United States District Court, S.D. New York
OPINION & ORDER
NELSON S. ROMN, District Judge.
Caisy Frank, a New York State prisoner and plaintiff pro se ("Plaintiff"), brings this action pursuant to 42 U.S.C. § 1983 against Detective Minet and Detective Kelch, sued as Detective Kelsh (together, "Defendants"). Before the Court is Defendants' motion to dismiss for failure to state a claim under Fed.R.Civ.P. 12(b)(6). For the following reasons, Defendants' motion is DENIED in part and GRANTED in part, without prejudice to allow Plaintiff an opportunity to replead.
The following facts, taken from Plaintiff's Complaint, are presumed true for the purposes of this motion. Plaintiff alleges that on March 21, 2013, he was handcuffed and placed in the backseat of a police vehicle at the Ridge Hill Mall in Yonkers, New York. Detective Minet questioned Plaintiff about the location of a certain set of keys for approximately ten minutes, after which time, Detective Minet punched Plaintiff in the face several times and choked him. Other officers pulled Detective Minet away from Plaintiff, who then kicked out the passenger side window of the police car. Detective Kelch was the arresting officer, and apparently witnessed Detective Minet attacking Plaintiff. Plaintiff also alleges that after he kicked the window, he was pulled out of the police car and "jumped" by several officers.
Plaintiff claims that due to the attacks, he sustained deep cuts to his head, just above the hairline and inside his right ear, and a large bump behind his right ear. He also alleges that due to the purposeful tightening of his handcuffs after he was dragged out of the police car, his wrists were bleeding. He claims that he did not receive any medical treatment from the police and only received medical care after being booked at the county jail and signing up for sick call.
II. Legal Standard
On a motion to dismiss for "failure to state a claim upon which relief can be granted, " Fed.R.Civ.P. 12(b)(6), dismissal is proper unless the complaint "contain[s] sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); accord Hayden v. Paterson, 594 F.3d 150, 160 (2d Cir. 2010). "Although for the purposes of a motion to dismiss [a court] must take all of the factual allegations in the complaint as true, [it is] not bound to accept as true a legal conclusion couched as a factual allegation.'" Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). When there are well-pleaded factual allegations in the complaint, "a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Id. A claim is facially plausible when the factual content pleaded allows a court "to draw a reasonable inference that the defendant is liable for the misconduct alleged." Id. at 678. Determining whether a complaint states a facially plausible claim upon which relief may be granted is "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 679.
" Pro se complaints are held to less stringent standards than those drafted by lawyers, even following Twombly and Iqbal. " Thomas v. Westchester, No. 12-CV-6718 (CS), 2013 WL 3357171 (S.D.N.Y. July 3, 2013). The court should read pro se complaints "to raise the strongest arguments that they suggest, '" Kevilly v. New York, 410 F.Appx. 371, 374 (2d Cir. 2010) (summary order) (quoting Brownell v. Krom, 446 F.3d 305, 310 (2d Cir. 2006)); see also Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) ("even after Twombly, though, we remain obligated to construe a pro se complaint liberally."). "In addition, because a pro se plaintiff's allegations must be construed liberally, it is appropriate for a court to consider factual allegations made in a pro se plaintiff's opposition memorandum, as long as the allegations are consistent with the complaint." Brooks v. Jackson, No. 11 Civ. 6627(JMF), 2013 WL 5339151, at *3 (S.D.N.Y. Sept. 23, 2013). "However, even pro se plaintiffs asserting civil rights claims cannot withstand a motion to dismiss unless their pleadings contain factual allegations sufficient to raise a right to relief above the speculative level." Jackson v. N.Y.S. Dep't of Labor, 709 F.Supp.2d 218, 224 (S.D.N.Y. 2010) (quoting Twombly, 550 U.S. at 555) (internal quotation marks omitted). Dismissal is justified, therefore, where "the complaint lacks an allegation regarding an element necessary to obtain relief, " and therefore, the court's "duty to liberally construe a plaintiff's complaint [is not] the equivalent of a duty to re-write it." Geldzahler v. New York Medical College, 663 F.Supp.2d 379, 387 (S.D.N.Y. 2009) (internal citations and alterations omitted).
The materials that may be considered on a motion to dismiss are those "asserted within the four corners of the complaint, the documents attached to the complaint as exhibits, and any documents incorporated in the complaint by reference." McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir. 2007). One way a document may be deemed incorporated by reference is where the complaint "refers to" the document. EQT Infrastructure Ltd. v. Smith, 861 F.Supp.2d 220, 224 n. 2 (S.D.N.Y. 2012). Especially important to the inquiry of whether to consider a document outside the Complaint is whether Plaintiff has notice of such documents. Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 48 (2d Cir. 1991) ("[T]he district court... could have viewed [the documents] on the motion to dismiss because there was undisputed notice to plaintiffs of their contents and they were integral to plaintiffs' claim."). Conversely, when the defendant includes documents that do not fall into these categories, "a district court must either exclude the additional material and decide the motion on the complaint alone or convert the motion to one for summary judgment... and afford all parties the opportunity to present supporting material." Friedl v. City of N.Y., 210 F.3d 79, 83 (2d Cir. 2000) (internal quotation marks omitted). Although a court may sometimes consider documents outside of the Complaint where Plaintiff has notice of such documents, that becomes problematic when Plaintiff does not have an opportunity to respond to such documentation. See Cortec Indus., 949 F.2d at 48. Defendants include Plaintiff's "Booking Data Sheet" as an exhibit to their reply memorandum, Reply Aff. Ex. A, which includes his mug shot. Plaintiff may have had notice of this document but he had no opportunity to respond to it. Therefore, the Court will not consider the Booking Data Sheet on this motion to dismiss.
Liberally construing the pro se Complaint, Plaintiff's factual allegations raise claims of excessive force and denial of medical treatment. It is well settled that "personal involvement of defendants in alleged constitutional deprivations is a prerequisite for an award of damages under § 1983." Provost v. City of Newburgh, 262 F.3d 146, 155 (2d Cir. 2001) (quoting Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994)).
a. Excessive Force
The Fourth Amendment prohibits police officers from using excessive force in the context of an arrest. Tracy v. Freshwater, 623 F.3d 90, 96 (2d Cir. 2010) (citing Graham v. Connor, 490 U.S. 386, 395 (1989)). Courts apply an objective reasonableness standard to determine whether the force used was excessive. Id. (quoting Bryant v. City of New York, 404 F.3d 128, 136 (2d Cir. 2005)). Thus, "the inquiry is necessarily case and fact specific and requires balancing the nature and quality of the intrusion on the plaintiff's Fourth Amendment interests against the countervailing governmental interests at stake." Id. (citing Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 123 (2d Cir. 2004)). To determine whether the force used was reasonable, courts consider "(1) the nature and severity of the crime leading to the arrest, (2) whether the suspect pose[d] an immediate threat to the safety of the officer or others, and (3) whether the suspect was actively resisting arrest or attempting to evade arrest by flight." Id. (citations omitted). The evidence is viewed "from the perspective of a reasonable officer on the scene, " allowing for "the fact that police officers are often forced to make split-second judgments-in circumstances that are tense, uncertain, and rapidly evolving-about the amount of force that is necessary in a particular situation." Id. (internal quotation marks and citations omitted).
Additionally, to succeed on an excessive force claim, "a plaintiff generally must prove he sustained some injury...." Ragland v. City of Mount Vernon, No. 11 CV 1317 (VB), 2013 WL 4038616, at *6 (S.D.N.Y. July 12, 2013) (citing McAllister v. N.Y.C. Police Dep't, 49 F.Supp.2d 688, 699 (S.D.N.Y. 1999)). However, "an injury need not be serious in order to give rise to a constitutional claim." Sash v. United States, 674 F.Supp.2d 531, 539 (S.D.N.Y. 2009) (quoting Ortiz v. Pearson, 88 F.Supp.2d 151, 160 (S.D.N.Y. 2000)). "While the severity of plaintiff's injuries is not determinative, it is relevant to the consideration of whether the force used was reasonable." Hamilton v. Broomfield, No. 95 Civ. 3241(MBM), 1998 WL 17697, at *2 (S.D.N.Y. Jan. 20, 1998). "Even where the ...