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Josh Lieberman, Megan Barrett, Christine Herrick, Dave Greenlawn, Alexander v. City of Rochester

April 29, 2011


The opinion of the court was delivered by: David G. Larimer United States District Judge


In the early morning hours of June 1, 2007, an incident occurred in the area of Goodman Street in Rochester, New York, involving an altercation between two groups of people. At some point, a number of police officers arrived on the scene, and a second altercation ensued between those officers and some members of one of those two groups. Three people ended up under arrest, and, eventually, three lawsuits ensued, all stemming from that incident.

In this, one of those three lawsuits, five members of one of those groups of people have sued the City of Rochester ("City"), former police chief David Moore, and five Rochester police officers, asserting claims under 42 U.S.C. § 1983. Plaintiffs allege that the officers assaulted them, used excessive force against them, and otherwise violated their rights, in large part because of plaintiffs' actual or perceived sexual orientation.

Defendants have filed a motion for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. For the reasons that follow, the motion is granted in part and denied in part.


According to the complaint, the allegations of which I accept as true for purposes of deciding defendants' motion, sometime after midnight on June 1, 2007, three of the plaintiffs--Josh Lieberman, Christine Herrick and Dave Greenlaw, along with several other nonparty individuals--were walking home from a bar on Monroe Avenue in Rochester. As they were passing a house on South Goodman Street, a group of two women and two men on the front porch of the house began verbally harassing plaintiffs and calling them "faggots," "queers," and other homophobic epithets. Second Amended Complaint (Dkt. #21) ¶¶ 22, 23.*fn2

Plaintiffs continued walking, but the other four persons began following them. The four then physically attacked plaintiffs with kicks, punches, and blows using a metal pipe. Plaintiffs Alexander Terrance and Megan Barrett arrived at some point, but they too were attacked by the other four individuals. Id. ¶ 27.

According to the complaint, plaintiffs eventually left the scene, but, for reasons that are unclear, they returned a short time later, and found that the police had arrived. Id. ¶¶ 30, 31.

Plaintiffs identified their assailants, but the police took no action other than to tell everyone to "go home." Id. ¶ 33.

Upset at the officers' perceived passivity, plaintiffs began to demand that they take some action against plaintiffs' alleged attackers. Soon plaintiffs were embroiled in an argument with the officers. The confrontation quickly escalated, and two of the plaintiffs, Terrance and Lieberman, as well as a nonparty individual who was apparently a companion of plaintiffs, ended up being arrested and taken into custody. Plaintiffs allege that the officers used excessive force when making the arrests, and that when plaintiffs Barrett and Greenlaw attempted to intervene, the officers threatened to arrest them as well. Plaintiffs also allege that the officers used anti-gay slurs and were otherwise verbally abusive toward plaintiffs.

Lieberman was taken to the police station, where he was held for a few hours and released. He was charged with three counts of disorderly conduct. Terrance was initially taken to a hospital for treatment of his injuries, and from there he was taken to jail. He was eventually released and charged with "failure to disperse."

Based on these allegations, plaintiffs assert a total of twenty-nine individual causes of action. Each of the five plaintiffs asserts claims under state law for intentional and negligent infliction of emotional harm against defendants Sergeant Shaw, Lieutenant Ward, and Officers Tortora, MacFall, and Yodice (collectively "officers"). Each plaintiff also asserts an equal protection claim against all the defendants, a municipal liability claim under Monell v. Department of Social Services of the City of New York, 436 U.S. 658 (1978), and a claim for punitive damages against the officers. In addition, plaintiffs Terrance and Lieberman assert common-law assault and battery claims against Officer Tortora, and against all the officers, respectively. Plaintiffs Terrance and Lieberman also both assert § 1983 claims for excessive force against all the officers.*fn3


I. Motions for Judgment on the Pleadings: General Standards

"In deciding a Rule 12(c) motion, [courts] apply the same standard as that applicable to a motion under Rule 12(b)(6). Under that test, a court must accept the allegations contained in the complaint as true, and draw all reasonable inferences in favor of the non-movant." Sheppard v. Beerman, 18 F.3d 147, 150 (2d Cir. 1994). However, "a plaintiff's obligation ... requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007); accord Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1949 (2009).

Thus, where a plaintiff "ha[s] not nudged [his] claims across the line from conceivable to plausible, [his] complaint must be dismissed." Twombly, 550 U.S. at 570. A "plausible" entitlement to relief exists when the allegations in the complaint move the plaintiff's claims across the line separating the "conclusory" from the "factual," and the "factually neutral" from the "factually suggestive." Id. at 557 n. 5. See also Iqbal, 129 S.Ct. at 1950 ("only a complaint that states a plausible claim for relief survives a motion to dismiss"); accord Ruston v. Town Bd. for Town of Skaneateles, 610 F.3d 55, 58-59 (2d Cir.), cert. denied, ___ U.S. ___, 131 S.Ct. 824 (2010).

II. Equal Protection Claims

The complaint alleges generally that plaintiffs were denied their "right to equal protection on the basis for their actual or perceived sexual orientation and on the basis of their sex ... ." Complaint ¶ 1. Each plaintiff also alleges that he or she was discriminated against by defendants "as [a] member[] of an identifiable class and or 'class of one' ... ." Complaint ¶¶ 84, 123, 154, 185, 217. The specific ways in which defendants are alleged to have committed these violations are by "discriminat[ing] in the enforcement of New York State Law that requires investigation and remedy of harassment, assault, battery and hate crimes," by "fail[ing] to enforce the laws and rules of the state of New York which pertain to harassment, assault, battery and hate crimes to prevent physical and emotional harm to the plaintiffs," and by "treat[ing] the Plaintiff's complaints of harassment differently from other types of harassment for an extend [sic] period of time, thus failing to protect the Plaintiffs." Complaint ¶¶ 83, 84. Plaintiffs further allege that "defendants failed to conduct investigations of Plaintiffs' complaints, [and] took no action to locate or arrest harassing members of their community ... ." Complaint ¶ 84.

As the Second Circuit has explained, an equal protection claim can be based on an allegation that the plaintiff "was treated differently than other persons who were similarly situated and that such differential treatment was either without rational basis (a 'class of one' claim) or was motivated by an intent to discriminate on an impermissible basis (a selective enforcement claim)." Casciani v. Nesbitt, 392 Fed.Appx. 887, 888 (2d Cir. 2010) (citing Cobb v. Pozzi, 363 F.3d 89, 110 (2d Cir. 2004) (describing elements of "class of one" claim), and Zahra v. Town of Southold, 48 F.3d 674, 683 (2d Cir. 1995) (describing elements of selective ...

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