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Lawrence v. City of Rochester

United States District Court, W.D. New York

February 6, 2015

ALEXANDER LAWRENCE, Plaintiff,
v.
CITY OF ROCHESTER, CHIEF DAVID T. MOORE; LT. OGNIBENE, In his Official and Individual Capacity; OFFICER WILSON, In his Official and Individual Capacity; &

DECISION & ORDER

FRANK P. GERACI, Jr., District Judge.

I. INTRODUCTION

Plaintiff Alexander Lawrence, by his then-attorney Christina A. Agola, Esq., [1] commenced this action on February 20, 2009, against Defendants City of Rochester ("City"), Chief David T. Moore ("Chief Moore"), Lt. Ognibene ("Ognibene") in his Official and Individual Capacity, Officer Wilson ("Wilson") in his Official and Individual Capacity, and "John Doe, " Members of the Rochester City Police Department ("RPD"), alleging deprivation of his constitutional rights and seeking to recover compensatory and punitive damages for alleged intentional assault and battery, false imprisonment, intentional infliction of emotional distress, negligent infliction of emotional distress, and violations of his civil rights "under the Fourteenth Amendment to the United States Constitution, codified at 42 U.S.C. § 1983, 42 USC § 1985(3), and the United States Constitution, Amendments Five and Fourteen." ECF No. 1. Following completed fact discovery, on March 30, 2012, pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, Defendants moved for judgment on the pleadings ("Motion to Dismiss") (ECF No. 19) and submitted a Memorandum of Law in Support of Defendants' Motion for Judgment on the Pleadings ("Defs.' Mem.") (ECF No. 19-1), and an Affirmation in Support of Defendants' Motion for Judgment on the Pleadings prepared by John M. Campolieto, Esq., of counsel to Robert J. Bergin, Corporation Counsel[2] ("Campolieto Aff.") (ECF No. 19-2), which included attached Exhibits A-E (ECF No. 19-3, 19-4, 19-5, 19-6, 19-7). In response to the motion, on April 25, 2012, Plaintiff filed the Declaration of Christina A. Agola, Esq. ("Agola Decl.") (ECF No. 21), with attached Exhibits A-B ( Id., ) and submitted a Memorandum of Law ("Pl.'s Mem.") (ECF No. 21-1).

As explained more fully below, after conducting a review of the case, I determined that the motion was more properly considered one for summary judgment based on the parties' inclusion of matters outside the pleadings, and notified the parties in writing of the Court's intention in this regard. For the reasons set forth herein below, I grant summary judgment in favor of Defendants.

II. FACTUAL BACKGROUND

This civil action finds its genesis in an incident occurring at approximately 2 A.M. on October 6, 2007 in the vicinity of Coyote Joe's, a bar located at the corner of East Avenue and Alexander Street in the City of Rochester, New York, whereby, following a disagreement with his girlfriend, Plaintiff had an encounter with members of the Rochester Police Department ("RPD"), and was eventually arrested, handcuffed, and transported to a parking lot across the street from Coyote Joe's before being transported to the Monroe County Jail. ECF No. 1, ¶¶ 16-34. The Complaint alleges that while in Coyote Joe's, Plaintiff and his girlfriend had a disagreement, not involving any screaming, harsh words or physical abuse, causing her to walk out of the bar. Id. ¶¶ 16-18. Plaintiff went out onto the deck of the bar, spoke with his girlfriend, discarded a beverage container into a recycling bin, and then, stepping over the fencing, joined his girlfriend on the street. Id. ¶¶ 19-20. The disagreement between Plaintiff and his girlfriend, moments earlier, had dissolved at this point. Id. ¶ 20. Upon being approached by three RPD officers who told them it was "time to go, " Plaintiff informed the police officers that he was waiting for his friend who was still inside the bar, and walked with his girlfriend to the side of the bar to wait for his friend. Id. ¶¶ 21-23. The police officers followed Plaintiff and, moments later, about eight RPD officers "surrounded and aggressively separated" him from his girlfriend. Id. ¶ 24. The Complaint alleges that Plaintiff voluntarily put his hands behind his back and informed the officers that he would "not resist" and would "cooperate." Id. ¶ 25. According to the Complaint, once Plaintiff and his girlfriend were separated, an officer stood in front of Plaintiff's girlfriend, and the officers smashed Plaintiff's face against the wrought iron fencing; Plaintiff was not resisting, or inciting the officers, but was being cooperative. Id. ¶¶ 26-28.

The allegations go on to state that the officers placed Plaintiff in a police car, brought him to a vacant parking lot, dragged him out of the police vehicle, threw him face down on the ground, and several officers beat him. Id. ¶¶ 22-32. The Complaint alleges further that Plaintiff was placed back into the police van face first, wedged between the bench and wall, and then removed from the van and taunted by officers who told him they "f...d [his] mother" and "f...d [his] girlfriend." Id. ¶¶ 32-33.

The Complaint alleges further that, thereafter, Plaintiff was brought downtown and placed in a single cell, where he was choked by John Doe officer. Id. ¶¶ 39-40. Plaintiff's girlfriend's attempts to determine what happened to him, by phone calls and visits to the jail and Hall of Justice, were unsuccessful. Id. ¶¶ 35-38. Plaintiff remained in his jail cell where he was choked by a John Doe officer. Id. ¶ 39. The Complaint asserts that Plaintiff was continuously denied phone calls, until about 12:30 P.M. on October 6, 2007, when he was finally permitted to make a call. Id. ¶¶ 40-41. Plaintiff remained in the jail cell from approximately 4:00 A.M. until 12:30 P.M. on October 6, 2007, when he was released on bail. Id. ¶ 42. According to the Complaint, Plaintiff was charged with disorderly conduct, but all charges were subsequently dismissed on February 27, 2008. Id. ¶¶ 43-44.

Based on these factual allegations, the Complaint set forth eight causes of action asserting therein, respectively, intentional assault and battery (First Cause of Action); false imprisonment (Second Cause of Action); intentional infliction of emotional distress (Third Cause of Action); negligent infliction of emotional distress (Fourth Cause of Action); deprivation of civil rights pursuant to 42 USC § 1983 by conduct constituting assault and battery and false imprisonment while acting under the color of State Law (Fifth Cause of Action); intentional, knowing, or reckless indifference by the City in disregarding or failing to investigate prior incidents involving Ognibene, Wilson, and "John Doe" members of the RPD (Sixth Cause of Action); the City's failure to train or supervise the officers and ratification of the officers' conduct (Seventh Cause of Action); deprivation of rights secured by the Fourth and Fourteenth Amendments and 42 U.S.C. § 1983 by the failure to properly train or supervise and/or the failure to adopt proper policies, procedures, or standards, and/or the failure to investigate and the reckless disregard or gross indifference (Eighth Cause of Action). Defendants answered the Complaint (ECF No. 2), denying the factual allegations and setting forth several affirmative defenses, including qualified immunity.

III. PROCEDURAL HISTORY

Defendants, by their attorney, moved for dismissal of the Complaint on the basis that the Complaint fails to state a claim, and they are entitled to judgment as a matter of law. ECF Nos. 19, 19-1. They sought dismissal of the Complaint on several specified grounds, namely: (1) there are no factual allegations in the Complaint against Chief Moore; (2) Plaintiff's assault and battery claims against the City must be dismissed, first, because the applicable statute of limitations under General Municipal Law § 50-i(c), one year and 90 days, had run before the Complaint was filed on February 20, 2009 (action accrued on October 6, 2007); and second, because Plaintiff made no claim of false arrest, de-facto conceding the existence of probable cause for his arrest and impliedly conceding the use of some degree of force to effect the arrest; (3) claims against the individual Defendants in their official capacity are actually claims brought against the City ( see Hafeo v. Melo, 502 U.S. 21, 25 (1991)); (4) there can be no award of punitive damages against the Defendants; (5) Plaintiff has no claim for negligent infliction of emotional distress based upon alleged intentional conduct; (6) Plaintiff has no claim for intentional infliction of emotional distress; (7) Plaintiff's claims brought pursuant to Monell v. Department of Social Services of City of New York, 436 U.S. 658 (1978) fail to state a claim against the City; (8) no constitutional violation of Plaintiff's rights has been alleged, and the 1983 claim must fail against all Defendants; and (9) all of the New York State law claims against the City as set forth in the First, Second, Third, and Fourth Causes of Action, brought one year and 134 days after the cause of action accrued on October 6, 2007, must fail because the action was not filed within the one year and 90 days statute of limitations pursuant to General Municipal Law § 50-i(c). ECF No. 19-1.

Responding to the Defendants' dismissal motion, Plaintiff conceded withdrawal of the following claims: the New York State law claims set forth in the First, Second, Third, and Fourth Causes of Action; all claims against individual Defendants Ognibene and Wilson in their official capacity; any claims against "John Doe" Defendants; any claim for punitive damages against the City. ECF No. 21. Specifically, in conceding to withdraw these claims, Plaintiff acknowledged the validity of Defendants' arguments that (1) there are no factual allegations in the Complaint against Chief Moore, and any allegations against him individually should be dismissed; (2) claims against individual Defendants Ognibene and Wilson in their official capacity must be dismissed; (3) the [City] is not liable for punitive damages; (4) Plaintiff has no claim for negligent and/or intentional infliction of emotional distress; (5) the First, Second, Third, and Fourth Causes of Action should be dismissed because they were not timely filed pursuant to General Municipal Law § 50-i(c); and (6) any claims against John Doe Defendants should be dismissed. Plaintiff, however, did not concede the withdrawal of any claims for punitive damages against Ognibene and Wilson in their individual capacity and argued that the Monell claims in the Fifth, Sixth, Seventh, and Eighth Causes of Action were adequately pleaded, satisfying Rule 12(c); he equested a trial on these remaining causes of action. ECF Nos. 21, 21-1.

After duly considering Plaintiff's concessions, requested withdrawals, and acknowledgements, the Court hereby dismisses the First, Second, Third, and Fourth Causes of Action because they were not timely filed pursuant to General Municipal Law § 50-i(c); all claims against individual Defendants Ognibene and Wilson in their official capacity; any claims against "John Doe" Defendants; any claims for punitive damages against the City, see City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 271 (1981); any allegations against Chief Moore, individually, for lack of allegations of personal involvement; any claims for negligent infliction of emotional distress; and any claims for intentional infliction of emotional distress. As set forth herein below, the Court proceeds to determine the Monell claims articulated in the Fifth, Sixth, Seventh, and Eighth Causes of Action and whether punitive damages against Ognibene and Wilson, in their individual capacities, may be awarded.

IV. DISCUSSION

A. Applicable Legal Standards

Pursuant to Rule 12(c), "After the pleadings are closed-but early enough not to delay trial-a party may move for judgment on the pleadings." Fed.R.Civ.P. 12(c). "The standard for addressing a Rule 12(c) motion for judgment on the pleadings is the same as that for a Rule 12(b)(6) motion to dismiss for failure to state a claim." Cleveland v. Caplaw Enterprises, 448 F.3d 518, 521 (2d Cir. 2006) (citing Karedes v. Ackerely Group, Inc., 423 F.3d 107, 113 (2d Cir. 2005); see also Patel v. Contemporary Classics of Beverly Hills, 259 F.3d 123, 126 (2d Cir. 2001). In adjudicating a motion to dismiss, a court is entitled to consider only the facts alleged in the complaint, any written instrument attached to the complaint as an exhibit, any statements or documents incorporated in it by reference, any documents integral to the complaint and relied on in it, and facts of which judicial notice may properly be taken under Fed.R.Civ.P. 201. See In re Thelen LLP, 736 F.3d 213, 219 (2d Cir. 2013); see Roth v. Jennings, 489 F.3d 499, 509 (2d Cir. 2007).

Here, for the Court's consideration in determining the motion, both parties have attached to their respective papers copies of the deposition testimony of Ognibene and Wilson taken on June 24, 2011, more than two years after the filing of the Complaint, and additionally, Defendants have attached the August 3, 2011 deposition testimony of non-party, RPD Investigator Scott Gould ("Gould") who was present during the incident at issue. ECF Nos. 19, 19-1, 19-5, 19-6, 19-7 and ECF Nos. 21, 21-1. Neither party has objected to the other's inclusion of this deposition testimony for consideration.

Rule 12(d) addresses the presentation of matters outside the pleadings and specifies a notice requirement:

If, 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); Sira v. Morton, 380 F.3d 57 (2d Cir. 2004) ("A district court must convert a motion for judgment on the pleadings to one for summary judgment if the motion includes material outside the pleadings' and that material is not excluded by the court.'"). The rule requires that the court give "sufficient notice to an opposing party and an opportunity for that party to respond." Hernandez v. Coffey, 582 F.3d 303, 307 (2d Cir. 2009) (quoting Groden v. Random House, Inc., 61 F.3d 1045, 1052 (2d Cir. 1995). Fundamental to this notice requirement is "the principle that parties are entitled to a reasonable opportunity to present material pertinent to a summary judgment motion." Gurary v. Winehouse, 190 F.3d 37, 43 (2d Cir. 1999).

Compliance with these requirements... is not an end in itself. The district court's conversion of a Rule 12(b)(6) motion into one for summary judgment is governed by principles of substance rather than form. The essential inquiry is whether the appellant should reasonably have recognized the possibility that the motion might be converted into one for summary judgment or was taken by surprise and deprived of a reasonable opportunity to meet facts outside the pleadings. Resolution of this issue will necessarily depend largely on the facts and circumstances of each case.

Id. (citing In re G. & A. Books, Inc., 770 F.2d 288, 295 (2d Cir. 1985), cert. denied, 475 U.S. 1015 (1986)).

Consequently, by letter dated September 17, 2014, the Court notified pro se Plaintiff and the attorney for Defendants, pursuant to Fed.R.Civ.P. 12(d), of its intention regarding the proposed conversion. Plaintiff, in writing, requested and was given additional time, until November 3, 2014, in order to consider and submit a response. To date, the Court has not received any response from Plaintiff or the Defendants, and the requested date assigned for responding to the Court's ...


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