The opinion of the court was delivered by: Hon. Glenn T. Suddaby, United States District Court Judge
Currently before the Court in this pro se civil rights action filed by Shawn Bradley ("Plaintiff") is a motion for summary judgment filed by B. Rell, Gerald Keller, J. Maisenhelder, H. Woltman, W. Hadsel, E. Feeney, and John Doe VI ("Defendants"). (Dkt. No. 59.) For the reasons set forth below, Defendants' motion is granted in part and denied in part.
On February 8, 2007, Plaintiff filed his original Complaint in this action. (Dkt. No. 1.) On October 9, 2007, he filed an Amended Complaint. (Dkt. No. 24.) On July 22, 2008, he filed a Second Amended Complaint. (Dkt. No. 54.)
Generally, liberally construed, Plaintiff's Second Amended Complaint alleges that, on September 2, 2006, Defendants violated Plaintiff's rights under the Fourth and Eighth Amendments to the United States Constitution by subjecting him to excessive force and denying him adequate medical treatment. (See generally id.) More specifically, Plaintiff alleges that, on September 2, 2006, after being stopped by police officers for the City of Kingston for operating a motor vehicle with defective brake/tail lights, and after fleeing the scene to avoid arrest, Plaintiff was apprehended and assaulted by Defendants Rell, Nielson, Hadsel, Woltman, Lowe, Herrling, Feeney and a police dog, and was subsequently denied medical treatment for the injuries that he sustained for approximately four hours. (Id.) Familiarity with the other factual allegations supporting Plaintiff's Fourth and Eighth Amendment claims in his Second Amended Complaint is assumed in this Decision and Order, which is intended primarily for review by the parties. (Id.)
B. Undisputed Material Facts
The following material facts are undisputed by the parties. (Compare Dkt. No. 59, Attach. 1 [Defs.' Rule 7.1 Statement] with Dkt. No. 73, Attach. 1 [Plf.'s Rule 7.1 Response].)
On September 2, 2006, during the late evening hours, Plaintiff was operating a motor vehicle with defective tail/brake lights and was stopped by the Kingston Police for that traffic violation. While acting within the scope of his employment with the City of Kingston Police Department, Officer B. Rell was one of the officers involved in the stop of Plaintiff's vehicle. Shortly after being pulled over, Plaintiff fled the scene in an effort to avoid being arrested for violating his parole.
Plaintiff was subsequently apprehended by officers of the Kingston Police Department, including Officer Rell and a K-9 police dog named "Oden." At least one of the officers put Plaintiff on the ground, put a foot on his head, grabbed his legs, and placed handcuffs on him. After being restrained, Plaintiff was found to be in possession of illegal narcotics. Plaintiff was then transported to the Kingston Police Department, where he was booked. Between three and five hours after he arrived at the police station, he was transported to the Benedictine Hospital for medical treatment.
At the hospital, Plaintiff was examined and found to have a scalp contusion and puncture wounds on his right ankle from a K-9 bite. Plaintiff's wounds were cleaned, and antibiotic was applied. Thereafter, he was given pain medication and released from the hospital.
Familiarity with the remaining undisputed material facts of this action, as well as the disputed material facts, as set forth in the parties' Rule 7.1 Statement and Rule 7.1 Response, is assumed in this Decision and Order, which (again) is intended primarily for review by the parties. (Id.)
C. Defendants' Motion for Summary Judgment
Generally, in support of their motion for summary judgment, Defendants argue as follows: (1) the force that was used against Plaintiff was not excessive, but was reasonable under the circumstances; (2) the arresting officers are entitled to qualified immunity; (3) Plaintiff's medical needs were not serious, and, even if they were serious, Defendants were not deliberately indifferent to those needs; (4) Plaintiff's claims against Defendant Keller must be dismissed because Plaintiff has failed to demonstrate personal involvement; and (5) Plaintiff's claims against Defendants Woltman, Hadsel and Feeney, asserted for the first time in his Second Amended Complaint, are barred by the statute of limitations. (See generally Dkt. No. 59, Attach. 2 [Defs.' Memo. of Law].)
In Plaintiff's response to Defendants' motion for summary judgment, he argues as follows: (1) the use of force against him was not reasonable under the circumstances, but was excessive; (2) Defendants are not entitled to qualified immunity; (3) the delay in time between when Plaintiff was brought to the police station and when Plaintiff was brought to the hospital evidences Defendants' deliberate indifference to his serious medical needs; (4) the claims against Defendant Keller should not be dismissed because Defendant Keller failed to properly train his police officers, as evidenced by the use of excessive force against Plaintiff; and (5) the claims against Defendants Woltman, Hadsel and Feeney are not barred by the statute of limitations. (See generally Dkt. No. 73 [Plf.'s Response Memo. of Law].)
II. RELEVANT LEGAL STANDARDS
A. Legal Standard Governing Motions for Summary Judgment
Under Fed. R. Civ. P. 56, summary judgment is warranted if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). In determining whether a genuine issue of material fact exists, the Court must resolve all ambiguities and draw all reasonable inferences against the moving party. In addition, "[the moving party] bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the . . . [record] which it believes demonstrate[s] the absence of any genuine issue of material fact." Celotex v. Catrett, 477 U.S. 317, 323-24 (1986). However, when the moving party has met this initial responsibility, the nonmoving party must come forward with "specific facts showing a genuine issue [of material fact] for trial." Fed. R. Civ. P. 56(e)(2).
As for the materiality requirement, a dispute of fact is "material" if it "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). "Factual disputes that are irrelevant or unnecessary will not be counted." Anderson, 477 U.S. at 248 [citation omitted].
As for the genuineness requirement, a dispute of fact is "genuine" if "the [record] evidence is such that a reasonable jury could return a verdict for the novmoving party." Id. As a result, "[c]onclusory allegations, conjecture and speculation . . . are insufficient to create a genuine issue of fact." Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998) [citation omitted; emphasis added]; see also Fed. R. Civ. P. 56(e)(2).*fn1 Similarly, inadmissible hearsay is insufficient to create a genuine issue of fact, "absent a showing that admissible evidence will be available at trial." Burlington Coat Factory Warehouse Corp. v. Esprit De Corp., 769 F.2d 919, 924 (2d Cir. 1985) [citations omitted]. Moreover, "an affidavit . . . that, by omission or addition, contradicts the affiant's previous deposition testimony" is insufficient to create a genuine issue of fact. Hayes v. New York City Dept. of Corr., 84 F.3d 614, 619 (2d Cir. 1996) [citations omitted].
Finally, as this Court has previously observed, "[i]t is well established that issues of credibility are almost never to be resolved by a court on a motion for summary judgment." Cruz v. Church, 05-CV-1067, 2008 WL 4891165, at *4 & n.6 (N.D.N.Y. Nov. 10, 2008) (Suddaby, J.) [emphasis in original; collecting cases]. However, "there is a narrow exception to this well-established rule." Cruz, 2008 WL 4891165, at *4 [citation omitted]. In Jeffreys v. City of New York, 426 F.3d 549 (2d Cir. 2005), the Second Circuit explained that this narrow exception is for testimony by a non-movant that possesses the following two characteristics: (1) it constitutes almost the exclusive basis for a disputed issue of fact in the case (or, expressed differently, it is largely unsubstantiated by any other direct evidence); and (2) it is so lacking in credibility (because the testimony is incomplete and/or replete with inconsistencies and improbabilities) that, even after drawing all inferences in the light most favorable to the non-movant, no reasonable jury could find for the non-movant. Cruz, 2008 WL 4891165, at *4 & n.7 [collecting cases]. "Again, it must be remembered that the circumstances giving rise to this exception are rare.'" Id. & n.7 [collecting cases].
B. Legal Standard Governing Motions to Dismiss for Failure to State a Claim
To the extent that a defendant's motion for summary judgment under Federal Rule of Civil Procedure 56 is based entirely on the plaintiff's complaint, such a motion is functionally the same as a motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). As a result, "[w]here appropriate, a trial judge may dismiss for failure to state a cause of action upon motion for summary judgment." Schwartz v. Compagnise Gen. Transatlantique, 405 F.2d 270, 273-74 (2d Cir. 1968) [citations omitted]; accord, Katz v. Molic, 128 F.R.D. 35, 37-38 (S.D.N.Y. 1989) ("This Court finds that . . . a conversion [of a Rule 56 summary judgment motion to a Rule 12(b)(6) motion to dismiss the complaint] is proper with or without notice to the parties."). Moreover, even where a defendant has not advanced such a failure-to-state-a-claim argument on a motion for summary judgment, a district court may, sua sponte, address whether a pro se prisoner has failed to state a claim upon which relief may be granted.*fn2 For these reasons, it is appropriate to recite the legal standard governing Federal Rule of Civil Procedure 12(b)(6) motions to dismiss.
It has long been understood that a dismissal for failure to state a claim, pursuant to Fed. R. Civ. P. 12(b)(6), may be based on either or both of two grounds: (1) a challenge to the "sufficiency of the pleading" under Fed. R. Civ. P. 8(a)(2); or (2) a challenge to the legal cognizability of the claim. Jackson v. Onondaga County, 549 F. Supp.2d 204, 211, nn. 15-16 (N.D.N.Y. 2008) (McAvoy, J., adopting Report-Recommendation on de novo review) [citations omitted].
With regard to the first ground, Fed. R. Civ. P. 8(a)(2) requires that a pleading contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2) [emphasis added]. By requiring this "showing," Fed. R. Civ. P. 8(a)(2) requires that the pleading contain a short and plain statement that "give[s] the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Jackson, 549 F. Supp.2d at 212, n.17 [citations omitted]. The main purpose of this rule is to "facilitate a proper decision on the merits." Id. at 212, n.18 [citations omitted].*fn3
The Supreme Court has long characterized this pleading requirement under Fed. R. Civ. P. 8(a)(2) as "simplified" and "liberal," and has repeatedly rejected judicially established pleading requirements that exceed this liberal requirement. Id. at 212, n.20 [citations omitted]. However, even this liberal notice pleading standard "has its limits." Id. at 212, n.21 [citations omitted]. As a result, numerous Supreme Court and Second Circuit decisions exist holding that a pleading has failed to meet this liberal notice pleading standard. Id. at 213, n.22 [citations omitted]; see also Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949-52 (2009).
Most notably, in Bell Atlantic Corp. v. Twombly, the Supreme Court reversed an appellate decision holding that a complaint had stated an actionable antitrust claim under 15 U.S.C. § 1. Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955 (2007). In doing so, the Court "retire[d]" the famous statement by the Court in Conley v. Gibson, 355 U.S. 41, 45-46 (1957), that "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Twombly, 127 S.Ct. at 1968-69. Rather than turning on the conceivability of an actionable claim, the Court clarified, the "fair notice" standard turns on the plausibility of an actionable claim. Id. at 1965-74. The Court explained that, while this does not mean that a pleading need "set out in detail the facts upon which [the claim is based]," it does mean that the pleading must contain at least "some factual allegation[s]." Id. at 1965 ...