The opinion of the court was delivered by: I. LEO GLASSER
GLASSER, United States District Judge:
This is a motion to dismiss plaintiff's civil rights complaint and pendent state law claims stemming from the treatment he received during his arrest and pretrial detention. In the alternative, defendants move for partial summary judgment.
For the following reasons, defendants' motion is granted in part and denied in part.
Although several facts are conceded, many are in dispute. To the extent that defendants have moved for dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6), plaintiff's allegations will be accepted as true. For the two claims upon which defendants seek summary judgment pursuant to Federal Rule of Civil Procedure 56, see note 1 supra, the court has looked to matters outside of the pleadings including plaintiff's medical records, the affidavit of the prison physician, and the affidavit of plaintiff's attorney which asserts that further discovery is needed.
On April 2, 1992, at approximately 4:00 p.m., plaintiff James Messina ("Messina") was in the vicinity of Allen, Broome and Orchard Streets in New York City, when he was arrested by several New York City police officers. There is a dispute as to how the arrest transpired and the amount of force which was used in executing the arrest. Defendants contend that the police officers pursued Messina and apprehended him and that "reasonable force was applied in order to apprehend and handcuff plaintiff." Defs.' 3(g) Statement, P 2. Plaintiff alleges that, in order to avoid a confrontation with the officers in front of his wife and two-year old son, he started running away after he saw the officers running toward him, stopped, and was then arrested. Third Amended Complaint ("Complaint"), PP 17, 18; Pl.'s 3(g) Statement, P 2. The complaint further alleges that the officers threw Messina to the ground; that one of the officers stood on his back with one foot while ignoring his contention that he could not breathe; that the officers handcuffed plaintiff with excessive tightness; and that while in the police car "without any provocation by plaintiff, who was still tightly handcuffed, defendant Police Officer slapped plaintiff several times in the face with his hand, and hit plaintiff several times in his abdomen and on his legs with a night stick, causing plaintiff severe pain." Complaint, P 21.
Messina also alleges that he was "slapped and punched" when he arrived at the station house, and that the individual police officers "beat him with their night sticks, without provocation, and despite the fact that plaintiff was still handcuffed." Complaint, P 22. Messina was also told by one of the police officers while at the station house that "You'll never forget this day," at which point he allegedly received a further round of slaps across the face, again allegedly without any provocation. Complaint, P 23. Plaintiff also alleges that one of the police officers hit him in the back of the knees with a night stick, Complaint, P 23, and that during his strip search he was slapped again, Complaint, P 24. In the Complaint Messina states that no one attempted to intercede on his behalf during these beatings. Complaint, P 24 (". . . despite a realistic opportunity to do so, none of the Police Officers interceded to prevent this abuse.").
Defendants contend that it is undisputed that Messina received no serious injuries from these alleged beatings. Defendants base this contention on the fact that plaintiff allegedly did not allege that he received any particular injuries, Defs.' 3(g) Statement, P 7 ("Plaintiff does not allege that he suffered any particular physical injury as a result of any use of force which occurred during the course of his arrest on April 2, 1993 [sic]."), and on the medical records and photographs of plaintiff taken at the time of his arrest, e.g., Defs.' 3(g) Statement, P 4 ("The log book of the Fifth Precinct from April 2, 1992 reflect that, upon plaintiff's arrival at the precinct, he was in good condition."). In Paragraph 25 of the Complaint, however, plaintiff states that "as a result of the excessive force used by defendant Police Officers and the failure to intercede to stop the use of such force despite realistic opportunities to do so, plaintiff sustained physical injuries to his right wrist, abdomen, face and legs, causing him to suffer intense pain, and emotional pain and suffering." See also Pl.'s 3(g) Statement, PP 6, 7 (plaintiff sustained injuries to his right wrist, abdomen, face and legs).
Two days following his arrest, on April 4, 1992, plaintiff was charged with criminal possession of a controlled substance and criminal possession of a hypodermic instrument in violation of New York Penal Law §§ 220.03 and 220.45 (McKinney 1989). On the day that he was charged, plaintiff was transferred to the custody of the New York City Department of Correction (the "DOC") and transported to "C95" at Rikers Island. Complaint, P 27.
B. The Confrontation with Officer Watson
For the purposes of defendants' motion to dismiss, the following facts are accepted as true. At approximately 11:15 a.m. on April 4, 1992, Messina arrived at Rikers Island and was interviewed by defendant Correction Officer Harold Watson ("Watson" or "Correction Officer Watson"). Complaint, P 28. Watson asked plaintiff a number of questions for the purpose of completing a New York City Department of Correction Manual Admission and Classification Form (the "Form"). Watson asked Messina, "What is your religion?" After Messina informed Watson that he was Jewish, Watson replied, "While you're here, you'll be Catholic." Plaintiff again stated that he was Jewish, to which Watson replied: "Shut up. I'll tell you what your religion is. I don't want to hear another word from you." Complaint, P 29. Watson then wrote "R/C" on the Form for prisoner's religion. Affidavit of Eric S. Kobrick, March 18, 1994 ("Kobrick Aff'd"), Ex. B.
Messina then received an orange identification card signifying that he is a Christian, instead of a blue identification card given to Jewish inmates. Complaint, P 29. A blue identification card entitles Jewish inmates to certain privileges including kosher food and the right to attend religious services. Complaint, P 29. Plaintiff alleges, and defendants do not contest for purposes of this motion, that he is a "sincere follower of and believer in the Jewish faith." Complaint, 30. Significantly, plaintiff does not allege that he specifically requested kosher food and was then denied the same; that he requested the right to attend religious services and was refused; or that he requested the right to dress in a certain manner or grow a beard but was told that he could not. Rather, plaintiff alleges that "as a result of defendant Correction Officer Watson's actions, plaintiff was, with religious animus, denied access to kosher food and was otherwise subjected to abuse, insult and emotional distress." Complaint, P 31.
C. The Access to Medical Care
Plaintiff alleges that when he arrived at Rikers Island on April 4, 1992, he was a recovering heroin addict and a participant in a methadone maintenance treatment program at the Lower East Side Service Center, Inc. (the "Center"). Complaint, P 32. Plaintiff further alleges that he received a Methadone Maintenance Treatment Program Identification Card from the Center which was taken from him at the time of his arrest. "At the Fifth Precinct, plaintiff asked defendant Police Officers to make sure that the Methadone ID card was returned to him, but it never was." Complaint, P 33. When Watson prepared the Form discussed supra, he noted that Messina was a drug abuser and that the drug in question was "meth." Kobrick Aff'd, Ex. B.
It is undisputed that Messina was examined by the medical staff at Rikers Island upon his arrival, that his medical history was taken, and that he was seen by defendant Dr. Ernel Lewis ("Lewis"), who is employed by the Montefore Hospital which Provides medical services at Rikers Island pursuant to a contract with the DOC. Affidavit of Ernel Lewis, M.D., March 29, 1994 ("Lewis Aff'd"), P 1. Plaintiff alleges that at the time of his examination he was suffering from "acute withdrawal caused by the failure to receive methadone treatment." Complaint, P 37. Plaintiff states that when he met with Lewis he informed the doctor that he was suffering from withdrawal and needed to receive methadone. Complaint, P 38. According to the complaint, Lewis replied by saying, "That's what they all say. I don't care what you do. You can stand on your head, tear the place apart, you're not getting methadone." Complaint, P 39. It is undisputed that Messina did not receive methadone at this time. Rather, three days later, on April 7, 1992, after the medical staff at Rikers Island received confirmation from the Center that Messina was in a 21-day methadone program, plaintiff was prescribed methadone for a 21-day period. Defs.' 3(g) Statement, P 24.
The reason why Messina was not given methadone upon his arrival at Rikers Island is a matter of dispute. Plaintiff contends that it was a result of Lewis's "deliberate indifference to the serious medical needs of plaintiff." Complaint, P 45.
Lewis, on the other hand, contends that the determination not to immediately administer methadone was based on his examination of Messina and the tests performed at the time:
Plaintiff was not suffering from acute symptoms of withdrawal at the time that he was examined on April 4, 1992. As shown by plaintiff's medical records on April 4, 1992, his blood pressure was normal, he was not dehydrated, his temperature was normal, he was not salivating or sweating excessively and his pupils were not dilated. He complained of diarrhea. Further, a test of plaintiff's urine revealed no sugar or ketones in plaintiff's urine, which would have been present had plaintiff been severely dehydrated due to acute withdrawal. These physical findings are inconsistent with a diagnosis of acute withdrawal from heroin or methadone. Had plaintiff been suffering from acute withdrawal symptoms, he would have evidenced at least some of the following symptoms: an elevated pulse rate and blood pressure, hyperglycemia (high blood sugar), severe dehydration, an elevated temperature, dilated pupils, excessive sweating, yawning, running of the nose and tearing of the eyes, shortness of breath, goose flesh, nausea and vomiting, bone pain, insomnia, and liver tenderness.
Lewis Aff'd, P 6 (citations omitted). Significantly, the determination to withhold methadone immediately upon Messina's arrival was not based on a written policy of the DOC which has been made part of the record. Rather, as the above-referenced excerpt establishes, the decision was based upon the medical opinion of Lewis.
Plaintiff further alleges that Lewis did not perform an adequate examination. Complaint, P 40. Plaintiff alleges that he informed Lewis that he might kill himself because he was not sure if he could handle his agitated condition and suffering. "Rather than examine plaintiff or inquire further as to his medical needs, defendant Doctor Lewis simply sent plaintiff and his file to the mental health services unit because of plaintiff's threat to kill himself." Complaint, P 40. In the medical documents completed upon Messina's arrival, it was noted that Messina was complaining that he was suffering from withdrawal and that he was "complaining of pain all over body." Winningham Decl., Ex. J at 9, 2. The documents also indicate, among other things, that Messina informed the medical staff that he uses heroin and methadone habitually; that plaintiff had been addicted to heroin for twenty-five years; and that his last dose of methadone had been on April 2, 1992. In summarizing the medical reports, Lewis states that "plaintiff's test results, physical examination and intake interview revealed no abnormalities in his physical condition, and no recent trauma of any type." Lewis Aff'd, P 5.
Plaintiff also alleges that the day following his examination, on April 5, 1992, he was continuing to suffer from "serious withdrawal symptoms, including vomiting and chest pains." Complaint, P 41. When he attended the medical clinic that day for those prisoners who were receiving methadone treatment, he again asked for the drug but was told that he could not receive any since he was not on "the list." Complaint, P 42. The complaint alleges that plaintiff's condition worsened over the two day period he was at Rikers Island. "His complexion turned ghostlike, and his chest pains became more severe." Complaint, P 43. In the complaint, Messina alleges that while on his way to court on April 7, 1992, he almost fainted and as a result the Center was contacted to confirm if Messina was in fact in its methadone treatment program. Complaint, P 43.
Based on the above events, plaintiff filed a complaint on July 1, 1993, pursuant to 42 U.S.C. § 1983 against defendants Officer Frederick Mazzeo ("Mazzeo") and four "John Doe" police officers in both their individual and official capacities for violation of Messina's Fourth Amendment rights; against Correction Officer Watson in his individual and official capacity for violation of Messina's First Amendment rights; and against "Doctor John Doe #5" in his individual and official capacity for failure to exercise the degree of care of a reasonably prudent doctor in similar circumstances. Winningham Decl., Ex. A. After stipulating to an extension of time for Mazzeo to respond to the complaint, Messina filed an Amended Complaint on October 7, 1993. Plaintiff added the City of New York as a defendant and asserted a cause of action against it for liability based on the common law doctrine of respondeat superior. Winningham Decl., Ex. C, PP 69-74. Plaintiff made reference to a notice of claim which was served on the City of New York on June 3, 1992. The notice of claim is attached to the Winningham Declaration as Exhibit N. It asserts that Messina was arrested and held with excessive force; arrested without probable cause; denied access to kosher food; and was wrongfully denied medication. In this second complaint, plaintiff alleged that "Doctor John Doe #5," while acting under color of state law, was "deliberately indifferent to plaintiff's serious medical needs . . . ." Winningham Decl., Ex. C, P 58. Messina also added pendent state law claims against the individual defendants for negligence and negligent infliction of emotional distress, and added a Fourteenth Amendment equal protection claim against Correction Officer Watson.
On October 22, 1993, a status conference was held before Magistrate Judge A. Simon Chrein of the Eastern District of New York. Winningham Decl., P 6. Magistrate Chrein ordered defendants to answer plaintiff's interrogatories which sought to identify the police officers, correction officers and medical personnel identified in the first two complaints as possible defendants. Winningham Decl., Ex. E. Magistrate Chrein wrote: "[Except for answering the interrogatories,] discovery is stayed pending resolution of a motion to dismiss which may be filed." Winningham Decl., Ex. E. Plaintiff was given leave to file an amended complaint no later than two weeks after the receipt of the identification interrogatories. Defendants were granted leave to move to dismiss or answer within 45 days after service of the amended complaint. Winningham Decl., Ex. E.
After receiving the City of New York's and Mazzeo's interrogatory responses on or about November 8, 1993, plaintiff served and filed his Second Amended Complaint on November 22, 1993, naming as individual defendants the persons listed in defendants' interrogatory responses. These individuals are: Mazzeo, John McGowan, Elander Williams, Marc Alvarez, Scott Harris, Lance Ho and John Keegan (the "defendant Police Officers"). These names were supplied in response to the interrogatory which sought the names of defendants John Does ## 1-4. Defendants had stated in their responses that these officers were on a tour of duty with defendant Mazzeo on April 2, 1992. The responses also stated that Correction Officer Watson was one "Thomas Watson" and that Dr. John Doe #5 was Dr. Ernel Lewis.
Defendants thereafter stipulated to the service of a Third Amended Complaint in order to correctly identify Correction Officer Watson as Harold Watson. This complaint -- the one presently before the court -- was filed on January 7, 1994. In the Complaint, plaintiff alleges seven claims for relief. In the second paragraph of the Complaint, defendants Mazzeo, et al., are defined collectively as "defendant Police Officers" employed by the New York City Police Department. The Complaint then alleges as follows:
a. The First Claim for Relief. In the first claim for relief, plaintiff alleges a violation of 42 U.S.C. § 1983 and the Fourth Amendment to the United States Constitution by defendant Police Officers who, acting under color of state law, allegedly "subjected plaintiff to unwarranted, unreasonable and excessive force and failed to intercede to prevent the use of such force despite realistic opportunities to do so . . . ." Complaint, P 48. The first claim for relief also asserts pendent state law claims for the emotional and physical pain and suffering allegedly caused by the defendant Police Officers.
b. The Second Claim for Relief. The second claim for relief alleges a violation of 42 U.S.C. § 1983 and the First Amendment to the United States Constitution by defendant Watson who, acting under color of state law, allegedly "denied plaintiff the free exercise of his religion, without any legitimate penological objective or compelling state interest . . . ." Complaint, P 51. The second claim for relief also alleges a pendent state law claim for emotional pain and suffering.
c. The Third Claim for Relief. The third claim for relief alleges a violation of 42 U.S.C. § 1983 and the Fourteenth Amendment to the United States Constitution by defendant Watson who, acting under color of state law, allegedly "denied plaintiff the equal protection of the law by intentionally and purposefully discriminating against plaintiff on the basis of his religion, without any compelling governmental interest . . . ." Complaint, P 54. The third claim for relief also alleges a pendent state law claim for emotional 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.
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.
Id. at 562 (citations omitted).
In their Reply Memorandum, however, defendants argue that Brook is inapplicable because there the defendants were alleged to have participated in every specific act of wrongful termination alleged by the plaintiff which, defendants contend, is not the case here. Defs.' Reply Mem. at 10. The defendants' reading of Brook, however, would require an arrestee to detail who delivered which specific blow in order to survive a Rule 12(b)(6) motion. The Federal Rules of Civil Procedure, as noted above, do not require such exactitude notwithstanding the Second Circuit's constant admonition that the personal involvement of a defendant is a strict prerequisite to the imposition of monetary liability for violations of 42 U.S.C. § 1983. Alfaro Motors, Inc. v. Ward, 814 F.2d 883 (2d Cir. 1987); Williams v. Smith, 781 F.2d 319 (2d Cir. 1986); Black v. United States, 534 F.2d 524, (2d Cir. 1976). Rather, in Brook, the complaint alleged that all individual defendants participated in the unconstitutional efforts and later delineated the means used. Here as well, Paragraphs 2 and 17-26 of the Complaint put all individual defendants on notice as to the nature of the allegations brought against them (use of excessive force in executing an arrest) and hence a Rule 12(b)(6) dismissal would be inappropriate.
As of this writing there are also disputed issues of fact regarding the personal involvement of these individual defendants. Neither Messina nor the defendant Police Officers submitted affidavits in connection with this motion and no depositions have yet been taken. Discovery, however, should uncover the exact role each police officer played or did not play in the arrest, and the court can entertain, at the proper time and if the discovery so warrants, a motion for summary judgment on the issue of personal involvement. However, based on the pleadings, the motion to ...