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Barrett v. City of Newburgh

United States District Court, S.D. New York

March 23, 2017


          OPINION & ORDER


          Plaintiff Virginia D. Barrett brings this action against Robert Vasta and Joseph Burns (collectively, "Defendants"), two City of Newburgh police officers.[1] Alleging that one officer used excessive force while the other failed to intervene and prevent the alleged use of excessive force, [2] Barrett is seeking compensatory and punitive damages from Defendants for violating her civil rights under 42 U.S.C. § 1983. The Second Amended Complaint[3] states that on October 12, 2012, the officers made an arrest during which they "force[d] [Barrett's] arms behind her back" in handcuffs despite repeated warnings that she could not "move her arms in [such] a manner, " as she "recently had, and was recovering from, shoulder surgery." (Second Am. Compl. ("SAC") ¶ 9, ECF No. 24.) Barrett claims she sustained "exacerbated ... shoulder injuries" that "caused her to have substantial pain and suffering and a second operation on her shoulder." (Id. ¶ 11.) Defendants move to dismiss the Second Amended Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Defendants assert only that Plaintiff's action is time-barred. For the reasons stated below, Defendants' motion to dismiss is GRANTED.


         The Court's prior opinion in this case, see Barrett v. City of Newburgh, No. 13-CV-04118 (NSR), 2014 WL 1092176 (S.D.N.Y. Mar. 18, 2014), sets forth the factual background and procedural history in some detail. The Court presumes the parties' familiarity with the Court's prior opinion. (See generally ECF No. 20.) Simply put, Plaintiff alleges that Defendants used excessive force when they arrested her and “acted in a malicious and sadistic manner, ” in ignoring “[her] cries of pain” and warnings “as to her actual physical condition.” (Id. ¶ 13.) Plaintiff proceeds on the theory that the injuries resulting from the arrest are made worse by the fact that “she was not the original target of the search, ” “had committed no crime or offense, ” “was not assisting any third party to do so, ” “or obstructing any police function” when “[officers] Vasta and Burns approached and apprehended [her].” (Id. ¶¶ 8, 12.)


         Plaintiff commenced this action on June 14, 2013. (Compl. (the “original Complaint”), ECF No. 1.) The original Complaint named only the City of Newburgh and a John Doe as defendants.[4] (Id.) In a letter dated August 16, 2013, Plaintiff informed defendants and the Court that she had “inadvertently” pled her claim against the City of Newburgh under the Fourteenth Amendment rather than the Fourth Amendment. See Barrett v. City of Newburgh, No. 13-CV-04118 NSR, 2014 WL 1092176, at *1 (S.D.N.Y. Mar. 18, 2014). After a pre-motion conference held on September 30, 2013, the Court granted Plaintiff leave to file an amended complaint, and provided defendants with a briefing schedule.

         Plaintiff timely filed her First Amended Complaint on October 12, 2013, which the City of Newburgh moved to dismiss pursuant to Rule 12(b)(6) on December 27, 2013. (ECF. Nos. 19 & 8, respectively.) Despite seeking leave to amend for the specific purpose of alleging a Fourth Amendment violation against the City of Newburgh, Plaintiff still maintained that the city's failure to train police officers violated only the Fourteenth Amendment. (Am. Compl. ¶ 22, ECF. No. 19.) After receiving the City of Newburgh's response (ECF Nos. 8, 9, & 15), the Court issued an order dated March 18, 2014 dismissing the City of Newburgh as a defendant.[5] (See generally ECF No. 20.)

         Approximately 21 months after the City of Newburgh was terminated as a party to the action, Plaintiff sought leave to file a second amended complaint to replace “John Doe” with individual defendants. In a letter dated December 7, 2015, Plaintiff explained that she had “obtain[ed] city records indicating the name of the [John Doe] [she] believed responsible for the alleged use of excessive force.” (ECF No. 21.) Plaintiff further asserted that “[c]ounsel for the City of Newburgh had refused to cooperate with [her] efforts to identify the responding police officers and since the matter was dismissed as [against the City of Newburgh], [counsel] refused to respond to [Plaintiff's] discovery demands.” (Id.) On December 8, 2015, the Court granted Plaintiff leave to a file a motion to amend the complaint (see ECF No. 22), and Plaintiff filed the Second Amended Complaint on December 18, 2015, substituting “Robert Vasta and Joseph Burns” for “John Doe.” (Second Am. Compl. (“SAC”) (referred herein as the “operative complaint”), ECF No. 24.)[6]

         Pursuant to a scheduling order entered after a pre-motion conference on February 24, 2016, (see ECF No. 31), Defendants filed the instant Motion to Dismiss (see Mot. to Dismiss (“Mot.”), ECF No. 37), and a memorandum of law in support of the Motion, (see Mem. of Law in Supp. of Defs.' Mot. to Dismiss (“Defs.' Mem.”), ECF No. 42); Plaintiff submitted a memorandum of law in opposition to the Motion (see Pl.'s Mem. of Law in Opp'n (“Pl.'s Opp'n”), ECF No. 45), dated May 4, 2016; and Defendants filed a reply (see Reply Mem. of Law in Supp. of Defs.' Mot. to Dismiss (“Defs.' Reply”), ECF No. 48.)


         A. Rule 12(b)(6)

         In evaluating Defendants' motion to dismiss pursuant to Rule 12(b)(6), the Court must accept all facts set forth in the Second Amended Complaint as true and draw all reasonable inferences in Plaintiff's favor. See, e.g., Burch v. Pioneer Credit Recovery, Inc., 551 F.3d 122, 124 (2d Cir. 2008) (per curiam). A claim will survive a Rule 12(b)(6) motion, however, only if the plaintiff alleges facts sufficient “to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). A plaintiff must show “more than a sheer possibility that a defendant has acted unlawfully, ” id., and cannot rely on mere “labels and conclusions” to support a claim, Twombly, 550 U.S. at 555. If the plaintiff's pleadings “have not nudged [his or her] claims across the line from conceivable to plausible, [the] complaint must be dismissed.” Twombly, 550 U.S. at 570.

         Although “[t]he lapse of a limitations period is an affirmative defense that a defendant must plead and prove[, ]” a statute of limitations defense may be “raise[d] … in a Rule 12(b)(6) motion if the defense appears on the face of the complaint.” Staehr v. Hartford Fin. Servs. Grp., Inc., 547 F.3d 406, 425 (2d Cir. 2008) (internal quotation marks omitted); see also Vasconcellos v. City of New York, No. 12-CV-8445, 2014 WL 4961441, at *2 (S.D.N.Y. Oct. 2, 2014) (same); Mosdos Chofetz Chaim, Inc. v. RBS Citizens, N.A., 14 F.Supp.3d 191, 210 (S.D.N.Y. 2014) (“[B]ecause the defendants bear the burden of establishing the expiration of the statute of limitations as an affirmative defense, a pre-answer motion to dismiss on this ground may be granted only if it is clear on the face of the complaint that the statute of limitations has run.” (internal quotation marks omitted)); cf. Wang v. Palmisano, 51 F.Supp.3d 521, 536-38, No. 13-CV-2186, ...

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