The opinion of the court was delivered by: Hon. Hugh B. Scott
Decision & Order and Report & Recommendation
Before the Court are the following motions: defendants' motion to dismiss (Docket No. 19)*fn1 and plaintiff's motion to amend the notice of claim (Docket No. 40).*fn2
The plaintiff, Jaquinda Coleman ("Coleman") commenced this action pursuant to 42 U.S.C. §1983 alleging that her rights were violated in connection with her arrest on February 24, 2008. Named as defendants are: The City of Niagara Falls ("Niagara Falls"), Kenneth E. Redmond ("Redmond") and ten "John Does" whose identities are unknown. (Docket No. 1). It is undisputed that on February 24, 2008, Coleman was arrested by Niagara Falls police officers. Defendant Redmond, and other Niagara Falls police officers, responded to a domestic dispute involving Coleman's pregnant sister and her sister's boyfriend. (Docket No. 40, page 38, at ¶20). According to the defendants, Coleman attempted to impede their investigation and failed to obey various orders to disperse. (Docket No. 21 at page 2). Coleman was eventually arrested and charged with disorderly conduct, obstruction of justice, and resisting arrest. (Docket No. 20 at ¶ 3). Among the charges asserted against Coleman, the plaintiff was charged with obstructing governmental administration and disorderly conduct in that she impeded the investigation of an assault involving one of her neighbors by "demanding that an arrest be made, refusing numerous orders to leave the scene, shouting racial slurs directed at officers, and making threats of physical violence towards Officer Redmond and, in fact, did attack." (Docket No. 20-2 at page 5). Coleman was alleged to have resisted arrest in the following manner: "Jaquinda Coleman did intentionally attempt to prevent Officer Redmond from affecting a lawful arrest of herself by pulling away from [Redmond] and clenching her fists. [Coleman] was pepper sprayed in the facial area and at the time she charged at [Redmond], attempting to tackle him by the waist. [Redmond] did strike [Coleman] with a flashlight at which time she was taken into custody." (Docket No. 20-2 at page 4). The plaintiff was charged with a second count of disorderly conduct after her arrest, when she shouted at the officers: "I'm no fucking dog, I don't have to listen to you. I only listen to God, you white supremacist. Reverend Al Sharpton will have your job for being a racist, white supremacist. I am here to bring the white folk down. There is a white versus black thing, you cops are white supremacists bringing us black folk down. Go ahead, please try to arrest me, see what happens." (Docket No. 20-2 at page 7). Coleman pled guilty to two counts of disorderly conduct admitting that she refused to comply with lawful orders of the police and that she used abusive language. (Docket No. 20-2 at page 9). During the plea colloquy, however, Coleman was expressly asked only whether she "refused to comply with a lawful order of the police to disperse." (Docket No. 20-2 at page 9). The plaintiff was not directly asked if she admitted to each of the other factual representations in the charging document. Coleman disputes (Docket No. 36 at ¶ 4) the "version of the incident" as set forth in the defendant's papers (Docket No. 21 at pages 2-4).
The plaintiff's original Complaint asserts the following claims:(1) that the defendant's actions "were without warrant, authority of law, or any reasonable cause" in violation of §1983 (Docket No. 1 at ¶¶ 39-43); (2) that the defendant's used excessive force (Docket No. 1 at ¶¶ 44-47); (3) false arrest and imprisonment pursuant to §1983 (Docket No. 1 at ¶¶ 48-50); (4) common law assault (Docket No. 1 at ¶¶ 51-53); (5) common law battery (Docket No. 1 at ¶¶ 54-56); (6) common law false arrest and imprisonment (Docket No. 1 at ¶¶ 57-59); (7) common law intentional infliction of emotional distress (Docket No. 1 at ¶¶ 60-63); (8) negligent infliction of emotional distress (Docket No. 1 at ¶¶ 64-67); and (9) common law negligence (Docket No. 1 at ¶¶ 68-71).*fn3
The plaintiff seeks to amend the complaint (Docket No. 40). The proposed Amended Complaint reasserts the general allegations set forth in the original Complaint (occasionally adding more detail), but eliminates Count 1 (that the defendant's actions "were without warrant, authority of law, or any reasonable cause" in violation of §1983), Count 3 (false arrest and imprisonment pursuant to §1983 ) and Count 6 (common law false arrest and imprisonment) as originally pled. Thus, the Proposed Amended Complaint would assert the following claims: (1) excessive force in violation of the Fourth and Fourteenth Amendments (Proposed Amended Complaint at ¶¶ 44-47); (2) assault (Proposed Amended Complaint at ¶¶ 48-52); (3) battery (Proposed Amended Complaint at ¶¶ 53-57); (4) intentional infliction of emotional distress (Proposed Amended Complaint at ¶¶ 58-62); (5) negligent infliction of emotional distress (Proposed Amended Complaint at ¶¶ 63-65); (6) negligent hiring (Proposed Amended Complaint at ¶¶ 67-70).
Rule 15(a) of the Federal Rules of Civil Procedure provides that leave to amend a party's pleading "shall be freely given when justice so requires." Leave to amend should be given "absent evidence of undue delay, bad faith or dilatory motive on the part of the movant, undue prejudice to the opposing party, or futility." Monahan v. New York City Dep't of Corrs., 214 F.3d 275, 283 (2d Cir.2000).
The defendants oppose the motion to amend the complaint on the grounds that it would be futile. (Docket No. 43). The defendants argue that Coleman's §1983 excessive force claim must fail due to Coleman's guilty plea to the disorderly conduct charges. In support of this argument, the defendants cite to Nogbou v. Mayrose, 2009 WL 3334805 (S.D.N.Y., October 15, 2009), wherein the Court dismissed the plaintiff's excessive force claims pursuant to Rule 12 by finding that the officer's actions were objectively reasonable under the circumstances present in that case. In Nogbou, however, the Court determined that the plaintiff's allegations established that the force used the officers was de minimus. Nogbou, 2009 WL 3334805 at *6. The Court cannot make a similar finding in the instant case based upon a review of the allegations in the Proposed Amended Complaint. In the Proposed Amended Complaint, Coleman states that as the police were investigating the domestic dispute involving Coleman's sister, Coleman asked Redmond why her sister's boyfriend was not being arrested and stated to Redmond that he [the boyfriend] would have been arrested if the victim was a white woman. (Proposed Amended Complaint at ¶ 21). According to the plaintiff, Redmond told her that if she thought like that she would not "get far in the system." (Proposed Amended Complaint at ¶ 22). Coleman asserts that she responded to Redmond that she was "not interested in getting anywhere in a White supremacist system." (Proposed Amended Complaint at ¶ 23). Coleman claims that Redmond told the plaintiff to go away or he would pepper spray her (Proposed Amended Complaint at ¶ 24), and that after "a further verbal exchange," Redmond walked away to another area of the parking lot, then without warning "ran up to [Coleman] and discharged pepper spray into her face." (Proposed Amended Complaint at ¶¶25-27). Coleman contends that she took her glasses off after she was pepper sprayed, and at that time, Redmond struck her on the forehead with a flashlight. (Proposed Amended Complaint at ¶29). Specifically as to Niagara Falls, Coleman alleges that the City "had a policy an custom in place that tolerated the use of flashlights as weapons to subdue suspects and arrestees without reference to a reasonable use of force continuum and without consideration of recourse to less deadly uses of force, a policy and custom in place that tolerated the use of pepper spray on suspects and arrestees who are not resisting arrest or otherwise engaging in criminal activity and which otherwise tolerated and encouraged use of excessive force in making arrests and in retaliation of perceived disrespect of police officers. (Proposed Amended Complaint at ¶18). These allegations are not factually negated by the plaintiff's guilty plea on the disorderly conduct charge in which she expressly admitted only to the failure to disperse.*fn4 See Getlin v. Zoll, 2010 WL 1608845 (E.D.N.Y. 2010)(Plaintiff's claim of excessive force is not precluded by his prior conviction for reckless endangerment. Neither the conviction itself nor the plea allocution addresses Plaintiff's action in accelerating his car so as to endanger a police officer vis a vis when Plaintiff was shot.) In light of the dispute as to the factual circumstances leading up to the use of force by Redmond, the Court cannot conclude that the officer's conduct was objectively reasonable and that the force used was de minimus, as was the case in Nogbou. To the extent that dismissal was based upon this argument, the motion to dismiss should be denied.
Further, the Supreme Court has clarified the pleading standard required to withstand a motion to dismiss. "[O]nly a complaint that states a plausible claim for relief survives a motion to dismiss. Determining whether a complaint states a plausible claim for relief will ... be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Ashcroft v. Iqbal, --- U.S. ----, ----, 129 S.Ct. 1937, 1950 (2009) (internal citation omitted). "While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Id.; see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 565-66 (2007). Under Iqbal, factual allegations must be sufficient to support necessary legal conclusions. Iqbal, 129 S.Ct. at 1950-51. "A court 'can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth.'" Hayden v. Paterson, 594 F.3d 150, 161 (2d Cir.2010) (quoting Iqbal, 129 S.Ct. at 1950). The Court must then consider the factual allegations in the complaint to determine if they plausibly suggest an entitlement to relief. Iqbal, 129 S.Ct. at 1951; see also Harris v. Mills, 572 F.3d 66, 72 (2d Cir.2009). Here, the plaintiff sets forth allegations with sufficient specificity as to the excessive force claim, which if believed to be true, plausibly suggest entitlement to relief.
Next, the defendants contend that the plaintiff cannot assert the various state law claims because she failed to appear for the §50-h hearing as required under the New York General Municipal Law. (Docket No. 43 at page 2). It appears that the §50-h hearing was scheduled to take place on June 17, 2008. On June 11, 2008, David Rusin, Esq., former counsel for Coleman, wrote to the Niagara Falls Corporation Counsel and stated that the June 17, 2008 date was inconvenient for Coleman and that Coleman did not want to appear for such a hearing until after the conclusion of the underlying criminal case against her. (Docket No. 36-2)*fn5 . By letter dated June 13, 2008, Assistant Corporation Counsel Douglas Janese Jr. responded that he would reschedule the hearing for another date (and provided several proposed dates in June and July of 2008), but that unless one of the proposed dates was acceptable he intended to proceed with the §50-h hearing on June 17, 2008 as scheduled. (Docket No. 36-3). Coleman did not agree to any of the proposed dates and did not appear for the §50-h hearing on June 17, 2008. By letter dated November 26, 2008, Rusin advised Janese that the criminal matter had been resolved and that Coleman was now available for a §50-h hearing. (Docket No. 36-4). Niagara Falls did not conduct such a hearing.
Generally, a plaintiff who has failed to comply with a demand for a hearing served pursuant to General Municipal Law § 50-h(2) is precluded from commencing an action against a municipality. See General Municipal Law § 50-h.*fn6 However, the statute suggests that the municipality shall grant a reasonable requests for adjournment of the administrative hearing and anticipates that such request may be for periods beyond 90 days. Section 50-h(5) provides as follows:
Where a demand for examination has been served as provided in subdivision two of this section no action shall be commenced against the city, county, town, village, fire district or school district against which the claim is made unless the claimant has duly complied with such demand for examination, which compliance shall be in addition to the requirements of section fifty-e of this chapter. If such examination is not conducted within ninety days of service of the demand, the claimant may commence the action. The action, however, may not be commenced until compliance with the demand for examination if the claimant fails to appear at the hearing or requests an adjournment or postponement beyond the ninety day period. If the claimant requests an ...