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Dunham v. City of New York

United States District Court, S.D. New York

May 2, 2014



ANDREW L. CARTER, JR., District Judge.


On August 30, 2012, Plaintiff Jermaine Dunham, proceeding pro se at the time, moved to amend the operative Complaint to add thirteen members of the medical staff of Lincoln Medical and Mental Health Center ("LMMHC"), a police dog, and the New York City Police Department ("NYPD"), and to add state law claims against Officers Lemar Oliver and Philip Lobello. Plaintiff filed the initial Complaint on February 16, 2011 and the First Amended Complaint ("FAC") on October 20, 2011. (Dkt. Nos. 2, 12.) In moving for leave to file a Second Amended Complaint ("SAC"), Plaintiff submitted varying submissions to this Court and the Magistrate Judge assigned to the case. Because it was unclear whether Defendants reviewed and responded to the varying submissions, they were given the opportunity to supplement their opposition. On October 11, 2012 and January 10, 2014, Defendants filed letters in opposition to the proposed amendments. For the reasons stated below, Plaintiff's motion to amend is granted in-part and denied in-part.


This § 1983 action arises out of Plaintiff's arrest, detention, treatment, and prosecution as alleged in the SAC. On February 15, 2008, Plaintiff claims Officer Philip Lobello stopped him and ordered him to produce identification. (SAC § III(C).) Lobello allegedly directed Plaintiff to wait with his back to a van when Lobello's police dog began barking at him. (Id.) Plaintiff then claims he began to walk away from the officer, and the dog attacked him, rendering him unconscious. (Id.) While Plaintiff was unconscious, Officer Lemar Oliver was also on the scene and supposedly observed Plaintiff "with a lot of blood on [him]." (Id.) Plaintiff asserts he later learned that he was handcuffed while unconscious and formally arrested by the officers. (Id.)

After Plaintiff's arrest, he was brought to LMMHC for treatment, where he purportedly regained consciousness. (Id.) At LMMHC, he was treated by Alain Polynice, Annie Hu, Monica Santiago, Robert Boorstein, Brian Scallen, Claire Antoszewski, Artemio Pazcoguin, Marcos Vargas, Toni Butler, Samuel Kim, Sarwat Kamal Amer, Elaine B. Josephson, Darron Yelling, and Lillian Alomar (collectively "LMMHC Defendants"). (Id.) Throughout his stay in the hospital, Plaintiff maintains he was handcuffed to the bed. (Id.) He allegedly experienced "pain[, ]... extreme discomfort, " limited mobility, and claims that he did not receive "proper medical treatment." (Id.) Because of the limited mobility, Plaintiff was supposedly unable to "adjust [his] body to minimize the physical pain and discomfort" he was experiencing. (Id.) Plaintiff claims as a result of his arrest and subsequent treatment, he suffers from "severe pain, permanent damage to [his] nerves and left arm where noticeable scars remain." (Id. § IV.)


A. Standard of Review

"A court should freely give leave [to amend] when justice so requires." Fed.R.Civ.P. 15(a)(2). A district court, however, may deny leave to amend "for good reason, including futility, bad faith, undue delay, or undue prejudice to the opposing party." Holmes v. Grubman , 568 F.3d 329, 334 (2d Cir. 2009). An amendment is futile if it would not survive a motion to dismiss pursuant to Rule 12(b)(6). Dougherty v. Town of N. Hempstead Bd. of Zoning Appeals , 282 F.3d 83, 88 (2d Cir. 2002). A claim will be dismissed under Rule 12(b)(6) if it does not "contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Brodt v. City of N.Y., No. 13 Civ. 3272 (PKC), 2014 WL 896740, at *3 (S.D.N.Y. Mar. 6, 2014) (quoting Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal , 556 U.S. at 678.

Where a plaintiff is proceeding pro se, the pleadings must be interpreted liberally.[1] Sealed Plaintiff v. Sealed Defendant , 537 F.3d 185, 191 (2d Cir. 2008). A pro se complaint will be interpreted "to raise the strongest claims that it suggests." Yong Chul Son v. Chu Cha Lee, No. 13 Civ. 1827, 2014 WL 1099789, at *1 (2d Cir. Mar. 21, 2014) (citing Hill v. Curcione , 657 F.3d 116, 122 (2d Cir. 2011)). However, a pro se plaintiff's complaint must "state a claim to relief that is plausible on its face." Id . (citing Harris v. Mills , 572 F.3d 66, 72 (2d Cir. 2009)).

B. Amendment to Include Unsuable Entities

Plaintiff's proposed amendments in the SAC include adding a police dog and the NYPD as parties. Section 1983 specifies that a cognizable claim must be based on actions committed by "person[s]." 42 U.S.C. § 1983 (1996). "A police dog is not a person' for these purposes." Smith v. P.O. Canine Dog Chas, No. 02 Civ. 6240 (KMW)(DF), 2004 WL 2202564, at *4 (S.D.N.Y. Sept. 28, 2004) (quoting Fitzgerald v. McKenna, No. 95 Civ. 9075 (DAB)(HBP), 1996 WL 715531, at *7 (S.D.N.Y. Dec. 11, 1996)). Therefore, an amendment to add the police dog would be futile and is, in turn, denied.

The New York City Charter requires that "[a]ll actions and proceedings for the recovery of penalties for the violation of any law shall be brought in the name of the City of New York and not in that of any agency, except where otherwise provided by law." N.Y.C. Charter Ch. 16 § 396. Neither the Charter nor any other law authorizes the NYPD to be sued. Jenkins v. City of N.Y. , 478 F.3d 76, 93 n.19 (2d Cir. 2007). Because lack of authority to be sued is grounds for dismissal for failure to state a claim, see Burgis v. Dep't of Sanitation City of N.Y., No. 13 Civ. 1011 (TPG), 2014 WL 1303447, at *4 (S.D.N.Y. Mar. 31, 2014) ...

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