United States District Court, N.D. New York
DECISION & ORDER
J. McAVOY, Senior United States District Judge.
Jared Tuff commenced this action asserting claims pursuant to
42 U.S.C. § 1983 and New York state law. Compl. # 1.
Defendants move to dismiss on various grounds. Dkt. # 4.
Plaintiff opposes the motion, dkt. # 12, and Defendants have
replied. Dkt. # 13. The Court will decide the motion without
oral argument. For the reasons that follow, the motion is
granted in part and denied in part.
April 22, 2015, Plaintiff, an Africa American male, was
driving an automobile east on Oriskany Blvd. in the Village
of Yorkville, New York. After passing under a traffic light,
Defendant Officer Guca, a member of the Village of Yorkville
Police Department, pulled Plaintiff over. When he approached
Plaintiff's car, Guca unbuckled his holster and placed
his hand on his weapon. Plaintiff asked why he was being
pulled over. Guca told Plaintiff that he failed to stop at a
red light. Guca then grabbed Plaintiff, pulled him out of his
car, and “slammed him across the hood of the car facing
away from the driver's seat.” Compl. ¶ 13.
Plaintiff felt threatened and fearful, and received bruising
as a result of being pulled out of the vehicle and
“slammed” on the hood of the car. Id.
¶ 27. Guca threatened to arrest Plaintiff if Plaintiff
moved. Guca "patted" plaintiff down, and then
searched through Plaintiff's car although “Guca had
no reasonable cause to search the inside of the car.”
Id. ¶ 14. Plaintiff was not charged with having
any contraband in the car, but Guca issued Plaintiff a
traffic ticket alleging that Plaintiff failed to stop at a
traffic control device.
return date of the ticket, Plaintiff requested that the
Village Justice set the matter for trial. At the ensuring
bench trial in Village Court, Guca testified that the light
was red when Plaintiff drove through it. Plaintiff testified
that the light was not red, and contended that Guca had lied
because Guca was unable to see the traffic light from his
vantage point at the time Plaintiff proceeded under the
light. After the trial, Plaintiff “was advised that the
traffic ticket was dismissed and/or that he was not guilty of
the infraction.” Id. ¶ 21.
maintains that “[t]he policies, procedures and
practices of the defendants as set forth in this complaint
violate the rights of plaintiff under the Fourth, Fifth,
Eighth, Ninth and Fourteenth Amendments to the United States
Constitution and 42 U.S.C. Section 1983 because: the search
was conducted without probable cause or reason to believe
that any contraband, dangerous materials or incriminating
objects or weapons would be found. Thus each [sic]
search constitutes an unreasonable search and seizure in
violation of the Fourth Amendment and Fourteenth Amendments
of the United States Constitution. The search constitutes a
gross invasion of the rights of the plaintiff to privacy and
due process under the Fifth Amendment, Ninth Amendment and
Fourteenth Amendment to the United States
Constitution.” Id. ¶ 33; see also,
id., ¶ 22, ¶ 28. Plaintiff also appears to allege
that the Village had a policy of failing to properly train
and supervise its police officers in the appropriate use of
physical force. Id. ¶¶
Plaintiff contends that the Defendants' actions resulted
in deprivations of his rights under the Fourth, Fifth, Sixth,
Eight, Ninth and Fourteenth Amendments. Id. ¶
the caption “State Law Theories of Recovery, ”
Plaintiff asserts that “[t]he acts and conduct alleged
above constitute actionable torts under the laws of the State
of New York including the torts of: a. false arrest; b.
assault and battery; c. malicious prosecution; d. abuse of
process; e. negligence and [sic]; f. gross
negligence; g. illegal search.” Id. ¶ 41.
He contends that on July 2, 2015, he served a written
verified Notice of Claim “on the proper officer, agents
and employees the [sic] Defendants Village and
Police Department pursuant to the claims statutes covering
these cases, ” id. ¶ 39, and that on
August 3, 2015, he served “Amended” Verified
Notices of Claims upon “the defendants.” Id.;
see also id., Ex. A.
attaches as Exhibit A to the Complaint several Notices of
Claim, which he claims he filed pro
se. The first indicates that it was executed
and served on the Oneida County Clerk on July 2, 2015.
Compl., Ex. A., p. 1. It is against “Officer Guca of
the Yorkville Police Dept. in his own capacity and as an
individual, ” and asserts “§ 69.02 Liability
for Intentional Torts” arising from an April 7, 2015
traffic ticket issued by Officer Guca. Id. Plaintiff
asserts that he was ticketed on April 7, 2015 for running a
red light even though the light was yellow, Officer Guco
caused Plaintiff to become fearful because Officer Guco was
yelling at him for running a red light, and Officer Guco lied
about the facts underlying the traffic ticket at the ensuing
trial. Id. The Notice of Claim does not allege that
Officer Guco pulled Plaintiff out of the car, slammed
Plaintiff on the vehicle's hood, patted Plaintiff down,
or searched through the vehicle. Id. The only
mention of Chief DeLuca is in the context of Plaintiff's
allegation that at the time Officer Guca ticketed him,
Officer Guca's eyes were “bulging” and he was
sweating. Plaintiff asserts that when he asked Officer Guca
at the trial “about his eyes bulging and sweating, he
stated he did not know why, but he told the police Chief
DeLuca that it was rain [sic] when he admitted in
trial that it was not raining.” Id. For
relief, Plaintiff seeks “Punitive damages-to punish
Officer Guca.” Id.
A to the Complaint also includes three “Amended”
Notices of Claim, all of which were executed and filed with
the Oneida County Clerk on August 3, 2015. Compl., Ex. A, pp.
2-4. The first is against “Officer Guca in his own
capacity and as an individual, ” and asserts
“Sec. 69.02 Liability for Intentional Torts.”
Id. p. 2. Plaintiff contends that on “April
22nd about 7:39 A.M. Officer Guco pulled me over
and gave me a ticket for running a red light, when I did not.
On June 29, while in trial, Officer Guco lied under oath by
saying he could see the traffic light I went through from the
property of Yorkville Auto sales, when he could not. Judge
Kaluga ruled in my favor." Id. There is no
allegation that Officer Guco pulled Plaintiff out of his
vehicle, made Plaintiff lie across the vehicle's hood,
patted Plaintiff down, or searched through the vehicle.
Id. There is also no reference to Chief DeLuca in
this Notice of Claim. For relief, Plaintiff seeks
“Punitive damages-to punish officer Guca.”
second is against “Yorkville Police Department, Officer
Guca, ” and asserts “Sec. 69.1 Liability for
Negligence” Id., p. 3. The factual allegations
are the same as in the first Amended Notice of Claim, but for
relief Plaintiff seeks: “Civil Rights Damages-Officer
Guca violated my civil rights.” Id.
third is against “Yorkville Police Department, Officer
Guca, ” and asserts “Sec. 69.01 Liability for
Negligence.” Id. p. 4. The factual allegations
are the same as in the first and second Amended Notices of
Claim, but for relief Plaintiff seeks: “Actual
Damages-for emotional distress and nightmares.”
STANDARD OF REVIEW
Rule 12(b)(6) motion, the Court must accept “all
factual allegations in the complaint as true, and draw all
reasonable inferences in the plaintiff's favor."
Holmes v. Grubman, 568 F.3d 329, 335 (2d Cir. 2009)
(internal quotation marks omitted). This tenet does not apply
to legal conclusions, non-factual matter, or
“conclusory statements” set forth in a complaint.
Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009).
survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to state a claim
to relief that is plausible on its face." Id.
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007)). "Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do
not suffice." Id. While Fed.R.Civ.P. 8(a)(2)
“does not require detailed factual allegations, ... it
demands more than an unadorned,
(citation and internal quotation marks omitted). A claim will
only have “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.” Id. A complaint which
“tenders ‘naked assertion[s]' devoid of
‘further factual enhancement'” is
insufficient. Id. (citation omitted).
considering a motion to dismiss for failure to state a claim
pursuant to Rule 12(b)(6), a district court may consider the
facts alleged in the complaint, documents attached to the
complaint as exhibits, and documents incorporated by
reference in the complaint.” DiFolco v. MSNBC Cable
L.L.C., 622 F.3d 104, 111 (2d Cir. 2010).
move to dismiss all claims against all defendants except the
§ 1983 excessive force claim against Officer Guca under
the Fourth Amendment. The Court will address Defendants'
Police Department As A Proper Defendant
correctly note that a police department is an administrative
arm of a municipality and cannot be sued because it does not
exist separate and apart from the municipality and does not
have its own legal identity. See Baggett v. Town of
Lloyd, 2011 U.S. Dist. LEXIS 111565, at *13-*14
(N.D.N.Y. 2011); Moffett v. Town of Poughkeepsie,
2012 WL 3740724, at *1, n.1 (S.D.N.Y. Aug. 29,
2012). All claims against the Village of
Yorkville Police Department are dismissed.
Section 1983 Official Capacity Claims
sues Defendant Police Chief DeLuca "individually and in
his official capacity." Comp. ¶ 4. Section 1983
“[p]ersonal-capacity suits seek to impose personal
liability upon a government official for actions he takes
under color of state law.” De Ratafia v. County of
Columbia, 2013 WL 5423871, at *7 (N.D.N.Y. Sept. 26,
2013)(citing Scheuer v. Rhodes, 416 U.S. 232,
237-238 (1974)). “Official-capacity suits, in contrast,
‘generally represent only another way of pleading an
action against an entity of which an officer is an
agent.'” Id. (quoting Monell v. New
York City Dep't. of Soc. Servs., 436 U.S. 658, 690,
n. (1978)). “As long as the government entity receives
notice and an opportunity to respond, an official-capacity
suit is, in all respects other than name, to be treated as a
suit against the entity.” Id. (citing
Brandon v. Holt, 469 U.S. 464, 471-472 (1985)).
Because Plaintiff has sued the Village of Yorkville, his
claims against DeLuca in his official capacity are redundant
to the Village's potential § 1983 liability, and are
has not specifically stated whether he is suing Guca in his
official capacity or personal capacity or both. To the extent
he is suing Guca under Section 1983 in Guca's official
capacity, all such claims are dismissed.
Section 1983 - Supervisory Capacity Claim Againy
argue that to the extent Plaintiff is asserting any §
1983 claims against DeLuca based upon his supervisory
capacity as the Police Chief, the claims should be dismissed
for lack of personal involvement.
is well-settled in this Circuit that personal involvement of
defendants in alleged constitutional deprivations is a
prerequisite to an award of damages under § 1983.”
Odom v. Matteo, 772 F.Supp.2d 377, 403 (D. Conn.
2011) (quoting Colon v. Coughlin, 58 F.3d 865, 873
(2d Cir. 1995)). “The personal involvement of a
supervisory defendant may be shown by evidence that: (1) the
defendant participated directly in the alleged constitutional
violation; (2) the defendant, after being informed of the
violation through a report or appeal, failed to remedy the
wrong; (3) the defendant created a policy or custom under
which unconstitutional practices occurred, or allowed
continuance of such a policy or custom, (4) the defendant was
grossly negligent in supervising subordinates who committed
the wrongful acts, or (5) the defendant exhibited deliberate
indifference to the rights of [others] by failing to act on
information indicating that unconstitutional acts were
occurring.” Odom, 772 F.Supp.2d at 403
(quoting Colon, 58 F.3d at 873); see also
Raspardo v. Carlone, 770 F.3d 97, 116 (2d Cir.
Complaint contains no specific allegation about DeLuca's
personal involvement in any of the events underlying this
case, instead making only conclusory allegations about
DeLuca's responsibilities and supposed failures after the
alleged constitutional violations had occurred. A § 1983
claim cannot be grounded on barebones, conclusory assertions.
See De Ratafia, 2013 WL 5423871, at *9.
Plaintiff's argument that DeLuca was personally involved
because he "had the opportunity to dismiss/withdraw the
ticket and chose not to, " Pl. Mem. L. p. 5, relies on
facts not alleged in the Complaint. Even if these facts were
alleged, DeLuca's supposed inaction, in the form of
opting not to withdraw a traffic ticket that another police
officer had already issued, does not rise to the level of
personal involvement in underlying constitutional violations.
Plaintiff fails to present factual allegations plausibly
indicting that DeLuca (1) participated directly in the
alleged constitutional violations committed by Guca; (2)
failed to remedy a constitutional violation after being
informed of it; (3) created a policy or custom under which
unconstitutional practices occurred, or allowed continuance
of such a policy or custom; (4) was grossly negligent in
supervising Guca; or (5) exhibited deliberate indifference to
Plaintiff's rights by failing to act on information
indicating that unconstitutional acts were
occurring. Because Plaintiff's non-conclusory
factual allegations fail to present a plausible basis to
satisfy any of the Colon factors, the §1983
claims against DeLuca are dismissed without prejudice to
Monell Claim Against the Village
contend that Plaintiff fails to state a factually plausible
claim under Monell v. Dept. of Social Services of the
City of New York, 436 U.S. 658 (1978), because
“[n]owhere in the complaint does plaintiff make any
factual allegations to support a conclusion that the Village
had unconstitutional customs or policies that caused a
deprivation of a constitutional right. ” Def. Mem. L.
p. 10; see also Id. pp. 9-10. In this regard,
defendants argue that “[t]he only factual allegations
relate to Guca's alleged actions in connection with
ticketing plaintiff for running a red light. However, proof
of a single incident of unconstitutional activity here would
not be sufficient to impose Monell liability.”
Id. p. 10 (citing Oklahoma City v. Tuttle,
471 U.S. 808, 823-824 (1985)).
opposition, Plaintiff merely asserts that “[t]here is
sufficient allegations in plaintiff's complaint to
sustain actions against the Village of Yorkville. Upon
discovery it will be clear to the parties as to the exact
involvement of the Village of Yorkville. After discovery, it
may be that plaintiff will seek court approval for filing an
amended complaint.” Pl. Mem. L. pp. 5-6.
prevail on a § 1983 claim against a municipality, a
plaintiff must show that a municipal policy or custom caused
the deprivation of his constitutional rights.
Monell, 436 U.S. at 690-91. A municipality may not
be held liable under § 1983 on the basis of
respondeat superior. Id. at 694. Rather,
“[t]he plaintiff must first prove the existence of a
municipal policy or custom in order to show that the
municipality took some action that caused his injuries....
Second, the plaintiff must establish a casual connection-an
‘affirmative link'-between the policy and
deprivation of his constitutional rights.” Vippolis
v. Village of Haverstraw, 768 F.2d 40, 44 (2d Cir.
1985), cert. denied, 480 U.S. 916 (1987). Therefore,
in order to establish municipal liability, Plaintiff must
establish that an identified municipal policy or practice was
the “moving force [behind] the constitutional
violation” that he suffered. Monell, 436 U.S.
at 694; see also Anderson v. City of New York, 657
F.Supp. 1571, 1575-76 (S.D.N.Y. 1987).
claims must satisfy the Iqbal and Twombly
plausibility standard. Plair v. City of New York,
789 F.Supp.2d 459, 469 (S.D.N.Y. 2011). “[T]he
boilerplate Monell claims often included in many
§ 1983 cases . . . do not rise to the level of
plausibility.” Santiago v. City of New York,
2009 WL 2734667, at *3, 2009 U.S. Dist. LEXIS 75372, at *7
(E.D.N.Y. Aug. 18, 2009) (dismissing Monell claim);
see Plair, 789 F.Supp.2d at 469 (collecting cases).
“Furthermore, it is well established that a single
incident does not give rise to an unlawful practice by
subordinate officials ‘so permanent and well-settled as
to constitute ‘custom or usage.'”
Plair, 789 F.Supp.2d at 469 (quoting City of St.
Louis v. Praprotnik, 485 U.S. 112, 127 (1988) and citing
Sorlucco v. New York City Police Department, 971
F.2d 864, 870 (2d Cir.1992) and Anderson, 657
F.Supp. at 1574).
most part, Plaintiff relies on conclusory allegations arising
from a single incident to fill the gaps in his complaint
between Guco's conduct and a Village policy, custom or
practice that caused Plaintiff a constitutional injury.
However, Plaintiff alleges that the Village “had prior
notice of the vicious propensities of defendant Guco but took
no steps to train him, correct his abuse of authority, or
discourage his unlawful use of authority.” Compl.
¶ 29. While a § 1983 failure to train or supervise
claim cannot be grounded on barebones, conclusory assertions,
see De Ratafia, 2013 WL 5423871, at *9, Plaintiff
has alleged enough to allow his failure to train or supervise
claim against the Village to continue. Whether Plaintiff can
establish the required elements of the claim can be tested
after discovery. For present purposes, Defendants' motion
on this ground is denied.
Section 1983 Illegal Vehicle Search Claim
assert that Plaintiff's Section 1983 illegal search claim
should be dismissed because he alleges that after he was
removed from the vehicle, he was “facing away from the
driver seat” and only heard “noises” that
sounded like Guca was “going through”
plaintiff's vehicle. These facts, Defendants contend, are
insufficient to support a plausible claim that Guca
unlawfully searched Plaintiff's vehicle.
the alleged facts as true, and drawing reasonable inferences
in Plaintiff's favor, there are sufficient factual
allegations from which a reasonable fact finder could
conclude that Plaintiff heard Guca enter Plaintiff's
vehicle while Plaintiff was lying on the hood. Given these
circumstances, it would be a reasonable inference that Guca
searched the vehicle while he was in it. Further, accepting
Plaintiff's allegations as true, Officer Guca lacked a
legal justification to search Plaintiff's vehicle. Thus,
the allegations are sufficient to support a plausible Fourth
Amendment illegal search claim. Defendants' motion on
this ground is denied.
Fifth, Eighth, Ninth and Fourteenth Amendments
Plaintiff asserts his illegal search claim not only under the
Fourth Amendment, but also the Fifth, Eighth, Ninth and
Fifth Amendment has no application in this case. The Fifth
Amendment solely governs the conduct of federal government
and federal employees, and does not regulate the activities
of state officials or state actors. Maddox v.
Fowler, 2015 WL 4366222, at *10 (N.D.N.Y. July 16,
2015). Because Plaintiff's lawsuit does not allege a
deprivation of his rights by the federal government, all
claims premised upon the Fifth Amendment are dismissed.
the Eighth Amendment has no application in this case. The
Eighth Amendment prohibition on the infliction of cruel and
unusual punishments applies only to those individuals
convicted of crimes. Wilson v. Seiter, 501 U.S. 294,
297 (1991). Because the facts do not indicate that Plaintiff
was convicted of a crime, the Eighth Amendment claim is
inapplicable. Thus, all claims premised upon the Eighth
Amendment are dismissed.
Ninth Amendment provides no basis for Section 1983 liability.
The Ninth Amendment "is recognized as a rule of
construction, not one that protects any specific right, [and
thus] no independent constitutional protection is recognized
which derives from the Ninth Amendment and which may support
a § 1983 cause of action." Rini v. Zwirn,
886 F.Supp. 270, 289 (E.D.N.Y. 1995)(citing Laurence H.
Tribe, American Constitutional Law § 11-3, at
774-75 (2d ed. 1988)); see Barnett v. Carberry, 420
Fed.Appx. 67, 69 (2d Cir. 2011),  cert. denied,
132 S.Ct. 248 (2011); Bussey v. Phillips, 419
F.Supp.2d 569, 586 (S.D.N.Y. 2006). Thus, all claims premised
upon the Ninth Amendment are dismissed.
Fourteenth Amendment also does not apply to Plaintiff's
illegal search claim. Because the Fourth Amendment provides
an explicit textual source of constitutional protection for
Plaintiff's alleged constitutional injury, he has no
basis for a due process claim based upon the alleged illegal
search of his vehicle. Albright v. Oliver, 510 U.S.
266, 273 (1994). Accordingly, Plaintiff's Fourteenth
Amendment due process claim based upon the alleged search of
Plaintiff's vehicle is dismissed.
Section 1983 False Arrest Claim
Complaint alleges that Defendants violated Plaintiff's
Fourth and Fourteenth Amendment rights “by unlawfully
and wrongfully seizing plaintiff's person without
probable cause . . . in clear violation of due
process.” Compl. ¶ 34 (a). Defendants argue that
this claim must be dismissed because (1) Guco had probable
cause to detain Plaintiff for purposes of issuing him a
traffic ticket; (2) the issuance of a traffic ticket or court
summons does not constitute a seizure under the Fourth
Amendment for purposes of establishing a false arrest claim;
(3) the facts are insufficient to support a false arrest
claim because there are no allegations that Guco handcuffed
Plaintiff, used a weapon to detain him, or transported him
away from the scene of the traffic stop.
“[c]ourts ... have repeatedly held that the issuance of
a traffic ticket or court summons alone does not constitute a
seizure under the Fourth Amendment for the purposes of
establishing a false arrest ... claim, ” LoSardo v.
Ribaudo, 2015 WL 502077, at *5 (E.D.N.Y. Feb. 5, 2015),
Plaintiff's allegations are susceptible to a reading that
he was unlawfully arrested within the meaning of the Fourth
Amendment when he was physically removed from his vehicle
without reason, “slammed” across the hood of the
vehicle, patted down, and told not to move. These facts,
accepted as true, are sufficient to present a plausible claim
that Plaintiff was falsely arrested for a period of time
beyond that which was required for Guco to issue Plaintiff a
traffic ticket. See Cross v. City of Albany, 2016 WL
6106476, at *3 (N.D.N.Y. Oct. 19, 2016); see also
LoSardo, 2015 WL 502077, at *5.
“[t]emporary detention of individuals during the stop
of an automobile by the police, even if only for a brief
period and for a limited purpose, constitutes a
‘seizure' of ‘persons' [under the Fourth
Amendment].” Whren v. United States, 517 U.S.
806, 809-10 (1996). “Automobile ‘stops must be
justified by probable cause or a reasonable suspicion, based
on specific and articulable facts, of unlawful
conduct.'” Cross, 2016 WL 6106476, at *3
(quoting United States v. Scopo, 19 F.3d 777, 781
(2d Cir. 1994)). Taking Plaintiff's factual allegations
as true, Guco neither had probable cause nor reasonable
suspicion to believe that Plaintiff had committed “a
traffic offense-however minor.” Scopo, 19 F.3d
at 782. Under such circumstances, Plaintiff states a
plausible Fourth Amendment claim of false arrest. See
Cross, 2016 WL 6106476, at *4. Accordingly,
Defendants' motion on this ground is denied.
the Fourteenth Amendment Due Process Clause does not apply to
Plaintiff's false arrest claim because the Fourth
Amendment provides an explicit textual source of
constitutional protection for Plaintiff's alleged
constitutional injury caused by that arrest.
Albright, 510 U.S. at 273; see Gerstein v.
Pugh, 420 U.S. 103, 125 n. 27 (1975).Accor ...