United States District Court, N.D. New York
STOLL, GLICKMAN & BELLINA, LLP, LEO GLICKMAN, ESQ., Brooklyn, NY, Attorneys for Plaintiff.
GOLDBERG SEGALLA, LLP, JONATHAN M. BERNSTEIN, ESQ., Albany, NY, Attorneys for Defendants The City of Hudson, Graziano, Richardson, and Moore.
BONACIC & McMAHON, LLP, JAMES V. GALVIN, ESQ., Middletown, NY, Attorneys for Defendant Clarke.
McCABE & MACK LLP, DAVID L. POSNER, ESQ., Poughkeepsie, NY, Attorneys for Defendants Pierro, Rowe, Keyser, and Sweet.
DAVID N. HURD, District Judge.
Plaintiff Jermaine Mcrae ("plaintiff" or "Mcrae"), an African-American who resides in the City of Hudson, New York, initiated this action on March 4, 2014. He asserts various civil rights claims against defendants The City of Hudson ("the City"); Gary Graziano, Commissioner of the Hudson Police Department ("HPD") ("Commissioner Graziano"); Ellis Richardson, former Chief of the HPD ("Chief Richardson"); Edward L. Moore, current Chief of the HPD ("Chief Moore"); Randy Clarke, a sergeant in the HPD ("Sgt. Clarke"); and HPD officers Nicholas M. Pierro ("Officer Pierro"), Rowe ("Officer Rowe"), Keyser ("Officer Keyser"), Kevin Sweet ("Officer Sweet"), and eight currently unnamed officers ("John Does 1-8").
On April 8, 2014, the City, Commissioner Graziano, Chief Richardson, and Chief Moore filed a motion to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) ("Rule __"). Sgt. Clark filed a similar motion the following day, and Officers Pierro, Rowe, Keyser, and Sweet filed a motion to dismiss the day after. Plaintiff opposes the three motions to dismiss and has filed a cross-motion seeking leave to file an amended complaint. All motions have been fully briefed and were considered on submit without oral argument.
II. FACTUAL BACKGROUND
The following pertinent facts, taken from the proposed amended complaint, are assumed true for the purposes of the motions to dismiss. See Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002).
In the proposed amended complaint, Mcrae details a series of harassing conduct by members of the HPD. The first incident occurred on June 8, 2011, when Officer Keyser stopped a taxi in which plaintiff was a passenger. After Keyser allowed the taxi driver to leave without a ticket, plaintiff remarked: "I wish it was that easy for me." Proposed Am. Compl., ¶ 14, ECF No. 26-2. Officer Keyser followed the taxi to its destination and, when plaintiff exited the vehicle, asked him: "You got a fucking problem?" Id . ¶ 15. Mcrae ignored the remark and entered a nearby house. Officer Keyser remained in the area and approached plaintiff when he exited the house approximately fifteen minutes later. The officer again asked whether there was "a fucking problem" and drove alongside plaintiff as he walked down the sidewalk. Mcrae went to the police station later that day to file a complaint, but Sgt. Clarke advised that the HPD did not have a procedure through which to complain about officers.
Three days later, on June 11, 2011, Mcrae was in a bar on Warren Street in the City. At approximately 11:30 p.m. he stepped outside to smoke a cigarette and found Officers Keyser and Rowe standing outside the bar. Officer Keyser stated: "There he goes right there." Id . ¶ 18. Plaintiff walked back inside the bar, but the officers remained just outside the door and watched him through the front window. Later in the evening, Mcrae again stepped outside the bar and had a brief exchange with the officers. Generally, he asked them to stop harassing him, to which Officer Keyser replied, in sum and substance: "Wait until you leave the bar... you haven't seen harassment yet." Id.
Mcrae left the bar at approximately 1:45 a.m. on June 12 and was promptly arrested by Officers Keyser and Rowe. They transported him to the HPD station and brought him to the basement garage area, where-according to plaintiff-there are no surveillance cameras. Officers Keyser and Rowe physically assaulted him while he remained handcuffed. Plaintiff suffered visible injuries, which the officers did not document in the arrest report. He was charged with harassment and disorderly conduct, and was released with an appearance ticket. Plaintiff went to the HPD station the following Monday and filed a complaint with Sgt. Clarke. However, nobody ever contacted him to discuss this complaint.
On June 16, 2011, as Mcrae sat on the front steps of his building on Warren Street in the City, an Officer Finn of the HPD approached and asked to speak with him. Plaintiff refused and walked inside his building. The officer unsuccessfully attempted to follow him into the building. He was subsequently charged with littering as a result of this interaction with Officer Finn, who is not a named defendant in this action.
On March 17, 2012, Mcrae was again arrested for disorderly conduct. He reports that Sgt. Clarke arrested him even though he was not involved in the verbal altercation that necessitated the police response on that date. On April 10, 2012, on the advice of counsel, plaintiff pleaded guilty to one "graffiti" charge in satisfaction of all charges lodged against him between June 11, 2011, and March 17, 2012.
On August 5, 2012, Sgt. Clarke-who was dressed in street clothes and appeared to be off-duty-approached Mcrae in front of plaintiff's building. Sgt. Clarke stated: "You know what? I don't like you, let's do this now." Id . ¶ 26. Mcrae attempted to walk away, but Sgt. Clarke followed and slapped him in the face. Plaintiff again tried to walk away and called the police with his cellular phone. Sgt. Clarke called him a "little bitch" and accused him of trying to record the incident. Sgt. Clarke then attempted to punch plaintiff in the face. Plaintiff punched him back, retreated into his building, and asked the police dispatcher to send the state police or county sheriff's deputies. However, Officers Sweet and Pierro responded and immediately arrested plaintiff.
Mcrae was again taken to the basement garage at the HPD station and was beaten while handcuffed. He began to experience difficulty breathing, and an ambulance was eventually summoned. At the hospital he was diagnosed with a fractured rib, contusions, and abrasions. Chief Richardson responded to the hospital and asked Mcrae about the various prior incidents involving HPD officers. Plaintiff was charged with assaulting a police officer and possession of marijuana as a result of this incident. Those charges were later dismissed.
According to plaintiff, an "outside agency" began investigating the HPD in February 2013. Id . ¶¶ 33-34. Chief Richardson announced his retirement shortly thereafter, and was presumably succeeded by Chief Moore. Richard Paolino, an HPD lieutenant who is not a named defendant in this action, contacted plaintiff on February 6, 2013, and asked to speak with him regarding an internal investigation. Plaintiff agreed, but insisted on having an attorney present. He was not contacted thereafter, and Lt. Paolino reportedly retired in April 2013.
A. Cross-Motion to Amend
After defendants filed their motions to dismiss, Mcrae filed a cross-motion seeking leave to file an amended complaint. Leave to amend a pleading should be freely given "when justice so requires." FED. R. CIV. P. 15(a)(2). Where a plaintiff seeks to amend his complaint while a motion to dismiss is pending, a court "has a variety of ways in which it may deal with the pending motion to dismiss, from denying the motion as moot to considering the merits of the motion in light of the amended complaint." Roller Bearing Co. of Am., Inc. v. Am. Software, Inc., 570 F.Supp.2d 376, 384 (D. Conn. 2008) (internal quotation marks omitted).
As defendants had sufficient opportunity to respond to the proposed amended complaint, and Mcrae does not seek to add new defendants or causes of action, the merits of the motions to dismiss will be considered in light of the proposed amended complaint. If the proposed amended complaint cannot survive the motions to dismiss, then plaintiff's cross-motion to amend will be denied as futile. See Dougherty v. Town of N. Hempstead Bd. of Zoning Appeals, 282 F.3d 83, 88 (2d Cir. 2002).
Liberally construing the proposed amended complaint, and as informed by his motion papers, Mcrae brings the following federal claims: (1) excessive force/failure to intervene/or, alternatively, a substantive due process claim in relation to the June 12, 2011, incident, against Sgt. Clarke, Officers Rowe and Keyser, and John Does 1-8 ("First Cause of Action"); (2) excessive force/failure to intervene/or, alternatively, a substantive due process claim, false arrest/false imprisonment, and malicious prosecution in relation to the August 5, 2012, incident, against Sgt. Clarke, Officers Pierro and Sweet, and John Does 1-8 ("Second, Fourth, and Fifth Causes of Action"); and (3) a separate claim detailing the municipal and supervisory liability of the City, Commissioner Graziano, ...