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Brian Moffett v. Town of Poughkeepsie

August 29, 2012

BRIAN MOFFETT, PLAINTIFF,
v.
TOWN OF POUGHKEEPSIE,
TOWN OF POUGHKEEPSIE POLICE DEPARTMENT,
POLICE OFFICER DOUGLAS HAUSEMAN IN HIS INDIVIDUAL AND OFFICIAL CAPACITY,
POLICE OFFICER RAYMOND MARINO, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY, POLICE OFFICER LASZLO TOTH, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY, POLICE OFFICER JOHN WEIGARD, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY,
POLICE OFFICER GARY HULBERT, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY,
POLICE OFFICER JOSEPH LOMBARDI, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY, POLICE OFFICER BRIAN WALSH, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY,
POLICE OFFICER ROBERT BURGER, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY,
POLICE OFFICER MELCHIORRE BRUSCHETTI, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY, POLICE OFFICER THOMAS KEITH, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY, POLICE OFFICER DAVID MULLEN, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY, AND
POLICE OFFICERS JOHN DOES 1-10,
DEFENDANTS.



The opinion of the court was delivered by: Ramos, D.J.:

OPINION AND ORDER

Plaintiff Brian Moffett ("Plaintiff" or "Moffett") brings this civil rights suit pursuant to 42 U.S.C. §§ 1981, 1983 and 1985, alleging violations of the Fifth and Fourteenth Amendments to the U.S. Constitution against Defendants Town of Poughkeepsie (the "Town"), Town of Poughkeepsie Police Department (the "Police Department")*fn1 , and various named and unnamed Poughkeepsie Police Department Officers in their individual and official capacities (the "Officers," and collectively "Defendants"). Defendants have now moved to dismiss all claims in the Complaint-except for Plaintiff's § 1983 excessive force claim-pursuant to Federal Rule of Civil Procedure 12(b)(6) on the ground that Plaintiff has failed to state any plausible claims of entitlement to relief. For the reasons discussed below, Defendants' motion to dismiss is GRANTED.

I. Factual Background

On September 13, 2008, Plaintiff had an argument with his girlfriend, Lydia Bachman ("Bachman"), at her Cornwall, New York residence, which prompted her to call 911. (Compl. ¶¶ 18-19.) Officer Gebert ("Gebert") of the Town of Cornwall Police Department responded to her apartment, but when he arrived, Plaintiff was no longer present. (Id. ¶ 22.) Bachman reported to Gebert that she and the Plaintiff had a domestic dispute. (Affidavit of David Posner ("Posner Aff."), Ex. B-2.) While Gebert was present in Bachman's apartment, Plaintiff initiated a phone call to Bachman's mobile phone. (Compl. ¶ 20.) He hung up immediately when he learned that police were present in her apartment, then sent her a text message and called her house phone. (Id.) While Bachman spoke to Plaintiff on her house phone, Gebert picked up Bachman's mobile phone to read the text message she had received from Plaintiff. (Id. ¶ 21.) Bachman informed Gebert that she did not wish to press charges against Plaintiff, and only wanted him to stay away from her until he calmed down from their argument. (Id.)

After their phone call, Plaintiff and Bachman did not speak to or see one another for the rest of that day. (Compl. ¶ 22.) Plaintiff drove to his mother's house in Poughkeepsie, New York, to spend the night there. (Id. ¶ 23.) Gebert, after leaving Bachman's home, contacted the Poughkeepsie Police Department to inform them of the dispute and that Plaintiff might be on his way to his mother's home in Poughkeepsie. (Id. ¶¶ 24, 26.) Gebert stated in his report to the Poughkeepsie Police Department that Plaintiff made threats in a text message to Bachman to do "suicide by cop," and that the police would not have enough firepower to stop him. (Id. ¶ 25; Posner Aff., Ex. B-2.)

Later that evening, Officers Raymond Marino, Laszlo Toth and John Weigard, of the Poughkeepsie Police Department, spoke to Plaintiff's mother, Nancy Fritz ("Fritz") at her home. (Compl. ¶ 28.) Officer Marino, a high-school classmate and longtime friend of Plaintiff's, spoke to him briefly on the phone, and reported that Plaintiff stated he would not be returning to his mother's home, but if the police came after him he would "take them out." (Id. ¶¶ 28, 30; Posner Aff., Ex. B-2.) Marino did not inform Plaintiff at that time that he was making a mental health assessment. (Compl.¶ 29.) He also never directly observed Plaintiff. (Id.) Plaintiff "vehemently" denies that he threatened to "take out" the police in his conversation with Marino. (Id. ¶ 30.) Poughkeepsie Police Department records reflect that Plaintiff had no known weapons in his possession. (Posner Aff., Ex. B-2.)

In the early morning hours of September 14, 2008, a police car drove by Fritz's house and reported that Plaintiff's car was in the driveway, but made no mention of any activity or other signs of emergency in the house. (Compl. ¶¶ 32-33.) Several hours later, an armed SWAT team surrounded the home and awakened Plaintiff and Fritz in an attempt to force Plaintiff to undergo a psychiatric evaluation. (Id. ¶¶ 34, 42-43.) Plaintiff negotiated with the officers to have his mother drive him to St. Francis Hospital for the evaluation, but upon leaving the house and walking to his car, Plaintiff was apprehended by several armed officers. (Id. ¶¶ 35, 38.) He alleges that he was slammed into the side of the home and the he was subsequently shot in the chest with TASER darts multiple times. (Id. ¶¶ 39, 40.) He was then handcuffed and transported to St. Francis Hospital, where he was evaluated and released after the medical staff determined that he was not a danger to himself or to others. (Id. ¶¶ 42, 43.) Plaintiff alleges that he sustained several open wounds as a result of the Officers' conduct and that he suffered from these traumatic injuries for days after the incident. (Id. ¶¶41, 46.)

Approximately two weeks later, on October 1, 2008, Plaintiff received a warrant for resisting arrest, for which he voluntarily surrendered. (Id. ¶ 44.) He was convicted at trial of resisting arrest, assessed a fine, and sentenced to three years of probation. (Id. ¶ 45.) Plaintiff has appealed his conviction. (Id.)

In the instant action, Plaintiff has sued the Defendants as a result of the aforementioned incident pursuant to 42 U.S.C. §§ 1981, 1983 and 1985. Plaintiff has, however, voluntarily dismissed his § 1981 claim, and Defendant has moved to dismiss all claims except for Plaintiff's § 1983 excessive force claim. The Court will thus address Plaintiff's only remaining claims that are subject to Defendant's motion to dismiss-the § 1983 municipal liability and false arrest claims, and the § 1985 conspiracy claim.

II. Legal Standard for a Motion to Dismiss

On a motion to dismiss pursuant to Rule 12(b)(6), district courts are required to accept as true all factual allegations in the complaint and to draw all reasonable inferences in the plaintiff's favor. Famous Horse Inc. v. 5th Ave. Photo Inc., 624 F.3d 106, 108 (2d Cir. 2010). However, this requirement does not apply to legal conclusions, bare assertions or conclusory allegations. Ashcroft v. Iqbal, 556 U.S. 662, 678, 681 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).In order to satisfy the pleading standard set forth in Rule 8 of the Federal Rules of Civil Procedure, a complaint must contain sufficient factual matter to state a claim to relief that is plausible on its face. Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 570). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. Accordingly, a plaintiff is required to support its claims with sufficient factual allegations to show "more than a sheer possibility that a defendant has acted unlawfully." Id. "Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief." Id. (quoting Twombly, 550 U.S. at 557) (internal quotation marks omitted).

In deciding a motion to dismiss, a court may consider facts alleged in documents attached to the complaint as exhibits or incorporated in the complaint by reference.*fn2 Falso v. Ablest Staffing Servs., 328 F. App'x 54, at *1 (2d Cir. 2009) (citing Newman & Schwartz v. Asplundh Tree Expert Co., 102 F.3d 660, 662 (2d Cir.1996)). Though a plaintiff may plead facts alleged upon information and belief, "where the belief is based on factual information that makes the inference of culpability plausible," Arista Records, LLC v. Doe 3, 604 F.3d 110, 120 (2d Cir. 2010),such allegations must be"'accompanied by a statement of the facts upon which the belief is founded.'" Prince v. Madison Square Garden, 427 F. Supp. 2d 372, 385 (S.D.N.Y. 2006); see also Williams v. Calderoni, No. 11 Civ. 3020(CM), 2012 WL 691832, at *7-8 (S.D.N.Y. Mar. 1, 2012) (finding pleadings on information and belief insufficient where plaintiff pointed to no information that would render his statements anything more than speculative claims or conclusory assertions). A complaint that "tenders naked assertions devoid of further factual enhancement" will not survive a motion to dismiss under Rule 12(b)(6). Iqbal, 556 U.S. at 678(quoting Twombly, 550 U.S. at 557) (internal quotation marks omitted) (brackets omitted).

III. Municipal Liability Pursuant to 42 U.S.C. § 1983 ("Monell Claim")

In order to state a claim under 42 U.S.C. ยง 1983, a plaintiff must allege that: (1) defendants were state actors or were acting under color of state law at the time of the alleged wrongful action; and (2) the action deprived plaintiff of a right secured by the Constitution or federal law. Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999). "Section 1983 is only a grant of a right of action; the substantive right giving rise to the action must come from another source." Singer v. Fulton Cnty. Sheriff, 63 F.3d 110, 119 (2d Cir. 1995) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 150 (1970)). Thus, a civil ...


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