United States District Court, S.D. New York
June 9, 2005.
CHARLES B. McLAURIN Plaintiff,
NEW ROCHELLE POLICE OFFICERS; P. KORNAS; L. FALCONE; B. FAGAN; DET. D. LORNEGAN; LYNCH; LORE; FATTAH; MARTINEZ; KAMAU; CONCA; NAVARETTE; O. MORETTI; THE CITY OF NEW ROCHELLE; DOMINIC PROCOPIO; PATRICIA ANDERSON; TIMOTHY IDONI; MAYOR CITY OF NEW ROCHELLE; THE COUNTY OF WESTCHESTER; L. SPANO, WESTCHESTER COUNTY CLERK, Defendants.
The opinion of the court was delivered by: COLLEEN McMAHON, District Judge
DECISION AND ORDER GRANTING IN PART DEFENDANTS' MOTION FOR
JUDGMENT ON THE PLEADINGS AND GIVING PLAINTIFF NOTICE PURSUANT TO
RULE 56 OF THE CONVERSION OF OFFICER MORETTI'S MOTION TO A MOTION
FOR SUMMARY JUDGMENT
Pro se plaintiff, Charles B. McLaurin, brings an action
pursuant to 42 U.S.C. § 1983 alleging that the defendants, Police
Officer Peter Kornas ("Kornas"), Police Officer Louis Falcone
("Falcone"), Police Officer Brian Fagan ("Fagan"), Detective
David Lornegan ("Lornegan"), Police Officer John Lynch ("Lynch"),
Police Officer Frank Lore ("Lore"), Police Officer Askaree
Al-Fattaah ("Al-Fattaah"), Police Officer Edward Martinez
("Martinez"), Police Officer Sekou Len Kamau ("Kamau"), Police
Officer Daniel Conca ("Conca"), Police Officer Adrian Navarette
("Navarette"), and Police Officer Dina Lynn Moretti ("Morretti")
(collectively, "Officer Defendants"), and Dominic Procopio
("Procopio"), Mayor Timothy Idoni ("Idoni") and the City of New Rochelle, ("City Defendants") violated his
federally protected rights. Plaintiff's complaint is based upon
two separate incidents: (1) Plaintiff's arrest on August 6, 2001
on charges of assault; and (2) Plaintiff's arrest on September
28, 2002, on charges of criminal contempt for violation of an
order of protection. The plaintiff seeks recovery of an
unspecified amount of monetary damages.
For the reasons stated herein, the motion is granted as to
Officer Defendants Kornas, Falcone, Fagan, Lornegan, Lynch, Lore,
Al-Fattaah, Martinez, Kamau, Conca, Navarette, and City
Defendants Procopio, Idoni, and the City of New Rochelle. As to
Officer Morretti, the motion to dismiss is converted to a motion
for summary judgment and plaintiff has 45 days to submit
admissible evidence that raises a genuine issue of material fact
on the issue of probable cause.
The following allegations from the complaint are presumed true
for purposes of this motion. On August 6, 2001, after plaintiff's
shift at the New Rochelle Public Library (where he worked as a
clerk), an ex-girlfriend of his, Annette DeQuatro, came to his
apartment. When she arrived, at approximately 9:00 pm, DeQuatro
began yelling at plaintiff about a woman named Vivian that she
thought he was seeing. An argument ensued between DeQuatro and
plaintiff, and he asked her to cook dinner or leave. (Am. Cplt.
at 1.) Plaintiff alleges that DeQuatro refused to leave and
became physically violent. However, Plaintiff did not want to
call the police because he was on parole and would have to report
any police contact. (Am. Cplt. at 1.) Plaintiff was also the
subject of an order of protection, which was ordered by the court
on August 7. The complaint omits any mention of the order of
protection. Plaintiff states that when he walked toward DeQuatro she
attempted to kick him in the groin. Plaintiff alleges that "[he]
instinctively turned so that her kick missed the mark
simultaneously smacking her with [his] right hand." (Am. Cplt. at
1.) DeQuatro then called the New Rochelle Police Department. (Am.
Cplt. at 1.)
Approximately forty minutes after the call was placed, two New
Rochelle police officers, Officers Kornas and Falcone, arrived at
the plaintiff's apartment. Plaintiff told the police that the
person who had called them, "was behind the doorway and they
could talk with her in the hallway." (Am. Cplt. at 2.) Although
denied permission to enter, the police did enter plaintiff's home
and searched the premises.
When Plaintiff refused to extinguish his cigarette at Officer
Kornas' order, plaintiff states that a struggle ensued between
him, Kornas, and Falcone. (Am. Cplt. at 2.) Plaintiff alleges
that the police officers hit him "in the back of [his] head, neck
shoulders and back as hard as [they] could with a metal
nightstick." (Am. Cplt. at 2.) Plaintiff asserts that, when
struggling with the officers, Kornas slipped on a pile of
magazines and fell, dragging Plaintiff down with him. Plaintiff
was able to grab Officer Falcone's nightstick and disarm him.
This caused the police officers to radio for backup.
When the backup officers arrived (Defendants Lornegan and
Fagan, and four other unnamed officers), they told Plaintiff to
lie on his stomach. Plaintiff states that he complied. Plaintiff
claims that the unnamed officers "stood on [his] extremities
([his] ankles and [his] shoulders) while Detective David Lornegan
put his knee on the small of [plaintiff's] back, cuffed [his]
left wrist and then proceeded to pull [his] wrist to the back of
[his] head causing [plaintiff] to scream out in pain." (Am. Cplt.
at 3.) Plaintiff states that Lornegan pulled the handcuff so hard that it cut through his flesh to the bone. Additionally,
Plaintiff states that, while Lornegan pulled his head back,
Officer Brian Fagan sprayed a full can of mace into his face.
Plaintiff alleges that he then endured a few kicks to the ribs
before the handcuff was placed on his other wrist. (Am. Cplt. at
3). Plaintiff was subsequently placed under arrest and taken to
Plaintiff was indicted on three counts of assault in the second
degree; two counts of criminal possession of a weapon in the
third degree; one count of assault in the third degree; one count
of resisting arrest; and one count of obstructing governmental
administration in the second degree. (Indictment No. 01-1057.) A
jury found the plaintiff guilty of one count of assault in the
Plaintiff alleges that after his August 6 arrest, pursuant to
an alleged policy of New Rochelle's police to abuse men of color
who date white women, he was targeted by both the New Rochelle
Police Department and the City of New Rochelle. (Am. Cplt. at 3.)
He alleges the two groups sought to "destroy [him] economically,"
by causing (1) the seizure of his motorcycle from a New Rochelle
municipal lot, and its subsequent sale without notice to him, (2)
the loss of his job as a clerk at the New Rochelle Public
Library. (Am. Cplt. at 4.)
Plaintiff also alleges that he was subjected to a second
arrest, on "spurious charges," resulting from his sending e-mails
to Ms. DeQuatro. (Am. Cplt. at 5.) The Answer makes clear that
the charge was violation of the order of protection (Am. Ans. ¶
65) and the date of the arrest was September 28, 2002 (Am. Ans.
Third Aff. Defense, at 20). The charges resulting from this
arrest were dismissed on March 10, 2004, for failure to
prosecute. Plaintiff seeks an unspecified amount in damages against the
City and Officer Defendants for false arrest; abuse of process
and malicious prosecution. (Am. Cplt. at 9.) Additionally,
Plaintiff wants his job back, compensation for his motorcycle,
compensation for physical and emotional pain, and punitive
damages from these Defendants.
The Officer and City Defendants, having answered, moved for
judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c). The
Defendants argue that (1) the police officer defendants are
protected by qualified immunity; (2) Plaintiff's claims against
Dominic Procopio and Mayor Timothy Idoni must be dismissed for
failure to state a claim; (3) Plaintiff fails to state any claim
against the City of New Rochelle; and (4) all claims brought
under state law must be dismissed for failure to comply with the
relevant provisions of New York General Municipal Law.*fn1
Standard of Review
The standard of review on a motion for judgment on the
pleadings under Rule 12(c) is whether "the moving party is
entitled to judgment as a matter of law." Burns Int'l Sec.
Serv., Inc. v. Int'l Union, United Plant Guard Workers of Am.,
47 F.3d 14, 16 (2d Cir. 1995). This standard is the same as that
applicable to a motion to dismiss for failure to state a claim
pursuant to Rule 12(b)(6). Nat'l Ass'n of Pharm. Mfrs. v. Ayerst
Lab., 850 F.2d 904, 909 n. 2 (2d Cir. 1988). A court may grant a
Rule 12(b)(6) motion to dismiss for failure to state a claim only
"when it appears beyond doubt that the plaintiff can prove no set
of facts in support of his claim which would entitle him to
relief." Phillip v. University of Rochester, 316 F.3d 291, 293
(2d Cir. 2003) (quoting Conley v. Gibson, 355 U.S. 41, 45-46,
78 S.Ct. 99, 2 L. Ed. 2d 80 (1957)); Kaltman-Glasel v. Dooley,
156 F. Supp. 2d 225, 226 (D.Conn. 2001).
The function of the Court is not to weigh the evidence that may
be presented at trial. Instead, the Court must determine if the
claims are legally sufficient. Goldman v. Belden,
754 F.2d 1059, 1067 (2d Cir. 1985); see also King v. Simpson,
189 F.3d 284, 287 (2d Cir. 1999), drawing all reasonable inferences in
favor of the plaintiff and accepting the allegations of the
complaint as true. See Desiderio v. National Ass'n of Sec.
Dealers, Inc., 191 F.3d 198, 202 (2d Cir. 1999). Therefore, a
court should grant the motion only if the plaintiffs can prove no
set of facts in support of their claims that would entitle them
to relief. See Swierkiewicz v. Sorema, N.A., 534 U.S. 506,
122 S.Ct. 992, 998, 152 L. Ed. 2d 1 (2002); King v. Simpson,
189 F.3d 284, 286 (2d Cir. 1999). The issue is not whether the
plaintiff will ultimately prevail but whether the plaintiff is
entitled to offer evidence to support the claims. Villager Pond,
Inc. v. Town of Darien, 56 F.3d 375, 378 (2d Cir. 1995).
The Court is not permitted to consider material outside the
pleadings on such a motion. Friedl v. City of New York,
210 F.3d 79, 83 (2d Cir. 2000); Leonard F. v. Israel Discount Bank
of New York, 199 F.3d 99, 106 (2d Cir. 1999).
I. Qualified Immunity Of Officer Defendants
Qualified immunity shields a public official from civil
liability when his conduct does not violate a clearly established
statutory or constitutional right. Whether an official is
entitled to qualified immunity requires a two-part analysis. The
threshold question is whether, "Taken in the light most favorable
to the party asserting the injury, . . . the facts alleged show
the officer's conduct violated a constitutional right." Saucier v. Katz,
533 U.S. 194, 201, 121 S.Ct. 2151, 150 L. Ed. 2d 272 (2001).
Qualified immunity motions are decided by assuming the
plaintiff's version of the facts to be true, not by allowing
defendants to testify as to their version of what happened.
Stephenson v. Doe, 332 F.3d 68 (2d Cir. 2003). If the Court
determines that the officer's conduct did not violate a
constitutional right, the analysis ends. Saucier,
533 U.S. at 201. If the conduct does infringe on a constitutional right, the
Court must determine "whether the right was clearly established"
at the time it was allegedly infringed. Id.
Plaintiff alleges that excessive force was used to effect his
arrest on August 2001 arrest. He also alleges false arrest and
malicious prosecution with respect to the September 2002 arrest.
An individual's right to be shielded from the use of excessive
force, and not to be arrested falsely or prosecuted maliciously,
are well settled constitutional rights that were clearly
established at the time of the incidents in question. Defendants
do not argue otherwise.
A. August 6, 2001 Arrest
In connection with his August 6, 2001 arrest, plaintiff claims
that defendants Falcone, Fagan, Lornegan, Kornas, and Martinez,
as well as the four unnamed officer defendants, used excessive
force. In his amended complaint, plaintiff does name (in the
caption) seven additional police officers as defendants. He does
not, however, identify any of them as having been present in his
apartment on August 6, 2001 and he does not lodge any specific
factual charges against them. Therefore, I will analyze this
claim as against only the five defendants named above.
Claims of excessive force are to be judged under the Fourth
Amendment's `objective reasonableness' standard. Brosseau v.
Haugen, 125 S.Ct. 596, 598, 160 L. Ed. 2d 583 (2004). Proper
application requires careful attention to the facts and
circumstances of each particular case, including the severity of the crime at issue, whether the
suspect 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. See Tennessee v.
Garner, 471 U.S. 1, 8-9, 105 S.Ct. 1694, 1699-1700,
85 L. Ed. 2d 1 (the question is "whether the totality of the circumstances
justifie[s] a particular sort of . . . seizure"); see also
Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 1872,
104 L. Ed. 2d 443 (1989).
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. See Scott v. United States, 436 U.S. 128,
137-139, 98 S.Ct. 1717, 1723-1724, 56 L. Ed. 2d 168 (1978). In
analyzing the reasonableness of a particular search or seizure,
"it is imperative that the facts be judged against an objective
standard." Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1879
"Reasonableness of particular use of force must be judged from
perspective of [a] reasonable officer on the scene, and the
calculus of reasonableness must allow for [the] fact that police
officers are often forced to make split-second judgments, in
circumstances that are tense, uncertain and rapidly evolving,
about amount of force that is necessary in a particular
situation." Graham, 490 U.S. at 386 (internal quotes omitted).
A police officer is entitled to use reasonable and necessary
force to effect an arrest, and to use reasonable and necessary
force to protect himself, his fellow officers and others when a
person becomes violent in the course of an arrest. Id. at 396.
For purposes of a claim for civil damages resulting from an
officer's performance of discretionary functions, an officer's
actions are objectively unreasonable when no officer of reasonable competence could have made the same choice in similar
circumstances. Lennon v. Miller, 66 F.3d 416, 420-21 (2d Cir.
1. Officer Kornas and Officer Falcone
Officer Kornas and Officer Falcone assert qualified immunity
against plaintiff's claims that the officers used reasonable
force in effecting plaintiff's arrest.
Even viewing the facts in a light most favorable to plaintiff,
it is undisputed that he did not cooperate with Officers Kornas
and Falcone when they sought to arrest him. Plaintiff states in
his complaint that he demanded the officers leave his apartment,
refused to extinguish his cigarette when ordered to do so by
Officer Falcone, participated in an altercation with the
officers, grabbed for their batons, and grabbed an officer in the
groin. Plaintiff even admits that he disarmed one of the police
officers by taking away his baton.
Given these admissions by plaintiff, I cannot say that the
officers' actions were "objectively unreasonable" in light of the
facts and circumstances confronting them. And, insofar as is
relevant on their motion to dismiss on the ground of qualitative
immunity, I certainly cannot conclude that no reasonable officer
confronted with plaintiff's admitted behavior would have
responded in the way that Falcone and Kornas did. The officers
responded to a domestic violence complaint. Plaintiff refused to
cooperate with them from the moment of their arrival. By grabbing
for the officers' batons, plaintiff put the officers in a
vulnerable situation. Kornas and Falcone needed to radio for
backup because the situation became too much for them to handle
alone. In the circumstances, reasonable police officers might
well conclude that force as described in the Amended Complaint
(which includes hitting the plaintiff about the neck and shoulders and wrist with a nightstick and
wrestling him to the ground) was necessary in order to effect the
arrest and protect themselves.
Therefore, Officers Kornas and Falcone are entitled to
2. Detective Lornegan
Plaintiff alleges that Detective Lornegan arrived at the scene
after receiving a call for backup from Officers Kornas and
Falcone. Plaintiff states that he immediately complied with
Lornegan's order to lie on his stomach and place his hands behind
his back. (Am. Cplt. at 3.)*fn2 He alleges that, instead of
handcuffing him, four unarmed officers stood on his extremities
while Lornegan put his knee in his back, cuffed his left wrist
and pulled his wrist to the back of his head. (Am. Cplt. at 3.)
Plaintiff claims that Lornegan pulled hard on the handcuffs,
causing it to cut through his flesh to the bone. Plaintiff
alleges that while he was on the ground and after his left hand
was cuffed (but not his right hand), Lornegan pulled his head up
by the hair while another officer sprayed a can of mace directly
into his face. (Id.) Plaintiff claims that he was then also
kicked in the ribs before the handcuffs were placed on his other
Determining whether the force used during plaintiff's arrest
was "reasonable," for purposes of his § 1983 claim, requires
balancing the nature and quality of the intrusion on plaintiff's
Fourth Amendment interests against the countervailing
governmental interests at stake; this standard evaluates the
reasonableness of the force used by the police considering the
totality of circumstances faced by the officers on the scene.
Lennon, supra, 66 F.3d at 425. In view of the relevant factors including: "the severity of the
crime at issue, whether the suspect poses an immediate threat to
the safety of the officers or others, and whether he is actively
resisting arrest," (Saucier, supra, 533 U.S. at 201),
Lornegan's use of force was justified.
Although plaintiff alleges that he complied with the Detective
Lornegan's orders to lie on his stomach and put his hands behind
his back, no reasonable police officer could assume that
plaintiff was not still a threat to further resist arrest and/or
threaten the safety of the officers. See, e.g., Mills v.
Fenger, 98 Civ. 0034, 2003 WL 251953, at *3 (W.D.N.Y. Jan. 3,
2003). Just moments before, plaintiff had wrestled the baton away
from one officer and grabbed the groin of another. (Am. Cplt. at
In Mills v. Fenger, the officers arresting a suspect in a
bank robbery found him sitting on a bed, and when the suspect
stood up, the officers picked him up and slammed him to the
ground. Id. The use of force was deemed reasonable and
necessary because the officers had reason to believe that the
suspect might pose a threat to them either through the use of a
weapon or physical force. Id. The court found that the
officer's actions throwing the suspect to the floor was
"necessary and commensurate with the need to quickly quell the
threat posed by [the suspect]." Id.
In Sassower v. City of White Plains, 89 Civ. 1267, 1995 WL
222206 (S.D.N.Y. Apr. 13, 1995), the court found that where
plaintiff had resisted arrest, plaintiff's allegations that the
officers "pulled her hands behind her back and handcuffed her in
an extremely painful manner, and then shoved and pushed her into
a police car," constituted a relatively minimal level of force.
Detective Lornegan was at the scene in response to a call for
backup after plaintiff aggressively resisted arrest. Lornegan
entered a situation that was described by plaintiff as a "melee" (Pl. Dep. at 75:22), and his purpose for being there was
to aid the officers in subduing plaintiff and effecting his
According to plaintiff, at the time that the Lornegan pulled
back on the handcuff on plaintiff's left wrist and then pulled
plaintiff's head back so that officer Fagan could spray him with
mace, plaintiff was not yet fully handcuffed. Plaintiff had
already shown himself to be a possible threat to the officer's
safety and he had resisted arrest. It was only after plaintiff
was sprayed with mace that Officer Lornegan handcuffed his right
wrist. (Cplt. at 3). Based on the situation and circumstances
pleaded by plaintiff, the actions taken by Detective Lornegan
were "objectively reasonable." Under these circumstances, I could
not conclude that no reasonable officer confronted with
plaintiff's admitted behavior would have taken the same steps to
ensure that plaintiff was arrested without further incident.
The degree of force allegedly used by Lornegan was justified
and he is therefore entitled to qualified immunity.
3. Officer Fagan
The only allegation pleaded against Officer Fagan in
plaintiff's complaint and deposition is that he sprayed mace in
plaintiff's face when other officers were effectuating the
arrest. (Dep. at 75:22.) Under the excessive force standard, the
question is whether Officer Fagan's actions are "objectively
reasonable" in light of the facts and circumstances confronting
him, without regard to his underlying intent or motivation. See
Scott, supra, 436 U.S. at 137-39.
Fagan arrived as a responding officer to Kornas and Falcone's
call for backup resulting from a situation that the plaintiff
referred to as a "melee." (Dep. 64:12-15.) According to the facts
pleaded by plaintiff, plaintiff was "asked to lay on [his]
stomach and place his hands behind his back. [He] immediately complied but instead of handcuffing
[plaintiff] . . . officers stood on his . . . ankles and
shoulders . . . [and] Lonergan put his knee in the small of
[plaintiff's] back, cuffed [his] left wrist then proceeded to
pull his wrist to the back of [his] head . . . Lonergan pulled
harder on the handcuff . . . [and] also grabbed [plaintiff's]
hair with his other hand, wrenching [his] neck back while another
officer, Brian Fagan, sprayed a full can of mace into
[plaintiff's] face which was already bleeding . . . after a few
indiscriminate kicks to his ribs [Lornegan] placed the cuff on
[plaintiff's] other wrist." (Am. Cplt. at 3.)
Lornegan had only placed the handcuffs on plaintiff's left
wrist when Fagan sprayed him with mace, thus plaintiff was not
yet fully handcuffed. Considering the fact that plaintiff had
already been physically aggressive with the police officers and
resisted arrest, Fagan's use of mace to subdue and incapacitate
plaintiff was justified. It was an "objectionably reasonable"
method of aiding Lornegan in effecting plaintiff's arrest without
the threat of further physical aggression or resistance by
plaintiff. Mills, supra, 2003 WL 251953, at *3 n. 13. Thus,
Officer Fagan is entitled to qualified immunity.
In addition, because plaintiff has not alleged any injuries
from being spayed with mace aside from the immediate discomfort
the allegation against Fagan is not actionable. See id.;
see also Murphy v. Neuberger, 94 Civ. 7421, 1996 WL 442797,
at *8 (S.D.N.Y. 1996) (granting motion to dismiss where plaintiff
did not allege that he was injured as a result of defendant's
allegedly excessive conduct).
For these reasons, the claims against Officer Fagan are
4. Officer Martinez Even though Martinez did not physically participate in
plaintiff's arrest, he could nonetheless be liable under § 1983
if he failed to intervene in a situation where excessive force
was being employed. 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. See
O'Neill v. Krzeminski, 839 F.2d 9, 11 (2d Cir. 1988). "An
officer who fails to intercede is liable for the preventable harm
caused by the actions of the other officers where that officer
observes or has reason to know: (1) that excessive force is being
used, see O'Neill, 839 F.2d at 11-12; (2) that a citizen has
been unjustifiably arrested, see Gagnon v. Ball, 696 F.2d 17,
21 (2d Cir. 1982); or (3) that any constitutional violation has
been committed by a law enforcement official, see O'Neill,
839 F.2d at 11." Anderson v. Branen, 17 F.3d 552, 557 (2d Cir.
1994). Liability will attach if the officer had a realistic
opportunity to intervene to prevent the harm from occurring.
See O'Neill, 839 F.2d at 11-12.
However, "[a] police officer cannot be held liable in damages
for failure to intercede unless such failure permitted fellow
officers to violate a suspect's `clearly established statutory or
constitutional rights' of which a reasonable person would have
known." Ricciuti v. N.Y.C. Transit Authority, 124 F.3d 123, 129
(2d Cir. 1997) (quoting Harlow v. Fitzgerald, 457 U.S. 800,
818, 102 S.Ct. 2727, 2738, 73, L. Ed. 2d. 396 (1982).
Plaintiff alleges that Martinez witnessed other officers
(namely, Lornegan and Fagan) performing acts that violated the
constitutional prohibition against the use of excessive force. Plaintiff alleges in his complaint that he, ". . . called to
Officer Martinez, who [he] knew from the library for some help."
He states that Officer Martinez replied, "I can't help you,
you've crossed the line." (Am. Cplt. at 3.)
An officer is entitled to qualified immunity unless his failure
to intercede was under "circumstances making it objectively
unreasonable for him to believe that his fellow officers' conduct
did not violate those rights." Id. (citing Anderson v.
Creighton, 483 U.S. 635, 641, 107 S.Ct. 3034, 3039-40,
97 L. Ed. 2d 523 (1991)).
Because the other officers did not use excessive force (see
supra), Officer Martinez had no duty to intercede. See, e.g.,
Santana v. City of Hartford, 283 F.Supp.2d 720, 728 (D.Conn.
2003). Moreover, even if the other officers' actions had amounted
to the use of excessive force, it would have been reasonable for
Officer Martinez to believe that their actions were in fact
lawful as a means of subduing plaintiff and effectuating his
arrest thus entitling him to qualified immunity. See
Ricciuti, supra, 124 F.3d at 129.
For these reasons, the claim against Officer Martinez is
5. Officers Lynch, Lore, Conca, Al-Fattaah, Kamau, Navarette
"Personal involvement" of a named defendant in a § 1983 action
of alleged constitutional depravation is a prerequisite to an
award of damages. Wright v. Smith, 21 F.3d 496, 501 (2d Cir.
1994). Under § 1983, only a defendant who personally subjects, or
causes to be subjected, any person to the deprivation of any
federal right will be held liable. 42 U.S.C. § 1983.
Plaintiff does not plead any facts tending to show personal
responsibility of Officers Lynch, Lore, Conca, Al-Fattaah, Kamau
or Navarette. Indeed, he does not even identify who they are. All he has done is add them to the caption of his
pleading. He asserts no factual allegations against them.
Plaintiff already had one opportunity provided by Chief Judge
Mukasey to amend his complaint in order to allege facts tending
to show personal involvement by the various officers. This court
even allowed him to file that amended pleading out of time. The
amended pleading fails to cure this defect. This action is
dismissed against Officers Lynch, Lore, Conca, Al-Fattaah, Kamau,
Navarette because plaintiff has not alleged anything against
B. September 28, 2002 Arrest
An officer is entitled to qualified immunity from suit for
damages on a claim for arrest 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." Golino v. City of
New Haven, 950 F.2d 864, 870 (2d Cir. 1991), cert. denied sub
nom., Lillis v. Golino, 505 U.S. 1221, 112 S.Ct. 3032,
120 L.Ed. 2d 902 (1992). Probable cause exists "when the arresting
officer has knowledge or reasonably trustworthy information
sufficient to warrant a person of reasonable caution in the
belief that an offense has been committed by the person to be
arrested." Singer v. Fulton County Sheriff, 63 F.3d 110, 119
(2d Cir. 1995) (citation and internal quotation marks omitted).
1. Officer Moretti
The complaint does not specifically allege what Officer
Moretti's role was in this matter. Officer Moretti was the
seventh officer added as a defendant to the caption of the
amended complaint, but without any indication in the amended
complaint that she was even present in his apartment on August 6, 2001 or any specific factual charges
against her. Therefore, I could simply rule that the amended
complaint does not state any claim against her.
However, in support of her motion for judgment on the
pleadings, Officer Moretti submitted an affidavit that supplies
much, if not all, of the information that is missing from the
complaint. Officer Moretti was the arresting officer on September
28, 2002. Officer Moretti contends that she is entitled to
qualified immunity in connection with that arrest.
Officer Moretti's motion is accompanied by an affidavit, in
which she indicates that she arrested plaintiff based on a sworn
statement by Annette DeQuatro. In that statement, DeQuatro
allegedly claimed that plaintiff had been harassing her with
emails and phone calls, all in violation of an order of
protection issued August 7, 2001 (right after the August 6
arrest). If that is true, then Officer Moretti is entitled, not
to qualified immunity, but rather to summary judgment dismissing
the complaint, because she had probable cause to effect the
arrest and there was no constitutional violation.
Plaintiff argues that the evidence initially submitted by
Officer Moretti in support of her motion does not establish
anything about probable cause, because Ms. DeQuatro did not swear
out her statement until one half hour after he was arrested.
Moretti concedes that this is correct (which of course makes her
original argument wrong as a matter of fact). However, in reply,
Officer Moretti submits additional evidence concerning the
information that was in her possession at the time of the arrest.
She avers that she had already spoken to DeQuatro before the
arrest, and that she had seen the e-mails that on their face
appeared to be sent by the plaintiff.
Unfortunately, I cannot resolve this issue on a motion for
judgment on the pleadings, because I cannot consider this
extraneous matter in connection with the motion. However, I can and do convert this motion to a motion for summary judgment
pursuant to Fed.R.Civ.P. 56, because it appears that Officer
Moretti may well be entitled to dismissal of this case for want
of any constitutional violation.
When a court converts a motion to dismiss (or for judgment on
the pleadings) to a motion for summary judgment, the party
opposing the motion must be advised of his duty to controvert the
motion with admissible evidence that defeats the motion by
raising a genuine issue of material fact. Calcutti v. SBU,
Inc., 273 F. Supp.2d 488 (S.D.N.Y. 2003); Chambers v. Time
Warner, Inc., 282 F.3d 147, 154 (2d Cir. 2002). I so advise the
plaintiff, and give him 45 days to submit admissible evidence
(not conjecture or surmise or conclusory allegations on his part)
sufficient to raise a genuine issue of material fact on the issue
of probable cause. In conjunction therewith, I note the
(1) Probable cause need not be predicated on a sworn statement.
An officer has probable cause to arrest when she has "knowledge
or reasonably trustworthy information sufficient to warrant a
person of reasonable caution in the belief that an offense has
been committed by the person to be arrested." O'Neill v. Town of
Babylon, 986 F.2d 646, 650 (2d Cir. 1993); Weyant v. Okst,
101 F.3d 845, 851 (2d Cir. 1996). A complaint from a civilian witness
is sufficient. Here, Moretti's affidavit establishes that, prior
to her arrest of plaintiff, DeQuatro showed her the emails
allegedly sent from plaintiff and explained that she felt that
her family was being threatened. Officer Moretti also avers to
her knowledge of the existence of two orders of protection
against plaintiff, alleged phone and email correspondence, and a
previous assault conviction. All this information is relevant to
an assessment of probable cause.
(2) Plaintiff, quoting the text of the e-mails he sent, argues
that they were far from threatening. He also argues that there was no proof that the
e-mails were actually sent by him, contending (albeit without
evidentiary support) that an "email header can be altered by a
motivated individual." (See Pl. Response). While these
arguments might be relevant at a trial on the merits of the
criminal contempt charge, none of this would affect the
reasonableness of the Officer's conclusion that he had probable
cause to arrest plaintiff. The e-mail header on the e-mails shown
by DeQuatro to Moretti identified plaintiff as the sender.
Moretti was not required to eliminate any probability that the
header was wrong, or to investigate whether the email header had
been "altered by a motivated individual," before arresting
plaintiff. See Pl. Response, dated Feb. 11, 2005.
Frankly, I am hard-pressed to see what evidence plaintiff could
submit that would raise a genuine issue of fact. However, I am
required by law to give him that opportunity.
II. The Claims Against Dominic Procopio And Mayor Timothy
Idoni Are Dismissed For Failure To State A Claim Upon Which
Relief Can Be Granted.
"In order to state a cognizable claim under Section 1983,
[plaintiff] must allege conduct under color of state law that
deprived him of rights secured by the Constitution or laws of the
United States." Katz v. Klehammer, 902 F.2d 204, 206; see
also Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908,
68 L.Ed. 2d 420 (1981). Plaintiff's complaint alleges that named
defendants conspired to violate his civil rights. "Personal
involvement" of a named defendant in a § 1983 action of alleged
constitutional depravation is a prerequisite to an award of
damages. Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994).
Under § 1983 only a defendant who personally subjects, or causes
to be subjected, any person to the deprivation of any federal
right will be held liable. 42 U.S.C. § 1983. A showing of some
personal responsibility is necessary. Id. The four ways in which a defendant may be found to have been
"personally involved" in a constitutional deprivation under §
1983 include: (1) direct participation in the infraction; (2)
failure to remedy a wrong after learning of the violation; (3)
creating or allowing a policy to continue under which the
violation occurred; or (4) having been grossly negligent in
managing the subordinates who caused the unlawful condition or
event. Williams v. Smith, 781 F.2d 319 (2d Cir. 1986). The
allegation that a named defendant merely had the right to
control, without any allegation that defendant exerted such
control is not sufficient to support a § 1983 action. Anderson
v. Sullivan, 702 F. Supp. 424 (S.D.N.Y. 1988).
A. Conspiracy to Violate Plaintiff's Rights
The plaintiff's amended complaint alleges a conspiracy by the
City of New Rochelle and the New Rochelle Police Department. The
plaintiff asserts the two groups are "seeking to destroy [him]
economically." (Am. Cplt. at 4.) He states that there is an
unstated policy in the City of New Rochelle that "anyone that
attack[s] a police officer `crosses the line' and is unfit to
live in the City and every means necessary may be employed to
accomplish said individual's removal from the City." (Am. Cplt.
at 4.) In addition, plaintiff alleges a policy by the two groups
that "allow[s] or encourage[s] police officers to physically,
mentally and legally abuse men of color that date European
(white) women." (Am. Cplt. at 3.) Plaintiff also alleges, in
conclusory fashion, that Dominic Procopio, the Chairman of the
New Rochelle Civil Service Commission and Timothy Idoni, the
Mayor of the City of New Rochelle, conspired with defendant
Patricia Anderson, an employee of the New Rochelle Public
Library,*fn3 to effect the wrongful termination of his
employment as a clerk at the New Rochelle Public Library. 1. Dominic Procopio
The plaintiff alleges, in conclusory fashion, that Procopio
(acting with Patricia Anderson) caused his job as a clerk at the
New Rochelle Public Library to be taken from him "without a
hearing and without cause." (Am. Cplt. at 4.) Complaints
containing only conclusory, vague or general allegation of a
conspiracy to deprive a person of constitutional rights will be
dismissed. Ostrer v. Aronwald, 567 F.2d 551, 553 (2d Cir.
1977). "Diffuse and expansive allegations are insufficient,
unless amplified by specific instances of misconduct." Id.
Plaintiff does not plead any facts tending to show that
Procopio was "personally involved" in any conspiracy to violate
his rights. It appears that plaintiff named Procopio solely based
on his position as head of the Civil Service Commission.
Plaintiff's claim rests on his assertion that Procopio violated
his due process rights by failing to schedule a hearing regarding
his discharge from employment. (Am. Cplt. at 4.)
The State of New York provides a dismissed municipal employee
the opportunity to challenge his termination as arbitrary and
capricious pursuant to CPLR Article 78. The availability of
Article 78 proceedings under New York law bars a municipal
employee from maintaining § 1983 procedural due process claim.
Ryan v. Carroll, 67 F. Supp. 2d 356, 361 (S.D.N.Y. 1999). See
also 42 U.S.C. § 1983; N.Y. McKinney's CPLR Art. 7801. The
availability of adequate post-deprivation procedure pursuant to
Article 78 means that there has been no constitutional violation.
Ryan, 67 F. Supp. 2d at 360; see also Parratt v. Taylor,
451 U.S. 527; HANAC v. City of New York, 101 F.3d 877, 882 (2d
The plaintiff has not alleged that he timely pursued a remedy
pursuant to Article 78 against Procopio for the loss of his job
at the library. Nor could he timely allege his Article 78 claim now, since more than four months passed between the date of
the adverse employment action and the filing of this action. The
failure to pursue an available Article 78 proceeding under New
York law bars the plaintiff, a municipal employee, from
succeeding on his § 1983 due process claim. Ryan,
67 F. Supp. 2d at 361.
Thus, Procopio's motion for judgment on the pleadings is
granted and the claim against him is dismissed with prejudice.
2. Mayor Idoni
Plaintiff alleges, in conclusory fashion, that Mayor Idoni was
also part of the alleged conspiracy based on an alleged
communication he had with an unnamed former coworker of
plaintiff's. Plaintiff asserts that he was "told by one of [his]
former coworkers that the Mayor (Idoni) himself had lobbied Ms.
Anderson and the Library Board to prevent [his] return despite
the fact that [he] was very well received by the patrons." (Am.
Cplt. & 6.) This is the only reference plaintiff makes to Mayor
Idoni in his complaint.
As noted above, complaints containing only conclusory, vague,
or general allegations of a conspiracy to deprive a person of
constitutional rights will be dismissed. Ostrer,
567 F.2d at 553 ("Diffuse and expansive allegations are insufficient, unless
amplified by specific instances of misconduct.").
Plaintiff has already had one opportunity provided by Chief
Judge Mukasey to amend his complaint. Plaintiff's amended
complaint however, fails to state a claim upon which relief can
be granted as against Mayor Idoni. The unattributed statement
quoted above assuming it to be true does not allege that
plaintiff's civil rights were violated. There is no allegation in
the complaint that Mayor Idoni acted out of racial animus toward
plaintiff and there is no allegation of any fact tending to show that Mayor Idoni
harbored any racial animus against plaintiff. His claim against
Mayor Idoni is dismissed with prejudice.
III. The Claim Against The City Of New Rochelle Is Dismissed
For Failure To State A Cause Of Action
To maintain a Section 1983 action against a municipal
defendant, the plaintiff must allege the existence of a municipal
policy, and that his injuries are caused by that policy. Monell
v. Dept. of Soc. Services of the City of New York, 436 U.S. 658,
690, 98 S.Ct. 2018, 56 L. Ed. 2d 611 (1978). A plaintiff may
assert the existence of a municipal policy in one of four ways:
(1) a formal policy officially endorsed by the municipality; (2)
actions taken by the government officials responsible for
establishing municipal policies related to the particular
deprivation in question; (3) a practice so consistent and
widespread that it constitutes a custom or usage sufficient to
impute constructive knowledge of the practice to policymaking
officials; or (4) a failure by policy makers to train or
supervise subordinates. Id.
Plaintiff's amended complaint alleges a conspiracy by the City
of New Rochelle and New Rochelle Police Department. Plaintiff
asserts that the two groups are "seeking to destroy [him]
economically." (Am. Cplt. at 4.) He states that there is an
"unstated policy of the City of New Rochelle, anyone that attacks
a police officer `crosses the line' and is unfit to live in the
City and every means necessary may be employed to accomplish said
individual's removal from the City." (Am. Cplt. at 4.) In
addition, the plaintiff alleges a policy by the two groups that
"allow[s] or encourage[s] police officers to physically, mentally
and legally abuse men of color that date European (white) women."
(Am. Cplt. at 4.) The § 1983 claims here alleged against the remaining individual
defendants are false arrest (which may yet be dismissed on
motion) and use of excessive force. A municipality may not be
held liable in a § 1983 action for the conduct of an employee
solely on the basis of respondeat superior. Monell v. Department
of Social Services, 436 U.S. 658, 694, 98 S.Ct. 2018, 2037,
56 L. Ed. 2d 611 (1978). In order to establish the liability of such
defendants in an action under § 1983 for unconstitutional acts by
such employees, a plaintiff must show that the violation of his
constitutional rights resulted from a municipal custom or policy.
See, e.g., Pembaur v. City of Cincinnati, 475 U.S. 469,
478-79, 106 S.Ct. 1292, 1297-98, 89 L. Ed. 2d 452 (1986); City
of Oklahoma City v. Tuttle, 471 U.S. 808, 818, 105 S.Ct. 2427,
2433, 85 L. Ed. 2d 791 (1985); Monell v. Department of Social
Services, 436 U.S. at 690, 694, 98 S.Ct. at 2035, 2037; Fiacco
v. City of Rensselaer, 783 F.2d 319, 326 (2d Cir. 1986);
Vippolis v. Village of Haverstraw, 768 F.2d 40, 44 (2d Cir.
1985), cert. denied, 480 U.S. 916, 107 S.Ct. 1369,
94 L. Ed. 2d 685 (1987). Although the plaintiff need not show that the
municipality had an explicitly stated rule or regulation (see
Villante v. Department of Corrections, 786 F.2d 516, 519 (2d
Cir. 1986)), 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 (see, e.g., City of
Canton v. Harris, 489 U.S. 378, 387, 109 S.Ct. 1197, 1203,
103 L. Ed. 2d 412 (1989)).
A Monell claim against a municipality requires, as a
predicate, an allegation of a constitutional violation against
some individual actor. Monell v. Dep't of Soc. Services of the
City of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L. Ed. 2d 611
(1978). Plaintiff's claim predicated on some "unstated policy" of
causing economic duress to individuals who "cross the line" with
police is predicated on the loss of his job at the library. Since
he has not sufficiently alleged any constitutional violation based on the loss of his
job, his Monell claim, based on some "unstated" economic duress
policy of the City of New Rochelle, must also be dismissed. His
claim based on a policy of abusing men who engage in interracial
dating is at least arguably connected to his claim for use of
excessive force, and since that claim survives (for the moment)
against three of the Officer Defendants, I must analyze whether
plaintiff has pleaded a Monell claim on this ground.
It is clear from the complaint that plaintiff is not relying on
any formally adopted policy of the City or the Department. He is
talking about an "unstated" policy. Moreover, he does not allege
any facts tending to show that this "unstated" policy relating to
the abuse of black men who date white women resulted from the
acts of any official policy-maker under State law. He does not
even identify who the official policy-maker might be (his lone
allegation against Mayor Idoni has to do with the loss of his
job, not with the use of excessive force).
Viewing the allegations of the complaint most favorably to the
plaintiff, it appears that he is trying to plead the existence of
a widespread practice of abusing men of color who date white
women. However, he does so only in conclusory fashion, without
any supporting factual allegations except those relating to his
own situation. If indeed this is the sort of "policy" on which
plaintiff relies, his complaint cannot survive New Rochelle's
motion to dismiss, because one man's experience does not make a
policy. A single incident alleged in a complaint, especially if
it involved only actors below the policy-making level, generally
does not suffice to show a municipal policy or custom. Ricciuti
v. N.Y.C. Transit Auth., 941 F.2d 119, 123 (2d Cir. 1991).
Last, although the plaintiff does not specifically plead the
defendant's failure to train, here too, the fact that the complaint contains allegations only
about plaintiff's experience is fatal to his claim. An allegation
that a municipality was "deliberately indifferent" to the need to
train, monitor, or supervise its employees, without alleging any
facts beyond the specific instance giving rise to his complaint,
generally fails to adequately to plead a custom or policy on the
part of the municipality. See Dwares v. City of New York,
985 F.2d 94, 100 (2d Cir. 1993); Sarus v. Rotundo, 831 F.2d 397,
402 (2d Cir. 1987).
In the case at bar, plaintiff has identified two incidents that
he alleges rise to a constitutional deprivation: the use of force
in connection with his first arrest, and the fact that he was
arrested without probable cause on the second occasion. Plaintiff
does not plead any facts relying on his own experience or that of
others that suggests that either the alleged use of excessive
force or his September 2002 arrest were the result of a failure
to properly train. Therefore, his allegations are insufficient to
establish a policy, custom or practice on the part of the City of
New Rochelle or the New Rochelle Police Department under
The City of New Rochelle's motion to dismiss is granted.
IV. Plaintiff's State Law Claims Are Dismissed For Failure To
Comply With General Municipal Law § 50-e
Plaintiff's state law tort claims are governed by New York
General Municipal Law § 50i(1), which provides, in relevant part:
No action . . . shall be prosecuted or maintained
against a city, county, town, village . . . for
personal injury . . . alleged to have been sustained
by reason of the negligence or wrongful act of such
city, county, town, village . . . unless, (a) a
notice of claim shall have been made and served upon
the city, county, town, village . . . in compliance
with section fifty-e of this chapter, . . . and (c)
the action or special proceeding shall be commenced
within one year and ninety days after the happening
of the event upon which the claim is based. . . . The provisions of N.Y. Gen. Mun. Law § 50-i apply not only to
claims against municipalities, but also to suits against
"officer[s], agent[s] or employee[s]" whose conduct caused the
alleged injury. Gonzalez v. City of New York, 94 Civ. 7377,
1996 WL 227824, at *2 (S.D.N.Y. May 3, 1996), De Gradi v. Coney
Island Medical Group, P.C., 172 A.D.2d 582, 583,
568 N.Y.S.2d 412, 413 (2d Dep't 1991).
N.Y. Gen Mun. Law 50-e, referenced in N.Y. Gen Mun. Law
50(1)(c), requires that a plaintiff must file a notice of claim
prior to commencement of an action against a municipality, and
must serve the notice of claim within 90 days after the claim
arises. The notice of claim requirements apply equally to state
tort claims brought as pendent claims in a federal civil rights
action. Fincher v. The County of Westchester, 979 F. Supp. 989,
1002 (S.D.N.Y. 1997). A plaintiff's failure to comply with the
mandatory New York statutory notice-of-claim requirements
generally results in dismissal of his claims. Hyde v. Arresting
Officer Caputo, 98 Civ. 6722, 2001 WL 521699, at *4 (E.D.N.Y.
May 11, 2001). Defendants contend that plaintiff never filed a
notice of claim in compliance with N.Y. Gen. Mun. Law § 50-e, as
required by N.Y. Gen. Mun. Law § 50-i(1)(c). Plaintiff does not
dispute this assertion. Therefore, plaintiff's state law claims
Defendants' motion for judgment on the pleadings is granted
with prejudice as to the claims against Officer Defendants'
Kornas, Falcone, Lornegan, Fagan, and Martinez, and City
Defendants' Procopio, Idoni and the City of New Rochelle. The
claims against Officer Defendants' Lynch, Lore, Concoa,
Al-Fattah, Kamau, and Navarette are dismissed without prejudice.
Officer Moretti's motion for judgment on the pleadings is
converted to a motion for This constitutes the decision and order of the Court.