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June 9, 2005.


The opinion of the court was delivered by: COLLEEN McMAHON, District Judge

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 the hospital.

  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 third degree.

  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 (1968).

  "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. 1995).

  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 ...

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