SHERRIE A. HUNTER, Plaintiff,
COUNTY OF ORLEANS, NEW YORK SHERIFF'S DEPARTMENT, COUNTY OF ORLEANS, COREY BLACK, Individually and as Sheriff of Orleans County, DAVID MEYER, PAROLE OFFICER DAVID ZAPOROWSKI, TINA PRAWEL, CO WELLS, Defendants.
William M. Pottle, Jr., Esq., Law Offices of James Morris, Buffalo, NY, for Plaintiff.
Jeremy A. Colby, Esq., Webster Szanyi LLP, Buffalo, NY, for Defendants County of Orleans Sheriff's Department, County of Orleans, and Corey Black.
Tamara B. Christie, A.A.G., New York Attorney General's Office, Rochester, NY, for Defendants David Meyer, Parole Officer Zaporowski, Tina Prawel, CO Wells.
DECISION AND ORDER
CHARLES J. SIRAGUSA, District Judge.
Pending before the Court in this civil rights case are three motions. New York State Parole Officers David Meyer ("Meyer"), Tina Prawel ("Prawel"), David Zaporowski ("Zaparowski") and Kenneth Wells ("Wells") filed a motion for judgment on the pleadings on July 31, 2013, ECF No. 14, followed by a motion for summary judgment on May 30, 2013, ECF No. 28 ("Parole Officers' motion"). Investigator Corey Black ("Black"), the County of Orleans and its Sheriff's Department filed a motion for summary judgment on June 3, 2013, ECF No. 29 ("County defendants' motion"). The Court heard oral argument on September 27, 2013. For the reasons stated below, the applications are granted in part, denied in part.
The complaint contains the following factual allegations relevant to the basis for Plaintiff's claims:
5. On or about December 16, 2010, Sherrie A. Hunter, plaintiff, was residing at 16540 Hinds Road, Holley, New York 14470, when the above named defendants arrived at the door of her home in the early hours of the morning.
6. Upon information and belief, Officers Black and Prawel knocked on the front entrance door of which Sherrie A. Hunter opened the door slightly and informed the officers that she wanted to put her two large dogs that were with her back before opening the door further.
7. At that time and place Officers Black and Prawel then forced open and pushed the door with great physical force thereby causing the door to slam into Sherri A. Hunter and causing her to be thrown across the room and slam into a refrigerator and fall to the floor.
8. Upon information and belief, Officers Black and Prawel were accompanied by the other defendant officers who showed a threatening force to the plaintiff and participated in breaking down her door.
9. As a result of this incident and the recklessness, carelessness and negligence of the above-named defendants, plaintiff Sherrie A. Hunter suffered severe injuries to her back and legs, and severe emotional distress and pain and permanent damage, and incurred medical expenses in amounts to be determined.
Compl. ¶¶ 5-9. Plaintiff alleges five causes of action: (1) Defendant Black's forced entry injured Plaintiff "in violation of United States Code § 1983 wherein under his power of authority under state law violated the rights of the plaintiff..."; (2) Defendant Black "was negligent and reckless in breaking into and trespassing" in Plaintiff's home; (3) Parole Officers Meyer, Zaporowski, Prawel and Wells, "were operating under color of state law when they violated [Plaintiff's] rights pursuant to United States Code § 1983, causing her severe injuries, mental anguish, pain and suffering and permanency all to her damages to be determined"; (4) Parole Officers Meyer, Zaporowski, Prawel and Wells, "were reckless and negligent and used excessive force in breaking into plaintiff's house causing here severe injury, mental anguish, pain and suffering and permanent injuries all in sums to be determined"; (5) "[t]he County of Orleans and its Division of the Sheriff's Department are responsible and liable for the actions of the Sheriffs and their actions alleged above...." Compl. at 10-12.
STANDARDS OF LAW
Motion for Judgment on the Pleadings
"The standard for addressing a Rule 12(c) motion for judgment on the pleadings is the same as that for a Rule 12(b)(6) motion to dismiss for failure to state a claim." Cleveland v. Caplaw Enterprises, 448 F.3d 518, 521 (2d Cir. 2006). The U.S. Supreme Court, in Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), clarified the standard to be applied to a 12(b)(6) motion:
Federal Rule of Civil Procedure 8(a)(2) requires only a short and plain statement of the claim showing that the pleader is entitled to relief, in order to give the defendant fair notice of what the claim is and the grounds upon which it rests. 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. Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).
Id. at 1964-65 (citations and internal quotations omitted); s ee also, ATSI Communications, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007) ("To survive dismissal, the plaintiff must provide the grounds upon which his claim rests through factual allegations sufficient to raise a right to relief above the speculative level.'") (quoting Bell Atl. Corp. v. Twombly ) (footnote omitted); Iqbal v. Hasty, 490 F.3d 143 (2d Cir. 2007) (Indicating that Bell Atl. Corp. v. Twombly adopted "a flexible plausibility standard, ' which obliges a pleader to amplify a claim with some factual allegations in those contexts where such amplification is needed to render the claim plausible[, ]" as opposed to merely conceivable.)
When applying this standard, a district court must accept the allegations contained in the complaint as true and draw all reasonable inferences in favor of the nonmoving party. Burnette v. Carothers, 192 F.3d 52, 56 (1999), cert. denied, 531 U.S. 1052 , 121 S.Ct. 657, 148 L.Ed.2d 560 (2000). On the other hand, "[c]onclusory allegations of the legal status of the defendants' acts need not be accepted as true for the purposes of ruling on a motion to dismiss." Hirsch v. Arthur Andersen & Co., 72 F.3d 1085, 1092 (2d Cir. 1995)( citing In re American Express Co. Shareholder Litig., 39 F.3d 395, 400-01 n.3 (2d Cir.1994)). As the Supreme Court clarified in Ashcroft v. bal, 556 U.S. 662 (2009):
Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. Id., at 555, (Although for the purposes of a motion to dismiss we must take all of the factual allegations in the complaint as true, we "are not bound to accept as true a legal conclusion couched as a factual allegation" (internal quotation marks omitted)). Rule 8 marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era, but it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions. Second, only a complaint that states a plausible claim for relief survives a motion to dismiss. Id., at 556. Determining whether a complaint states a plausible claim for relief will, as the Court of Appeals observed, be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. 490 F.3d at 157-158. But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not "show[n]"-"that the pleader is entitled to relief." Fed. Rule Civ. Proc. 8(a)(2).
Iqbal, 556 U.S. at 678-79.
Summary Judgment Motion
Summary judgment may not be granted unless "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). A party seeking summary judgment bears the burden of establishing that no genuine issue of material fact exists. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). "[T]he movant must make a prima facie showing that the standard for obtaining summary judgment has been satisfied." 11 MOORE'S FEDERAL PRACTICE § 56.11[a] (Matthew Bender 3d ed.). "In moving for summary judgment against a party who will bear the ultimate burden of proof at trial, the movant may satisfy this burden by pointing to an absence of evidence to support an essential element of the nonmoving party's claim." Gummo v. Village of Depew, 75 F.3d 98, 107 (2d Cir. 1996) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)), cert. denied, 517 U.S. 1190 (1996).
The burden then shifts to the non-moving party to demonstrate specific facts showing that there is a genuine issue for trial. Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). To do this, the non-moving party must present evidence sufficient to support a jury verdict in its favor. Anderson, 477 U.S. at 249. "[F]actual issues created solely by an affidavit crafted to oppose a summary judgment motion are not genuine' issues for trial." Hayes v. N.Y. City Dep't of Corr., 84 F.3d 614, 619 (2d Cir. 1996). Summary judgment is appropriate only where, "after drawing all reasonable inferences in favor of the party against whom summary judgment is sought, no reasonable trier of fact could find in favor of the non-moving party." Leon v. Murphy, 988 F.2d 303, 308 (2d Cir. 1993). The parties may only carry their respective burdens by producing evidentiary proof in admissible form. Fed.R.Civ.P. 56(c)(1)(B). The underlying facts contained in affidavits, attached exhibits, and depositions, must be viewed in the light most favorable to the non-moving party. U.S. v. Diebold, Inc., 369 U.S. 654, 655 (1962).
Plaintiff is suing pursuant to 42 U.S.C. § 1983, and the legal principles generally applicable to such claims are well settled:
In order to establish individual liability under § 1983, a plaintiff must show (a) that the defendant is a "person" acting "under the color of state law, " and (b) that the defendant caused the plaintiff to be deprived of a federal right. See, e.g., Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961).
Back v. Hastings On Hudson Union Free Sch. Dist., 365 F.3d 107, 122 (2d Cir.2004).
Official Capacity Claims
Under the Eleventh Amendment, State officials can be sued in their official capacities for injunctive relief, but not for money damages. See Fulton v. Goord, 591 F.3d 37, 45 (2d Cir. 2009) (noting that " Kentucky v. Graham, 473 U.S. 159, 169, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985), holds that in a suit against state officials in their official capacities, monetary relief (unlike prospective injunctive relief) is generally barred by the Eleventh Amendment, " though such immunity may be waived or abrogated in a particular case).
An individual cannot be held liable for damages under § 1983 "merely because he held a high position of authority, " but can be held liable if he was personally involved in the alleged deprivation. See Black v. Coughlin, 76 F.3d 72, 74 (2d Cir. 1996). Personal involvement can be shown by:
evidence that: (1) the defendant participated directly in the alleged constitutional violation, (2) the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong, (3) the defendant created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom, (4) the defendant was grossly negligent in supervising subordinates who committed the wrongful acts, or (5) the defendant exhibited deliberate indifference... by failing to act on information indicating that unconstitutional acts were occurring. See Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir.1995).
Back v. Hastings On Hudson Union Free Sch. Dist., 365 F.3d 107, 122, 127 (2d Cir. 2004).
Negligence and Recklessness under New York law
New York Pattern Jury Instructions define negligence and reckless disregard for the safety of others as follows:
Negligence is lack of ordinary care. It is a failure to use that degree of care that a reasonably prudent person would have used under the same circumstances.
Negligence may arise from doing an act that a reasonably prudent person would not have done under the same circumstances, or, on the other hand, from failing to do an act that a reasonably prudent person would have done under the same circumstances....
A person acts with reckless disregard for the safety of others when (he, she) intentionally or with gross indifference to the rights or safety of others engages in conduct that makes it probable that injury will occur.
N.Y. Pattern Jury Instr., Civil, 2:10 & 2:275.2 ...