The opinion of the court was delivered by: Neal P. McCurn, Senior District Judge
Memorandum, Decision and Order
Presently before the court in this civil rights action are two dispositive motions. Defendants Onondaga County Sheriff's Office, Onondaga County Justice Center and John Does (collectively, "the County Defendants") move to dismiss the complaint filed by plaintiff, Wlodzimierz J. Dzwonczyk ("Plaintiff") for failure to state claims against them upon which relief may be granted pursuant to Fed. R. Civ. P. 12(b)(6). See Dkt. No. 16. Defendants Syracuse City Police Department ("SPD"); Gary Miguel, Chief of Police, Syracuse City Police Department ("Miguel"); and John Does (collectively, "the City Defendants") move for judgment on the pleadings in their favor pursuant to Fed. R. Civ. P. 12(c). See Dkt. No. 37. Plaintiff opposes both motions. No reply having been filed by the County Defendants, and the City Defendants having informed the court of their intent not to reply, both motions are fully briefed. Decision regarding the motions is on the papers submitted, without oral argument.
II. Procedural Background
Plaintiff, appearing pro se, filed a complaint against the County Defendants and City Defendants as well as defendants, Syracuse Housing Authority Security and John Doe, Syracuse Housing Authority Detective (collectively, "SHA Defendants"), alleging the violation of his rights under the Fourth, Fifth and Fourteenth Amendments to the United States Constitution as predicates for civil rights claims pursuant to 42 U.S.C. § 1983, as well as several New York common law tort claims, stemming from events surrounding Plaintiff's arrest and detention for aggravated harassment on or about May 23, 2008. The City Defendants and SHA Defendants thereafter answered the complaint, while the County Defendants filed a pre-answer motion to dismiss. The City Defendants' motion for judgment on the pleadings followed.
The standard to be applied when deciding a motion for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c) is identical to that of a motion to dismiss for failure to state claims upon which relief may be granted pursuant to Fed. R. Civ. P. 12(b)(6). See Sheppard v. Beerman, 18 F.3d 147, 150 (2d Cir. 1994). When deciding a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), the court must accept the allegations of fact in the complaint as true, drawing all reasonable inferences in the plaintiff's favor. See World Religious Relief, Inc. v. Sirius Satellite Radio, Inc., No. 05-CV-8257, 2007 WL 2261549, at *1 (S.D.N.Y. Aug. 7, 2007) (quoting Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir.1994)). Additionally, when deciding such a motion, the court may only consider "the factual allegations in the complaint, [...] documents attached to the complaint as exhibits or incorporated by reference, [...] matters of which judicial notice might be taken, and [...] documents either in plaintiff's] possession or of which [the] plaintiff had knowledge and relied on in bringing suit." Muller-Paisner v. TIAA, 446 F.Supp.2d 221, 226-227 (S.D.N.Y.2006) (citing Brass v. American Film Technologies, Inc., 987 F.2d 142, 150 (2d Cir.1993) (internal citations omitted)) (rev'd in part on other grounds, No. 06-4307-cv, 2008 WL 3842899 (2d Cir. Aug. 15, 2008). Particularly relevant here, an arrest report is a matter of public record that may be considered on a Rule 12(b)(6) motion to dismiss. See McCloud v. Cutler, No. 06-CV-6443, 2008 WL 906701, at *1 n.2 (E.D.N.Y. Apr. 3, 2008) (citing Vasquez v. City of New York, No. 99 Civ. 4606(DC), 2000 WL 869492, at *1 n.3 (S.D.N.Y. June 29, 2000)).
A motion to dismiss pursuant to Rule 12(b)(6) may not be granted so long as the complaint includes "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007).*fn1 The Court of Appeals for the Second Circuit has interpreted the foregoing language to require that lower courts apply "a flexible'plausibility standard,' which obliges a pleader to amplify a claim with some factual allegations in those contexts where such amplification is needed to render the claim plausible [,]" but does not require a heightened pleading standard for civil rights claims. Iqbal v. Hasty, 490.3d 143, 157-58 (2d Cir.2007) (emphasis in original).
Finally, the court is mindful of the well-established principle that apro se litigant's papers are to be construed liberally, especially when civil rights violations are alleged. See Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 ( 2d Cir. 2008) (internal citations omitted). Thus, "a pro secomplaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Boykin v. KeyCorp, 521 F.3d 202, 214 (2d Cir. 2008) (quoting Erickson v. Pardus,---U.S.----, 127 S.Ct. 2197, 2200 (2007) (per curiam)). Accordingly, the court must interpret Plaintiff's "submissions to raise the strongest arguments that they suggest." Diaz v. United States, 517 F.3d 608, 613 (2d Cir. 2008) (internal quotation and citation omitted). Further, "when reviewing pro sesubmissions, a district court should look at them'with a lenient eye, allowing borderline cases to proceed.'" Phillips v. Girdich, 408 F.3d 124, 127-128 (2d Cir. 2005) (quoting Fleming v. United States, 146 F.3d 88, 90 (2d Cir.1998) (per curiam). Thus, courts have held it appropriate to consider assertions in a pro seplaintiff's papers in opposition to a motion to dismiss to effectively amend the allegations of the complaint, to the extent such assertions are consistent with the allegations of the complaint. See Robles v. Bleau, No 9:07-CV-0464, 2008 WL 4693153, at *6 (N.D.N.Y. Oct. 22, 2008) (citations omitted).
At the same time, the court is mindful that, according to Second Circuit precedent, it cannot read into pro sesubmissions claims that are not consistent with thepro se litigant's allegations, or arguments that the submissions themselves do not suggest,... [and it] should not excuse frivolous or vexatious filings by pro se litigants, and that pro se status does not exempt a party from compliance with relevant rules of procedural and substantive law[.]
Triestman v. Federal Bureau of Prisons, 470 F.3d 471, 477 (2d Cir. 2006) (internal citations and quotations omitted). Accordingly, the court notes that it "is not obliged to reconcile [a pro se] plaintiff's own pleadings that are contradicted by other matter asserted or relied upon or incorporated by reference by a plaintiff in drafting the complaint." Koulkina v. City of New York, 559 F.Supp.2d 300, 314 (S.D.N.Y. 2008) (internal citation omitted). Thus, where such contradiction exists, the pro se plaintiff's allegations "are insufficient to defeat a motion to dismiss." Id.
The court will, as it must, accept the following allegations of fact in the Plaintiff's complaint ("the Complaint") as true, drawing all reasonable inferences in Plaintiff's favor. See supra, at 4.
On or about May 18, 2008, Plaintiff sent a "Letter of Trespass Notice" to one Daniel Bebber.*fn2 Mr. Bebber is apparently employed as a delivery person at a local pharmacy. At one time Mr. Bebber delivered medications to Plaintiff as well as to Plaintiff's parents, through which association Plaintiff and Mr. Bebber became acquainted.
On May 23, 2008, Plaintiff was arrested at his residence for aggravated harassment. It is unclear from the complaint the exact number of arresting officers, but Plaintiff alleges that an officer or officers from both SPD and Syracuse Housing Authority Security were involved. Specifically, Plaintiff alleges that the "Syracuse Police Department and Syracuse Housing Authority Security came to [his] residence... with two police officers[;]... [o]ne was a detective working for the Syracuse Police Department and Syracuse Housing Authority Security,... [and] the other was in the police uniform...." Compl. ¶ 13. Plaintiff alleges a "Detective" entered his residence, showed him "the Letter of Trespass Notice" and accused him of aggravated harassment, then arrested Plaintiff by putting handcuffs on his wrists. See id. ¶¶ 15, 16. It should also be noted that Plaintiff contends the Syracuse Housing Authority Security arrested him in retaliation for litigation he filed in this court, alleging violations of his rights under the Fair Housing Act. See Compl. ¶ 50.*fn3
Plaintiff alleges he was not read his "Miranda rights," and that the Detective would not let Plaintiff put on his socks or notify his mother that he was leaving prior to defendants removing him from his residence. See id. ¶ 16. Plaintiff further contends the "Detective grabbed [him] and literally dragged him to the elevator" and gave him "little pushes... here and there" while defendants transported Plaintiff to the police car. See id. Finally, Plaintiff claims that at some point he was "thoroughly searched still without Miranda rights read." Id.
In his papers in opposition to the City Defendants' motion for judgment on the pleadings, Plaintiff expands upon the allegations in the Complaint regarding his arrest. Plaintiff contends that he was arrested without a warrant, and that he "did not really give the consent to enter because [he] was under the impression that the [C]ity [D]efendants... were coming to update [him on another matter]." Pl.'s Mem. of Law in Opp'n to City Defs.' Mot. for J. on the Pleadings, at 12, Dkt. No. 64. Also in his opposition papers, regarding his allegation that the Detective "literally dragged him to the elevator," Compl. ¶ 16, Plaintiff contends that he "did not sustain any serious injuries as it is about 7 feet... from [his] apartment to the elevator except wrists, but it has been 5 months so they healed," Pl.'s Mem. of Law in Opp'n to City Defs.' Mot. for J. on the Pleadings, at 12.
According to the arrest report, Plaintiff was arrested at his residence and was charged with second degree aggravated harassment pursuant to N.Y. Penal Law § 240.30. See Ex. A to Mem. of Law in Supp. of Mot. for J. on the Pleadings, Dkt. No. 39. The Syracuse Housing Authority is identified on the arrest report as the victim. See id. The arresting officer, who is identified as "Kiefer," noted on the arrest report that Plaintiff was "transported to justice center without incident." Id.
Attached to the arrest report is an incident report, signed by "Theodore Kiefer", naming "Daniel Bebber" as the victim, and Plaintiff as the suspect. Id. Also attached to the arrest report is a statement by Mr. Bebber, wherein he alleges receiving several telephone calls and mailings from Plaintiff over the previous two months, which continued despite Mr. Bebber's repeated requests, via the Syracuse Police Department, that Plaintiff cease contact with Mr. Bebber, and which caused Mr. Bebber and his wife to be annoyed and alarmed. See id. According to Mr. Bebber, on one occasion, about one week after Plaintiff was first asked to stop contacting Mr. Bebber, Plaintiff came to his house uninvited. Finally, Mr. Bebber states that he received a letter from Plaintiff informing him that he "was no longer allowed on Syracuse Housing property, specifically [Plaintiff's] building." Id. In light of the fact that a similar letter was sent to Mr. Bebber's employer, coupled with Plaintiff's repeated telephone calls and mailings despite having been asked to stop, Mr. Bebber asked that Plaintiff be prosecuted "to the fullest extent of the law." Id.
Kiefer's narrative attached to the arrest report indicates that he received Bebber's complaint of harassment against Plaintiff on May 19, 2008. See id. Kiefer notes that prior to that date, Mr. Bebber twice asked him to speak with Plaintiff on Bebber's behalf, which Kiefer did and twice received Plaintiff's assurances that the unwanted communications would stop. See id. Thereafter, Plaintiff sent the notice of trespass letter to Mr. Bebber, regarding which Kiefer states that Plaintiff "claim[ed to have] the Syracuse Housing Authority's permission to issue such a letter...." Id. Kiefer states that on May 23, 2008, he, "while working in a part time capacity as an investigator within the [Syracuse] Housing Authority, responded to [Plaintiff's apartment] to locate [Plaintiff]." Id.
According to Kiefer, he was accompanied by "Officer Chimileski and Det. Rood." Id. Kiefer concluded his narrative report as follows:
[Plaintiff] was in fact located at his residence and arrested for Aggravated Harassment in the 2nd degree. Due to the strong likelihood of reoccurrence, [Plaintiff] was lodged at the Justice Center. IT SHOULD BE NOTED THAT THE LETTER OF TRESPASS generated by [Plaintiff] has/holds NO merit and should be considered a fraud as he invoked the authority, without permission, of the Syracuse Housing Authority's security division. Id.
Kiefer then drafted a misdemeanor information, which he provided to the City of Syracuse Criminal Court, complaining that [Plaintiff], from March 2008 through May 19, 2008, "with intent to harass, annoy[,] threaten or alarm another did communicate with the victim, by mail in a manner likely to cause annoyance or alarm." Id. Among other things, the information also alleges that Plaintiff "did purport to be a representative of Syracuse Housing Authority when in fact he is not." Id. The letter of trespass notice, which is identical to that attached to the Complaint, also accompanies the arrest report. See id.; Ex. A to Compl.
The letter, which is titled, "LETTER OF TRESPASS NOTICE," indicates that Mr. Bebber is "no longer allowed in or around the premises of [Plaintiff's home] for any reason whatsoever." Ex. A to Compl. The letter further indicates that should Mr. Bebber be "seen in or around the premises" he "will hereafter be considered as a'TRESPASSER' and the Syracuse Police will be called to ARREST [him]." Id. Through said letter, Plaintiff also informs Mr. Bebber that a copy of same "is being sent to the Syracuse Police Department, the Security of Syracuse Housing Authority, and to [Mr. Bebber's] employer, for their information." Id. The letter is signed by Plaintiff, under which signature appears that the Syracuse Police Department and Security of Syracuse Housing Authority have been copied. Beneath same appears the following language: "Provided Courtesy of Syracuse Police Department Updated on 04/16/2006". Id. The letter also appears to be notarized, and is dated May 19, 2008.
Returning to the allegations in the Complaint, it is clear that at some point after his arrest, Plaintiff arrived at the "Onondaga County Jail" where he was booked, searched and "placed in a group cell." Compl. ¶ 17. While in the group cell, Plaintiff witnessed one prisoner assault another, while the "County Jail officers... watch[ed] without any reaction." Id. ¶ 18. Before the assailant was removed from the cell, he "asked Plaintiff if he had panties", which caused Plaintiff to "fear very much for his safety." Id.
Plaintiff also describes being strip-searched prior to receiving "prisoner's clothing". ¶ 20. According to Plaintiff, he was told to "get completely undressed, including his underwear." Id. Plaintiff agreed to undress, but requested the presence of two male officers. When the second officer arrived, the first officer explained that "Plaintiff did not want to fulfill his request to undress, and was uncooperative." Id. After Plaintiff undressed, one of the officers used vulgar language, instructing Plaintiff to "'bring up his balls', and'spread up his ass'", which caused Plaintiff to feel "humiliated, hurt, [and] deprived of his dignity as a human being." Id. In his papers in opposition to the County Defendants' motion to dismiss, Plaintiff alleges that "defendants searched [him] thoroughly twice without probable cause, and... subjected [him] to [an] absolutely unwarranted alcohol level check." Pl.'s Mem. of Law in Opp'n to Mot. to Dismiss, at 14, Dkt. No. 20.
Finally, in the Complaint, Plaintiff describes his lack of access to food, drink and medicine while he was incarcerated. Plaintiff alleges that "he had a bruised rib, and was in pain." Compl. ¶ 17. See also ¶¶ 19, 21. Plaintiff also alleges he "was supposed to take Tylenol with Codeine, which he was never given" and that "[h]e was not given his other medication." Id. To be sure, Plaintiff does not specify the cause of the bruised rib, nor does he allege that he informed anyone of his injury, or that he asked anyone for any medication. However, later in the Complaint, Plaintiff contends that "his medical concerns were not addressed at all" and that "[e]xcept one person, nobody addressed Plaintiff's medical concerns." ¶ 21. Plaintiff also alleges that "[h]e was held without drink and food[,]" ¶ 19, but later in the Complaint claims that he was given breakfast, see ¶ 22.
Finally, it appears from the allegations in the Complaint that Plaintiff was held overnight at the Justice Center, and was released without bail the following day. See ¶¶ 21, 24.
A fair reading of the Complaint reflects that Plaintiff purports to allege a number of constitutional violations as predicates for civil rights claims pursuant to 42 U.S.C. § 1983, as well as several tort claims under New York common law. Specifically, under Count I of the Complaint, Plaintiff contends that all defendants (hereinafter "Defendants") violated the following of his rights under the Fourth, Fifth and Fourteenth Amendments to the United States Constitution: (1) right to be free from unreasonable searches and seizures; (2) right not to be deprived of due process; (3) right to be free from excessive force; (4) right to be free from false arrest, and (5) "negligence." See Compl. ¶ 28. Plaintiff further claims that he is due punitive damages regarding the aforementioned violations. See id. ¶ 31.
Through Count II of the Complaint, Plaintiff contends that the defendant, Detective "John Doe" was deliberately indifferent to Plaintiff's right to be free from excessive force and unreasonable searches and seizures in violation of the Fourth and Fourteenth Amendments. See id. ¶ 33. Under Count III, Plaintiff alleges that Defendants violated his rights under the Fourth, Fifth and Fourteenth Amendments by falsely arresting him without a "basis in fact to do so" and "without reading to Plaintiff [his] Miranda rights." Compl. ¶ 36. Count IV, labeled False Imprisonment, includes the allegations that Defendants "breached a duty of care owed to Plaintiff" to not deprive him of his personal liberty by restraining or detaining him without just cause, through use of force, and without reading Plaintiff his Miranda rights. See id. ¶¶ 39-41. Counts V, VI and VII allege claims for negligence, intentional infliction of emotional distress ("IIED"), and negligent infliction of emotional distress ("NIED"), respectively, against all defendants. See id. ¶¶ 44-48. Finally, it should be noted that Plaintiff alleges ...