defendant Lewis who, acting under color of state law, was allegedly "deliberately indifferent to plaintiff's serious medical needs . . . ." Complaint, P 57. The fourth claim for relief also alleges a pendent state law claim for emotional and physical pain and suffering.
e. The Fifth Claim for Relief. The fifth claim for relief is a pendent state law claim against all individual defendants for negligence. Specifically, this claim for relief alleges that the individual defendants owed plaintiff a duty of care while he was in their custody, and that by breaching that duty they caused plaintiff emotional and physical pain and suffering. Complaint, PP 60-62.
f. The Sixth Claim for Relief. The sixth claim for relief is a pendent state law claim against all individual defendants for the negligent infliction of emotion distress. This claim for relief alleges a negligent breach of the duty allegedly owed to plaintiff while he was in defendants' custody. Complaint, PP 64-66.
g. The Seventh Claim for Relief. The seventh claim for relief is a pendent state law claim against the City of New York based on the doctrine of respondeat superior. Specifically, the Complaint alleges that the defendant Police Officers, Watson, and Lewis, while in the employ of the City of New York, and while acting within the scope of their employment, caused plaintiff emotional and physical pain and suffering by their negligence and negligent infliction of emotional distress. Complaint, P 69.
Defendants now move to dismiss, or move for partial summary judgment, based on the following: (i) because the complaint fails to allege personal involvement by any of the individual police officers, the Section 1983 causes of action against them should be dismissed; (ii) the first claim for relief should be dismissed pursuant to Rule 12(b)(6) because it fails to adequately allege a violation of the Fourth Amendment; in the alternative, summary judgment should be granted defendants because there is no genuine dispute as to the reasonableness of the force used in arresting Messina; (iii) the second claim for relief should be dismissed because, even if accepted as true, defendant Watson's remarks and actions do not violate Messina's First Amendment right to exercise his religion; and the third claim for relief should be dismissed because the complaint does not allege that a group or class of individuals are being treated unfairly for purposes of the Equal Protection Clause of the Fourteenth Amendment; (iv) the fourth claim for relief should be dismissed pursuant to Rule 12(b)(6) because the complaint fails to allege a deprivation of plaintiff's constitutional rights vis-a-vis the medical attention he received at Rikers Island; in the alternative, defendants seek summary judgement on the ground that no reasonable jury could conclude that Lewis was indifferent to Messina's medical needs; (v) the federal claims against the individual defendants should be dismissed because the defendant Police Officers, Watson, and Lewis are protected by the doctrine of qualified immunity; and (vi) the pendent state law claims against the individual defendants should be dismissed for failure to properly notify their municipal employer pursuant to New York's Civil Practice Law and Rules, and the pendent state law claim against the City of New York should be dismissed for failure to sue that entity within the applicable statute of limitations period.
I. Section 1983 and Allegations of Personal Involvement
Defendants contend that plaintiff has failed to allege how any of the defendant Police Officers (Mazzeo, McGowan, Williams, Alvarez, Harris, Ho, or Keegan) were personally involved in the alleged violations of Messina's Fourth Amendment rights, and therefore conclude that all Section 1983 causes of action must be dismissed as against them. As noted above, these individual defendants are defined in the Complaint collectively as "defendant Police Officers." The Complaint then goes on to state that the "defendant Police Officers" used excessive force in arresting Messina without describing what role each individual defendant played in the alleged constitutional violations.
In Alfaro Motors, Inc. v. Ward, 814 F.2d 883 (2d Cir. 1987), a tow car company and its owner brought a Section 1983 action against the City of New York for, among other things, its alleged failure to afford them a prompt hearing to review the denial of their applications for tow car medallions. The plaintiff also named as defendants Benjamin Ward, Police Commissioner of the City of New York, and Anthony Savarese, a sergeant in the New York City Police Department. The Second Circuit held that "appellants' claims against the individual defendants herein cannot stand." Id. at 886. The court explained:
Although the caption of appellants' complaint names as defendants Benjamin Ward, Police Commissioner of the City of New York, and Anthony Savarese, a sergeant in the New York City Police Department, the complaint is entirely devoid of any allegations of their personal involvement in denying appellants either a prompt hearing or the additional medallions sought. Having failed to allege, as they must, that these defendants were directly and personally responsible for the purported unlawful conduct, their complaint is "fatally defective" on its face. Black v. United States, 534 F.2d 524, 527-28 (2d Cir. 1976); accord Owens v. Coughlin, 561 F. Supp. 426, 428 (S.D.N.Y. 1983).
Id. (emphasis added). Accord Morabito v. Blum, 528 F. Supp. 252, 262 (S.D.N.Y. 1981) ("The courts have consistently held 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.").
Applying this well-settled maxim to the Complaint, it cannot be said that the Complaint "contains no allegations indicating how the defendant[s] violated the law or injured the plaintiff." The complaint specifically alleges that all of these individual police officers participated in using excessive force when they arrested Messina, handcuffed him, placed him in the police car, and searched him while at the police station. Federal Rule of Civil Procedure 8(a)(2) provides in part that a pleading must contain "a short and plain statement of the claim showing that the pleader is entitled to relief . . . ." The Complaint fulfills this mandate. The Federal Rules, as illustrated by Rule 8(a), do not require that plaintiff set out a defendant's precise role in the injurious conduct. It is, however, constitutionally imperative that defendants are put on notice as to the nature of the allegations against them. Plaintiff has done that by alleging that all individual defendants participated in the use of excessive force. It would be asking too much for an arrestee to remember and plead the role each of several police officers played in an alleged instance of police brutality.
In this regard, the authorities cited by defendants are inapposite because in those actions the individual defendants were not put on notice as to their role in or their relationship to the actions at issue in the case. For example, in Rodriguez v. Chandler, 641 F. Supp. 1292 (S.D.N.Y. 1986), aff'd, 841 F.2d 1117 (2d Cir. 1988), a college professor brought an employment discrimination action against his former employer alleging that the college paid him a lower salary than that paid to less senior professors, denied him tenure, and terminated his employment because of his race, his national original, and his activities as an advocate for faculty and student minority interests at the college. Plaintiff also named as a defendant the chancellor of the college, but the court dismissed the complaint as to him: "Wharton is mentioned in the complaint only in paragraph six, which alleges that none of the complaint's substantive charges are directed against him and that he is meant only to be included in the prayer for relief. Absent any substantive allegations against Wharton, all claims against him must be dismissed." 641 F. Supp. at 1294 n.1. In other authorities cited by defendants, the plaintiff had failed to establish that an individual defendant was personally involved and hence summary judgment was appropriate. E.g. Williams v. Smith, 781 F.2d 319 (2d Cir. 1986) (where prison guard had only filed a report and was not personally involved in a hearing which plaintiff alleged had violated his due process rights, summary judgment was appropriate because plaintiff had failed to raise an issue of material fact regarding the personal involvement of the guard).
More relevant to the action before the court is Brown v. Coughlin, 758 F. Supp. 876 (S.D.N.Y. 1991). In Brown, a state prisoner brought a Section 1983 action alleging deliberate indifference to his medical needs against various state and municipal individual defendants (commissioner, doctors, superintendent). The state defendants maintained that the complaint contained no allegations that the commissioner and/or the superintendent participated in any of the alleged deprivations of plaintiff's medical care and hence the federal claims should be dismissed as to them. The court, however, held that the pleadings were sufficient to withstand summary dismissal on the pleadings because "enough information can be gleaned from the facts as pleaded to show that Coughlin and Dalsheim could be charged with knowledge of the unconstitutional conditions pervading at Downstate in accordance with a low standard of health care delivery at the facility." Id. at 889. So too in this action: enough information can be gleaned from the facts as pleaded to show that Mazzeo, McGowan, Williams, Alvarez, Harris, Ho and Keegan participated in the use of excessive force in arresting and restraining Messina on April 2, 1992. This is because the Complaint alleges that they all participated in a group arrest of Messina in which excessive force was allegedly used.
Also instructive is Brook v. Thornburgh, 497 F. Supp. 560 (E.D. Pa. 1980). In Brook, the plaintiff brought an action against certain state officials pursuant to Sections 1983 and 1985 alleging that his discharge as an attorney examiner at the state's department of revenue was solely based on his political sponsorship by and affiliation with the Democratic party, in violation of the First and Fourteenth Amendments. There, the defendants also contended that the complaint should be dismissed because it did not allege with sufficient specificity the personal involvement of each defendant in the allegedly unconstitutional acts. Like the complaint at issue in this action, the complaint in Brook alleged that all individual defendants participated in the unconstitutional actions at issue in the case (i.e., the effort to drive Democratically affiliated and sponsored employees from their state jobs), and then later specified the tactics used by the defendants (e.g., elimination of office space and telephone service). The court refused to dismiss the complaint for failure to adequately plead personal involvement by the defendants:
While the complaint does not specify which defendant took which specific action, it does put all the defendants on notice as to those actions in which they are all accused of participation. . . . The complaint does not simply set forth conclusory allegations that plaintiff was denied first amendment rights without stating how he was so deprived. . . . In this case, personal involvement on the part of all defendants has been alleged. . . . Under the federal notice pleading, this complaint is sufficient. Defendants will have ample opportunity to develop by deposition or interrogatories, or both, whatever fuller exposition of plaintiff's claim they require for their defense.