Under the modern rules of pleading expressed in Fed. R. Civ. P. 8, the plaintiff need only aver "a short and plain statement showing that the pleader is entitled to relief," Fed. R. Civ. P. 8(a)(2), and that "all pleadings shall be so construed as to do substantial justice," Fed. R. Civ. P. 8(f). The Complaint, however, does not set forth a "short and plain statement" of County liability under Monell. Nowhere does the Complaint allege that Bezerra's constitutional rights were violated because of the County's custom or policy of either allowing the beating, false arrest, imprisonment and wrongful prosecution of Bezerra, or not investigating such practices, or failing to train officers so as to prevent such practices.
Accordingly, the Complaint as against the County must be dismissed pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim. Accord Van Emrik v. Chemung County Dept. of Social Services, 911 F.2d 863, 868 (2d Cir. 1990) (claim against county dismissed where plaintiff failed to adequately allege any custom or policy of county contributed to denial of plaintiff's constitutional rights). The plaintiffs will be given leave to amend their complaint and replead the cause of action against the County.
3. Dismissal of This Case On Account of the Pending State Court Action.
Where there are parallel federal and state proceedings involving section 1983 causes of action, and where the federal action includes a claim for damages, then the district court must stay the federal proceeding as to the monetary damages portion of the suit until the state court proceedings are completed. See, e.g., Mack v. Varelas, 835 F.2d 995, 998 (2d Cir. 1987); Wood, supra, 13 F.3d at 576 ("Mack requires federal courts to stay rather than dismiss section 1983 actions while relevant state proceedings are pending."); cf. Deakins v. Monaghan, 484 U.S. 193, 202, 108 S. Ct. 523, 529, 98 L. Ed. 2d 529 (1988) (in a section 1983 suit seeking equitable and monetray relief, the district court may abstain as to the equitable portion of the suit, but must stay the suit as to the monetary relief pending the outcome of the state court proceeding); Giulini v. Blessing, 654 F.2d 189, 193 (2d Cir. 1981) (same).
Because the instant action is brought under section 1983 and is for monetary damages, the Court ordinarily would stay this action until the completion of the state proceedings, under the doctrine of Mack. However, it is the Court's view that the state and federal proceedings in this case are disparate enough so as to not warrant staying the federal action. One difference between this case and the suit brought by the plaintiffs in the state court, is that the state court suit only names the County as a defendant. Another difference is that the state court suit does not allege a cause of action for malicious prosecution. Nor does the state suit allege a cause of action under section 1985(3). A final difference is that in the state court, the plaintiffs can pursue the County's liability based on a theory of respondeat superior.
Indeed, because the plaintiffs' causes of action for excessive force, false arrest and false imprisonment have been dismissed, the only overlap between this case and the state suit is with respect to the County's liability for the alleged malicious prosecution of Bezerra, and for any liability it may have in connection with the assault, battery and intentional infliction of emotional distress on Bezerra. In the Court's view, this overlap is minimal, and does not warrant a conclusion that the two proceedings are parallel.
The Court is also mindful that "abstention from the exercise of federal jurisdiction is the narrow exception, not the rule," Moses H. Cone Memorial Hospital v. Mercury Constr. Corp., 460 U.S. 1, 14, 103 S. Ct. 927, 936, 74 L. Ed. 2d 765 (1983), and that federal courts have a "virtually unflagging obligation" to exercise their jurisdiction. Deakins v. Monaghan, 108 S. Ct. at 530.
Finally, the concerns of comity, federalism and efficient judicial administration that underlie federal court abstention in the situation of parallel state-federal proceedings are not implicated in any serious way by the Court's proceeding to the merits of this case. As enunciated in Moses H. Cone Memorial Hospital, 103 S. Ct. at 938-41, and Colorado River Water Conservation District v. United States, 424 U.S. 800, 96 S. Ct. 1236, 47 L. Ed. 2d 483 (1976), the district court has the discretion to dismiss or stay a federal action upon considering the following factors, and concluding the factors weigh in favor of deferring to the state court proceeding: (1) assumption by either court of jurisdiction over any res or property; (2) whether the federal forum is any less convenient to the parties than the state forum; (3) whether there is a danger of piecemeal litigation; (4) the order of the two suits; (5) whether federal law provides the rule of decision on the merits; and (6) whether the state court is inadequate to protect the plaintiff's rights.
A consideration of these factors leads the Court to conclude that deference to the state court is not appropriate. This conclusion is compelled by the fact that the danger of piecemeal litigation is minimal, and federal law provides the rule of decision in this case.
Accordingly, the Court will not dismiss or abstain from proceeding with this case.
The defendants' motion to dismiss the Complaint is granted in part, and denied in part. The motion is granted with respect to dismissing the Complaint as against the County for failure to properly state a Monell claim. The motion is also granted with respect to dismissing the causes of action in the Complaint for excessive force, false arrest and false imprisonment as a matter of law, because they are time barred. The remaining portion of the defendants' motion is denied.
Accordingly, it is hereby
ORDERED, that the defendants' motion to dismiss the Complaint as against Nassau County pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim is granted, with leave to replead; it is further
ORDERED, that the defendants' motion to dismiss the Complaint as time barred is granted in part as to the causes of action in the Complaint for excessive force, false arrest and false imprisonment; it is further
ORDERED, that the defendants' motion is in all other respects denied; it is further
ORDERED, that the causes of action in the Complaint brought under 42 U.S.C. §§ 1983 and 1985(3) for excessive force, false arrest and false imprisonment are dismissed as a matter of law, because they are time barred; and it is further
ORDERED, that the plaintiff is given leave to amend the Complaint in order to properly allege a claim against Nassau County under Monell v. New York City Department of Social Services. The plaintiff has thirty (30) days from the date of this Order to file an amended complaint.
Dated: Uniondale, New York
March 14, 1994
ARTHUR D. SPATT
United States District Judge
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