United States District Court, S.D. New York
Gantt, Jr. Dannemora, NY Pro Se Plaintiff
Kimberly H. Lee, Esq. David L. Posner, Esq. McCabe & Mack
LLP Poughkeepsie, NY Counsel for Defendants
ORDER & OPINION
KENNETH M. KARAS, UNITED STATES DISTRICT JUDGE
Gantt, Jr. (“Gantt” or “Plaintiff”),
currently an inmate at Clinton Correctional Facility
(“Clinton”), brings this pro se action under 42
U.S.C. § 1983, claiming violations of his Eighth and
Fourteenth Amendment rights by the City of Newburgh (the
“City”), Police Chief Michael Ferrara
(“Ferrara”), Officer Eric Henderson
(“Henderson”), Officer Mike Pitt
(“Pitt”), Officer Kevin Lahar
(“Lahar”), Officer Joseph Cerone
(“Cerone”), and Police Sergeant Weaver
(“Weaver, ” and collectively,
“Defendants”). Plaintiff alleges that Defendants
violated his constitutional rights by “fail[ing] to
protect . . . [P]laintiff as required by law” when
“several unknown assailants” and Defendant
Henderson assaulted him. (Compl. ¶¶ 23, 24 (Dkt.
No. 2).) Before the Court is Defendants' Motion To
Dismiss (the “Motion”). For the reasons to
follow, Defendants' Motion is granted in part and denied
following facts are drawn from Plaintiff's Complaint and
are assumed to be true for the purpose of deciding the
alleges that on November 3, 2012, he was at the DryDock club
in the City of Newburgh with his brother and a friend when a
fight broke out between several patrons. (Id.
¶¶ 10-11.) The group was preparing to leave the
club by car when Plaintiff's brother exited the car and
returned to the club to locate a friend. (Id.
¶¶ 12-13.) Plaintiff was en route to his home, but
decided to return to the club to find his brother.
(Id. ¶ 14.) Upon returning to the club,
Plaintiff believed he spotted his brother in a large crowd.
(Id.) While walking toward the crowd, Plaintiff was
struck in the head and subsequently attacked by several
unknown individuals. (Id. ¶¶ 14-15.)
Plaintiff attempted to flee, but was unable to do so.
(Id. ¶ 16.) The assailants stabbed Plaintiff,
knocked him to the ground, and kicked him until he was
unconscious. (Id. ¶ 17.)
asserts that during the attack, Defendants Henderson, Pitt,
and Lahar watched the assault, but failed to offer assistance
to Plaintiff. (Id. ¶ 18.) Plaintiff also avers
that Defendant Henderson “straddle[ed] . . . sh[ook]
and str[uck]” Plaintiff while he was unconscious,
(id. ¶ 21), and that Defendants Pitt, Lahar,
Weaver, and Cerone “stood by and did nothing to
intervene when [D]efendant Eric Henderson was assaulting
[P]laintiff, ” (id. ¶ 23). Plaintiff
further asserts that Defendants Pitt and Cerone
“dragged [Plaintiff] on his stomach in the
street” and told Plaintiff “he was going to
die.” (Id. ¶ 22.) Finally, Plaintiff
alleges that Defendant Ferrara, as Chief of Police,
“failed to properly train and supervise” the
other Defendants, resulting in Plaintiff's serious
physical injuries. (Id. ¶ 25.)
seeks a declaratory judgment that “[D]efendants'
acts, polic[ies] and/or practice[s] . . . violated
[P]laintiff's rights under the Constitution” and a
permanent injunction prohibiting Defendants from engaging in
the conduct described in the Complaint. (Id.
¶¶ 35-36.) Additionally, Plaintiff requests
compensatory and exemplary damages in the amount of 20
million dollars, as well as payment for “any and all
future medical expenses accrued by [P]laintiff for the
injuries [P]laintiff suffered” and the cost of this
Action, including reasonable attorney's fees.
(Id. at 8.)
September 29, 2015, Plaintiff filed his Complaint. (Dkt. No.
2.) On October 6, 2015, Plaintiff's request to proceed in
forma pauperis was granted. (Dkt. No. 4.) On October 13,
2015, the Court issued an Order of Service, dismissing
Plaintiff's claims against the City of Newburgh Police
Department and substituting the City of Newburgh as a
defendant. (Dkt. No. 6.)
March 21, 2016, Defendants filed the instant Motion and
accompanying memorandum of law. (Dkt. Nos. 28, 32.)
Defendants attached to their Motion excerpts of transcripts
from Plaintiff's criminal trial regarding the events of
November 3, 2012, including the jury verdict, (Aff. of
Kimberly H. Lee, Esq. (“Lee Aff.”) Ex. B (Dkt.
No. 29)), Plaintiff's testimony in his defense, (Lee Aff.
Ex. C), and the charge to the jury, (Lee Aff. Ex. D).
Defendants also served Plaintiff with a notice pursuant to
Local Civil Rule 12.1. (Dkt. No. 31.)
letter to the Court filed April 5, 2016, Plaintiff requested
that the Court order Defendants to produce the complete
transcript of Plaintiff's related criminal case. (Dkt.
No. 35.) Throughout April and May of 2016, the Parties sent
various correspondence to the Court regarding the voluminous
transcripts and Plaintiff's need for the transcripts in
responding to Defendants' Motion. (See, e.g.,
Dkt. Nos. 36-37, 39, 41-42.) On May 23, 2016, the Court denied
Plaintiff's request to order Defendants to produce the
transcripts. (Dkt. No. 44.)
6, 2016, Plaintiff filed his response to Defendants'
Motion, (Dkt. No. 49), and on July 12, 2016, Defendants filed
their reply, (Dkt. No. 51).
Standard of Review Defendants move to dismiss
Plaintiff's Complaint pursuant to Federal Rules of Civil
Procedure 12(b)(1), 12(b)(5), and 12(b)(6). (See
Defs.' Mem. of Law in Supp. of Dismissal
(“Defs.' Mem.”) 3-4 (Dkt. No. 32).)
standards of review for a motion to dismiss under Rule
12(b)(1) for lack of subject matter jurisdiction and under
12(b)(6) for failure to state a claim are substantively
identical.” Gonzalez v. Option One Mortg.
Corp., No. 12-CV-1470, 2014 WL 2475893, at *2 (D. Conn.
June 3, 2014) (internal quotation marks omitted); see
also Neroni v. Coccoma, No. 13-CV-1340, 2014 WL 2532482,
at *4 (N.D.N.Y. June 5, 2014) (same), aff'd, 591
F. App'x 28 (2d Cir. 2015). “In deciding both types
of motions, the Court must accept all factual allegations in
the complaint as true, and draw inferences from those
allegations in the light most favorable to the
plaintiff.” Gonzalez, 2014 WL 2475893, at *2
(internal quotation marks omitted); see also Seemann v.
U.S. Postal Serv., No. 11-CV-206, 2012 WL 1999847, at *1
(D. Vt. June 4, 2012) (same). However, “[o]n a Rule
12(b)(1) motion, . . . the party who invokes the Court's
jurisdiction bears the burden of proof to demonstrate that
subject matter jurisdiction exists, whereas the movant bears
the burden of proof on a motion to dismiss under Rule
12(b)(6).” Gonzalez, 2014 WL 2475893, at *2;
see also Sobel v. Prudenti, 25 F.Supp.3d 340, 352
(E.D.N.Y. 2014) (“In contrast to the standard for a
motion to dismiss for failure to state a claim under Rule
12(b)(6), a plaintiff asserting subject matter jurisdiction
has the burden of proving by a preponderance of the evidence
that it exists.” (internal quotation marks omitted)).
This allocation of the burden of proof is “[t]he only
substantive difference” between the standards of review
under these two rules. Smith v. St. Luke's Roosevelt
Hosp., No. 08-CV-4710, 2009 WL 2447754, at *9 n.10
(S.D.N.Y. Aug. 11, 2009), adopted by 2009 WL 2878093
(S.D.N.Y. Sept. 2, 2009); see also Fagan v. U.S. Dist.
Court for S. Dist. of N.Y., 644 F.Supp.2d 441, 446-47
& n.7 (S.D.N.Y. 2009) (same).
federal court has subject matter jurisdiction over a cause of
action only when it has authority to adjudicate the cause
pressed in the complaint.” Bryant v. Steele,
25 F.Supp.3d 233, 241 (E.D.N.Y. 2014) (internal quotation
marks omitted). “Determining the existence of subject
matter jurisdiction is a threshold inquiry[, ] and a claim is
properly dismissed for lack of subject matter jurisdiction
under Rule 12(b)(1) when the district court lacks the
statutory or constitutional power to adjudicate it.”
Morrison v. Nat'l Austl. Bank Ltd., 547 F.3d
167, 170 (2d Cir. 2008) (internal quotation marks omitted),
aff'd, 561 U.S. 247 (2010); see also Butler
v. Ross, No. 16-CV-1282, 2016 WL 3264134, at *3
(S.D.N.Y. June 14, 2016) (same). Nevertheless,
“[u]nlike Article III standing, which ordinarily should
be determined before reaching the merits, statutory standing
may be assumed for the purposes of deciding whether the
plaintiff otherwise has a viable cause of action.”
Coan v. Kaufman, 457 F.3d 250, 256 (2d Cir. 2006)
(citation omitted). While a district court resolving a motion
to dismiss under Rule 12(b)(1) “must take all
uncontroverted facts in the complaint . . . as true, and draw
all reasonable inferences in favor of the party asserting
jurisdiction, ” “where jurisdictional facts are
placed in dispute, the court has the power and obligation to
decide issues of fact by reference to evidence outside the
pleadings, such as affidavits, ” in which case
“the party asserting subject matter jurisdiction has
the burden of proving by a preponderance of the evidence that
it exists.” Tandon v. Captain's Cove Marina of
Bridgeport, Inc., 752 F.3d 239, 243 (2d Cir. 2014)
(alteration and internal quotation marks omitted); see
also Ray Legal Consulting Grp. v. Gray, 37 F.Supp.3d
689, 696 (S.D.N.Y. 2014) (“[W]here subject matter
jurisdiction is contested a district court is permitted to
consider evidence outside the pleadings, such as affidavits
a complaint attacked by a Rule 12(b)(6) motion to dismiss
does not need detailed factual allegations, a plaintiff's
obligation to provide the grounds of his [or her] entitlement
to relief requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action
will not do.” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007) (citations, alterations, and internal
quotation marks omitted). Indeed, Rule 8 of the Federal Rules
of Civil Procedure “demands more than an unadorned,
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
“Nor does a complaint suffice if it tenders naked
assertions devoid of further factual enhancement.”
Id. (alteration and internal quotation marks
omitted). Instead, a complaint's “[f]actual
allegations must be enough to raise a right to relief above
the speculative level.” Twombly, 550 U.S. at
555. Although “once a claim has been stated adequately,
it may be supported by showing any set of facts consistent
with the allegations in the complaint, ” id.
at 563, and a plaintiff must allege “only enough facts
to state a claim to relief that is plausible on its face,
” id. at 570, if a plaintiff has not
“nudged [his or her] claim across the line from
conceivable to plausible, the complaint must be dismissed,
” id.; see also Iqbal, 556 U.S. at
679 (“Determining whether a complaint states a
plausible claim for relief will . . . be a context-specific
task that requires the reviewing court to draw on its
judicial experience and common sense. But where the
well-pleaded facts do not permit the court to infer more than
the mere possibility of misconduct, the complaint has
alleged-but it has not ‘show[n]'-‘that the
pleader is entitled to relief.'” (citation omitted)
(second alteration in original) (quoting Fed.R.Civ.P.
8(a)(2))); id. at 678-79 (“Rule 8 marks a
notable and generous departure from the hypertechnical,
code-pleading regime of a prior era, but it does not unlock
the doors of discovery for a plaintiff armed with nothing
more than conclusions.”).
ruling on a defendant's motion to dismiss, a judge must
accept as true all of the factual allegations contained in
the complaint.” Erickson v. Pardus, 551 U.S.
89, 94 (2007) (per curiam); see also Nielsen v.
Rabin, 746 F.3d 58, 62 (2d Cir. 2014) (“In
addressing the sufficiency of a complaint we accept as true
all factual allegations . . . . ” (internal quotation
marks omitted)); Aegis Ins. Servs., Inc. v. 7 World Trade
Co., 737 F.3d 166, 176 (2d Cir. 2013) (“In
reviewing a dismissal pursuant to Rule 12(b)(6), we . . .
accept all factual allegations in the complaint as true . . .
.” (alteration and internal quotation marks omitted)).
Further, “[f]or the purpose of resolving [a] motion to
dismiss, the Court . . . draw[s] all reasonable inferences in
favor of the plaintiff.” Daniel v. T & M Prot.
Res., Inc., 992 F.Supp.2d 302, 304 n.1 (S.D.N.Y. 2014)
(citing Koch v. Christie's Int'l PLC, 699
F.3d 141, 145 (2d Cir. 2012)).
as here, a plaintiff proceeds pro se, the court must
“construe [his] [complaint] liberally and interpret
[it] to raise the strongest arguments that [it]
suggest[s].” Sykes v. Bank of Am., 723 F.3d
399, 403 (2d Cir. 2013) (per curiam) (internal quotation
marks omitted); see also Farzan v. Wells Fargo Bank,
N.A., No. 12-CV-1217, 2013 WL 6231615, at *12 (S.D.N.Y.
Dec. 2, 2013) (same), aff'd sub nom. Farzan v.
Genesis 10, 619 F. App'x 15 (2d Cir. 2015). In
deciding a motion to dismiss a pro se complaint, it is
appropriate to consider “materials outside the
complaint to the extent that they are consistent with the
allegations in the complaint, ” Alsaifullah v.
Furco, No. 12-CV-2907, 2013 WL 3972514, at *4 n.3
(S.D.N.Y. Aug. 2, 2013) (internal quotation marks omitted),
including “documents that a pro se litigant attaches to
his opposition papers, ” Agu v. Rhea, No.
09-CV-4732, 2010 WL 5186839, at *4 n.6 (E.D.N.Y. Dec. 15,
2010) (italics omitted); see also Walker v. Schult,
717 F.3d 119, 122 n.1 (2d Cir. 2013) (noting that a court may
consider “factual allegations made by a pro se party in
his papers opposing the motion” (italics omitted)).
However, “the liberal treatment afforded to pro se
litigants does not exempt a pro se party from compliance with
relevant rules of procedural and substantive law.”
Bell v. Jendell, 980 F.Supp.2d 555, 559 (S.D.N.Y.
2013) (internal quotation marks omitted); see also Caidor
v. Onondaga County, 517 F.3d 601, 605 (2d Cir. 2008)
(“[P]ro se litigants generally are required to inform
themselves regarding procedural rules and to comply with
them.” (italics and internal quotation marks omitted)).
federal court generally may not rule on the merits of a case
without first determining that it has jurisdiction over the
category of claim in suit (subject-matter jurisdiction) and
the parties (personal jurisdiction).” Sinochem
Int'l Co. v. Malaysia Int'l Shipping Corp., 549
U.S. 422, 430-31 (2007). Valid service is a prerequisite for
a federal court to assert personal jurisdiction over a claim.
See Omni Capital Int'l, Ltd. v. Rudolf Wolff &
Co., 484 U.S. 97, 104 (1987). “When a defendant
moves to dismiss under Rule 12(b)(5), the plaintiff bears the
burden of proving adequate service.” Dickerson v.
Napolitano, 604 F.3d 732, 752 (2d Cir. 2010) (alteration
and internal quotation marks omitted); see also Tomney v.
Int'l Ctr. for the Disabled, No. 02-CV-2461, 2003 WL
1990532, at *3 (S.D.N.Y. Apr. 29, 2003) (“Once a
defendant raises a challenge to the sufficiency of service of
process, the plaintiff bears the burden of proving its
adequacy.” (internal quotation marks omitted)).
deciding a Rule 12(b)(5) motion, the Court “must look
to matters outside the complaint to determine what steps, if
any, the plaintiff took to effect service.” C3
Media & Mktg. Grp., LLC v. Firstgate Internet, Inc.,
419 F.Supp.2d 419, 427 (S.D.N.Y. 2005) (internal quotation
marks omitted); see also PH Int'l Trading Corp. v.
Nordstrom, Inc., No. 07-CV-10680, 2009 WL 859084, at *3
(S.D.N.Y. Mar. 31, 2009) (“A court may, on a Rule
12(b)(5) motion to dismiss, consider affidavits and documents
submitted by the parties without converting the motion into
one for summary judgment under Rule 56.” (alteration
and internal quotation marks omitted)).
Claims Against Defendant Ferrara
move to dismiss the claims against Defendant Ferrara, former
Police Chief for the City Newburgh Police Department, for
failure to serve, pursuant to Federal Rules of Civil
Procedure 4(m) and 12(b)(5), and alternatively, failure to
state a claim. (See Defs.' Mem. 3-4.) The Court
considers each in turn.
4(m) requires a plaintiff to effect proper service on a
defendant within 90 days of the filing of the complaint.
See Fed. R. Civ. P. 4(m). If a plaintiff fails to do
so, the Court “must dismiss the action without
prejudice against [the] defendant or order that service be
made within a specified time.” Id. However, if
the plaintiff has demonstrated good cause for a failure to
effect service, the court must extend the time to
effect service. Id.; see also Blessinger v.
United States, 174 F.R.D. 29, 31 (E.D.N.Y. 1997) (noting
that if a plaintiff demonstrates good cause, “the
extension [to serve] is mandatory”). To determine
whether a plaintiff has demonstrated good cause,
“[c]ourts generally consider three factors . . .: (1)
whether the delay resulted from inadvertence or whether a
reasonable effort to effect service has occurred, (2)
prejudice to the defendant, and (3) whether the plaintiff has
moved for an enlargement of time to effect service under Rule
6(b) of the Federal Rules of Civil Procedure.”
Echevarria v. Dep't of Corr. Servs., 48
F.Supp.2d 388, 392 (S.D.N.Y. 1999).
does not contest that Defendant Ferrara has not been served
with the Complaint and that the time to do so has expired.
Rather, Plaintiff asserts that “[a]s a pro se litigant,
[he] should be granted special leniency regarding procedural
matters.” (Pl.'s Resp. to Def[s.'] Mot. To
Dismiss (“Pl.'s Resp.”) 6-7 (Dkt. No. 49).)
Although the “special solicitude afforded to pro se
civil rights litigants does not give them license to violate
the Federal Rules of Civil Procedure, ” Self v.
LaValley, No. 10-CV-1463, 2013 WL 1294448, at *3
(N.D.N.Y. Mar. 27, 2013) (italics omitted), the Court has an
obligation “to make reasonable allowances to protect
pro se litigants from inadvertent forfeiture of important
rights because of their lack of legal training, ”
Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)
(italics omitted). Moreover, the Second Circuit has a
“clearly expressed preference that litigation disputes
be resolved on the merits.” Mejia v. Castle Hotel,
Inc., 164 F.R.D. 343, 346 (S.D.N.Y. 1996); see also
Cody v. Mello, 59 F.3d 13, 15 (2d Cir. 1995) (same);
Enron Oil Corp. v. Diakuhara, 10 F.3d 90, 95 (2d
Cir. 1993) (same).
asserts that he “made several attempts to locate
[D]efendant [Ferrara], ” (Pl.'s Resp. 7), and
attaches copies of two letters sent from Michelle Kelson,
corporation counsel for Defendants, in response to
Plaintiff's inquiries regarding locating Defendants
Ferrara and Henderson, (see Pl.'s Resp. Ex.
One letter response, dated January 19, 2016, informed
Plaintiff that corporation counsel was “unable to
provide records with the current address of Michael Ferrara
or Eric Henderson.” (Id. at 2.) Of additional
importance here is Plaintiff's letter to the Court, dated
December 16, 2015, informing the Court that the “notice
of service forms were returned to [him]” and inquiring
about next steps to execute service upon the unserved
Defendants. (Letter from Plaintiff to Court (Dec. 16, 2015)
(Dkt. No. 15).) The Court did not issue an order in response
to Plaintiff's letter.
Plaintiff did not explicitly move for “an enlargement
of time to effect service, ” Echevarria, 48
F.Supp.2d at 392, the Court now liberally construes
Plaintiff's December 16, 2015 letter as requesting such
an extension. As Plaintiff expended a reasonable effort to
effect service and Defendants do not allege any prejudice to
Defendant Ferrara, the Court finds that Plaintiff has
demonstrated good cause for his failure to serve Defendant
Ferrara. Accordingly, Plaintiff will be provided additional
time to effect service of the Complaint on Defendant Ferrara.