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Gantt v. City of Newburgh Police Department

United States District Court, S.D. New York

March 29, 2017

LARRY GANTT, JR., Plaintiff,

          Larry 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


         Larry 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”).[1] 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 in part.

         I. Background

         A. Factual Background

         The following facts are drawn from Plaintiff's Complaint and are assumed to be true for the purpose of deciding the Motion.

         Plaintiff 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.)

         Plaintiff 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.)

         Plaintiff 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.)

         B. Procedural History

         On 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.)

         On 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.)

         In a 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.)[2] On May 23, 2016, the Court denied Plaintiff's request to order Defendants to produce the transcripts. (Dkt. No. 44.)

         On July 6, 2016, Plaintiff filed his response to Defendants' Motion, (Dkt. No. 49), and on July 12, 2016, Defendants filed their reply, (Dkt. No. 51).

         II. Discussion

         A. 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).)

         “The 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).

         1. Rule 12(b)(1)

         “A 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 and exhibits.”).

         2. Rule 12(b)(6)

         “While 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, the-defendant-unlawfully-harmed-me accusation.” 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.”).

         “[W]hen 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)).

         Where, 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)).

         3. Rule 12(b)(5)

         “[A] 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)).

         In 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)).

         B. Analysis

         1. Claims Against Defendant Ferrara

         Defendants 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.

         Rule 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).[3] 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).

         Plaintiff 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).

         Plaintiff 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. B).[4] 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.)[5] 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.

         While 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. Defendants ...

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