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Prevost v. City of New York

United States District Court, S.D. New York

December 9, 2014



VALERIE E. CAPRONI, District Judge.

Plaintiff Jushua Prevost has sued New York City (the "City"), the New York City Police Department ("NYPD") and an individual police officer pursuant to 42 U.S.C. § 1983 for alleged violations of his Fourth and Fourteenth Amendment rights arising out of his arrest in 2010. Defendants moved for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c) and for sanctions pursuant to Fed.R.Civ.P. 11. For the reasons set forth below, Defendants' motion for judgment on the pleadings is GRANTED in part and DENIED in part; their motion for sanctions is DENIED.


On October 9, 2010, Plaintiff stopped at a bodega in the Bronx on his way home from work. Compl. ¶ 13. Inside the store, he observed two men arguing and attempted to intervene. Id. ¶ 14. One of the men, who was later identified as Robert Campbell, told him to "mind his own business, " and then attacked Plaintiff with a knife. Id. Plaintiff protected his face with his left forearm and was cut. Id. ¶ 15. Plaintiff called 911 from his cell phone to report the assault. Id. ¶ 16. As Plaintiff was on the phone with the 911 operator, Campbell fled the bodega on foot. Id. Plaintiff gave chase. Id. He caught and "subdued" Campbell about one and a half blocks away and "prevented him from escaping until the police arrived." Id. ¶ 17. When the police arrived, Plaintiff relayed this version of events to them. Id.

One of the officers who arrived at the scene, Defendant Officer Vanity Medina, took Plaintiff to a hospital for treatment of the cut to his arm. Id. ¶ 19. Other police officers interviewed witnesses at the bodega who corroborated Plaintiff's version of events - that Campbell attacked Plaintiff with a knife without provocation. Id. ¶ 17.[1] At approximately 9:50 p.m., after Plaintiff's wound had been stitched, Officer Medina arrested Plaintiff on multiple charges, including attempted murder in the second degree. Id. ¶¶ 18-19, 22. Plaintiff was arraigned on October 11, 2010, and denied bail. Id. ¶ 23. He was detained for four days before being released on October 15, 2010. Id. ¶ 24. On the application of the District Attorney's office, all charges were dismissed on November 4, 2010. Id. ¶ 25.


I. Rule 12(c) Standard of Review

"The standard for granting a Rule 12(c) motion for judgment on the pleadings is identical to that of a Rule 12(b)(6) motion for failure to state a claim." Patel v. Contemporary Classics of Beverly Hills, 259 F.3d 123, 126 (2d Cir. 2001). The Court must accept as true all material factual allegations in the Complaint and draw all reasonable inferences in the Plaintiff's favor. Johnson v. Rowley, 569 F.3d 40, 43 (2d Cir. 2009). To survive a Rule 12(c) motion, the Complaint "must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Id. at 44 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). To satisfy the "plausibility" requirement, a complaint must do more than make "[t]hreadbare recitals of the elements of a cause of action." Iqbal, 556 U.S. at 678. Rather, the elements of the cause of action must be supported by well-pleaded facts that permit the Court to infer "that the pleader is entitled to relief." Id. at 679 (quoting Fed.R.Civ.P. 8(a)(2)).

In evaluating whether a complaint crosses this threshold, the Court "must consider only those facts alleged in the complaint, documents attached to the complaint as exhibits or incorporated by reference, and items of which judicial notice may be taken." Barnett v. Mount Vernon Police Dep't, 523 F.Appx. 811, 813 (2d Cir. 2013) (summary order); DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010). Rule 12(d) mandates that "[i]f, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56. All parties must be given a reasonable opportunity to present all the material that is pertinent to the motion." Fed.R.Civ.P. 12(d). "[T]he conversion of a Rule [12(c)] motion into one for summary judgment under Rule 56 when the court considers matters outside of the pleadings is strictly enforce[d] and mandatory." Nakahata v. N.Y.-Presbyterian Healthcare Sys., Inc., 723 F.3d 192, 203 (2d Cir. 2013) (quoting Global Network Commc'ns, Inc. v. City of New York, 458 F.3d 150, 154-55 (2d Cir. 2006)).

The pertinent "pleadings" here are the Complaint and the Answer. Fed.R.Civ.P. 7(a). Although "[a] copy of a written instrument that is an exhibit to a pleading is a part of the pleading for all purposes, " Fed.R.Civ.P. 10(c), the pleadings in this case contain no exhibits, see Dkt. 1, Dkt. 10. A court may consider a document that is not attached as an exhibit to a pleading or incorporated by reference in the complaint if the complaint "relies heavily upon [the document's] terms and effect, ' thereby rendering the document integral' to the complaint." DiFolco, 622 F.3d at 111 (quoting Mangiafico v. Blumenthal, 471 F.3d 391, 398 (2d Cir. 2006)). The Second Circuit has emphasized that "a plaintiff's reliance on the terms and effect of a document in drafting the complaint is a necessary prerequisite to the court's consideration of the document on a dismissal motion; mere notice or possession is not enough." Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002).

Defendants' arguments in support of their motion to dismiss rely almost entirely on facts gleaned from the transcript of Plaintiff's examination pursuant to New York General Municipal Law § 50-h ("50-h Transcript"). See Def. Mem. at 2-4, 7-9, 12-18. Plaintiff's opposition to Defendants' motion for judgment on the pleadings adopted Defendants' statement of facts and incorporated additional facts from the 50-h Transcript in support of his position, Pl. Mem. at 3, but the transcript was not an exhibit to either the Complaint or the Answer.

District courts in this circuit regularly decline to consider 50-h Transcripts submitted in support of or in opposition to a motion to dismiss, even if neither party objects. See, e.g., Lacey v. Yates Cnty., ___ F.Supp. 3d ___, No. 12-CV-6100(EAW), 2014 WL 2930466, at *3 (W.D.N.Y. June 27, 2014) (declining to consider a 50-h transcript because it was not incorporated by reference in the complaint); Beck v. City of New York, No 12-CV-9231(RA), 2014 WL 80544, at *3 n.4 (S.D.N.Y. Jan. 3, 2014) (declining to consider a 50-h transcript when the plaintiff referred to the hearing in her complaint but did not annex any portion of the testimony); Fontanez v. Skepple, No. 12-CV-1582(ER), 2013 WL 842600, at *3 (S.D.N.Y. Mar. 6, 2013), aff'd, 563 F.Appx. 847 (2d Cir. 2014) (summary order) (declining to consider a 50-h transcript because only the defendants relied on the transcript); Aguilera v. Cnty. of Nassau, 425 F.Supp.2d 320, 322-23 (E.D.N.Y. 2006) (declining to consider undisputed 50-h testimony submitted by the defendants despite the plaintiff's consent because the transcript was not incorporated by reference or attached to the complaint); but see Vessa v. City of White Plains, No. 12-CV-6989(ER), 2014 WL 1271230, at *4 n.11 (S.D.N.Y. Mar. 24, 2014) (considering a 50-h transcript on a motion to dismiss when offered by the plaintiff because the examination was explicitly referenced in the complaint); Dellate v. Great Neck Union Free Sch. Dist., No. 09-CV-2567(AKT), 2010 WL 3924863, at *4 (E.D.N.Y. Sept. 30, 2010), aff'd, 448 F.Appx. 164 (2d Cir. 2012) (considering a 50-h transcript when both parties annexed relevant portions of the transcript in support of their respective arguments and when the 50-h examination had not yet occurred when the complaint was filed).

Notwithstanding Plaintiff's adoption of Defendants' statement of facts, because the 50-h Transcript was not a part of the pleadings, it cannot be relied on by the Defendants in making their present motion; accordingly the Court will not consider it ...

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