The opinion of the court was delivered by: Frederick P. Stamp, Jr. United States District Judge
MEMORANDUM DECISION AND ORDER
CONVERTING MOTION TO DISMISS INTO MOTION FOR SUMMARY JUDGMENT AND GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
The plaintiff's complaint arises out of the October 17, 2006 arrest of her husband, Mario Gomez, by the Sleepy Hollow Police Department for aggravated harassment, resisting arrest, assault, and obstruction of governmental administration. The complaint alleges violations of the plaintiff's constitutional rights, including claims of excessive force, false arrest, false imprisonment, and malicious prosecution. Additionally, the plaintiff alleges claims against the Village of Sleepy Hollow ("Village") pursuant to Monell v. New York City Dept. of Soc. Servs., 436 U.S. 658 (1978). These claims include failure to train, conspiracy claims under 42 U.S.C. §§ 1983 and 1985, and state law claims sounding in assault and negligence.*fn1
On April 17, 2008, the individual defendants, Officer Jose Quinoy ("Officer Quinoy"), Officer Eldryk Ebel ("Officer Ebel"), Officer Mike Gasker ("Officer Gasker"), Lieutenant Barry Campbell ("Lieutenant Campbell"), Lieutenant Gabriel Hayes ("Lieutenant Hayes"), Sergeant Hood,*fn2 and Chief of Police Jimmy Warren ("Chief Warren"), filed a motion to dismiss pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. The individual defendants seek to dismiss this action against them on the ground of qualified immunity. In addition to the notice of motion (Doc. 12), the individual defendants filed a declaration of Jennifer E. Sherven in support of the motion to dismiss (Doc. 13), as well as a memorandum of law (Doc. 14).
In response, on June 27, 2008, the plaintiff filed an affidavit of Frances Dapice Marinelli (Doc. 18), as well as a memorandum of law in opposition to the motion to dismiss (Doc. 19).
On August 18, 2008, the individual defendants filed a reply memorandum of law in further support of their motion to dismiss the action based on the doctrine of qualified immunity. This pending motion is now ripe for review. For the reasons set forth below, this Court finds that the individual defendants' motion to dismiss, which is converted into a motion for summary judgment, must be granted in part and denied in part.
On October 17, 2006, the plaintiff received a phone call from her husband, Mario Gomez, while visiting a friend's home. Mario told her that Officer Quinoy had called him and left a message stating that he wanted to talk. The plaintiff then received a phone call from her daughter, Bridget, who told her that Officer Quinoy had called a second time and told Mario to meet him at the Sleepy Hollow Police Station.
Upon arriving home, the plaintiff saw her husband in the parking lot and followed him in her car to the police station. When she arrived at the station, she saw approximately five police officers assaulting her husband. The plaintiff then ran into the police station seeking assistance. She spoke to Lieutenant Hayes and explained that her husband was currently being assaulted outside. Lieutenant Hayes allegedly ignored her requests for help.
After her unsuccessful attempt to seek help in the police station, the plaintiff returned to the scene of the assault and shouted at the officers to stop fighting. The plaintiff watched the officers continue to hit and taser her husband. She then went inside the police station a second time seeking help from Lieutenant Hayes, who again did nothing. When the plaintiff went back outside, she grabbed Officer Quinoy by the arm and demanded that he stop, and in response he picked her up and threw her against her car and to the ground.
Shortly thereafter, several members of the Tarrytown Police Department arrived and pulled Officer Quinoy away from Mario Gomez. Mario was handcuffed and taken into the police station. The plaintiff followed her husband into the police station and waited with her children to receive additional information.
After waiting in the police station for approximately an hour, the plaintiff's pain worsened and her daughter, Haydee Gomez, took her to Phelps Memorial Hospital. The plaintiff contends that she suffered a contusion of the left ribs and was given pain medication. After leaving the hospital, the plaintiff returned to the Sleepy Hollow Police Station to pick up her husband's car. At the station, Sergeant Hood asked if the plaintiff wanted to make a complaint, to which she responded "yes." Officer Quinoy then came into the lobby of the police station, handcuffed the plaintiff, and told her that he had no choice but to arrest her. The plaintiff contends that the report of the incident omits the fact that Officer Quinoy threw the plaintiff to the ground and arrested her four hours after the assault had ended.
III. Applicable Law A. Motion to Dismiss and Motion for Summary Judgment In considering a motion to dismiss, "a district court may
consider the facts alleged in the complaint, documents attached to the complaint as exhibits, and documents incorporated by reference in the complaint." DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010). A motion to dismiss under Rule 12(b)(6) or 12(c) must be treated as a motion for summary judgment under Federal Rule of Civil Procedure 56 where "matters outside the pleadings are presented to and not excluded by the court." Fed. R. Civ. P. 12(d). The parties "must be given a reasonable opportunity to present all the material that is pertinent to the motion." Id. The conversion is "governed by principles of substance rather than form. The essential inquiry is whether the [opposing party] should reasonably have recognized the possibility that the motion might be converted into one for summary judgment or was taken by surprise and deprived of a reasonable opportunity to meet facts outside the pleadings." In re G. & A. Books, Inc., 770 F.2d 288, 295 (2d Cir. 1985). Importantly, "[a] party cannot complain of lack of a reasonable opportunity to present all material relevant to a motion for summary judgment when both parties have filed exhibits, affidavits, counter-affidavits, depositions, etc. in support of and in opposition to a motion to dismiss." Id. In this case, because the parties have attached affidavits and transcripts of depositions to the motion, Rule 12(d) requires that it be treated as a motion for summary judgment.*fn4
Under Rule 56(c) of the Federal Rules of Civil Procedure, A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:
(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations . . . admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.
Fed. R. Civ. P. 56(c). The party seeking summary judgment bears the initial burden of showing the absence of any genuine issues of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). "The non-movant may defeat summary judgment only by producing specific facts showing that there is a genuine issue of material fact for trial." Samuels v. Mockry, 77 F.3d 34, 36 (2d. Cir. 1996) (citing Celotex, 477 U.S. at 322).
However, as the United States Supreme Court noted in Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986), "Rule 56(e) itself provides that a party opposing a properly supported motion for summary judgment may not rest upon the mere allegations or denials of his pleading, but . . . must set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 256. "The inquiry performed is the threshold inquiry of determining whether there is the need for a trial -- whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Id. at 250.
In Celotex, the Court stated that "the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322. Summary judgment is not appropriate until after the non-moving party has had adequate time for discovery. Salahuddin v. Coughlin, 993 F.2d 306, 308 (2d Cir. 1993). In reviewing the supported underlying facts, all inferences must ...