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
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.
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 ...