Attorneys for Plaintiff.
OF COUNSEL: FRANK W. MILLER, ESQ., GIANCARLO
FACCIPONTE, ESQ., OFFICE OF FRANK W. MILLER,
6575 Kirkville Road, East Syracuse, New York 13057,
Attorneys for Defendants.
MEMORANDUM-DECISION AND ORDER
Mae A. D'Agostino, U.S. District Judge:
I. INTRODUCTION
*1 On or about February 18, 2020, Plaintiff filed a complaint
against Defendants City of Auburn, Shawn L. Butler, County
of Cayuga, Cayuga County District Attorney's Office, Jon
E. Budelmann, and Anthony Spinelli, asserting eight claims
pursuant to 42 U.S.C. §§ 1983 and 1988, and state law.
See Dkt. No. 5. Specifically, Plaintiff's complaint alleges the
following causes of action: (1) false arrest under the Fourth
and Fourteenth Amendments; (2) malicious prosecution
under the Fourth and Fourteenth Amendments; (3) negligent
failure to train or supervise; (4) state law false arrest; (5)
state law false imprisonment; (6) intentional and negligent
infliction of emotional distress under New York State law;
(7) negligence; and (8) deliberate indifference to medical care
under the Eighth Amendment. See Dkt. No. 5 at ¶¶ 40-114.
Currently before the Court is Defendants’ motion to dismiss
the complaint in its entirety. See Dkt. No. 9.
II. BACKGROUND
According to the complaint, on August 10, 2018, Plaintiff
was the passenger in a vehicle that was driven by 140 Wall
Street, allegedly in violation of an order of protection for
Linda Fitzsimmons and Lee Joyner, who both reside at that
address. See Dkt. No. 5 at ¶¶ 24-25. Plaintiff resides at 145
Wall Street, several houses down from 140 Wall Street, on the
opposite side of the street. See id. at ¶ 25. Plaintiff was not the
driver of the vehicle and had no control over how the driver
was delivering him to his home. See id.
On August 13, 2018, Plaintiff was arraigned on two felony
complaints charging him with two counts of Criminal
Contempt in the First Degree based on the alleged violation of
the order of protection. See id. at ¶ 22. At the conclusion of his
arraignment, Plaintiff was remanded to the Cayuga County
Jail. See id. Plaintiff claims that “Defendant police officer
lacked the requisite requirement of having probable cause to
arrest the Plaintiff; and did falsely arrest and imprison the
Plaintiff.” Id. at ¶ 23.
On October 4, 2018, Defendant Jon E. Budelmann, in his
capacity as Cayuga County District Attorney, presented
Plaintiff's charges to a grand jury, which “No Billed” the case.
See id. at ¶ 26. At this point, Plaintiff was released from
custody. See id.
During the fifty-three days during which Plaintiff “was being
illegally imprisoned,” he slipped and fell at the Cayuga
County Jail. See id. at ¶ 31. According to Plaintiff, on August
31, 2018, a water pipe burst at the Cayuga County Jail near
Plaintiff's cell while he was already locked in for the night
and sleeping. See id. at ¶ 32. Plaintiff was woken by a
bursting water pipe that was turned off by a Cayuga County
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Correctional officer. See id. at ¶ 33. “The first burst of the
water pipe [occurred] when the Cayuga County Correctional
officer shut the water off” between “12:00 midnight and 2:00
a.m.” Id. at ¶ 34. “Plaintiff was woken by a bursting water
pipe; and observed and heard that the correctional officer was
going to turn off the water and clean up the water spill. At that
time, there was no water in Plaintiff's cell.” Id.
*2 Unbeknownst to Plaintiff, water from the burst pipe went
underneath his locked cell door “and flooded his room while
he was in bed and asleep.” Id. at ¶ 35. “At around 6:30
am-7:00 am, Plaintiff got out of his bed to use the toilet in
his cell. Plaintiff slipped and fell on the wet floor of his cell.
The water on the floor was all near the toilet in his cell. There
was a huge puddle of water between Plaintiff's bunk and the
toilet in his cell.” Id. at ¶ 36. Plaintiff claims that he slipped
and fell, hitting his head and neck on his bunk, and his lower
back on the floor, causing severe injuries. See id. at ¶ 37. At
the time that Plaintiff had fallen and injured himself, a second
water leak had occurred in the pod in which he was being
held. See id. at ¶ 38. Plaintiff claims that, as a result of the fall,
he suffered a herniated disc in his neck and a lower lumbar
strain. See id. at ¶ 39. Plaintiff also claims that he suffers from
numbing of his toes and finger tips. See id.
III. DISCUSSION
A. Standard of Review
A motion to dismiss for failure to state a claim pursuant
to Rule 12(b)(6) of the Federal Rules of Civil Procedure
tests the legal sufficiency of the party's claim for relief. See
Patane v. Clark, 508 F.3d 106, 111-12 (2d Cir. 2007) (citation
omitted). In considering the legal sufficiency, a court must
accept as true all well-pleaded facts in the pleading and draw
all reasonable inferences in the pleader's favor. See ATSI
Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir.
2007) (citation omitted). This presumption of truth, however,
does not extend to legal conclusions. See Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (citation omitted). Although a
court's review of a motion to dismiss is generally limited to
the facts presented in the pleading, the court may consider
documents that are “integral” to that pleading, even if they are
neither physically attached to, nor incorporated by reference
into, the pleading. See Mangiafico v. Blumenthal, 471 F.3d
391, 398 (2d Cir. 2006) (quoting Chambers v. Time Warner,
Inc., 282 F.3d 147, 152-53 (2d Cir. 2002)).
To survive a motion to dismiss, a party need only plead “a
short and plain statement of the claim,” see Fed. R. Civ.
P. 8(a)(2), with sufficient factual “heft to ‘sho[w] that the
pleader is entitled to relief[,]’ ” Bell Atl. Corp. v. Twombly,
550 U.S. 544, 557 (2007) (quotation omitted). Under this
standard, the pleading's “[f]actual allegations must be enough
to raise a right of relief above the speculative level,” see
id. at 555 (citation omitted), and present claims that are
“plausible on [their] face,” id. at 570. “The plausibility
standard is not akin to a ‘probability requirement,’ but it
asks for more than a sheer possibility that a defendant has
acted unlawfully.” Iqbal, 556 U.S. at 678 (citation omitted).
“Where a complaint pleads facts that are ‘merely consistent
with’ a defendant's liability, it ‘stops short of the line between
possibility and plausibility of “entitlement to relief.” ’ ” Id.
(quoting [Twombly, 550 U.S.] at 557, 127 S. Ct. 1955).
Ultimately, “when the allegations in a complaint, however
true, could not raise a claim of entitlement to relief,” Twombly,
550 U.S. at 558, or where a plaintiff has “not nudged [its]
claims across the line from conceivable to plausible, the[ ]
complaint must be dismissed[,]” id. at 570.
B. Documents Considered in Deciding Motion to Dismiss
In their reply to the motion to dismiss, Defendants submitted
several documents in further support of their motion. See
Dkt. No. 16-1. These documents include (1) the August 10,
2018 criminal complaint charging Plaintiff with Criminal
Contempt in the First Degree, (2) the order of protection
that Plaintiff allegedly violated, (3) the affidavit of Linda
Fitzsimmons that formed the basis for Defendant's underlying
criminal charge, and (4) the incident narrative report of
Defendant Spinelli dated August 15, 2018 relating to the
criminal complaint filed against Plaintiff. See id. at 1-6.
*3 In deciding a motion to dismiss for failure to state a claim,
the court considers the complaint, materials incorporated
into the complaint by reference, materials integral to the
complaint, and facts that are capable of judicial notice. See
DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir.
2010).
In the present matter, the Court finds that these documents
are not properly considered at the motion to dismiss stage.
The Court acknowledges that there are cases in which courts
have considered similar police records at the pleading stage.
See Betts v. Shearman, No. 12-cv-3195, 2013 WL 311124,
*3 (S.D.N.Y. Jan. 24, 2013) (considering incident report
and accusatory instrument that “provide[d] crucial details”
about the plaintiff's prosecution), aff'd on qualified immunity
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grounds, 751 F.3d 78 (2d Cir. 2014); cf. Obilo v. City
Univ. of City of N.Y., No. 01-cv-5118, 2003 WL 1809471,
*4 (E.D.N.Y. Apr. 7, 2003) (considering incident report
and police complaint that the plaintiff had conceded were
“implicitly” incorporated into his conspiracy allegations).
The better view, however, adopted by a majority of courts
in our Circuit, is that these kinds of police records are not
“integral” to a false arrest complaint. See Bejaoui v. City
of New York, No. 13-CV-5667, 2015 WL 1529633, *4–5
(E.D.N.Y. Mar. 31, 2015) (noting disagreement and declining
to consider extrinsic police reports); Alvarez v. Cty. of Orange,
95 F. Supp. 3d 385, 394-95 (S.D.N.Y. 2015) (collecting
cases). A document is not “integral” simply because its
contents are highly relevant to a plaintiff's allegations, but
only when it is clear that the plaintiff relied on the document
in preparing his complaint. See Global Network Commc'ns,
Inc. v. City of New York, 458 F.3d 150, 156-57 (2d Cir.
2006); Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d
Cir. 2002). Most typically, “the incorporated document is a
contract or other legal document containing obligations upon
which the plaintiff's complaint stands or falls, but which for
some reason ... was not attached to the complaint.” Global
Network Commc'ns, 458 F.3d at 157. “It must also be clear
that there exist no material disputed issues of fact regarding
the relevance of the document.” Faulkner v. Beer, 463 F.3d
130, 134 (2d Cir. 2006).
Here, there is “no indication in the record that plaintiff
relied on these documents in drafting the complaint.” Allyn
v. Rockland Cty., No. 12-cv-5022, 2013 WL 4038602, *4
(S.D.N.Y. July 30, 2013), affirmed, 646 Fed. Appx. 60 (2d Cir.
2016). To the contrary, Plaintiff relies on his own perceptions
and recollections, while only making passing reference to
the criminal complaint and order of protection. Furthermore,
it is not beyond dispute that the police report and narrative
are a truthful description of the police officer's basis to
arrest Plaintiff. To accept the truth of the documents offered
by Defendants at this stage would amount to a premature
determination that the arresting officers and the alleged victim
are more credible than Plaintiff. To make such a determination
at this stage would not be appropriate, and therefore the Court
will not consider the facts adduced in these documents. The
Court will, however, take judicial notice of the existence of
the criminal complaint, supporting affidavit, and order of
protection. See Williams v. City of New York, No. 14-cv-5123,
2015 WL 4461716, *1 (S.D.N.Y. July 21, 2015) (noting that
the court “may take judicial notice of the procedural history
of plaintiff's criminal case, but not of the truth of the arresting
officers’ version of events”); see also Ribaudo v. Desimone,
No. 3:18-cv-1190, 2019 WL 1906269, *4 (M.D. Pa. Apr. 5,
2019) (holding that “even if judicial notice is taken of these
documents, ‘a court may take notice of such documents only
to establish their existence and legal effect, or to determine
what statements they contained ... not for the truth of the
matters asserted’ ”) (quoting Fine v. ESPN, Inc., 11 F. Supp.
3d 209, 223 (N.D.N.Y. 2014)) (other citation omitted).
C. Monell and Supervisory Liability
*4 “Under the standards of Monell v. Department of Social
Services, 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611
(1978), a municipality can be held liable under [42 U.S.C. §
1983] if the deprivation of the plaintiff's rights under federal
law is caused by a governmental custom, policy, or usage of
the municipality.” Jones v. Town of E. Haven, 691 F.3d 72, 80
(2d Cir. 2012). Liability under Section 1983 “is imposed on
the municipality [only] when it has promulgated a custom or
policy that violates federal law and, pursuant to that policy, a
municipal actor has tortiously injured the plaintiff.” Askins v.
Doe No. 1, 727 F.3d 248, 253 (2d Cir. 2013). “Absent such a
custom, policy, or usage, a municipality cannot be held liable
on a respondeat superior basis for the tort of its employee.”
Jones, 691 F.3d at 80. Thus, for a municipality to be held
liable under Section 1983 for the unconstitutional actions of
its employees, “a plaintiff is required to plead and prove three
elements: (1) an official policy or custom that (2) causes the
plaintiff to be subjected to (3) a denial of a constitutional
right.” Wray v. City of New York, 490 F.3d 189, 195 (2d Cir.
2007) (internal quotation marks omitted).
“Supervisory liability is a concept distinct from municipal
liability, and is ‘imposed against a supervisory official in his
individual capacity for his own culpable action or inaction
in the training, supervision, or control of his subordinates.’
” Kucera v. Tkac, No. 5:12-cv-264, 2013 WL 1414441, *4
(D. Vt. Apr. 8, 2013) (quoting Odom v. Matteo, 772 F. Supp.
2d 377, 403 (D. Conn. 2011)). Prior to the Supreme Court's
decision in Ashcroft v. Iqbal, 556 U.S. 662 (2009), the Second
Circuit required a plaintiff to allege one of the following
categories for supervisory liability under § 1983:
(1) the defendant participated directly
in the alleged constitutional violation,
(2) the defendant, after being informed
of the violation through a report or
appeal, failed to remedy the wrong,
(3) the defendant created a policy or
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custom under which unconstitutional
practices occurred, or allowed the
continuance of such a policy or
custom, (4) the defendant was grossly
negligent in supervising subordinates
who committed the wrongful acts, or
(5) the defendant exhibited deliberate
indifference to the rights of [persons]
by failing to act on information
indicating that unconstitutional acts
were occurring.
Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995).
In order to succeed on his Monell and supervisory liability
claims, a plaintiff must first “identify obvious and severe
deficiencies” in the policies of the municipal and supervisory
defendants and “show a causal relationship” between
those deficiencies and his alleged deprivations. Reynolds
v. Giuliani, 506 F.3d 183, 193 (2d Cir. 2007). However,
to the extent that a plaintiff premises his claims on a
failure to train or supervise, such failure “may constitute
an official policy or custom [only] if the failure amounts
to ‘deliberate indifference’ to the rights of those with
whom the city employees interact.” Wray, 490 F.3d at 195.
Similarly, a supervisory defendant is liable only for the
creation or continuation of policy that leads to a pattern
of unconstitutional conduct or if he demonstrated deliberate
indifference in failing to act on information that a pattern of
unconstitutional conduct was occurring. See Colon, 58 F.3d
at 873.
“To establish deliberate indifference a plaintiff must show that
a policymaking official was aware of constitutional injury, or
the risk of constitutional injury, but failed to take appropriate
action to prevent or sanction violations of constitutional
rights.” Jones, 691 F.3d at 81.
A pattern of similar constitutional
violations by untrained employees is
“ordinarily necessary” to demonstrate
deliberate indifference for purposes of
failure to train [or supervise because]
[w]ithout notice that a course of
training is deficient in a particular
respect, decisionmakers can hardly
be said to have deliberately chosen
a training program that will cause
violations of constitutional rights.
*5 Connick v. Thompson, 563 U.S. 51, 62 (2011) (quoting
Bd. of Cty. Comm'rs of Bryan Cty. v. Brown, 520 U.S. 397,
409, 117 S. Ct. 1382, 137 L. Ed. 2d 626 (1997)). “[W]hen
city policymakers are on actual or constructive notice that
a particular omission in their training program causes city
employees to violate citizens’ constitutional rights, the city
may be deemed deliberately indifferent if the policymakers
choose to retain that program.” Id. at 61 (citation omitted). 1
D. Cayuga County District Attorney's Office and
Auburn Police Department
Plaintiff names the Cayuga County District Attorney's Office
as a named Defendant in this case. The caselaw is clear,
however, that a district attorney's office is not an entity subject
to suit under 42 U.S.C. § 1983. See Michels v. Greenwood
Lake Police Dep't, 387 F. Supp. 2d 361, 367 (S.D.N.Y.
2005) (citing cases); Griffith v. Sadri, No. 07-CV-4824,
2009 WL 2524961, *8 (E.D.N.Y. Aug. 14, 2009). Similarly,
Plaintiff has listed the Auburn Police Department as an entity
responsible for several of the alleged constitutional violations.
See Dkt. No. 5 at ¶¶ 51-82. As with the District Attorney's
Office, the Auburn Police Department (which is not listed as
a Defendant in the caption of the complaint), the Court finds
that it must be dismissed because a police department is not
an independent, suable entity separate from the municipality
in which the police department is located. See Jenkins v.
City of New York, 478 F.3d 76, 93 (2d Cir. 2007) (citation
omitted); Krug v. City of Rennselaer, 559 F. Supp. 2d 223, 247
(N.D.N.Y. 2008) (citing cases); Koulkina v. City of New York,
559 F. Supp. 2d 300, 315 (S.D.N.Y. 2008) (citing cases).
Accordingly, the Court dismisses Plaintiff's claims against the
Cayuga County District Attorney's Office and the Auburn
Police Department.
E. False Arrest
In their motion to dismiss, Defendants contend that, based
on Plaintiff's own allegations, probable cause was present
to believe that he committed the offense for which he was
arrested. See Dkt. No. 9-1 at 14-16. Defendants claim that
Plaintiff “admits that he was charged with violating duly
issued orders of protection issued for Linda Fitzsimmons and
Lee Joyner, who reside at 140 Wall Street in the City of
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Auburn. See id. at 15 (citing Dkt. No. 5 at ¶ 24). Defendants
further claim that Plaintiff “admits he was ‘driven by’ 140
Wall Street on August 10, 2018.” Id. (citing Dkt. No. 5 at ¶
25). Defendants contend that the fact that Plaintiff claims that
he was not driving the vehicle “has no bearing on whether the
order of protection was reasonably deemed violated by police
authorities, and Plaintiff is careful not to deny that he was
in fact at 140 Wall Street on the date in question, which is a
per se violation of the order.” Id. In response, Plaintiff argues
that since he “was arrested for traveling on a public road in
route to his own home and in violation of no Order, law or
ordinance and, as it cannot be denied that he was ‘no billed’
by the Grand Jury, it would seem plausible to this writer that
any court would agree to the plausibility of Plaintiff's claims.”
Dkt. No. 10 at 16.
*6 In assessing Fourth Amendment claims of false arrest
brought under Section 1983, courts generally look to the law
of the state in which the arrest is alleged to have occurred. See
Russo v. City of Bridgeport, 479 F.3d 196, 203 (2d Cir. 2007)
(citation omitted). To prevail on a false arrest claim under
New York law, a plaintiff has to prove the following: “(1) the
defendant intended to confine the plaintiff, (2) the plaintiff
was conscious of the confinement, (3) the plaintiff did not
consent to the confinement and (4) the confinement was not
otherwise privileged.” Singer v. Fulton Cnty. Sheriff, 63 F.3d
110, 118 (2d Cir. 1995) (alteration and internal quotation
marks omitted) (quoting Broughton v. State, 37 N.Y.2d 451,
456, 373 N.Y.S.2d 87, 335 N.E.2d 310 (1975)); see also
Ackerson v. City of White Plains, 702 F.3d 15, 19 (2d Cir.
2012) (outlining the elements of false arrest claims). “The
existence of probable cause to arrest constitutes justification
and ‘is a complete defense to an action for false arrest.’ ”
Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996) (quoting
Bernard v. United States, 25 F.3d 98, 102 (2d Cir. 1994)); see
also Ackerson, 702 F.3d at 19-20 (citing Weyant, 101 F.3d at
852). “A police officer has probable cause for an arrest when
he has ‘knowledge or reasonably trustworthy information
of facts and circumstances that are sufficient to warrant a
person of reasonable caution in the belief that the person
to be arrested has committed or is committing a crime[.]’ ”
Swartz v. Insogna, 704 F.3d 105, 111 (2d Cir. 2013) (quoting
Weyant, 101 F.3d at 852); Gonzalez v. City of Schenectady,
728 F.3d 149, 155 (2d Cir. 2013) (same). Such knowledge
or information can be based on information provided by an
eyewitness, unless the circumstances would raise a doubt as
to the eyewitness’ veracity. See Curley v. Vill. of Suffern, 268
F.3d 65, 70 (2d Cir. 2001) (citing Singer, 63 F.3d at 119). The
question is whether the facts known to the arresting officer, at
the time of the arrest, objectively provided probable cause to
support the arrest. See Gonzalez, 728 F.3d at 155.
In the present matter, the Court finds that Defendants’ motion
to dismiss Plaintiff's false arrest claim must be denied as to
Defendant Spinelli. The complaint sufficiently alleges, albeit
barely, that Defendant Spinelli lacked probable cause to arrest
Plaintiff for the crime of Criminal in the First Degree. Indeed,
it is unclear from the complaint whether Plaintiff's conduct
was, in fact, in violation of the order of protection. 2
However, to the extent that Plaintiff attempts to assert a
false arrest claim against any other named Defendant, the
claim must be dismissed. Plaintiff's complaint is devoid
of any facts that would permit the Court to find that any
other Defendant was personally involved in the alleged false
arrest. Aside from conclusory allegations merely reciting
the underlying law, Plaintiff fails to include any facts that
plausibly allege the personal involvement of any municipal
or supervisory Defendant. For example, Plaintiff alleges that
“Defendant Butler, Defendant City and Defendant County
have created and tolerated an atmosphere of lawlessness, and
have developed and maintained long-standing, department-
wide customs, law enforcement related policies, procedures,
customs, practices, and/or failed to properly train and/or
supervise its officers in a manner amounting to deliberate
indifference to the constitutional rights of Plaintiff and of the
public.” Dkt. No. 78 at ¶ 78. While this allegation accurately
reflects what is required to hold municipal and supervisory
officials personally liable for the acts of other, the simple
recitation of the relevant law is insufficient to withstand a
motion to dismiss. Rather, Plaintiff was required to allege
facts, specific to his case, demonstrating how these municipal
and supervisory Defendants were personally involved in the
alleged unconstitutional conduct, which he has failed to do.
Simply put, the legal conclusions in Plaintiff's complaint,
devoid of any supporting facts, fail to plausibly allege
supervisory or municipal liability as to this claim.
*7 Accordingly, the Court denies Defendants’ motion to
dismiss Plaintiff's false arrest claim as to Defendant Spinelli.
F. Malicious Prosecution
In their motion to dismiss, Defendants argue that Plaintiff's
malicious prosecution must be dismissed because the
complaint fails to set forth facts plausibly alleging that the
prosecution was initiated without probable cause or that any
named Defendant acted with the requisite malice. See Dkt.
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No. 9-1 at 16-17. In response, Plaintiff states as follows: “As
the plaintiff was arrested for traveling on a public road in
route to his own home and in violation of no Order, law
or ordinance, as it cannot be denied that he was ‘no billed’
by the Grand Jury and as he spent 53 days in jail for no
reason whatsoever, it would seem plausible to this writer
that any court would agree to the plausibility of Plaintiff's
claims.” Dkt. No. 10 at 17 (citing Swierkiezicz v. Sorema, 534
U.S. 506 (2002)). Plaintiff brings his malicious prosecution
claim against the City of Auburn, Auburn Police Department,
Cayuga County, and Defendant Butler. See Dkt. No. 5 at ¶¶
51-82. While Plaintiff may be confident in the viability of his
claim, this Court finds that Plaintiff has failed to plausibly
allege facts supporting a claim for malicious prosecution. 3
To prevail on a Section 1983 claim for malicious prosecution,
“a plaintiff must show a violation of his rights under the
Fourth Amendment ... and must establish the elements of a
malicious prosecution claim under state law.” Manganiello v.
City of New York, 612 F.3d 149, 161 (2d Cir. 2010) (citations
omitted). Under New York law, a plaintiff must plausibly
allege four elements to support a malicious prosecution
claim: “ ‘(1) the initiation or continuation of a criminal
proceeding against plaintiff; (2) termination of the proceeding
in plaintiff's favor; (3) lack of probable cause for commencing
the proceeding; and (4) actual malice as a motivation for
defendant's actions.’ ” Id. (quotation and other citations
omitted); see also Dufort v. City of New York, 874 F.3d
338, 350 (2d Cir. 2017) (quotation omitted). Initiating a
criminal proceeding against a person without probable cause,
coupled with a deprivation of liberty, is a Fourth Amendment
violation. See Murphy v. Lynn, 118 F.3d 938, 944-45 (2d Cir.
1997) (citation omitted).
*8 The Second Circuit has held that although “police
officers do not generally “commence or continue” criminal
proceedings against defendants, a claim for malicious
prosecution can still be maintained against a police officer if
the officer is found to ‘play[ ] an active role in the prosecution,
such as giving advice and encouragement or importuning the
authorities to act.’ ” Bermudez v. City of New York, 790 F.3d
368, 377 (2d Cir. 2015) (quotations omitted). “This element
might be satisfied by, for example, showing that an officer
generated witness statements or was regularly in touch with
the prosecutor regarding the case.” Id. (citation omitted).
Recently, the New York Court of Appeals acknowledged that
it has “ ‘never elaborated on how a plaintiff in a malicious
prosecution case demonstrates that the defendant commenced
or continued the underlying criminal proceeding.’ ” Torres
v. Jones, 26 N.Y.3d 742, 760-61 (2016) (quotation omitted).
“But, by suggesting that a defendant other than a public
prosecutor may be liable for supplying false information to
the prosecutor in substantial furtherance of a criminal action
against the plaintiff, we have implicitly recognized that such
conduct may, depending on the circumstances, constitute the
commencement or continuation of the prosecution.” Id. at 761
(citations omitted); see also Colon v. City of New York, 60
N.Y.2d 78, 82 (1983) (noting that proof establishing “that the
police witnesses” have falsified evidence may create liability
for malicious prosecution); Hopkinson v. Lehigh Val. R.R. Co.,
249 N.Y. 296, 300-01 (1928) (noting that the falsification of
evidence and presentation of that evidence to the prosecutor
can constitute commencement of a prosecution).
1. Initiation of Criminal Prosecution
In the present matter, the Court finds that Plaintiff's malicious
prosecution claim must be dismissed. Initially, the Court
finds that Plaintiff has failed to adequately allege that any
named Defendant initiated that the prosecution against him.
While Defendant Spinelli filed the criminal complaint against
him, nothing in the complaint suggests his participation
in Plaintiff's prosecution beyond that. Nearly all cases in
which law enforcement officers were found to have initiated
or continued a prosecution for purposes of a malicious
prosecution claim involve officers who provided knowingly
false and/or fabricated evidence to unwitting prosecutors.
See, e.g., Ricciuti v. N.Y.C. Transit Auth., 124 F.3d 123, 130
(2d Cir. 1997); Ramos v. City of New York, 285 A.D.2d
284, 299 (1st Dep't 2001). There is a rebuttable presumption
that criminal proceedings are initiated by prosecutors, not
arresting officers. See Mitchell v. Victoria Home, 434 F. Supp.
2d 219, 228 (S.D.N.Y. 2006) (citation omitted). “[I]n the
absence of evidence that the police officer misled or pressured
the official who could be expected to exercise independent
judgment,” a claim of malicious prosecution against the
officer must fail. See Townes v. City of New York, 176 F.3d
138, 147 (2d Cir. 1999) (citations omitted).
Plaintiff's complaint is devoid of any allegations that
Defendant Spinelli engaged in any of the conduct identified
above that would permit the Court to find that Plaintiff
plausibly alleged that any party other than the District
Attorney initiated the prosecution against him. As such, the
Court finds that Plaintiff's malicious prosecution claim is
subject to dismissal.
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2. Malice
Plaintiff's complaint is also devoid of any facts supporting
an inference that the prosecution was instituted with malice.
As Defendants correctly note, Plaintiff misconstrues the
standard on a motion to dismiss. While Plaintiff is not
required to “prove” that Defendants acted in a malicious
manner to sustain his claim, he is certainly required to plead
enough facts that would make such a conclusion plausible.
Plaintiff's complaint fails to plead any facts that would
support the inference that any named Defendant (or their
employees) acted with the requisite malice to support a
malicious prosecution claim. Rather, the complaint simply
alleges that he was subjected to normal processes of law. The
number of days that Plaintiff spent in jail is irrelevant to this
consideration, as is the fact that he was “no billed” by the
Grand Jury. Plaintiff does not allege that he had previous
interactions with any of the named Defendants, or that his
interactions with them during his arrest and subsequent
prosecution would indicate a malicious intent. Finally, as
to the supervisory and municipal Defendants, Plaintiff has
failed to put forth any facts in support of this claim. Rather,
the complaint contains nothing but legal conclusions without
providing any basis for the Court to conclude that Plaintiff has
plausibly alleged a malicious prosecution claim against these
Defendants.
*9 Accordingly, the Court finds that Plaintiff's malicious
prosecution claim is subject to dismissal on this alternative
ground.
3. Prosecutorial Immunity
Prosecutors sued under 42 U.S.C. § 1983 enjoy absolute
immunity “ ‘from claims for damages arising out of
prosecutorial duties that are “intimately associated with
the judicial phase of the criminal process.” ’ ” Okongwu
v. County of Erie, No. 14CV832, 2017 WL 2686454, *3
(W.D.N.Y. June 22, 2017) (quoting Doe v. Phillips, 81 F.3d
1204, 1209 (2d Cir. 1996) (quoting Imbler v. Pachtman, 424
U.S. 409, 430 (1976))). The prosecutor enjoys this absolute
immunity because he or she is acting in a quasi-judicial
capacity. See Okongwu v. County of Erie, No. 14CV832,
2018 WL 1383233, *3 (W.D.N.Y. Mar. 19, 2018). The
function performed by the prosecutor defines the scope of
this immunity. See Imbler, 424 U.S. at 430; Warney, 587 F.3d
at 121. Acts of advocacy before a court, or preparation to
advocate, are absolutely immune, Imbler, 424 U.S. at 430-31;
see also Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993),
while administrative duties or investigatory functions are not
so immune, Imbler, 424 U.S. at 431 n.33; Buckley, 509 U.S. at
273; Warney, 587 F.3d at 121. “This protection encompasses
‘all of their activities that can fairly be characterized as
closely associated with the conduct of litigation or potential
litigation.’ ” Peters, 848 F. Supp. 2d at 385 (quoting Barrett v.
United States, 798 F.2d 565, 571-72 (2d Cir. 1986)). As noted
by the Second Circuit, “thus, to establish [absolute] immunity,
the ‘ultimate question’ is ‘whether the prosecutors have
carried their burden of establishing that they were functioning
as “advocates” when they engaged in the challenged conduct.’
” Warney, 587 F.3d at 121 (quoting Doe v. Phillips, 81 F.3d
1204, 1209 (2d Cir. 1996)).
Absolute immunity extends from the initiation of a
prosecution and presenting a case at trial, Boria v. Hicks, No.
5:17-CV-00486, 2017 WL 2983304, *4 (N.D.N.Y. June 14,
2017), through the decision to end it, see Okongwu, 2017
WL 2686454, at *4, as well as post-conviction defense of
proceedings and the decision whether to vacate a conviction,
Warney, 587 F.3d at 123; Peters, 848 F. Supp. 2d at 387.
Absolute immunity applies in the preparation for the initiation
of judicial proceedings, but not to the investigative or
administrative duties of a prosecutor. See Warney, 587 F.3d at
122. In Peters, the court listed activities that are investigative
or administrative that do not deserve absolute immunity,
such as orchestrating a sting operation, authorizing wiretaps,
coercing confidential informant to consent to a wire, releasing
information to the media, assisting in the execution of a
warrant, or supervising and interacting with law enforcement
agents to acquire evidence. See Peters, 848 F. Supp. 2d at 386
(citing cases).
In the present matter, the Court finds that Defendant
Budelmann, as Cayuga County District Attorney is entitled
to absolute prosecutorial immunity. In the complaint, Plaintiff
alleges that “[o]n October 4, 2018, Defendant district attorney
presented Plaintiff's criminal charges to the Grand Jury of
Cayuga County where the grand jury ‘No Billed’ the case;
and Plaintiff was released from his illegal confinement at
the Cayuga County Jail.” Dkt. No. 5 at ¶¶ 26, 91. Further,
Plaintiff claims that “Defendant district attorney knew at the
time of Plaintiff's case being presented to the Grand Jury of
Cayuga County that he would not prevail due to the lack of
probable cause.” Id. at ¶ 29. These allegations make clear
that Defendant Budelmann has been sued relating to his role
in presenting the case to the grand jury; conduct for which
he is entitled to absolute prosecutorial immunity. See Hill
v. City of New York, 45 F.3d 653, 661-62 (2d Cir. 1995)
(holding that “that prosecutors are immune from § 1983
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liability for their conduct before a grand jury”) (citations
omitted); Bernard v. County of Suffolk, 356 F.3d 495, 505 (2d
Cir. 2004) (citations omitted). Accordingly, Plaintiff's claim
of malicious prosecution against Defendant Budelmann is
subject to dismissal on this alternative ground.
*10 Finally, to the extent that Plaintiff seeks to impute
the conduct of Defendant Budelmann to Cayuga County, the
claim must necessarily be dismissed. The Second Circuit
Court of Appeals has unequivocally held that “prosecutorial
acts may not fairly be said to represent official policy of
the County,” because “[w]hen prosecuting a criminal matter,
a district attorney in New York State, acting in a quasi-
judicial capacity, represents the State not the county.” Baez
v. Hennessy, 853 F.2d 73 (2d Cir. 1988) (internal quotation
omitted); see also Doe v. Smith, 704 F. Supp. 1177, 1184
(S.D.N.Y. 1988). Since Defendant Budelmann was acting on
behalf of the State of New York, and not Cayuga County, any
alleged misconduct on Defendant Budelmann's part cannot be
imputed to Cayuga County.
G. Negligent/Intentional Infliction of Emotional Distress
In his sixth cause of action, Plaintiff alleges claims of
negligent and intentional infliction of emotional distress
against Defendants Butler, Spinelli, and Budelmann. See Dkt.
No. 5 at ¶¶ 96-98. Defendants contend these claims fail as a
matter of law. See Dkt. No. 9-1 at 19-20.
As to the claim of negligent infliction of emotional distress,
it is well settled that a “ ‘plaintiff seeking damages for an
injury resulting from a wrongful arrest and detention may
not recover under broad general principles of negligence ...
but must proceed by way of the traditional remedies of false
arrest and imprisonment.’ ” Greenaway v. Cty. of Nassau,
97 F. Supp. 3d 225, 239 (E.D.N.Y. 2015) (quoting Secard
v. Dep't of Soc. Servs. of Cnty. of Nassau, 204 A.D.2d 445,
612 N.Y.S. 2d 167, 168 (2d Dep't 1994)). This is precisely
what Plaintiff is attempting to do here. Tacking on a claim
for negligent infliction of emotional distress without any
other facts or assertions is insufficient under the relevant law.
Moreover, even if this claim could be considered independent
of Plaintiff's false arrest claim, it is still subject to dismissal
because Plaintiff has not alleged any facts demonstrating that
Defendants breached a duty owed to Plaintiff. As such, the
Court grants Defendants’ motion to dismiss as to Plaintiff's
claim of negligent infliction of emotional distress.
As to the intentional infliction of emotional distress claim,
it too must be dismissed. “Intentional infliction of emotional
distress has four elements: ‘(i) extreme and outrageous
conduct; (ii) intent to cause, or disregard of a substantial
probability of causing, severe emotional distress; (iii) a causal
connection between the conduct and injury; and (iv) severe
emotional distress.’ ” Greenaway, 97 F. Supp. 3d at 239-40
(quoting Howell v. N.Y. Post Co., Inc., 81 N.Y.2d 115, 596
N.Y.S. 2d 350, 612 N.E. 2d 699, 702 (1993)). “The ‘extreme
and outrageous conduct’ must ‘go beyond all possible bounds
of decency’ and be ‘atrocious, and utterly intolerable in
a civilized community.’ ” Id. (quotation and other citation
omitted).
Here, Plaintiff claims that Defendants Budelmann, Spinelli,
and Butler engaged in “extreme and outrageous conduct,
which intentionally and/or negligently caused severe
emotional distress to Plaintiff.” Dkt. No. 5 at ¶ 97. Notably
absent from the complaint is any explanation what this
“extreme and outrageous conduct” was. “ ‘Liability has been
found only where the conduct has been so outrageous in
character, and so extreme in degree, as to go beyond all
possible bounds of decency, and to be regarded as atrocious,
and utterly intolerable in a civilized community.’ ” Murphy v.
American Home Products Corp., 58 N.Y.2d 293, 302 (1983)
(quotation omitted). The threadbare facts alleged by Plaintiff,
which include the fact that he was arrested and eventually
released after the grand jury refused to indict, fall far short of
this strict standard.
*11 Accordingly, the Court grants Defendants’ motion
to dismiss Plaintiff's claims for negligent and intentional
infliction of emotional distress.
H. Negligence
In his seventh cause of action, Plaintiff asserts a claim for
negligence. See Dkt. No. 5 at ¶¶ 100-04. In this claim, Plaintiff
argues that his arrest, Defendants’ failure to “follow the
criminal law of the State of New York,” and Plaintiff's fifty-
three days of incarceration, were the product of Defendants’
negligence. See id.
“To prevail on a claim for negligence under New York law,
a plaintiff must establish ‘(1) the existence of a duty on
the defendant's part as to the plaintiff; (2) a breach of that
duty; and (3) resultant injury to the plaintiff.’ ” Frederique v.
County of Nassau, 168 F. Supp. 3d 455, 485 (E.D.N.Y. 2016)
(quotation omitted). “However, ‘[u]nder New York law, harm
predicated on an intentional act may not give rise to a claim
of negligence.’ ” Id. (quotation and other citation omitted).
Moreover, it is well settled that, “[u]nder New York law, a
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plaintiff may not recover under general negligence principles
for a claim that law enforcement officers failed to exercise the
appropriate degree of care in effecting an arrest or initiating
a prosecution.” Bernard v. United States, 25 F.3d 98, 102
(2d Cir. 1994) (citing Boose v. City of Rochester, 71 A.D.2d
59, 421 N.Y.S.2d 740, 743 (4th Dept. 1979)) (other citation
omitted).
In the present matter, the Court finds that Plaintiff's
negligence claim must be dismissed as it is simply redundant
of Plaintiff's claims of false arrest, false imprisonment,
and malicious prosecution. Accordingly, the Court grants
Defendants’ motion to dismiss as to this claim.
I. Deliberate Indifference to Serious Medical Needs
In his eighth cause of action, Plaintiff claims that “Defendant
Medical Staff and Defendant Cayuga County Sheriff's
Department” were deliberately indifferent to his medical care
and treatment after he was injured when a water pipe broke
outside his cell on August 31, 2018. See Dkt. No. 5 at ¶¶
105-14.
A pretrial detainee's claims of unconstitutional conditions of
confinement are governed by the Due Process Clause of the
Fourteenth Amendment, rather than the Cruel and Unusual
Punishments Clause of the Eight Amendment. See Darnell v.
Pineiro, 849 F.3d 17, 29 (2d Cir. 2017) (citations omitted).
A pretrial detainee's claims are evaluated under the Due
Process Clause because, “ ‘[p]retrial detainees have not been
convicted of a crime and thus ‘may not be punished in any
manner — neither cruelly and unusually nor otherwise.’ ” Id.
(quotations omitted).
“A pretrial detainee may establish a § 1983 claim for
allegedly unconstitutional conditions of confinement by
showing that the officers acted with deliberate indifference to
the challenged conditions.” Darnell, 849 F.3d at 29 (citation
omitted). “This means that a pretrial detainee must satisfy
two prongs to prove a claim, an ‘objective prong’ showing
that the challenged conditions were sufficiently serious to
constitute objective deprivations of the right to due process,
and a ‘subjective prong’ — perhaps better classified as a
‘mens rea prong’ or ‘mental element prong’ — showing
that the officer acted with at least deliberate indifference to
the challenged conditions.” Id. “The reason that the term
‘subjective prong’ might be a misleading description is that,
as discussed below, the Supreme Court has instructed that
‘deliberate indifference’ roughly means ‘recklessness,’ but
‘recklessness’ can be defined subjectively (what a person
actually knew, and disregarded), or objectively (what a
reasonable person knew, or should have known).” Id. (citing
Farmer v. Brennan, 511 U.S. 825, 836-37, 114 S. Ct. 1970,
128 L. Ed. 2d 811 (1994)).
*12 Under both the Eighth and Fourteenth Amendments,
to establish an objective deprivation, “the inmate must show
that the conditions, either alone or in combination, pose
an unreasonable risk of serious damage to his health,”
which includes the risk of serious damage to “physical and
mental soundness.” Id. at 30 (citations omitted). “There is no
‘static test’ to determine whether a deprivation is sufficiently
serious; instead, ‘the conditions themselves must be evaluated
in light of contemporary standards of decency.’ ” Id. (quoting
Blissett v. Coughlin, 66 F.3d 531, 537 (2d Cir. 1995) (citing
Rhodes v. Chapman, 452 U.S. 337, 346, 101 S. Ct. 2392,
69 L. Ed. 2d 59 (1981))). For example, the Second Circuit
has “ ‘held that prisoners may not be deprived of their basic
human needs — e.g., food, clothing, shelter, medical care,
and reasonable safety — and they may not be exposed to
conditions that pose an unreasonable risk of serious damage
to [their] future health.’ ” Id. (quoting Jabbar v. Fischer, 683
F.3d 54, 57 (2d Cir. 2012)).
“ ‘[C]onditions of confinement may be aggregated to rise to
the level of a constitutional violation, but only when they
have a mutually enforcing effect that produces the deprivation
of a single, identifiable human need such as food, warmth,
or exercise.’ ” Darnell, 849 F.3d at 30 (quotations omitted).
“Unsanitary conditions, especially when coupled with other
mutually enforcing conditions, such as poor ventilation and
lack of hygienic items (in particular, toilet paper), can rise to
the level of an objective deprivation.” Id. (citations omitted).
The second element of a conditions of confinement claim
brought under the Due Process Clause of the Fourteenth
Amendment is the defendant's “deliberate indifference”
to any objectively serious condition of confinement. See
Darnell, 849 F.3d at 32. Courts have traditionally referred
to this second element as the “subjective prong.” “But
‘deliberate indifference,’ which is roughly synonymous with
‘recklessness,’ can be defined either ‘subjectively’ in a
criminal sense, or ‘objectively’ in a civil sense.” Id. As such,
the “subjective prong” might better be described as the “mens
rea prong” or “mental element prong.” Id.
Under the second prong of the deliberate indifference
analysis, the Court must consider whether the defendants
“acted intentionally to impose the alleged condition, or
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recklessly failed to act with reasonable care to mitigate the
risk that the condition posed to the pretrial detainee even
though [they] knew, or should have known, that the condition
posed an excessive risk to health or safety.” Darnell, 849 F.3d
at 35. Under this standard, the plaintiff “must prove that [the
defendants] acted intentionally or recklessly, and not merely
negligently.’ ” Id. at 36.
In the present matter, the Court finds that Plaintiff has failed
to plausibly allege a claim of deliberate indifference under
the Fourteenth Amendment. Initially, the Court notes that the
“medical staff” at the Cayuga County Jail were not named
as defendants in this action. Rule 10(a) requires a plaintiff
to “name all the parties” in the Complaint. See Fed. R. Civ.
P. 10(a). Although the naming of pseudonymous defendants
is permissible where a plaintiff requires discovery to learn
the true identities of the defendants, the plaintiff subsequently
must amend the complaint to reflect the discovered identities
and effect service on the named parties within the 120-day
time period set forth in Rule 4(m). See Petty v. Cty. of
Franklin, 478 F.3d 341, 345–46 (6th Cir. 2007).
Here, Plaintiff has not brought suit against any pseudonymous
defendants, and only makes reference to these unidentified
individuals in the body of the complaint. If Plaintiff had
intended to sue then-unknown members of the medical staff
at the jail, he should have brought suit against “John and/
or Jane Doe” defendants, who could be identified through
discovery. Upon obtaining their identities, Plaintiff would
then be required to amend his complaint to reflect the Doe
defendants’ identities. See Simmons v. District of Columbia,
750 F. Supp. 2d 43, 45 (D.D.C. 2011) (holding that a
plaintiff “may bring an action against unknown John Doe
defendants, but plaintiff must substitute named defendants
for those unknown defendants after the completion of
discovery”) (citations omitted); see also Estate of Rosenberg
by Rosenberg v. Crandell, 56 F.3d 35, 37 (8th Cir. 1995)
(holding that “[a]n action may proceed against a party whose
name is unknown if the complaint makes allegations specific
enough to permit the identity of the party to be ascertained
after reasonable discovery”). Here, Plaintiff has not brought
suit against unknown members of the medical staff at the
Cayuga County Jail or providing any facts that would permit
Defendants to assist in obtaining their identities. As such, the
only potential deliberate indifference claim asserted in the
complaint is a municipal liability claim against Defendant
Cayuga County.
*13 In his complaint, Plaintiff has alleged that a water pipe
burst outside his cell during the night, the water was turned
off, and at some point during the night it pooled near his cell's
toilet. See Dkt. No. 5 at ¶¶ 109-13. At sometime between 6:30
a.m. and 7:00 a.m., Plaintiff claims that he got out of bed to
use the toilet in his cell and slipped and fell on the wet floor.
See id. at ¶ 110. Plaintiff alleges that, when he fell, he hit his
head and neck on his bunk and his lower back on the floor,
causing severe injuries, including a herniated disc in his neck
and lower lumbar strain. See id. at ¶¶ 111-13. Plaintiff claims
that, “[a]fter the injury up and until Plaintiff was released
on October 4, 2018[,] Plaintiff was denied medical treatment
for his injuries that he suffered inclusive of medication and
treatment from a physician.” Id. at ¶ 114.
Initially, the Court notes that nothing in the complaint
indicates that Plaintiff's alleged injury was caused by a
municipal custom, policy, or usage, as is required to find a
plausible claim against Defendant Cayuga County. Rather,
Plaintiff claims that a water pipe leaked outside his cell during
the night and that a “correctional officer ... turn[ed] off the
water and clean[ed] up the water spill. At that time, there was
no water in Plaintiff's cell.” Dkt. No. 5 at ¶ 108. When the
second pipe leaked, some water entered Plaintiff's cell, which
caused Plaintiff to fall. See id. at ¶ 109. This isolated incident,
involving a bursting water pipe, is woefully insufficient
to plausibly allege municipal liability for Plaintiff's alleged
injury. See Connick, 131 S. Ct. at 1360; see also Plair v. City
of New York, 789 F. Supp. 2d 459, 470 (S.D.N.Y. 2011) (“[I]t
is well established that a single incident does not give rise
to an unlawful practice by subordinate officials so permanent
and well-settled as to constitute custom or usage”) (internal
quotation marks omitted); Giaccio v. City of New York, 308
Fed. Appx. 470, 472 (2d Cir. 2009) (finding that allegations
of, at most, four prior incidents of misconduct “falls far short
of establishing a practice that is ‘so persistent or widespread’
as to justify the imposition of municipal liability”) (internal
quotation marks omitted).
Even assuming that Plaintiff had asserted this claim against
an individually named Defendant, the claim would still
be dismissed. To satisfy the second prong of a deliberate
indifference claim, Plaintiff must plausibly allege facts
suggesting that a defendant “acted intentionally to impose the
alleged condition, or recklessly failed to act with reasonable
care to mitigate the risk that the condition posed to the pretrial
detainee even though [they] knew, or should have known,
that the condition posed an excessive risk to health or safety.”
Darnell, 849 F.3d at 35. At best, the facts set forth in the
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complaint describe negligence on the part of the correctional
staff, which is insufficient to support a claim of deliberate
indifference. See id. at 36.
Finally, to the extent that Plaintiff is basing his claim on the
alleged deprivation of medical care after his accident, Plaintiff
has failed to provide any factual basis in support of his
conclusory assertion that he “was denied medical treatment
for his injuries that he suffered inclusive of medication and
treatment from a physician.” Dkt. No. 5 at ¶ 114. The
complaint fails to allege that he brought his alleged injuries to
the attention of the correctional or medical staff at the Cayuga
County jail (or even identify any such individual).
Based on the foregoing, the Court grants Defendants’ motion
to dismiss as to Plaintiff's deliberate indifference claim.
IV. CONCLUSION
After carefully the entire record in this matter, parties’
submissions and the applicable law, and for the reasons stated
herein, the Court hereby
*14 ORDERS that Defendants’ motion to dismiss (Dkt. No.
9) is GRANTED in part and DENIED in part; 4 and the
Court further
ORDERS that Defendants City of Auburn, Butler, Cayuga
County, Cayuga County District Attorney's Office, and
Budelmann are TERMINATED as Defendants in this action;
and the Court further
ORDERS that Defendants’ letter motion a portion of the
argument raised in their motion to dismiss (Dkt. No. 15) is
DENIED as moot; and the Court further
ORDERS that the Clerk of the Court shall serve a copy
of this Memorandum-Decision and Order on the parties in
accordance with the Local Rules.
IT IS SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2020 WL 1904088
Footnotes
1 As discussed in more detail below, Plaintiff's complaint fails to set forth any facts sufficient to find either
supervisory or municipal liability against any of the named Defendants for any of the listed causes of action.
2 Although the Court is permitting this claim against Defendant Spinelli to survive, the Court has serious
doubts about whether the claim would survive a properly supported motion for summary judgment. If the
Court were to consider the contents of the criminal complaint, supporting affidavit, and Defendant Spinelli's
narrative, the claim would undoubtedly be dismissed. This, however, highlights why the Court believes that
it is inappropriate to rely on the contents of these documents at this stage. Without the benefit of discovery,
Plaintiff has been unable to question the veracity of the statements contained in those documents. That
being said, the criminal complaint and affidavits paint a much less sympathetic picture than the one set out
in Plaintiff's complaint.
3 Throughout his response, Plaintiff repeatedly states that “the Court is respectfully reminded that it may dismiss
a complaint only if it is clear that no relief could be granted under any set of facts that could be proved
consistent with the allegations.” See, e.g., Dkt. No. 10 at 17, 18 (citing Hishon v. King & Spalding, 467 U.S. 69,
73). Further, Plaintiff repeatedly contends that he “has no duty at this stage to prove his case.” Id. These basic
tenets are not in dispute. What Plaintiff fails to appreciate, however, is that a complaint must be supported
by facts specific to his case, not merely broad assertions of the relevant law poorly disguised as facts. For
example, Plaintiff alleges that Defendants engaged in “extreme and outrageous conduct,” but fails to explain
how any of the conduct alleged could possibly be considered extreme and outrageous. Further, Plaintiff
seems to be operating under the assumption that the Court is required to use its imagination to come up
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with a hypothetical set of facts that could have been pled that would render the claims plausible. Iqbal and
Twombly, however, place no such burden on the Court. Rather, it is incumbent on the plaintiff to set forth the
necessary facts specific to his or her case to render the asserted claims plausible.
4 As a result of this Memorandum-Decision and Order, the only remaining claim is Plaintiff's false arrest claim
against Defendant Spinelli.
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
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King-Knight v. New York, Slip Copy (2026)
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2026 WL 523067
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Markus KING-KNIGHT, Plaintiff,
v.
State of NEW YORK; Correction Officer Nicholas E.
Fleury; Correction Officer Austin R. Martin; Correction
Officer Joshua S. Allen; Correction Officer Lukas T.
Benway; Correction Officer Logan T. Hayes; Sergeant
Jarred S. Bullock; Registered Nurse Brenda Holcombe;
Registered Nurse Christy Conklin; Physician Assistant
Cosette Witty-Lewis; and John Doe and Jane Doe,
the names John and Jane Doe being fictitious, as
the true names are presently unknown, Defendants.
9:25-CV-0317 (GTS/DJS)
|
Signed 02/25/2026
Attorneys and Law Firms
UGOCHUKWU UZOH, ESQ., UGO UZOH, P.C., Counsel
for Plaintiff, 56 Willoughby Street, Third Floor, Brooklyn,
NY 11201
PATRICK R. BLOOD, ESQ., Assistant Attorney General,
HON. LETITIA JAMES, NEW YORK STATE ATTORNEY
GENERAL, Counsel for Defendants, 300 South State Street,
Suite 300, Syracuse, NY 13202
DECISION and ORDER
GLENN T. SUDDABY, United States District Judge
*1 Currently before the Court, in this prisoner civil rights
action filed by Markus King-Knight (“Plaintiff”) against the
State of New York, Nicholas E. Fleury, Austin R. Martin,
Joshua S. Allen, Lukas T. Benway, Logan T. Hayes, Jarred S.
Bullock, Brenda Holcombe, Christy Conklin, Cosette Witty-
Lewis, and John and Jane Doe Defendants, are the following
two motions: (1) Defendant State of New York's motion to
dismiss for lack of subject-matter jurisdiction pursuant to
Fed. R. Civ. P. 12(b)(1); and (2) Defendant Fleury, Martin,
Allen, Benway, Hayes, Bullock, Holcombe, Conklin, and
Witty-Lewis’ motion to dismiss for failure to state a claim
pursuant to Fed. R. Civ. P. 12(b)(6). (Dkt. Nos. 20, 23.) For
the reasons set forth below, Defendant State of New York's
motion is denied as moot as a result of Plaintiff's withdrawal
of his claims against it, 1 and the other Defendants’ motion is
granted in part and denied in part.
I. RELEVANT BACKGROUND
A. Plaintiff's Original Complaint and Proposed
Amended Complaint
Generally, in his original Complaint, Plaintiff asserts four
claims arising from his confinement at Upstate Correctional
Facility: (1) a claim of excessive force against Defendants
Fleury, Martin, Allen, Benway, Hayes, and Bullock (the
“Officer Defendants”) arising from assaults occurring against
him on February 7, 2022; (2) a claim of First Amendment
retaliation against the Officer Defendants arising from his
filing of complaints and grievances; (3) a claim of deliberate
indifference against all of the individual Defendants arising
from (a) the failure to provide adequate medical treatment for
his injuries related to the assault and (b) acts of sexual abuse
and harassment against him by the Officer Defendants; and
(4) a claim for failure to intervene as to all of the individual
Defendants arising from the actions underlying his other
claims. (Dkt. No. 1.)
Plaintiff has also filed a proposed Amended Complaint that
is currently before this Court for consideration. The claims
raised in that proposed Amended Complaint are essentially
identical to those raised in the Complaint, although it adds
factual allegations in further support of those claims (which
are discussed below). (Dkt. No. 32, Attach. 2.)
B. Briefing on the Individual Defendants’ Motion to
Dismiss 2
1. Defendants’ Memorandum of Law
*2 Generally, in their motion, Defendants make four
arguments. (Djt. No. 23, Attach. 1.) First, Defendants argue
that Plaintiff has failed to adequately plead the personal
involvement of any Defendant because, other than naming
the Defendants and alleging that they are employed at
Upstate Correctional Facility, Plaintiff has not identified how
these individuals were involved in the alleged constitutional
violations. (Id. at 8-10.) 3
Second, Defendants argue that Plaintiff's Complaint is
inadequate also because he uses improper group pleading that
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fails to differentiate or identify the actions of each individual
Defendant. (Id. at 10-12.)
Third, Defendants argue that Plaintiff's First Amendment
retaliation claim should be dismissed because (a) he has
not alleged facts plausibly suggesting either the nature
of his alleged grievances or the fact that the relevant
Defendants were aware of those grievances, and (b) he has not
alleged facts plausibly suggesting that there was any causal
connection between the alleged grievances and the alleged
adverse actions. (Id. at 12-13.)
Fourth, Defendants argue that Plaintiff's deliberate
indifference claims should be dismissed because (a) again, he
has not alleged personal involvement as to each individual
Defendant, and (b) he has not alleged facts to plausibly
suggest that his “back pain, neck pain, deep gashes to his
face, and hearing loss” were sufficiently serious to render a
failure to provide treatment constitutionally significant or to
plausibly suggest that any of the named Defendants knew of
and disregarded an excessive risk to his health or safety. (Id.
at 13-17.)
2. Plaintiff's Opposition Memorandum of Law
Generally, in his opposition to Defendants’ motion, Plaintiff
makes five arguments. (Dkt. No. 33.) First, Plaintiff argues
that he has adequately alleged personal involvement as to each
of the individual Defendants because he has stated that the
“officer defendants” and the “nurse defendants” (terms which
have been specifically defined in the Complaint) engaged
in certain conduct, and it is “not inconceivable” for the
relevant individual Defendants in those groupings to have all
participated in the alleged assault and/or denial of medical
care. (Id. at 13-15.)
Second, Plaintiff argues that each named Defendant is
explicitly implicated in one or more of the relevant claims,
and it was not improper to identify the Defendants in
groupings where (as here) all of those grouped Defendants are
alleged to have engaged in the relevant conduct. (Id. at 16-18.)
Third, Plaintiff argues that he has adequately pleaded a
claim of First Amendment retaliation because (a) the filing
of lawsuits or grievances constitutes protected conduct, (b)
the alleged assault by the officers qualifies as an adverse
action, and (c) there is a causal connection between Plaintiff's
protected activity and the alleged assault. (Id. at 18-22.)
Fourth, Plaintiff argues that he has stated a claim for deliberate
indifference because he has plausibly alleged that he suffered
a sufficiently serious condition that Defendants failed to treat.
(Id. at 22.)
Fifth, Plaintiff argues that, should the Court find the
Complaint to be deficient, he should be permitted to file the
proposed Amended Complaint to cure those defects. (Id. at
22-24.)
3. Defendants’ Reply Letter-Brief
*3 Generally, in their reply letter-brief, Defendants make
two arguments. (Dkt. No. 36.) First, Defendants argue that
Plaintiff cannot amend his Complaint as a matter of right
pursuant to Fed. R. Civ. P. 15 because he did not move to
amend within 21 days of when Defendants filed their motion,
and therefore Plaintiff requires permission from this Court to
amend. (Id. at 1-2.) Defendants further argue that Plaintiff's
motion to amend is not compliant with this District's Local
Rules because he has not submitted a redline/strikeout version
of the proposed Amended Complaint with his motion. (Id. at
2.)
Second, Defendants argue that Plaintiff's motion to amend the
Complaint should be denied as futile because the proposed
amendments do not cure the defects identified by Defendants’
original arguments. (Id. at 2.)
4. Plaintiff's Supplementation of His
Opposition to Defendants’ Motion
After briefing on Defendants’ motion had closed, Plaintiff
filed (without prior leave of the Court) both an unsigned
copy of the proposed Amended Complaint and a “marked-
up copy” (i.e., a redline/strikeout version) of his proposed
Amended Complaint. (Dkt. No. 37.) Out of special solicitude
to Plaintiff as a civil rights litigant, the Court has accepted
this filing.
II. GOVERNING LEGAL STANDARD
It has long been understood that a dismissal for failure to
state a claim upon which relief can be granted, pursuant to
Fed. R. Civ. P. 12(b)(6), can be based on one or both of two
grounds: (1) a challenge to the “sufficiency of the pleading”
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under Fed. R. Civ. P. 8(a)(2); or (2) a challenge to the legal
cognizability of the claim. Jackson v. Onondaga Cty., 549 F.
Supp.2d 204, 211 nn. 15-16 (N.D.N.Y. 2008) (McAvoy, J.)
(adopting Report-Recommendation on de novo review).
Because such dismissals are often based on the first ground,
some elaboration regarding that ground is appropriate. Rule
8(a)(2) of the Federal Rules of Civil Procedure requires
that a pleading contain “a short and plain statement of the
claim showing that the pleader is entitled to relief.” Fed. R.
Civ. P. 8(a)(2) [emphasis added]. In the Court's view, this
tension between permitting a “short and plain statement” and
requiring that the statement “show[ ]” an entitlement to relief
is often at the heart of misunderstandings that occur regarding
the pleading standard established by Fed. R. Civ. P. 8(a)(2).
On the one hand, the Supreme Court has long characterized
the “short and plain” pleading standard under Fed. R. Civ. P.
8(a)(2) as “simplified” and “liberal.” Jackson, 549 F. Supp. 2d
at 212 n.20 (citing Supreme Court case). On the other hand,
the Supreme Court has held that, by requiring the above-
described “showing,” the pleading standard under Fed. R.
Civ. P. 8(a)(2) requires that the pleading contain a statement
that “give[s] the defendant fair notice of what the plaintiff's
claim is and the grounds upon which it rests.” Jackson, 549 F.
Supp. 2d at 212 n.17 (citing Supreme Court cases) (emphasis
added).
The Supreme Court has explained that such fair notice has
the important purpose of “enabl[ing] the adverse party to
answer and prepare for trial” and “facilitat[ing] a proper
decision on the merits” by the court. Jackson, 549 F. Supp.
2d at 212 n.18 (citing Supreme Court cases); Rusyniak v.
Gensini, 629 F. Supp. 2d 203, 213 & n.32 (N.D.N.Y. 2009)
(Suddaby, J.) (citing Second Circuit cases). For this reason,
as one commentator has correctly observed, the “liberal”
notice pleading standard “has its limits.” 2 Moore's Federal
Practice § 12.34[1][b] at 12-61 (3d ed. 2003). For example,
numerous Supreme Court and Second Circuit decisions exist
holding that a pleading has failed to meet the “liberal” notice
pleading standard. Rusyniak, 629 F. Supp. 2d at 213 n.22
(citing Supreme Court and Second Circuit cases); see also
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949-52 (2009).
*4 Most notably, in Bell Atlantic Corp. v. Twombly, the
Supreme Court reversed an appellate decision holding that
a complaint had stated an actionable antitrust claim under
15 U.S.C. § 1. Bell Atlantic Corp. v. Twombly, 550 U.S.
544 (2007). In doing so, the Court “retire[d]” the famous
statement by the Court in Conley v. Gibson, 355 U.S. 41,
45-46 (1957), that “a complaint should not be dismissed for
failure to state a claim unless it appears beyond doubt that the
plaintiff can prove no set of facts in support of his claim which
would entitle him to relief.” Twombly, 127 S. Ct. at 560-61,
577. Rather than turn on the conceivability of an actionable
claim, the Court clarified, the “fair notice” standard turns on
the plausibility of an actionable claim. Id. at 555-70. The
Court explained that, while this does not mean that a pleading
need “set out in detail the facts upon which [the claim is
based],” it does mean that the pleading must contain at least
“some factual allegation[s].” Id. at 555. More specifically, the
“[f]actual allegations must be enough to raise a right to relief
above the speculative level [to a plausible level],” assuming
(of course) that all the allegations in the complaint are true. Id.
As for the nature of what is “plausible,” the Supreme Court
explained that “[a] claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 129 S. Ct. 1937,
1949 (2009). “[D]etermining whether a complaint states a
plausible claim for relief ... [is] a context-specific task that
requires the reviewing court to draw on its judicial experience
and common sense.... [W]here the well-pleaded facts do not
permit the court to infer more than the mere possibility
of misconduct, the complaint has alleged–but it has not
show[n]–that the pleader is entitled to relief.” Iqbal, 129 S.
Ct. at 1950 (internal quotation marks and citations omitted).
However, while the plausibility standard “asks for more than
a sheer possibility that a defendant has acted unlawfully,” id.,
it “does not impose a probability requirement.” Twombly, 550
U.S. at 556.
Because of this requirement of factual allegations plausibly
suggesting an entitlement to relief, “the tenet that a court must
accept as true all of the allegations contained in the complaint
is inapplicable to legal conclusions. Threadbare recitals of
the elements of a cause of action, supported by merely
conclusory statements, do not suffice.” Iqbal, 129 S. Ct. at
1949. Similarly, a pleading that only “tenders naked assertions
devoid of further factual enhancement” will not suffice. Iqbal,
129 S. Ct. at 1949 (internal citations and alterations omitted).
Rule 8 “demands more than an unadorned, the-defendant-
unlawfully-harmed-me accusation.” Id.
Finally, a few words are appropriate regarding what
documents are considered when a dismissal for failure to
state a claim is contemplated. Generally, when contemplating
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a dismissal pursuant to Fed. R. Civ. P. 12(b)(6) or Fed. R.
Civ. P. 12(c), the following matters outside the four corners
of the complaint may be considered without triggering the
standard governing a motion for summary judgment: (1)
documents attached as an exhibit to the complaint or answer,
(2) documents incorporated by reference in the complaint
(and provided by the parties), (3) documents that, although
not incorporated by reference, are “integral” to the complaint,
or (4) any matter of which the court can take judicial notice
for the factual background of the case. 4
III. ANALYSIS
A. Whether Plaintiff's Original Complaint Has Met
the Requirements of Fed. R. Civ. P. 8
*5 After careful consideration, the Court answers the above
question in the affirmative for the reasons stated in Plaintiff's
opposition memorandum of law. See, supra, Part I.B.2 of this
Decision and Order. To those reasons, the Court adds the
following analysis.
Rule 8 of the Federal Rules of Civil Procedure requires
that a pleading that states a claim for relief must contain
“a short and plain statement of the grounds for the court's
jurisdiction,” as well as “of the claim showing that the pleader
is entitled to relief,” and a “demand for the relief sought.”
Fed. R. Civ. P. 8(a). “Courts have found that a complaint
that ‘relies on group pleading and fails to differentiate as
to which defendant was involved in the unlawful conduct is
insufficient to state a claim.’ ” McArdle-Bracelin v. Congress
Hotel, LLC, 20-CV-0861, 2022 WL 486805, at *6 (N.D.N.Y.
Feb. 17, 2022) (McAvoy, J.) (quoting Stewart v. Hudson Hall
LLC, 20-CV-0885, 2020 WL 8732875, at *7 [S.D.N.Y. Oct.
19, 2020]). “The purpose of this standard it to ‘give each
defendant fair notice of what the plaintiff's claim is and the
ground upon which it rests,’ ” and “[a] complaint fails this
standard when the pleading ‘lumps all defendants together
in each claim and provides no factual basis to distinguish
their conduct.’ ” McArdle-Bracelin, 2020 WL 8732875, at *6
(quoting Atuahene v. City of Hartford, 10 F. App'x 33, 34 [2d
Cir. 2001]) (internal alterations omitted). “Dismissal pursuant
to [Rule 8] ‘is usually reserved for those cases in which the
complaint is so confused, ambiguous, vague, or otherwise
unintelligible that its true substance, if any, is well disguised.’
” Wynder v. McMahon, 360 F.3d 73, 80 (2d Cir. 2004) (quoting
Salahuddin v. Cuomo, 861 F.2d 40, 42 [2d Cir. 1988]).
Defendants argue the manner in which Plaintiff has pleaded
the allegations here violates Fed. R. Civ. P. 8 through the
use of group pleading. However, in his original Complaint,
Plaintiff expressly provides a factual basis to distinguish
between the conduct of the “defendant officers” (defined
as “Defendants Fleury, Martin, Allen, Benway, Hayes, and
Bullock”) and the conduct of the “nurse defendants” (defined
as “Defendants Halcombe, Conklin, and Witty-Lewis”). (Dkt.
No. 1, at ¶¶ 17-18; see also Dkt. No. 32, Attach. 2, at
¶¶ 16-17.) Of note, related to his excessive force and
retaliation claims, Plaintiff alleges that it was the “defendant
officers” (and not the “nurse defendants”) who failed to
investigate his grievances, threatened to harm him, and later
assaulted him. (Dkt. No. 1, at ¶¶ 29-33; see also Dkt. No. 32,
Attach. 2, at ¶¶ 30-35.) Granted, a closer question is presented
by the fact that, in support of his deliberate indifference claim
in his original Complaint, Plaintiff alleges that the “nurse
defendants” conspired with the “defendant officers” to deny
him treatment (arguably blurring the distinction between the
conduct of one group and that of the other). (Dkt. No. 1, at
¶¶ 36-37.) However, the distinction between the officers and
nurses remains. (Id.) 5
*6 Under the circumstances, the Court has difficulty finding
that the original Complaint (especially when read in the light
most favorable to Plaintiff) “provides no factual basis to
distinguish the[ ] conduct [of Defendants]” for purposes of
Atuahene v. City of Hartford, 10 F. App'x 33, 34 (2d Cir.
2001).
For the above reasons, Defendants’ motion to dismiss based
on the use of group pleading is denied.
B. Whether Plaintiff's Original Complaint Has
Sufficiently Alleged the Personal Involvement of the
Individual Defendants
After careful consideration, the Court answers the above
question in the affirmative as to all the Officer Defendants
for Plaintiff's Eighth Amendment excessive force and First
Amendment retaliation claims, but in the negative as to
all Defendants for Plaintiffs’ Eighth Amendment deliberate
indifference to medical needs claim for the following reasons.
For claims brought pursuant to 42 U.S.C. § 1983,
“personal involvement of defendants in alleged constitutional
deprivations is a prerequisite to an award for damages.”
Moffitt v. Town of Brookfield, 950 F.2d 880, 886 (2d Cir.
1991). To show personal involvement, “a plaintiff must
directly plead and prove that ‘each Government-official
defendant, through the official's own individual actions, has
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violated the Constitution.’ ” Tangreti v. Bachmann, 983 F.3d
609, 612 (2d Cir. 2020) (quoting Iqbal, 556 U.S. at 676);
William v. Cnty. of Cayuga, 24-CV-1055, 2025 WL 2636142,
at *4 (N.D.N.Y. Sept. 12, 2025) (Coombe, J.) (“A plaintiff
must ‘allege a tangible connection between the acts of a
defendant and the injuries suffered.’ ”) (quoting Bass v.
Jackson, 790 F.2d 260, 263 [2d Cir. 1986]).
Beginning with his Eighth Amendment excessive force claim,
Plaintiff has alleged the following involvement by Defendants
Fleury, Martin, Allen, Benway, Hayes, and Bullock in his
original Complaint: (a) “[o]n or about December 2021, at
approximately 2:00 p.m., upon returning the plaintiff to his
cell, defendant officers forcibly pushed him inside his cell
and outside of the range of the surveillance camera and
gave him a severe beating with their fists and objects while
he remained handcuffed”; (b) “[i]n addition to the physical
assault, defendant officers verbally, racially, and sexually
assaulted the plaintiff by, among other things, using racial
epithets and forcibly grabbing, squeezing, and fondling his
private areas”; (c) “[f]ollowing the initial beating, plaintiff
was removed to a holding pen where he was further assaulted
by defendant officers”; and (d) “Plaintiff was caused to
sustain serious injuries including, but not limited to, back
pain, neck pain, deep gashes to his face, and a hearing
loss.” (Dkt. No. 1, at ¶¶ 31-34.) As discussed above related
to Defendants’ Rule 8 argument, the Complaint explicitly
defines the term “defendant officers” as meaning Defendants
Fleury, Martin, Allen, Benway, Hayes, and Bullock. (Dkt. No.
1, at ¶ 17; see also Dkt. No. 32, Attach. 2, at ¶ 16.)
Granted, Plaintiff's original Complaint draws no distinctions
between the roles of each of the “defendant officers” during
the alleged assaults. (See generally Dkt. No. 1.) However,
prisoners need not always identify with precision which
specific corrections officer committed which specific act
against him when multiple officers were present during an
alleged assault. See, e.g., McDay v. Eckert, 20-CV-0233,
2021 WL 4994093, at *7 (W.D.N.Y. June 25, 2021) (“At
this stage, a plaintiff need not establish which officer, among
a group of officers, directly participated in the attack and
which officer failed to intervene.”) (internal quotation marks
omitted) (citing cases).
*7 Simply stated, because his factual allegations can be
liberally construed as plausibly alleging that all Officer
Defendants engaged in the alleged assault, and because it
is plausible that all six of the Officer Defendant could have
assaulted Plaintiff in the manner alleged, Plaintiff was not
required to provide further specificity in order to allege the
personal involvement of all these Defendants. The Court
expresses no opinion, however, with regard to how a failure to
identify which Officer Defendant did what during the alleged
assaults would fare on a motion for summary judgment.
Turning to his First Amendment retaliation claim, Plaintiff
has alleged the following involvement by Defendants Fleury,
Martin, Allen, Benway, Hayes, and Bullock in his original
Complaint: (a) “[d]uring the period while he was incarcerated
at Upstate, and almost during the entire period of his wrongful
incarceration, the plaintiff usually sought to assert his rights,
and did file multiple grievances complaining about several
issues including, but not limited to, the conditions of his
confinement and the deprivation of his rights”; (b) “[o]n
or about August 6, 2021, the plaintiff, in addition to other
grievances, complained that several correctional officers
worked in concert with unknown individuals to cut and
assault him inside his cell”; (c) “Plaintiff did subsequently
file grievances complaining that defendant officers failed
to investigate his grievances and, instead, are physically
abusing him and/or are conspiring with other individuals
to assault and physically abuse him”; (d) “[i]n or about
December 2021, defendant officers began threatening the
plaintiff with serious bodily harm warning that he was “going
to get it” and that they were “out for him”; and (e) on
February 7, 2022, the Officer Defendants engaged in the
assault described previously. (Dkt. No. 1, at ¶¶ 27-33.)
As discussed above, Plaintiff has alleged facts plausibly
suggesting that the “defendant officers” (as that term is
defined in the Complaint) assaulted him after he submitted
multiple grievances, including grievances specifically about
conduct of those Officer Defendants, and that the assault
was the retaliatory action. (Dkt. No. 1, at ¶¶ 27-29, 47.)
Plaintiff has therefore sufficiently alleged that the relevant
Defendants were personally involved in events giving rise to
his retaliation claim. However, again, the Court expresses no
opinion with regard to whether this claim would survive a
motion for summary judgment.
Finally, as to his Eighth Amendment deliberate indifference
claim, Plaintiff alleged the following in his original
Complaint: (a) he was transferred to the correctional facility's
emergency room and, “[w]hile at the emergency room,
defendant officers conspired with the nurse defendants to
deny plaintiff the treatment needed to remedy his serious
medical conditions”; (b) “[d]efendant officers and the nurse
defendants” denied this treatment specifically by “refus[ing]
to provide the plaintiff with proper medical care or treatment;”
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and (c) Defendant Bullock was a sergeant (and thus superior
in rank to the other Defendant Officers). (Dkt. No. 1, at ¶¶ 12,
34-37.) These factual allegations are admittedly thin. 6
*8 Unlike the allegations related to the other claims, these
allegations are simply too vague and conclusory to plausibly
suggest that any of the Defendants were personally involved
in this violation of his constitutional rights.
For these reasons, the Court finds that Plaintiff's original
Complaint has alleged facts to plausibly suggest that the
Officer Defendants were personally involved related to his
Eighth Amendment excessive force and First Amendment
retaliation claims, but that he has not alleged facts to plausibly
suggest that any of the individual Defendants were personally
involved in the Eighth Amendment deliberate indifference
claim as to his medical needs.
C. Whether Plaintiff Has Stated a Claim for First
Amendment Retaliation
After careful consideration, the Court answers the above
question in the affirmative for the reasons stated in Plaintiff's
opposition memorandum of law. See, supra, Part I.B.2 of this
Decision and Order. To those reasons, the Court adds the
following analysis.
“To plead a First Amendment retaliation claim a plaintiff must
show: (1) he has a right protected by the First Amendment; (2)
the defendant's actions were motivated or substantially caused
by his exercise of that right; and (3) the defendant's actions
caused him some injury.” Dorsett v. Cnty of Nassau, 732
F.3d 157, 160 (2d Cir. 2013) (citing Curley v. Vill. of Suffern,
268 F.3d 65, 73 [2d Cir. 2001]); see also Dayter v. Fallon,
19-CV-0301, 2019 WL 1762583, at *5 (N.D.N.Y. Apr. 22,
2019) (Kahn, J.) (“To plead a First Amendment retaliation
claim under § 1983, a prisoner must allege that he engaged
in conduct protected by the First Amendment that motivated
the defendant-official to retaliate against him.”) (citing Gill
v. Pidlypchak, 389 F.3d 379, 380 [2d Cir. 2004]). “It is well-
settled that filing a grievance is constitutionally protected
conduct.” Burroughs v. Mitchell, 325 F. Supp. 3d 249, 282
(N.D.N.Y. 2018) (Hurd, J.) (citing Johnson v. Eggersdorf, 8
F. App'x 140, 144 [2d Cir. 2001]; Graham v. R.J. Henderson,
89 F.3d 75, 80 [2d Cir. 1996]). That a defendant's actions
were motivated or substantially caused by the exercise of a
protected right can be pleaded through allegations of conduct
or statements “that may be viewed as directly reflecting the
alleged retaliatory attitude,” or “indirectly through a showing
that the protected activity was followed closely by the adverse
action.” Capogrosso v. Gelbstein, 18-CV-2710, 2019 WL
4686448, at *10 (E.D.N.Y. Sept. 25, 2019) (citing Smith v.
Cnty. of Suffolk, 776 F.3d 114, 118 [2d Cir. 2015]; McAvey
v. Orange-Ulster BOCES, 805 F. Supp. 2d 30, 40 [S.D.N.Y.
2011]). “A plaintiff has standing if he can show either that
his speech has been adversely affected by the government
retaliation or that he has suffered some other concrete harm.”
Dorsett, 732 F.3d at 160.
In the Complaint, Plaintiff alleges the following: (a) “[d]uring
the period while he was incarcerated at Upstate, and almost
during the entire period of his wrongful incarceration, the
plaintiff usually sought to assert his rights and did file multiple
grievances complaining about several issues including, but
not limited to, the conditions of his confinement and the
deprivation of his rights”; (b) “[o]n or about August 6, 2021,
the plaintiff, in addition to other grievances, complained
that several correctional officers worked in concert with
unknown individuals to cut and assault him inside his cell”;
(c) “Plaintiff did subsequently file grievances complaining
that defendant officers failed to investigate his grievances
and, instead, are physically abusing him and/or conspiring
with other individuals to assault and physically abuse him”;
(d) “[i]n or about December 2021, defendant officers began
threatening the plaintiff with serious bodily harm warning that
he was ‘going to get it’ and that they were ‘out for him’ ”;
and (e) “[o]n February 7, 2022, at approximately 2:00 p.m.,
upon returning the plaintiff to his cell, defendant officers
forcibly pushed him inside his cell and outside the range of
the surveillance camera and gave him a severe beating with
their fists and objects while he remained handcuffed.” (Dkt.
No. 1, at ¶¶ 27-31.) He further alleges that the assault “caused
[him] to sustain serious injuries including, but not limited to,
back pain, neck pain, deep gashes to his face, and a hearing
loss.” (Id. at ¶ 34.)
*9 These allegations are sufficient to plausibly suggest
that (a) beginning in August of 2021, Plaintiff exercised
his First Amendment rights in the form of submitted
grievances, including specifically complaining that the
Officer Defendants failed to investigate his grievances and
were physically abusing him or conspiring with others to
physically abuse him, (b) the Officer Defendants’ actions
in engaging in the alleged assault in February 2022 were
motivated by his exercise of his rights given the allegations
that they told him they were “going to get him” or were
“out for him” following his complaints and the temporal
proximity between when he filed his complaints, when the
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Officer Defendants made such statements, and when the
alleged assault occurred, and (c) Plaintiff was injured by the
officer Defendants’ actions.
For the above reasons, Defendants’ motion to dismiss
Plaintiff's claim for First Amendment retaliation is denied.
D. Whether Plaintiff's Original Complaint Has Stated
a Claim for Deliberate Indifference to His Serious
Medical Needs
After careful consideration, the Court answers the above
question in the negative for the reasons stated in Defendants’
memoranda of law. See, supra, Part I.B.1 and 3 of this
Decision and Order. To those reasons, the Court adds the
following analysis.
The Eighth Amendment protects incarcerated prisoners
from the infliction of cruel and unusual punishment,
including where officials are deliberately indifferent to the
serious medical needs of a prisoner. “ ‘The standard of
deliberate indifference includes both subjective and objective
components.’ ” Mallet v. New York State Dep't of Corrs.
and Cmty. Supervision, 126 F.4th 125, 132 (2d Cir. 2025)
(quoting Chance v. Armstrong, 143 F.3d 698, 702 [2d Cir.
1998]). To meet the objective component for the purposes of
a motion to dismiss, a plaintiff must allege facts plausibly
suggesting that, “while he was incarcerated, he suffered from
a medical condition that is, ‘in objective terms, sufficiently
serious,’ ” which has been defined as “a ‘condition of
urgency that may result in degeneration or extreme pain,’ ...
that ‘significantly affects daily activities,’ or that involves
‘chronic and substantial pain.’ ” Mallet, 126 F.4th at 132
(quoting Chance, 143 F.3d at 702; Brock v. Wright, 315 F.3d
158, 162 [2d Cir. 2003]). Such condition “need not be ‘life-
threatening’ or ‘at the limit of human ability to bear,’ but it
must be more than simply ‘uncomfortable and annoying.’ ”
Mallet, 126 F.4th at 132 (quoting Brock, 315 F.3d at 163).
To meet the subjective component, a plaintiff must allege facts
plausibly suggesting that the defendant's acts or omissions
“ ‘evince[ ] a conscious disregard of a substantial risk of
serious harm.’ ” Mallet, 126 F.4th at 132 (quoting Darby v.
Greenman, 14 F.4th 124, 128 [2d Cir. 2021]). Specifically,
“ ‘the official must both be aware of facts from which the
inference could be drawn that a substantial risk of serious
harm exists, and he must also draw the inference.’ ” Darby,
14 F.4th at 128 (quoting Farmer v. Brennan, 511 U.S. 825,
837 [1994]).
As discussed above related to the issue of personal
involvement, Plaintiff's allegations in the Complaint related
to this claim are sparse, alleging in a conclusory manner that
the Officer Defendants and the Nurse Defendants refused to
provide him proper medical care or treatment for his back
pain, neck pain, deep gashes on his face, and hearing loss.
(Dkt. No. 1, at ¶¶ 34-37.) Even assuming that Plaintiff has
sufficiently alleged personal involvement related to this claim
(which, as discussed above, the Court has found that he
has not) and that his somewhat vague allegations of injuries
constitute sufficiently serious medical conditions, Plaintiff
has offered no factual allegations plausibly suggesting what
necessary medical treatment Defendants denied him, much
less provided any non-conclusory allegations that would
plausibly suggest that Defendants acted with the required
state of mind necessary to plead such a claim. (See Dkt. No. 1,
at ¶ 51 [alleging, as to state of mind, only that “[t]he individual
defendants denied plaintiff the treatment needed to remedy
his serious medical conditions and did so because of their
deliberate indifference to his need for medical treatment and
care”].)
*10 For these reasons, the Court agrees with Defendants
that Plaintiff's claim of deliberate indifference to his medical
needs in his original Complaint fails to state a claim
upon which relief may be granted. 7 Whether that Eighth
Amendment claim in his proposed Amended Complaint
sufficiently states such a claim is another matter, which the
Court will now address.
E. Whether Plaintiff Should Be Permitted to Amend
His Complaint
Generally, the parties do not present arguments regarding, and
the Court finds no noteworthy issue regarding, any of the
factors ordinarily considered on a motion to amend, other than
the futility of amendment (due to a failure to state a claim).
See Foman v. Davis, 371 U.S. 178, 182 (1962) (explaining
that permissible grounds upon which to base the denial of
a motion for leave to file an amended complaint include
“undue delay, bad faith or dilatory motive on the part of the
movant, repeated failure to cure deficiencies by amendments
previously allowed, undue prejudice to the opposing party by
virtue of allowance of the amendment, futility of amendment,
etc.”).
More specifically, the Court finds that, although Plaintiff
purports to assert his Eighth Amendment medical indifference
claim against all Defendants in his proposed Amended
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Complaint, the only Defendants against whom he has asserted
sufficient allegations regarding personal involvement are
Defendant Bullock (who is identified by name as the
individual who directed the Nurse Defendants not to treat
Plaintiff and worked with them to “sidestep or completely
omit the documentation of plaintiff's more serious injuries in
his medical records”), and Defendants Halcombe, Conklin,
and Witty-Lewis (who are included under the definition of
“nurse defendants” in the proposed Amended Complaint
as discussed above and who are alleged to have refused
to provide Plaintiff with proper medical care and omitted
documentation of his “more serious injuries” from his
medical records). (Dkt. No. 32, Attach. 2, at ¶¶ 39-41.)
In other words, although Plaintiff does allege that the
“officer defendants” as a collective “conspired with the
nurse defendants to deny plaintiff the treatment needed” and
“refused to provide the plaintiff with proper medical care
or treatment,” these allegations are entirely conclusory as to
the other Officer Defendants given that Plaintiff specifically
alleges that it was Defendant Bullock who engaged in conduct
related to denying Plaintiff treatment without specifying what
role any of the other Officer Defendants played in that denial.
As a result, any deliberate indifference claim related to denial
of medical care against Defendants Fleury, Martin, Allen,
Benway, or Hayes must be dismissed for failure to plausibly
allege any personal involvement by those Defendants in the
alleged denial of medical care because Plaintiff's proposed
Amended Complaint does not rectify the defects of pleading
identified previously as to those Defendants.
*11 As to the merits of this Eighth Amendment claim,
even Plaintiff's proposed Amended Complaint suffers from
a certain vagueness that makes it difficult to determine
precisely what he is alleging. For instance, as to the existence
of a serious medical condition, Plaintiff alleges that he
presented to “the emergency room at Upstate” with “injuries
including, but not limited to, back pain, neck pain, deep
gashes to his face, and a hearing loss,” but he does not allege
what impact these injuries had on him other than his allegation
that he still had “severe pains” on February 8, 2022 (the day
after the alleged assault and failure to provide treatment).
(Dkt. No. 32, Attach. 2, at ¶¶ 36, 42.) He notably does not
clarify which of the alleged injuries specifically continued to
cause him pain, merely that he experienced pain.
It is further not clear whether the relevant Defendants failed
to provide Plaintiff with any treatment for these alleged
injuries. Specifically, Plaintiff alleges that Defendant Bullock
and the Nurse Defendants worked together to “sidestep or
completely omit the documentation of plaintiff's more serious
injuries in his medical records,” which suggests that they may
have documented some of his less serious injuries. To the
extent that Plaintiff appears to be alleging that the relevant
Defendants failed to provide him any treatment even for an
injury as obvious as “deep gashes to his face,” such allegation
seems implausible. However, because Plaintiff's allegations
must be taken as true on this motion, the Court finds that
the allegations narrowly suggest both the existence of a
sufficiently serious medical condition (most notably the “deep
gashes” on his face, which certainly could be considered
a condition of urgency in light of the bleeding and risk
of infection such an injury implies) and that the relevant
Defendants were both aware of and deliberately indifferent to
such condition(s) in their failure to provide treatment (through
his allegation that they intentionally omitted documentation
of his more serious injuries from his medical record while
also refusing to provide treatment for those same injuries).
However, again, the Court expresses no opinion with regard
to whether this claim would survive a motion for summary
judgment.
For all of the above reasons, the Court permits Plaintiff
to amend all of the claims asserted in his original
Complaint except his Eighth Amendment claim of deliberate
indifference to medical needs against Defendant Fleury,
Defendant Martin, Defendant Allen, Defendant Benway, and
Defendant Hayes, which is dismissed.
ACCORDINGLY, it is
ORDERED that the individual Defendants’ motion to
dismiss (Dkt. No. 23) is GRANTED in part and DENIED
in part; and it is further
ORDERED that Defendant State of New York's motion to
dismiss (Dkt. No. 20) is DENIED as moot; and it is further
ORDERED that Plaintiff's claims against Defendant State of
New York are DISMISSED with prejudice; and it is further
ORDERED that Plaintiff's Eighth Amendment claim of
deliberate indifference to medical needs against Defendant
Fleury, Defendant Martin, Defendant Allen, Defendant
Benway, and Defendant Hayes is DISMISSED; and it is
further
ORDERED that Plaintiff shall sign, file and serve his
Amended Complaint consistent with this Decision and
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Order 8 within FOURTEEN (14) DAYS of the entry of this
Decision and Order in accordance with L.R. 15.1(c).
All Citations
Slip Copy, 2026 WL 523067
Footnotes
1 In his response to the individual Defendants’ motion, Plaintiff expressed that he was withdrawing his claims
against Defendant State of New York with prejudice. (Dkt. No. 33, at 8.) Further, in his proposed Amended
Complaint (which, as will be discussed below, the Court grants his request to file) Plaintiff also removes the
John and Jane Doe Defendants. The Clerk of Court is respectfully directed to update the caption to reflect all
of the changes to the parties made in the Amended Complaint (including Plaintiff's withdrawal of his claims
against the John and Jane Doe Defendants).
2 Because, as was discussed above, Plaintiff has withdrawn his claims against Defendant State of New York,
the Court will not address that Defendant's motion, which is now moot.
3 Page citations in this Decision and Order refer to the screen numbers on the Court's Case Management /
Electronic Case Filing (“CM/ECF”) System, not to the page numbers stated on the documents contained
therein.
4 See Fed. R. Civ. P. 10(c) (“A copy of any written instrument which is an exhibit to a pleading is a part thereof
for all purposes.”); L-7 Designs, Inc. v. Old Navy, LLC, No. 10-573, 2011 WL 2135734, at *1 (2d Cir. June 1,
2011) (explaining that conversion from a motion to dismiss for failure to state a claim to a motion for summary
judgment is not necessary under Fed. R. Civ. P. 12[d] if the “matters outside the pleadings” in consist of [1]
documents attached to the complaint or answer, [2] documents incorporated by reference in the complaint
(and provided by the parties), [3] documents that, although not incorporated by reference, are “integral” to the
complaint, or [4] any matter of which the court can take judicial notice for the factual background of the case);
DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010) (explaining that a district court considering
a dismissal pursuant to Fed. R. Civ. 12(b)(6) “may consider the facts alleged in the complaint, documents
attached to the complaint as exhibits, and documents incorporated by reference in the complaint.... Where a
document is not incorporated by reference, the court may nevertheless consider it where the complaint relies
heavily upon its terms and effect, thereby rendering the document ‘integral’ to the complaint.... However, even
if a document is ‘integral’ to the complaint, it must be clear on the record that no dispute exists regarding the
authenticity or accuracy of the document. It must also be clear that there exist no material disputed issues of
fact regarding the relevance of the document.”) [internal quotation marks and citations omitted]; Chambers
v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2009) (“The complaint is deemed to include any written
instrument attached to it as an exhibit or any statements or documents incorporated in it by reference.”)
(internal quotation marks and citations omitted); Int'l Audiotext Network, Inc. v. Am. Tel. & Tel. Co., 62 F.3d
69, 72 (2d Cir.1995) (per curiam) (“[W]hen a plaintiff chooses not to attach to the complaint or incorporate
by reference a [document] upon which it solely relies and which is integral to the complaint,” the court may
nevertheless take the document into consideration in deciding [a] defendant's motion to dismiss, without
converting the proceeding to one for summary judgment.”) (internal quotation marks and citation omitted).
5 Furthermore, in support of this claim in his proposed Amended Complaint, Plaintiff further alleges that the
conduct of the “nurse defendants” consisted of (1) “work[ing] in cahoots” with Defendant Bullock “to sidestep
or completely omit the documentation of plaintiff's more serious injuries in his medical records,” and (2) being
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“directed” by Defendant Bullock not to “fix ... up” Plaintiff or “provide him with proper medical care and/or
treatment.” (Dkt. No. 32, Attach. 2, at ¶¶ 38-41.)
6 Granted, in his proposed Amended Complaint, Plaintiff elaborates on these factual allegations, adding the
following: (1) that Defendant Bullock “supervised” the other Defendant Officers, (2) that he was “attended to
by the nurse defendants” while in the emergency room, and (3) that Defendant Bullock “directed” the Nurse
Defendant “not to “fix ... up” Plaintiff or “provide him with proper medical care and/or treatment.” (Dkt. No.
32, Attach. 2, at ¶¶ 37, 39-40.) Those new factual allegations will be discussed below in Part III.D. of this
Decision and Order.
7 The Court notes that Plaintiff also appears to assert a claim of deliberate indifference related to sexual abuse
that allegedly occurred during the alleged assault. (Dkt. No. 1, at ¶¶ 32, 53.) For the same reasons as
discussed related to the excessive force claim, Plaintiff's allegations regarding such a claim plausibly suggest
personal involvement by the Officer Defendants, and Defendants have not seemingly raised any arguments
seeking to dismiss such claim on the merits. Because neither party addresses this aspect of the deliberate
indifference claim in their papers, the Court declines to assess its merits sua sponte, particularly given that
other claims in this action survive Defendants’ motion.
8 While Plaintiff need not revise his proposed Amended Complaint to omit the above-dismissed claims, the
Court recommends he do so for purposes of clarity.
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
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Lalonde v. City of Ogdensburg, 662 F.Supp.3d 289 (2023)
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662 F.Supp.3d 289
United States District Court, N.D. New York.
Timothy LALONDE & Theresa Lalonde, Plaintiffs,
v.
CITY OF OGDENSBURG, et al., Defendants.
8:22-CV-0164 (LEK/DJS)
|
Signed March 16, 2023
Synopsis
Background: Arrestee, who was legally blind and partially
disabled, and his spouse, brought action against city,
city police department and officers, county, county sheriff
department, and officer within department, asserting § 1983
claims for violations of Fourth and Fourteenth Amendments,
claims for violations of Americans with Disabilities Act
(ADA) and Rehabilitation Act, civil rights conspiracy, and
state law claims. Defendants moved to dismiss.
Holdings: The District Court, Lawrence E. Kahn, J., held
that:
[1] arrestee plausibly alleged that municipal and county
policymakers knew to moral certainty that officers would
confront situations like that giving rise to arrestee's claims, as
factor for determining whether municipality and county could
be held liable under § 1983 for failure to train;
[2] arrestee stated claims for civil rights conspiracy;
[3] arrestee could maintain claim against municipal and
county law enforcement officers for failure to prevent
conspiracy to deprive arrestee of his civil rights;
[4] arrestee stated claim for supervisory liability against
county sheriff and municipal police chief;
[5] arrestee state claim for violation of ADA and
Rehabilitation Act;
[6] arrestee's spouse stated claim under New York law for
negligent infliction of emotional distress; and
[7] negligent infliction of emotional distress claims were not
cognizable.
Motions granted in part and denied in part.
Procedural Posture(s): Motion to Dismiss for Failure to
State a Claim.
West Headnotes (101)
[1] Federal Civil Procedure Motion and
proceedings thereon
A defendant has the burden of proof on a motion
to dismiss for failure to state a claim. Fed. R. Civ.
P. 12(b)(6).
1 Case that cites this headnote
[2] Civil Rights Substantive or procedural
rights
Section 1983 itself creates no substantive rights,
but instead provides only a procedure for
redress for the deprivation of rights established
elsewhere. 42 U.S.C.A. § 1983.
[3] Assault and Battery Excessive or
unreasonable force
Search, Seizure, and Arrest Use of Force
During Arrests
Arrestee would be allowed to proceed against
law enforcement officers with civil assault and
battery claims under New York law, where
arrestee plausibly stated excessive force claims
under § 1983, and such claims were based upon
same factual circumstances. U.S. Const. Amend.
4; 42 U.S.C.A. § 1983.
2 Cases that cite this headnote
[4] Search, Seizure, and
Arrest Reasonableness in general
Question of whether a search is “reasonable”
within the meaning of the Fourth Amendment
does not depend on the law of the particular state
in which the search occurs. U.S. Const. Amend.
4.
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[5] Search, Seizure, and Arrest Application
of Fourth Amendment and state equivalents in
general
Although individual states may construe their
own constitutions as imposing more stringent
constraints on police conduct than does the
federal Constitution, state law did not alter the
context of the Fourth Amendment. U.S. Const.
Amend. 4.
[6] Search, Seizure, and
Arrest Reasonableness in general;
objective or subjective test
A free citizen's claim that law enforcement
officials used excessive force in the course of
making an arrest, investigatory stop, or other
seizure of his person is properly analyzed
under the Fourth Amendment's objective
reasonableness standard. U.S. Const. Amend. 4.
[7] Search, Seizure, and Arrest Application
of Fourth Amendment and state equivalents
Every person has Fourth Amendment right to
be free from excessive force by police officers,
including during course of arrest. U.S. Const.
Amend. 4.
[8] Search, Seizure, and
Arrest Reasonableness in general;
objective or subjective test
The reasonableness inquiry in a Fourth
Amendment excessive force case is objective,
i.e., whether law enforcement officers’ actions
are objectively reasonable in light of the facts and
circumstances confronting them, without regard
to their underlying intent or motivation. U.S.
Const. Amend. 4.
[9] Search, Seizure, and
Arrest Reasonableness in general;
objective or subjective test
Proper application of the reasonableness inquiry
in a Fourth Amendment excessive force case
requires careful attention to the facts and
circumstances at issue, such as whether the
subject 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. U.S. Const. Amend. 4.
[10] Search, Seizure, and
Arrest Reasonableness in general
The reasonableness of searches and seizures
under the Fourth Amendment does not depend on
state law. U.S. Const. Amend. 4.
[11] Assault and Battery Assault in general
Under New York law, a “civil assault” is an
intentional placing of another person in fear of
imminent harm or offensive conduct.
[12] Assault and Battery Fear or Apprehension
of Harm
Under New York law, to recover damages for
assault, there must be proof of physical conduct
placing the plaintiff in imminent apprehension of
harmful contact.
[13] Assault and Battery Battery in general
Under New York law, a “civil battery” is
an intentional wrongful physical contact with
another person without consent, and may be
accomplished either personally or by means of
an instrumentality.
[14] Federal Courts Jurisdiction of Entire
Controversy; Pendent and Supplemental
Jurisdiction
Claims form part of the “same case or
controversy” as federal claims, for purposes of
supplemental jurisdiction, if claims derive from
a common nucleus of operative fact. 28 U.S.C.A.
§ 1367(a).
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[15] False Imprisonment Nature and form of
remedy
Under New York law, the common law tort of
false arrest is a species of false imprisonment,
which is an action derived from the ancient
common-law action of trespass that protects the
personal interest of freedom from restraint of
movement.
1 Case that cites this headnote
[16] Civil Rights Arrest and detention
Section 1983 claims for false arrest and false
imprisonment are substantially the same in all
relevant respects as claims for false arrest and
false imprisonment under New York law. U.S.
Const. Amend. 4; 42 U.S.C.A. § 1983.
2 Cases that cite this headnote
[17] False Imprisonment Nature and form of
remedy
Under New York law, the tort of false arrest is
synonymous with false imprisonment.
1 Case that cites this headnote
[18] False Imprisonment Nature and Elements
of False Imprisonment
In order to establish claim for false arrest or false
imprisonment under New York law, plaintiff
must show that: (1) defendant intentionally
confined plaintiff, (2) plaintiff was conscious
of confinement, (3) plaintiff did not consent
to confinement, and (4) confinement was not
otherwise justified.
[19] Federal Civil Procedure Alternate,
Hypothetical and Inconsistent Claims
Arrestee would be permitted to plead in
alternative as to defendant law enforcement
officers, and obtain discovery to determine
which officers participated directly in alleged
constitutional violation, in § 1983 action for
excessive force and false arrest; although
complaint did not specifically identify officer
who dragged arrestee into patrol car, handcuffed
him, or removed him from patrol car upon arrival
at police station, complaint properly alleged at
least one constitutional violation. U.S. Const.
Amend. 4; 42 U.S.C.A. § 1983.
2 Cases that cite this headnote
More cases on this issue
[20] Federal Civil Procedure Alternate,
Hypothetical and Inconsistent Claims
With respect to inconsistent pleadings, a
complaint may plead in the alternative and the
inconsistency may lie either in the statement of
the facts or in the legal theories adopted. Fed. R.
Civ. P. 8(d).
[21] Federal Civil Procedure Alternate,
Hypothetical and Inconsistent Claims
Flexibility in pleading causes of action in the
alternative is especially appropriate in civil
rights cases, in which complex inquiries into
the parties’ intent may sometimes justify raising
multiple, inconsistent claims. Fed. R. Civ. P. 8(d).
[22] Federal Civil Procedure Alternate,
Hypothetical and Inconsistent Claims
A plaintiff pleading causes of action in the
alternative may not be able to recover on both
theories if the allegations conflict. Fed. R. Civ.
P. 8(d).
[23] Federal Civil Procedure Alternate,
Hypothetical and Inconsistent Claims
Rule governing federal pleading allows the
district court to construe separate allegations in
a complaint as alternative theories, at least when
drawing all inferences in favor of the nonmoving
party, as the court must do on motions to dismiss.
Fed. R. Civ. P. 8(d)(2), 12.
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[24] Federal Civil Procedure Alternate,
Hypothetical and Inconsistent Claims
Arrestee would be permitted to plead in
alternative as to defendant law enforcement
officers, and obtain discovery to determine
which officers participated directly in alleged
constitutional violation, in § 1983 action for
failure to intervene arising from incidents
surrounding his arrest; although complaint
did not specifically identify officers who
failed to intervene to stop other officers
from violating arrestee's constitutional rights,
complaint properly alleged at least one
constitutional violation. 42 U.S.C.A. § 1983.
3 Cases that cite this headnote
More cases on this issue
[25] Civil Rights Police, Investigative, or Law
Enforcement Activities
All law enforcement officials have affirmative
duty to intervene to protect constitutional rights
of citizens from infringement by other law
enforcement officers in their presence.
[26] Federal Civil Procedure Alternate,
Hypothetical and Inconsistent Claims
Under federal pleading rules, even if a plaintiff's
alternative claims are somehow inconsistent, a
court can entertain them both. Fed. R. Civ. P.
8(d).
[27] Federal Civil Procedure Alternate,
Hypothetical and Inconsistent Claims
Arrestee would be permitted to plead in
alternative as to defendant law enforcement
officers, and obtain discovery to determine
which officers participated directly in alleged
constitutional violation, in § 1983 action alleging
fabrication of evidence to justify his arrest;
although complaint did not specifically identify
officers who fabricated evidence, complaint
properly alleged at least one constitutional
violation. 42 U.S.C.A. § 1983.
3 Cases that cite this headnote
More cases on this issue
[28] Constitutional Law Personal liberty
A constitutional right exists not to be deprived of
liberty on the basis of false evidence fabricated
by a government officer. U.S. Const. Amend. 4.
[29] Civil Rights Governmental Ordinance,
Policy, Practice, or Custom
Municipalities are liable under § 1983 to be sued
as “persons” within the meaning of that statute,
when the alleged unlawful action implemented
or was executed pursuant to a governmental
policy or custom. 42 U.S.C.A. § 1983.
[30] Civil Rights Governmental Ordinance,
Policy, Practice, or Custom
Constitutional deprivations actionable under §
1983 need not be contained in an explicitly
adopted rule or regulation, for purposes of
municipal liability. 42 U.S.C.A. § 1983.
[31] Civil Rights Governmental Ordinance,
Policy, Practice, or Custom
Constitutional deprivations actionable under §
1983 may be visited upon a municipality
pursuant to governmental custom even though
such custom has not received formal approval
through the body's official decisionmaking
channels. 42 U.S.C.A. § 1983.
[32] Civil Rights Governmental Ordinance,
Policy, Practice, or Custom
To hold municipalities liable under § 1983 for
the unconstitutional actions of its employees, a
plaintiff is required to plead and prove three
elements: (1) an official policy or custom that (2)
causes the plaintiff to be subjected to (3) a denial
of a constitutional right. 42 U.S.C.A. § 1983.
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[33] Civil Rights Governmental Ordinance,
Policy, Practice, or Custom
Civil Rights Lack of Control, Training, or
Supervision; Knowledge and Inaction
To establish an official policy, custom, or
practice, as required to hold municipalities liable
under § 1983 for the unconstitutional actions
of its employees, a plaintiff may allege the
existence of: (1) a formal policy officially
endorsed by the municipality, (2) actions
taken by government officials responsible for
establishing the municipal policies that caused
the particular deprivation in question, (3) a
practice so consistent and widespread that,
although not expressly authorized, constitutes a
custom or usage of which a supervising policy-
maker must have been aware, or (4) a failure
by policymakers to provide adequate training or
supervision to subordinates to such an extent
that it amounts to deliberate indifference to the
rights of those who come into contact with the
municipal employees. 42 U.S.C.A. § 1983.
6 Cases that cite this headnote
[34] Civil Rights Lack of Control, Training, or
Supervision; Knowledge and Inaction
Three requirements must be met before
municipality's failure to train or supervise
constitutes deliberate indifference to
constitutional rights of citizens, such that
municipality may be held liable under § 1983: (1)
plaintiff must show that policymaker knows to
moral certainty that her employees will confront
given situation, (2) plaintiff must show that
situation either presents employee with difficult
choice of sort that training or supervision will
make less difficult or that there is history
of employees mishandling situation, and (3)
plaintiff must show that the wrong choice by
the city employee will frequently cause the
deprivation of a citizen's constitutional rights. 42
U.S.C.A. § 1983.
3 Cases that cite this headnote
[35] Civil Rights Lack of Control, Training, or
Supervision; Knowledge and Inaction
A policymaker does not exhibit deliberate
indifference, for purposes of municipal liability
under § 1983 for failure to train, by failing to
train municipal employees for rare or unforeseen
events. 42 U.S.C.A. § 1983.
2 Cases that cite this headnote
[36] Search, Seizure, and Arrest Use of lethal
force in general
Deadly force may constitutionally be applied
to apprehend a fleeing suspect only when the
suspect threatens the officer with a weapon or
there is probable cause to believe that he has
committed a crime involving the infliction or
threatened infliction of serious physical harm
and when, where possible, some warning has
been given. U.S. Const. Amend. 4.
[37] Civil Rights Lack of Control, Training, or
Supervision; Knowledge and Inaction
Municipal policymakers may appropriately
concentrate training and supervision resources
on those situations where employee misconduct
is likely to deprive citizens of constitutional
rights, without exhibiting deliberate indifference
to constitutional rights of its citizens so as to
expose municipality to liability under § 1983. 42
U.S.C.A. § 1983.
4 Cases that cite this headnote
[38] Civil Rights Criminal law enforcement;
prisons
Arrestee bringing claims against municipal and
county law enforcement officers for excessive
force and false arrest plausibly alleged that
municipal and county policymakers knew to
moral certainty that officers would confront
situations like that giving rise to arrestee's claims,
i.e., responding to emergency call reporting loud
argument late at night, arresting and transporting
arrestee to police station, and causing criminal
charges to be filed against him, as factor for
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determining whether municipality and county
could be held liable under § 1983 for failure to
train; it could be inferred that officials knew that
officers would make reasonable suspicion and
probable cause determinations, seize and arrest
individuals, provide medical care to detainees,
and transmit evidence to prosecutors, because
those were basic facets of law enforcement jobs.
U.S. Const. Amend. 4; 42 U.S.C.A. § 1983.
[39] Federal Civil Procedure Response, reply,
and surreply; reply and surreply briefs
Arguments may not be made for the first time in
a reply brief.
1 Case that cites this headnote
[40] Conspiracy Definition and Elements in
General
To prevail on a § 1983 conspiracy claim,
the plaintiff must establish: (1) an agreement
between two or more state actors or between
a state actor and a private entity, (2) to act in
concert to inflict an unconstitutional injury, and
(3) an overt act done in furtherance of that goal
causing damages. 42 U.S.C.A. § 1983.
1 Case that cites this headnote
[41] Conspiracy Definition and Elements in
General
To sustain a claim for conspiracy under § 1983,
a plaintiff must demonstrate that the defendants
acted in a willful manner, culminating in an
agreement, understanding, or meeting of the
minds, that violated the plaintiff's rights secured
by the constitution or federal courts. 42 U.S.C.A.
§ 1983.
[42] Conspiracy Civil rights conspiracies
Arrestee plausibly alleged facts to suggest that
law enforcement officers had meeting of minds
to use excessive force when arresting him,
as required to state claim under § 1983 for
conspiracy to violate his constitutional rights;
arrestee alleged that one officer was standing
at scene in firm control of readily deescalated
event with arrestee, who was blind man holding
cane and wearing dark sunglasses, when other
officers arrived and attacked him, allegedly
in manner that was not spontaneous reaction
to any threat, and provided extensive factual
allegations pleading that attack was coordinated,
with various officers acting in concert. U.S.
Const. Amend. 4; 42 U.S.C.A. § 1983.
[43] Conspiracy Direct or circumstantial
evidence in general
Although there are legal limitations upon
the inferences which may be drawn from
circumstantial evidence, a conspiracy is often
difficult to prove and a court may, at times,
have to rely on circumstantial evidence of a
conspiracy.
[44] Conspiracy Form of agreement; express or
implied agreement
Conspiracy need not be shown by proof of
explicit agreement but can be established by
showing that parties have tacit understanding to
carry out prohibited conduct.
[45] Conspiracy Equal privileges and
immunities; equal protection
To state a civil rights conspiracy, a plaintiff
must allege: 1) a conspiracy, 2) for the purpose
of depriving, either directly or indirectly, any
person or class of persons of the equal protection
of the laws, or of equal privileges and immunities
under the laws, and 3) an act in furtherance of the
conspiracy, 4) whereby a person is either injured
in his person or property or deprived of any right
or privilege of a citizen of the United States. 42
U.S.C.A. § 1985(3).
1 Case that cites this headnote
[46] Conspiracy Intent, motive, or animus
Statute prohibiting conspiracy for purpose of
depriving person or class of equal protection
of laws or equal privileges and immunities
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under laws is applicable only if the plaintiff can
show that some racial, or otherwise class-based
invidiously discriminatory, animus lay behind
the conspirators' action. 42 U.S.C.A. § 1985(3).
1 Case that cites this headnote
[47] Conspiracy Equal privileges and
immunities; equal protection
Establishment of a conspiracy claim, under
statute prohibiting conspiracy for purpose of
depriving person or class of equal protection of
laws or equal privileges and immunities under
laws, requires proof of a conspiracy between two
or more persons. 42 U.S.C.A. § 1985(3).
2 Cases that cite this headnote
[48] Conspiracy Government entities in general
The term “persons,” in statute prohibiting
conspiracy between two or more persons for
purpose of depriving person or class of equal
protection of laws or equal privileges and
immunities under laws, includes municipalities.
42 U.S.C.A. § 1985(3).
[49] Conspiracy Civil rights conspiracies
A claim for conspiracy under statute prohibiting
conspiracy for purpose of depriving person
or class of equal protection of laws or equal
privileges and immunities under laws may be
established against a state if it is proved that the
state is involved in the conspiracy, or that the aim
of the conspiracy is to influence the activity of
the state. 42 U.S.C.A. § 1985(3).
[50] Conspiracy Law enforcement and criminal
prosecution; Fourth Amendment
Arrestee, who was blind and had physical
disability due to removal of back and shoulder
muscles after flesh-eating bacteria infection,
plausibly alleged that law enforcement officers
acted out of animus to arrestee's protected
disability status in using excessive force in
arresting him and failing to accommodate his
disability during process of arrest and booking
him at police station, as required to state claim for
civil rights conspiracy under statute prohibiting
conspiracy for purpose of depriving person
or class of equal protection of laws or equal
privileges and immunities under laws; complaint
alleged that it was readily apparent that arrestee
was disabled when officers attacked him, and
that officers acted with that knowledge when
arresting him and processing him at police
station. 42 U.S.C.A. § 1985(3).
[51] Conspiracy Classes protected
Disability is a class protected under statute
prohibiting conspiracy for purpose of depriving
person or class of equal protection of laws or
equal privileges and immunities under laws. 42
U.S.C.A. § 1985(3).
2 Cases that cite this headnote
[52] Conspiracy Law enforcement and criminal
prosecution; Fourth Amendment
Arrestee, who was blind and had physical
disability due to removal of back and
shoulder muscles after flesh-eating bacteria
infection, plausibly alleged that law enforcement
officers had tacit understanding to act with
discriminatory animus to arrestee's protected
disability status in using excessive force in
arresting him and failing to accommodate
his disability during process of arrest and
booking him at police station, so as to
allege meeting of minds necessary to state
claim for civil rights conspiracy under statute
prohibiting conspiracy for purpose of depriving
person or class of equal protection of laws or
equal privileges and immunities under laws;
complaint alleged that officers carried out
coordinated attack and continued their actions in
concert when transporting him to police station,
and intentionally and mockingly refused to
accommodate arrestee's disability. 42 U.S.C.A. §
1985(3).
[53] Civil Rights Failure to act or protect or to
enforce law
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A valid claim under statute providing cause of
action against any person who fails to prevent
civil rights conspiracy despite knowledge of
conspiracy and power to prevent it must be
predicated upon a valid claim under statute
prohibiting conspiracy for purpose of depriving
person or class of equal protection of laws or
equal privileges and immunities under laws. 42
U.S.C.A. §§ 1985, 1986.
[54] Civil Rights Arrest, search, and detention
Arrestee could maintain claim against municipal
and county law enforcement officers for failure
to prevent conspiracy to deprive arrestee of
his civil rights, in action alleging that officers
conspired to deprive arrestee of his civil
rights based on animus to arrestee's protected
disability status, where arrestee plausibly stated
claim for civil rights conspiracy under statute
prohibiting conspiracy for purpose of depriving
person or class of equal protection of laws or
equal privileges and immunities under laws. 42
U.S.C.A. §§ 1985(3), 1986.
[55] Civil Rights Vicarious liability and
respondeat superior in general; supervisory
liability in general
Government officials may not be held liable
under § 1983 for unconstitutional conduct of
their subordinates under theory of respondeat
superior. 42 U.S.C.A. § 1983.
[56] Civil Rights Liability of Public Employees
and Officials
A § 1983 plaintiff must plead and prove that each
government official defendant, through official's
own individual actions, has violated constitution.
42 U.S.C.A. § 1983.
2 Cases that cite this headnote
[57] Civil Rights Criminal law enforcement;
prisons
Arrestee plausibly alleged that county sheriff
and municipal police chief were “policymakers”
responsible for implementing and maintaining
policies to protect against constitutional
deprivations and abuse by their subordinate
law enforcement officers, as required to state
supervisory liability claims under § 1983
alleging that sheriff and chief violated Fourteenth
Amendment by failing to protect arrestee;
complaint alleged that both sheriff and chief
had oversight responsibility for training, hiring,
screening, instruction, supervision and discipline
of officers, and were reckless in failing to
supervise subordinates. U.S. Const. Amend. 14;
42 U.S.C.A. § 1983.
[58] Civil Rights Liability of Public Employees
and Officials
Official's conduct in making and executing
policy, or failing to make or execute policy,
may satisfy personal involvement requirement
for liability under § 1983, if such conduct
meets elements required to establish underlying
constitutional violation and is undertaken with
required state of mind. 42 U.S.C.A. § 1983.
6 Cases that cite this headnote
[59] Civil Rights Liability of Public Employees
and Officials
A plaintiff may establish a policy-
making official's personal involvement in a
constitutional violation, as required to hold
official liable under § 1983, by (1) alleging
facts from which it may be reasonably inferred
the official was responsible for making relevant
policies, and thus that there was a tangible
connection between their policymaking conduct
and the alleged harm, and (2) establishing the
elements of the underlying claim directly against
each defendant. 42 U.S.C.A. § 1983.
8 Cases that cite this headnote
[60] Constitutional Law Conditions
To plead a § 1983 failure-to-protect Fourteenth
Amendment due process claim, a pretrial
detainee must show that defendant officers acted
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with deliberate indifference. U.S. Const. Amend.
14; 42 U.S.C.A. § 1983.
[61] Constitutional Law Conditions
To plead a § 1983 failure-to-protect Fourteenth
Amendment due process claim, a pretrial
detainee must satisfy two prongs: (1) an
objective prong showing that the failure to
protect was sufficiently serious to constitute
objective deprivations of the right to due
process, and (2) a subjective prong, mens rea
prong, or mental element prong, showing that
the defendant acted with at least deliberate
indifference to the challenged conditions. U.S.
Const. Amend. 14; 42 U.S.C.A. § 1983.
[62] Constitutional Law Conditions
Constitutional Law Safety and security
To satisfy the mens rea or mental element
prong of a § 1983 failure-to-protect Fourteenth
Amendment due process claim, a pretrial
detainee must prove that the defendant-official
acted intentionally to impose the alleged
condition, or recklessly failed to act with
reasonable care to mitigate the risk that the
condition posed to the pretrial detainee, even
though the defendant knew, or should have
known, that the condition posed an excessive risk
to health or safety. U.S. Const. Amend. 14; 42
U.S.C.A. § 1983.
1 Case that cites this headnote
[63] Constitutional Law Conditions
The subjective prong, or mens rea prong, of
a pretrial detainee's § 1983 failure-to-protect
Fourteenth Amendment due process claim is
defined objectively, and deliberate indifference
can be shown by something akin to recklessness,
and does not require proof of a malicious or
callous state of mind. U.S. Const. Amend. 14; 42
U.S.C.A. § 1983.
1 Case that cites this headnote
[64] Constitutional Law Conditions
To plead the first objective prong of a §
1983 failure-to-protect Fourteenth Amendment
due process claim, the deprivation alleged
by the pretrial detainee must be, objectively,
sufficiently serious, and the detainee must show
that he is detained under conditions posing a
substantial risk of serious harm. U.S. Const.
Amend. 14; 42 U.S.C.A. § 1983.
1 Case that cites this headnote
[65] Constitutional Law Conditions
Sentencing and Punishment Conditions
of Confinement
Pretrial detainees have even more stringent
constitutional protections under the Fourteenth
Amendment Due Process Clause than prisoners
do under the Eighth Amendment, because
pretrial detainees, unlike convicted prisoners,
cannot be punished at all, much less maliciously
and sadistically. U.S. Const. Amends. 8, 14.
[66] Constitutional Law Conduct
Constitutional Law Safety and security
Municipal, County, and Local
Government Arrest and detention; use of
force
Prisons Protection from violence, assault,
or abuse
Search, Seizure, and Arrest Particular
cases
Sheriffs and Constables Liabilities for
acts or omissions of deputies or assistants
Arrestee, who was blind and had physical
disability due to removal of back and shoulder
muscles after flesh-eating bacterial infection,
sufficiently alleged that he was detained under
conditions posing substantial risk of serious
harm, and thus plausibly pleaded objective
deliberate indifference prong of § 1983 failure-
to-protect Fourteenth Amendment claims against
county sheriff and municipal police chief, under
theory of supervisory liability, where arrestee
alleged that he was maliciously and sadistically
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attacked by several law enforcement officers
outside his home, and was further abused at
police station during pretrial detention. U.S.
Const. Amend. 14; 42 U.S.C.A. § 1983.
[67] Civil Rights Criminal law enforcement;
prisons
Whether state knew or should have known of
substantial risk of harm to a pretrial detainee,
as a prong of a § 1983 failure-to-protect
Fourteenth Amendment Due Process claim, is
question of fact subject to demonstration in usual
ways, including inference from circumstantial
evidence. U.S. Const. Amend. 14; 42 U.S.C.A.
§ 1983.
1 Case that cites this headnote
[68] Constitutional Law Conditions
In a § 1983 failure-to-protect Fourteenth
Amendment Due Process claim, a factfinder may
conclude that a government official knew of a
substantial risk to a pretrial detainee from the
very fact that the risk was obvious. U.S. Const.
Amend. 14; 42 U.S.C.A. § 1983.
[69] Federal Civil Procedure Fraud, mistake
and condition of mind
Federal preluding rules provide a relaxed
standard for pleading intent or knowledge at the
motion to dismiss stage. Fed. R. Civ. P. 9(b).
[70] Federal Civil Procedure Fraud, mistake
and condition of mind
Complaint is allowed to contain general
allegations as to defendant's knowledge, because
plaintiff realistically cannot be expected to plead
defendant's actual state of mind, but plaintiffs
are required to include allegations of the facts
or events they claim give rise to an inference of
knowledge. Fed. R. Civ. P. 9(b).
[71] Constitutional Law Conduct
Municipal, County, and Local
Government Failure to act; duty to protect
Municipal, County, and Local
Government Recklessness
Search, Seizure, and Arrest Particular
cases
Sheriffs and Constables Liabilities for
acts or omissions of deputies or assistants
Arrestee, who was blind and had physical
disability due to removal of back and shoulder
muscles after flesh-eating bacteria infection,
sufficiently alleged that county sheriff and
municipal police chief were reckless in their
failure to supervise their respective subordinate
law enforcement officers, knew or should
have known that subordinates were deliberately
failing to effectuate constitutionally permissible
arrests, seizures, detentions, transportation, and
imprisonments, and knew or should have known
that violent attacks carried out by police officers
posed excessive risk to health or safety requiring
corrective action, and thus plausibly pleaded
subjective deliberate indifference prong of §
1983 failure-to-protect Fourteenth Amendment
claims under theory of supervisory liability. U.S.
Const. Amend. 14; 42 U.S.C.A. § 1983.
[72] Civil Rights Handicap, Disability, or
Illness
As a remedial statute, the ADA must be broadly
construed to effectuate its purpose of providing
a clear and comprehensive national mandate
for the elimination of discrimination against
individuals with disabilities. Americans with
Disabilities Act of 1990 § 2, 42 U.S.C.A. § 12101
et seq.
[73] Civil Rights Elements of discrimination
claims in general
In order to establish a violation under the
ADA, the plaintiffs must demonstrate that (1)
they are qualified individuals with a disability,
(2) that the defendants are subject to the
ADA, and (3) that plaintiffs were denied the
opportunity to participate in or benefit from
defendants’ services, programs, or activities,
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or were otherwise discriminated against by
defendants, by reason of plaintiffs’ disabilities.
Americans with Disabilities Act of 1990 § 202,
42 U.S.C.A. § 12132.
1 Case that cites this headnote
[74] Civil Rights Publicly assisted programs
To establish a violation under the
Rehabilitation Act provision prohibiting
disability discrimination by recipients of federal
financial assistance, a plaintiff must show
that the defendants receive federal funding.
Rehabilitation Act of 1973 § 504, 29 U.S.C.A. §
794.
[75] Civil Rights Grounds and subjects;
compensatory damages
To recover monetary damages under Title
II of the ADA or the Rehabilitation Act
provision prohibiting disability discrimination
by recipients of federal financial assistance,
a plaintiff must demonstrate intentional
discrimination. Rehabilitation Act of 1973 § 504,
29 U.S.C.A. § 794; Americans with Disabilities
Act of 1990 § 202, 42 U.S.C.A. § 12132.
3 Cases that cite this headnote
[76] Civil Rights Publicly assisted programs
“Intentional discrimination,” under Title II
of the ADA or the Rehabilitation Act
provision prohibiting disability discrimination
by recipients of federal financial assistance, does
not require personal animosity or ill will, and a
plaintiff may recover under either Act upon a
showing of a statutory violation resulting from
deliberate indifference to the rights secured the
disabled by the Acts. Rehabilitation Act of 1973
§ 504, 29 U.S.C.A. § 794; Americans with
Disabilities Act of 1990 § 202, 42 U.S.C.A. §
12132.
1 Case that cites this headnote
[77] Civil Rights Criminal law enforcement;
prisons
Although Title II of ADA and Rehabilitation Act
provision prohibiting disability discrimination
by recipients of federal financial assistance did
not provide individual capacity suits against
law enforcement officials, in action by arrestee
alleging that officers used excessive force in
arresting him and discriminated against him
during arrest and while in detention, arrestee
could maintain official capacity claims against
officials. Rehabilitation Act of 1973 § 504, 29
U.S.C.A. § 794; Americans with Disabilities Act
of 1990 § 202, 42 U.S.C.A. § 12132.
[78] Civil Rights Liability of Public Employees
and Officials
Neither Title II of the ADA nor
Rehabilitation Act provision prohibiting
disability discrimination by recipients of federal
financial assistance provides for individual
capacity suit. Rehabilitation Act of 1973 § 504,
29 U.S.C.A. § 794; Americans with Disabilities
Act of 1990 § 202, 42 U.S.C.A. § 12132.
1 Case that cites this headnote
[79] Federal Courts Political Subdivisions
Federal Courts Municipal corporations;
cities
State sovereign immunity does not extend to
local governments or municipalities. U.S. Const.
Amend. 11.
[80] Federal Courts Civil rights and
discrimination in general
Abrogation of Eleventh Amendment sovereign
immunity under Title II of the ADA is a
congruent and proportional response to the
history of discrimination against the disabled.
U.S. Const. Amend. 11; Americans with
Disabilities Act of 1990 § 202, 42 U.S.C.A. §
12132.
[81] Federal Courts Civil rights and
discrimination in general
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Because abrogation of Eleventh Amendment
sovereign immunity under Title II of the ADA
is a valid exercise of Congressional power under
the Fourteenth Amendment, sovereign immunity
is not a ground which bars a plaintiff's ADA
claims against a state. U.S. Const. Amends. 11,
14; Americans with Disabilities Act of 1990 §
202, 42 U.S.C.A. § 12132.
[82] Federal Courts Civil rights and
discrimination in general
Where the immunity of the individual defendants
sued in their official capacities under ADA
parallels that of the state, because sovereign
immunity does not shield the state, it does not
shield the individual defendants in their official
capacities. U.S. Const. Amend. 11; Americans
with Disabilities Act of 1990 § 202, 42 U.S.C.A.
§ 12132.
[83] Civil Rights Liability of Public Employees
and Officials
Federal Courts Civil rights and
discrimination in general
Federal Courts Suits for injunctive or
other prospective or equitable relief; Ex parte
Young doctrine
Neither Rehabilitation Act provision prohibiting
disability discrimination by recipients of federal
financial assistance nor Title II of the ADA
displays any intent by Congress to bar a suit
against state officials in their official capacities
for injunctive relief, nor does either create a
remedial scheme so elaborate that it could be
thought to preclude relief under Ex parte Young
exception to sovereign immunity. Rehabilitation
Act of 1973 § 504, 29 U.S.C.A. § 794; Americans
with Disabilities Act of 1990 § 202, 42 U.S.C.A.
§ 12132.
[84] Civil Rights Arrest and detention
Arrestee, who was blind and had physical
disability due to removal of back and shoulder
muscles after flesh-eating bacteria infection,
sufficiently alleged that law enforcement officers
acted with at least deliberate indifference to
arrestee's federally protected rights under ADA
and Rehabilitation Act provision prohibiting
disability discrimination by recipients of federal
financial assistance, where complaint alleged
that it was readily apparent that arrestee was
blind and sightless because he was holding
cane and wearing dark sunglasses in middle of
night, and that officers were aware of arrestee's
disabilities when allegedly attacking him and
refusing to accommodate his disabilities while he
was in custody. Rehabilitation Act of 1973 § 504,
29 U.S.C.A. § 794; Americans with Disabilities
Act of 1990 § 202, 42 U.S.C.A. § 12132.
[85] Civil Rights Discrimination by reason of
handicap, disability, or illness
Civil Rights Publicly assisted programs
Intentional discrimination under Title II of
the ADA and under the Rehabilitation Act
provision prohibiting disability discrimination
by recipients of federal financial assistance
does not require personal animosity or ill will.
Rehabilitation Act of 1973 § 504, 29 U.S.C.A. §
794; Americans with Disabilities Act of 1990 §
202, 42 U.S.C.A. § 12132.
4 Cases that cite this headnote
[86] Civil Rights Discrimination by reason of
handicap, disability, or illness
Civil Rights Publicly assisted programs
To plead intentional discrimination under
the Rehabilitation Act provision prohibiting
disability discrimination by recipients of federal
financial assistance and Title II of the
ADA, plaintiffs must demonstrate deliberate
indifference, which does not require personal
animosity or ill will. Rehabilitation Act of 1973
§ 504, 29 U.S.C.A. § 794; Americans with
Disabilities Act of 1990 § 202, 42 U.S.C.A. §
12132.
1 Case that cites this headnote
[87] Civil Rights Presumptions, Inferences, and
Burdens of Proof
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Intentional discrimination in violation of
the ADA and the Rehabilitation Act
provision prohibiting disability discrimination
by recipients of federal financial assistance may
be inferred when a policymaker acted with
at least deliberate indifference to the strong
likelihood that a violation of federally protected
rights will result from the implementation of the
challenged policy or custom. Rehabilitation Act
of 1973 § 504, 29 U.S.C.A. § 794; Americans
with Disabilities Act of 1990 § 202, 42 U.S.C.A.
§ 12132.
1 Case that cites this headnote
[88] Civil Rights Vicarious or respondeat
superior liability in general
Vicarious liability principles apply under the
ADA. Americans with Disabilities Act of 1990 §
2, 42 U.S.C.A. § 12101 et seq.
4 Cases that cite this headnote
[89] Damages Natural and probable
consequences of torts
Under New York law, where defendant
negligently exposes plaintiff to unreasonable
risk of bodily injury or death, plaintiff may
recover, as proper element of his or her damages,
damages for injuries suffered in consequence of
observation of serious injury or death of member
of his or her immediate family, assuming that
it is established that defendant's conduct was
substantial factor in bringing about such injury
or death.
[90] Infliction of Emotional Distress Zone of
danger
Under New York law, “zone-of-danger rule”
allows one who is himself or herself threatened
with bodily harm in consequence of defendant's
negligence to recover for emotional distress
resulting from viewing of death or serious
physical injury of member of his or her
immediate family, provided that the emotional
disturbance suffered is serious and verifiable.
[91] Infliction of Emotional
Distress Negligent infliction of emotional
distress
Infliction of Emotional Distress Particular
relationships
Under New York law, in order for a plaintiff
threatened with bodily harm in consequence of
defendant's negligence to recover for emotional
distress resulting from viewing of death or
serious physical injury of member of his or her
immediate family, the compensable emotional
distress must be tied, as a matter of proximate
causation, to the observation of the serious injury
or death of the family member, and such injury
or death must have been caused by the conduct
of the defendant.
[92] Infliction of Emotional Distress Law
enforcement activities
Infliction of Emotional Distress Spatial or
temporal proximity to injurious event
Arrestee's spouse plausibly alleged that she
was in “zone of danger” when her disabled
spouse was violently arrested and she witnessed
his resultant injuries, and thus stated claim
under New York law for negligent infliction of
emotional distress arising from arrest; arrestee's
spouse alleged that she stormed out of house to
accost arresting officers for attacking arrestee,
that she was in immediate vicinity as arrestee,
and that there was more than reasonable chance
that she herself would have been physically
accosted and threatened with similar beating as
arrestee.
[93] Damages Mental suffering and emotional
distress
Under New York law, whether a plaintiff was in
the “zone of danger,” for purposes of establishing
a claim for emotional distress resulting from
viewing of death or serious physical injury of
member of plaintiff's immediate family, may
raise factual questions that must be resolved by
a jury.
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[94] Limitation of Actions Continuing injury
in general
Under New York law, claims against law
enforcement officials, for intentional infliction
of emotional distress by arrestee and his spouse,
arising from alleged pattern of harassment,
intimidation, humiliation, and abuse, were
governed by continuing tort doctrine, and
thus were not barred by relevant statutes of
limitations, where arrestee and spouse plausibly
alleged that officers' conduct giving rise to claim
continued beyond initial incident. N.Y. CPLR §
215(1); N.Y. General Municipal Law § 50-i(c).
More cases on this issue
[95] Civil Rights Time to Sue
Federal Courts Civil rights and
discrimination cases
In § 1983 actions, the applicable limitations
period is found in the general or residual state
statute of limitations for personal injury actions.
42 U.S.C.A. § 1983.
[96] Federal Civil Procedure Anticipating
defenses
A complaint need not anticipate, or attempt to
plead around, potential affirmative defenses.
[97] Federal Civil Procedure Anticipating
defenses
Federal Civil Procedure Limitations and
laches
A statute of limitations is an affirmative defense
that need not be addressed in the complaint,
and plaintiffs are not required to allege facts
in their complaint to rebut a potential statute
of limitations affirmative defense that might be
waived.
1 Case that cites this headnote
[98] Federal Civil Procedure Limitations and
laches
Federal Civil Procedure Fact issues
Determining a statute of limitations defense
ordinarily requires a consideration of the merit
of both parties’ claims and defenses, which
generally cannot occur on a motion to dismiss for
failure to state a claim. Fed. R. Civ. P. 12(b)(6).
[99] Limitation of Actions Continuing injury
in general
Under New York law, in an intentional infliction
of emotional distress action based on a pattern
of harassment, intimidation, humiliation and
abuse, the “continuing tort doctrine” permits the
plaintiff to rely on wrongful conduct occurring
more than one year prior to commencement of
the action, and thus outside of the limitations
period, so long as the final actionable event
occurred within one year of the suit. N.Y. CPLR
§ 215.
[100] Infliction of Emotional Distress Searches,
seizures, and arrests
Infliction of Emotional Distress Law
enforcement activities
Under New York law, claims against law
enforcement officials, for negligent infliction of
emotional distress by arrestee and his spouse,
arising from alleged constitutional violations
during and after arrest, were not cognizable to
extent that were properly construed as false arrest
and false imprisonment claims.
1 Case that cites this headnote
[101] Public Employment Law enforcement
personnel
Under New York law, a plaintiff may proceed
with negligence claims brought against law
enforcement officials if such claims are not
duplicative of false arrest, false imprisonment, or
malicious prosecution.
2 Cases that cite this headnote
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Attorneys and Law Firms
*302 Jesse P. Ryder, Ryder Law Firm, East Syracuse, NY,
A. Cabral Bonner, Charles A. Bonner, Law Offices of Bonner
& Bonner, Sausalito, CA, Eric R. Seifert, New York, NY, for
Plaintiffs.
John D. Aspland, Corey A. Ruggiero, Fitzgerald Morris
Baker Firth, P.C., Glens Falls, NY, Scott Goldie, Ducharme
Goldie & Adams P.C., Canton, NY, for Defendants City of
Ogdensburg, City of Ogdensburg Police Department.
Anneliese Aliasso, John L. Murad, Jr., Hancock Estabrook,
LLP, Syracuse, NY, for Defendants Saint Lawrence County,
Saint Lawrence County Sheriffs’ Department, Brooks
Bigwarfe, Matthew Merria.
John D. Aspland, Fitzgerald Morris Baker Firth, P.C., Glens
Falls, NY, Scott Goldie, Ducharme Goldie & Adams P.C.,
Canton, NY, for Defendants Robert Wescott, Charles Shaver,
Danielle Pryce, Joshua Sirles, Scott Wilson.
MEMORANDUM-DECISION AND ORDER
LAWRENCE E. KAHN, United States District Judge
I. INTRODUCTION
Plaintiffs Timothy Lalonde and Theresa Lalonde
(collectively, “Plaintiffs”) commenced this civil action
on February 18, 2022, against Defendants the City of
Ogdensburg, the City of Ogdensburg Police Department,
Ogdensburg Police Department Chief Robert Westcott, Police
Officers Charles Shaver, Danielle Pryce, Joshua Sirles,
Scott Wilson, and Does 1–100 (collectively, “Ogdensburg
Defendants”), as well as Saint Lawrence County, the Saint
Lawrence County Sheriffs’ Department, Saint Lawrence
County Sheriff Brooks Bigwarfe, Sheriff Matthew Merria,
and the aforementioned Does 1–100 (collectively, “Saint
Lawrence Defendants”). 1 Dkt. No. 1 (“Complaint”).
Saint Lawrence Defendants filed a motion to dismiss for
failure to state a claim pursuant to *303 Federal Rule of Civil
Procedure 12(b)(6). Dkt. No. 9 (“Saint Lawrence Defendants’
Motion to Dismiss”). Subsequently, Ogdensburg Defendants
filed a motion to dismiss for failure to state a claim pursuant
to Rule 12(b)(6). Dkt. No. 10 (“Ogdensburg Defendants’
Motion to Dismiss”). Plaintiffs filed a response to Saint
Lawrence Defendants’ Motion to Dismiss, Dkt. No. 12
(“Plaintiffs’ Response to Saint Lawrence Defendants”), and a
response to Ogdensburg Defendants’ Motion to Dismiss, Dkt.
No. 17 (“Plaintiffs’ Response to Ogdensburg Defendants”).
Thereafter, Ogdensburg Defendants filed a reply, Dkt. No.
19 (“Ogdensburg Defendants’ Reply”) and Saint Lawrence
Defendants filed a reply, Dkt. No. 20 (“Saint Lawrence
Defendants’ Reply”). 2
For the reasons that follow, the Court grants in part and
denies in part Saint Lawrence Defendants’ and Ogdensburg
Defendants’ Motions to Dismiss.
II. BACKGROUND
The following facts, which the Court assumes to be true at this
stage, are taken from the Complaint. See Vega v. Hempstead
Union Free School Dist., 801 F.3d 72, 76 (2d Cir. 2015).
Timothy Lalonde “was rendered legally blind and partially
disabled” because “of the aftermath of a life-threatening
disease that severely diminished [his] physical abilities.”
Compl. ¶ 18. Specifically, “[o]n account of encountering and
surviving a life-threatening flesh-eating bacteria in or around
the year 2000” he “was left without his back, stomach, and
right shoulder muscles which the surgeons had to remove in
order to save [his] life.” Id. ¶ 32. “In addition, the bacteria
attacked his optic nerves which left him legally blind.” Id.
Thus, Plaintiff “lost the complete use of his vision, the right
side of his upper body, any strength in his core torso having
lost the muscles in his back, stomach and right shoulder”
and experienced “chronic emotional and psychological stress
from his disabled state.” Id. ¶ 51.
On Sunday, March 1, 2020, at approximately 12:29
A.M., Officer Shaver “responded to 510 Pleasant Avenue,
Ogdensburg, NY pursuant to a neighbor's 911 call informing
dispatch that two neighbors were loudly arguing in front
of one of the neighbor's homes.” Id. ¶ 17. Shaver “heard
the tail end of an exchange” between Timothy Lalonde and
“his daughter's boyfriend, Randall Outlaw, who, along with
[Timothy Lalonde's] daughter Ashley, resided at [Timothy
Lalonde's] second home located next door to his residence at
506 Pleasant Avenue, Ogdensburg, NY.” Id.
Before Timothy Lalonde's argument with Outlaw that
evening, Theresa Lalonde, “[Timothy Lalonde's wife,] had
picked up her husband from town and drove him to their
home.” Id. at ¶ 18. Theresa Lalonde is “charged with
having to assist [Timothy] with various tasks relating to
the maintenance of his personal hygiene and sight required
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tasks.” Id. at ¶ 51. “Upon arriving at home[,]” Timothy
Lalonde “exited the car and with his long white cane, tapped
on the curb and made his way over to his second house” and
had the “intention of speaking with his daughter's boyfriend,
Randall Outlaw ....” Id. at ¶ 19. Timothy Lalonde “found
Mr. Outlaw at home and strongly criticized him for *304
discharging a firearm outside of [Timothy Lalonde's home]
while his daughter Ashley was not home, and her three
younger children were present.” Id.
Thereafter, an argument between Timothy Lalonde and
Outlaw ensued and “[c]oncerned with such a late-night
confrontation, a nearby neighbor called 911 to report the
argument.” Id. ¶ 20. When Shaver arrived “the exchange
between [Timothy Lalonde] and Mr. Outlaw had run its
course.” Id. ¶ 21. Because Timothy Lalonde is “legally
blind [he] was unaware that” Shaver “had just momentarily
arrived.” Id. Theresa Lalonde asked Shaver “to inform her
husband who he on account [of] her husband [being] unable
to see.” Id. At this time, Timothy Lalonde “regained his
composure and the encounter between” Timothy Lalonde and
Outlaw “was complete.” Id. ¶ 22.
However, “[a]pproximately three minutes after both
[Shaver's] arrival and the complete de-escalation of the
exchange between [Timothy Lalonde] and his daughter's
boyfriend, several law enforcement patrol cars came
screeching to halt in front of [Timothy Lalonde's] property.”
Id. ¶ 23. Officers Pryce and Sirles “leaped out of their
[Ogdensburg Police Department] patrol vehicles and Sheriff
Merria “jumped out” of his [Saint Lawrence County Sheriffs’
Department] vehicle. Id. ¶ 24. Without “acknowledgement”
of or “consultation” with Shaver “who was standing at the
scene in firm control of a readily deescalated event with a
blind man holding a cane and wearing dark sunglasses[,]”
Pryce, Sirles and Merria “surrounded” Timothy Lalonde. Id.
¶ 25.
“Despite it being readily apparent that [Timothy Lalonde]
was blind and sightless,” Pryce “charged towards [him] and
began screaming at him while circling around him.” Id. ¶ 26.
“On account of being sightless” Timothy Lalonde “tracked”
Pryce's voice and “turned his body in her voice's direction.”
Id. ¶ 27. After Timothy Lalonde turned, Sirles, Shaver, and
Merria “forcefully rushed toward [Timothy Lalonde] and
slammed his body with such force that [his] body came to rest
upon a driveway on the opposite side of the street.” Id. ¶ 28.
Upon “[h]earing the commotion,” Theresa Lalonde “stormed
out of her house screaming to” Pryce, Sirles, Shaver, and
Merria “that her husband is blind and that ‘you're killing my
husband.’ ” Id. ¶ 29.
Sirles, Shaver, and Merria “pounced onto [Timothy
Lalonde's] back,” while Pryce “with her knee lifted, dropped
her knee downward onto [his] ear[,] shattering and lacerating
its inner cartilage.” Id. ¶ 30. While these officers were
“bashing [Timothy Lalonde's] head against the pavement,”
Merria “was yanking [his] left arm [and] ordering him to
release it from under the weight of his body.” Id. ¶ 31.
However, Timothy Lalonde “responded that he couldn't do
it as he was disabled.” Id. Timothy Lalonde “screamed that
he was unable to comply with [Pryce, Sirles, Shaver, and
Merria's] commands to move his body in order to free up his
immobilized arm.” Id. ¶ 33. As noted above, Timothy Lalonde
“was left without his back, stomach, and right shoulder
muscles” because surgeons had removed them in order to save
his life after he encountered “a life-threatening flesh-eating
bacteria ....” Id. ¶ 32.
Although Shaver “had just minutes before witnessed the
de-escalation of [Timothy Lalonde's] encounter with his
daughter's boyfriend[,]” including Plaintiff's “complete return
to composure[,]” Shaver “inflicted two taser shots that jolted
[Timothy Lalonde's] body.” Id. ¶ 34. At the same time, Merria
“ignor[ed Timothy Lalonde's] assertion that his disability
prevented him from moving” and Merria “began aggressively
*305 yanking on [Timothy Lalonde's] left wrist, elbow and
arm resulting in an audible ‘pop’ that left [him] numb with
excruciating pain and a shattered broken wrist, fractured and
dislocated elbow, and torn rotator cuff.” Id. ¶ 35.
“With blood pouring from his ear and [Timothy Lalonde]
grimacing with pain [while] crying out that his arm, elbow
and wrist were broken,” Pryce, Sirles, Shaver, and Merria
“dragged him to the patrol car.” Id. ¶ 36. However, because
Timothy Lalonde “lacked stomach and back muscles to keep
him upright when shackled with his handcuffs behind his
back,” Pryce, Sirles, Shaver, and Merria “ ‘improvised’ by
lifting [Timothy Lalonde's] body and throwing him laterally
into the patrol car[,] sending his head crashing against the
opposite passenger door.” Id. ¶ 37. “To secure [Timothy
Lalonde] in the back of the patrol car,” Pryce, Sirles, Shaver,
and Merria “cuffed [his] right wrist and extending out his
previously disabled right arm, attached it to the vehicle's
ceiling while [he] lay prone across the back seats shivering
with pain and repeatedly requesting medical assistance.” Id.
¶ 38.
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Pryce, Sirles, Shaver, and Merria arrived at the police station
with Timothy Lalonde and “yanked [his] feet to pull him out
from his prone position in the backseat of the patrol car” but
“forg[ot] that they had secured [his] right arm and wrist to the
back passenger ceiling ....” Id. ¶ 39. “After several forceful
tugs that resulted in straining his previously disabled right
arm, rotator cuff, and wrist that was attached to the vehicle[’s]
ceiling,” Pryce, Sirles, Shaver, and Merria finally “recalled
the means by which they secured him to the patrol car and
released the handcuff from the ceiling.” Id. Thereafter, Pryce,
Sirles, Shaver, and Merria “yank[ed]” Plaintiff “out of the
patrol car by his feet wherein he forcefully crashed to the
ground in a heap.” Id. ¶ 40. Then Pryce, Sirles, Shaver, and
Merria “yanked [him] off the ground by his belt and back of
his pants with such force that his jeans ripped and his leather
belt tore in half.” Id.
Despite the “knowledge” that Timothy Lalonde “was
legally and categorically blind,” the Defendant law
enforcement officials “intentionally and mockingly refused
to accommodate [Timothy Lalonde's] disability” as they
brought him “into the police department to complete his arrest
processing.” Id. ¶ 41. Plaintiff was disoriented and “[w]ithout
guiding [him] to a chair,” Pryce, Sirles, Shaver, and Merria
“watched [him] attempt to orient himself in the office seeking
to locate a place to sit down.” Id. While he was disoriented,
Timothy Lalonde “accidentally brushed against” one of the
Defendant officers “who screamed, ‘don't touch me or I'll
shoot you.’ ” Id.
During this time, Officers Does 1–100 and Chief Westcott
“persisted in ridiculing and refusing to accommodate
[Timothy Lalonde] by requiring him to stand facing the wall
with his hands stretched out touching the wall while they
interrogated and booked him on charges of disorderly conduct
and resisting arrest.” Id. ¶ 42. Throughout “[t]he entirety of
this time, blood from [Timothy Lalonde's] ruptured cartilage
continued to trickle out from his ear while he additionally
experienced excruciating pain of a broken wrist, elbow
and torn rotator cuff.” Id. ¶ 43. When Plaintiff “repeatedly
requested medical attention” he was “repeatedly ignored.” Id.
Subsequently, Timothy Lalonde was interrogated, during
which time Defendant law enforcement officials “fabricated”
an “incident meant to provide an alternative explanation
to account for [Plaintiff's] injuries ....” Id. ¶ 44. Defendant
officers, including Wilson and Chief Westcott, “concocted
a fallacious series of events that *306 served to justify
the grounds for their arrest and/or infliction of ‘reasonable’
force, i.e., [Plaintiff's] injuries occurred on account of his
being drunk and inciting the [officers] to beat him, while
purportedly claiming earlier in the evening that he was God
and wanted to die, and that previous to his police encounter,
he was ‘jumped’ by four unidentified men on Patterson Street
in Ogdensburg.” Id. ¶¶ 44, 91.
“After being made to stand against the stationhouse wall
for one hour” while Defendant officers “attempted to
have [Timothy Lalonde] subscribe and ‘confess’ to their
fabrications, [Plaintiff] was finally permitted to obtain
medical attention.” Id. ¶ 45. When Plaintiff “was transported
to Claxon-Hepburn Medical Center in Ogdensburg” the
“Claxon-Hepburn medical staff rapidly evaluated that [his]
medical condition was so severe and dire that he needed
immediate transport to Upstate Medical University in
Syracuse, New York, some three hours away.” Id. ¶ 46.
“After medical evaluation, it was determined that [Timothy
Lalonde] incurred a severe cervical sprain, a broken left wrist,
concussion syndrome, a torn rotator cuff tendon, a dislocated
and fractured left elbow, and torn inner ear cartilage.” Id. ¶ 47.
Subsequently, “[i]n order to substantiate [Timothy Lalonde's]
arrest without probable cause and the unwarranted and
patently unreasonable force inflicted upon him, the [Saint
Lawrence County] District Attorney, upon reliance” of
Defendant officers’ “fabricated police reports, persisted in
charging [Timothy Lalonde] with disorderly conduct and
resisting arrest.” Id. ¶ 48. “After defending the fabricated
charges by having to appear before the criminal court on
approximately five court appearances, [Timothy Lalonde's]
charges were dismissed on or about July 21, 2020.” Id. ¶ 49.
Plaintiff asserts that the aforementioned conduct “has had an
exponentially debilitative impact on [his] previous disabled
state.” Id. ¶ 50. Among the injuries Timothy Lalonde
experienced were: “sustained brain damage, a torn left side
rotator cuff tendon, a dislocated and fractured left elbow,
and a torn cartilage in his right ear.” Id. ¶ 52. “These
injuries required [him] to undergo three surgeries resulting
in the almost total incapacitation of his left upper body
which previous to March 1, 2020 was his only functional
and operational side on account of the damages caused by
the flesh-eating bacteria.” Id. This has rendered him “fully
dependent on his wife [Theresa Lalonde's] assistance for
all aspects of his daily needs.” Id. Accordingly, Timothy
Lalonde asserts that he “will require such complete and
full care assistance, as well as requiring continuing medical
treatment, for the balance of his life.” Id. ¶ 53. Furthermore,
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Timothy Lalonde states that he has “incurred a loss of hearing
on account of [Pryce's] ... assault with her knee” and he
has also “been exponentially afflicted by anxiety, mental
and emotional distress, humiliation, fear, loss of enjoyment,
psychic injuries, headaches, nightmares, insomnia, and an
unceasing sense of doom and misery.” Id. ¶ 54.
The charges against Timothy Lalonde were dismissed on or
about July 21, 2020. Id. ¶ 49. However, on or about April
1, 2021, “approximately one year” after the aforementioned
conduct and “eight months after his criminal charges
were dismissed,” id. ¶ 55, “[u]pon the direction of” the
Ogdensburg Police Department and Chief Westcott, Officer
Wilson “was ordered to make a service call to [Timothy
Lalonde's] residence” and Wilson requested Timothy Lalonde
“accompany him to the Police station[,]” id. ¶ 56. Wilson
“informed [Plaintiff] that for some undisclosed reason, the
[Ogdensburg Police Department] failed to *307 take [his]
fingerprints, mugshots, and gather other information with
respect to [Plaintiff's] March 1, 2020 arrest and subsequent
prosecution.” Id. Wilson told Plaintiff that “if he refused to
accompany him to the Police station, that the [Ogdensburg
Police Department] would seek a warrant for his appearance.”
Id. “Upon requesting an accommodation on account of his
disability, [Wilson] vehemently refused.” Id.
Timothy Lalonde “agreed to be taken to the Police station
where” Wilson and Chief Westcott “commenced with re-
interrogating him regarding the March 1, 2020 arrest”
including the “utter fabrications” Plaintiffs allege had been
previously made to attempt to justify the conduct of Shaver,
Pryce, Sirles, and Merria. Id. ¶ 57. During this time, Plaintiff
“experienc[ed] post traumatic and emotional distress under
the circumstances ....” Id. Plaintiff asserts that Wilson and
Chief Westcott were pursuing “an ongoing attempt to secure
a coverup for their actions on [March 1, 2020], perpetuating
the fabrication that [Timothy Lalonde] was attacked by four
unidentified assailants on Patterson Street in Ogdensburg on
the same evening that” Shaver, Pryce, Sirles, and Merria
“attacked [Plaintiff] in front of his house.” Id. ¶ 58.
Plaintiffs assert: (1) 42 U.S.C. § 1983 (“Section 1983”) claims
pursuant to the Fourth Amendment for false arrest, assault,
battery, false imprisonment, and excessive force against
Shaver, Pryce, Sirles, Merria, Wilson, Chief Westcott, and
Does 1–100; (2) Section 1983 claims pursuant to the Fourth
and Fourteenth Amendment for failure to intervene against
Shaver, Pryce, Sirles, Merria, Chief Westcott, and Does 1–
100; (3) Section 1983 claims pursuant to the Fourteenth
Amendment for deliberate indifference to medical needs
against Shaver, Pryce, Sirles, Merria, Chief Westcott, and
Does 1–100; (4) Section 1983 conspiracy claims against
Shaver, Pryce, Sirles, Merria, Wilson, Chief Westcott, and
Does 1–100; (5) Section 1983 claims pursuant to the
Fourteenth Amendment for fabrication of evidence against
Shaver, Pryce, Sirles, Merria, Chief Westcott, and Does 1–
100; (6) Section 1983 municipal liability claims pursuant
to Monell v. Dep't of Soc. Servs., 436 U.S. 658, 98 S.Ct.
2018, 56 L.Ed.2d 611 (1978) against the City of Ogdensburg
and Saint Lawrence County; (7) Section 1983 supervisory
liability claims against Chief Westcott, Sheriff Bigwarfe, and
Does 1–100; (8) claims for violations of the Americans with
Disabilities Act (“ADA”), 42 U.S.C. §§ 12101, et seq., and the
Rehabilitation Act (“RA”), 29 U.S.C. §§ 701, et seq., against
all Defendants; (9) 42 U.S.C. § 1985(3) (“Section 1985(3)”)
claims for conspiracy to deprive rights against all Defendants;
(10) 42 U.S.C. § 1986 (“Section 1986”) claims for neglect to
prevent conspiracy to deprive rights against all Defendants;
(11) New York State law claims for negligent infliction of
emotional distress against Shaver, Pryce, Sirles, Merria, and
Does 1–100; (12) New York State law claims for intentional
infliction of emotional distress against Shaver, Pryce, Sirles,
Merria, and Does 1–100; (13) New York State law claims for
negligence against all Defendants; (14) a New York State law
trespass claim against Wilson; and (15) New York State law
claims for loss of consortium with respect to Theresa Lalonde
against all Defendants. Id. ¶¶ 60–182. Plaintiffs also request
injunctive relief. Id. at 36–38.
III. LEGAL STANDARD
Under Federal Rule of Civil Procedure 12(b), “a party may
assert the following [defense] by motion: ... (6) failure to state
a claim upon which relief can be granted ....” Fed. R. Civ. P.
12(b)(6). In order to *308 survive a motion to dismiss for
failure to state a claim, a plaintiff must plead “only enough
facts to state a claim to relief that is plausible on its face.” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955,
167 L.Ed.2d 929 (2007). A claim has facial plausibility “when
the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for
the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678,
129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Twombly,
550 U.S. at 556, 127 S.Ct. 1955). This plausibility standard,
“is not akin to a ‘probability requirement,’ but it asks for
more than a sheer possibility that a defendant has acted
unlawfully.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (quoting
Twombly, 550 U.S. at 556, 127 S.Ct. 1955). “Threadbare
recitals of the elements of a cause of action, supported by
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mere conclusory statements, do not suffice.” Iqbal, 556 U.S.
at 678, 129 S.Ct. 1937 (citing Twombly, 550 U.S. at 555, 127
S.Ct. 1955). The Supreme Court has stated that while “the
pleading standard Rule 8 announces does not require ‘detailed
factual allegations,’ ... it demands more than an unadorned,
the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556
U.S. at 678, 129 S.Ct. 1937 (quoting Twombly, 550 U.S. at
555, 127 S.Ct. 1955).
[1] “[A] defendant has the burden of proof on a Rule 12(b)
(6) motion[.]” A.S. v. City Sch. Dist. of Albany, 585 F. Supp.
3d 246, 272 (N.D.N.Y. 2022); see also Pearl River Union Free
Sch. Dist. v. Duncan, 56 F. Supp. 3d 339, 351 (S.D.N.Y. 2014)
(“ ‘[T]he movant bears the burden of proof on a motion to
dismiss under Rule 12(b)(6).’ ” (quoting Gonzalez v. Option
One Mortg. Corp., No. 12-CV-1470, 2014 WL 2475893 at *2,
2014 U.S. Dist. LEXIS 76789 at *7 (D. Conn. June 3, 2014))).
Moreover, in the context of a Rule 12(b)(6) motion the
Court “construe[s] plaintiffs’ complaint liberally, ‘accepting
all factual allegations in the complaint as true, and drawing
all reasonable inferences in the plaintiffs’ favor.’ ” Holmes v.
Grubman, 568 F.3d 329, 335 (2d Cir. 2009) (quoting Burch
v. Pioneer Credit Recovery, Inc., 551 F.3d 122, 124 (2d Cir.
2008)).
IV. DISCUSSION
A. Defendants’ Arguments as to Plaintiffs’ Assault
and Battery and False Imprisonment Claims
[2] Section 1983 states:
Every person who, under color of
any statute, ordinance, regulation,
custom or usage, of any State ...
subjects, or causes to be subjected,
any citizen of the United States or
other person within the jurisdiction
thereof to the deprivation of any rights,
privileges, or immunities secured by
the Constitution and laws [of the
United States] shall be liable to the
party injured in an action at law, suit in
equity, or other proper proceeding for
redress ....
42 U.S.C. § 1983. “Section 1983 itself creates no substantive
rights; it provides only a procedure for redress for the
deprivation of rights established elsewhere.” Sykes v. James,
13 F.3d 515, 519 (2d Cir. 1993) (citation omitted).
[3] Saint Lawrence Defendants argue, “[w]ith respect to
assault and battery claims, there is no federal common
law for such torts, and thus, there can be no assault
and battery claim grounded in § 1983.” Dkt. No. 9-3 at
6 (“Saint Lawrence Defendants’ Memorandum of Law”).
Saint Lawrence Defendants assert: “Instead, such claims are
construed as an excessive force claim.” Id. Additionally,
Saint Lawrence Defendants state: “Likewise, claims for false
arrest and false imprisonment are cut from the same cloth,
and the false imprisonment claim is dismissed *309 in
favor of the false arrest claim.” Id. at 6–7. Ogdensburg
Defendants reiterate the arguments “noted in co-defendant St.
Lawrence County's Memorandum of Law.” Dkt. No. 10-1 at
3 (“Ogdensburg Defendants’ Memorandum of Law”).
Plaintiffs respond:
Despite ... wide breadth of protection
afforded under Section 1983 claims
grounded on Fourth Amendment
protections and the distinction
between the kinds of seizures that the
Amendment protects, district courts
in New York effectively conflate, as
one cause of action, the otherwise
distinct Fourth Amendment violations
of false arrest and false imprisonment
under the guise that these two seizures
are effectively the same, i.e., that
in the interest of sound judicial
administration, the diminishment of
the breadth and reach of the rights
afforded are otherwise justified.
Pls.’ Resp. to Saint Lawrence Defs.’ at 3. Furthermore,
Plaintiffs assert that Saint Lawrence Defendants “have
misconstrued Plaintiffs’ first cause of action as seeking
separate Section 1983 claims under the Fourth Amendment,
when instead, Plaintiffs have elicited the various means by
which Defendants violated Mr. Lalonde's rights under the
Fourth Amendment in order to advance the full breadth of
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his rights despite the court's limitation thereof on account of
sound judicial discretion.” Id. at 3–4.
The Fourth Amendment to the United States Constitution
states:
The right of the people to be secure
in their persons, houses, papers, and
effects, against unreasonable searches
and seizures, shall not be violated,
and no Warrants shall issue, but
upon probable cause, supported by
Oath or affirmation, and particularly
describing the place to be searched,
and the persons or things to be seized.
U.S. Const. amend. IV.
[4] [5] “ ‘[W]hether or not a search is reasonable within
the meaning of the Fourth Amendment,’ [the Supreme Court
has] said, never ‘depend[ed] on the law of the particular
State in which the search occurs.” Virginia v. Moore, 553
U.S. 164, 172, 128 S.Ct. 1598, 170 L.Ed.2d 559 (2008)
(quoting California v. Greenwood, 486 U.S. 35, 43, 108 S.Ct.
1625, 100 L.Ed.2d 30 (1988)). “While ‘[i]ndividual States
may surely construe their own constitutions as imposing
more stringent constraints on police conduct than does the
Federal Constitution,’ state law did not alter the context of
the Fourth Amendment.” Moore, 553 U.S. at 172, 128 S.Ct.
1598 (citation omitted) (quoting Greenwood, 486 U.S. at 43,
108 S.Ct. 1625). The Supreme Court “ha[s] applied the same
principle in the seizure context.” Moore, 553 U.S. at 172,
128 S.Ct. 1598. As the Supreme Court stated in Moore: “We
thought it obvious that the Fourth Amendment's meaning
did not change with local law enforcement practices—even
practices set by rule. While those practices ‘vary from place to
place and from time to time,’ Fourth Amendment protections
are not ‘so variable’ and cannot ‘be made to turn upon such
trivialities.’ ” 553 U.S. at 172, 128 S.Ct. 1598 (quoting Whren
v. United States, 517 U.S. 806, 815, 116 S.Ct. 1769, 135
L.Ed.2d 89 (1996)).
[6] [7] [8] [9] “[A] free citizen's claim that law
enforcement officials used excessive force in the course
of making an arrest, investigatory stop, or other ‘seizure’
of his person ... are properly analyzed under the
Fourth Amendment's ‘objective reasonableness’ standard ....”
Graham v. Connor, 490 U.S. 386, 388, 109 S.Ct. 1865,
104 L.Ed.2d 443 (1989). Thus, “[e]very person has a
Fourth Amendment right to be free *310 from excessive
force by police officers, including during the course of an
arrest.” Jackson v. Cnty. of Ulster, No. 22-CV-148, 2022
WL 2954370, at *2, 2022 U.S. Dist. LEXIS 132123, at
*5 (N.D.N.Y. July 26, 2022) (citing Graham, 490 U.S. at
395, 109 S.Ct. 1865). “As in other Fourth Amendment
contexts ... the ‘reasonableness’ inquiry in an excessive force
case is an objective one: the question is whether the officers’
actions are ‘objectively reasonable’ in light of the facts
and circumstances confronting them, without regard to their
underlying intent or motivation.” Graham, 490 U.S. at 397,
109 S.Ct. 1865. “Because ‘[t]he test of reasonableness under
the Fourth Amendment is not capable of precise definition
or mechanical application,’ ... its proper application requires
careful attention to the facts and circumstances at issue,
whether the subject 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.” Id. at 396, 109
S.Ct. 1865 (citation omitted) (quoting Bell v. Wolfish, 441
U.S. 520, 559, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979)).
[10] [11] [12] [13] Thus, the Supreme Court has stated
that the reasonableness of searches and seizures under the
Fourth Amendment does not depend on state law. See Moore,
553 U.S. at 172, 128 S.Ct. 1598. It is true that “a number
of courts ... have held that the Fourth Amendment excessive
force standard applies to assault and battery claims against
a police officer under New York State law.” Jackson, 2022
WL 2954370, at *9, 2022 U.S. Dist. LEXIS 132123, at *27;
see also Posr v. Doherty, 944 F.2d 91, 95 (2d Cir. 1991)
(stating that “except for § 1983’s requirement that the tort
be committed under color of state law, the essential elements
of [excessive force and state law assault and battery claims]
[a]re substantially identical” under New York State law). 3
However, the starting point for such analysis is “the Graham
Fourth Amendment standard” which is “based upon the use of
excessive force by the police.” Jackson, 2022 WL 2954370,
at *9, 2022 U.S. Dist. LEXIS 132123, at *27. Accordingly, in
Jackson, the court found that “because Plaintiff has stated a
plausible Fourth Amendment claim against [a police-officer-
defendant] based on the use of excessive force, and because
Plaintiff's excessive force and battery claims are based upon
the same factual circumstances, Plaintiff has stated a plausible
civil battery claim against [the police-officer-defendant].” Id.
at *9, 2022 U.S. Dist. LEXIS 132123, at *27–28. Based on the
plaintiff's plausible statement of a Fourth Amendment claim,
the Jackson court said that “the civil battery claim will be
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allowed to proceed.” Id. at *9, 2022 U.S. Dist. LEXIS 132123,
at *28.
Here, Saint Lawrence Defendants and Ogdensburg
Defendants do not contest Plaintiffs’ claims as to Fourth
Amendment excessive force. Saint Lawrence Defs.’ *311
Mem. of Law at 6–7; Ogdensburg Defs.’ Mem. of Law at
3. Indeed, both Saint Lawrence Defendants and Ogdensburg
Defendants ask only for “partial dismissal” of the assault and
battery claims. Saint Lawrence Defs.’ Mem. of Law at 6;
Ogdensburg Defs.’ Mem. of Law at 3 (emphasis omitted).
Saint Lawrence Defendants and Ogdensburg Defendants
argue that this is necessary because such claims could be
considered duplicative. Saint Lawrence Defs.’ Mem. of Law
at 7; Ogdensburg Defs.’ Mem. of Law at 3.
[14] Because Saint Lawrence Defendants and Ogdensburg
Defendants appear to concede that Plaintiffs have plausibly
stated Section 1983 Fourth Amendment excessive force
claims “and because Plaintiff's excessive force and [assault
and] battery claims are based upon the same factual
circumstances[,]” the Court finds that “Plaintiff[s] ha[ve]
stated a plausible [civil assault and] civil battery claim
against” Shaver, Pryce, Sirles, Merria, Wilson, Chief
Westcott, and Does 1–100. Jackson, 2022 WL 2954370, at
*9, 2022 U.S. Dist. LEXIS 132123, at *27–28. Therefore,
in addition to Plaintiffs’ Section 1983 Fourth Amendment
excessive force claims, which are allowed to proceed, the
Court also finds that the civil assault and “the civil battery
claim[s] will be allowed to proceed” under New York State
law. Id. at *9, 2022 U.S. Dist. LEXIS 132123, at *28. 4
[15] [16] [17] [18] “The common law tort of false arrest
is a species of false imprisonment, an action ‘derived from
the ancient common-law action of trespass [that] protects the
personal interest of freedom from restraint of movement.’ ”
Singer v. Fulton Cnty. Sheriff, 63 F.3d 110, 118 (2d Cir. 1995)
(emphasis added) (quoting Broughton v. State of New York,
37 N.Y.2d 451, 456, 373 N.Y.S.2d 87, 335 N.E.2d 310 (N.Y.
1975)). Therefore, “Section 1983 claims for false arrest and
false imprisonment are ‘substantially the same’ in all relevant
respects as claims for false arrest and false imprisonment
under state law.” Levantino v. N.Y. State Police, 56 F. Supp.
3d 191, 199 (E.D.N.Y. 2014) (citing Jocks v. Tavernier, 316
F.3d 128, 134 (2d Cir. 2003)). Indeed, “[i]n New York, the
tort of false arrest is synonymous with false imprisonment.”
Williams v. Olsen, No. 18-CV-1446, 638 F.Supp.3d 204, 223,
2022 U.S. Dist. LEXIS 198224 at *40 (N.D.N.Y. Nov. 1,
2022) (Kahn, J.) (citing Jacques v. Sears, Roebuck & Co., 30
N.Y.2d 466, 473, 334 N.Y.S.2d 632, 285 N.E.2d 871 (N.Y.
1972) and Posr, 944 F.2d at 96). 5
*312 Similar to Plaintiffs’ excessive force and assault and
battery claims, Saint Lawrence Defendants and Ogdensburg
Defendants do not dispute that Plaintiffs have plausibly
stated claims as to Fourth Amendment false arrest. Saint
Lawrence Defs.’ Mem. of Law at 6–7; Ogdensburg Defs.’
Mem. of Law at 3. As stated above, both Saint Lawrence
Defendants and Ogdensburg Defendants request “partial
dismissal” of the false imprisonment claims. Saint Lawrence
Defs.’ Mem. of Law at 6; Ogdensburg Defs.’ Mem. of Law at
3 (emphasis omitted). Similarly, Saint Lawrence Defendants
and Ogdensburg Defendants argue that false arrest and false
imprisonment claims are duplicative. Saint Lawrence Defs.’
Mem. of Law at 7; Ogdensburg Defs.’ Mem. of Law at 3.
However, because “false arrest and false imprisonment are
synonymous causes of action because the elements of the
claims are identical[,]” Levantino, 56 F. Supp. 3d at 200,
the Court sees no need to dismiss the false imprisonment
claims. Since Saint Lawrence Defendants and Ogdensburg
Defendants appear to concede that Plaintiffs have plausibly
stated Section 1983 Fourth Amendment false arrest claims,
and because “Section 1983 claims for false arrest and false
imprisonment are ‘substantially the same’ in all relevant
respects as claims for false arrest and false imprisonment
under state law[,]” Levantino, 56 F. Supp. 3d at 199, the Court
finds that Plaintiffs’ Section 1983 Fourth Amendment false
arrest claims and New York State false imprisonment claims
are allowed to proceed.
[19] In addition, Saint Lawrence Defendants assert that
“Plaintiff failed to allege any specific acts Officer Merria
took which acted as a violation of Mr. Lalonde's rights.”
Saint Lawrence Defs.’ Mem. of Law at 7. Saint Lawrence
Defendants argue that Plaintiffs have not specifically
identified the officer who dragged Timothy Lalonde into
the patrol car, handcuffed him, or removed him from the
patrol car upon arrival at the police station. Id. Similarly,
Ogdensburg Defendants argue with regard to Pryce, Shaver,
and Sirles, that “[n]o specific officer is identified” as to the
aforementioned conduct. Ogdensburg Defs.’ Mem. of Law at
3.
[20] [21] [22] [23] Under Federal Rule of Civil
Procedure 8(d): “A party may set out two or more statements
of a claim or defense alternatively or hypothetically, either a
single count or defense or in separate ones. If a party makes
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alternative statements, the pleading is sufficient if any one
of them is sufficient.” Fed. R. Civ. P. 8(d)(2). Rule 8(d)
also states: “A party may state as many separate claims or
defenses as it has, regardless of consistency.” Fed. R. Civ.
P. 8(d)(3). Thus, “[w]ith respect to inconsistent pleadings, ‘a
complaint may plead in the alternative.’ ” Ajinomoto Co. v. CJ
Cheiljedang Corp., No. 16-CV-03498, 2021 WL 4430200, at
*3, 2021 U.S. Dist. LEXIS 184945, at *7 (S.D.N.Y. Sept. 27,
2021) (quoting Astroworks, Inc. v. Astroexhibit, Inc., 257 F.
Supp. 2d 609, 616 n.10 (S.D.N.Y. 2003)). “The inconsistency
may lie either in the statement of the facts or in the legal
theories adopted ....” Henry v. Daytop Village, 42 F.3d 89, 95
(2d Cir. 1994) (quotations omitted). 6 This “flexibility ... is
especially appropriate in civil rights cases, in which complex
inquiries into the parties’ intent may sometimes justify *313
raising multiple, inconsistent claims.” Id. “A plaintiff may
not, however, be able to recover on both theories if the
allegations conflict.” Ajinomoto, 2021 WL 4430200, at *3,
2021 U.S. Dist. LEXIS 184945, at *7. “When viewed as
alternative claims in the initial pleading stage on a motion to
dismiss, Rule 8(d)(2) allows the Court ‘to construe separate
allegations in a complaint as alternative theories, at least when
drawing all inferences in favor of the nonmoving party as [the
Court must do on] motions to dismiss ....” Id. at *4, 2021 U.S.
Dist. LEXIS 184945, at *9 (quoting Adler v. Pataki, 185 F.3d
35, 41 (2d Cir. 1999)). 7
Accordingly, because Plaintiffs have properly alleged at least
one constitutional violation, Plaintiffs are permitted to plead
in the alternative as to Defendants, and Plaintiffs are entitled
to discovery to determine which officers participated directly
in the constitutional violation. See Moore, 2019 WL 251725,
at *4, 2019 U.S. Dist. LEXIS 8342, at *11 (finding under
Rule 8(d)(2) and Henry, 42 F.3d at 95 that “it would be
most appropriate to construe Plaintiff's pleadings—which
indicate that Plaintiff is unsure of which officer [was] Officer
Russel and which [was] Officer Brunson—to allege that
the Caucasian officer who arrested him was either Brinson
or Russell” (emphasis in original) (citations and quotations
omitted)).
B. Defendants’ Arguments as to Plaintiffs’ Failure-to-
Intervene and Fabrication of Evidence Claims
[24] [25] “[A]ll law enforcement officials have an
affirmative duty to intervene to protect the constitutional
rights of citizens from infringement by other law enforcement
officers in their presence.” Anderson v. Branen, 17 F.3d
552, 557 (2d Cir. 1994). Saint Lawrence Defendants and
Ogdensburg Defendants both concede this proposition. Saint
Lawrence Defs.’ Mem. of Law at 7; Ogdensburg Defs.’
Mem. of Law at 4. However, Saint Lawrence Defendants
contend that Plaintiffs cannot allege that Merria was both
a direct participant in the alleged conduct and that he
failed to intervene, arguing that “an officer who is alleged
to have used excessive force cannot also be held liable
for failure to intervene, because the officer's conduct as
a direct participant in the violation of Plaintiff's rights
precludes a finding that the officer passively collaborated
in the deprivation of rights by a fellow officer.” Saint
Lawrence Defs.’ Mem. of Law at 7–8. Likewise, Ogdensburg
Defendants argue that Plaintiffs cannot allege that Pryce,
Shaver, and Sirles, or other Ogdensburg Police Officers
were both direct participants in the purported conduct and
also failed to intervene. Ogdensburg Defs.’ Mem. of Law
at 4. Additionally, both Saint Lawrence Defendants and
Ogdensburg Defendants reiterate *314 their arguments that
Plaintiffs did not specifically identify which officers were
involved in dragging Plaintiff from the car or fabrication
of evidence. Saint Lawrence Defs.’ Mem. of Law at 8–10;
Ogdensburg Defs.’ Mem. of Law at 4–5.
[26] As discussed above, where plaintiffs have properly
alleged at least one constitutional violation, courts regularly
permit such plaintiffs to plead in the alternative as to
multiple defendants, finding that such plaintiffs are entitled
to discovery to determine which officers participated directly
in the constitutional violation. See, e.g., Matthews v.
City of New York, 889 F. Supp. 2d 418, 444 (E.D.N.Y.
2012) (“Because plaintiffs properly allege at least one
constitutional violation, plaintiffs are entitled to discovery
to determine which officers participated directly in the
alleged constitutional violation and which officers were
present and failed to intervene.”); Durr v. Slator, 558 F.
Supp. 3d 1, 26 (N.D.N.Y. 2021) (“Plaintiff does not allege
that either Defendant in particular acted with deliberate
indifference by transporting Plaintiff to the Oneida Police
Station rather than the Upstate Emergency Department. As
such, Plaintiff is permitted to plead in the alternative that
Defendants Clark and Slator failed to intervene in the alleged
constitutional violation.”). Moreover, under Rule 8(d) “[e]ven
if [a plaintiff's] claims were somehow inconsistent ... [a court]
could and would entertain them both.” Henry, 42 F.3d at 95–
96. This “flexibility ... is especially appropriate in civil rights
cases, in which complex inquiries into the parties’ intent may
sometimes justify raising multiple, inconsistent claims.” Id.
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Accordingly, the Court finds that Plaintiffs are permitted
to plead in the alternative as to Defendants with regard to
the failure-to-intervene claims, and are entitled to discovery
to determine which officers participated directly in the
constitutional violations. See Matthews, 889 F. Supp. 2d at
444; Durr, 558 F. Supp. 3d at 26.
[27] [28] “ ‘It is firmly established that a constitutional
right exists not to be deprived of liberty on the basis of
false evidence fabricated by a government officer.’ ” Harris
v. City of New York, 222 F. Supp. 3d 341, 351 (S.D.N.Y.
2016) (quoting Zahrey v. Coffey, 221 F.3d 342, 355 (2d
Cir. 2000)). Saint Lawrence Defendants and Ogdensburg
Defendants do not contest Plaintiffs’ fabrication of evidence
claims against Chief Westcott, Compl. ¶ 44, Defendants argue
that Plaintiffs did not specifically identify which other officers
were involved in the alleged fabrication of evidence. Saint
Lawrence Defs.’ Mem. of Law at 9–10; Ogdensburg Defs.’
Mem. of Law at 5. 8 Because Defendants do not challenge
that Plaintiffs have properly alleged at least one constitutional
violation of fabrication of evidence, the Court finds that
Plaintiffs are permitted to plead in the alternative as to
Defendants with regard to the fabrication of evidence claims,
and are entitled to discovery to determine which officers
participated directly in the constitutional violations. As the
Second Circuit has stated, this “flexibility ... is especially
appropriate in civil rights cases, in which complex inquiries
into the parties’ intent may sometimes justify raising multiple,
inconsistent claims.” Henry, 42 F.3d at 95–96.
*315 C. Defendants’ Arguments as to Plaintiffs’
Monell Claims
[29] [30] [31] In Monell, the Supreme Court concluded
that “Congress did intend municipalities and other local
government units to be included among those persons to
whom § 1983 applies.” Monell, 436 U.S. at 690, 98 S.Ct.
2018 (emphasis omitted). However, the Supreme Court also
stated that “a municipality cannot be held liable solely because
it employs a tortfeasor—or, in other words, a municipality
cannot be held liable under § 1983 on a respondeat superior
theory.” Id. (emphasis in original). Municipalities are “liable
under § 1983 to be sued as ‘persons’ within the meaning of
that statute, when the alleged unlawful action implemented or
was executed pursuant to a governmental policy or custom.”
Reynolds v. Giuliani, 506 F.3d 183, 190 (2d Cir. 2007).
“Constitutional deprivations actionable under § 1983 need
not be contained in an explicitly adopted rule or regulation.”
Sorlucco v. New York City Police Dep't, 971 F.2d 864, 870
(2d Cir. 1992). “Constitutional deprivations actionable under
§ 1983 may be ‘visited pursuant to the governmental custom
even though such custom has not received formal approval
through the body's official decisionmaking channels.’ ” Id.
(cleaned up) (quoting Monell, 436 U.S. at 691, 98 S.Ct. 2018).
[32] [33] “[T]o hold [municipalities] liable under § 1983
for the unconstitutional actions of its employees, a plaintiff
is required to plead and prove three elements: (1) an official
policy or custom that (2) causes the plaintiff to be subjected
to (3) a denial of a constitutional right.” Wray v. City of
New York, 490 F.3d 189, 195 (2d Cir. 2007) (citing Batista
v. Rodriguez, 702 F.2d 393, 397 (2d Cir. 1983)). “A plaintiff
may satisfy the ‘policy, custom or practice’ requirement in
one of four ways.” Brandon v. City of New York, 705 F. Supp.
2d 261, 276 (S.D.N.Y. 2010). Accordingly,
[t]he plaintiff may allege the existence
of (1) a formal policy officially
endorsed by the municipality; (2)
actions taken by government officials
responsible for establishing the
municipal policies that caused the
particular deprivation in question;
(3) a practice so consistent
and widespread that, although not
expressly authorized, constitutes a
custom or usage of which a
supervising policy-maker must have
been aware; or (4) a failure by
policymakers to provide adequate
training or supervision to subordinates
to such an extent that it amounts to
deliberate indifference to the rights of
those who come into contact with the
municipal employees.
Id. at 276–77 (citations omitted).
[34] [35] [36] [37] “[T]hree requirements ... must be met
before a municipality's failure to train or supervise constitutes
deliberate indifference to the constitutional rights of citizens.”
Walker v. City of New York, 974 F.2d 293, 297 (2d Cir. 1992).
The Second Circuit has defined these three requirements:
First, the plaintiff must show that a policymaker knows
to a moral certainty that her employees will confront
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a given situation. Thus, a policymaker does not exhibit
deliberate indifference by failing to train employees for rare
or unforeseen events.
Second, the plaintiff must show that the situation either
presents the employee with a difficult choice of the sort
that training or supervision will make less difficult or that
there is a history of employees mishandling the situation.
Whether to use deadly force in apprehending a fleeing
suspect qualifies as a “difficult choice” because more
than the application of common sense is required. Instead,
police officers must adhere to *316 the rule of Tennessee
v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1
(1985), that deadly force may constitutionally be applied
to a fleeing suspect only when the suspect threatens the
officer with a weapon or there is probable cause to believe
that he has committed a crime involving the infliction or
threatened infliction of serious physical harm and when,
where possible, some warning has been given. A choice
might also be difficult where, although the proper course
is clear, the employee has powerful incentives to make the
wrong choice.
Finally, the plaintiff must show that the wrong choice by
the city employee will frequently cause the deprivation
of a citizen's constitutional rights. Thus, municipal
policymakers may appropriately concentrate training and
supervision resources on those situations where employee
misconduct is likely to deprive citizens of constitutional
rights.
Id. at 297–98 (citations omitted) (quotations omitted).
“Where the plaintiff establishes all three elements, then ...
it can be said with confidence that the policymaker should
have known that inadequate training or supervision was ‘so
likely to result in the violation of constitutional rights, that the
policymakers of the [municipality] can reasonably be said to
have been deliberately indifferent to the need.’ ” Id. at 298
(quoting City of Canton, Ohio v. Harris, 489 U.S. 378, 390,
109 S.Ct. 1197, 103 L.Ed.2d 412 (1989)).
[38] Saint Lawrence Defendants argue that “Plaintiffs fail
to allege any similar constitutional violations that could
even conceivably demonstrate a pattern of unconstitutional
conduct.” Saint Lawrence Defs.’ Mem. of Law at 15. Saint
Lawrence Defendants cite to Buari v. City of New York,
530 F. Supp. 3d 356 (S.D.N.Y. 2021), asserting that “[t]he
decision in Buari, although the Monell liability claim was
upheld on a motion to dismiss, provides helpful guidance
to this Court.” Saint Lawrence Defs.’ Mem. of Law at 15.
Saint Lawrence Defendants argue that Buari stands for the
principle that a plaintiff must plead systemic corruption in
order to proceed on a Monell claim, arguing: “Not once
do the Plaintiffs allege that there were other instances of
misconduct and Plaintiffs do not identify any other lawsuits,
report, complaints, or other evidence to support their claim
that the acts against Mr. Lalonde were part of a pattern.” Id. at
16. Similarly, Ogdensburg Defendants assert that “there is not
a single allegation of instances of similar conduct or that the
City of Ogdensburg knew of such prior actions by its police
officers.” Ogdensburg Defs.’ Mem. of Law at 9.
However, the Supreme Court has stated: “[I]t is plain that
municipal liability may be imposed for a single decision by
municipal policymakers under appropriate circumstances.”
Pembaur v. City of Cincinnati, 475 U.S. 469, 480, 106
S.Ct. 1292, 89 L.Ed.2d 452 (1986). “So long as the single
challenged act was the decision of a municipal policymaker,
the municipality could be held liable.” Walker, 974 F.2d at
296. Accordingly, “[i]t may happen that in light of the duties
assigned to specific officers or employees the need for more
or different training is so obvious, and the inadequacy so
likely to result in the violation of constitutional rights, that
the policymakers of the [municipality] can reasonable be
said to have been deliberately indifferent to the need.” City
of Canton, 489 U.S. at 390, 109 S.Ct. 1197. “For example,
[municipal] policymakers know to a moral certainty that their
officers will be required to arrest fleeing felons.” Id. at 390
n.10, 109 S.Ct. 1197.
The Court turns to the three-prong test set forth in Walker.
Under the first prong *317 of Walker, “the plaintiff must
show that a policymaker knows to a moral certainty that
her employees will confront a given situation.” 974 F.2d
at 297. The Court finds that Saint Lawrence Defendants’
characterization of the Buari case is unavailing. In Buari,
the court inferred that the “Bronx DA [(“district attorney”)]
officials plainly knew, to a moral certainty, that ADAs
[(“assistant district attorneys”)] would make probable cause
assessments, offer testimonial evidence in court, confront
false or misleading testimony, and acquire Brady[ v.
Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215
(1963)] material ‘because these are basic facets of an ADA's
job.’ ” Buari, 530 F. Supp. 3d at 406 (quoting Bertuglia
v. City of New York, 839 F. Supp. 2d 703, 738 (S.D.N.Y.
2012)). Likewise, the Court infers here that Saint Lawrence
County and City of Ogdensburg policymakers plainly knew
to a moral certitude that Saint Lawrence County sheriffs and
City of Ogdensburg police officers would make reasonable
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suspicion and probable cause determinations, seize and arrest
individuals, provide medical care to detainees, and transmit
evidence to prosecutors, “because these are basic facets” of
law enforcement officials’ jobs. Buari, 530 F. Supp. 3d at 406
(quoting Bertuglia, 839 F. Supp. 2d at 738) Therefore, the
Court finds that Plaintiffs have plausibly pled the first prong
of Walker.
[39] Saint Lawrence Defendants and City of Ogdensburg
did not address the second or third prongs of Walker in
their Motions to Dismiss. See generally Saint Lawrence
Defs.’ Mem. of Law; Ogdensburg Defs.’ Mem. of Law. Saint
Lawrence Defendants raised the second prong of Walker in
their Reply. Saint Lawrence Defs.’ Reply at 10–11. However,
“[a]rguments may not be made for the first time in a reply
brief.” Knipe v. Skinner, 999 F.2d 708, 711 (2d Cir. 1993);
Chevron Corp. v. Donziger, 325 F. Supp. 3d 371, 379
n.21 (S.D.N.Y. 2018) (“It is well established, of course,
that arguments first raised in reply briefs are forfeited or
waived.”). As noted above, the “movant[,] bears the burden of
pro[ving no cognizable claim has been stated] on a motion to
dismiss under Rule 12(b)(6).” Leon v. Rockland Psychiatric
Ctr., 232 F. Supp. 3d 420, 426–27 (S.D.N.Y. 2017); see
also United Rentals, Inc. v. Wilper, 626 F.Supp.3d 546 (D.
Conn. 2022) (“The defendant bears the burden of proof on
a motion to dismiss for failure to state a claim under Rule
12(b)(6).”). Because Saint Lawrence Defendants and City of
Ogdensburg Defendants have not met their burden of proving
that Plaintiffs have not stated cognizable Monell claims under
Rule 12(b)(6), Defendants’ Motions to Dismiss are denied as
to Plaintiffs’ Monell claims.
D. Defendants’ Arguments as to Plaintiffs’ Section
1983 Conspiracy Claims, Section 1985(3) Conspiracy
Claims, and Section 1986 Neglect to Prevent
Conspiracy Claims
1. Section 1983 Conspiracy Claims
[40] [41] “To prevail on a Section 1983 conspiracy claim,
the plaintiff must establish: (1) an agreement between two
or more state actors or between a state actor and a private
entity; (2) to act in concert to inflict an unconstitutional injury;
and (3) an overt act done in furtherance of that goal causing
damages.” Fiedler v. Incandela, 222 F. Supp. 3d 141, 165
(E.D.N.Y. 2016) (quotations omitted). “To sustain a claim for
conspiracy under Section 1983, a plaintiff must demonstrate
that [the] defendant[s] ‘acted in a willful manner, culminating
in an agreement, understanding, or meeting of the minds, that
violated the plaintiff's rights ... secured by the constitution or
federal courts.’ ” *318 Morpurgo v. Inc. Vill. of Sag Harbor,
697 F. Supp. 2d 309, 331 (E.D.N.Y. 2010) (quoting Malsh v.
Corr. Officer Austin, 901 F. Supp. 757, 765 (S.D.N.Y. 1995)),
report and recommendation adopted by 697 F. Supp. 2d 309
(E.D.N.Y. 2010).
[42] Saint Lawrence Defendants argue that Plaintiffs have
failed to plausibly plead a factual basis supporting a
meeting of the minds, arguing that Plaintiffs’ allegations that
“Defendant Officers ‘acted in concert’ and ‘reached a mutual
understanding[,]’ ” Saint Lawrence Defs.’ Mem. of Law at
10 (quoting Compl. ¶¶ 88, 93), “are conclusory and are not
entitled to the presumption of truth.” Saint Lawrence Defs.’
Mem. of Law at 10. Additionally, Saint Lawrence Defendants
argue that “the only reason Plaintiffs allege that they believe
there was a conspiracy under § 1983 is because the Defendant
Officers arrived on scene at the same time and confronted
Mr. Lalonde at the same time and in the same manner.” Id.
Saint Lawrence Defendants contend: “In essence, Plaintiffs
are asking this Court to believe that because the officers acted
the same way in responding to the scene, they must have
conspired.” Id. at 10–11. Ogdensburg Defendants reiterate the
arguments that “co-defendant St. Lawrence County points out
in its brief ....” Ogdensburg Defs.’ Mem. of Law at 6.
Plaintiffs argue that “[a] plaintiff is not required to list the
place and date of defendants’ meeting and summary of their
conversations but the existence of an agreement can be
inferred from circumstantial evidence of an agreement and
concerted action.” Pls.’ Resp. to Saint Lawrence Defs.’ at
9. According to Plaintiffs, “[w]hile it is imperative that a
plaintiff must allege a mutual understanding or meeting of the
minds in order to set out a prima facie claim for conspiracy,
it is well established that such meeting of the minds can take
the form of a ‘tacit understanding’ rather than an explicit
agreement.” Id. at 8 (quoting LeBlanc-Sternberg v. Fletcher,
67 F.3d 412, 427 (2d Cir. 1995)).
[43] [44] The Court agrees with Plaintiffs. While “ ‘there
are legal limitations upon the inferences which may be
drawn from circumstantial evidence[,]’ ” Puglisi v. Underhill
Park Taxpayer Assoc., 947 F. Supp. 673, 706 (S.D.N.Y.
1996) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 580, 106 S.Ct. 1348, 89 L.Ed.2d 538
(1986)), “a conspiracy is often difficult to prove and ...
the court, may at times, have to rely on circumstantial
evidence of a conspiracy,” Puglisi, 947 F. Supp. at 706.
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Moreover, “a conspiracy ‘need not be shown by proof of an
explicit agreement but can be established by showing that the
parties have a tacit understanding to carry out the prohibited
conduct[.]’ ” Foskey v. Northrup, No. 20-CV-0504, 2021
WL 1146217, at *5, 2021 U.S. Dist. LEXIS 56684, at *12
(N.D.N.Y. Mar. 25, 2021) (Kahn, J.) (quotations omitted)
(quoting LeBlanc-Sternberg, 67 F.3d at 427).
In Foskey, this Court observed that in the context of a Section
1983 conspiracy claim, “a meeting of the minds is plausibly
suggested by the coordinated nature of the alleged attack,
and the fact that the attack was not a spontaneous reaction to
any instant threat.” Foskey, 2021 WL 1146217, at *5, 2021
U.S. Dist. LEXIS 56684, at *11–12. The Court finds a similar
situation here. The Defendant officers allegedly attacked
Plaintiff in a manner that was not a spontaneous reaction to
any threat—as Plaintiffs aver, Shaver “was standing at the
scene in firm control of a readily deescalated event with a
blind man holding a cane wearing dark sunglasses.” Compl. ¶
25. Moreover, as described above in great detail, Plaintiffs lay
out extensive factual allegations pleading that the attack was
coordinated, with various Defendant *319 officers acting
in concert. See, e.g., Compl. ¶¶ 25–45. Therefore, the Court
finds that Plaintiffs have plausibly pled a meeting of the minds
as to Section 1983 conspiracy. Accordingly, Defendants have
not met their burden, and Defendants’ Motions to Dismiss
are denied with regard to Plaintiffs’ Section 1983 conspiracy
claims.
2. Section 1985(3) Conspiracy Claims
[45] [46] The relevant portion of Section 1985(3) states:
If two or more persons in any State
or Territory conspire, or go in disguise
on the highway or on the premises of
another, for the purpose of depriving,
either directly or indirectly, any person
or class of persons of the equal
protection of the laws, or of equal
privileges and immunities under the
laws, or for the purpose of preventing
or hindering the constituted authorities
of any State or Territory from giving
or securing to all persons within such
State or Territory the equal protection
of the laws ... in any case of conspiracy
set forth in this section, if one or more
persons engaged therein do, or cause
to be done, any act in furtherance of
the object of such conspiracy, whereby
another is injured in his person or
property, or deprived of having and
exercising any right or privilege of
a citizen of the United States, the
party so injured or deprived may
have an action for the recovery of
damages, occasioned by such injury or
deprivation, against any one or more of
the conspirators.
42 U.S.C. § 1985(3). Thus,
[t]o state a civil rights conspiracy
under § 1985(3), a plaintiff must
allege: 1) a conspiracy; 2) for the
purpose of depriving, either directly
or indirectly, any person or class of
persons of the equal protection of
the laws, or of equal privileges and
immunities under the laws; and 3) an
act in furtherance of the conspiracy; 4)
whereby a person is either injured in
his person or property or deprived of
any right or privilege of a citizen of the
United States.
Britt v. Garcia, 457 F.3d 264, 269 n.4 (2d Cir. 2006)
(quoting Gray v. Town of Darien, 927 F.2d 69, 73 (2d Cir.
1991)). Section 1985(3) “is applicable only if the plaintiff
can show that ‘some racial, or perhaps otherwise class-
based invidiously discriminatory animus [lay] behind the
conspirators’ action.’ ” LeBlanc-Sternberg, 67 F.3d at 427
(quoting Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S.Ct.
1790, 29 L.Ed.2d 338 (1971)).
[47] [48] [49] “Establishment of a § 1985(3) claim
requires proof of a conspiracy between ‘two or more persons.’
” LeBlanc-Sternberg, 67 F.3d at 427. “A conspiracy, for these
purposes, need not be shown by proof of an explicit agreement
but can be established by showing that the ‘parties have a
tacit understanding to carry out the prohibited conduct.’ ”
Id. (quoting United States v. Rubin, 844 F.2d 979, 984 (2d
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Cir. 1988)); see also Webb v. Goord, 340 F.3d 105, 110 (2d
Cir. 2003) (“In order to maintain an action under Section
1985, a plaintiff ‘must provide some factual basis supporting
a meeting of the minds, such that defendants entered into
an agreement, express or tacit, to achieve the unlawful end.’
”) (quoting Romer v. Morgenthau, 119 F. Supp. 2d 346,
363 (S.D.N.Y. 2000)). “The term ‘persons’ for the purposes
of § 1985(3) includes municipalities, and a claim under §
1985(3) may be established against a state if ‘it is proved
that the State is involved in the conspiracy or that the aim
of the conspiracy is to influence the activity of the state[.]’
” LeBlanc-Sternberg, 67 F.3d at 427 (citations omitted)
(quoting United Brotherhood of Carpenters & Joiners of Am.,
Local 610, AFL-CIO v. Scott, 463 U.S. 825, 830, 103 S.Ct.
3352, 77 L.Ed.2d 1049 (1983)) (citing *320 Owens v. Haas,
601 F.2d 1242, 1247 (2d Cir. 1979), cert. denied, 444 U.S.
980, 100 S.Ct. 483, 62 L.Ed.2d 407 (1979)).
[50] Saint Lawrence Defendants argue that “Plaintiffs fail
to allege any facts by which this Court could infer
discriminatory intent behind Defendants[’] actions.” Saint
Lawrence Defs.’ Mem. of Law at 12. Specifically, Saint
Lawrence Defendants assert that Plaintiffs have not explained
why failure to consult with Shaver was motivated by
discriminatory animus, id., and argue that “the act of ordering
Mr. Lalonde to remove his arm from behind his back”
was “motivationally neutral[,]” id. Similarly, Ogdensburg
Defendants argue that “there is no factual assertion that
the Ogdensburg Police Officers were motivated by a
discriminatory animus.” Ogdensburg Defs.’ Mem. of Law at
7.
[51] Plaintiffs plead that under Section 1985(3), Timothy
Lalonde was protected in order “to be free from
discrimination based upon disability ....” Compl. ¶ 139.
“[T]he Second Circuit has recognized mental disability as
a class protected by Section 1985 ....” B.D.S. v. Southold
Union Free Sch. Dist., No. 08-CV-1864, 2009 WL 1875942,
at *20 n.8, 2009 U.S. Dist. LEXIS 55981, at *61 n.8 (E.D.N.Y.
June 24, 2009) (citing People by Abrams v. 11 Cornwell
Co., 695 F.2d 34, 42–43 (2d Cir. 1982), vacated in part
on other grounds, 718 F.2d 22 (2d Cir. 1983)). “[T]hus, it
logically follows that persons with other types of disabilities,
i.e., learning and developmental disabilities, would also be
part of a class protected by Section 1985.” B.D.S., 2009 WL
1875942, at *20 n.8, 2009 U.S. Dist. LEXIS 55981, at *61 n.8.
Likewise, “it logically follows that persons with other types of
disabilities[,]” id., such as Timothy Lalonde's blindness and
other physical disabilities, Compl. at ¶¶ 32, 51, would be a
part of a class protected by Section 1985(3).
The Second Circuit has stated that a plaintiff's Ҥ 1985(3)
action cannot be judged groundless” where the plaintiff
“stood a reasonable chance of inducing a court to find that
[the defendant's] actions were based on a[ ] [class-based]
animus ....” Colombrito v. Kelly, 764 F.2d 122, 130 (2d
Cir. 1985). Plaintiffs plead that it was “readily apparent that
[Timothy Lalonde] was blind and sightless[,]” Compl. ¶ 26,
because Timothy Lalonde was “holding a cane wearing dark
sunglasses” at night when Defendant officers were present,
id. ¶ 25. Moreover, after Timothy Lalonde was allegedly
“slammed” onto the ground by Defendant officers, id. ¶
28, Theresa Lalonde “scream[ed] to the Defendant Officers
that ‘her husband is blind ....’ ” Id. ¶ 29. In addition, after
Merria “was yanking upon [Timothy Lalonde's] left arm
ordering him to release it from under the weight of his body
[Timothy Lalonde] responded that he couldn't do it as he was
disabled.” Id. ¶ 31. Timothy Lalonde “screamed that he was
unable to comply with the [Defendant officers’] commands
to move his body in order to free up his immobilized arm.”
Id. ¶ 33. Thereafter, Defendant officers “inflicted two taser
shots” on Timothy Lalonde, id. ¶ 34, “ruthlessly ignor[ed
Timothy Lalonde's] assertion that his disability prevented him
from moving” and instead “aggressively yank[ed Timothy
Lalonde's] left wrist, elbow and arm resulting in an audible
‘pop’ that left [him] numb with excruciating pain and a
shattered broken wrist, fractured and dislocated elbow, and
torn rotator cuff[,]” id. ¶ 35. In addition, due to Timothy
Lalonde's “lack[ ] [of] stomach and back muscles to keep him
upright when shackled with handcuffs behind his back” the
Defendant officers “ ‘improvised’ by lifting [his] body and
throwing him laterally into the patrol car sending his head
crashing against the opposite passenger door[,]” id. ¶ 37.
*321 Subsequently, Defendant officers “intentionally and
mockingly refused to accommodate [Timothy Lalonde's]
disability when they ushered him into the police department
to complete his arrest processing[,]” id. ¶ 41, Doe Officers
and Chief Westcott “persisted in ridiculing and refusing to
accommodate [Timothy Lalonde] by requiring him to stand
facing the wall with his hands stretched out touching the
wall while they interrogated and booked him[,]” id. ¶ 42, and
forced Timothy Lalonde “to stand against the stationhouse
for one hour while [the officers] attempted to have [Timothy
Lalonde] subscribe and ‘confess’ to their fabrications[,]” id.
¶ 45. Accordingly, the Court finds that Plaintiffs’ pleading
demonstrates that Plaintiffs “st[an]d a reasonable chance of
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inducing a court to find that [Defendants’] actions were based
on a[ ] [class-based] animus[,]” based on disability—here, the
impairment of blindness and physical disability. Colombrito,
764 F.2d at 130.
[52] Saint Lawrence Defendants and Ogdensburg
Defendants also contend that Plaintiffs have not alleged
a meeting of the minds with regard to Section 1985(3)
conspiracy. Saint Lawrence Defs.’ Mem. of Law at 11;
Ogdensburg Defs.’ Mem. of Law at 6–7. However, as noted
above, “[a] conspiracy, for these purposes, need not be shown
by proof of an explicit agreement but can be established by
showing that the ‘parties have a tacit understanding to carry
out the prohibited conduct.’ ” LeBlanc-Sternberg, 67 F.3d at
427 (quoting Rubin, 844 F.2d at 984). Plaintiffs have alleged
that the Defendant officers carried out a coordinated attack
outside his home and continued their actions in concert when
transporting him to the police station, Compl. ¶¶ 25–40, that
the Defendant officers acted in concert as they “intentionally
and mockingly refused to accommodate [Timothy Lalonde's]
disability when they ushered him into the police department
to complete his arrest processing[,]” id. ¶ 41, and that Doe
Officers and Chief Westcott together “persisted in ridiculing
and refusing to accommodate [Timothy Lalonde] by requiring
him to stand facing the wall with his hands stretched out
touching the wall while they interrogated and booked him[,]”
id. ¶ 42. The Court concludes that Plaintiffs have plausibly
pled that the “parties have a tacit understanding to carry out
the prohibited conduct[,]” thereby plausibly pleading meeting
of the minds under Section 1985(3). LeBlanc-Sternberg, 67
F.3d at 427 (quotations omitted). Therefore, Defendants have
not met their burden, and Defendants’ Motions to Dismiss are
denied with respect to Plaintiffs’ Section 1985(3) claims.
3. Section 1986 Neglect to Prevent Conspiracy Claims
[53] The relevant portion of Section 1986 states:
“Every person who, having knowledge that any of the
wrongs conspired to be done, and mentioned in the
preceding section [42 U.S.C. § 1985], are about to
be committed, and having power to prevent or aid in
preventing the commission of the same, neglects or refuses
so to do, if such wrongful act be committed, shall be liable
to the party injured, or his legal representatives, for all
damages caused by such wrongful act, which such person
by reasonable diligence could have prevented; and such
damages may be recovered in an action on the case; and
any number of persons guilty of such wrongful neglect or
refusal may be joined as defendants in the action ....”
42 U.S.C. § 1986. “[A] valid § 1986 claim must be predicated
upon a valid § 1985 claim.” Mian v. Donaldson, Lufkin &
Jenrette Sec. Corp., 7 F.3d 1085, 1088 (2d Cir. 1993).
*322 [54] Here, Saint Lawrence Defendants state that “if
the Court agrees with the County Defendants that Plaintiffs’
§ 1985 conspiracy claim should be dismissed, then Plaintiffs’
§ 1986 failure to prevent conspiracy clam should also be
dismissed.” Saint Lawrence Defs.’ Mem. of Law at 13.
Similarly, Ogdensburg Defendants assert: “This court must
dismiss Plaintiffs’ section 1986 claim that Defendants failed
to prevent a conspiracy to deprive the Plaintiffs of their
rights if it dismisses their Section 1985 conspiracy claim.”
Ogdensburg Defs.’ Mem. of Law at 8.
Because the Court did not dismiss Plaintiffs’ Section 1985(3)
conspiracy claim, and because Saint Lawrence Defendants’
and Ogdensburg Defendants’ arguments hinge on this, the
Court finds that Defendants have not met their burden, and
Defendants’ Motions to Dismiss are denied with regard to
Plaintiffs’ Section 1986 claims.
E. Defendants’ Arguments as to Plaintiffs’
Supervisory Liability Claims
[55] [56] “Government officials may not be held liable
for the unconstitutional conduct of their subordinates under
a theory of respondeat superior.” Iqbal, 556 U.S. at 676,
129 S.Ct. 1937. “[A]fter Iqbal, there is no special test
for supervisory liability.” Tangreti v. Bachmann, 983 F.3d
609, 618 (2d Cir. 2020). “Instead, a plaintiff must plead
and prove ‘that each Government-official defendant, through
the official's own individual actions, has violated the
Constitution.’ ” Id. (quoting Iqbal, 556 U.S. at 676, 129 S.Ct.
1937).
[57] Saint Lawrence Defendants and Ogdensburg
Defendants make generalized arguments, asserting that
Plaintiffs have failed to plausibly plead claims of supervisory
liability as to Sheriff Bigwarfe and Chief Westcott. Regarding
Sheriff Bigwarfe, Saint Lawrence Defendants argue that
“not one paragraph in the Complaint alleges that Sheriff
Bigwarfe had any role in arresting Mr. Lalonde, was present
for the arrest, or was present or played a role in any of
the alleged post-arrest deprivations.” Saint Lawrence Defs.’
Mem. of Law at 17. Ogdensburg Defendants assert that
“[t]here is no particularity in the allegations with respect to
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what policy Chief Westcott is even alleged to have created or
condoned, let alone the conduct he deliberately disregarded.”
Ogdensburg Defs.’ Mem. of Law at 11.
[58] [59] “Tangreti makes clear that, ‘after Iqbal, [a
p]laintiff can no longer succeed on a § 1983 claim against [a
d]efendant by showing that a supervisor behaved knowingly
or with deliberate indifference that a constitutional violation
would occur at the hands of his subordinates, unless that
is the same state of mind required for the constitutional
deprivation.” Myers v. Davenport, No. 21-CV-0922, 2022
WL 3017367, at *5, 2022 U.S. Dist. LEXIS 134752, at
*12 (N.D.N.Y. July 29, 2022) (Kahn, J.) (emphasis in
original) (quoting Tangreti, 983 F.3d at 618). “Thus, an
official's conduct in making and executing policy, or failing
to make or execute policy, may satisfy Iqbal’s requirement
of personal involvement if such conduct meets the elements
required to establish an underlying constitutional violation
and is undertaken with the required state of mind.” Myers,
2022 WL 3017367, at *5, 2022 U.S. Dist. LEXIS 134752,
at *12. “Accordingly, a plaintiff may establish a policy-
making official's personal involvement by, first, alleging facts
from which it may be reasonably inferred the official was
responsible for making relevant policies, and thus there was a
tangible connection between their policymaking conduct and
the alleged harm.” Id. at *5, 2022 U.S. Dist. LEXIS 134752,
at *12–13. “Second, a plaintiff must establish the elements of
the underlying *323 claim directly against each defendant.”
Id. at *5, 2022 U.S. Dist. LEXIS 134752, at *13.
Here Plaintiffs bring, inter alia, Fourteenth Amendment
failure-to-protect claims. Plaintiffs plead that Sheriff
Bigwarfe was “a supervisory person with the [County of Saint
Lawrence's Sheriff's Department] with oversight for training,
hiring, screening, instruction, supervision and discipline of
[Merria] ....” Compl. ¶ 118. Plaintiffs also plead that Chief
Westcott “was, at the relevant times, supervisory personnel
with Defendant [City of Ogdensburg Police] with oversight
responsibility for training, hiring, screening, instruction,
supervision and discipline of [Pryce, Sirles, Shaver, and
Wilson] ....” Id. ¶ 117. According to Plaintiffs, Sheriff
Bigwarfe and Chief Westcott “were reckless in their failure
to supervise their respective subordinates and either knew
or should have known that they were deliberately failing to
effectuate connotationally permissible arrests with probable
cause, seizures, detentions, transportation, imprisonments
....” Id. ¶ 120. Plaintiffs also assert that “[a]s a direct and
proximate result of the unconstitutional actions, omissions,
customs, polices, practices and procedures of [Sheriff
Bigwarfe and Chief Westcott] ... [Timothy Lalonde] has
suffered: brain damage, a severe cervical sprain, whiplash,
a broken left wrist, concussion syndrome, a torn left side
rotator cuff tendon, a dislocated and fractured left elbow,
torn cartilage in his right ear, hearing loss, anxiety, mental
and emotional distress, humiliation, fear, discomfort, loss of
enjoyment of life, psychic injuries, headaches, nightmares,
insomnia, and an unceasing sense of doom and misery.”
Id. ¶ 123. Thus, the Court finds that Plaintiffs have
plausibly pled that Sheriff Bigwarfe and Chief Westcott “were
responsible for implementing and maintaining policies to
protect ... against constitutional deprivations and abuse ....”
Myers, 2022 WL 3017367, at *6, 2022 U.S. Dist. LEXIS
134752, at *14. Accordingly, the Court finds that these facts
plausibly show that Sheriff Bigwarfe and Chief Westcott were
policymakers.
“The Supreme Court [has] extended the protections for
prisoners established in Estelle [v. Gamble, 429 U.S. 97,
97 S.Ct. 285, 50 L.Ed.2d 251 (1976)] to civil detainees
under the Due Process Clause of the Fourteenth Amendment,
reasoning that persons in civil detention deserve at least as
much protection as those who are criminally incarcerated.”
Charles v. Orange Cnty., 925 F.3d 73, 82 (2d Cir. 2019).
“[D]eliberate indifference means the same thing for each type
of claim under the Fourth Amendment[,]” “such as from
unconstitutional conditions of confinement, or the failure-to-
protect ....” Darnell v. Pineiro, 849 F.3d 17, 33 n.9 (2d Cir.
2017); see also Charles, 925 F.3d at 87.
[60] [61] [62] [63] To plead a Section 1983 failure-to-
protect Fourteenth Amendment claim, “[a] pretrial detainee”
plaintiff must “show[ ] that the officers acted with deliberate
indifference ....” Darnell, 849 F.3d at 29. The “pretrial
detainee must satisfy two prongs to prove a claim, an
‘objective prong’ showing that the [failure-to-protect was]
sufficiently serious to constitute objective deprivations of
the right to due process, and a ‘subjective prong’—perhaps
better classified as a ‘mens rea prong’ or ‘mental element
prong’—showing that the officer acted with at least deliberate
indifference to the challenged conditions.” Id. To show this
mens rea or mental element prong, “the pretrial detainee
must prove that the defendant-official acted intentionally
to impose the alleged condition, or recklessly failed to act
with reasonable care to mitigate the risk that the condition
posed to the pretrial detainee even though the defendant
knew, or should have *324 known, that the condition
posed an excessive risk to health or safety.” Id. at 35.
Thus, “the ‘subjective prong’ (or ‘mens rea prong’) of a
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deliberate indifference claim is defined objectively[,]” id.,
and “deliberate indifference, in the context of a Fourteenth
Amendment due process claim, can be shown by something
akin to recklessness, and does not require proof of a malicious
or callous state of mind[,]” Charles, 925 F.3d at 86.
[64] [65] To plead the first objective prong, “the
deprivation alleged must be, objectively, ‘sufficiently
serious,’ ” Farmer v. Brennan, 511 U.S. 825, 834, 114
S.Ct. 1970, 128 L.Ed.2d 811 (1994) (quoting Wilson v.
Seiter, 501 U.S. 294, 298, 111 S.Ct. 2321, 115 L.Ed.2d
271 (1991)), and “[f]or a claim ... based on a failure to
prevent harm” the detainee “must show that he is [detained]
under conditions posing a substantial risk of serious harm[,]”
Farmer, 511 U.S. at 834, 114 S.Ct. 1970. “Being violently
assaulted in prison is simply not ‘part of the penalty that
criminal offenders pay for their offenses against society.’
” Id. (quoting Rhodes v. Chapman, 452 U.S. 337, 347,
101 S.Ct. 2392, 69 L.Ed.2d 59 (1981)). Pretrial detainees
have even more stringent constitutional protections under the
Fourteenth Amendment than prisoners do under the Eighth
Amendment, because “most importantly, pretrial detainees
(unlike convicted prisoners) cannot be punished at all, much
less ‘maliciously and sadistically.’ ” Kingsley v. Hendrickson,
576 U.S. 389, 400, 135 S.Ct. 2466, 192 L.Ed.2d 416 (2015)
(citing Ingraham v. Wright, 430 U.S. 651, 671–72 n.40, 97
S.Ct. 1401, 51 L.Ed.2d 711 (1977) and Graham, 490 U.S. at
395 n.10, 109 S.Ct. 1865).
[66] Here, the Court finds that Plaintiffs’ factual allegations,
asserting that Timothy Lalonde was maliciously and
sadistically attacked by several Defendant Officers outside
his home and was further abused at the police station during
his detention, Compl. ¶ 26–45, plausibly show that Timothy
Lalonde was detained under conditions posing a substantial
risk of serious harm. Thus, Plaintiffs have plausibly pled the
objective deliberate indifference prong.
[67] [68] Under the second mens rea or mental element
prong, “[w]hether the state knew or should have known of
the substantial risk of harm to the detainee is a question of
fact subject to demonstration in the usual ways, including
inference from circumstantial evidence.” Charles, 925 F.3d at
87. “ ‘A factfinder may conclude that a [government] official
knew of a substantial risk from the very fact that the risk was
obvious.” Charles, 925 F.3d at 87 (quoting Farmer, 511 U.S.
at 842, 114 S.Ct. 1970).
[69] [70] “Federal Rule of Civil Procedure 9(b) provides
a relaxed standard for pleading intent or knowledge at the
motion to dismiss stage.” Myers, 2022 WL 3017367, at *7,
2022 U.S. Dist. LEXIS 134752, at *16; see also Fed. R.
Civ. P. 9(b) (“Malice, intent, knowledge, and other conditions
of a person's mind may be alleged generally.”). Therefore,
“[a] complaint is allowed to contain general allegations as
to a defendant's knowledge, because ‘a plaintiff realistically
cannot be expected to plead a defendant's actual state of
mind.’ ” Kaplan v. Lebanese Canadian Bank, SAL, 999 F.3d
842, 864 (2d Cir. 2021) (citations omitted) (citing Fed. R. Civ.
P. 9(b)) (quoting Connecticut Nat'l Bank v. Flour Corp., 808
F.2d 957, 962 (2d Cir. 1987)). “[P]laintiffs are required to
include allegations of the facts or events they claim give rise
to an inference of knowledge.” Kaplan, 999 F.3d at 864.
[71] Here, Plaintiffs have alleged that Sheriff Bigwarfe and
Chief Westcott “were reckless in their failure to supervise
their respective subordinates and either knew or *325 should
have known that they were deliberately failing to effectuate
constitutionally permissible arrests with probable cause,
seizures, detentions, transportation, imprisonments ....” Id.
¶ 120. As noted above, Plaintiffs also assert that “[a]s a
direct and proximate result of the unconstitutional actions,
omissions, customs, polices, practices and procedures of
[Sheriff Bigwarfe and Chief Westcott][,]” Timothy Lalonde
has suffered numerous serious injuries. Id. ¶ 123. The Court
finds that Plaintiffs have alleged facts sufficient to infer that
Sheriff Bigwarfe and Chief Westcott “knew, or should have
known, that” violent attacks carried out by police officers
“posed an excessive risk to health or safety” and that they
needed to take corrective action to prevent such attacks.
Darnell, 849 F.3d at 29. The Court finds that Sheriff Bigwarfe
and Chief Westcott knew or should have known of this risk “
‘from the very fact that the risk was obvious.’ ” Charles, 925
F.3d at 87 (quoting Farmer, 511 U.S. at 842, 114 S.Ct. 1970).
Accordingly, Plaintiffs have plausibly stated “a tangible
connection between” Sheriff Bigwarfe and Chief Westcott's
“policymaking conduct and the alleged harm,” Myers, 2022
WL 3017367, at *5, 2022 U.S. Dist. LEXIS 134752, at *13,
and have plausibly stated “the elements of the underlying
claim directly against each defendant[,]” id. Thus, Plaintiffs
have plausibly stated Fourteenth Amendment failure-to-
protect supervisory liability claims against Sheriff Bigwarfe
and Chief Westcott.
Defendants’ arguments are phrased in general terms, arguing
that Plaintiffs’ Complaint has a “sheer lack of factual
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allegations[,]” Saint Lawrence Defs.’ Mem. of Law at 17,
and that “there is no particularity in the allegations with
respect to what policy Chief Westcott is even alleged to have
created or condoned[,]” Ogdensburg Defs.’ Mem. of Law at
11. Thus, Defendants assert generically that Plaintiffs failed
to provide factual allegations to plausibly state a claim, but
did not address which specific claims they are contesting.
While “a defendant has the burden of proof on a Rule 12(b)
(6) motion[,]” A.S., 585 F. Supp. 3d at 272, Defendants did
not explain which supervisory claims they were contesting,
and as a result the Court finds that because Plaintiffs have,
at a minimum, plausibly stated a Fourteenth Amendment
failure-to-protect supervisory liability claim against Sheriff
Bigwarfe and Chief Westcott, Defendants’ general arguments
that Plaintiffs have failed to state a supervisory liability
claim are insufficient. Thus, the Court need not address other
supervisory liability claims as to Sheriff Bigwarfe and Chief
Westcott brought by Plaintiffs, such as Plaintiffs’ Fourteenth
Amendment deliberate medical indifference claims, although
the Court would likely arrive at similar conclusions to those
set forth above. See, e.g., Charles, 925 F.3d at 87 (stating
that “the same [deliberate indifference] standard applies to
claims for deliberate indifference to medical needs because
‘deliberate indifference means the same thing for each type of
claim under the Fourteenth Amendment”) (quoting Darnell,
849 F.3d at 33 n.9).
Accordingly, the Court agrees with the Tenth Circuit's
conclusion in Dodds v. Richardson, which the Second Circuit
cited approvingly in Tangreti, 983 F.3d at 618:
Whatever else can be said about Iqbal, and certainly
much can be said, we conclude the following basis
of § 1983 liability survived it and ultimately resolves
this case: § 1983 allows a plaintiff to impose liability
upon a defendant-supervisor who creates, promulgates,
implements, or in some other way possesses responsibility
for the continued operation of a policy the enforcement
(by the *326 defendant-supervisor or his subordinates) of
which “subjects, or causes to be subjected” that plaintiff
“to the deprivation of any rights ... secured by the
Constitution ....”
Dodds v. Richardson, 614 F.3d 1185, 1199 (10th Cir. 2010)
(quoting 42 U.S.C. § 1983). Thus, Defendants’ Motions to
Dismiss are denied with regard to Plaintiffs’ supervisory
claims as to Sheriff Bigwarfe and Chief Westcott.
F. Defendants’ Arguments as to Plaintiffs’ ADA and
RA Claims
[72] “As a remedial statute, ‘the ADA must be broadly
construed to effectuate its purpose of providing a clear
and comprehensive national mandate for the elimination of
discrimination against individuals with disabilities.’ ” Nat'l
Fed'n of the Blind v. Scribd Inc., 97 F. Supp. 3d 565, 573 (D.
Vt. 2015) (quoting Mary Jo C. v. New York State and Local
Ret. Sys., 707 F.3d 144, 160 (2d Cir. 2013)).
“Under Title II of the ADA, ‘no qualified individual with
a disability shall, by reason of such disability, be excluded
from participation in or be denied the benefits of the
services, programs, or activities of a public entity, or be
subjected to discrimination by such entity.’ ” Fera v. City
of Albany, 568 F. Supp. 2d 248, 259 (N.D.N.Y. 2008)
(Kahn, J.) (quoting 42 U.S.C. § 12132). “Section 504 of the
Rehabilitation Act similarly provides in pertinent part that
‘[n]o otherwise qualified individuals with a disability ... shall,
solely by reason of his or her disability, be excluded from
the participation in, be denied the benefits of, or be subjected
to discrimination under any program or activity receiving
Federal financial assistance ....” Fera, 568 F. Supp. 2d at 259
(quoting 29 U.S.C. § 794).
[73] [74] “In order to establish a violation under the
ADA, the plaintiffs must demonstrate that (1) they are
‘qualified individuals’ with a disability; (2) that the
defendants are subject to the ADA; and (3) that plaintiffs
were denied the opportunity to participate in or benefit
from defendants’ services, programs, or activities, or were
otherwise discriminated against by defendants, by reason of
plaintiffs’ disabilities.” Henrietta D. v. Bloomberg, 331 F.3d
261, 272 (2d Cir. 2003). “Additionally, to establish a violation
under the Rehabilitation Act, a plaintiff must show that the
defendants receive federal funding.” Id.
[75] [76] “To recover monetary damages, a plaintiff must
demonstrate intentional discrimination.” Fera, 568 F. Supp.
2d at 259. “Intentional discrimination does not require
personal animosity or ill will[,]” id., and “[a] plaintiff may
recover under Title II [of the ADA] or Section 504 upon
a showing of a statutory violation resulting from deliberate
indifference to the rights secured the disabled by the acts[,]”
id. (quotations omitted); see also Loeffler v. Staten Island
Univ. Hosp., 582 F.3d 268, 275 (2d Cir. 2009) (stating
that “[t]he standard for intentional violations is deliberate
indifference to the strong likelihood of a violation” and
that “intentional discrimination against the disabled does not
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require personal animosity or ill will” (internal quotations
omitted)).
[77] Saint Lawrence Defendants argue that “Title II of
the ADA does not allow actions against a person in their
individual capacity.” Saint Lawrence Defs.’ Mem. of Law
at 19. Ogdensburg Defendants reiterate the arguments that
“co-defendant St. Lawrence County well points out in its
brief ....” Ogdensburg Defs.’ Mem. of Law at 12. Saint
Lawrence Defendants contend that “Plaintiffs, as a matter of
law, cannot state a claim for relief for violations of the ADA
against Officers Merria, nor Sherriff [sic] Bigwarfe[,]” Saint
Lawrence Defs.’ Mem. of Law at 19, and Ogdensburg *327
Defendants assert that “Plaintiffs cannot legally state a claim
for relief under the Americans with Disabilities Act against
Chief Robert Westcott, and Officers Charles Shaver, Danielle
Pryce, Joshua Sirles and Scott Wilson[,]” Ogdensburg Defs.’
Mem. of Law at 12.
[78] The Court agrees with Defendants that, to the extent
that Plaintiffs are suing the individual Defendants in their
individual capacities, “neither Title II of the ADA nor § 504
of the Rehabilitation Act provides for individual capacity
suit ....” Fera, 568 F. Supp. 2d at 259 (quotations omitted).
[79] [80] [81] [82] [83] However, Defendants do
not address Plaintiffs’ suit against Defendants insofar as
Plaintiffs are suing Defendants in their official capacities.
“Sovereign immunity does not ... extend to local governments
or municipalities.” Leitner v. Westchester Cmty. College, 779
F.3d 130, 134 (2d Cir. 2015). 9 Therefore, the Court dismisses
Plaintiffs’ ADA and RA claims with regard to Merria, Sheriff
Bigwarfe, Shaver, Pryce, Sirles, Wilson, and Chief Westcott
to the extent that as Plaintiffs are suing these individual
Defendants in their individual capacities. However, Plaintiffs’
claims may proceed under the ADA and RA insofar as
Plaintiffs are brining claims against Merria, Sheriff Bigwarfe,
Shaver, Pryce, Sirles, Wilson, and Chief Westcott in their
official capacities.
[84] Saint Lawrence Defendants and Ogdensburg
Defendants “do[ ] not argue that Plaintiff [Timothy Lalonde]
is not a qualified individual with a disability or that [they]
are not a public entity.” Fera, 568 F. Supp. 2d at 259; see
also Gorman v. Bartch, 152 F.3d 907, 912 (8th Cir. 1998)
(stating that under the ADA “[a] local police department falls
‘squarely within the statutory definition of public entity’ ”)
(quotations omitted) (quoting Pa. Dep't of Corrs. v. Yeskey,
524 U.S. 206, 210, 118 S.Ct. 1952, 141 L.Ed.2d 215 (1998)).
Saint Lawrence Defendants argue that Plaintiffs must allege
“allege facts showing that a policy maker acted with ill will
or personal animosity toward him because of his disability”
to satisfy deliberate indifference under Title II of the ADA.
Saint Lawrence Defs.’ Mem. of Law at 22 (quoting Vassenelli
v. State Univ. of N.Y., No. 17-CV-00082, 2018 WL 1406629
at *5, 2018 U.S. Dist. LEXIS 44200 at *8 (N.D.N.Y. Mar.
19, 2018)). Ogdensburg Defendants offer a similar argument
and also cite to *328 Vassenelli. Ogdensburg Defs.’ Mem.
of Law at 14.
The Court first addresses the standard discussed in Vassenelli.
When stating the standard under Title II of the ADA,
Vassenelli stated: “To prove intentional discrimination under
Title II, a plaintiff must allege facts showing that a
policymaker acted with ill will or personal animosity toward
him because of his disability or that the policy maker acted
with deliberate indifference to his rights under the ADA.”
2018 WL 1406629, at *3, 2018 U.S. Dist. LEXIS 44200, at
*8 (quotations omitted). The urtext for this principle is Garcia
v. State Univ. of N.Y. Health Scis. Ctr., 280 F.3d 98, 115
(2d Cir. 2001), which Vassenelli cited to when setting forth
the aforementioned standard, see 2018 WL 1406629, at *3,
2018 U.S. Dist. LEXIS 44200, at *8. However, immediately
after citing to Garcia, Vassenelli then stated that “[d]eliberate
indifference does not require personal animosity or ill will.”
Id. at *3, 2018 U.S. Dist. LEXIS 44200, at *8 (citing Loeffler,
582 F.3d at 275). Clearly, these two standards are at odds
—it would require the plaintiff to plead that a policymaker
acted with ill will or personal animosity while at the same
time it would not require personal animosity or ill will. This
contradiction can be resolved, however, because the Garcia
standard no longer governs Title II ADA suits.
The Second Circuit case Bartlett v. New York State
Bd. of Law Exm'rs set forth the standard for intentional
discrimination under the RA, although Bartlett appeared to
treat the ADA and RA interchangeably: “In the context of
the Rehabilitation Act, intentional discrimination against the
disabled does not require personal animosity or ill will.” 156
F.3d 321, 331 (2d Cir. 1998), vacated on other grounds by 527
U.S. 1031, 119 S.Ct. 2388, 144 L.Ed.2d 790 (1999). However,
Garcia argued that deliberate indifference under the ADA was
a different standard than under the RA. Garcia stated that “[i]n
enacting Title II [of the ADA], Congress purported to rely
on its authority under both the Commerce Clause of Article
I and § 5 of the Fourteenth Amendment.” 280 F.3d at 108.
Garcia argued that “Title II in its entirety exceeds Congress's
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authority under § 5 [of the Fourteenth Amendment]” but
said that “Title II need only comport with Congress's § 5
authority to the extent that the title allows private damage suits
against states for violations.” Id. at 110. Garcia asserted: “The
question, therefore, is how Title II monetary claims against
the states can be limited so as to comport with Congress's §
5 authority. The answer, we believe, is to require plaintiffs
bringing such suits to establish that the Title II violation was
motivated by discriminatory animus or ill will based on the
plaintiffs’ disability.” Id. at 111. Garcia argued that “unlike
Title II of the ADA, § 504 [of the RA] was enacted pursuant
to Congress's authority under the Spending Clause of Article
I.” Id. at 113 (citing U.S. Const. art. I, § 8, cl. 1). Because
of this purported difference, Garcia stated that it “alter[ed]
that holding [in Bartlett] by requiring proof of discriminatory
animus or ill will for Title II damage claims brought against
states ....” Id. at 115.
[85] However, subsequently the Supreme Court issued
Tennessee v. Lane, 541 U.S. 509, 124 S.Ct. 1978, 158 L.Ed.2d
820 (2004) and United States v. Georgia, 546 U.S. 151, 126
S.Ct. 877, 163 L.Ed.2d 650 (2006), and “[i]t [became] far
from clear whether the discriminatory animus requirement
[set forth in Garcia] remains in place following the Supreme
Court's decisions in Lane and Georgia.” Goonewardena, 475
F. Supp. 2d at 324 n.2. As discussed above in note 7,
courts have “concluded that abrogation [of Eleventh *329
Amendment sovereign immunity] under Title II [of the ADA]
is a valid exercise of Congressional power under section
5 [of the Fourteenth Amendment] ....” Id. at 327; see also
Ali v. Hogan, No. 12-CV-0104, 2013 WL 5503321, at *11,
2013 U.S. Dist. LEXIS 141239, at *30 (N.D.N.Y. Sept.
11, 2013) (adopting the approach taken in Goonewardena),
report and recommendation adopted by 2013 WL 5466302,
2013 U.S. Dist. LEXIS 142001 (N.D.N.Y. Sept. 30, 2013).
Accordingly, in light of Lane and Georgia’s displacement of
Garcia’s finding as to § 5 of the Fourteenth Amendment,
it appears that Garcia’s discriminatory animus requirement
no longer governs Title II actions brought under the ADA,
which this Court has made clear: “Intentional discrimination
[under Title II of the ADA and under the RA] does not
require personal animosity or ill will.” Fera, 568 F. Supp.
2d at 259. To find otherwise would run counter to the well-
settled principle that “[a]s a remedial statute, ‘the ADA must
be broadly construed to effectuate its purpose of providing a
clear and comprehensive national mandate for the elimination
of discrimination against individuals with disabilities.’ ”
Scribd, 97 F. Supp 3d at 573 (quoting Mary Jo C., 707 F.3d
at 160).
[86] Accordingly, to plead intentional discrimination under
the RA and Title II of the ADA, Plaintiffs must demonstrate
deliberate indifference, which does not require personal
animosity or ill will. See Fera, 568 F. Supp. 2d at 259.
Therefore, the Court finds that Defendants err in arguing that
a plaintiff needs to plead animosity or ill will in the context
of a Title II claim under the ADA.
In addition, Saint Lawrence Defendants argue that “Plaintiffs’
Complaint does not plead facts sufficient to infer that
the [Saint Lawrence] County Defendants were directly or
vicariously involved in any alleged discrimination, nor that
Plaintiff was discriminated against because of his disability.”
Saint Lawrence Defs.’ Mem. of Law at 20. Similarly,
Ogdensburg Defendants contend that “Plaintiffs do not plead
facts sufficient to infer that the City of Ogdensburg or
its officers were involved in any alleged discrimination or
that Mr. Lalonde was discriminated against because of his
disability.” Ogdensburg Defs.’ Mem. of Law at 12.
[87] [88] “[I]ntentional discrimination may be inferred
when a policymaker acted with at least deliberate indifference
to the strong likelihood that a violation of federally protected
rights will result from the implementation of the [challenged]
policy ... [or] custom.” Bartlett, 156 F.3d at 331 (quotations
omitted). Furthermore, it is well-settled that vicarious liability
principles apply under the ADA. See Morales v. City of New
York, No. 13-CV-7667, 2016 WL 4718189, at *7, 2016 U.S.
Dist. LEXIS 121471, at *22 (S.D.N.Y. Sept. 7, 2016) (“[T]he
law is clear that municipalities may be held vicariously liable
for violations of Title II of the ADA and Section 504 of the
Rehabilitation Act committed by their agents.”); Bowen v.
Rubin, 385 F. Supp. 2d 168, 180 (E.D.N.Y. 2005) (stating
that “[g]eneral common law agency principles apply to the
ADA” and finding at the summary judgment stage that
“applying the principles of vicarious liability, the plaintiffs
have demonstrated a genuine issue of material fact as to
whether the ... defendants may be held liable under the ADA
and the Rehabilitation Act”).
Here, Plaintiffs plead that it was “readily apparent that
[Timothy Lalonde] was blind and sightless[,]” Compl. ¶
26, because Timothy Lalonde was “holding a cane wearing
dark sunglasses” in the middle of the night when Defendant
officers were present, id. ¶ 25. In addition, Plaintiffs aver
that after Timothy Lalonde was “slammed” onto the ground
by Defendant *330 officers, id. ¶ 28, Theresa Lalonde
“scream[ed] to the Defendant Officers that ‘her husband is
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blind ....’ ” Id. ¶ 29. Furthermore, as Merria “was yanking
upon [Timothy Lalonde's] left arm ordering him to release
it from under the weight of his body [Timothy Lalonde]
responded that he couldn't do it as he was disabled.” Id.
¶ 31. 10 Timothy Lalonde “screamed that he was unable
to comply with the [Defendant officers’] commands to
move his body in order to free up his immobilized arm.”
Id. ¶ 33. Defendant officers then “inflicted two taser
shots” on Timothy Lalonde, id. ¶ 34, “ruthlessly ignor[ed
Timothy Lalonde's] assertion that his disability prevented him
from moving” and instead “aggressively yank[ed Timothy
Lalonde's] left wrist, elbow and arm resulting in an audible
‘pop’ that left [him] numb with excruciating pain and a
shattered broken wrist, fractured and dislocated elbow, and
torn rotator cuff[,]” id. ¶ 35, and because of Timothy
Lalonde's “lack[ ] [of] stomach and back muscles to keep him
upright when shackled with handcuffs behind his back” the
Defendant officers “ ‘improvised’ by lifting [his] body and
throwing him laterally into the patrol car sending his head
crashing against the opposite passenger door[,]” id. ¶ 37.
Thereafter, Defendant officers “intentionally and mockingly
refused to accommodate [Timothy Lalonde's] disability when
they ushered him into the police department to complete his
arrest processing[,]” id. ¶ 41, Doe Officers and Chief Westcott
“persisted in ridiculing and refusing to accommodate
[Timothy Lalonde] by requiring him to stand facing the wall
with his hands stretched out touching the wall while they
interrogated and booked him[,]” id. ¶ 42, and compelled
Timothy Lalonde “to stand against the stationhouse for one
hour while [the officers] attempted to have [Timothy Lalonde]
subscribe and ‘confess’ to their fabrications[,]” id. ¶ 45. Based
on these numerous factual allegations, the Court finds that
“intentional discrimination may be inferred” here because
Plaintiffs’ allegations plausibly show that Defendants “acted
with at least deliberate indifference to the strong likelihood
that a violation of federally protected rights w[ould] result”
under the ADA and RA from Defendants’ actions. Bartlett,
156 F.3d at 331. 11
Finally, Saint Lawrence Defendants argue that the Second
Circuit case Tardif v. City of New York, 991 F.3d 394 (2d
Cir. 2021), as interpreted by a different court in this District
in Butchino v. City of Plattsburgh, No. 20-CV-796, 2022
WL 137721, 2022 U.S. Dist. LEXIS 7995 (N.D.N.Y. Jan.
14, 2022), precludes Plaintiffs’ ADA claims as they relate
to excessive force. Saint Lawrence Defs.’ Mem. of Law
at 20–22. Ogdensburg Defendants reiterate Saint Lawrence
Defendants’ argument. *331 Ogdensburg Defs.’ Mem. of
Law at 13.
As Butchino explained the reasoning of Tardif:
In Tardif, the plaintiff, a pre-
arraignment detainee, was on a strict
medication schedule for epilepsy and
informed an officer of her medical
needs. Although the plaintiff received
her first dose, she did not receive her
second dose, had a seizure, and was
transported to the hospital. The Second
Circuit held that Tardif's epilepsy did
not cause a deprivation of medical
services, it was just the motivation for
seeking out such services.
Butchino, 2022 WL 137721, at *12, 2022 U.S. Dist. LEXIS
7995, at *32 (citations omitted). Tardif based this holding
on the principle that “ ‘[t]he ADA prohibits discrimination
because of disability, not inadequate treatment for disability.’
” Id. (quoting Tardif, 991 F.3d at 406).
Based on the principle that the ADA prohibits discrimination
because of disability but not inadequate treatment for
disability, Butchino states: “Tardif would preclude an ADA
claim for excessive force itself, not the failure to provide
a reasonable accommodation,” Butchino, 2022 WL 137721,
at *12, 2022 U.S. Dist. LEXIS 7995, at *32. Butchino
asserted that a reasonable accommodation in an excessive
force situation could include “a cooling off period[,]” id.,
and stated that “[t]he failure to provide such a reasonable
accommodation is squarely cognizable under the ADA[,]”
id. at *12, 2022 U.S. Dist. LEXIS 7995, at *32–33. Thus,
Butchino found that a plaintiff could bring an ADA claim
based on failure to provide a reasonable accommodation
in the context of an excessive force situation. As Butchino
explains: “Whereas the failure to provide medical care is a
generalized issue that applies beyond the ambit of disability
law, the failure to provide reasonable accommodation to a
service or benefit—a cooling off period for an individual with
PTSD—is a quintessential failure to accommodate disability
claim.” Id. at *12, 2022 U.S. Dist. LEXIS 7995, at *33.
Accordingly, the Court finds that Defendants’ arguments
as to Butchino and Tardif are misplaced. Butchino actually
demonstrates that a plaintiff can bring an ADA claim in
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the context of an excessive force situation, as long as that
situation involved discrimination because of disability.
Moreover, Butchino does not definitively foreclose an ADA
claim predicated on excessive force, but instead merely
states: “Plaintiff does not bring an ADA claim to remain
free from excessive force, which would likely fail following
Tardif.” Id. (emphasis added). As the Second Circuit in Tardif
stated: “[W]here an individual challenges ‘the substance of
the services provided’—rather than ‘illegal discrimination’—
there is no ADA violation.” Tardif, 991 F.3d at 405 (quoting
Doe v. Pfrommer, 148 F.3d 73, 84 (2d Cir. 1998)). Thus,
neither Butchino nor Tardif foreclose an excessive force
claim pursuant to the ADA that is predicated on illegal
discrimination based on disability.
However, the Court need not address this question because
Plaintiffs argue: “Defendants are misguided in their assertion
that Mr. Lalonde's ADA claim is simply founded on his belief
that the entirety of his claim relies upon a theory that he
has a right to a reasonable accommodation to be free from
excessive force.” Pls.’ Resp. to Saint Lawrence Defs.’ at
20. Saint Lawrence Defendants asserted: “Plaintiffs argument
is that because Mr. Lalonde is blind, he should never have
been subjected to force.” Saint Lawrence Defs.’ Mem. of
Law at 22. Ogdensburg Defendants reiterate this argument,
stating that Plaintiffs argue “[i]n essence because he is
blind, *332 Mr. Lalonde should not be subjected to force.”
Ogdensburg Defs.’ Mem. of Law at 13. Plaintiffs argue
that, instead, that they are arguing that Defendants failed
to reasonably accommodate Timothy Lalonde's disabilities
throughout his encounter with Saint Lawrence County and
City of Ogdensburg law enforcement officials. For example,
Plaintiffs assert: “Defendant officers should have considered
Mr. Lalonde's sight impairment, i.e., accommodated for it
by engaging in a verbal exchange to assess the necessity
of having to assume a tactical arrest formation.” Pls.’ Resp.
to Saint Lawrence Defs.’ at 21. Additionally, Plaintiffs
argue that “Defendant Officers ... intentionally refused
to accommodate Mr. Lalonde's physical disability which
prevented him from sitting upright in the back of Defendants’
squad car.” Id. at 22.
Plaintiffs’ reasonable accommodation claims are precisely
the types of ADA claims courts in this Circuit have found
are cognizable. See Williams v. City of New York, 121
F.Supp.3d 354, 368 (S.D.N.Y. 2015) (stating that when law
enforcement officials carry out on-the-street interactions, “the
only reasonable interpretation of Title II [of the ADA] is that
law enforcement officers who are acting in an investigative
or custodial capacity are performing services, programs, or
activities within the scope of Title II” (quotations omitted));
Nicholas v. City of Binghamton, No. 10-CV-1565, 2012
WL 3261409, at *13, 2012 U.S. Dist. LEXIS 111736,
at *34 (N.D.N.Y. Aug. 7, 2012) (“An arrest or seizure
of an individual, including post arrest transportation and
investigation is a service, activity, or benefit of a police
department and is thus covered under the ADA.” (quotations
omitted)); cf. Ryan v. Vt. State Police, 667 F. Supp. 2d
378 (D. Vt. 2009) (“The ADA requires police officers to
take appropriate steps to ensure that communication between
deaf arrestees, and the police is at least as effective as
communication that would occur between the police and
hearing arrestees.”).
Because Defendants’ arguments as to Butchino and Tardif
are misplaced, and because Plaintiffs’ ADA claims based on
Defendants’ failure to provide reasonable accommodations
are the types of ADA claims courts regularly permit, the Court
finds that Defendants have not met their burden. Therefore,
Defendants’ Motions to Dismiss are denied with regard to
Plaintiffs’ ADA claims, 12 insofar as Plaintiffs are not suing
individual Defendants in their individual capacities.
G. Defendants’ Arguments as to Plaintiffs’ State Law
Claims for Negligent Infliction of Emotional Distress
[89] [90] [91] Under New York State law the New York
State Court of Appeals has
h[e]ld that where a defendant
negligently exposes a plaintiff to an
unreasonable risk of bodily injury or
death, the plaintiff may recover, as a
proper element of his or her damages,
damages for injuries suffered in the
consequence of the observation of the
serious injury or death of a member
of his or her immediate family—
assuming ... that it is established
that the defendants’ conduct was a
substantial factor in bringing about
such injury or death.
Bovsun v. Sanperi, 61 N.Y.2d 219, 231, 473 N.Y.S.2d 357,
461 N.E.2d 843 (N.Y. 1984). This is governed by the “zone-
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of-danger rule, which allows one who is himself or *333
herself threatened with bodily harm in consequence of the
defendant's negligence to recover for emotional distress
resulting from the viewing of the death or serious physical
injury of a member of his or her immediate family ....”
Id. at 228, 473 N.Y.S.2d 357, 461 N.E.2d 843. Moreover,
“the emotional disturbance suffered must be serious and
verifiable.” Id. at 231, 473 N.Y.S.2d 357, 461 N.E.2d 843
(citation omitted). “Additionally, the compensable emotional
distress must be tied, as a matter of proximate causation, to
the observation of the serious injury or death of the family
member and such injury or death must have been caused by
the conduct of the defendant.” Id. at 231–32, 473 N.Y.S.2d
357, 461 N.E.2d 843.
[92] Here, Saint Lawrence Defendants assert that “Plaintiffs
have failed to even make a conclusory allegation that
[Theresa] Lalonde's physical safety was threatened or
endangered, and there are no facts to suggest that Mrs.
Lalonde was in any way part of her husband's interaction with
the officers ....” Saint Lawrence Defs.’ Mem. of Law at 23.
Likewise, the Ogdensburg Defendants argue: “There are no
facts alleged suggesting that Mrs. Lalonde was in any way
part of her husband's interaction with the officers such that
she feared for her own safety.” Ogdensburg Defs.’ Mem. of
Law at 14.
Plaintiffs averred in the Complaint that Theresa Lalonde
“stormed out of her house” to accost the Defendant Officers
for attacking her husband, Compl. ¶ 29, and Plaintiffs argue
that “Theresa Lalonde was in the immediate vicinity as her
husband[,]” Pls.’ Resp. to Saint Lawrence Defs.’ at 24, and
that “there is more than reasonable chance that she herself
would have been physically accosted and threatened with a
similar beating as her husband[,]” id.
[93] “Whether a plaintiff was in the ‘zone of danger,’ ...
may raise factual questions that must be resolved by a
jury.” Sullivan v. Ford Motor Co., No. 97-CV-0593, 2000
WL 343777 at *8, 2000 U.S. Dist. LEXIS 4114 at *24
(S.D.N.Y. Mar. 31, 2000) (citing Leverock v. Hall & Fuhs,
Inc., 245 A.D.2d 550, 551, 666 N.Y.S.2d 729 (N.Y. App. Div.
1997) and Malstrom v. Mackey, 182 A.D.2d 1006, 1006–
07, 583 N.Y.S.2d 28 (N.Y. App. Div. 1992)). “[D]rawing
all reasonable inferences in the plaintiffs’ favor[,]” Holmes,
568 F.3d at 335 (citation omitted), and noting that the zone
of danger analysis is a factual matter better suited to later
stages in the litigation when such facts have been more fully
developed, the Court finds that Plaintiffs have plausibly pled
Theresa Lalonde's presence in the zone of danger as to their
negligent infliction of emotional distress claims. Accordingly,
because Defendants argue only that “Plaintiffs failed to plead
one element of this cause of action,” Saint Lawrence Defs.’
Mem. of Law at 24; see also Ogdensburg Defs.’ Mem. of
Law at 14, the Court finds that Defendants have not met
their burden under Rule 12(b)(6), and Defendants’ Motions
to Dismiss are denied as to Plaintiffs’ negligent infliction of
emotional distress claims.
H. Defendants’ Arguments as to Plaintiffs’ State Law
Claims for Intentional Infliction of Emotional Distress
[94] Saint Lawrence Defendants and Ogdensburg
Defendants contend that Plaintiffs’ state law claim for
intentional infliction of emotional distress is time barred by
the relevant statute of limitations. Saint Lawrence Defs.’
Mem. of Law at 24; Ogdensburg Defs.’ Mem. of Law at 15.
[95] While “[i]n section 1983 actions, the applicable
limitations period is found in *334 the ‘general or residual
[state] statute [of limitations] for personal injury actions,’
” which is “three years” under New York State law, Pearl
v. City of Long Beach, 296 F.3d 76, 79 (2d Cir. 2002)
(quoting Owens v. Okure, 488 U.S. 235, 249–50, 109 S.Ct.
573, 102 L.Ed.2d 594 (1989)), Plaintiffs’ state law claims for
intentional infliction of emotional distress may be governed
by either New York Civil Practice Law and Rules (“N.Y.
C.P.L.R.”) § 215 or New York General Municipal Law § 50-
i, see Durr, 558 F. Supp. 3d at 37. Under N.Y. C.P.L.R. § 215,
“an action against a sheriff ... or constable, upon a liability
incurred by him by doing an act in his official capacity or
by omission of an official duty ...” “shall be commenced
within one year ....” N.Y. C.P.L.R. § 215(1). Under New York
General Municipal Law § 50-i:
No action or special proceeding shall
be prosecuted or maintained against a
city, county, town, village, fire district
or school district for personal injury ...
alleged to have been sustained by
reason of the negligence or wrongful
act of such city, county, village, fire
district or school district of any officer,
agent or employee thereof ... unless (c)
the action or special proceeding shall
be commenced within one year and
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ninety days after the happening of the
event upon which the claim is based ....
N.Y. Gen. Mun. § 50-i(c). “Whether the statute of limitations
outlined in [N.Y.] GML § 50-i(c) or NY CPLR § 215 applies
‘depends upon who is the real party in interest.’ ” Durr,
558 F. Supp. 3d at 37 (quoting Coe v. Town of Conklin,
94 A.D.3d 1197, 1198, 942 N.Y.S.2d 255 (N.Y. App. Div.
2012)). “Where an individual ‘was acting solely on his own
behalf’ NY CPLR § 215 applies.” Durr, 558 F. Supp. 3d at 37
(quoting Coe, 94 A.D.3d at 1198, 942 N.Y.S.2d 255). “Where
an individual is alleged to have been ‘acting within the scope
of his employment with the Town, however, the Town may
be liable for his conduct and would thus be the real party in
interest; in those circumstances, General Municipal Law § 50-
i(c) would apply.’ ” Durr, 558 F. Supp. 3d at 37–38 (quoting
Coe, 94 A.D.3d at 1198–99, 942 N.Y.S.2d 255).
Defendants appear to assume that N.Y. C.P.L.R. § 215(1)
applies to this case, rather than N.Y. Gen. Mun. § 50-i(c),
although they do not explain why this is the case or address
who is the real party in interest under New York State law.
Saint Lawrence Defs.’ Mem. of Law at 24; Ogdensburg Defs.’
Mem. of Law at 15.
[96] [97] “It is well established that ‘[c]omplaints need not
anticipate, or attempt to plead around, potential affirmative
defenses.’ ” Kattu v. Metro Petroleum, Inc., No. 12-CV-54,
2013 WL 4015342, at *4, 2013 U.S. Dist. LEXIS 110413, at
*10 (W.D.N.Y. Aug. 6, 2013) (quoting High Falls Brewing
Co., LLC v. Boston Beer Corp., 852 F. Supp. 2d 306, 310
(W.D.N.Y. 2011)). “Accordingly, ‘a statute of limitations is
an affirmative defense that need not be addressed in the
complaint,’ and plaintiffs are not required to allege facts
in their complaint to rebut a potential statute of limitations
affirmative defense that might be waived.” Kattu, 2013 WL
4015342, at *4, 2013 U.S. Dist. LEXIS 110413, at *11
(quoting E.E.O.C. v. Davis, No. 07-CV-6434, 2008 WL
4415177, at *6, 2008 U.S. Dist. LEXIS 72911, at *18
(W.D.N.Y. Sept. 24, 2008)). “Requiring plaintiffs to allege
in a complaint facts sufficient to overcome a statute of
limitations affirmative defense would shift the burden to raise
and prove the affirmative defense from defendants, as their
burden is allocated and imposed by Rule 8(c)(1) of the Federal
Rules of Civil Procedure, to plaintiffs.” Kattu, 2013 WL
4015342, at *4, 2013 U.S. Dist. LEXIS 110413, at *11.
*335 [98] “Determining a statute of limitations defense
ordinarily ‘requires a consideration of the merit of both
parties’ claims and defenses.’ ” Id. at *4, 2013 U.S. Dist.
LEXIS 110413, at *12 (quoting Addison v. Reitman Blacktop,
Inc., 283 F.R.D. 74, 83 (E.D.N.Y. 2011)). “A ‘motion to
dismiss filed under Federal Rule of Civil Procedure 12(b)(6)
... generally cannot reach the merits of an affirmative defense’
except in the ‘rare’ circumstance in which facts sufficient to
rule on the affirmative defense are alleged in the complaint.”
Acosta v. Jardon & Howard Techs., Inc., No. 18-CV-16,
2018 WL 5779506 at *2, 2018 U.S. Dist. LEXIS 187927 at
*4 (E.D.N.Y. Nov. 2, 2018) (quoting Goodman v. Praxair,
Inc., 494 F.3d 458, 464 (4th Cir. 2007) (en banc)); Kattu,
2013 WL 4015342, at *4, 2013 U.S. Dist. LEXIS 110413,
at *12 (“Because the [statute of limitations] defense requires
consideration on the merits, it is heavily fact dependent,
which makes a statute of limitations ‘[d]ismissal under Rule
12(b)(6) ... irregular.’ ” (quoting Davis, 2008 WL 4415177,
at *6, 2008 U.S. Dist. LEXIS 72911, at *18)).
Plaintiffs argue that the statute of limitations defense does not
apply here because of the “continuing violation doctrine ....”
Pls.’ Resp. to Saint Lawrence Defs.’ at 25. Plaintiffs
assert that “that Defendant Merria, Shaver, Pryce, and
Sirles engaged in a conspiracy” and allege that the “co-
conspirator[s] and co-Defendants[ ] Chief Robert Westcott
and Ogdensburg police officer Scott Wilson ... on or about
April 1, 2021, resuscitated the conspiracy's false narratives
in order to bolster their conspiracy's coverup” by “order[ing
Timothy] Lalonde, under threat of warrant, to return to the
[Ogdensburg Police Department] stationhouse to purportedly
retake fingerprints and mugshots despite his criminal case
being dismissed in July 21, 2020.” Id. During this time,
Plaintiffs state that “co-conspirators Westcott and Wilson
proceeded to re-interrogate Mr. Lalonde regarding their
fantastical fabricated narrative .....” Id.
[99] Under New York State law, the New York State
Supreme Court, Appellate Division, First Department, has
found that based on “a pattern of harassment, intimidation,
humiliation and abuse” an “intentional infliction of emotional
distress” action “was not barred by the one-year Statute of
Limitations (CPLR 215)” and “was instead governed by the
continuing tort doctrine” which “permit[s] the plaintiff to rely
on wrongful conduct occurring more than one year prior to
commencement of the action, so long as the final actionable
event occurred within one year of the suit.” Shannon v.
MTA Metro-North R.R., 269 A.D.2d 218, 219, 704 N.Y.S.2d
208 (N.Y. App. Div. 2000). Accordingly, under Plaintiffs’
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argument, the statute of limitations did not commence until on
or about April 1, 2021, and therefore, Plaintiffs’ filing of the
Complaint on February 18, 2022, was well within the statute
of limitations time period set forth by N.Y. C.P.L.R. § 215(1)
or N.Y. Gen. Mun. § 50-i(c). See generally Compl.
Thus, for the purposes of resolving Defendants’ Motions to
Dismiss, the Court finds that Plaintiffs’ intentional infliction
of emotional distress claims are not time barred by the statute
of limitations, and the Court will not shift the burden of
pleading and proving facts that underpin the potential statute
of limitations defense from Defendants onto Plaintiffs. Cf.
Kattu, 2013 WL 4015342, at *5, 2013 U.S. Dist. LEXIS
110413, at *13–14 (“In this action, some of plaintiffs’ claims
may have accrued before the two- or three-year statute of
limitations bar date, but plaintiffs sufficiently raise equitable
tolling in response to defendant[’s] ...Rule 12(b)(6) motion
to dismiss to avoid the dismissal of their *336 claims for
failure to state a claim. In light of plaintiff[s’] response to
the motion to dismiss, it is not clear from the complaint
that any of plaintiffs’ claims are time-barred. On the other
hand, undisputed facts may later justify a motion for summary
judgment to significantly narrow the issue for trial. At this
juncture, the Court will not shift the burden of pleading and
proving facts that underlie the potential statute of limitations
defense, a defense that is waived if not alleged in an answer,
from defendant to plaintiffs.”). Accordingly, Defendants’
Motions to Dismiss are denied as to Plaintiffs’ intentional
infliction of emotional distress claims.
I. Defendants’ Arguments as to Plaintiffs’ Negligence
Claims
[100] Saint Lawrence Defendants and Ogdensburg
Defendants both argue that because conduct cannot be both
negligent and intentional, the Court should dismiss Plaintiffs’
negligence claims. Saint Lawrence Defs.’ Mem. of Law at
24–25; Ogdensburg Defs.’ Mem. of Law at 15. As discussed
at length above, it is well-settled that “[a] party may state
as many separate claims or defenses as it has, regardless of
consistency.” Fed. R. Civ. P. 8(d)(3). Accordingly, the Court
finds that Defendants’ arguments with regard to inconsistency
of pleadings are inapposite under Rule 8.
Saint Lawrence Defendants assert that “Plaintiffs’ negligence
claim must also be dismissed because plaintiffs may not
recover in negligence where a law enforcement officer fails
to exercise some requisite amount of care in effectuating
an arrest or initiating a prosecution.” Saint Lawrence Defs.’
Mem. of Law at 25. Ogdensburg Defendants reiterate the
same argument: “[N]egligence claims must be dismissed
where it is alleged that the law enforcement officer was
negligent by failing to exercise certain care in effectuating
the arrest or initiating prosecution.” Ogdensburg Defs.’ Mem.
of Law at 15. Both groups of Defendants cite to the Second
Circuit decision Bernard v. United States, which stated:
“Under New York law, a plaintiff may not recover under
general negligence principles for a claim that law enforcement
officers failed to exercise the appropriate degree of care in
effectuating an arrest or initiating a prosecution.” 25 F.3d 98,
102 (2d. Cir. 1994); Saint Lawrence Defs.’ Mem. of Law at
25; Ogdensburg Defs.’ Mem. of Law at 15.
[101] Bernard relies on Boose v. City of Rochester, 71
A.D.2d 59, 421 N.Y.S.2d 740 (N.Y. App. Div. 1979), a
decision issued by the New York State Supreme Court,
Appellate Division, Fourth Department, in support of its
finding. See Bernard, 25 F.3d at 102. Boose stated:
“Plaintiff may not recover under broad general principles of
negligence ... but must proceed by way of the traditional
remedies of false arrest and imprisonment and malicious
prosecution.” 71 A.D.2d at 62, 421 N.Y.S.2d 740. However,
a plaintiff may proceed with negligence claims brought
against law enforcement officials if such claims are not
duplicative of false arrest, false imprisonment, or malicious
prosecution. See Woods v. Town of Cheektowaga, No. 11-
CV-343, 2012 WL 5288767, at *7, 2012 U.S. Dist. LEXIS
152229, at *22–23 (W.D.N.Y. Oct. 23, 2012) (addressing
“Defendants[’] argume[ment] that this claim [for negligence]
must be dismissed because the negligence alleged is based
upon activities relating to an arrest, [and] therefore Plaintiffs
must resort to the traditional remedies of false imprisonment
and malicious prosecution and cannot recover under the
broader principles of negligence” but finding that “[u]nlike
the cases on which Defendants rely, however, Plaintiffs’
negligence claim here is not duplicative of a false arrest
or malicious prosecution *337 claim” (citations omitted)
(quotations omitted)).
Accordingly, the Court agrees with Defendants that Plaintiffs
may not pursue negligence claims against Pryce, Sirles,
Shaver, Wilson, Merria, and Chief Westcott for actions and
omissions that are properly construed as false arrest and false
imprisonment claims. Therefore, these claims are dismissed.
However, insofar as Plaintiffs seek to bring other negligence
claims that are not duplicative of false arrest and false
imprisonment, those claims may proceed because Defendants
have not met their burden with regard to those other
negligence claims. Thus, Defendants’ Motions to Dismiss
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are denied as to Plaintiffs’ negligence claims that are not
duplicative of false arrest and false imprisonment.
J. Ogdensburg Defendants’ Arguments as to
Plaintiffs’ Trespass Claim Against Wilson
Ogdensburg Defendants argues that the Court should dismiss
Plaintiffs’ trespass claim against Wilson. Ogdensburg Defs.’
Mem. of Law at 16–17. Ogdensburg Defendants contend
that two New York State Court of Appeals cases support
their argument, specifically Valdez v. City of New York,
18 N.Y.3d 69, 936 N.Y.S.2d 587, 960 N.E.2d 356 (N.Y.
2011), and McLean v. City of New York, 12 N.Y.3d 194,
878 N.Y.S.2d 238, 905 N.E.2d 1167 (N.Y. 2009). Ogdensburg
Defs.’ Mem. of Law at 16. However, the two cases that
Ogdensburg Defendants cite address municipal liability
whereas Plaintiffs’ Complaint seeks to bring a trespass claim
only against Wilson. Compl. ¶¶ 171–76. For example, the
passage of Valdez quoted by Ogdensburg Defendants states:
“ ‘A public employee's discretionary acts—meaning conduct
involving the exercise of a reasoned judgment—may not
result in the municipality's liability even when the conduct
is negligent.’ ” Ogdensburg Defs.’ Mem. of Law at 16
(emphasis added) (quoting Valdez, 18 N.Y.3d at 76, 936
N.Y.S.2d 587, 960 N.E.2d 356). Likewise, McLean states
that “discretionary municipal acts may never be a basis for
liability, while ministerial acts may support liability only
where a special duty is found.” McLean v. City of New York,
12 N.Y.3d at 202, 878 N.Y.S.2d 238, 905 N.E.2d 1167. Thus,
the Valdez and McLean cases are inapplicable in the context
of Plaintiffs’ trespass claim against Wilson. Accordingly,
Ogdensburg Defendants have failed to meet their burden of
proving that Plaintiffs have not stated a cognizable claim
against Wilson for trespass, and Ogdensburg Defendants’
Motion to Dismiss is denied with regard to Plaintiffs’ trespass
claim against Wilson.
V. CONCLUSION
Accordingly, it is hereby:
ORDERED, that Saint Lawrence Defendants’ Motion to
Dismiss (Dkt. No. 9) is GRANTED in part, pursuant to
Rule 12(b)(6), to the extent that Plaintiffs are seeking to
sue individual Defendants in their individual capacities under
the ADA; however, Saint Lawrence Defendants’ Motion to
Dismiss is DENIED with regard to all of Plaintiffs’ other
ADA claims against Defendants—including those claims
brought against Defendants in their official capacities—and
Plaintiffs’ other ADA claims may proceed; and it is further
ORDERED, that Saint Lawrence Defendants’ Motion to
Dismiss is GRANTED in part, pursuant to pursuant to
Rule 12(b)(6), insofar as Plaintiffs are seeking to sue
Defendants for negligence for acts or omissions that are
properly construed as false arrest and false imprisonment;
however, Saint Lawrence Defendants’ Motion to Dismiss
is DENIED with regard to all *338 of Plaintiffs’ other
negligence claims that are not duplicative of false arrest and
false imprisonment, and Plaintiffs’ other negligence claims
are permitted to proceed; and it is further
ORDERED, that Saint Lawrence Defendants’ Motion to
Dismiss is DENIED as to all other claims Saint Lawrence
Defendants seek to dismiss; and it is further
ORDERED, that Ogdensburg Defendants’ Motion to
Dismiss (Dkt. No. 10) is GRANTED in part, pursuant to
Rule 12(b)(6), to the extent that Plaintiffs are seeking to sue
individual Defendants in their individual capacities under the
ADA; however, Ogdensburg Defendants’ Motion to Dismiss
is DENIED with regard to all of Plaintiffs’ other ADA claims
against Defendants—including those claims brought against
Defendants in their official capacities—and Plaintiffs’ other
ADA claims may proceed; and it is further
ORDERED, that Ogdensburg Defendants’ Motion to
Dismiss is GRANTED in part, pursuant to pursuant to Rule
12(b)(6), insofar as Plaintiffs are seeking to sue Defendants
for negligence for acts or omissions that are properly
construed as false arrest and false imprisonment; however,
Ogdensburg Defendants’ Motion to Dismiss is DENIED with
regard to all of Plaintiffs’ other negligence claims that are
not duplicative of false arrest and false imprisonment, and
Plaintiffs’ other negligence claims are permitted to proceed;
and it is further
ORDERED, that Ogdensburg Defendants’ Motion to
Dismiss is DENIED as to all other claims Ogdensburg
Defendants seek to dismiss; and it is further
ORDERED, that the Clerk of the Court is respectfully
directed to serve a copy of this Memorandum-Decision and
Order on all parties in accordance with the Local Rules.
IT IS SO ORDERED.
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All Citations
662 F.Supp.3d 289
Footnotes
1 The Court refers to the Ogdensburg Defendants and the Saint Lawrence Defendants collectively as
“Defendants.”
2 Saint Lawrence Defendants and Ogdensburg Defendants requested oral argument with respect to the
Motions to Dismiss. Saint Lawrence Defs.’ Mot. to Dismiss at 1; Ogdensburg Defs.’ Mot. to Dismiss at 1.
Local Rule 7.1(a) states: “Motions are decided without oral argument unless scheduled by the Court. Parties
may make a written request for oral argument, which is subject to the discretion of the presiding judge.” L.R.
7.1(a). The Court denies these requests for oral argument.
3 “Under New York Law, a civil assault is an intentional placing of another person in fear of imminent harm
or offensive conduct.” Jackson, 2022 WL 2954370, at *9, 2022 U.S. Dist. LEXIS 132123, at *25–26 (citing
Girden v. Sandals Int'l, 262 F.3d 195, 203 (2d Cir. 2001)). “To recover damages for assault, there must be
proof of physical conduct placing the plaintiff in imminent apprehension of harmful contact.” Jackson, 2022
WL 2954370, at *9, 2022 U.S. Dist. LEXIS 132123, at *26 (citing Morgan v. City of Utica, No. 20-CV-1424,
2021 WL 2036680, at *5, 2021 U.S. Dist. LEXIS 97271, at *11–12 (N.D.N.Y. May 21, 2021)). “A civil battery
is an intentional wrongful physical contact with another person without consent, and may be accomplished
either personally or by means of an instrumentality ....” Jackson, 2022 WL 2954370, at *9, 2022 U.S. Dist.
LEXIS 132123, at *27 (citations omitted) (citing Girden, 262 F.3d at 203 and Relf v. City of Troy, 169 A.D.3d
1223, 1226, 94 N.Y.S.3d 672 (N.Y. App. Div. 2019)).
4 Supplemental jurisdiction is governed by 28 U.S.C. § 1367(a), which states: “[I]n any civil action of which the
district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other
claims that are so related to claims in the action within such original jurisdiction that they form part of the same
case or controversy under Article III of the United States Constitution.” 28 U.S.C. § 1367(a). Under § 1367(a),
claims “ ‘form part of the same case or controversy’ ” if these claims, “ ‘derive from a common nucleus of
operative fact.’ ” Shahriar v. Smith & Wollensky Rest. Grp., Inc., 659 F.3d 234, 245 (2d Cir. 2011) (quoting
Briarpatch Ltd., L.P. v. Phoenix Pictures, Inc., 373 F.3d 296, 308 (2d Cir. 2004)). Pursuant to § 1367(a), “a
federal court has subject-matter jurisdiction over specified state-law claims, which it may (or may not) choose
to exercise.” Carlsbad Tech., Inc. v. HIF Bio, Inc., 556 U.S. 635, 639, 129 S.Ct. 1862, 173 L.Ed.2d 843 (2009).
The Court exercises this subject matter jurisdiction over all of Plaintiffs’ New York State law claims.
5 “In order to establish a claim for false arrest or false imprisonment under New York State law, a plaintiff
must show that: (1) the defendant intentionally confined the plaintiff; (2) the plaintiff was conscious of the
confinement; (3) the plaintiff did not consent to the confinement; and (4) the confinement was not otherwise
justified.” Levantino, 56 F. Supp. 3d at 200.
6 “Rule 8(d)[ ] [was] formerly Rule 8(e) ....” St. John's Univ. v. Bolton, 757 F. Supp. 2d 144, 183 (E.D.N.Y.
2010). While “[t]he court in Henry cited to former Rule 8(e)(2) .... [t]he relevant provision was restyled as Rule
8(d)(2)–(3) in 2007 ....” Moore v. Samuel S. Stratton VAH, No. 16-CV-475, 2019 WL 251725, at *4 n.3, 2019
U.S. Dist. LEXIS 8342, at *12 n.3 (N.D.N.Y. Jan. 17, 2019) (Kahn, J.).
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7 Some courts also look to Rule 20 when addressing pleading in the alternative when a plaintiff pleads claims
against multiple defendants. Rule 20(a)(2) states: “Persons ... may be joined in one action as defendants if:
(A) any right to relief is asserted against them jointly, severally, or in the alternative with respect to or arising
out of the same transaction occurrence, or series of transactions or occurrences; and (B) any question of
law or fact common to all defendants will arise in the action.” Fed. R. Civ. P. 20(a)(2)(A)–(B). Applying Rule
20(a)(2)(A), the Eleventh Circuit permitted a plaintiff to plead in the alternative as to three law enforcement
officials, although plaintiff could not identify which specific official had struck him: “Because we conclude that
[plaintiff] sufficiently alleged that one of the three agents struck him in violation of his Fourth Amendment
rights, and that all three agents were present at the time, [plaintiff] can plead in the alternative and pursue
discovery to uncover the identity of the agent who allegedly struck him.” Saunders v. Duke, 766 F.3d 1262,
1268 n.2 (11th Cir. 2014).
8 Saint Lawrence Defendants only argue against Plaintiffs’ fabrication of evidence claims as they relate to
Merria. Saint Lawrence Defs.’ Mem. of Law at 9–10. Ogdensburg Defendants only argue against Plaintiffs’
fabrication of evidence claims as they relate to “Shaver, Pryce, Sirles and Wilson ....” Ogdensburg Defs.’
Mem. of Law at 5.
9 Even if sovereign immunity were at issue, the Court notes that “abrogation [of Eleventh Amendment sovereign
immunity] under Title II [of the ADA] is a congruent and proportional response to the history of discrimination
against the disabled ....” Goonewardena v. New York, 475 F. Supp. 2d 310, 326 (S.D.N.Y. 2007). Because
“abrogation under Title II [of the ADA] is a valid exercise of Congressional power under section 5 [of the
Fourteenth Amendment], sovereign immunity is not a ground which bars” a plaintiff's claims against the State.
Id. Additionally, where “the immunity of the individual defendants sued in their official capacities parallels
that of the State[,]” because “sovereign immunity does not shield [the State], it does not shield the individual
defendants in their official capacities.” Id. at 326–27.
Likewise, even if sovereign immunity were at issue in this case, it would not bar a plaintiff's claims for injunctive
relief brought against state actors in their official capacities. “Neither § 504 nor Title II [of the ADA] displays any
intent by Congress to bar a suit against state officials in their official capacities for injunctive relief, nor does
either create a remedial scheme so elaborate that it could be thought to preclude relief under Ex parte Young[,
209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908)].” Henrietta D., 331 F.3d at 289. Accordingly, (“there is no
basis for holding that the ADA or Rehabilitation Act intended to create the kind of comprehensive enforcement
scheme that would preclude prospective injunctive relief against a state official in her official capacity.”).
10 Saint Lawrence Defendants regard Plaintiffs’ factual claims as to this incident as inconsistent, Saint Lawrence
Defs.’ Mem. of Law at 20, but the Court reiterates what it stated above—under Rule 8, a plaintiff's pleadings
may have inconsistencies and “[t]he inconsistency may lie either in the statement of the facts or in the legal
theories adopted ....” Henry, 42 F.3d at 95.
11 Insofar as Ogdensburg Defendants assert that “no facts have been alleged that [Chief Westcott] was a ‘policy
maker,’ ” Ogdensburg Defs.’ Mem. of Law at 14, the Court finds that this argument is inapposite. See Wilson
v. Robert Riley Baucom, No. 20-CV-311, 2021 WL 7081523 at *8, 2021 U.S. Dist. LEXIS 253806 at *25
(W.D. Tex. Jan. 25, 2021) (“Neither a policymaker nor an official policy need be identified for ADA claims;
a public entity ‘is liable for the vicarious acts of any of its employees as specifically provided by the ADA.’
” (quoting Leeper v. Travis Cnty., No. 16-CV-819, 2018 WL 5892377, at *8, 2018 U.S. Dist. LEXIS 191755,
at * (W.D. Tex. Nov. 19, 2018))).
12 To the extent that Saint Lawrence Defendants again reiterate their argument as to inconsistencies in Plaintiffs’
Complaint, in the context of these ADA claims, Saint Lawrence Defs.’ Mem. of Law at 22, the Court again
finds that Plaintiffs may plead in the alternative under Rule 8.
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2026 WL 237648
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Patrick LAWRENCE, Plaintiff,
v.
Detective SHATTICK et al., Defendants.
8:24-cv-00656 (MAD/DJS)
|
Signed January 29, 2026
Attorneys and Law Firms
PATRICK LAWRENCE, 24-B-3713, Bare Hill Correctional
Facility, Caller Box 20, Malone, New York 12953, Plaintiff
pro se.
STEPHEN D. BUTTON, ESQ., ST. LAWRENCE COUNTY,
ATTORNEY'S OFFICE, 48 Court Street, Canton, New York
13617, Attorneys for Defendants.
MEMORANDUM-DECISION AND ORDER
Mae A. D'Agostino, United States District Judge:
I. INTRODUCTION
*1 On May 14, 2024, pro se Plaintiff Patrick Lawrence
(“Plaintiff”) filed a civil rights action under 42 U.S.C. §
1983 against multiple defendants for alleged constitutional
violations while he was a pre-trial detainee. 1 See Dkt. No.
1. Plaintiff's factual allegations stem from his arrest during
a traffic stop and his treatment while incarcerated at St.
Lawrence County Correctional Facility. See id. Plaintiff's
complaint originally alleged seventeen causes of action. See
id.
On September 23, 2024, Magistrate Judge Daniel Stewart
issued a Report-Recommendation and Order recommending
that Plaintiff's fourth, fifth, seventh, fourteenth, fifteenth, and
seventeenth causes of action, and all his Eighth Amendment
claims, be dismissed with prejudice; Plaintiff's sixth, eighth,
ninth, tenth, eleventh, twelfth, and thirteenth causes of action
be dismissed with leave to amend; and Plaintiff's first, second,
third, and sixteenth causes of action be permitted to proceed.
See Dkt. No. 11 at 14.
Following Plaintiff's objections to the Report-
Recommendation and Order, Dkt. No. 14, this Court issued
a Memorandum-Decision and Order on February 19, 2025,
adopting as modified Magistrate Judge Stewart's Report-
Recommendation and Order, Dkt. No. 17. Plaintiff's sixth,
eighth, ninth, tenth, eleventh, twelfth, and thirteenth causes
of action were dismissed without prejudice and with leave to
amend; Plaintiff's fourth, fifth, seventh, fourteenth, fifteenth,
and seventeenth causes of action, as well as all his Eighth
Amendment claims, were dismissed with prejudice and
without leave to amend; Plaintiff's claims against seven
defendants were dismissed with prejudice; and Plaintiff's first,
second, third, and sixteenth causes of action were permitted to
proceed. See id. at 21-22. Plaintiff was also given thirty days
to amend his complaint. See id. at 22. After Plaintiff failed to
substantively amend his complaint, Magistrate Judge Stewart
issued an order reaffirming that Plaintiff's first, second, third,
and sixteenth causes of action were to proceed. See Dkt. No.
18.
Count One alleges that Defendants Shattick, Yerdon,
Tate, Merria, Bundette, Anderson, and Bigwarfe illegally
detained Plaintiff in violation of the Fourth and Fourteenth
Amendments. See Dkt. No. 1 at 7-9.
Count Two alleges that Defendants Yerdon, Tate, Merria,
Bundette, Anderson, Shattick, and Bigwarfe, in violation of
the Fourth and Fourteenth Amendments, failed to intervene
in the constitutional violation alleged in Count One. See id.
at 9-10.
Count Three alleges that Defendants Yerdon, Tate,
Merria, Bundette, Anderson, Shattick, and Bigwarfe were
deliberately indifferent to Plaintiff's medical needs, in
violation of the Fourteenth Amendment, by failing to obtain
medical attention after Plaintiff experienced hallucinations.
See id. at 10-11.
*2 Count Four (originally claim sixteen in the complaint),
alleges that Defendants Harper, Amos, Mayo, Scott, Clary,
Kerrigan, and Nurse 1-100 were deliberately indifferent in
treating Plaintiff's serious medical needs by waiting seven-
and-a-half months to conduct an MRI on his shoulder, not
ordering an MRI on his back, ignoring his mental health
needs by refusing to follow a mental health plan, and refusing
Plaintiff shoulder surgery, all in violation of the Fourteenth
Amendment. See id. at 22-23.
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On August 20, 2025, the remaining Defendants filed a motion
to dismiss all four of Plaintiff's surviving claims pursuant to
Federal Rule of Civil Procedure 12(b)(6). See Dkt. No. 33.
For the reasons set forth below, Defendants’ motion is granted
in part and denied in part.
II. BACKGROUND
For a summary of the relevant factual background, the
parties are referred to Magistrate Judge Stewart's Report-
Recommendation and Order. Dkt. No. 11 at 4.
III. DISCUSSION
A. Standard of Review
A motion to dismiss for failure to state a claim pursuant to
Rule 12(b)(6) tests the “legal sufficiency” of the pleader's
claim for relief. See Patane v. Clark, 508 F.3d 106, 111-12
(2d Cir. 2007) (citation omitted). A court's review of a
motion to dismiss is limited to the facts presented in
the pleading, documents attached to the pleading as an
exhibit or incorporated by reference into the pleading, and
documents that are “integral” to the pleading. See Mangiafico
v. Blumenthal, 471 F.3d 391, 398 (2d Cir. 2006) (quoting
Chambers v. Time Warner, Inc., 282 F.3d 147, 152-53 (2d Cir.
2002)). Courts must accept as true all well-pleaded facts in the
pleading and draw all reasonable inferences in the pleader's
favor. See ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d
87, 98 (2d Cir. 2007) (citation omitted). This presumption
of truth, however, does not extend to legal conclusions. See
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
To survive a motion to dismiss, a party need only plead “a
short and plain statement of the claim,” see Fed. R. Civ. P. 8(a)
(2), with sufficient factual “heft to ‘sho[w] that the pleader
is entitled to relief[,]’ ” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 557 (2007). Under this standard, the pleading's “[f]actual
allegations must be enough to raise a right to relief above the
speculative level,” id. at 555 (citation omitted), and present
claims that are “plausible on [their] face,” id. at 570. “The
plausibility standard is not akin to a ‘probability requirement,’
but it asks for more than a sheer possibility that a defendant
has acted unlawfully.” Iqbal, 556 U.S. at 678 (citation
omitted). A complaint that “pleads facts that are ‘merely
consistent with’ a defendant's liability” generally does not
meet the pleading standard. See id. (quoting Twombly, 550
U.S. at 557).
Although pro se litigants are not exempt from these pleading
requirements, federal courts must assess pro se litigants’
pleadings more leniently than attorney-drafted pleadings. See
Haines v. Kerner, 404 U.S. 519, 520 (1972); Erickson v.
Pardus, 551 U.S. 89, 94 (2007). Pro se litigants’ filings should
“ ‘be liberally construed,’ ... and ‘a pro se complaint, however
inartfully pleaded, must be held to less stringent standards
than formal pleadings drafted by lawyers.’ ” Erickson, 551
U.S. at 94 (quoting Estelle v. Gamble, 429 U.S. 97, 106
(1976)). Accordingly, this Court must construe Plaintiff's
pleadings “to raise the strongest arguments that they suggest.”
Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d
Cir. 2006) (citation and emphasis omitted).
B. Standard for a § 1983 Claim
*3 Claims under § 1983 require “two essential elements:
(1) the defendant acted under color of state law; and (2) as
a result of the defendant's actions, the plaintiff suffered a
denial of ... [his] constitutional rights or privileges.” Annis
v. Cnty. of Westchester, 136 F.3d 239, 245 (2d Cir. 1998)
(citation omitted). Defendants do not dispute that they are
state employees acting under the color of state law, so the
Court limits the analysis herein to whether Plaintiff has been
deprived of his constitutional rights as a result of Defendants’
actions. In order to satisfy the constitutional deprivation
requirement, a plaintiff must “allege a tangible connection
between the acts of a defendant and the injuries suffered.”
Bass v. Jackson, 790 F.2d 260, 263 (2d Cir. 1986).
In addition to these elements, “[i]t is well settled in this
Circuit that personal involvement of defendants in alleged
constitutional deprivations is a prerequisite to an award of
damages under § 1983.” Farid v. Ellen, 593 F.3d 233, 249
(2d Cir. 2010) (quoting Farrell v. Burke, 449 F.3d 470, 484
(2d Cir. 2006)). “A defendant is ‘personally involved’ if he
‘directly participated in the infraction.’ ” Gray-Davis v. Rigby,
No. 5:14-CV-1490, 2016 WL 1298131, *5 (N.D.N.Y. Mar.
31, 2016) (quoting Williams v. Smith, 781 F.2d 319, 323
(2d Cir. 1986)). Direct participation is defined as “personal
participation by one who has knowledge of the facts that
rendered the conduct illegal.” Provost v. City of Newburgh,
262 F.3d 146, 155 (2d Cir. 2001) (footnote and citation
omitted). Supervisory liability also exists under certain
circumstances, such as where a supervisor creates a “policy or
custom” that allowed the violation to occur or continue, or is
“grossly negligent in managing subordinates who caused the
unlawful condition or event[.]” Williams, 781 F.2d at 323-24
(collecting cases).
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C. Plaintiff's First Cause of Action
As summarized in Magistrate Judge Stewart's Report-
Recommendation and Order, Dkt. No. 11 at 7, and this Court's
earlier Memorandum-Decision and Order, Dkt. No. 17 at
10-11, Count One alleges false arrest, Dkt. No. 1 at 7-9. A §
1983 claim for false arrest is “substantially the same as a claim
for false arrest under New York law.” Wagner v. Hyra, 518
F. Supp. 3d 613, 624 (N.D.N.Y. 2021) (quotation omitted).
“A plaintiff must allege that: (1) the defendant intended
to confine the plaintiff; (2) the plaintiff was conscious of
the confinement; (3) the plaintiff did not consent to the
confinement; and (4) the confinement was not otherwise
privileged.” Id. (quotation omitted).
Plaintiff's allegation that his arrest was “illegal” fails under
even the most liberal construction. Dismissal is appropriate
because Plaintiff fails to provide a factual basis to support any
inference that all four false arrest elements are satisfied. For
example, Plaintiff's bald assertion that Defendants’ conduct
was “illegal” is a legal conclusion, which the Court need
not accept as true, and lacks articulable factual assertions to
support it. Although the complaint can be construed to allege
that Plaintiff was confined against his will, Plaintiff does
not allege facts suggesting that his arrest was “not otherwise
privileged” or justified, other than broadly stating that the
arrest was illegal. See Escalera v. Lunn, 361 F.3d 737, 743
(2d Cir. 2004) (“Because probable cause to arrest constitutes
justification, there can be no claim for false arrest where the
arresting officer had probable cause to arrest the plaintiff”).
Moreover, Plaintiff pled guilty to Criminal Possession of a
Weapon in the Third Degree in satisfaction of all charges
stemming from his arrest on February 7, 2023. See Dkt. Nos.
33-2, 33-3. This guilty plea “represents ‘conclusive evidence
of probable cause’ ” requiring dismissal of Plaintiff's false
arrest claim. Carruthers v. Colton, 153 F.4th 169, 180 (2d Cir.
2025) (quotation omitted); see also Timmins v. Toto, 91 Fed.
Appx. 165, 166 (2d Cir. 2004). Accordingly, the Court grants
Defendants’ motion to dismiss Plaintiff's false arrest claim.
D. Plaintiff's Second Cause of Action
*4 Plaintiff alleges that the Defendants named in the second
cause of action “failed to intervene with the constitutional
violations ....” Dkt. No. 1 at 9-10. As a preliminary matter,
Plaintiff does not specify which constitutional violations he is
claiming the named Defendants failed to stop, so this Court
treats the second cause of action as alleging a failure to
intervene in the constitutional violation alluded to in Count
One. See id.
To prevail, Plaintiff must have shown: “(1) that a
constitutional violation was being committed ...; (2) that
[Defendants] knew, or deliberately ignored, the fact that
the constitutional violation was ... committed; (3) that
[Defendants] had a reasonable opportunity to intervene ...;
and (4) that [Defendants] did not take reasonable steps to
intervene.” Thomas v. City of Troy, 293 F. Supp. 3d 282, 296
(N.D.N.Y. 2018). Because this Court has found that Plaintiff
failed to sufficiently allege a constitutional violation in his
first cause of action, Count Two fails under the first element
and is dismissed.
E. Plaintiff's Third and Fourth Causes of Action
Plaintiff's third and fourth causes of action both appear to
allege deliberate indifference to his medical needs. Count
Three states that during Plaintiff's arrest, he began to
hallucinate, “holler[ed] for help[,] ... [and] was left in the back
of the patrol vehicle[ ]” instead of being “transport[ed] ... to
the hospital ....” Dkt. No. 1 at 10-11. Then, Plaintiff alleges
that the named Defendants “took him and chained him to the
wall while hallucinating and falling unconscious[,] severely
injuring his hand, elbow, wrist, shoulder, back, neck, [rotator]
cuff, and labrum.” Id. at 11. Similarly, Count Four alleges
that the named Defendants violated Plaintiff's constitutional
rights by waiting seven-and-a-half months to have an MRI
done on his shoulder, not ordering an MRI on his back,
ignoring his mental health needs “for months[,]” refusing to
follow “the 2 ½ year successful mental health plan in place[,]”
“[r]efusing to get psychiatric care leading to major delays in
his criminal proceedings[,]” and “refusing the plaintiffs [sic]
shoulder surgery.” Id. at 23.
“A pre-trial detainee's claim for deliberate medical
indifference is analyzed using a two-pronged standard
drawn from Eighth Amendment principles and modified, as
appropriate, to recognize the fact that a pre-trial detainee is
entitled to slightly greater protection under the Fourteenth
Amendment.” Carter v. Broome Cnty., 394 F. Supp. 3d 228,
240 (N.D.N.Y. 2019); see also Darnell v. Pineiro, 849 F.3d
17, 29 (2d Cir. 2017). For a pre-trial detainee to prevail on a
claim of deliberate medical indifference, the complaint must
allege: (1) “that the challenged conditions were sufficiently
serious as to constitute objective deprivations of the right to
due process”; and (2) “that [Defendants] acted with at least
deliberate indifference to the challenged conditions.” Darnell,
849 F.3d at 29; see also Durr v. Slator, 558 F. Supp. 3d 1, 22
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(N.D.N.Y. 2021) (applying the standard set forth in Darnell
to a pre-trial detainee's claim of deliberate indifference to a
serious medical need).
On the first prong, “the alleged deprivation must be
sufficiently serious, in the sense that a condition of urgency,
one that may produce death, degeneration, or extreme pain
exists.” Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir.
1996). “There is no settled, precise metric to guide a court
in its estimation of the seriousness of a prisoner's medical
condition[,]” Smith v. Outlaw, No. 15-CV-9961, 2017 WL
4417699, *2 (S.D.N.Y. Sept. 30, 2017) (quoting Brock v.
Wright, 315 F.3d 158, 162 (2d Cir. 2003)), so even at the
pleading stage, these inquiries are highly fact-specific, see id.
Accordingly, the Second Circuit has identified helpful factors
in determining whether the first prong is adequately pled: “(1)
whether a reasonable doctor or patient would perceive the
medical need in question as important and worthy of comment
or treatment, (2) whether the medical condition significantly
affects daily activities, and (3) the existence of chronic and
substantial pain.” Brock, 315 F.3d at 162 (quotation omitted).
*5 On the second prong, a plaintiff can satisfy the pleading
standard “by showing that the defendant official ‘recklessly
failed to act with reasonable care to mitigate the risk that
the condition posed to the pretrial detainee even though
the defendant-official knew, or should have known, that the
condition posed an excessive risk to [the plaintiff's] health or
safety.’ ” Charles v. Orange Cnty., 925 F.3d 73, 87 (2d Cir.
2019) (quoting Darnell, 849 F.3d at 35). Courts have also
found that the second prong is properly pled by allegations of
a defendant's “intentional efforts ... to delay [the] plaintiff's
access to medical care ... when he was in extreme pain and ...
made his medical problems known to the attendant prison
personnel, or complete denial of medical treatment, or of a
reckless or callous indifference to the safety of prisoners.”
Smith, 2017 WL 4417699, at *3 (quotation omitted).
1. Count Three
The Court construes Count Three to allege deliberate medical
indifference based on the named Defendants’ failure to take
Plaintiff to the hospital while he was hallucinating. This
claim is subject to the two-pronged framework for deliberate
medical indifference, as well as the requirement that Plaintiff
allege personal involvement of each Defendant.
Plaintiff's complaint is ambiguous regarding the seriousness
of his hallucinations. Although the hallucinations may have
been a temporary result of Plaintiff's drinking from a soda can,
Plaintiff alleges that he fell unconscious, apparently due to
the hallucinations. See Dkt. No. 1 at 10-11, 27. Additionally,
the complaint alleges that another person who drank from
the same soda can and also experienced hallucinations was
rushed to the hospital, id. at 10-11, 26, suggesting that the
condition was serious enough to require immediate medical
attention. On the other hand, although Plaintiff alleges that
he screamed for help, the complaint does not contain facts
suggesting that he experienced chronic or substantial pain due
to the hallucinations or that they affected his daily activities.
However, due to Plaintiff's pro se status and the requirement
to construe his pleadings to raise the strongest arguments they
suggest, the Court finds that at this stage, Plaintiff has pled
sufficient facts on the first prong.
To plead the second prong adequately and survive a motion to
dismiss, the complaint must allege the personal involvement
and requisite mental state of each named Defendant. Although
Plaintiff's complaint lists the names of each Defendant he
intends to sue on this Count, the complaint lacks specific
factual allegations regarding whether the named Defendants
acted with deliberate indifference. A complaint must provide
“fair notice of the grounds for entitlement to relief ....”
Twombly, 550 U.S. at 561. “A complaint generally fail[s] to
meet that minimum requirement where allegations lump[ ]
all the defendants together in each claim and provid[e] no
factual basis to distinguish their conduct.” Gomez-Kadawid
v. Lee, No. 20-cv-01786, 2022 WL 676096, *6 (S.D.N.Y.
Feb. 3, 2022) (citations and internal quotation marks omitted),
report and recommendation adopted, No. 20-CV-1786, 2022
WL 558125 (S.D.N.Y. Feb. 24, 2022). However, a collective
reference to multiple defendants may satisfy the pleading
standard “when, given the specific circumstances of the
case and drawing all reasonable inferences in the plaintiff's
favor, there [is] an understandable explanation for why the
[c]omplaint was not more particularized.” Id. at *7 (quotation
omitted).
Here, it is understandable that Plaintiff, who was allegedly
hallucinating or unconscious, would be unable to recognize or
remember the precise role of each Defendant in the purported
constitutional deprivations discussed in Count Three. This
circumstance, coupled with Plaintiff's pro se status, requires
the Court to interpret the pleading leniently in this regard.
Furthermore, although Plaintiff does not plead facts specific
to Defendants’ mental state, the facts alleged (such as another
person being rushed to the hospital after experiencing similar
hallucinations) do support an inference that Defendants
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should have known Plaintiff's hallucinations posed a serious
risk to his health and safety.
*6 Accordingly, because the Court must afford Plaintiff
special solicitude as a pro se litigant, Count Three may
proceed.
2. Count Four
Count Four (claim sixteen in the original complaint) alleges
that the named Defendants were deliberately indifferent to
Plaintiff's serious medical needs by waiting seven-and-a-half
months to get an MRI on his shoulder, not ordering an
MRI on his back, ignoring his mental health needs, refusing
to follow his established mental health plan, “[r]efusing to
get psychiatric care leading to major delays in his criminal
proceedings[,]” and “refusing the plaintiffs [sic] shoulder
surgery.” Dkt. No. 1 at 23.
The deliberate indifference test discussed above also applies
here. Furthermore, the claims in Count Four must be
categorized based on whether Plaintiff is claiming inadequate
medical attention or no medical attention, as “[c]ourts
distinguish between situations where no medical attention is
given and situations where medical attention is given, but is
objectively inadequate.” Davis v. Parker, No. 9:16-CV-1474,
2020 WL 5848779, *6 (N.D.N.Y. Oct. 1, 2020) (quotation
omitted). This distinction affects the Court's approach to the
first prong of the analysis.
When no medical attention is given, the question is “whether
the inmate's medical condition is sufficiently serious.”
Salahuddin v. Goord, 467 F.3d 263, 280 (2d Cir. 2006),
abrogated on other grounds as recognized by Kravitz v.
Purcell, 87 F.4th 111 (2d Cir. 2023). However, when medical
care is provided but objectively inadequate, the inquiry
examines the “delay or interruption in treatment[,] rather
than the prisoner's underlying medical condition alone.” Id.
(quoting Smith v. Carpenter, 316 F.3d 178, 185 (2d Cir.
2003)). “In delay cases, the relevant time period begins when
a defendant becomes aware of facts from which he could,
and does, infer that a substantial risk of serious harm exists.”
Davis, 2020 WL 5848779, at *6 (quotation omitted).
i. Denial of Medical Care
In Count Four, Plaintiff's allegations based on refusal to
follow the mental health plan, refusal of psychiatric care,
refusal of shoulder surgery, and denial of an MRI on his
back most plausibly fit in the “denial of care” category.
Thus, to evaluate the first prong of the analysis, the Court
uses the same factors listed above to determine whether
Plaintiff's alleged medical conditions are sufficiently serious.
The complaint alleges that Plaintiff had a mental health
plan in place, Dkt. No. 1 at 23, suggesting recognition by
medical professionals that his mental health conditions are
serious. Similarly, as already discussed, multiple medical
professionals allegedly told Plaintiff that he needed MRIs and
surgery, although the complaint is not entirely clear about
which conditions were the subject of those remarks. See id.
at 30.
In addition, although Plaintiff does not plead concrete
examples of these conditions’ impact on his daily activities,
insofar as his allegations regarding refusal of the MRI and
surgery, the Court can infer such impact from his pro se
complaint. For example, as discussed, Plaintiff sees a physical
therapist for his physical conditions and daily pain. Id. at 31.
The Court is unable to make a similar inference for Plaintiff's
allegations of denial of mental health care, aside from his
claim that the refusal delayed his criminal proceedings. Id. at
23. Thus, the Court proceeds to the second prong only for the
denial of an MRI and surgery.
*7 On the second prong, Plaintiff names a series of
Defendants, but does not plead specific facts regarding
their mental state. Although Plaintiff references physicians
who recognized the severity of his injuries and discussed
the necessity of surgery and imaging, those physicians
are not among the named Defendants. Moreover, although
Plaintiff accuses Defendant Kerrigan of “teach[ing] the other
nurses to be rude and miserable[,]” Dkt. No. 1 at 32, the
complaint is devoid of facts supporting a plausible inference
that the named Defendants knew or should have known
about Plaintiff's physical conditions and potential need for
immediate imaging and surgery. The complaint also does
not support any inference that the named Defendants were
personally involved in the decision not to provide imaging
or surgery. Finally, unlike with Count Three, there is no
discernible reason why Plaintiff would be unable to identify
which Defendants participated in the alleged violations in
Count Four. Therefore, Plaintiff's “denial” claims in Count
Four fail to plead the second prong and must be dismissed.
ii. Delay of Medical Care
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Count Four alleges that the named Defendants delayed an
MRI on Plaintiff's shoulder and ignored his mental health
needs “for months.” Id. at 23. Because a delay—not denial
—is alleged, the Court considers whether the delay was
sufficiently serious to satisfy the first prong of the analysis. In
this regard, Plaintiff's complaint alleges few facts permitting
a plausible inference that the first prong is sufficiently pled.
For example, although Plaintiff discusses his general pain
and discomfort, he does not plead facts suggesting that the
delay in getting a shoulder MRI or mental health treatment
exacerbated his conditions.
Regardless, as with Plaintiff's “denial” claim, his “delay”
claim fails to plead with any specificity the personal
involvement of each named Defendant. Again, the complaint
does not plausibly suggest any reason why Plaintiff would
be unable to name individual Defendants for this portion
of the action. Accordingly, the remainder of Count Four is
dismissed.
IV. CONCLUSION
After carefully reviewing the entire record in this matter,
the parties’ submissions, and the applicable law, and for the
reasons set forth above, the Court hereby
ORDERS that Defendants’ motion to dismiss (Dkt. No. 33)
is GRANTED in part and DENIED in part; and the Court
further
ORDERS that Counts One, Two, and Four of Plaintiff's
complaint (Dkt. No. 1) (originally pled as claims one, two,
and sixteen) are DISMISSED; and the Court further
ORDERS that Count Three (originally pled as claim three)
proceed, and that Defendants file an answer; and the Court
further
ORDERS that the Clerk of the Court shall serve a copy
of this Memorandum-Decision and Order on the parties in
accordance with the Local Rules.
IT IS SO ORDERED.
All Citations
Slip Copy, 2026 WL 237648
Footnotes
1 The Court notes that Plaintiff's mailing address has changed numerous times since the filing of the complaint.
This Memorandum-Decision and Order will be served on Plaintiff at the address most recently on file with
the Court.
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McRae v. City of Hudson, Not Reported in F.Supp.3d (2015)
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2015 WL 275867
Only the Westlaw citation is currently available.
United States District Court,
N.D. New York.
Jermaine McRAE, Plaintiff,
v.
The CITY OF HUDSON; Gary Graziano, Commissioner;
Ellis Richardson, Chief; Edward L. Moore, Chief;
Randy Clarke, Sergeant; Nicholas M. Pierro, Police
Officer # 33; Officer Rowe, Police Officer # 66;
Keyser, Police Officer; Kevin Sweet, Police Officer #
53; and John Doe Police Officers # 1–8, Defendants.
No. 1:14–CV–236.
|
Signed Jan. 21, 2015.
Attorneys and Law Firms
Stoll, Glickman & Bellina, LLP, Leo Glickman, Esq., of
Counsel, Brooklyn, NY, for Plaintiff.
Goldberg Segalla, LLP, Jonathan M. Bernstein, Esq., of
Counsel, Albany, NY, for Defendants the City of Hudson,
Graziano, Richardson, and Moore.
Bonacic & Mcmahon, LLP, James V. Galvin, Esq., of
Counsel, Middletown, NY, for Defendant.
McCabe & Mack LLP, David L. Posner, Esq., of Counsel,
Poughkeepsie, NY, for Defendants Pierro, Rowe, Keyser, and
Sweet.
MEMORANDUM–DECISION and ORDER
DAVID N. HURD, District Judge.
I. INTRODUCTION
*1 Plaintiff Jermaine Mcrae (“plaintiff” or “Mcrae”), an
African–American who resides in the City of Hudson, New
York, initiated this action on March 4, 2014. He asserts
various civil rights claims against defendants The City
of Hudson (“the City”); Gary Graziano, Commissioner of
the Hudson Police Department (“HPD”) (“Commissioner
Graziano”); Ellis Richardson, former Chief of the HPD
(“Chief Richardson”); Edward L. Moore, current Chief of
the HPD (“Chief Moore”); Randy Clarke, a sergeant in the
HPD (“Sgt.Clarke”); and HPD officers Nicholas M. Pierro
(“Officer Pierro”), Rowe (“Officer Rowe”), Keyser (“Officer
Keyser”), Kevin Sweet (“Officer Sweet”), and eight currently
unnamed officers (“John Does 1–8”). 1
On April 8, 2014, the City, Commissioner Graziano, Chief
Richardson, and Chief Moore filed a motion to dismiss
the complaint pursuant to Federal Rule of Civil Procedure
12(b)(6) (“Rule ___”). Sgt. Clark filed a similar motion the
following day, and Officers Pierro, Rowe, Keyser, and Sweet
filed a motion to dismiss the day after. Plaintiff opposes the
three motions to dismiss and has filed a cross-motion seeking
leave to file an amended complaint. All motions have been
fully briefed and were considered on submit without oral
argument.
II. FACTUAL BACKGROUND
The following pertinent facts, taken from the proposed
amended complaint, are assumed true for the purposes of the
motions to dismiss. See Chambers v. Time Warner, Inc., 282
F.3d 147, 152 (2d Cir.2002).
In the proposed amended complaint, Mcrae details a series of
harassing conduct by members of the HPD. The first incident
occurred on June 8, 2011, when Officer Keyser stopped a
taxi in which plaintiff was a passenger. After Keyser allowed
the taxi driver to leave without a ticket, plaintiff remarked:
“I wish it was that easy for me.” Proposed Am. Compl., ¶
14, ECF No. 26–2. Officer Keyser followed the taxi to its
destination and, when plaintiff exited the vehicle, asked him:
“You got a fucking problem?” Id. ¶ 15. Mcrae ignored the
remark and entered a nearby house. Officer Keyser remained
in the area and approached plaintiff when he exited the house
approximately fifteen minutes later. The officer again asked
whether there was “a fucking problem” and drove alongside
plaintiff as he walked down the sidewalk. Mcrae went to the
police station later that day to file a complaint, but Sgt. Clarke
advised that the HPD did not have a procedure through which
to complain about officers.
Three days later, on June 11, 2011, Mcrae was in a bar
on Warren Street in the City. At approximately 11:30 p.m.
he stepped outside to smoke a cigarette and found Officers
Keyser and Rowe standing outside the bar. Officer Keyser
stated: “There he goes right there.” Id. ¶ 18. Plaintiff walked
back inside the bar, but the officers remained just outside the
door and watched him through the front window. Later in the
evening, Mcrae again stepped outside the bar and had a brief
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exchange with the officers. Generally, he asked them to stop
harassing him, to which Officer Keyser replied, in sum and
substance: “Wait until you leave the bar ... you haven't seen
harassment yet.” Id.
*2 Mcrae left the bar at approximately 1:45 a.m. on June
12 and was promptly arrested by Officers Keyser and Rowe.
They transported him to the HPD station and brought him
to the basement garage area, where—according to plaintiff—
there are no surveillance cameras. Officers Keyser and Rowe
physically assaulted him while he remained handcuffed.
Plaintiff suffered visible injuries, which the officers did
not document in the arrest report. He was charged with
harassment and disorderly conduct, and was released with
an appearance ticket. Plaintiff went to the HPD station
the following Monday and filed a complaint with Sgt.
Clarke. However, nobody ever contacted him to discuss this
complaint.
On June 16, 2011, as Mcrae sat on the front steps of
his building on Warren Street in the City, an Officer Finn
of the HPD approached and asked to speak with him.
Plaintiff refused and walked inside his building. The officer
unsuccessfully attempted to follow him into the building. He
was subsequently charged with littering as a result of this
interaction with Officer Finn, who is not a named defendant
in this action.
On March 17, 2012, Mcrae was again arrested for disorderly
conduct. He reports that Sgt. Clarke arrested him even though
he was not involved in the verbal altercation that necessitated
the police response on that date. On April 10, 2012, on the
advice of counsel, plaintiff pleaded guilty to one “graffiti”
charge in satisfaction of all charges lodged against him
between June 11, 2011, and March 17, 2012.
On August 5, 2012, Sgt. Clarke—who was dressed in street
clothes and appeared to be off-duty—approached Mcrae in
front of plaintiff's building. Sgt. Clarke stated: “You know
what? I don't like you, let's do this now.” Id. ¶ 26. Mcrae
attempted to walk away, but Sgt. Clarke followed and slapped
him in the face. Plaintiff again tried to walk away and called
the police with his cellular phone. Sgt. Clarke called him
a “little bitch” and accused him of trying to record the
incident. Sgt. Clarke then attempted to punch plaintiff in the
face. Plaintiff punched him back, retreated into his building,
and asked the police dispatcher to send the state police or
county sheriff's deputies. However, Officers Sweet and Pierro
responded and immediately arrested plaintiff.
Mcrae was again taken to the basement garage at the
HPD station and was beaten while handcuffed. He began
to experience difficulty breathing, and an ambulance was
eventually summoned. At the hospital he was diagnosed with
a fractured rib, contusions, and abrasions. Chief Richardson
responded to the hospital and asked Mcrae about the various
prior incidents involving HPD officers. Plaintiff was charged
with assaulting a police officer and possession of marijuana as
a result of this incident. Those charges were later dismissed.
According to plaintiff, an “outside agency” began
investigating the HPD in February 2013. Id. ¶¶ 33–34. Chief
Richardson announced his retirement shortly thereafter, and
was presumably succeeded by Chief Moore. Richard Paolino,
an HPD lieutenant who is not a named defendant in this
action, contacted plaintiff on February 6, 2013, and asked to
speak with him regarding an internal investigation. Plaintiff
agreed, but insisted on having an attorney present. He was
not contacted thereafter, and Lt. Paolino reportedly retired in
April 2013.
III. DISCUSSION
A. Cross–Motion to Amend
*3 After defendants filed their motions to dismiss, Mcrae
filed a cross-motion seeking leave to file an amended
complaint. Leave to amend a pleading should be freely given
“when justice so requires.” FED. R. CIV. P. 15(a)(2). Where
a plaintiff seeks to amend his complaint while a motion to
dismiss is pending, a court “has a variety of ways in which it
may deal with the pending motion to dismiss, from denying
the motion as moot to considering the merits of the motion
in light of the amended complaint.” Roller Bearing Co. of
Am., Inc. v. Am. Software, Inc., 570 F.Supp.2d 376, 384
(D.Conn.2008) (internal quotation marks omitted).
As defendants had sufficient opportunity to respond to the
proposed amended complaint, and Mcrae does not seek to
add new defendants or causes of action, the merits of the
motions to dismiss will be considered in light of the proposed
amended complaint. If the proposed amended complaint
cannot survive the motions to dismiss, then plaintiff's cross-
motion to amend will be denied as futile. See Dougherty v.
Town of N. Hempstead Bd. of Zoning Appeals, 282 F.3d 83,
88 (2d Cir.2002).
Liberally construing the proposed amended complaint, and as
informed by his motion papers, Mcrae brings the following
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federal claims: (1) excessive force/failure to intervene/or,
alternatively, a substantive due process claim in relation to
the June 12, 2011, incident, against Sgt. Clarke, Officers
Rowe and Keyser, and John Does 1–8 (“First Cause
of Action”); (2) excessive force/failure to intervene/or,
alternatively, a substantive due process claim, false arrest/
false imprisonment, and malicious prosecution in relation to
the August 5, 2012, incident, against Sgt. Clarke, Officers
Pierro and Sweet, and John Does 1–8 (“Second, Fourth,
and Fifth Causes of Action”); and (3) a separate claim
detailing the municipal and supervisory liability of the City,
Commissioner Graziano, Chief Richardson, and Sgt. Clarke
(“Third Cause of Action”). He also repeatedly alleges that
defendants “conspired to deprive plaintiff of his civil ...
rights.” Proposed Am. Compl. ¶¶ 42, 46, 63, 68. 2
Mcrae seeks injunctive relief mandating the installation of
video cameras throughout the HPD station, the preservation
of video footage, and the establishment of an independent
review board to investigate civilian complaints regarding
HPD officers. He also seeks compensatory and punitive
damages as well as attorneys' fees and costs.
B. Rule 12(b)(6) Motions to Dismiss—Legal Standard
Defendants argue that the proposed amended complaint must
be dismissed, pursuant to Rule 12(b)(6), because it fails to
state any claims upon which relief may be granted. To survive
a Rule 12(b) (6) motion to dismiss, the “[f]actual allegations
must be enough to raise a right to relief above the speculative
level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
Although a complaint need only contain “a short and plain
statement of the claim showing that the pleader is entitled to
relief,” FED. R. CIV. P. 8(a) (2), more than mere conclusions
are required. Indeed, “[w]hile legal conclusions can provide
the framework of a complaint, they must be supported by
factual allegations.” Ashcroft v. Iqbal, 556 U.S. 662, 679
(2009).
*4 Dismissal is appropriate only where plaintiff has failed
to provide some basis for the allegations that support the
elements of his claims. See Twombly, 550 U.S. at 570
(requiring “only enough facts to state a claim to relief
that is plausible on its face”). When considering a motion
to dismiss, the complaint is to be construed liberally, all
factual allegations are to be deemed true, and all reasonable
inferences must be drawn in the plaintiff's favor. Chambers,
282 F.3d at 152.
C. The City, Commissioner Graziano, Chief Richardson,
and Chief Moore
Mcrae's claims against the City, Commissioner Graziano,
Chief Richardson, and Chief Moore are unclear. In his
opposition papers, he reports that he “has no causes of action
against these defendants except for the Third Cause of Action
and the claim for injunctive relief.” Pl.'s Mem. Opp'n Dismiss
10. The Third Cause of Action is not a substantive civil
rights claim. It instead simply details allegations in support of
municipal and supervisory liability, and provides background
regarding his requested prospective injunctive relief. As he
explains in his opposition papers, plaintiff only names Chief
Moore in the proposed amended complaint for purposes of
the requested injunctive relief. 3
In fact, plaintiff's entire opposition to the motion made by
these defendants addresses only his request for injunctive
relief. He appears to have abandoned the claims against
Commissioner Graziano and Chief Richardson in their
supervisory roles as well as the substantive claims against the
City, pursuant to municipal liability. 4 See Barmore v. Aidala,
419 F.Supp.2d 193, 201–02 (N.D.N.Y.2005) (McAvoy, S.J.)
(“The failure to oppose a motion to dismiss a claim is
deemed abandonment of the claim, and, in the Northern
District of New York, is deemed consent to granting that
portion of the motion.” (internal citations omitted)). Instead,
the language of his opposition papers indicates that plaintiff
seeks to bring claims against the City and these officials for
prospective injunctive relief only. Therefore, the municipal
and supervisory liability portions of the Third Cause of Action
will be dismissed and this cause of action will be limited to
informing plaintiff's requested injunctive relief.
The City, Commissioner Graziano, Chief Richardson, and
Chief Moore argue that plaintiff lacks standing to seek
injunctive relief because there is no real danger of future
harm. 5 Both parties acknowledge Mcrae's request for
injunctive relief requires a showing “that he has sustained
or is immediately in danger of sustaining some direct injury
as the result of the challenged official conduct and the
injury or threat of injury must be both real and immediate,
not conjectural or hypothetical.” City of Los Angeles v.
Lyons, 461 U.S. 95, 102 (1983) (internal quotation marks
omitted). Importantly, allegations of past illegal conduct
directed at plaintiff, alone, do not “show a present case
or controversy regarding injunctive relief if unaccompanied
by any continuing, present adverse effects.” Id. (internal
quotation marks and alteration omitted). Plaintiff must instead
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show a real threat of future injury; to wit, a likelihood that he
will again be harassed, arrested, assaulted, or falsely charged
by HPD officers. See id. at 102–03; Shain v. Ellison, 356 F.3d
211, 215 (2d Cir.2004).
*5 The parties each rely on Lyons and, unsurprisingly,
reach different conclusions based on Mcrae's allegations. The
plaintiff in Lyons had been placed in an illegal chokehold
by a Los Angeles police officer during a routine traffic stop.
Lyons, 461 U.S. at 97–98. He sought prospective injunctive
relief prohibiting officers from using chokeholds. Id. at 98.
The United States Supreme Court dismissed the case for lack
of standing because plaintiff's assertion that he may again
be subject to an illegal chokehold in the future was too
speculative. Id. at 105.
Mcrae's factual allegations distinguish this matter from Lyons.
In the proposed amended complaint, he details a series of at
least five episodes of harassment by members of the HPD,
not an isolated incident as in Lyons. These incidents took
place over a fourteen-month period, involved two separate
instances during which he was physically assaulted out of
view of surveillance cameras, and were perpetrated by at least
two common defendants, Officer Keyser and Sgt. Clarke.
Such allegations of repeated unlawful conduct “strengthens
a plaintiff's argument that future injury is likely.” Roe v. City
of New York, 151 F.Supp.2d 495, 502–03 (S.D.N.Y.2001)
(collecting cases).
Moreover, the allegations support a reasonable inference that
plaintiff has been singled out by HPD officers. For example,
he claims Officer Keyser waited for him to exit a residence on
June 8, 2011, and verbally harassed him as he walked down
the street. He further reports that Officers Keyser and Rowe
waited for him outside a bar on June 12, 2011, and told him to
“[w]ait until you leave the bar ... you haven't seen harassment
yet.” Proposed Am. Compl. ¶ 18. He also alleges that Sgt.
Clarke arrested him in March 2012, even though he was not
involved in the incident that required police intervention, and
approached him while off-duty in August 2012 to instigate an
altercation. Such allegations of specific targeting by the same
defendants over a period of time were not present in Lyons.
In addition, the plaintiff in Lyons had apparently undisputably
committed a traffic infraction, whereas Mcrae alleges that
he was never even suspected of breaking the law—again
suggesting targeted conduct.
Finally, the difference in population and geographic size
between Los Angeles and the City of Hudson is obvious.
It is much more likely that plaintiff will again encounter,
or be targeted by, the individual defendant officers in the
City of Hudson. Also, although plaintiff references an outside
agency's investigation of the HPD, there is no suggestion
that any of the involved officers have been disciplined or
instructed against harassing him in the future. Nor has the
alleged lack of adequate surveillance cameras been remedied.
In short, taking the allegations as true at this stage of
the litigation, they evidence a likelihood that Mcrae will
encounter similar conduct by HPD officers in the future.
His allegations of future harassment or harm are not merely
speculative as in Lyons. Therefore, plaintiff has adequately
stated a claim for prospective injunctive relief. This claim
is properly asserted against Chief Moore and Commissioner
Graziano in their official capacities only. See Melendez v.
Schneiderman, No. 9:13–CV–622, 2014 WL 2154536, at
*8 n. 13 (N.D.N.Y. May 22, 2014) (Sharpe, C.J. & Baxter,
M.J.) (“The court notes that for purposes of injunctive
or declaratory relief, the supervisory official who has the
authority to bring about the specific injunctive relief plaintiff
seeks, is an appropriate defendant.” (citing Kuck v. Danaher,
822 F.Supp.2d 109, 137–40 (D.Conn.2011)). As alleged
in the proposed amended complaint, Chief Moore and/or
Commissioner Graziano have the authority to implement the
requested injunctive relief. 6
*6 Accordingly, defendants' motion to dismiss the claim for
prospective injunctive relief will be denied, but this claim
is only asserted against Chief Moore and Commissioner
Graziano in their official capacity. All federal claims against
the City and Chief Richardson will be dismissed and those
defendants shall be removed from the caption.
D. Sgt. Clarke
Sgt. Clarke argues that all claims against him must be
dismissed because: (1) he was not personally involved in
the alleged use of excessive force on June 12, 2011; (2) he
was off-duty, and thus not acting under color of state law,
during the August 5, 2012, incident; (3) he was not personally
involved in the arrest, use of force, or prosecution stemming
from the August 5, 2012, incident; (4) plaintiff fails to plead
adequate factual allegations to support his conspiracy claim;
and (5) he is otherwise entitled to qualified immunity for all
of his conduct.
1. June 12, 2011 Incident
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Mcrae argues that, by failing to take his complaint seriously
on June 8, 2011, Sgt. Clarke failed to intervene in the
ongoing harassment by Officer Keyser, which culminated in
the alleged use of excessive force/assault on June 12, 2011.
A police officer is personally involved in the use of excessive
force if he “directly participates in an assault, or was present
during the assault with reasonable opportunity to intercede
on plaintiff's behalf yet failed to do so.” Espada v. Schneider,
522 F.Supp.2d 544, 555 (S.D.N.Y.2007). Under the latter
theory, plaintiff must prove the use of excessive force by an
individual and show that the defendant who allegedly failed
to intervene: “1) possessed actual knowledge of the use ...
of excessive force; 2) had a realistic opportunity to intervene
and prevent the harm from occurring; and 3) nonetheless
disregarded that risk by intentionally refusing or failing to
take reasonable measures to end the use of excessive force.”
Lewis v. Mollette, 752 F.Supp.2d 233, 244 (N.D.N.Y.2010)
(internal quotation marks omitted).
Even assuming the allegations in the proposed amended
complaint are true, Mcrae fails to plausibly allege that Sgt.
Clarke had a realistic opportunity to intervene in the June
12, 2011, incident of excessive force perpetrated by Officers
Keyser and Rowe. He merely alleges that, following the
verbal harassment by Officer Keyser on June 8, he went to the
HPD station to lodge a complaint but was informed by Sgt.
Clarke that no procedure to file a complaint existed. There
are no allegations regarding the substance of his conversation
with Sgt. Clarke. While it is reasonable to infer Mcrae told
Sgt. Clarke that Officer Keyser had followed him down the
street and taunted him, there are no allegations that plaintiff
reported threats of physical harm. Such distinguishes this
case from Benitez v. Ham, No. 9:04–CV–1159, 2009 WL
3486379 (N.D.N.Y. Oct. 21, 2009) (Mordue, C.J. & Lowe,
M.J.), upon which plaintiff relies. Indeed, the plaintiff in
Benitez reportedly advised the supervising defendant that a
subordinate had threatened to physically harm him the day
before the actual assault. Id. at *25.
*7 In short, Sgt. Clarke did not possess actual knowledge
that plaintiff faced a credible, imminent threat of being
subjected to excessive force by Officers Keyser and Rowe.
Nor is there any indication that he was present during the
alleged assault, which occurred over three days later, or had
a realistic opportunity to intercede therein to prevent the
alleged harm. Accordingly, Sgt. Clarke's motion to dismiss
the excessive force claim, as it relates to the June 12, 2011,
incident, will be granted.
2. August 5, 2012 Incident
Mcrae argues that, even though Sgt. Clarke was off duty and
in street clothes, the circumstances surrounding the August 5,
2012, incident indicates such occurred under the color of law
and suggests he was directly responsible for the alleged use
of excessive force, false arrest, and malicious prosecution.
An essential element of a § 1983 claim is that “the conduct
complained of must have been committed by a person
acting under color of state law.” Pitchell v. Callan, 13 F.3d
545, 547 (2d Cir.1994). Such conduct must happen “under
pretense of law,” and the actions of officers taken in their
“personal pursuits” are excluded. Id. at 547–48 (internal
quotation marks omitted). However, there is no defined test
to determine whether conduct occurs under the color of
law, and courts must instead consider the totality of the
circumstances. “More is required than a simple determination
as to whether an officer was on or off duty when the
challenged incident occurred.” Id. at 548. Indeed, an off-duty
officer may nonetheless be held liable under § 1983 if he
“invokes the real or apparent power of the police department.”
Id.
Mcrae has pleaded sufficient factual allegations from which
it can be reasonably inferred that Sgt. Clarke invoked the
power of the police department during the August 5, 2012,
incident. Sgt. Clarke—who knew plaintiff through his prior
professional interaction with him, not through his personal
pursuits—reportedly approached plaintiff, stated “I don't like
you, let's do this now,” and then slapped him in the face.
Proposed Am. Compl. ¶¶ 26–27. According to plaintiff,
instead of immediately fighting back, he attempted to walk
away, called 911, and specifically requested the presence of
law enforcement outside of the HPD. Such a reaction could
be viewed as an acknowledgment of Sgt. Clarke's status as a
member of the HPD.
Moreover, the fact that only HPD officers responded to
the incident and Mcrae—not Sgt. Clarke—was arrested and
charged further supports a reasonable inference that Sgt.
Clarke exercised his professional influence and authority
during the incident. Similarly, at least at this early stage of
the litigation, it is reasonable to infer that Sgt. Clarke could
have intervened to prevent the alleged use of excessive force
and had a primary role in the decision to arrest and prosecute
plaintiff for this incident.
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Accordingly, Sgt. Clark's motion to dismiss the excessive
force, false arrest, and malicious prosecution claims against
him related to the August 4, 2012, incident will be denied.
3. Conspiracy
*8 In support of his § 1983 conspiracy claim, Mcrae again
points to Sgt. Clarke's refusal to take a complaint from him on
June 8, 2011. He also claims Sgt. Clarke failed to investigate
his formal complaint filed after the June 12, 2011, incident;
falsely arrested him on March 17, 2012; and instigated the
physical altercation with him on August 5, 2012, which
resulted in his arrest and assault. He concludes that such
allegations establish a conspiracy between Sgt. Clarke and
Officers Rowe, Keyser, Pierro, and Sweet to violate his
constitutional rights.
Sgt. Clarke has adopted the legal arguments put forth
by his co-defendants, which includes an assertion that
the conspiracy claim must be dismissed pursuant to the
intracorporate conspiracy doctrine. Under that doctrine,
“officers, agents and employees of a single corporate entity
are legally incapable of conspiring together.” Quinn v. Nassau
Cnty. Police Dep't, 53 F.Supp.2d 347, 359 (E.D.N.Y.1999).
An exception to this general rule exists where the individual
defendants, despite being a part of the same entity, “are
pursuing personal interests wholly separate and apart from the
entity.” Id. (internal quotation marks omitted).
Mcrae fails to allege any factual allegations to trigger this
narrow exception. 7 As noted above, his only interaction
with these individual defendant officers is through their
professional duties, which they carried out under the color of
law. There is no suggestion they had a personal connection to
him or were motivated by personal reasons wholly separate
and apart from the HPD. See Little v. City of New York,
487 F.Supp.2d 426, 442 (S.D.N.Y.2007) (dismissing § 1983
conspiracy claim pursuant to the intracorporate conspiracy
doctrine because plaintiff “does not provide any evidence to
suggest that [defendants] were motivated by an independent
personal stake in his arrest and prosecution”).
Accordingly, the § 1983 conspiracy claim will be dismissed
pursuant to the intracorporate conspiracy doctrine.
4. Qualified Immunity
Finally, Sgt. Clarke asserts he is entitled to qualified
immunity inasmuch as he followed HPD policies and
procedures. Mcrae does not offer any legal argument in
opposition to this assertion. Regardless, Sgt. Clarke is not
entitled to qualified immunity at this time. The remaining
claims against him involve the August 5, 2012, incident in
which he allegedly instigated a physical confrontation with
plaintiff while cloaked with the authority of the HPD. He
then reportedly orchestrated plaintiff's false arrest, which
subsequently led to the use of excessive force, an assault by
the arresting officers, a coverup, and the filing of trumped
up charges against plaintiff. Such allegations do not involve
any formal established HPD policies or procedures. Nor
would a reasonable officer believe such conduct was within
the bounds of appropriate police conduct. See X–Men Sec.,
Inc. v. Pataki, 196 F.3d 56, 66 (2d Cir.1999) (holding that
officials are entitled to qualified immunity if their actions
were objectively reasonable in light of clearly established
law).
*9 Accordingly, Sgt. Clarke's assertion of qualified
immunity is rejected.
E. Officers Pierro, Rowe, Keyser, and Sweet
Officers Pierro, Rowe, Keyser, and Sweet argue that
any substantive due process claim asserted against them
pursuant to the Fourteenth Amendment must be dismissed
because the Fourth Amendment is the sole remedy for
excessive force claims. 8 In response, Mcrae claims he has
pleaded substantive due process claims in the alternative.
He essentially argues that if discovery reveals the officers
did not intend to seize him within the meaning of the
Fourth Amendment, then he should be permitted to pursue a
substantive due process claim for arbitrary and conscience-
shocking government behavior that caused a deprivation of
his liberty.
Generally, excessive force claims are properly analyzed under
a reasonableness standard based in the Fourth Amendment,
not the substantive due process clause of the Fourteenth
Amendment. See Graham v. Connor, 490 U.S. 386, 395
(1989). However, the United States Supreme Court has
clarified that Graham simply held that “if a constitutional
claim is covered by a specific constitutional provision, such as
the Fourth or Eighth Amendment, the claim must be analyzed
under the standard appropriate to that specific provision, not
under the rubric of substantive due process.” United States
v.. Lanier, 520 U.S. 259, 272 n. 7 (1997) (citing Graham,
490 U.S. at 394); see also Malay v. City of Syracuse, 638
F.Supp.2d 303, 313–14 (N.D.N.Y.2009) (McCurn, S.J.).
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The issue thus becomes whether Mcrae's claims are covered
by the Fourth Amendment. At this early stage of the litigation,
the exact circumstances of the defendants' conduct is not
entirely clear. According to the proposed amended complaint,
the officers' conduct could be characterized in one of two
ways. If they used unreasonable and excessive force while
intentionally seizing and arresting Mcrae, such is actionable
under the Fourth Amendment. See Graham, 490 U.S. at 394–
95. On the other hand, if the defendant officers arbitrarily
sought him out and assaulted him completely unrelated to any
official seizure, such would arguably be actionable under the
Fourteenth Amendment. See Cnty. of Sacramento v. Lewis,
523 U.S. 833, 844–46 (1998) (concluding that deprivations of
liberty caused by “the most egregious official conduct” and
abuse of power may violate the Due Process Clause of the
Fourteenth Amendment).
While plaintiff will not be permitted to pursue both avenues
of recovery at trial, he need not declare which path he will
ultimately follow at this time. See Malay, 638 F.Supp.2d
at 314 (allowing plaintiff's excessive force and substantive
due process claims, stemming from the same incident, to go
forward to discovery). Accordingly, the motion to dismiss the
substantive due process claims will be denied.
IV. CONCLUSION
In his proposed amended complaint, Mcrae adequately
alleges an excessive force/failure to intervene/or,
alternatively, a substantive due process claim against Officers
Rowe and Keyser, and John Does 1–8 in relation to the June
12, 2011, incident. He also sufficiently pleads excessive force/
failure to intervene/or, alternatively, substantive due process,
false arrest/false imprisonment, and malicious prosecution
claims against Sgt. Clarke, Officers Pierro and Sweet, and
John Does 1–8 in relation to the August 5, 2012, incident. If
he ultimately prevails on his claims he may seek injunctive
relief, to be implemented by either Commissioner Graziano
or Chief Moore in their official capacity. The remaining
claims asserted in the proposed amended complaint will be
dismissed.
*10 Therefore, it is
ORDERED that
1. The motion to dismiss filed by the City of Hudson, Gary
Graziano, Ellis Richardson, and Edward Moore (ECF No. 18)
is GRANTED in part and DENIED in part;
2. The motion to dismiss filed by Randy Clarke (ECF No. 20)
is GRANTED in part and DENIED in part;
3. The motion to dismiss filed by Nicholas M. Pierro, Officer
Rowe, Keyser, and Kevin Sweet (ECF No. 22) is GRANTED
in part and DENIED in part;
4. Plaintiff Jermaine Mcrae's cross-motion to amend (ECF
No. 26) is GRANTED;
5. The Clerk of the Court is directed to file the Amended
Complaint (ECF No. 26–2, Ex. A) as the operative pleading;
6. All claims asserted against defendants City of Hudson and
Ellis Richardson are DISMISSED and the Clerk is directed to
remove those two defendants from the caption;
7. All state law claims (Fourth, Fifth, Sixth, and Seventh
Causes of Action) are DISMISSED;
8. All claims against defendants Gary Graziano and Edward
Moore in their individual capacities are DISMISSED and
those defendants remain in this case in their official capacities
ONLY for purposes of plaintiff's requested prospective
injunctive relief;
9. The excessive force/failure to intervene/or, alternatively,
substantive due process claim, as it relates to the June
12, 2011, incident, against defendant Randy Clarke is
DISMISSED;
10. The § 1983 conspiracy claims against all defendants are
DISMISSED;
11. The following federal causes of action remain: (1)
the excessive force/failure to intervene/or, alternatively,
substantive due process claim, as it relates to the June 12,
2011, incident, against defendants Officer Rowe, Keyser, and
John Does 1–8 (First Cause of Action); (2) the excessive
force/failure to intervene/or, alternatively, substantive due
process, false arrest/false imprisonment, and malicious
prosecution claims, as they relate to the August 5, 2012,
incident, against defendants Randy Clarke, Nicholas M.
Pierro, Kevin Sweet, and John Does 1–8 (Second Cause of
Action); and (3) the claim for prospective injunctive relief as
informed by the Third Cause of Action 9 against defendants
Gary Graziano and Edward Moore in their official capacity
only; and
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12. Defendants shall file answers to the Amended Complaint
on or before February 6, 2015.
IT IS SO ORDERED.
All Citations
Not Reported in F.Supp.3d, 2015 WL 275867
Footnotes
1 All individual defendants are sued in their official and individual capacities.
2 Although plaintiff lists Chief Richardson in the heading of each cause of action, he has clarified that the only
claim asserted against Chief Richardson is the Third Cause of Action and the request for injunctive relief. See
Pl.'s Mem. Opp'n Dismiss 10, ECF No. 38 (The pagination corresponds to the page numbers as assigned
on CM/ECF.). Moreover, in an apparent concession to defendants' initial argument in favor of dismissing any
state law claims, plaintiff now reports that he “makes no state law claims against defendants.” Id. Therefore,
the pendent state claims for false arrest/false imprisonment (“Fourth Cause of Action”), malicious prosecution
(“Fifth Cause of Action”), assault (“Sixth Cause of Action”), and battery (“Seventh Cause of Action”) in the
proposed amended complaint will be dismissed.
3 This obviates the need to address defendants' assertion that all substantive claims against Chief Moore must
be dismissed for lack of personal involvement in the alleged constitutional deprivations. As outlined in the
proposed amended complaint, Chief Moore assumed his position after the incidents that form the basis of
the substantive civil rights claims. As such, it is assumed that he has been sued in his official capacity only
in relation to plaintiff's requested prospective injunctive relief.
4 Nor would such claims survive the motion to dismiss. Indeed, the proposed amended complaint contains
only conclusory allegations that these supervisory defendants failed to remedy the violative conduct of their
employees, created a policy or custom under which the injurious conduct occurred, allowed such policy or
custom to continue, and/or were grossly negligent in managing and supervising their subordinates. There
are no factual allegations to support such bald assertions or to suggest Commissioner Graziano or Chief
Richardson had any direct personal involvement in or knowledge of the ongoing alleged constitutional
violations. Plaintiff instead attempts to hold these defendants liable simply due to their supervisory roles,
which is impermissible under § 1983. See Banks v. Annucci, ––– F.Supp.3d ––––, 2014 WL 4824716, at
*19–20 (N.D.N.Y.2014) (dismissing supervisory claims that were comprised of wholly conclusory allegations
and collecting cases). Plaintiff's general assertions of municipal liability are similarly conclusory.
5 The City also correctly notes that plaintiff may not recover punitive damages from the municipality. See City
of Newport v. Fact Concerts, Inc., 453 U.S. 247, 263–71 (1981).
6 While discovery may reveal that one of these defendants does not have such authority, both defendants will
remain in the case at this early stage of the litigation.
7 It is again noted that plaintiff did not delineate a specific cause of action for his conspiracy claim and instead
simply littered the proposed amended complaint with assertions that defendants “conspired” against him.
8 These defendants also maintain that the § 1983 conspiracy claim and all state law claims must be dismissed.
The conspiracy claim has already been addressed above and will be dismissed pursuant to the intracorporate
conspiracy doctrine. Similarly, as previously noted, plaintiff has abandoned his state claims.
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9 The municipal and supervisory liability claims detailed in the Third Cause of Action are DISMISSED.
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
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Morris v. City of New York, Not Reported in F.Supp.3d (2015)
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2015 WL 1914906
Only the Westlaw citation is currently available.
United States District Court,
E.D. New York.
Peggy MORRIS, Plaintiff,
v.
The CITY OF NEW YORK, et al., Defendants.
No. 14–cv–1749 (JG)(LB).
|
Signed April 27, 2015.
Attorneys and Law Firms
Peggy Morris, St. Albans, NY, pro se.
Zachary W. Carter, Corporation Counsel of the City of New
York, by: Rosemari Y. Nam, New York, NY, for Defendants.
MEMORANDUM AND ORDER
JOHN GLEESON, District Judge.
*1 Peggy Morris brought this action against the City of
New York (the “City”), several New York Police Department
officers (the “NYPD Defendants”), judicial defendants, and
private defendants under 42 U.S.C. §§ 1982, 1983, 1985,
and 1988, as well as various sections of the United States
Code and additional state law claims. On May 1, 2014, I
dismissed Morris's § 1982 and § 1985 claims. I also dismissed
the § 1983 claims against the private and judicial defendants,
and allowed the § 1983 claims against the City and the
NYPD Defendants 1 to proceed. Order (ECF No. 4) at 8–10.
Morris moved for reconsideration of my decision dismissing
the private defendants. On August 8, 2014, I granted that
motion in part and reinstated the claims against Serena A.
May, McCrary's Justice Center, Dawnett Simpson–Clark, 2
the Law Offices of Salami Oyakhilome, P.C., and Sadatu
Salami–Oyakilome. Order (ECF No. 16) at 1–2.
On October 10, 2014, the City moved to dismiss Morris's
remaining § 1983 claims. I heard oral argument on April 13,
2015, at which Morris appeared by telephone. For the reasons
discussed below, Morris's false arrest claims against arresting
officers Marcantonio, Skobla, and Villanueva may proceed.
All other claims against the City and the NYPD Defendants
are dismissed.
BACKGROUND
For the purposes of the memorandum, I assume a familiarity
with the facts as outlined in my decision dated May 1, 2014.
The facts underlying Morris's claims stem from a series of
interactions with the NYPD Defendants that culminated in
Morris's arrest on August 22, 2013. What follows is a brief
summary of the claims that are the subject of this motion to
dismiss.
Morris alleges that the NYPD Defendants violated her
constitutional rights by failing to intervene in several disputes
arising from an “illegal eviction” campaign against Morris
(see Compl. ¶¶ 48–59) and by arresting her on August 22,
2013, in violation of her Fourth Amendment rights. See id.
¶¶ 60–80. She also claims the NYPD Defendants violated
her rights to free speech and due process under the First
and Fourteenth Amendments. Id. ¶¶ 90, 94. Morris alleges
the NYPD officers “engaged in a joint venture and formed
agreement to violate [Morris's] rights” and “assisted each
other and the civilian protagonists in performing the various
described conduct lending their physical presence and support
and the authority of their office to each other during the said
events in order to accomplish a false arrest in furtherance
of unlawful ends.” Id. ¶ 83. As for the City, Morris claims
that it failed to train and supervise the NYPD Defendants (id.
¶¶ 99–103) and created a policy or custom under which the
unconstitutional practices occurred. Id. ¶ 105.
DISCUSSION
A. Standard of Review
Pro se complaints are held to less stringent standards than
pleadings drafted by attorneys. This means I am required
to read Morris's pro se complaint and opposition liberally
and “interpret them to raise the strongest arguments that
they suggest.” Pabon v. Wright, 459 F.3d 241, 248 (2d
Cir.2006) (internal quotations omitted). This is especially true
where the pro se plaintiff asserts civil rights violations. See
Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d
Cir.2008).
*2 In deciding a motion to dismiss, “I must assume the truth
of all well-pleaded factual allegations, draw all inferences
in the light most favorable to the plaintiff[ ], and grant the
motion only if the complaint so viewed fails ‘to raise a right to
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relief above the speculative level.’ “ Allstate Ins. Co. v. Lyons,
843 F.Supp.2d 358, 367 (E.D.N.Y.2012) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007)). The complaint
need not provide “detailed factual allegations,” Twombly, 550
U.S. at 555, but it must be supported by more than “mere
conclusory statements.” Ashcroft v. Iqbal, 556 U.S. 662, 663
(2009). In deciding a motion to dismiss, a court considers “the
facts alleged in the pleadings, documents attached as exhibits
or incorporated by reference in the pleadings and matters of
which judicial notice may be taken ....“ Thomas v. City of
New York, No. 12–cv–6327 (JG), 2014 WL 1312006, at *2
(E.D.N.Y. Mar. 31, 2014) (quoting Samuels v. Air Transp.
Local 504, 992 F.2d 12, 15 (2d Cir.1993)).
B. The Section 1983 Claims
Section 1983 imposes civil liability on anyone who, under
color of state law, “subjects, or causes to be subjected,
any citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights, privileges,
or immunities secured by the Constitution and laws [of the
United States].” 42 U.S.C. § 1983. It “does not create a federal
right or benefit; it simply provides a mechanism for enforcing
a right or benefit established elsewhere.” Morris–Hayes v.
Board of Educ. of Chester Union Free Sch. Dist., 423 F.3d
153, 159 (2d Cir.2005). “[T]he core purpose of § 1983 is
‘to provide compensatory relief to those deprived of their
federal rights by state actors.’ “ Hardy v. New York City Health
and Hosps. Corp., 164 F.3d 789, 795 (2d Cir.1999) (quoting
Felder v. Casey, 487 U.S. 131, 141 (1988)).
In addition to arguing that Morris fails to state
claims under § 1983 for constitutional violations, the
police officer defendants assert the defense of qualified
immunity. Qualified immunity shields governmental officials
performing discretionary functions 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.” Poe v. Leonard, 282
F.3d 123, 131 (2d Cir.2002) (quoting Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982)).
1. The False Arrest and Threatened Arrest Claims
The Fourth Amendment's prohibition of unreasonable search
and seizure requires that any arrest made without a warrant
be based on probable cause to believe that some offense
is being (or has been) committed by the arrested person.
See, e.g., United States v. Fisher, 702 F.2d 372, 375 (2d
Cir.1983) (citing cases). A warrantless arrest in the absence of
probable cause violates the Fourth Amendment. “[A] plaintiff
claiming false arrest must show, inter alia, that the defendant
intentionally confined him without his consent and without
justification.” Covington v. City of New York, 171 F.3d 117,
122 (2d Cir.1999) (internal quotations omitted). If probable
cause existed, the arrest is considered privileged and the
officer has a “complete defense to an action for false arrest
whether that action is brought under state law or under §
1983.” Weyant, 101 F.3d at 852 (internal quotations and
citation omitted); see also Singer v. Fulton County Sheriff, 63
F.3d 110, 118–19 (2d Cir.1995) (“There can be no federal civil
rights claim for false arrest where the arresting officer had
probable cause.”). Additionally, “[t]he question of whether or
not probable cause existed may be determinable as a matter
of law if there is no dispute as to the pertinent events and the
knowledge of the officers.” Weyant, 101 F.3d at 852.
*3 “Probable cause exists if police officers have
knowledge or reasonably trustworthy information of facts and
circumstances that are sufficient in themselves to warrant
a person of reasonable caution in the belief that (1) an
offense has been or is being committed (2) by the person
to be arrested.” United States v. Cole, 26 F. App'x 45, 46–
47 (2d Cir.2001) (internal quotations omitted). Generally, if
an arresting officer is made aware of a criminal charge by
the victim, there is probable cause. See Singer, 63 F.3d at
119; see also Miloslavsky v. AES Engineering Soc., Inc., 808
F.Supp. 351, 355 (S.D.N.Y.1992) (“[I]t is well-established
that a law enforcement official has probable cause to arrest
if he received his information from some person, normally
the putative victim or eyewitness, who it seems reasonable
to believe is telling the truth.”), aff'd 993 F.2d 1534 (2d
Cir.1993).
As mentioned above, the arresting officers claim they are
entitled to qualified immunity. On a false arrest claim,
qualified immunity protects an arresting officer if he or
she can establish that there was “arguable probable cause”
to arrest. See Cerrone v. Brown, 246 F.3d 194, 203 (2d
Cir.2001) ( “[T]he court must grant police officers qualified
immunity when the court concludes that the only conclusion
a reasonable jury could reach is that reasonable officers
would disagree on the constitutionality of the seizure.”).
Arguable probable cause exists “if either (a) it was objectively
reasonable for the officer to believe that probable cause
existed, or (b) officers of reasonable competence could
disagree on whether the probable cause test was met.” Morris
v. City of New York, No. 12–cv–3959 (JG), 2013 WL 5781672,
at *5 (E.D .N.Y. Oct. 28, 2013), aff'd sub nom. Morris v.
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Silvestre, No. 14–1188, 2015 WL 1061124 (2d Cir. Mar. 12,
2015) (hereinafter Silvestre ) (quoting Escalera v. Lunn, 361
F.3d 737, 743 (2d Cir.2004)).
The defendants argue that Morris's arrest was based on
probable cause arising from an allegation in a criminal
complaint that “Peggy Morris threw a small television down
the stairs from the third floor to the second floor landing,
almost hitting the complainants [Dawnett Simpson–Clarke
and Tanyalee Murray] and [Clarke's] ten year old son.” See
Nam Decl. (ECF No. 39), Ex. B (Criminal Compl.); Def. Br.
10–11. I can consider the criminal complaint because it is
referred to specifically in Morris's complaint, and it is a public
record. See Compl. ¶ 64; see also Liang v. City of New York,
No. 10–cv–3089 (ENV)(VVP), 2013 WL 5366394, at *4–
5 (E.D.N.Y. Sept. 24, 2013) (“[O]n a motion to dismiss, a
court may only consider [1] the pleading itself, [2] documents
that are referenced in the complaint, [3] documents that the
plaintiff relied on in bringing suit and that are either in
the plaintiff's possession or that the plaintiff knew of when
bringing suit, and [4] matters of which judicial notice may be
taken.”) (internal quotations omitted).
*4 A criminal complaint is generally sufficient to support
a finding of probable cause unless there are “circumstances
that raise doubts as to the victim's veracity.” Singer, 63 F.3d at
119. Indeed, there are times when an accuser's veracity should
be doubted, such as when there is a preexisting relationship
between the victim and the accused. See Mistretta v. Prokesch,
5 F.Supp.2d 128, 133 (E.D.N.Y.1998); see generally 2 Wayne
A. LaFave, Search and Seizure § 3.4(a) (5th ed.2012). Morris
argues that this is one of those cases. She alleges the arresting
officers did not believe Clark's allegations and knew of her
previous contentious relationship with Clark. Compl. ¶¶ 64,
85. Morris claims that the nature of her relationship with Clark
was something “all the responding officers and Sergeant
McCormick knew about,” and that Clark had an “axe to
grind.” Pl. Opp. at 11. 3
In a previous case where Morris claimed false arrest based on
the police officers' knowledge of an antagonistic relationship
between Morris and the complainant, I found that officers of
reasonable competence could disagree about whether there
was probable cause and dismissed Morris's complaint on
the grounds of qualified immunity. See Silvestre, 2013 WL,
at *5–7. In Silvestre, Morris was arrested when the son of
Osborne Miller, Morris's terminally ill domestic partner, made
a criminal complaint that Morris had unlawful possession of
Miller's bank card and was making unauthorized withdrawals.
Id. at *1. In affirming the decision that the officers had
arguable probable cause to arrest Morris, the Second Circuit
noted that Morris's prosecution was supported by her
admission—after an earlier denial—that she would appear
on an ATM surveillance video using Morris's bank card.
Silvestre, 2015 WL, at *2.
Like Silvestre, the present case involves an arrest supported
by little more than a “complaint by an individual whose
preexisting, antagonistic relationship with Morris was known
to the police.” Id. But in this case, assuming, as I must,
the truth of Morris's allegations on a motion to dismiss, I
cannot conclude that reasonable officers could disagree on
the question of probable cause. Unlike Silvestre, where the
arrest was supported by Morris's admission about the ATM
footage, in this case there are no independent facts that
corroborate Clark's allegation. Instead, Morris alleges that the
officers had “knowledge of [Clark's] established pattern of
making and filing unbelievable and false complaints against
[Morris].” Compl. ¶ 85. Morris also alleges that the officers
knew of her previous complaints against Clark. She describes
previous interactions with the officers in the precinct where
she made complaints regarding conduct by Clark and they
characterized the complaints as “Bull S__t.” Compl. ¶ 51.
Morris also argues that “Clark and others” first made this
television throwing allegation against her on August 6 by (Pl.
Opp. at 5) and that officer Pena from the 113th Precinct heard
the allegation on August 20 and told Morris that he did not
believe she threw the television. Compl. ¶ 64.
*5 In sum, Morris has sufficiently alleged that she was
arrested without probable cause. Moreover, I conclude that
she has alleged facts that “indicate that any reasonably
competent officer should have known that [Clark] was
an unreliable victim-informant whose statement, under the
circumstances, could not form the sole basis for an arrest.”
McGee v. Doe, 568 F. App'x 32, 37–38 (2d Cir.2014), as
amended (July 2, 2014). As in McGee, Morris's complaint
alleges that some of the police defendants had longstanding
relationships with both Morris and Clark and knew of their
ongoing dispute. She has further alleged facts that support an
inference that the real reason she was arrested was because
the officers were annoyed by her numerous complaints about
others. The qualified immunity defense fails at this juncture
because if those alleged facts and the reasonable inferences
that could be drawn from them are true, then no reasonable
law enforcement officer would believe it was permissible to
arrest Morris. It may well be necessary to revisit this issue on a
motion for summary judgment, when the facts are more fully
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developed. However, at this stage, for the reasons discussed
above, the motion to dismiss the false arrest claims against
Marcantonio, Skobla, and Villanueva is denied.
Finally, Morris alleges that Defendant Martinez threatened to
arrest her repeatedly and that on August 21, 2013, the day
before her arrest, he informed Emergency Medical Service
responders that she was a “mentally disturbed individual”
before following her down the street as she tried to walk away.
Compl. ¶¶ 64–65. However, the mere threat of arrest does
not constitute a Fourth Amendment violation. Bodek v. Bunis,
No. 06–cv–6022L (DL), 2007 WL 1526423, at *9 (W.D.N.Y.
May 23, 2007). Therefore, Morris's Fourth Amendment claim
against Martinez is dismissed.
2. The Failure to Intervene Claims
“It is widely recognized that all law enforcement officials
have an affirmative duty to intervene to protect the
constitutional rights of citizens from infringement by other
law enforcement officers in their presence.” Anderson v.
Branen, 17 F.3d 552, 557 (2d Cir.1994) (collecting cases).
An officer who fails to intervene is liable for the preventable
harm caused by other officers where that officer observes
or has reason to know that other officers have committed a
constitutional violation, including the use of excessive force
or unjustifiable arrest. See id. For liability to attach, “there
must have been a realistic opportunity to intervene to prevent
the harm from occurring.” Id. See also Armstead v. New York
City Police Dep't, No. 13–cv–891 (ENV)(JMA), 2013 WL
1148803, at *3 (E.D.N.Y. Mar. 19, 2013).
Morris claims that Officers Banks, Bradley, Marmara, and
McCormick, who did not arrest her—but also did not
intervene to stop her arrest—broke the law. She asserts that
they had dismissed previous claims made by Morris as “Bull
S__ t complaints” and that her efforts to get protection against
those making threatening calls to her were “all in vain,” for
instance. Compl. ¶¶ 51–52. However, police officers have no
affirmative duty to investigate complaints, as the government
and its agents are under no general duty to provide public
services or protection to individual citizens. See DeShaney
v. Winnebago Cnty. Dep't of Soc. Servs., 489 U.S. 189, 197
(1989). In addition, filing a complaint with an officer has not
been found to be enough to give rise to a special relationship
in which the officer has a duty to protect the complainant. Ying
Jing Gan v. City of New York, 996 F.2d 522, 534 (2d Cir.1993).
*6 Morris also asserts that the officers at the station on
August 22, 2013 had knowledge that her arrest was unjustified
and failed to intervene. Pl. Opp. 13. However, Morris cannot
establish a claim for failure to intervene, as she cannot
overcome to hurdle of qualified immunity. A police officer
cannot be held liable for failure to intervene unless such a
failure permitted fellow officers to “violate a suspect's clearly
established statutory or constitutional rights” and was under
circumstances making it objectively unreasonable for him to
believe that his fellow officers' conduct did not violate those
rights. Ricciuti v. N.Y.C. Transit Auth., 124 F.3d 123, 129
(2d Cir.1997) (internal quotations omitted). When Morris was
brought into the 113th precinct, I cannot say it would have
been objectively unreasonable for an observing police officer
to believe she had been properly arrested. Therefore, qualified
immunity applies to the non-arresting officers.
3. Municipality Liability
Morris argues that the City should be held liable for failure to
properly train and supervise the NYPD Defendants, and for
creating a policy or custom that allows what Morris considers
to be false arrests to occur regularly. In a previous action
brought by Morris I addressed a very similar claim against
the City. See Morris v. Katz, No. 11–CV–3556 (JG), 2011
WL 3918965 (E.D.N.Y. Sept. 4, 2011) (“In order to sustain a
claim for relief under 42 U.S.C. § 1983 against a municipal
defendant such as the City of New York, a plaintiff must
show the existence of an officially adopted policy or custom
that caused injury and a direct causal connection between
that policy or custom and the deprivation of a constitutional
right.”). As in that case, there are no facts here from which
a reasonable jury could find that any of the wrongful acts in
which individual officers allegedly engaged were the result of
a municipal policy or custom. I therefore grant the motion to
dismiss Morris's § 1983 claim against the City.
4. The First Amendment Claims
Morris alleges that her First Amendment rights were violated
when unidentified “police personnel” and unspecified court
officials “silenced” her when she advocated for property
rights and spoke out about due process and the court's lack
of jurisdiction and that this “resulted in a chilling effect on
[her] willingness to speak up as a citizen.” Comp. ¶¶ 129–31.
To make out a claim for violations of her First Amendment
rights, Morris must show: “1) [she] has a right protected by
the First Amendment; 2) defendants' actions were motivated
or substantially caused by [her] exercise of that right; and 3)
defendants' actions effectively chilled the exercise of [her]
First Amendment right.” See Curley v. Village of Suffern, 268
F.3d 65, 73 (2d Cir.2001).
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Morris's statement that she experienced a “chilling effect
on her willingness to speak up” is not a sufficient injury
to establish a First Amendment violation. Morris's First
Amendment claim fails because she is required to show
“that the defendant's actions had some actual, non-speculative
chilling effect.” Colombo v. O'Connell, 310 F.3d 115, 117 (2d
Cir.2002) (citation omitted). To experience a chilling effect,
Morris would have to feel as if she could not speak up because
of some specific action taken against her in order to silence
her. Morris has alleged no facts to establish that the officers'
actions had a real effect on her. To the contrary, Morris alleges
that she “is a life-long community advocate” and a housing
specialist (Compl.¶ 33), and she shows no intention of ceasing
her efforts to prevent unlawful foreclosures and evictions.
CONCLUSION
*7 For the reasons discussed above, the motion to dismiss
the false arrest claims against arresting officers Marcantonio,
Skobla, and Villanueva is denied. The defendants' motion is
granted in all other respects. I certify pursuant to 28 U.S.C. §
1915(a)(3) that any appeal from this Order would not be taken
in good faith and therefore in forma pauperis status is denied
for the purpose of an appeal. Coppedge v. United States, 369
U.S. 438, 444–445 (1962).
So ordered.
All Citations
Not Reported in F.Supp.3d, 2015 WL 1914906
Footnotes
1 The police officers named in the complaint are defendants Marcantonio, Skobla, Villanueva, McCormick,
Martinez, Bradley, Marmara, and Banks.
2 Morris refers to Clark as “Simpson–Clark” and “Clark.” The criminal complaint referenced by the City refers
to her as “Simpson–Clarke.” See Nam Decl. (ECF No. 39) Ex. B.
3 Morris also takes issue with the fact that the reasons for arrest were not made clear at the time of arrest, but
that is not a requirement for establishing probable cause for an arrest. Probable cause analysis is not limited
to the specific charges contemplated or presented by the arresting officer—facts and circumstances known
to the officers at time of arrest may be retroactively analyzed and if there was probable cause to arrest for
any charge, then no false arrest claim lies. See Devenpeck v. Alford, 543 U.S. 146, 152–55 (2004).
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
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Sanabria v. Detective Shawn Tezlof, Not Reported in Fed. Supp. (2016)
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2016 WL 4371750
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Eric SANABRIA, Plaintiff,
v.
DETECTIVE SHAWN TEZLOF, et al., Defendants.
11-CV-6578 (NSR)
|
Signed 08/12/2016
Attorneys and Law Firms
Eric Sanabria, Coxsackie, NY, pro se.
Harold L. Moroknek, Marshall, Dennehey, Warner, Coleman
and Goggin, Rye Brook, NY, for Defendants.
OPINION & ORDER
NELSON S. ROMÁN, United States District Judge
*1 Plaintiff Eric Sanabria (“Plaintiff”) brings this action
under 42 U.S.C. § 1983 for claims of excessive force and
illegal seizure in violation of his Fourth Amendment rights,
as well as claims for failure to intervene to prevent the use
of excessive force and denial of medical care in violation
of his Fifth Amendment rights. 1 Plaintiff initially brought
this action pro se naming as defendants “Warwick Police
Department; Chester Police Department; [and] State Police
Trooper F?” pursuant to a complaint filed September 7, 2011.
(ECF No. 1) On December 30, 2011, the Court dismissed the
claims against the Warwick Police Department and Chester
Police Department, directed the Clerk to add as defendants
the Town of Warwick, the Town of Chester, Detective Tezlof,
Detective Hommein, and John Does 1-25. and directed
the Towns of Warwick and Chester to assist Plaintiff in
identifying John Does 1-25. On May 17, 2013, Plaintiff filed
an Amended Complaint dropping the Town of Chester and
Detective Hommein as defendants, keeping Tezlof and the
Town of Warwick as defendants, and adding as defendants
Fredrick M. Hoffmen, Christopher Blackwell, John Radar,
Alton Morley, Brian Luthan, Kevin Terry, Felix Oresto, Kevin
Harsey, Jason March, Micheal Mooney, Micheal Kearse, and
J. Feragola (together with Tezlof, “Individual Defendants”)
(collectively, including Town of Warwick, “Defendants”). 2
Before the Court is the Defendants' motion to dismiss. 3
For the following reasons, Defendants' motion to dismiss is
GRANTED in part and DENIED in part.
FACTUAL BACKGROUND
*2 The following facts are taken from Plaintiff's Amended
Complaint and Motion for Leave to Amend the Complaint.
Where warranted, the Court considers additional facts
provided in Plaintiff's original complaint, because Plaintiff
did not re-plead the entirety of facts put forth in his original
complaint. Farbstein v. Hicksville Pub. Library, No. CV
02-6438 DRH/MLO, 2006 WL 288251, at *1 (E.D.N.Y. Feb.
6, 2006), aff'd, 254 Fed.Appx. 50 (2d Cir. 2007) (considering
allegations in both the original and amended complaints
because plaintiff was pro se).
On March 25, 2010, at approximately 10:30 P.M. in the
town of Warwick, NY, Plaintiff was in a taxi cab driven by
Plaintiff's friend when he was pulled over by approximately
20 to 25 police officers. (Compl., ECF No. 1, at 3; Amended
Compl., ECF No. 34, ¶ 1(a).) The officers, with guns pointed
at the vehicle, asked the driver to step out of the vehicle.
Detective Shawn Tezlof, Sergeants John Rader and Alton
Morely, and Officers Brian Luthan, Kevin Terry, Felix Oresto,
Kevin Harsey, Jason Marsh, Michael Mooney, Michael
Kearse, and J. Feragola all forced Plaintiff out of the car,
pulled him to the ground, handcuffed him tightly, and struck
his knee. (Amended Compl., ¶ 1(a).) The officers additionally
stepped on Plaintiff's hands and back so that he could not
move. (Compl. at 3.) Sergeants Christopher Blackwell, Rader,
and Morely, and Detectives Hoffman and Tezlof witnessed
these events but did not prevent or stop the officers' actions.
(Amended Compl. ¶ 1(b).) Plaintiff was then arrested and
brought to the Town of Warwick police station. (Compl. at 3).
Prior to the events of March 25, Plaintiff had been seeing
an orthopedist and had plans to undergo a knee replacement
surgery. (Id.) At the jail, Plaintiff was given minimal medical
treatment, including pain medication (naproxen) and a knee
brace. (Id.) Since the incident, Plaintiff's knee fills up with
fluid all of the time and causes difficulty walking. (Id.)
DISCUSSION
I. Statute of Limitations
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Section 1983 claims are subject to a three-year statute of
limitations in New York, Hogan v. Fischer, 738 F.3d 509, 517
(2d Cir. 2013); see also Vega v. Hempstead Union Free Sch.
Dist., 801 F.3d 72, 79 (2d Cir. 2015). Plaintiff's Amended
Complaint was filed on May 17, 2013, more than three years
after the alleged incident. The claims in Plaintiff's Amended
Complaint, however, will be deemed timely to the extent they
relate back to the original complaint. Specifically, in order to
bring claims against the John Doe officers once their identities
are discovered, the amended complaint must “relate back”
to the original complaint pursuant to Federal Rule of Civil
Procedure 15(c). Fed. R. Civ. P. 15(c). However, Federal Rule
of Civil Procedure 15(c)(1)(C), which provides one avenue
for relation back, “preclude[s] relation back for amended
complaints that add new defendants, where the newly added
defendants were not named originally because the plaintiff
did not know their identities.” Hogan, 738 F.3d at 517 (citing
Tapia-Ortiz v. Doe, 171 F.3d 150, 152 (2d Cir. 1999)). See
Barrow v. Wethersfield Police Dep't, 66 F.3d 466, 470 (2d
Cir. 1995) (“As the amended complaint adding the individual
police officers does not relate back to the complaint naming
the ‘John Doe’ officers, the claims brought against those
officers are untimely.”). Therefore, any claim against a John
Doe officer newly named in the Amended Complaint cannot
relate back to the original complaint under Rule 15(c)(1)(C) 4
*3 Federal Rule of Civil Procedure 15(c)(1)(A),
alternatively, permits an amended pleading to relate back
when “the law that provides the applicable statute of
limitations allows relation back.” Fed. R. Civ. P. 15(c)(1)(A).
Under CPLR § 1024, a complaint relates back where: (1) the
plaintiff “exercise[d] due diligence, prior to the running of
the statute of limitations, to identify the defendant by name”;
and (2) the plaintiff “describe[d] the John Doe party in such
form as will fairly apprise the party that [he] is the intended
defendant.” Hogan, 738 F.3d at 519 (internal quotations and
citations omitted). To meet the first requirement, a plaintiff
must “show that he or she made timely efforts to identify
the correct party before the statute of limitations expired.”
Strada v. City of New York, No. 11-CV-5735 MKB, 2014
WL 3490306, at *5 (E.D.N.Y. July 11, 2014) (quoting Justin
v. Orshan, 14 A.D.3d 492, 492—93, 788 N.Y.S.2d 407 (2d
Dep't 2005)) (quotation marks omitted). “These efforts might
include, inter alia, serving discovery demands on any known
parties or seeking disclosures pursuant to a Freedom of
Information Law request.” Bender v. City of New York, No.
14 CIV. 4386 LTS GWG, 2015 WL 524283, at *5 (S.D.N.Y.
Feb, 10, 2015) (internal citations omitted).
In the instant case, Plaintiff has met the first requirement
of § 1024 as he exercised due diligence to identify
the John Doe defendants. Plaintiff contends that “a
record of correspondence between petitioner and the court,
requesting additional information, [exists and] demonstrates
due diligence on” his part. (Plaintiff's Opposition to the
Motion to Dismiss, ECF No. 66, at 1.) As evidenced by the
docket in this case, Plaintiff attempted to amend his complaint
multiple times, and each time the amendment was denied for
procedural or other deficiencies. (See ECF Nos. 17, 23, 25,
32, 34.) The amended complaints Plaintiff attempted to file
on May 3 and 4, 2012, contained detailed descriptions of the
events and identified the John Doe police officers by name.
(ECF Nos. 17, 25.) Therefore, it cannot be said that Plaintiff
did not exercise due diligence in identifying the defendants
prior to the expiration of the statute of limitations where he
in fact did attempt to file amended complaints that identified
the defendants before the statute of limitations expired.
Accordingly, Plaintiff has met the first Hogan requirement for
relation back. 5
To meet the second requirement, a complaint is “sufficient
only if the actual defendants are adequately described and
would have known, from the description in the complaint,
that they were the intended defendants.” Lebowitz v. Fieldston
Travel Bureau, Inc., 181 A.D.2d 481, 482 (1992) (internal
citations and quotation marks omitted). A complaint can
satisfy this requirement with details such as “the date, time,
and location of the alleged incident,” or “substantial detail
concerning the appearance” of the alleged defendants. Hogan,
738 F.3d at 519. Plaintiff has additionally met this second
requirement. His complaint describes with particularity the
date, time, and location of the arrest. In addition, the original
complaint names defendants Tezlof and Hoffmen. 6 (Compl.
at 3.) “Although Plaintiff did not describe the Defendants
in detail, a simple review of the arrest paperwork would
have revealed the [officers involved], who undoubtedly knew
[the identity of the other officers on scene]. This level of
detail is sufficient to have informed [the] John Doe officer[s]
that they were the intended Defendants.” Heinz-Wright v.
City of New York, No. 15 CIV. 3269 RRM VMS, 2016
WL 3627323, at *4 (E.D.N.Y. June 3, 2016), report and
recommendation adopted sub nom. Heinz-Wright v. New York,
No. 15CV3269RRMVMS, 2016 WL 3620759 (E.D.N.Y.
June 29, 2016). Finally, as explained above, defendants
were identified in ECF submissions (i.e., rejected amended
complaints) as of May 2012—well within the statute of
limitations. Therefore, it cannot be said that had the John Doe
defendants read the complaint, they still would not have been
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apprised that they were the intended parties, and Plaintiff has
met both Hogan requirements for relation back pursuant to §
1024. As a result, the Amended Complaint relates back to the
original complaint and is deemed timely.
II. Fourth Amendment Seizure/False Arrest
*4 “[T]he warrantless arrest of a person is a species
of seizure required by the [Fourth] Amendment to be
reasonable.” Payton v. New York, 445 U.S. 573, 585 (1980).
The § 1983 claim resting on the Fourth Amendment and
resulting from unlawful seizure is false imprisonment. See
Covington v. City of New York, 171 F.3d 117, 122 (2d
Cir. 1999) (citing Weyant v. Okst, 101 F.3d 845, 852 (2d
Cir. 1996) (“A § 1983 claim for false arrest, resting on
the Fourth Amendment right of an individual to be free
from unreasonable seizures, including arrest without probable
cause, is substantially the same as a claim for false arrest
under New York law.”).
Defendants argue that, pursuant to the Supreme Court's
holding in Heck v. Humphrey, because Plaintiff was later
convicted on criminal charges, Plaintiff may not recover
damages for an unlawful seizure unless his “conviction or
sentence has been reversed on direct appeal, expunged by
executive order, declared invalid by a state tribunal authorized
to make such determination, or called into question by a
federal court's issuance of a writ of habeas corpus.” 512 U.S.
477, 487 (1994). However, the holding in Heck is explicitly
limited to civil suits that would undermine or imply the
invalidity of the conviction of the Plaintiff. Id. The Second
Circuit has made clear that a § 1983 false arrest action only
undermines the integrity of criminal proceedings when the
prosecution's “only evidence for conviction was obtained
pursuant to an arrest.” Covington v. City of New York, 171 F.3d
117, 123 (2d Cir. 1999) (“[I]n a case where the only evidence
for conviction was obtained pursuant to an arrest, recovery in
a civil case based on false arrest would necessarily impugn
any conviction resulting from the use of that evidence.”).
However, where there exists “independent evidence upon
which a conviction could be obtained that was not in any
way tainted by the unlawful arrest,” the civil claim would not
undermine the proceeding and therefore is not barred by Heck.
Id.
In the instant case, the Court is unable to determine whether
success on Plaintiff's § 1983 claim would “necessarily imply
the invalidity” of Plaintiff's conviction for burglary and
possession of a weapon, because the Court has no information
as to the nature and extent of the evidence that was available
and presented against Plaintiff in the criminal proceedings.
Covington, 171 F.3d at 123; see also McCord v. City of
New York, No. 13 CIV. 2008 AJN, 2014 WL 2567108, at
*3 (S.D.N.Y. June 6, 2014) (“The Court is not equipped to
conduct such an analysis in this procedural posture because
the parties have provided no basis from which to assess
whether any seized evidence or self-incriminating statements
were ‘essential’ to the prosecution's case.”). As a result, the
Court cannot rule at this stage of the litigation that Plaintiff's
civil claims arising from his arrest are barred by Heck.
III. Excessive Force
“Police officers' application of force is excessive, in violation
of the Fourth Amendment, if it is ‘objectively unreasonable in
light of the facts and circumstances confronting them, without
regard to the officers' underlying intent or motivation.’ ”
Carpenter v. City of New York, 984 F.Supp.2d 255, 267
(S.D.N.Y. 2013) (quoting Papineau v. Parmley, 465 F.3d 46,
61 (2d Cir. 2006)). Granting “a motion to dismiss an excessive
force claim is appropriate if, accepting all of the allegations
as true, it is clear that the force used by the officers was
objectively reasonable under the circumstances.” Messina v.
Mazzeo, 854 F. Supp. 116, 128-29 (E.D.N.Y. 1994) (citing
Roundtree v. City of New York, 778 F.Supp. 614 (E.D.N.Y.
1991)). “In determining whether the force used in a given
arrest is reasonable, courts pay careful attention to the facts
and circumstances of each case, including (1) the severity of
the crime at issue, (2) whether the arrestee poses an immediate
threat to the safety of the officers or others, and (3) whether
the arrestee is actively resisting arrest or attempting to flee.”
Gersbacher v. City of New York, 134 F. Supp. 3d 711, 723
(S.D.N.Y. 2015) (citing Graham v. Connor, 490 U.S. 386, 396
(1989); Tennessee v. Garner, 471 U.S. 1, 8-9 (1985)).
*5 Defendants contend that Plaintiff “has failed to allege
action by [the Individual Defendants] that would subject
them to liability.” (Memorandum of Law in Support of
Defendants' Motion to Dismiss, Section IV(e).) Accepting
Plaintiff's allegations as true for purposes of this motion, the
Court cannot conclude that it was objectively reasonable for
Defendants to step on Plaintiff's hands and back and strike his
knee once Plaintiff was on the ground. (Amended Compl., ¶
1(a); Compl. at 3.) Additionally, it is not apparent from the
pleadings that Plaintiff posed any threat to the officers' safety
or that he was resisting arrest. Evidence uncovered during
discovery may ultimately prove that Defendants' actions were
objectively reasonable, to the extent they occurred as alleged
by Plaintiff, but such a determination is best resolved on a
motion for summary judgment or at trial. See, e.g., Landy
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v. Irizarry, 884 F. Supp. 788 (S.D.N.Y. 1995) (dismissing
plaintiff's excessive force claim on a motion for summary
judgment following the Court's review of the evidence, not
on a motion to dismiss.)
Moreover, though Plaintiff has failed to allege with
particularity which defendant specifically engaged in striking
his knee and stepping on his back, he has alleged which
defendants were involved in the incident. At this stage, before
Plaintiff has had access to discovery, the Court cannot insist
that Plaintiff identify which officer specifically engaged in
which part of the excessive force incident. Accordingly,
Defendants' motion to dismiss Plaintiff's excessive force
claim arising from his arrest is denied. 7
IV. Failure to Intervene
“[A]ll law enforcement officials have an affirmative duty
to intervene to protect the constitutional rights of citizens
from infringement by other law enforcement officers in their
presence.” Anderson v. Bremen, 17 F.3d 552, 557 (2d Cir.
1994). Liability may attach where an officer fails to intervene,
but observes or has reason to know: (1) that excessive force is
being used; (2) that a citizen has been unjustifiably arrested;
or (3) that any constitutional violation has been committed by
a law enforcement official. Id. For an officer to be held liable,
he or she must have had a realistic opportunity to intervene
to prevent the violation from happening. Id. (citing O'Neill v.
Krzeminski, 839 F.2d 9, 11-12 (2d Cir. 1988)); accord Russo v.
DeMilia, 894 F. Supp. 2d 391, 414 (S.D.N.Y. 2012). However,
“there can be no failure to intervene claim without a primary
constitutional violation.” Forney v. Forney, 96 F. Supp. 3d 7,
13 (E.D.N.Y. 2015) (citing Posner v. City of New York, 11-
CV-4859, 2014 WL 185880, at *8 (S.D.N.Y. Jan. 16, 2014)).
“It is well settled in this Circuit that ‘personal involvement
of defendants in alleged constitutional deprivations is a
prerequisite for an award of damages under § 1983.’ ” Provost
v. City of Newburgh, 262 F.3d 146, 154 (2d Cir. 2001) (quoting
Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994)). With respect
to a claim of failure to intervene, an officer is personally
involved in the alleged constitutional deprivation if he was
present when it occurred, “yet failed to intercede on behalf of
the victim even though he had a reasonable opportunity to do
so.” Russo v. DeMilia, 894 F. Supp. 2d 391, 414 (S.D.N.Y.
2012) (quoting Jeffreys v. Rossi, 275 F. Supp. 2d 463, 474
(S.D.N.Y. 2003)). Where the officer is a direct participant in
the allegedly unlawful conduct, the failure to intervene theory
of liability is inapplicable. Simon v. City of New York, No. 09
Cv. 1302 (ENV)(RER), 2011 WL 317975, at *12 (E.D.N.Y.
Jan. 3, 2011) (dismissing plaintiff's claim as futile for failure
to intervene “because these same officers actually arrested
her.”) (citing Morgan v. County of Nassau, No. 09 Cv. 4168
(ADS)(AKT), 2010 WL 2634125, at *9 (E.D.N.Y. July 1,
2010)) report and recommendation adopted, No. 09 Cv. 1302
(ENV)(RER), 2011 WL 344757 (E.D.N.Y. Feb. 1, 2011).
*6 Defendants argue that “there has been no evidence
adduced to suggest, let alone establish, that any officer knew
of a constitutional violation, had an opportunity to prevent
a violation, and failed to do so.” (Memorandum of Law in
Support of Defendants' Motion to Dismiss, Section IV(c).)
However, at the motion to dismiss stage, Plaintiff need not
present evidence in order for his claims to survive. Plaintiff
must simply plead facts from which the Court could conclude,
if accepted as true, that a violation has occurred. Plaintiff
has alleged that Defendants witnessed the beating of Plaintiff
and failed to intervene. Having already held that Plaintiff
adequately pleaded a constitutional violation of excessive
force and the presence of additional defendants during his
arrest, his failure to intervene claim additionally must stand.
See Gersbacher, 134 F. Supp. 3d at 725 (“The failure to
intervene claim is straightforward: because [plaintiff] has
adequately pleaded underlying constitutional violations and
the presence of multiple NYPD officers during his arrest he
may move forward to discovery.”). The Court notes, however,
that Plaintiff names a number of officers that participated
in the arrest and beating as well as failed to intervene. If
the officer was a direct participant in the excessive force
violation, the failure to intervene theory will be inapplicable.
See Simon, 2011 WL 317975, at *12. The determination of
who was specifically involved in the beating will be left to
discovery.
V. Denial of Medical Care
Plaintiff's cause of action for denial of medical care is brought
pursuant to 42 U.S.C. § 1983 and relates to the Defendants'
alleged denial of medical care during the time that Plaintiff
was held at the Town of Warwick police station. Although
the Eighth Amendment bar to cruel and unusual punishment
does not apply to Plaintiff because he was not a prisoner
but was simply being held at the police station, the denial of
medical care claim arises under the Due Process Clause of the
Fifth Amendment instead, and as a result, the same deliberate
indifference test applies. See Cuoco v. Moritsugu, 222 F.3d 99,
106 (2d Cir. 2000); see also Weyant v. Okst, 101 F.3d 845, 856
(2d Cir. 1996) (holding that denial of medical care subsequent
to an arrest is analyzed under the Due Process Clause because
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the arrestee was a “pretrial detainee, not a person who had
been convicted, and hence the Eighth Amendment did not
apply”).
To sustain a claim of deliberate indifference, Plaintiff must
allege that (1) objectively, the deprivation of adequate
medical care was sufficiently serious, and (2) subjectively,
defendants acted with deliberate indifference. See Farmer v.
Brennan, 511 U.S. 825, 834 (1994); Salahuddin v. Goord, 467
F.3d 263, 279-81 (2d Cir. 2006). “The objective component
requires that the alleged deprivation must be sufficiently
serious, in the sense that a condition of urgency, one that
may produce death, degeneration, or extreme pain exists.”
Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011) (citing
Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996))
(internal quotation marks omitted). For the subjective prong,
the official charged with deliberate indifference must act with
a “sufficiently culpable state of mind.” See Wilson v. Seiter,
501 U.S. 294, 298 (1991). A prison official may only be found
liable if “the official knows of and disregards an excessive
risk to inmate health or safety.” Farmer, 511 U.S. at 837.
Medical malpractice does not rise to the level of a
constitutional violation unless the malpractice involves
culpable recklessness—“an act or a failure to act ... that
evinces a conscious disregard of a substantial risk of serious
harm.” Hill, 657 F.3d at 123 (citing Chance v. Armstrong,
143 F.3d 698, 703 (2d Cir. 1998)) (internal quotation marks
omitted); see also Hathaway v. Coughlin, 99 F.3d 550, 553
(2d Cir. 1996) (observing that “negligent malpractice do[es]
not state a claim of deliberate indifference”). In the instant
case, it cannot be said that Plaintiff experienced deliberate
indifference to his medical needs. Though Plaintiff's injury
may have caused extreme pain, there is no allegation that an
official knew of and disregarded a serious risk to Plaintiff's
health. Specifically, while at the police station, Plaintiff was
provided with a knee brace and pain medication. Therefore,
Plaintiff was provided with at least some treatment, and,
at most, the treatment was negligent. However, even if
negligent, the treatment does not rise to a level of deliberate
indifference.
*7 Moreover, “[b]ecause Section 1983 imposes liability
only upon those who actually cause a deprivation of rights,
personal involvement of defendants in alleged constitutional
deprivations is a prerequisite to an award of damages under §
1983.” Blyden v. Mancusi, 186 F.3d 252, 264 (2d Cir. 1999)
(citation and internal quotation marks omitted). Plaintiff has
not alleged that any officer or defendant, in particular, refused
to provide him with medical care. Without knowing what, if
any, part each defendant played in providing or not providing
medical care to Plaintiff, it is impossible for this Court
to draw an inference that the Defendants could be liable
for the alleged conduct. Because Plaintiff has not alleged
personal involvement of any defendant, the denial of medical
care claims must be dismissed. See Thomas v. Ashcroft, 470
F.3d 491, 496 (2d Cir. 2006) (“[A] plaintiff must allege
that the individual defendant was personally involved in the
constitutional violation”).
VI. Qualified Immunity
Defendants assert qualified immunity as a defense to all of
Plaintiff's claims. Plaintiff's only remaining claims against
the Individual Defendants are false arrest, excessive force,
and failure to intervene. It is well established that qualified
immunity may operate as a defense to false arrest and
excessive force claims. See Cowan ex rel. Estate of Cooper
v. Breen, 352 F.3d 756, 761 (2d Cir. 2003); Lennon v. Miller,
66 F.3d 416, 423 (2d Cir. 1995). Additionally, a police
officer is not entitled to qualified immunity if his failure
to intervene “permitted fellow officers to violate a suspect's
clearly established statutory or constitutional rights of which
a reasonable person would have known” and “the failure
to intercede [occurred] ..... under circumstances making it
objectively unreasonable for him to believe that his fellow
officers' conduct did not violate those rights.” Riciutti v. New
York City Transit Authority, 941 F.2d 119, 129 (2d Cir. 1991).
“Qualified immunity shields federal and state officials from
money damages unless a plaintiff pleads facts showing (1)
that the official violated a statutory or constitutional right,
and (2) that the right was ‘clearly established’ at the time of
the challenged conduct.” Ashcroft v. alKidd, 131 S.Ct. 2074,
2080 (2011) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982)). “If the law was clearly established, the immunity
defense ordinarily should fail, since a reasonably competent
public official should know the law governing his conduct.”
Harlow, 457 U.S. at 818-19. It is within the Court's discretion
to determine the order in which the two prongs are analyzed.
Pearson v. Callahan, 555 U.S. 223, 236 (2009).
Having already decided that Plaintiff sufficiently alleges
claims of false arrest, excessive force, and failure to intervene,
the Court turns to the second prong of the test. There
is no question that the rights at issue in this case—
to be free from false arrest and excessive force and for
an officer to intervene when witnessing a violation of
constitutional rights—were clearly established at the time
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of the incident. See Lennon v. Miller, 66 F.3d 416, 423
(2d Cir. 1995) (collecting cases regarding false arrest and
excessive force); Anderson v. Branen, 17 F.3d 552, 557 (2d
Cir. 1994) (“It is widely recognized that all law enforcement
officials have an affirmative duty to intervene to protect the
constitutional rights of citizens from infringement by other
law enforcement officers in their presence.”). Thus, because
Plaintiff sufficiently alleges claims of false arrest, excessive
force, and failure to intervene and because the law is clearly
established with regards to each of those rights, Defendants'
request for qualified immunity is denied.
However, this is not to say that a defense of qualified
immunity would necessarily fail at the summary judgment
stage. In the case where Defendants are alleged to have
violated clearly established lights, “the question of qualified
immunity ... turns on whether the actions of [the officers]
were objectively reasonable under the circumstances.” Lowth
v. Town of Cheektowaga, 82 F.3d 563, 569 (2d Cir. 1996),
amended (May 21, 1996).
VII. Monell Claim against Town of Warwick
*8 Finally, Plaintiff asserts that the Town of Warwick is
liable for the constitutional violations because “it was the
policy and/or custom of the Town of Warwick to inadequately
supervise and train its police officers.” (Amended Compl. ¶
10.) A municipality may be sued under 42 U.S.C. § 1983 only
“when execution of [the] government's policy or custom ...
inflicts the injury.” Monell, 436 U.S. at 694. Therefore, any
§ 1983 claim against a municipal entity must “show that
the challenged acts were performed pursuant to a municipal
policy or custom.” Patterson v. Cnty. of Oneida, 375 F.3d
206, 226 (2d Cir. 2004). Courts in this Circuit apply a two
prong test for § 1983 claims brought against a municipal
entity. Vippolis v. Vi11. of Haverstraw, 768 F.2d 40, 44 (2d
Cir. 1985) (internal citation omitted). First, the plaintiff must
“prove the existence of a municipal policy or custom in order
to show that the municipality took some action that caused his
injuries beyond merely employing the misbehaving officer.”
Id. (internal citation omitted). Second, the plaintiff must
establish a “ ‘direct causal link between a municipal policy or
custom and the alleged constitutional deprivation.’ ” Hayes
v. Cnty. of Sullivan, 853 F. Supp. 2d 400, 439 (S.D.N.Y.
2012) (quoting City of Canton v. Harris, 489 U.S. 378, 385
(1989)). “[T]he simple recitation that there was a failure to
train municipal employees does not suffice to allege that
a municipal custom or policy caused the plaintiff's injury.”
Dwares v. City of New York, 985 F.2d 94, 100 (2d Cir. 1993);
see also Davis v. City of New York, 2008 WL 2511734,
at *6 (S.D.N.Y. June 19, 2008) (holding that “conclusory
allegations that a municipality failed to train and supervise
its employees” are insufficient to state a Monell claim absent
supporting factual allegations).
Here, the complaint lacks sufficient factual details concerning
Monell liability and contains boilerplate allegations
of unconstitutional policies and practices. Specifically,
Plaintiff's Monell claim is based on one conclusory allegation
that “it was the policy and/or custom of the Town of Warwick
to inadequately supervise and train its police officers.” (See
Amended Compl. ¶ 10.) As a mere recitation of failure to train
is not enough to sustain a Monell claim, Plaintiff's claim fails.
Moreover, Plaintiff's claim relates only to a single incident.
Although a plaintiff is not required to identify an express
rule or regulation in order to establish a Monell claim
and a court may infer a municipal policy from acts or
omissions of the municipality's policy makers, in the absence
of other evidence, a “single incident of errant behavior is an
insufficient basis for finding that a municipal policy caused
plaintiff's injury.” Sams v. Rotundo, 831 F.2d 397, 402-03 (2d
Cir. 1987); see also DeCarlo v. Fry, 141 F.3d 56, 61 (2d Cir.
1998) (“[A] single incident alleged in a complaint, especially
if it involved only actors below the policy-making level, does
not suffice to show a municipal policy.”) (internal citations
and quotation marks omitted). Plaintiff has not alleged any
incidents of excessive force or false arrest involving the Town
of Warwick Police Department prior to March 25, 2010.
(Id.) As a result, the complaint lacks sufficient factual details
concerning Monell liability. See Plair v. City of New York,
789 F. Supp. 2d 459, 469 (S.D.N.Y. 2011) (collecting cases
that dismiss Monell claim where the only factual assertions
in complaint were conclusory and constituted a boilerplate
recitation of the elements of a Monell claim). Without any
further factual allegations to support the existence of an
unconstitutional municipal policy, Plaintiff's Monell claim
against the Town of Warwick fails as a matter of law.
CONCLUSION
For the foregoing reasons, Defendants' motion is GRANTED
in part and DENIED in part. Plaintiff's claims for false arrest,
excessive force, and failure to intervene remain; the claim for
denial of medical care and all of Plaintiff's claims against the
Town of Warwick are dismissed. The Individual Defendants
are directed to file an answer to the Complaint within 30 days
of the date of this Order. The parties are directed to appear for
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an initial pre-trial conference on September 22, 2016 at 12:00
p.m. The parties are further directed to complete and bring a
completed case management plan to the conference.
*9 SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2016 WL 4371750
Footnotes
1 In his papers in opposition to the current motion, Plaintiff additionally asserts an equal protection claim,
“stem[ming] from the fact that even during an unlawful arrest, plaintiff should have been treated accordingly to
the law and established police procedure, as any individual in the same circumstances.” (Plaintiff's Opposition
to the Motion to Dismiss, ECF No. 66, at 2.) While Plaintiff uses the term “equal protection,” this is not a
cognizable equal protection claim as Plaintiff has not alleged he was treated differently from any class of
persons or similarly situated individuals.
2 In its order of service dated March 4, 2015, the Court mistakenly determined the Town of Warwick was
dropped as a defendant, because Plaintiff removed the Town of Warwick from the caption in his Amended
Complaint. However, Plaintiff maintained allegations concerning the Town of Warwick, and, as a result, the
claims against the Town of Warwick stand. See Pabon v. Wright, 459 F.3d 241, 248 (2d Cir. 2006) (the
court should read the complaint “to raise the strongest arguments [it] suggests.”). As a result, the Town of
Warwick was not properly served, but defense counsel entered an appearance for the Town of Warwick and
made arguments in the motion to dismiss on its behalf. The Court will therefore consider the arguments, and
because the Court determines Plaintiff's claims against the Town of Warwick must be dismissed, there is no
issue of service or lack of notice.
3 The Court notes that Defendants did not properly submit a motion to this Court. Local Civil Rule 5.2 of
the United States District Courts for the Southern and Eastern Districts of New York directs the parties to
“follow the instructions regarding Electronic Case Filing (ECF) published on the website of each respective
Court.” Local Rule 5.2(a). Pursuant to this Court's rules, all “Motion papers shall be filed via ECF.” Individual
Practices in Civil Cases, Judge Nelson S. Román, Rule 3(c), available at http://www.nysd.uscourts.gov/
cases/show.php?db=judge_info&id=826. Defendants did not file a notice of motion or motion papers
electronically, which resulted in significant delay for the Plaintiff in this case.
4 The New York CPLR § 203 “requirement closely tracks the federal relation-back requirement of Rule 15(c)(1)
(C),” and thus, Plaintiff “fails to satisfy the state's corollary to that rule, as well.” Id.; see also Buran v. Coupal,
87 N.Y.2d 173, 179, 638 N.Y.S.2d 405, 661 N.E.2d 978 (1995) (noting that § 203 was largely modeled after
Rule 15(c) of the Federal Rules of Civil Procedure).
5 As previously explained in this district, “all pro se litigants are required to submit their complaints to the Pro
Se Clerk, [who] reviews all complaints for form and substance [ ].” Simpson v. Bank of New York, No. 81
CIV. 0407 (CBM), 1981 WL 245, at * 1 (S.D.N.Y. Aug. 26, 1981) (internal citations omitted). The Pro Se
Clerk determined Plaintiff's submissions were unclear or procedurally confusing for reasons unrelated to the
identification of John Doe defendants. (See ECF No. 17 at 1; ECF No. 25 at 1.) Providing pro se Plaintiff with
the necessary leniency in light of his attempts to name the defendants, Plaintiff should not be punished for
his failed attempts to amend his complaint clearly and correctly when such attempts were (albeit, correctly)
“bounced” by the Pro Se Clerk.
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6 Plaintiff spelled defendant Hoffmen's name incorrectly as Hommein in the original complaint. However, in
later submissions, Plaintiff refers to the defendant as “Detective Hoffmen/Hommein?” (ECF No. 17 at 2.) This
clearly indicates that Plaintiff was merely mistaken about the correct spelling of defendant Hoffmen ’s name.
7 It should be noted that Defendants do not explicitly make an argument that Plaintiff's excessive force claim
was not adequately plead. Instead, Defendants argue that the Court “must analyze the specific actions of
an individual official when addressing the qualified immunity defense” and that Plaintiff “has failed to allege
action by [the Individual Defendants] that would subject them to liability.” (Memorandum of Law in Support of
Defendants' Motion to Dismiss, Section IV(e).) It is unclear what specifically Defendants intended to argue
with regards to the sufficiency of the allegations, but the analysis in this section as well as the qualified
immunity section fully address any argument that could have been made by Defendants.
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Smith v. Ruszkowski, Slip Copy (2025)
WESTLAW © 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2025 WL 1462767
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Wayne R. SMITH, Plaintiff,
v.
Nicholas RUSZKOWSKI, Connor Blovat, David Webb,
David Morrissey, and Officer Humphries, Defendant.
6:24-CV-00828 (AMN/ML)
|
Signed May 22, 2025
Attorneys and Law Firms
WAYNE R. SMITH, 24-B-3346, Collins Correctional
Facility, P.O. Box 340, Collins, New York 14034, Plaintiff,
pro se.
ORDER
Anne M. Nardacci, United States District Judge:
I. INTRODUCTION
*1 On July 1, 2024, Plaintiff Wayne R. Smith commenced
this action pro se against Whitesboro Police Department,
Officer Nicholas Ruszkowski, Officer Conner Blovat, and
“Officer Humphries,” alleging that they used excessive force
and failed to protect Plaintiff during his April 5, 2024 arrest
after Plaintiff fled the scene of a motor vehicle accident. See
Dkt. No. 1. On August 26, 2024, Plaintiff filed an amended
complaint, removing Whitesboro Police Department as a
defendant and adding civilian David Webb and Officer David
Morrissey as new defendants (collectively with Ruszkowski,
Blovat, and Humphries, “Defendants”). See Dkt. No. 9 (the
“Amended Complaint”).
On September 19, 2024, Plaintiff sought leave to proceed in
forma pauperis (“IFP”), see Dkt. No. 14, which was originally
denied as incomplete, see Dkt. No. 15, and after being granted
several extensions to do so, Plaintiff filed a second motion to
proceed IFP on December 6, 2024, see Dkt. No. 19.
This matter was referred to United States Magistrate Judge
Miroslav Lovric, who reviewed the Amended Complaint
pursuant to 28 U.S.C. § 1915(e), and on March 25,
2025, granted Plaintiff's second request to proceed IFP
and recommended that (i) Plaintiff's excessive force and
failure to protect claims against Defendants Ruszkowski,
Morrissey, Blovat and Humphries survive initial review; and
(ii) Plaintiff's claims against Defendant Webb be dismissed
without prejudice and with leave to amend pursuant to 28
U.S.C. §§ 1915(e)(2)(ii) and 1915A(b)(1). See Dkt. No. 20
at 2-3, 8. 1 Magistrate Judge Lovric advised that, pursuant to
28 U.S.C. § 636(b)(1), the Parties had fourteen days within
which to file written objections and that failure to object
to the Report-Recommendation within fourteen days would
preclude appellate review. Id. at 11. No objections have been
filed, and the time for filing objections has expired.
For the reasons set forth below, except for the
recommendation regarding the dismissal of Defendant Webb,
the Court adopts the Report-Recommendation in its entirety.
II. STANDARD OF REVIEW
This Court reviews de novo those portions of a magistrate
judge's report-recommendation that have been properly
preserved with a specific objection. Petersen v. Astrue, 2 F.
Supp. 3d 223, 228-29 (N.D.N.Y. 2012); 28 U.S.C. § 636(b)
(1)(C). If no specific objections have been filed, this Court
reviews a magistrate judge's report-recommendation for clear
error. See Petersen, 2 F. Supp. 3d at 229 (citing Fed. R. Civ.
P. 72(b), Advisory Committee Notes: 1983 Addition). “When
performing such a ‘clear error’ review, ‘the court need only
satisfy itself that there is no clear error on the face of the
record in order to accept the recommendation.’ ” Dezarea
W. v. Comm'r of Soc. Sec., No. 6:21-CV-01138, 2023 WL
2552452, at *1 (N.D.N.Y. Mar. 17, 2023) (quoting Canady v.
Comm'r of Soc. Sec., No. 1:17-CV-0367, 2017 WL 5484663,
at *1 n.1 (N.D.N.Y. Nov. 14, 2017)).
*2 “[I]n a pro se case, the court must view the submissions
by a more lenient standard than that accorded to ‘formal
pleadings drafted by lawyers.’ ” Govan v. Campbell, 289
F. Supp. 2d 289, 295 (N.D.N.Y. 2003) (quoting Haines
v. Kerner, 404 U.S. 519, 520 (1972)) (additional citations
omitted). The Second Circuit has held that courts are
obligated to “make reasonable allowances to protect pro se
litigants” from inadvertently forfeiting legal rights merely
because they lack a legal education. Id. (quoting Traguth
v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)). After appropriate
review, “the court may accept, reject, or modify, in whole or in
part, the findings or recommendations made by the magistrate
judge.” 28 U.S.C. § 636(b)(1)(C).
III. DISCUSSION
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Because neither party has filed any objections to the
Report-Recommendation, the Court reviews the Report-
Recommendation for clear error.
Magistrate Judge Lovric construed the facts in the Amended
Complaint as asserting three causes of action pursuant to 42
U.S.C. § 1983: “(1) police brutality; (2) failure to protect; and
(3) excessive force.” Dkt. No. 20 at 3. With respect to the
police brutality and excessive force claims, Magistrate Judge
Lovric found that those “claims are essentially the same” and
recommended that the police brutality claim be subsumed into
Plaintiff's excessive force claim. See id. at 6 (citing Smith
v. New York City Police Dept., No. 06-CV-15436, 2010 WL
423039, at *3 n.2 (S.D.N.Y. Feb. 4, 2010)).
Mindful of the need to “construe his pleadings liberally,”
Magistrate Judge Lovric recommended that Plaintiff's failure
to protect and excessive force claims survive as to Defendants
Ruszkowski, Morrissey, Blovant, and Humphries based upon
Plaintiff's allegations that he was beaten and suffered injuries
during an arrest that those Defendants allegedly conducted in
their official capacities as police officers on April 5, 2024. Id.
at 7-8. Additionally, while Plaintiff also claims that Defendant
Webb, a “private citizen,” punched or otherwise physically
assaulted Plaintiff, Magistrate Judge Lovric recommended
that he be dismissed from the action because the Amended
Complaint does not suggest that Defendant Webb was acting
under color of state law at any point during the alleged
incident. Id. at 8; see also id. at 7 (“a private actor acts under
color of state law when the actor is a willful participant in joint
activity with the State or its agents.”) (quoting Ciambriello v.
Cnty. of Nassau, 292 F.3d 307, 324 (2d Cir. 2002)) (additional
internal quotations and citations omitted).
The Court finds no clear error in Magistrate Judge
Lovric's conclusions with respect to Defendants Ruszkowski,
Morrissey, Blovant, and Humphries. The Court similarly
finds no clear error in Magistrate Judge Lovric's conclusion
that Plaintiff's Section 1983 claims against Defendant Webb
should be dismissed based on the Amended Complaint's lack
of allegations pertaining to whether Defendant Webb was
acting under color of state law. Accordingly, the Court adopts
those portions of the Report-Recommendation.
However, the Court reaches a different conclusion with
respect to the Report-Recommendation's recommendation
to dismiss Defendant Webb from this action entirely.
In the Amended Complaint, Plaintiff alleges that, during
his arrest, Defendant Webb “was standing on [his] legs”
while Defendants Ruszkowski, Morrissey, Blovant, and
Humphries “beat on [his] head, back, sides (ribs), neck,
shoulders, and pretty much every party of [his] body.” Dkt.
No. 9 at 4. Plaintiff also alleges that “[t]hroughout the
altercation[,] ... [Defendant] Webb was kneeling on [his] legs
and punching the back of [his] legs.” Id. Construing Plaintiff's
Amended Complaint “to raise the strongest arguments that
[it] suggest[s],” Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir.
1994), as required at this initial stage, the Court finds that
Plaintiff has set forth sufficient allegations to state a claim
against Defendant Webb for common law battery under New
York law. See Tardif v. City of N.Y., 991 F.3d 394, 410 (2d
Cir. 2021) (“[c]ivil battery is an intentional wrongful physical
contact with another person without consent”) (internal
quotations and citations omitted). This common law claim
is sufficiently related to the federal claims brought against
Defendants Ruszkowski, Morrissey, Blovant, and Humphries
such that they “form part of the same case or controversy
under Article III.” 28 U.S.C. § 1367(a). Accordingly, the
Court, in its discretion, elects to exercise pendent jurisdiction
over this supplemental claim against Defendant Webb and
concludes that the claim passes initial review and warrants a
response. See Briarpatch Ltd., L.P. v. Phoenix Pictures, Inc.,
373 F.3d 296, 308 (2d Cir. 2004).
IV. CONCLUSION
*3 Accordingly, the Court hereby
ORDERS that the Report-Recommendation, Dkt. No. 20, is
ADOPTED in its entirety, except for the recommendation
regarding the dismissal of Defendant Webb; and the Court
further
ORDERS that Plaintiff's excessive force and failure to protect
claims against Defendants Ruszkowski, Morrissey, Blovat,
and Humphries 2 SURVIVE initial review and require a
response; and the Court further
ORDERS that Plaintiff's common law battery claim against
Defendant Webb SURVIVES initial review and requires a
response; and the Court further
ORDERS that Plaintiff's Section 1983 claims against
Defendant Webb be DISMISSED without prejudice and
with leave to amend; 3 and the Court further
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ORDERS that any amended complaint must be filed within
thirty (30) days of the filing date of this Order; and the Court
further
ORDERS that if Plaintiff files an amended complaint within
the time permitted, the amended complaint is referred to
Magistrate Judge Lovric for further review; and the Court
further
ORDERS that if Plaintiff does not file an amended complaint,
the case is returned to Magistrate Judge Lovric for any orders
relating to service; and the Court further
ORDERS that the Clerk serve a copy of this Order on all
parties in accordance with the Local Rules. 4
IT IS SO ORDERED.
All Citations
Slip Copy, 2025 WL 1462767
Footnotes
1 Citations to court documents utilize the pagination generated by CM/ECF, the Court's electronic filing system.
2 Plaintiff must take reasonable steps to ascertain the full identity of “Officer Humphries.” Otherwise, Plaintiff
risks dismissal of the unnamed Defendant pursuant to Fed. R. Civ. P. 4(m) and 41(b). See Coward v. Town
& Vill. Of Harrison, 665 F. Supp. 2d 281, 300-302 (S.D.N.Y. 2009).
3 Any amended pleading must comply with Rules 8 and 10 of the Federal Rules of Civil Procedure.
4 The Clerk shall also provide Plaintiff with copies of all unreported decisions cited herein.
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 5:25-cv-00033-AMN-ML Document 46 Filed 06/11/26 Page 195 of 201

TERRANCE WITHERSPOON, Plaintiff, v. CHARLES JONES; DAVID SHELLHAMMER, Formerly Known as...,
Slip Copy (2026)
WESTLAW © 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2026 WL 1396585
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
TERRANCE WITHERSPOON, Plaintiff,
v.
CHARLES JONES; DAVID SHELLHAMMER,
Formerly Known as Sneilhammer; JOSEPH VASILE;
JOHN DOES 1 THROUGH 5, Corrections Officers;
JOHN DOE, Corrections Sergeant; and DENISE
HOPKINS, Formerly Known as Jane Doe, Defendants.
9:24-CV-296 (MAD/DJS)
|
Filed 05/19/2026
Attorneys and Law Firms
APPEARANCES:
TERRANCE WITHERSPOON, 25-B-2399, Attica
Correctional Facility, Box 149, Attica, New York 14011,
Plaintiff, pro se
OFFICE OF THE NEW YORK STATE ATTORNEY
GENERAL, The Capitol, Albany, New York 12224, Attorney
for Defendants, OF COUNSEL: RACHAEL OUIMET, AAG
MEMORANDUM-DECISION AND ORDER
Mae A. D'Agostino U.S. District Judge
I. INTRODUCTION
*1 Terrance Witherspoon (“Plaintiff”), proceeding pro
se, commenced this action on March 1, 2024. See Dkt.
No. 1. The original complaint set out eight causes of
action related to Plaintiff's treatment while incarcerated at
Auburn Correctional Facility (“Auburn”) and named fourteen
defendants. See id. On July 3, 2025, this Court issued a
Decision and Order dismissing some claims and defendants.
See Dkt. No. 10. The following claims survived: (1) Eighth
Amendment excessive force and failure-to-intervene claims
against Corrections Sergeants Jane and John Doe, and
Corrections Officers Joseph Vasile, David Shellhammer, 1
Charles Jones, and John Does 1 through 5, in connection with
an alleged assault on Plaintiff on August 18, 2021; and (2) a
Fourteenth Amendment equal protection claim against Jones,
who allegedly used a racial slur against Plaintiff earlier that
day. See id. at 5-8, 19.
On January 9, 2026, Vasile, Shellhammer, and Jones
(“Defendants”) filed a motion for partial dismissal and
partial summary judgment. See Dkt. No. 27. Specifically,
Defendant Jones moves for summary judgment on the
equal protection claim for Plaintiff's failure to exhaust
administrative remedies. See Dkt. No. 27-1 at 7-11. In the
alternative, Defendant Jones seeks dismissal of the equal
protection claim for failure to state a cause of action. See id. at
11-12. Defendants Vasile and Shellhammer move to dismiss
the excessive force and failure-to-intervene claims against
them for failure to state a claim. See id. at 12-15. Plaintiff
opposed the motion on January 27, 2026, see Dkt. No. 31, and
Defendants replied on February 6, 2026, see Dkt. No. 33.
In a Report-Recommendation and Order dated April 13, 2026,
Magistrate Judge Daniel Stewart recommended granting
the summary judgment motion and denying the motion to
dismiss. See Dkt. No. 34. Plaintiff's objections to the Report-
Recommendation and Order were filed on April 30, 2026. See
Dkt. No. 36.
Plaintiff filed an amended complaint on May 4, 2026. See Dkt.
No. 37. The handwritten amendments are superimposed on
the original complaint, and Plaintiff identifies Defendant Jane
Doe as Corrections Sergeant Denise Hopkins, who is not a
party to the motions now before the Court. See id. The Court
discerns no other modifications to the original complaint.
For the reasons stated below, the Report-Recommendation
and Order is adopted.
II. BACKGROUND
For a recitation of the factual background, the parties are
referred to this Court's July 2025 Decision and Order, see
Dkt. No. 10 at 5-8, and Magistrate Judge Stewart's Report-
Recommendation and Order, see Dkt. No. 34 at 2-4.
III. DISCUSSION
A. Legal Standards
In reviewing a report-recommendation and order, a district
court “may accept, reject, or modify, in whole or in part,
the findings or recommendations made by the magistrate
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TERRANCE WITHERSPOON, Plaintiff, v. CHARLES JONES; DAVID SHELLHAMMER, Formerly Known as...,
Slip Copy (2026)
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judge.” 28 U.S.C. § 636(b)(1)(C). “As to a dispositive matter,
any part of the magistrate judge's recommendation that has
been properly objected to must be reviewed by the district
judge de novo.” Nambiar v. Cent. Orthopedic Grp., LLP, 158
F.4th 349, 358 (2d Cir. 2025) (citations and internal quotation
marks omitted). A proper objection must be timely, specific,
and “not raise new arguments not previously made before the
magistrate judge.” Id. at 359 (citations omitted). Objections
reiterating arguments already made to the magistrate judge
are proper if they are timely and specific. See id. at 360-61.
The Second Circuit has stated that “a party must object to
[a] finding or recommendation on [an] issue with sufficient
specificity so as reasonably to alert the district court of the true
ground for the objection.” Id. at 359 (citations and internal
quotation marks omitted). When a party does not object,
or do so properly, the court reviews the magistrate judge's
recommendations for clear error. See id. at 359-60.
*2 Pro se litigants’ filings should “ ‘be liberally construed’
” and “ ‘held to less stringent standards’ ” than attorney-
drafted submissions. Erickson v. Pardus, 551 U.S. 89, 94
(2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)).
Accordingly, this Court must construe Plaintiff's filings “to
raise the strongest arguments that they suggest.” Triestman
v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006)
(citation and emphasis omitted).
Although “the filing of an amended [c]omplaint supersedes
a plaintiff's original complaint in all respects[,]” Praileau v.
Fischer, 930 F. Supp. 2d 383, 388 (N.D.N.Y. 2013) (citations
omitted), it “does not moot a pending report-recommendation
that identifies pleading defects in the original complaint when
those defects remain in the ... amended complaint[,]” id. at
389. “[A] district court retains the authority—and indeed the
duty—to sua sponte review the pleading sufficiency of th[e]
amended complaint.” Id.
Magistrate Judge Stewart set forth the applicable legal
standards for motions to dismiss and for summary judgment,
Plaintiff did not object to those portions of the Report-
Recommendation and Order, and the Court finds no clear
error therein.
B. Plaintiff's Objections
Plaintiff filed objections to the Report-Recommendation
and Order. See Dkt. No. 36. Some objections respond to
Magistrate Judge Stewart's recommendations, while others
are either non-responsive or incomprehensible. See id.
In his first responsive objection, Plaintiff argues that he did
not fail to exhaust his administrative remedies for the equal
protection claim because he “inform[ed] Sergeant D. Hopkins
about the racial slurs that Defendant Jones made[,]” and
Sergeant Hopkins “told [Plaintiff] that she would make sure
[he] was safe and the situation was handled.” Id. at 1; see
id. at 3. Further, Plaintiff appears to insinuate for the first
time that he filed a standalone grievance regarding the slur,
which may have gone missing because “[t]here is alot [sic]
of lying and a lot of cover up[.]” Id. at 3-4. Because Plaintiff
raised at least one proper objection on the exhaustion issue,
the Court reviews the corresponding portions of the Report-
Recommendation and Order de novo.
On the Eighth Amendment claims against Defendants Vasile
and Shellhammer, Plaintiff's objections appear to agree
with Magistrate Judge Stewart's conclusions. For example,
Magistrate Judge Stewart found that Plaintiff sufficiently
alleged those Defendants’ personal involvement in the Eighth
Amendment violations and recommended that those claims
survive. See Dkt. No. 34 at 15. Plaintiff argues that “[i]t
is ... hard to identify who did what when you have 8
officers attacking you[,]” Dkt. No. 36 at 5, which Magistrate
Judge Stewart recognized, see Dkt. No. 34 at 17-18, and
insists that he properly identified Defendants Vasile and
Shellhammer under the circumstances, see Dkt. No. 36 at 5.
The Court acknowledges Plaintiff's response to the Report-
Recommendation and Order on this issue, but construes
the “objections” as expressions of agreement as to the
Eighth Amendment claims against Defendants Vasile and
Shellhammer. As such, the Court reviews these portions of
the Report-Recommendation and Order for clear error.
Plaintiff also makes several objections that are either unclear
or do not respond to the Report-Recommendation and Order.
For example, Plaintiff argues that he filed a grievance on
August 19, 2021, and that the grievance was mishandled, but
that objection does not address Magistrate Judge Stewart's
conclusion that the grievance only notified Defendants of the
beating, not the racial slur. See id. at 2, 4; Dkt. No. 34 at 9-12.
He also “[o]bjects to the fact that retaliation was the outcome
of the situation” when he allegedly told Sergeant Hopkins
about the racial slur and was subsequently beaten. Dkt. No. 36
at 1-2. To the extent Plaintiff contends his failure to exhaust
administrative remedies is excused due to fear of retaliation,
Magistrate Judge Stewart found this argument conclusory and
unpersuasive because Plaintiff offers no supporting evidence
or citations to the record. See Dkt. No. 34 at 13-14. Plaintiff
takes issue with that conclusion, but the Court cannot discern
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any specific ground for the objection. Plaintiff writes in
relevant part:
*3 The Department of Correctional
Facility has a duty to protect an
Incarcerated Individual from cruel
and unusual punishment. Once the
Handcuffs was on from the defendant
I should of been put in SHU
without incident. All because of a
conversation that I had with the chain
of command.... Since D. Hopkins is A
sergeant and she over saw the block
that day didn't want to be on my side
because Her officers would of looked
at her as a trader.
Dkt. No. 36 at 4. Accordingly, the Court reviews the
corresponding portions of the Report-Recommendation and
Order for clear error. 2
C. Failure to Exhaust Administrative Remedies
Magistrate Judge Stewart recommended granting the motion
for summary judgment on the equal protection claim because
Plaintiff failed to exhaust his administrative remedies. See
Dkt. No. 34 at 8. For the reasons stated below, the motion is
granted.
“The Prison Litigation Reform Act (“PLRA”) states that ‘[n]o
action shall be brought with respect to prison conditions
under ... [42 U.S.C. § 1983] ... by a prisoner confined
in any jail, prison, or other correctional facility until such
administrative remedies as are available are exhausted.’ ”
Kearney v. Gebo, No. 9:15-CV-253, 2017 WL 61951, *1
(N.D.N.Y. Jan. 4, 2017) (quoting 42 U.S.C. § 1997e(a)).
“[T]he PLRA's exhaustion requirement applies to all inmate
suits about prison life, whether they involve general
circumstances or particular episodes, and whether they allege
excessive force or some other wrong.” Porter v. Nussle,
534 U.S. 516, 532 (2002) (citation omitted). According to
the Supreme Court, “ ‘proper’ exhaustion means that the
inmate must complete the administrative review process in
accordance with the applicable procedural rules, including
deadlines, as a prerequisite to bringing suit in federal court.”
Kearney, 2017 WL 61951, at *2 (citing Woodford v. Ngo, 548
U.S. 81, 90-103 (2006)).
In most cases, New York uses “a three-step administrative
review process” that begins with the inmate filing a grievance.
Id. at *2. Generally, all three levels of review must be
exhausted before an inmate may sue in federal court. See
id. (citations omitted). New York regulations prescribe an
expedited review process when an inmate alleges harassment
by a prison employee, but that expedited process still begins
with the inmate filing a grievance. See N.Y. COMP. CODES
R. & REGS. tit. 7, § 701.8. “ ‘The primary purpose of
a grievance is to alert prison officials to a problem....’ ”
Thomas v. Waugh, No. 9:13-CV-321, 2018 WL 1508563, *5
(N.D.N.Y. Mar, 27, 2018) (quoting Jones v. Bock, 549 U.S.
199, 219 (2007)). At minimum, an inmate's grievance must
“provide prison officials with notice of the misconduct from
which he seeks redress so that the prison may take appropriate
responsive measures.” Reynolds v. Stone, No. 9:20-CV-686,
2021 WL 3271805, *10 (N.D.N.Y. May 24, 2021), R. & R.
adopted, 2021 WL 3269053 (N.D.N.Y. July 30, 2021) (citing
Johnson v. Testman, 380 F.3d 691, 697 (2d Cir. 2004)).
*4 An inmate's failure to exhaust is excusable if
administrative remedies were unavailable. See Kearney, 2017
WL 61951, at *2 (quoting Ross v. Blake, 578 U.S. 632,
635-36 (2016)). An administrative remedy may be considered
unavailable if: (1) “it operates as a simple dead end—with
officers unable or consistently unwilling to provide any relief
to aggrieved inmates[;]” (2) if it is part of “an administrative
scheme ... so opaque that it becomes, practically speaking,
incapable of use[;]” or (3) “prison administrators thwart
inmates from taking advantage of a grievance process through
machination, misrepresentation, or intimidation.” Ross, 578
U.S. at 643-44 (citations omitted).
Here, the record shows that Plaintiff filed grievance number
AUB-0671-21 at Auburn on or about August 19, 2021. See
Dkt. No. 27-5 at 12, 15-17. The grievance explains that
on August 18, 2021, Plaintiff “informed the black female
sergeant” (now alleged to be Hopkins) that another officer
threatened him for asking why he could not use the phone to
call his family. See id. at 16. The grievance goes on to say
Hopkins gave Plaintiff her word that he would be safe, and
after Plaintiff left his cell, the same officer who threatened him
demanded that he “get on the wall.” Id. The grievance states
that after Plaintiff complied, eight officers jumped on him,
broke his ribs, wrist, and foot, and gave him a concussion. See
id. The grievance does not mention or allude to any use of a
racial slur.
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Plaintiff's filing of grievance number AUB-0671-21 indicates
that the grievance process was available to him. See id.
at 15-17. The record also shows Plaintiff completed an
orientation program on grievance policies, see Dkt. No.
27-4 at ¶¶ 5-6, which Plaintiff does not dispute, see Dkt.
No. 31 at 18, and he filed at least three other grievances
between December 2016 and January 2021, see Dkt. No.
27-5 at 12. Furthermore, Plaintiff does not point to any
evidence suggesting retaliation if he properly grieved the
use of a racial slur. As Magistrate Judge Stewart noted,
this conclusory, unsupported claim is insufficient to defeat
a summary judgment motion. See Dkt. No. 34 at 13-14; see
also Johnson v. Killian, 680 F.3d 234, 236 (2d Cir. 2012)
(quoting Davis v. New York, 316 F.3d 93, 100 (2d Cir. 2002))
(“ ‘[C]onclusory statements or mere allegations [are] not
sufficient to defeat a summary judgment motion’ ”).
Although the August 19, 2021, grievance explains the alleged
use of excessive force, its contents fail to put Defendants
on notice of an equal protection violation under even the
most liberal construction. See Dkt. No. 27-5 at 12, 15-17
(describing the alleged beating and labeling the grievance,
“Assaulted By Officers”). Likewise, Plaintiff offers no
evidence to support his speculation of a missing grievance
or his sudden insinuation that he filed a separate grievance
regarding a racial slur, which is raised for the first time in
Plaintiff's objections. See Dkt. No. 36 at 3-4. Plaintiff also
appears to argue that he notified the grievance committee of
his conversation with Hopkins, during which he purportedly
mentioned a racial slur, see Dkt. No. 31 at 18, but does not
cite any supporting evidence in the record.
Moreover, the Hopkins conversation itself cannot substitute
for a properly filed grievance. The Second Circuit has
stated that allowing “generalized complaints regarding the
conditions of an inmate's confinement ... to shortcut the
administrative remedy process ... would appear to eviscerate
the PLRA's exhaustion requirement[.]” Johnson, 680 F.3d
at 239. Although at least one judge in this District
previously determined that complaints made outside a
formal grievance process satisfied the PLRA's exhaustion
requirement, that conclusion was based on a fact-specific
evaluation of “whether the informal efforts made to address
[the] allegations administratively [were] sufficient to satisfy
the essential functions of the exhaustion requirement.” Lewis
ex rel. Lewis v. Gagne, 281 F. Supp. 2d 429, 435 (N.D.N.Y.
2003). The Lewis court also found that the “informal efforts
demonstrate[d] a reasonable attempt to exhaust all possible
means before filing in federal court.” Id. (citing O'Connor
v. Featherston, No. 01-CV-3251, 2002 WL 818085, *2
(S.D.N.Y. Apr. 29, 2002); Heath v. Saddlemire, No. 9:96-
CV-1998, 2002 WL 31242204, *3-5 (N.D.N.Y. Oct. 7,
2002)).
*5 Here, however, the record shows otherwise. Plaintiff
offers no evidence that a verbal mention of a racial slur was
his best attempt at exhausting his administrative remedies,
especially when he filed a grievance about separate conduct
that allegedly occurred the same day. The record is similarly
devoid of evidence that any verbal report of a racial slur
made its way through all levels of administrative review. See
Macias v. Zenk, 495 F.3d 37, 43 (2d Cir. 2007) (citations
omitted) (“Regardless of whether his tort claims or informal
complaints put the prison officials on notice of his grievance
‘in a substantive sense,’ Johnson [v. Testman] makes clear that
to satisfy the PLRA a prisoner must also procedurally exhaust
his available administrative remedies.... Because Macias does
not argue that the BOP's administrative remedy system was
so confusing that he justifiably believed his administrative
tort claims and informal complaints were his only available
remedies, Macias has no ground to argue that he procedurally
exhausted his claims under Johnson”).
Because Plaintiff fails to raise any dispute of material fact as
to whether he exhausted administrative remedies for his equal
protection claim, Defendant Jones's motion for summary
judgment is granted, and the claim is dismissed. The Court
does not opine further on the merits of the equal protection
claim.
D. Excessive Force and Failure-to-Intervene Claims
Defendants Vasile and Shellhammer move to dismiss
the Eighth Amendment excessive force and failure-to-
intervene claims against them for failure to allege personal
involvement. See Dkt. No. 27-1 at 12. Magistrate Judge
Stewart recommended denying the motion because Plaintiff
sufficiently alleges their personal involvement. See Dkt. No.
34 at 15. For the reasons stated below, the motion is denied.
Magistrate Judge Stewart correctly stated that a § 1983
plaintiff must allege each defendant's personal involvement in
the alleged constitutional violation. See id.; Arnold v. Town of
Camillus, 662 F. Supp. 3d 245, 262 (N.D.N.Y. 2023) (citations
omitted); Farid v. Ellen, 593 F.3d 233, 249 (2d Cir. 2010)
(citations omitted). In other words, “a plaintiff must ‘allege a
tangible connection between the acts of a defendant and the
injuries suffered.’ ” Arnold, 662 F. Supp. 3d at 262 (quoting
Beauchine v. City of Syracuse, No. 5:21-CV-845, 2022 WL
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561548, *15 (N.D.N.Y. Feb. 24, 2022)). “Group pleading,”
or a “fail[ure] to differentiate as to which defendant was
involved in the alleged unlawful conduct[,]” is usually not
enough. Id. at 266 (citation and internal quotation marks
omitted).
However, as Magistrate Judge Stewart acknowledged, see
Dkt. No. 34 at 17-18, broadly pleading multiple defendants’
involvement may be acceptable if the allegations “can be
liberally construed as plausibly alleging that all [the identified
defendants] engaged in the alleged [constitutional violations]
[,]” King-Knight v. New York, No. 9:25-CV-317, 2026 WL
523067, *7 (N.D.N.Y. Feb. 25, 2026). The Court adds that
“a collective reference to multiple defendants may satisfy
the pleading standard when, given the specific circumstances
of the case and drawing all reasonable inferences in the
plaintiff's favor, there [is] an understandable explanation
for why the [c]omplaint was not more particularized.”
Lawrence v. Shattick, No. 8:24-CV-656, 2026 WL 237648,
*5-6 (N.D.N.Y. Jan. 29, 2026) (citation and internal quotation
marks omitted) (finding that a pro se plaintiff's broad
reference to multiple defendants was sufficient because he
allegedly experienced hallucinations and fell unconscious
during the claimed constitutional violation); see also Gomez-
Kadawid v. Lee, No. 20-CV-1786, 2022 WL 676096, *6-7
(S.D.N.Y. Feb. 3, 2022), R. & R. adopted, 2022 WL 558125
(S.D.N.Y. Feb. 24, 2022) (determining that a pro se plaintiff's
broad allegations of personal involvement were acceptable
because the plaintiff was allegedly anesthetized while the
challenged conduct was taking place).
*6 Magistrate Judge Stewart noted that Plaintiff's complaint
alleges eight corrections officers participated in beating
him, but because Plaintiff lost consciousness during the
beating, he could not specifically allege how each officer
individually harmed him. See Dkt. No. 34 at 16. The
amended complaint also contains these allegations. See Dkt.
No. 37 at 5-6. Thus, Plaintiff's pleadings explain why he
could not precisely allege how each officer violated his
rights. Magistrate Judge Stewart also correctly stated that
the complaint (and the amended complaint) accuses “all
Defendants” of using excessive force and failing to intervene.
See Dkt. No. 34 at 16; Dkt. No. 37 at 8. Specifically, both
pleadings allege that “several C.O.s.” [sic] punched and
kicked Plaintiff, then pushed him down the stairs. See Dkt.
No. 1 at 9; Dkt. No. 37 at 9. The complaint and amended
complaint identify eight defendants who are corrections
officers, including Defendants Vasile and Shellhammer. See
Dkt. No. 1 at 1, 3; Dkt. No. 37 at 1, 3. The Court
therefore finds no clear error with Magistrate Judge Stewart's
conclusion that, construed liberally, Plaintiff's complaint
and amended complaint plausibly allege Defendants Vasile
and Shellhammer's personal involvement in the Eighth
Amendment violations. 3
IV. CONCLUSION
After carefully reviewing the entire record in this matter,
the parties’ submissions, and the applicable law, and for the
reasons set forth above, the Court hereby
ORDERS that Magistrate Judge Stewart's Report-
Recommendation and Order (Dkt. No. 34) is ADOPTED;
and the Court further
ORDERS that Defendants’ motion for partial dismissal and
partial summary judgment (Dkt. No. 27) is GRANTED in
part and DENIED in part; 4 and the Court further
ORDERS that Plaintiff's equal protection claim against
Defendant Jones is DISMISSED for failure to exhaust
administrative remedies; and the Court further
ORDERS that the Clerk of the Court shall serve a copy
of this Memorandum-Decision and Order on the parties in
accordance with the Local Rules.
IT IS SO ORDERED.
All Citations
Slip Copy, 2026 WL 1396585
Footnotes
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1 Defendant Shellhammer was originally identified in the complaint as “Sneilhammer.” See Dkt. No. 1 at 1,
3. After Defendants brought this error to the Court's attention, see Dkt. No. 27-1 at 3 n.1, Magistrate Judge
Stewart ordered the Clerk of the Court to correct the docket, see Dkt. No. 34 at 2 n.2, 22.
2 Plaintiff's final objection challenges Magistrate Judge Stewart's denial of his motion to appoint counsel. See
Dkt. No. 36 at 6. Magistrate judges have authority to rule on non-dispositive motions, such as motions to
appoint counsel. See Williams v. Houser, No. 6:26-CV-338, 2026 WL 1333784, *2 (N.D.N.Y. May 13, 2026)
(citations omitted). If a party timely objects to a magistrate judge's decision on a non-dispositive matter, “[t]he
district judge ... must consider [the] objections and modify or set aside any part of the order that is clearly
erroneous or is contrary to law.” FED. R. CIV. P. 72(a). The Court discerns no clear error in Magistrate Judge
Stewart's order denying appointment of counsel at this time. The Court reminds Plaintiff that the denial is
without prejudice, and as Magistrate Judge Stewart stated, Plaintiff may file a new motion for appointed
counsel later in this litigation. See Dkt. No. 34 at 19-22.
3 Magistrate Judge Stewart also credited new factual assertions of Defendants Vasile and Shellhammer's
personal involvement in Plaintiff's opposition to the motion to dismiss. See Dkt. No. 34 at 18. Ordinarily, a court
deciding a Rule 12(b)(6) motion to dismiss only considers the complaint and documents integral to, attached
to, or incorporated by reference in the complaint. See Berk v. Choy, 607 U.S. 187, 193 (2026) (quoting FED.
R. CIV. P. 12(d)); Mangiafico v. Blumenthal, 471 F.3d 391, 398 (2d Cir. 2006) (quoting Chambers v. Time
Warner, Inc., 282 F.3d 147, 152-53 (2d Cir. 2002)). Because a liberal reading of the complaint shows Plaintiff
sufficiently alleged Defendants Vasile and Shellhammer's personal involvement, the Court does not consider
additional facts outside the complaint.
4 Defendant Jones's motion for partial summary judgment is granted. Defendants Vasile and Shellhammer's
partial motion to dismiss is denied. Plaintiff's Eighth Amendment excessive force and failure-to-intervene
claims against Jones, Vasile, Shellhammer, Hopkins, Corrections Sergeant John Doe, and Corrections
Officer John Does 1 through 5 remain.
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