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HARLEE v. HAGEN

May 11, 1982

David HARLEE, Plaintiff,
v.
Richard HAGEN, individually and in his official capacity as a police officer of the New York City Police Department; John Doe, individually and in his official capacity as a supervisory police officer of the New York City Police Department; Robert McGuire, individually and in his official capacity as Commissioner of the New York City Police Department; and the New York City Police Department, Defendants



The opinion of the court was delivered by: GLASSER

MEMORANDUM AND ORDER

This is a civil rights action brought pursuant to 42 U.S.C. § 1983 *fn1" and 28 U.S.C. §§ 2201 and 2202. *fn2" Plaintiff is David Harlee, a forty year old truck driver and resident of Brooklyn, New York. Defendants are Richard Hagen, a New York City police officer, John Doe, Officer Hagen's unidentified supervisor, the New York City Police Department and Robert McGuire, Commissioner of the New York City Police Department.

 Defendants John Doe, Robert McGuire and the New York City Police Department (City defendants) move to dismiss the complaint pursuant to Federal Rules of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. Plaintiff opposes the motion and cross-moves to amend his complaint and to compel discovery.

 Facts

 Plaintiff's claim arose from an altercation with defendant Hagen on the night of September 13, 1979. At approximately 9:00 P.M., plaintiff and defendant Hagen, who was off duty, were involved in a minor automobile accident in which the front of defendant Hagen's vehicle collided with the rear of plaintiff's vehicle. Although the facts concerning the subsequent altercation are in dispute, it is uncontested that defendant Hagen unholstered his off-duty revolver, identified himself as a police officer and struck plaintiff on the head with his revolver several times. After the arrival of several on-duty New York City police officers, plaintiff was taken to a nearby hospital for treatment.

 Plaintiff subsequently preferred criminal charges against Officer Hagen, resulting in an indictment charging him with Assault in the Second Degree. He was acquitted of the charge after a jury trial on July 17, 1980. Also, as a result of the altercation, Officer Hagen was suspended from the Police Department from September 27, 1979 to October 25, 1979. A disciplinary hearing was held on October 21, 1980 at which defendant Hagen pleaded guilty to the charge that he, on September 13, 1979, at approximately 9:00 P.M., "having been involved in a vehicular accident, property damage only, did wrongfully and without cause engage in an altercation with other motorist involved, one David Harlee." A second charge alleging that Officer Hagen "did wrongfully strike said David Harlee about the head with a pistol or revolver," was dismissed for plea purposes. The penalty recommended by the Deputy Commissioner of Trials and approved by Police Commissioner McGuire was forfeiture of defendant Hagen's salary and benefits during his suspension.

 In the instant civil action plaintiff's complaint charges in part that (1) defendant Doe failed to properly supervise Officer Hagen's conduct as a police officer; (2) defendants McGuire and the New York City Police Department failed to supervise, investigate and remove police officers who failed to comply with laws, rules and regulations governing police conduct; (3) defendants McGuire and the New York City Police Department failed to implement a policy, practice or procedure requiring that police officers know and comply with rules and regulations pertaining to lawful arrests and the use of deadly and non-deadly force; and (4) defendants McGuire and New York City Police Department failed to implement a policy, practice or procedure requiring that police officers know and comply with the laws, rules and regulations governing their off-duty conduct. Plaintiff charges that the aforementioned failures resulted in substantial injury to his person and property and the willful deprivation of his right to liberty and equal protection guaranteed by the fourteenth amendment *fn3" and Section 1983 of Title 42, United States Code.

 As pendent state action claims plaintiff alleges that defendants Doe, McGuire and New York City Police Department failed to discharge their duties as public officials in a reasonable and lawful manner, causing plaintiff to suffer substantial injury to his person and property. On all his enumerated claims plaintiff seeks declaratory and monetary relief.

 Plaintiff now seeks in his cross-motion to amend the complaint pursuant to Fed.R. Civ.P. 15(a) to allege further that defendants Doe, McGuire and New York City Police Department, in their official and individual capacities, failed to properly train, supervise and discipline police officers, including Officer Hagen, such that their conduct was grossly negligent and constituted deliberate indifference proximately causing the deprivation of plaintiff's constitutional rights.

 Federal Rules of Civil Procedure 15(a) states that:

 
[A] party may amend his pleading once as a matter of course at any time before a responsive pleading is served .. Otherwise a party may amend his pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires.

 Plaintiff filed his original complaint on December 23, 1980. Defendant Hagen filed an answer to the complaint on February 26, 1981. Defendants Doe, McGuire and New York City Police Department moved to dismiss the complaint in lieu of filing an answer on February 2, 1981. On March 17, 1981 plaintiff and City defendants entered into a stipulation agreeing to hold the motion to dismiss in abeyance while plaintiff initiated limited discovery proceedings. After limited discovery took place, City defendants moved forward with their motion to dismiss pursuant to Rule 12(b)(6) and notice of plaintiff's cross-motion to amend the complaint was filed on January 8, 1982.

 In view of the clear language of Rule 15(a) that a party may amend a pleading once as of right before a responsive pleading is served, plaintiff's application to the Court for permission to amend his complaint as to City defendants is unnecessary. City defendants' Rule 12(b)(6) motion, whether treated as a motion to dismiss or as a motion for summary judgment pursuant to Rules 12(c) and 56, is not a responsive pleading for the purposes of Rule 15(a). McDonald v. Hall, 579 F.2d 120 (1st Cir. 1978); Williams v. Wilkerson, 90 F.R.D. 168 (E.D.Va.1981). Nor is defendant Hagen's answer to the complaint a responsive pleading under Rule 15(a) which bars service of an amended complaint as a matter of course upon City defendants. Pallant v. Sinatra, 7 F.R.D. 293 (S.D.N.Y.1945). See 6 C. Wright & A. Miller, Federal Practice and Procedure § 1481 (1971).

 Even if plaintiff were not permitted to amend his complaint as of right, the Court would permit the amendment in the interests of justice. The year long delay in these proceedings was caused primarily by the stipulation between the parties holding in abeyance City defendants' motion to dismiss while plaintiff procured limited discovery. Plaintiff's motion to amend the complaint was brought promptly in response to City defendants' revival of their Rule 12(b)(6) motion.

 Furthermore, City defendants can show no prejudice resulting from the amendment. In his original complaint plaintiff clearly alleged the events out of which his claims arose as well as his theories of liability. City defendants were on notice from the outset of this lawsuit that they would be called upon to defend their actions in supervising and disciplining defendant Hagen and other police officers. In discovery proceedings plaintiff sought, among other things, information concerning the training of police officers. City defendants refused to provide such information on the ground that failure to train was not alleged in the complaint. The amended complaint therefore adds such a charge -- that City defendants failed to properly train police officers, including defendant Hagen. Defendants were on notice from the discovery proceedings that plaintiff wished to proceed on this claim.

 The amended complaint also modifies plaintiff's theory of liability, alleging that City defendants' failure to properly train, supervise and discipline police officers, including defendant Hagen, amounted to gross negligence and deliberate indifference to plaintiff's constitutional rights. This amendment seeks to bring plaintiff's claim within the scope of the Supreme Court's decision in Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978). City defendants' motion papers submitted prior to service of plaintiff's cross-motion indicate that they were well aware of the limits of their ...


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