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Morton v. City of Albany

August 19, 2009

SHIRLEY MORTON, PLAINTIFF,
v.
THE CITY OF ALBANY, KEVIN MCKENNA, INDIVIDUALLY AND IN HIS CAPACITY AS A POLICE OFFICER, PETER NOONAN, INDIVIDUALLY AND IN HIS CAPACITY AS A POLICE OFFICER, LEONARD CROUCH, INDIVIDUALLY AND IN HIS CAPACITY AS A POLICE OFFICER, AND JAMES TUFFEY, INDIVIDUALLY AND IN HIS CAPACITY AS CHIEF OF THE ALBANY POLICE DEPARTMENT, DEFENDANTS.



The opinion of the court was delivered by: Thomas J. McAVOY, Senior United States District Judge

DECISION & ORDER

I. INTRODUCTION

Plaintiff commenced this action asserting claims pursuant to 42 U.S.C. § 1983 and state law. See Compl., dkt. # 1. Defendants move to dismiss portions of the complaint pursuant to Fed. R. Civ. P. 12(b)(6). Def. Motion, dkt. # 4. Plaintiff opposes the motion and cross-moves for leave to file an amended complaint. Pl. Op. & Cross-Motion, dkt. # 20. Defendants oppose the cross-motion on the ground that the proposed amendments would not cure the asserted defects in the original pleading and, thus, amendment would be futile. Def. Opp., dkt. # 23.

II. STANDARD OF REVIEW

Because the proposed amendment is intended to cure the asserted factual defects in the Complaint, see Greenberg Aff. ¶ 7,*fn1 and because "[t]he court should freely give leave [to amend]" except when, inter alia, amendment would be futile, Fed. R. Civ. P. 15(a)(2); Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000), the Court will review the claims in the proposed Amended Complaint pursuant to Rule 12(b)(6).

To withstand a Rule 12(b)(6) motion, a "complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949-50 (2009)(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citing Twombly, 550 U.S. at 557). Plausibility means "more than a sheer possibility that a defendant has acted unlawfully," and a complaint that pleads facts "that are 'merely consistent with' a defendant's liability [] 'stops short of the line between possibility and plausibility of 'entitlement to relief."" Id. (quoting Twombly, 550 U.S. at 557).

While the Rule 12(b)(6) standard has long required that a court accept as true the allegations contained in a complaint, this rule does not apply to legal conclusions or to "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements." Id. (citing Twombly, 550 U.S. at 555). The liberality accorded pleadings under Rule 8 "does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions. [O]nly a complaint that states a plausible claim for relief survives a motion to dismiss." Id., at 1950 (citing Twombly, 550 U.S. at 556).

III. BACKGROUND*fn2

Plaintiff was a civilian employee of the Albany Police Department serving as a clerk- typist in the Traffic Safety Division. Plaintiff's supervisor was Defendant Kevin McKenna. "While under the supervision of Kevin McKenna, Plaintiff was subjected to inappropriate behavior by Kevin McKenna." Proposed Amend. Compl. ("Am. Compl.") ¶ 19. Plaintiff reported the "inappropriate behavior" to Defendant Leonard Crouch, McKenna's supervisor, and to other supervisors within the Albany Police Department, but no action was taken to "deal with Plaintiff's complaints." Id. ¶¶ 24-27.

On January 2, 2008, while at work, Defendant Peter Noonan provided a handgun to McKenna and told McKenna that the handgun was loaded. McKenna "took the handgun and pointed it at the Plaintiff from approximately six feet away." Id. ¶ 32. Noonan pushed McKenna's hand down, but McKenna again pointed the gun at Plaintiff. Noonan then walked away.

Plaintiff asserts that McKenna "had previously engaged in improper and inappropriate use of firearms, and defendant, the City of Albany, knew, or should have known of Kevin McKenna's propensity to misuse firearms." Id. ¶ 36. She contends that the Albany Police Department had been "lax in its oversight of firearms and their use by police officers," and that, "[u]pon information and belief, prior to January 2, 2008, officers of the Albany Police Department engaged in 'horseplay' with firearms while on duty, including aiming firearms at each other." Id. ¶¶ 37-38. Based on the content of a July 2, 2008 newspaper article, Plaintiff asserts that Chief Tuffey was aware that officers of the Albany Police Department had been involved in the illegal purchase of firearms yet the City of Albany "failed to institute policies or procedures in order to discourage the unauthorized and improper purchase and use of firearms." Id. ¶ 39. She further asserts that, "[u]pon information and belief, civilian employees of the Albany Police Department have been subjected to a pattern of harassment by the police officers of the Albany Police Department." Id. ¶ 40.

Based upon these allegations, Plaintiff pleads that James Tuffey, as Chief of Police for the Albany Police Department, has created policies and customs under which unconstitutional practices have occurred, including but not limited to, the harassment of Plaintiff, the use of excessive force against Plaintiff, the illegal seizure of Plaintiff, and the deprivation of Plaintiff's right to equal protection under law.

Id. ¶ 41. She further pleads that "James Tuffey was grossly negligent in supervising subordinates, including but not limited to, Kevin McKenna and Peter Noonan, and as a result of his grossly negligent supervision, Plaintiff's constitutional rights were violated." Id. ¶ 43.

Plaintiff contends that McKenna's conduct amounted to common law assault, id. ¶¶ 44-49 ("Count I"), wrongful imprisonment, id. ¶¶ 50-56 ("Count II"), intentional infliction of emotional distress, id. ¶¶ 57-63 ("Count III"), and a violation of her constitutional rights "to be free from improper seizure, to be free from unreasonable force, and to enjoy the equal protection of law." Id. ¶ 75, see id. ¶¶ 74-77 ("Count VI"). Plaintiff also sues Peter Noonan, Leonard Crouch, and James Tuffey in Count VI, although she does not allege any further facts elucidating their individual involvement in the asserted constitutional violations. Plaintiff further contends that Noonan is liable for the asserted constitutional violations perpetrated by McKenna because Noonan failed to intervene to prevent McKenna's conduct. Id. ¶¶ 78-82 ("Count VII").

Plaintiff also sues the City of Albany under a common law theory of negligent hiring, retention, and/or supervision, id. ¶¶ 64-70 ("Count IV"), and a Monell*fn3 theory of failure to train or supervise. Id. ¶¶ 83-91. She sues all defendants under a common law theory of negligence asserting that "the defendants, their agents, servants and/or employees were negligent, reckless and careless in the ownership, operation, maintenance, control, possession of the aforesaid handgun." Id. ¶ 71, see id. ¶¶ 71-73 ("Count V"). Additionally, Plaintiff sues all defendants asserting that their conduct deprived her of "the rights, privileges and immunities secured by the Constitution of the State of New York, including, but not ...


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