The opinion of the court was delivered by: Michael A. Telesca United States District Judge
Plaintiff, Gary Cook ("Plaintiff"), brings this action against the City of Corning based on his allegedly unlawful arrest on February 11, 2010 in the City of Corning. Compl. at ¶¶ 8-9, 15-16 (Docket No. 1.). Plaintiff initially filed this lawsuit on August 8, 2011, in the Supreme Court of the State of New York, County of Steuben. The case was thereafter removed to this Court by the Defendant, the City of Corning ("Defendant" or "the City"), based on Plaintiff's allegations of discrimination and other civil rights and due process violations.
Defendant moves to dismiss Plaintiff's Complaint, contending that his New York state law tort claims are barred by the applicable statute of limitations and because he failed to comply with the requirements of New York General Municipal Law § 50-e. Defendant also contends that he has not plead a plausible cause of action with respect to any federal or constitutional claims against the City. Plaintiff has not responded to Defendant's motion.
The following facts are taken from the Complaint and the Notice of Claim which is attached to the Complaint and incorporated into the Complaint by reference.*fn1 Plaintiff alleges that on February 11, 2010 he was stopped by several Corning City Police Officers while he was walking down Pulteney Street near the intersection of Pulnteney and Bridge Streets in Corning, New York. Plaintiff had just left an antique store in the area. Plaintiff alleges that "without warning or apparent reason," the officers surrounded him, ordered him to get down on the ground, and forcefully threw him to the ground, causing him to injure his shoulder. The officers then arrested Plaintiff, placed him in restraints and took him to the police station. Plaintiff states that he was not told why he was arrested. The officers then brought Plaintiff to the hospital where he was examined and later released by a doctor. Plaintiff also claims that at some point an officer temporarily confiscated an antique sword that was in his possession. It is unclear who took the sword and for how long the sword was out of Plaintiff's possession. It does not appear from the face of the Complaint that Plaintiff was charged with a crime.
Based on these factual allegations Plaintiff states that the City failed "to use due care in supervising, training and otherwise assuring that its officers and agents did not cause harm to Plaintiff nor discriminate against him based on his racial or ethnic background." He also asserts causes of action for "unlawful harassment, humiliation, intimidation and battery" and states that he suffered psychological injury based on the actions of the police officers. Lastly, he states that he suffered violations of his civil rights and procedural and substantive due process rights.
Plaintiff filed a Notice of Claim with the City of Corning pursuant to N.Y. General Municipal Law § 50-e on May 3, 2010. The Notice of Claim contains the same factual allegations, but does not include allegations relating to Plaintiff's claim of negligent training and supervision.
In deciding a motion to dismiss under Fed.R.Civ.P. 12(b)(6), a court must "accept...all factual allegations in the complaint and draw...all reasonable inferences in the plaintiff's favor." See Ruotolo v. City of New York, 514 F.3d 184, 188 (2d Cir.2008) (internal quotation marks omitted). In order to withstand dismissal, the complaint must plead "enough facts to state a claim to relief that is plausible on its face." See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1974 (2007). "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." See id. at 1965 (internal quotation marks omitted). Thus, "at a bare minimum, the operative standard requires the 'plaintiff [to] provide the grounds upon which his claim rests through factual allegations sufficient to raise a right to relief above the speculative level.'" See Goldstein v. Pataki, 516 F.3d 50, 56-57 (2d Cir.2008) (quoting Twombly, 127 S.Ct. at 1974).
A. Plaintiff's State Law Tort Claims While Plaintiff's Complaint does not specifically delineate the causes of action he seeks to raise, the Court has construed his Complaint to raise the following state law tort claims: (1) a general negligence claim, (2) negligent supervision and training, (3) assault, (4) battery, (5) false arrest, (5) negligent and/or intentional infliction of emotional distress and (6) unlawful deprivation of property. All of Plaintiff's claims accrued on February 11, 2010, the night of his allegedly unlawful arrest. Plaintiff filed a Notice of Claim on May 11, 2010, which describes the factual circumstances of his arrest and asserts some, but not all of the above mentioned causes of action. Plaintiff then commenced this lawsuit on August 8, 2011.
Defendant argues that Plaintiff did not properly comply with the Notice of Claim requirements of General Municipal Law § 50-e with respect to several of his claims and that all of his state law tort claims against the City of Corning are barred by the applicable statute of limitations set forth in General Municipal Law § 50-i. The Court need not address the legal sufficiency of Plaintiff's Notice of Claim or his claims in general, as his state law tort claims are barred by the applicable statute of limitations.
Section 50-i of the General Municipal Law provides that the statute of limitations for tort actions against a municipality is one year and ninety days. Plaintiff, therefore, was required to have filed his Complaint no later than May 11, 2011 to be timely. However, Plaintiff did not file the instant action until August 8, 2011. Accordingly, his state law tort claims against the City of Corning are untimely and are hereby dismissed with prejudice.
B. Plaintiff's Claims Under 42 U.S.C. § 1983 The Court also construes Plaintiff's complaint to allege several causes of action for violations of his federal civil and constitutional rights under 42 U.S.C. § 1983, including due process violations, violations of the Fourth Amendment to the U.S. Constitution and racial and/or ethnic discrimination. "To hold a city liable under § 1983 for the unconstitutional actions of its employees, a plaintiff is required to plead and prove three elements: (1) [a] policy or custom that (2) causes the plaintiff to be subjected to (3) a denial of a constitutional right." See Batista v. Rodriguez, 702 F.2d 393, 397 (2d Cir. 1983). Conclusory allegations of a policy or custom will not suffice; rather, a Plaintiff ...