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Bah v. City of New York

United States District Court, S.D. New York

May 1, 2014

OUMOU BAH, AS THE ADMINISTRATOR OF THE ESTATE OF MOHAMED BAH, Plaintiff,
v.
THE CITY OF NEW YORK, DETECTIVE EDWIN MATEO, individually and in his official capacity, POLICE OFFICER ANDREW KRESS, individually and in his official capacity, POLICE OFFICER MICHAEL GREEN, individually and in his official capacity, SERGEANT JOSEPH McCORMACK, individually and in his official capacity, LIEUTENANT MICHAEL LICITRA, individually and in his official capacity, LIEUTENANT ROBERT GALLITELLI, individually and in his official capacity, POLICE OFFICER BRIAN STANTON, individually and in his official capacity, POLICE OFFICER ESMERALDA SANTANA, individually and in her official capacity, POLICE OFFICER VINCENT JOHNSON, individually and in his official capacity, John Does 1-10, employees of The City of New York, Defendants.

MEMORANDUM AND ORDER

P. KEVIN CASTEL, District Judge.

Plaintiff Oumou Bah (the "Administrator"), as the administrator of the estate of Mohamed Bah, brings this action against defendants the City of New York (the "City"), Detective Edwin Mateo, Officer Andrew Kress, Officer Michael Green, Sergeant Joseph McCormack, Lieutenant Michael Licitra, Lieutenant Robert Gallitelli, Officer Brian Stanton, Officer Esmeralda Santana, Officer Vincent Johnson, and unnamed police officers alleging claims arising out of the events leading to the death of Mohamed Bah ("Bah"). Specifically, the Administrator alleges that the defendants violated Bah's constitutional rights by unlawfully entering his home, using excessive force, depriving him of life and liberty without due process of law, depriving him of his right not to be deprived of bodily integrity without due process of law, and depriving him of his right to equal protection under the laws in violation of 42 U.S.C. § 1983. The Administrator also brings state law claims for negligence against all the defendants, conscious pain and suffering and wrongful death against the City, Kress, Mateo, and Green, assault and battery against the City, Kress, Mateo, Green, and McCormack, and negligent training and supervision against the City.

The City, Licitra, Gallitelli, Stanton, Santana, and Johnson (collectively the "Moving Defendants") have moved to dismiss various claims against them for failure to state a claim pursuant to Rule 12(b)(6), Fed.R.Civ.P. Johnson, Stanton, Santana move to dismiss all state and federal claims against them. Gallitelli moves to dismiss all claims against him, except for the negligence claim. Licitra moves to dismiss the unlawful entry and excessive force claims against him. The City moves to dismiss the negligent training and supervision claim against it. The Moving Defendants also move to dismiss the Administrator's equal protection claim, the unlawful entry claim, and the negligence claims premised on intentional acts, and all state law claims against the individual defendants for failure to comply with New York General Municipal Law § 50-e.

The Court concludes that the Amended Complaint (Docket # 19) states a claim against Stanton, Santana, Johnson, and Licitra for unlawful entry, and against Gallitelli for unlawful entry and supervisory liability. The Court further concludes that the Administrator's notice of state law claims was proper under New York General Municipal Law § 50-e. For reasons explained, the Moving Defendants' motion is granted with respect to (1) all challenged claims against Stanton, Santana, and Johnson, except for the unlawful entry claims, (2) all challenged claims against Gallitelli, except for the unlawful entry and supervisory liability claims, (3) the excessive force claim against Licitra, (4) the equal protection claim against the Moving Defendants, (5) any negligence claim against the Moving Defendants premised on an allegedly intentional act, and (6) the negligent training and supervision claim against the City. The Moving Defendants' motion is denied with respect to all other challenged claims.

BACKGROUND

The following facts are taken from the Amended Complaint (the "AC"), documents incorporated by reference in the AC, and matters of which judicial notice may appropriately be taken. See Chambers v. Time Warner, Inc., 282 F.3d 147, 152-53 (2d Cir. 2002). All facts are assumed to be true for the purpose of deciding defendants' motion to dismiss. All reasonable inferences are drawn in favor of the plaintiff as non-movant. See In re Elevator Antitrust Litig., 502 F.3d 47, 50-51 (2d Cir. 2007) (per curiam).

Mohamed Bah was a 28-year-old African immigrant and non-native English speaker living in Manhattan, New York. (AC ¶¶ 2, 20-21, 32.) A college student, Bah attended classes during the day and also worked nights. (Id. ¶¶ 21.) His neighbors described him as "polite, hard-working and mild mannered." (Id.) During the summer of 2012, Bah began acting erratically, lost weight, and exhibited indications that he was in an emotional or mental health crisis. (Id. ¶ 22.)

On September 24, 2012, his mother, Mrs. Hawa Bah ("Mrs. Bah"), a resident of Guinea, arrived to visit her son. (Id. ¶ 23.) When she first saw Bah that day, she thought he looked different and seemed depressed. (Id.) She also noted that he had a cut over his eye and was limping. (Id.) When Mrs. Bah inquired about the injuries, Bah told her that he had been beaten by police officers in the City. (Id.)

The next day, Bah called his mother to cancel the plans he made to spend the day with her and reschedule for another date. (Id. ¶ 24.) Bah's sudden change of plans concerned Mrs. Bah. (Id.) To allay her worries, Mrs. Bah asked some family friends, who lived close to her son, to check on him. (Id.) The friends visited Bah and spoke with him. (Id.) They became concerned, but Bah told them he only needed rest. (Id.)

That evening, Mrs. Bah, believing that her son was having a mental health crisis, arrived outside Bah's building with four family friends. (Id. ¶ 25.) At approximately 6:40 p.m., after unsuccessfully calling two other numbers, Mrs. Bah called 911 to summon an ambulance. (Id.) She advised the 911 operator that her son was mentally distressed and needed to be transported to a hospital. (Id.)

In response to Mrs. Bah's 911 call, defendants Gallitelli, Johnson, Stanton, and Santana (collectively the "Responding Officers") arrived. (Id. ¶ 26.) At all relevant times, the Responding Officers were acting under color of law and within the scope of their employment with the New York City Police Department (the "NYPD"). (Id. ¶¶ 15-18.) Gallitelli was the precinct commander and supervising officer. (Id. ¶¶ 15, 31.)

Once the Responding Officers arrived, Mrs. Bah explained the situation in detail. (Id. ¶ 27.) She explained that her son was non-violent, alone in his apartment, and that he was in need of medical attention, as it appeared he was having a mental health crisis. (Id.) Mrs. Bah further stated that there was no crime in progress and the police were not necessary. (Id.)

The Responding Officers explained that an ambulance was on the way and that they just needed to speak with Bah. (Id. ¶ 28.) The Responding Officers, Mrs. Bah, and the family friends went into Bah's apartment building and upstairs to his apartment door. (Id.) As the Responding Officers approached Bah's door, Mrs. Bah and the family friends stood on a stairway immediately adjacent to it. (Id.)

In response to an officer's knock on his door, Bah told the police that he did not call them and that he wished them to leave. (Id. ¶ 29.) The Responding Officers, however, did not leave and attempted to force themselves into the apartment. (Id.) Bah repeatedly stated that he was fine and wanted to be left alone. (Id.) Bah then closed the door, locking himself in. (Id.) At no time did the Responding Officers tell Bah that his mother was present, or that she had called for an ambulance on his behalf. (Id.).

After observing Bah's interaction with the police, Mrs. Bah repeatedly asked to speak with her son directly, as Bah was not aware of her presence. (Id. ¶ 30.) The Responding Officers refused her requests and told her they would handle the matter. (Id.)

Based on their observation of Bah, the officers determined that he was an Emotionally Disturbed Person (an "EDP"). (Id. ¶ 31.) The NYPD has adopted certain policies regarding interactions with EDPs that are to be followed once officers make a determination that an individual is an EDP. (See id. ¶ 69-70.) According to the EDP policy, officers are required to request the assistance of family members, allow family members to speak with the EDP, and, if necessary, request the assistance of an interpreter. (Id. ¶ 32.)

The officers did not follow the nEDP policy and, rather, ordered Mrs. Bah and the friends out of the building and radioed for Emergency Service Unit ("ESU") personnel to assist. (Id. ¶ 31.) In the radio transmission, the officers requested the ESU personnel to "take [the] door down" and advised them that Bah was an EDP, was alone in the apartment, and had a knife. (Myrvold Decl. Ex. B, at 1.)

In response to the request, defendants McCormack, Mateo, Kress, and Green (collectively the "ESU Officers") arrived at the building with Licitra, the ESU supervisor. (AC ¶ 37.) At all relevant times, the ESU Officers and Licitra were acting under color of law and within the scope of their employment with the NYPD. (Id. ¶¶ 10-14.) Upon their arrival, Mrs. Bah asked them to leave and explained that her son was alone in the apartment and not a danger to anyone. (Id. ¶ 33.) The ESU Officers ignored her and entered the building. (See id.)

Upon entering the building, Licitra and the ESU Officers stood outside Bah's door and informed him that they would not leave until he came outside. (Id. ¶ 47.) For the next hour, the ESU Officers yelled at Bah, taunted him, and repeatedly kicked the door. (Id.) During this time, a building resident, at the behest of Mrs. Bah, twice entered the building and informed the officers that she was present, and that Bah had been previously assaulted by the police and had a fear of police officers. (Id. ¶ 34-35.) A supervising officer told the resident that the ESU Officers were handling the situation and they did not require Mrs. Bah's assistance. (Id. ¶ 35.)

The ESU Officers blocked the peephole to Bah's door and tied a rope around the door handle, securing it to a banister in the stairwell. (Id. ¶ 48.) They next removed the peephole and, through the resulting hole in the door, inserted a chemical illumination device into the apartment. (Id. ¶ 49.) The ESU Officers then removed the rope securing the door and used a hydraulic device to breach the door. (Id. ¶ 50.) Through the breach, they inserted a pole camera into the apartment. (Id.) Images from the camera showed Bah standing in the apartment, praying. (Id.) The images did not show any other people in the apartment. (Id.)

After observing Bah in the apartment, the ESU Officers entered the apartment. (Id. ¶ 51.) Kress entered first with a bunker shield and a Taser. (Id.) Mateo followed behind Kress. (Id.) McCormack followed behind Mateo. (Id.) After entering, Kress fired his Taser at Bah. (Id. ¶ 52.) However, the Taser dart was "ineffective." (Id.) Mateo fired a rubber pellet weapon at Bah. (Id.) McCormack fired his Taser at Bah, but hit Mateo in the back. (Id. ¶¶ 52-53.) As a consequence, Mateo fell to the ground, knocking over the officers behind him. (Id. ¶ 53.)

After being hit by McCormack's Taser, Mateo yelled "He's stabbing me. Shoot him." (Id.) Mateo discharged five rounds from his weapon at Bah. (Id.) Kress discharged three rounds from his weapon at Bah. (Id.) Green, who was also present at the scene, discharged two rounds from his weapon at Bah. (See id. ¶¶ 51, 54.) Consequently, Bah was hit by at least eight bullets. (Id. ¶ 56.) According to one resident in the building, Bah was shot almost "immediately" after the door was opened. (Id.)

Immediately after the incident, Detective Christopher Zaberto, who was nearby, checked Kress, Green, and Mateo for injuries. (See id. ¶ 57.) Failing to find any injuries, he informed the officers that they were unharmed. (Id.) Zaberto then checked Bah and, finding that he was alive and conscious, began administering first aid. (Id. ¶ 58.)

Subsequently, unidentified officers removed Bah from the apartment, "dragged" him through the hallway, and placed him on a stretcher. (Id. ¶¶ 59-60, 96.) As a consequence, Bah's blood was smeared on the apartment building floors. (Id. ¶ 59.) Once outside, emergency medical service workers administered CPR to Bah and placed him in an ambulance. (Id. ¶ 60.) Bah was pronounced dead after arriving at the hospital. (Id.)

On December 21, 2012, pursuant to New York General Municipal Law § 50-e, a Notice of Claim (the "Notice") was served on the City. (Id. ¶ 89.) The Notice named the City and, then unknown, John Doe police officers as defendants and provided information regarding the actions the officers took. (Myrvold Decl. Ex. C, at 1-3.) According to the Notice, on the evening of September 25, 2012, at approximately 6:40 p.m., Mrs. Bah dialed 911 to request an ambulance for her son. (Id. at 2.) The Notice further stated that police officers, but no ambulance, arrived in response to Mrs. Bah's call. (Id.) Finally, the Notice stated that, after the initial police arrival, additional officers arrived and "escalated the situation, " resulting in Bah's death. (Id. at 2-3.) More than thirty days elapsed without the matter being resolved by the City. (AC ¶ 89.)

After the incident, the City did not release the names of the officers involved in the events leading to Bah's death. (Id. ¶ 90.) On March 24, 2013, a Freedom of Information Law ("FOIL") request was made to the City for documents related to the incident. (Id. ¶ 91.) On April 3, the City responded that it was reviewing the request, but did not provide any documents. (Id.) The City released the names of the responding officers after a court conference in the instant action. (Id. ¶ 92.)

The Administrator alleges that the defendants committed a series of unlawful acts, resulting in Bah's death, thereby depriving him of his rights to due process, to be secure in his person and home against unreasonable searches and seizures, to not be deprived of bodily integrity without due process of law, and to equal protection under the Fourth and Fourteenth Amendments of the United States Constitution. (Id. ¶¶ 2, 95-98.) The Administrator also alleges that the defendants' acts also constituted and unreasonable and unnecessary use of force and unlawful entry into Bah's home. (Id. ¶ 99.) The Administrator further alleges that Licitra and Gallitelli failed to properly supervise their subordinates, resulting in Bah's death. (Id. ¶¶ 113-16.) Finally, the Administrator alleges that, by failing to adopt adequate policies regarding EDPs, the City was deliberately indifferent to its duty to institute appropriate guidelines and training to ensure the safety of its residents. (Id. ¶¶ 101-12.) The Administrator also brings state law claims for negligence against all the defendants, conscious pain and suffering and wrongful death against the City, Kress, Mateo, and Green, assault and battery against the City, Kress, Mateo, Green, and McCormack, and negligent training and supervision against the City. (Id. ¶¶ 117-40.)

This Court has jurisdiction because federal questions are presented. 28 U.S.C. § 1331. This Court has supplemental jurisdiction over the state law claims because they are so related to the federal claims as to form ...


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