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Bradley v. Rell

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK


March 25, 2010

SHAWN T. BRADLEY, PLAINTIFF,
v.
B. RELL, POLICE OFFICER; J. MAISENHELDER, POLICE OFFICER; H. WOLTMAN, POLICE OFFICER; W. HADSEL, POLICE OFFICER; E. FEENEY, POLICE OFFICER; JOHN DOE VI, DESK OFFICER; GERALD KELLER, CHIEF OF POLICE, CITY OF KINGSTON POLICE DEPARTMENT; DEFENDANTS.

The opinion of the court was delivered by: Hon. Glenn T. Suddaby, United States District Court Judge

DECISION and ORDER

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.

I. BACKGROUND

A. Plaintiff's Claims

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 [citations omitted]. More specifically, the "[f]actual allegations must be enough to raise a right to relief above the speculative level [to a plausible level]," assuming (of course) that all the allegations in the complaint are true. Id. [citations omitted].*fn4

As have other Circuits, the Second Circuit has recognized that the clarified plausibility standard that was articulated by the Supreme Court in Twombly governs all claims, including claims brought by pro se litigants (although the plausibility ofthose claims is to be assessed generously, in light of the special solicitude normally afforded pro se litigants).*fn5 It should be emphasized that Fed. R. Civ. P. 8's plausibility standard, explained in Twombly, was in no way retracted or diminished by the Supreme Court's decision (two weeks later) in Erickson v. Pardus, in which (when reviewing a pro se pleading) the Court stated, "Specific facts are not necessary" to successfully state a claim under Fed. R. Civ. P. 8(a)(2). Erickson v. Pardus, 127 S.Ct. 2197, 2200 (2007) [citation omitted; emphasis added]. That statement was merely an abbreviation of the often-repeated point of law--first offered in Conley and repeated in Twombly--that a pleading need not "set out in detail the facts upon which [the claim is based]" in order to successfully state a claim. Twombly, 127 S.Ct. 1965, n.3 (citing Conley, 355 U.S. at 47) [emphasis added]. That statement did not mean that all pleadings may achieve the requirement of "fair notice" without ever alleging any facts whatsoever. Clearly, there must still be enough fact set out (however set out, whether in detail or in a generalized fashion) to raise a right to relief above the speculative level to a plausible level.*fn6

Finally, in reviewing a complaint for dismissal under Fed. R. Civ. P. 12(b)(6), the court must accept the material facts alleged in the complaint as true and construe all reasonable inferences in the plaintiff's favor.

C. Legal Standard Governing Plaintiff's Excessive Force Claim

Plaintiff bases his federal claims on 42 U.S.C. § 1983, which reads, in part as follows:

Every person who, under color of any statute, ordinance, regulation, custom or usage of any State . . ., subjects or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges or immunities secured by the Constitution and laws, shall be liable to the party injured in an action.

42 U.S.C. § 1983. Section 1983 "is not itself a source of substantive rights," but merely provides "a method for vindicating federal rights elsewhere conferred." Graham v. Connor, 490 U.S. 386, 393-94 (1989) (quoting Baker v. McCollan, 443 U.S. 137, 144, n.3 [1979]).

Here, Plaintiff claims, inter alia, that Defendants violated his constitutional rights because they used excessive force in executing his arrest. "Where . . . the excessive force claim arises in the context of an arrest or investigatory stop of a free citizen, it is most properly characterized as one invoking the protections of the Fourth Amendment, which guarantees citizens the right 'to be secure in their persons . . . against unreasonable . . . seizures' of the person." Graham, 490 U.S. at 394. Thus, "all claims that law enforcement officers have used excessive force--deadly or not--in the course of an arrest, investigatory stop, or other 'seizure' of a free citizen should be analyzed under the Fourth Amendment and its 'reasonableness' standard, rather than under a 'substantive due process' approach." Id. (citation omitted) (noting that "[b]ecause the Fourth Amendment provides an explicit textual source of constitutional protection against this sort of physically intrusive governmental conduct, that Amendment, not the more generalized notion of 'substantive due process,' must be the guide for analyzing these claims").

D. Legal Standard Governing Plaintiff's Inadequate Medical Treatment Claim

"Where a pre-trial detainee alleges deliberate indifference to a medical need while incarcerated, such a claim is evaluated under the Due Process Clause of the Fourteenth Amendment." Dzwonczyk v. Syracuse City Police Dept., 08-CV-0557, 2008 WL 5459147, at *13 (N.D.N.Y. Dec. 22, 2008) (McCurn, J.) (citing Arac v. Bodek, 213 F.3d 625 [2d Cir. 2000]) (other citation omitted). "While the exact standard to be applied to such a claim has not been made clear, what is known is that the pre-trial detainee's rights are at least as great as those provided to a convicted prisoner under the Eighth Amendment, and that something more than negligence on the part of the defendant is required." Dzwonczyk,2008 WL 5459147, at *13 (citations omitted). "Consequently, courts tend to apply the Eighth Amendment standard when deciding a pre-trial detainee's claim for deliberate indifference to a medical need under the Fourteenth Amendment." Id. (collecting cases). As a result, in order to establish a claim for deliberate indifference to a serious medical need, a pre-trial detainee plaintiff must allege as follows: "(1) a deprivation that is sufficiently serious, i.e., a deprivation that presents a condition of urgency, one that may produce death, degeneration, or extreme pain, and (2) reckless indifference, that is, defendants were aware of plaintiff's serious medical needs and consciously disregarded a substantial risk of serious harm." Id. (internal quotation marks and citations omitted).

E. Legal Standard Governing Doctrine of Qualified Immunity

"Once qualified immunity is pleaded, plaintiff's complaint will be dismissed unless defendant's alleged conduct, when committed, violated 'clearly established statutory or constitutional rights of which a reasonable person would have known.'" Williams v. Smith, 781 F.2d 319, 322 (2d Cir. 1986) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 815 [1982]). As a result, a qualified immunity inquiry in a civil rights case generally involves two issues: (1) "whether the facts, viewed in the light most favorable to the plaintiff establish a constitutional violation"; and (2) "whether it would be clear to a reasonable officer that his conduct was unlawful in the situation confronted." Sira v. Morton, 380 F.3d 57, 68-69 (2d Cir. 2004) [citations omitted], accord, Higazy v. Templeton, 505 F.3d 161, 169, n.8 (2d Cir. 2007) [citations omitted].

In determining the second issue (i.e., whether it would be clear to a reasonable officer that his conduct was unlawful in the situation confronted), courts in this circuit consider three factors:

(1) whether the right in question was defined with 'reasonable specificity'; (2) whether the decisional law of the Supreme Court and the applicable circuit court support the existence of the right in question; and (3) whether under pre-existing law a reasonable defendant official would have understood that his or her acts were unlawful.

Jermosen v. Smith, 945 F.2d 547, 550 (2d Cir. 1991) [citations omitted], cert. denied, 503 U.S. 962 (1992).*fn7 "As the third part of the test provides, even where the law is 'clearly established' and the scope of an official's permissible conduct is 'clearly defined,' the qualified immunity defense also protects an official if it was 'objectively reasonable' for him at the time of the challenged action to believe his acts were lawful." Higazy v. Templeton, 505 F.3d 161, 169-70 (2d Cir. 2007) [citations omitted].*fn8 This "objective reasonableness" part of the test is met if "officers of reasonable competence could disagree on [the legality of defendant's actions]." Malley v. Briggs, 475 U.S. 335, 341 (1986).*fn9 As the Supreme Court has explained,

[T]he qualified immunity defense . . . provides ample protection to all but the plainly incompetent or those who knowingly violate the law. . . . Defendants will not be immune if, on an objective basis, it is obvious that no reasonably competent officer would have concluded that a warrant should issue; but if officers of reasonable competence could disagree on this issue, immunity should be recognized.

Malley, 475 U.S. at 341.*fn10

III. ANALYSIS

A. Plaintiff's Excessive Force Claim

As stated above in Part I.C. of this Decision and Order, Defendants seek the dismissal of Plaintiff's excessive force claim because the force used was reasonable under the circumstances and the arresting officers are entitled to qualified immunity.

1. Whether Defendants Hadsel, Woltman, Feeney and Rell's Use of Force Was Reasonable Under Circumstances

"Determining whether the force used to effect a particular seizure is 'reasonable' under the Fourth Amendment requires a careful balancing of the nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing governmental interests at stake." Graham, 490 U.S. at 396 (internal quotation marks and citations omitted); see also Phelps v. Szubinski, 577 F. Supp.2d 650, 661 (E.D.N.Y. 2008). Application of the 'reasonableness' standard in this context "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." Graham, 490 U .S. at 396; see also Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 123 (2d Cir. 2004). "The 'reasonableness' of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight." Phelps, 577 F. Supp.2d at 661 (quoting Graham, 490 U.S. at 396).

In considering the reasonableness of the force applied, as the Second Circuit explained

The fact that a person whom a police officer attempts to arrest resists, threatens, or assaults the officer no doubt justifies the officer's use of some degree of force, but it does not give the officer license to use force without limit. The force used by the officer must be reasonably related to the nature of the resistance and the force used, threatened, or reasonably perceived to be threatened, against the officer. It is clear, therefore, that there is no inherent conflict between a conviction for resisting arrest or harassment of a police officer and a finding that the police officers used excessive force in effectuating the arrest.

Sullivan v. Gagnier, 225 F.3d 161, 165-66 (2d Cir. 2000) (italics in original).

Stated another way, "[i]n order to determine whether the force used to effect an arrest was reasonable and, thus, not a violation of the Fourth Amendment, a 'factfinder must determine whether, in light of the totality of the circumstances faced by the arresting officer, the amount of force used was objectively reasonable at the time.'" Spillman v. City of Yonkers, 07-CV2164, 2010 WL 86139, at *7 (S.D.N.Y. Jan. 8, 2010 ) (quoting Amnesty Am., 361 F.3d at 123). "Inasmuch as the inquiry is fact-specific, 'granting summary judgment against a plaintiff on an excessive force claim is not appropriate unless no reasonable factfinder could conclude that the officers' conduct was objectively unreasonable.'" Spillman, 2010 WL 86139, at *7 (quoting Amnesty Am., 361 F.3d at 123); see also Curry v. City of Syracuse, 316 F.3d 324, 332 (2d Cir. 2003) (noting that a plaintiff may prevail on an excessive-force claim "if he is able to show that [the officer] used more force than was necessary to subdue him").

The current record reveals the following undisputed facts. Plaintiff was in violation of his parole when he was pulled over on September 2, 2006. He fled the vehicle that he was driving on the night of September 2, 2006, to evade an arrest for a parole violation. He was chased on foot by at least one police officer and, while running, entered a pizza establishment. Plaintiff was eventually apprehended in front of the pizza establishment. After he exited the pizza establishment, he was brought to the ground, where an officer put a foot on his head.

In addition, when viewed in the light most favorable to the non-moving party, there is at least some admissible evidence in the record establishing the following five facts: (1) prior to exiting the pizza establishment, Plaintiff told the police officers standing outside of the pizza establishment, "It's okay. It's okay. I'm coming out" (Dkt. No. 40, Attach. 1, at 29); (2) Plaintiff exited the pizza establishment with his hands up, and stated to the police officers, "I give up" (Dkt. No. 40, Attach. 1, at 30); (3) Plaintiff was pushed on the ground by more than one officer and, while he was on the ground, one or more officers "stomped" on his head (Dkt. No. 40, Attach. 1, at 30; Dkt. No. 54, at ¶ 5; Dkt. No. 73, Attach. 2, at ¶ 6), and hit him more than once with a baton (Dkt. No. 40, Attach. 1, at 42.); (4) after Plaintiff was on the ground and handcuffed, he was bitten by a police dog (Dkt. No. 40, Attach. 1, at 29-30, 32, 41-43; Dkt. No. 54, at ¶¶ 5, 6); and (5) as a result of his exchange with law enforcement officials on the night of September 2, 2006, Plaintiff suffered a headache and blurry vision, swelling and bruising around his head, and an abrasion to his right lower leg from the dog bite (Dkt. No. 40, Attach. 1, at 37-38; Dkt. No. 45, Attach. 2).

Based on this record, the Court finds that a rational jury could conclude that Defendants Hadsel, Woltman, Feeney and Rell"used more force than was necessary to subdue him." Curry, 316 F.3d at 332.*fn11 As a result, Defendants' motion with regard to this claim is denied on this ground.

2. Whether Defendants Are Entitled to Qualified Immunity

Based on the current record, the Court rejects Defendants' qualified immunity argument. The Court finds that is beyond question that the right to be free from excessive force was clearly established at the time of Plaintiff's arrest. Furthermore, the Court finds that a reasonable officer would have known that continuing to assault a handcuffed and subdued arrestee, and/or "releasing a police dog on a handcuffed, immobilized arrestee violated that right." Kavazanjian, 2008 WL 5340988, at *4 (citing Mendoza v. Block, 27 F.3d 1357, 1362 [9th Cir. 1994]).

For these reasons, Plaintiff's excessive force claim against Defendants Hadsel, Woltman, Feeney and Rell survives Defendants' motion for summary judgment.

B. Plaintiff's Inadequate Medical Treatment Claim

As stated above in Part I.C. of this Decision and Order, Defendants seek the dismissal of Plaintiff's inadequate medical care claim because Plaintiff has failed to introduce evidence establishing that his injuries constitute a serious medical need, and, even assuming that his injuries constitute a serious medical need, Plaintiff has failed to introduce evidence establishing Defendants' deliberate indifference to that medical need.

1. Whether Plaintiff's Injuries Constituted Serious Medical Need

"A serious medical condition must be 'a condition of urgency, one that may produce death, degeneration, or extreme pain.'" Osacio v. Greene, 08-CV-0018, 2009 WL 3698382, at *4 (N.D.N.Y. Nov. 2, 2009) (McAvoy, J.) (quoting Hathaway v. Coughlin, 37 F.3d 63, 66 [2d Cir. 1994]). "Factors that have been considered in determining whether a condition is serious include '[t]he existence of an injury that a reasonable doctor or patient would find important and worthy of comment or treatment; the presence of a medical condition that significantly affects an individual's daily activities; or the existence of chronic and substantial pain.'" Osacio,2009 WL 3698382, at *4 (quoting Chance v. Armstrong, 143 F.3d 698, 702 [2d Cir. 1998]) (other citations omitted). The "factors listed above, while not the only ones that might be considered, are without a doubt highly relevant to the inquiry into whether a given medical condition is a serious one." Chance, 143 F.3d at 702.

As stated in Part III.A.1. of this Decision and Order, Plaintiff has introduced evidence that he suffered the following injuries as a result of his exchange with law enforcement officials on the night of September 2, 2006: (1) a headache and blurry vision; (2) swelling and bruising around his head; and (3) an abrasion to his right lower leg from the dog bite. (Dkt. No. 40, Attach. 1, at 37-38; Dkt. No. 45, Attach. 2.) In addition, Plaintiff has asserted (in a sworn but unsigned Second Amended Complaint, and a declaration that is improperly verified pursuant to 28 U.S.C. § 1746) that he (1) still suffers from "extreme headaches" and, as a result, receives "prescription medication to assist with the pain" (Dkt. No. 73, Attach. 2, at 11), and (2) still "suffers psychological problems," including nightmares, as a result of his exchange with law enforcement officials on the night of September 2, 2006 (Dkt. No. 54, at ¶¶ 14, 15; Dkt. No. 73, Attach. 2, at 11).

Based on the current record, and even accepting as true Plaintiff's factual assertions that he still suffers from "extreme headaches" and "psychological problems" (and, as a result, takes "prescription medication to assist with the pain"),he has failed to introduce any admissible evidence from which a rational factfinder could conclude that his injuries were sufficiently serious to constitute a serious medical condition.*fn12 Therefore, Plaintiff's claim of deliberate indifference to his serious medical need is dismissed.

2. Whether Defendants Were Deliberately Indifferent to Plaintiff's Medical Needs

"The subjective prong of the deliberate indifference standard requires proof that the accused defendant knew of and disregarded 'an excessive risk to inmate health or safety.'" Ford v. Phillips, 05-CV-6646, 2007 WL 946703, at *12 (S.D.N.Y. Mar. 27, 2007) (quoting Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994), cert. denied, 513 U.S. 1154 [1995] ["The official must both be aware of the facts from which the inference could be drawn that a substantial risk of serious harm exists, and must also draw the inference."]). "Specifically, the plaintiff must prove that the accused defendant acted, or declined to act, with a state of mind equivalent to criminal recklessness." Ford, 2007 WL 946703, at *12 (collecting cases).

Plaintiff has introduced evidence that he was arrested at 8:54 p.m. on September 2, 2006. (Dkt. No. 73, at 34.) In addition, according to Plaintiff, an ambulance was called to take him to the emergency room at 12:45 a.m. on September 3, 2006. (Dkt. No. 73, Attach. 1, at 4, ¶ 5.)*fn13

Therefore, based on Plaintiff's own argument, it took Defendants less than four hours to respond to his medical needs. Furthermore, both Defendant Rell and Defendant Maisenhelder stated that Plaintiff made no complaints to either of them that he required medical treatment at any time. (Dkt. No. 45, Attach. 1, at 4-5, ¶ 5; Dkt. No. 45, Attach. 1, at 11-12, ¶ 3)

Under these circumstances (and in light of the fact that Plaintiff's medical condition was not life-threatening, and that Defendants are not trained medical professionals, but rather, police officers), the Court concludes that, even assuming that Plaintiff's injuries constitute a serious medical need, Plaintiff has failed to introduce sufficient admissible evidence from which a rational factfinder could conclude that Defendants Keller, Maisenhelder, Rell, Woltman, Hadsel, Feeney, and John Doe Desk Officer were deliberately indifferent to Plaintiff's serious medical needs. See Davidson v. Harris, 960 F. Supp. 644, 648 (W.D.N.Y. 1997) ("As any lay person is well accustomed, patients are frequently faced with delays in receiving medical care, particularly when, [as in this case], their medical condition is not grave.").*fn14

For these reasons, Plaintiff's deliberate indifference to serious medical needs claim is dismissed.

C. Claims Against Defendant Keller

Plaintiff claims that Defendant Keller, Chief of Police for the City of Kingston Police Department, is liable for Plaintiff's constitutional injuries based on his failure to "provid[e] adequate training to the officers of his department and lack of investigation into this matter." (Dkt. No. 54, at ¶ 17.) As stated in Part I.C. of this Decision and Order, Defendants argue that Plaintiff's claims against Defendant Keller must be dismissed because Plaintiff has failed to demonstrate his personal involvement in the underlying constitutional violations.

"A plaintiff asserting a § 1983 claim against a supervisory official in his individual capacity must show that the supervisor was personally involved in the alleged constitutional deprivation." Houghton v. Cardone, 295 F. Supp.2d 268, 276 (W.D.N.Y. 2003) (citing Johnson v. Newburgh Enlarged Sch. Dist., 239 F.3d 246, 254 [2d Cir. 2001]) (other citation omitted). The Second Circuit has repeatedly held that personal involvement can be demonstrated in one or more of the following manners:

(1) the defendant participated directly in the alleged constitutional violation; (2) the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong; (3) the defendant created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom; (4) the defendant was grossly negligent in supervising subordinates who committed the wrongful acts; or (5) the defendant exhibited deliberate indifference to others' rights by failing to act on information indicating that unconstitutional acts were occurring."

Houghton, 295 F. Supp.2d at 276 (citing Colon v. Coughlin, 58 F.3d 865, 873 [2d Cir. 1995]) (other citation omitted).

"A plaintiff cannot base liability solely on the defendant's supervisory capacity or the fact that he held the highest position of authority within the relevant governmental agency or department." Id. (internal quotation marks and citation omitted). Rather, a plaintiff must allege facts describing the defendant's personal involvement; a complaint that merely alleges a conclusion of personal involvement, with no supporting factual allegations, fails to satisfy the notice pleading standard of a civil rights complaint. Id.*fn15

In addition, at the summary judgment stage, in order to defeat a motion for summary judgment, a plaintiff must adduce at least some evidence in support of his claim. See Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995) ("A plaintiff seeking to defeat a motion for summary judgment, of course, must do more than make broad factual allegations and invoke the appropriate statute. The plaintiff must also show, by affidavits or as otherwise provided in Rule 56 of the Federal Rules of Civil Procedure, that there are specific factual issues that can only be resolved at trial.").

Plaintiff's Second Amended Complaint alleges that Keller "is liable in this case and is liable for violations of [Plaintiff's] constitutional rights, [because] he [is] a city employee and in charge of the departmental affairs." (Dkt. No. 54, at ¶ 17.) The Complaint further alleges that Defendant Keller's "responsibility stems from not providing adequate training to the officers of his department and lack of investigation into this matter." (Dkt. No. 54, at ¶ 17.)

Based on the limited and conclusory nature of the pleadings, the Court finds that Plaintiff's Second Amended Complaint fails to allege facts plausibly suggesting that Defendant Keller was personally involved. See Houghton, 295 F. Supp.2d at 276-77 (dismissing plaintiff's complaint where plaintiff simply alleged that defendant "failed to adequately train or supervise the officers; (2) knew about and tolerated the officers' allegedly unlawful behavior; and (3) 'failed to institute a proper system of review and reprimand' of his deputies so as to prevent the types of unlawful acts alleged here"); Pravda v. City of Albany, 956 F. Supp. 174, 182 (N.D.N.Y. 1997) (Scullin, J.) (conclusory allegations that defendants were responsible for supervising the officers involved in alleged mistreatment of plaintiff, and that they were responsible for setting county policy, were insufficient to establish their personal involvement in alleged constitutional deprivations). In addition, the Court finds that Plaintiff has failed to present any evidence that Defendant Keller adopted any policy in deprivation of Plaintiff's civil rights, or otherwise acted with gross negligence.

For these reasons, Plaintiff's claims against Defendant Keller are dismissed.

D. Claims Against Defendants Woltman, Hadsel and Feeney

As stated above in Part I.C. of this Decision and Order, Defendants seek the dismissal of Plaintiff's claims against Defendants Woltman, Hadsel and Feeney because the claims against these Defendants, which were asserted for the first time in Plaintiff's Second Amended Complaint (filed on July 22, 2008), are barred by the statute of limitations.

A party should be given leave to amend his complaint to add a new party when justice so requires. See, e.g., Blaskiewicz v. County of Suffolk, 29 F. Supp. 134, 137 (E.D.N.Y. 1998). "The party opposing such amendment has the burden of establishing that leave to amend would be prejudicial or futile." Blaskiewicz, 29 F. Supp. at 137. "A motion to amend the complaint may be considered futile if the claims or parties sought to be added are barred by the relevant statute of limitations." Id. at 138.

The statutory limitations period for an action brought in federal court in New York arising under 42 U.S.C. § 1983 is three years. Singleton v. City of New York, 632 F.2d 185, 189 (2d Cir. 1980), cert. den., 450 U.S. 920 (1981).*fn16 A cause of action under Section 1983 accrues when the plaintiff "knows or has reason to know of the injury which is the basis of his action." Singleton, 632 F.2d at 191 (citations omitted); see also Krause v. Buffalo and Erie County Workforce Dev. Consortium, Inc., et al, 425 F. Supp.2d 352, 365 (W.D.N.Y. 2006) ("[A] § 1983 action is subject to a three-year statute of limitations. The three-year limitations period also applies to actions against municipalities for wrongful conduct, rather than New York General Municipal Law § 50-i[1]."). "In cases applying the Singleton rule, the date of arrest has been used as the accrual date for any subsequent action under section 1983." Ormiston v. Nelson, 117 F.3d 69, 71 (2d Cir. 1997).

Plaintiff was arrested on September 2, 2006. Therefore, Plaintiff's Section 1983 claim accrued on September 2, 2006, and the statute of limitations on such claim expired three years thereafter, on September 2, 2009. Plaintiff's Second Amended Complaint was filed on July 22, 2008. Because Plaintiff's Second Amended Complaint was filed within the limitations period, Defendants' statute of limitations defense regarding Plaintiff's claims against Defendants Woltman, Hadsel and Feeney is without merit.

ACCORDINGLY, it is

ORDERED that Defendants' motion for summary judgment (Dkt. No. 59) is GRANTED with regard to (1) Plaintiff's Eighth Amendment claim of deliberate indifference to his serious medical needs, and (2) Plaintiff's claims against Defendant Keller; and it is further

ORDERED that Defendants' motion for summary judgment (Dkt. No. 59) is DENIED with regard to Plaintiff's Fourth Amendment excessive force claim against Defendants Hadsel, Woltman, Feeney and Rell; and it is further

ORDERED that the following claims are therefore DISMISSED from this action:

(1) Plaintiff's Eighth Amendment claim of deliberate indifference to his serious medical needs,

(2) all of Plaintiff's claims against Defendants Maisenhelder, Keller, and John Doe Desk Officer.*fn17


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