United States District Court, N.D. New York
DECISION & ORDER
J. McAvoy Senior, U.S. District Judge
Jared Tuff commenced this action asserting claims pursuant to
42 U.S.C. § 1983 and New York state law. Defendants
previously moved to dismiss portions of the Complaint. In
response to that motion, the Court terminated the Village of
Yorkville Police Department (“YPD”) as a
defendant, struck from the Complaint the punitive damages
claim against the Village of Yorkville
(“Village”), dismissed without leave to replead
certain claims, dismissed other claims with leave to replead,
and denied the motion in all other respects. See
01/30/17 Dec. & Order, dkt # 15. Plaintiff then filed an
Amended Complaint (dkt. # 16) which, with one exception,
repleads all the same claims against the same
defendants, and demands the same relief, as contained in the
Complaint, seemingly ignoring the substance of the
Court's January 30, 2017 Decision and Order.
now move pursuant to Fed.R.Civ.P. 12(b)(6) to dismiss with
prejudice many of the repleaded claims. Dkt. # 17. In
response, Plaintiff files only an affidavit from his
attorney. See Manion Aff., dkt. 19. Because an
affidavit may not contain legal arguments, see
N.D.N.Y. L.R. 7.1(a)(2),  and because Plaintiff failed to file a
memorandum of law as required by N.D.N.Y. L.R. 7.1(a)(1), the
Court treats the motion as unopposed. See N.D.N.Y.
L.R. 7.1(b)(3). For the reasons that follow,
Defendants' motion is granted
allegations pertinent to this case were set forth in detail
in the January 30, 201 Decision and Order, familiarity with
which is presumed. Because the Amended Complaint changes
little, the allegations in that pleading will not be repeated
here. Suffice it to say th except for the omission of a First
Amendment claim, the Amended Complaint contains the same
claims, defendants, and demands for relief as existed in the
original Complaint. The Amended Complaint also adds new
factual allegations to paragraphs 22, 27, and 30. These new
factual allegations are identified here in bolded text:
22. Upon information and belief this type of search, seizure
and treatment of the plaintiff is a policy and procedure
either written or unwritten of the defendants when pulling
over individuals such as plaintiff - African Americans -for
violation of traffic offenses. Upon information and belief
DeLuca created such policies under which unconstitutional
practices such as occurred herein or allowed the continuance
of such policies or customs after learning of them. Upon
information and belief by doing so, DeLuca as supervisor was
grossly negligent in supervising defendant Guca.
27. The plaintiff was also physically injured with bruising
as a result of the conduct described in this complaint.
Plaintiff suffered injury to his tooth as a result of the
conduct described in this complaint.
30. Defendants DeLuca and Village authorized, tolerated as
institutional practices, and ratified the misconduct detailed
a. Failing to properly discipline, restrict, and control
b. Failing to supervise subordinates known to be
irresponsible in their dealings with citizens of the
c. Failing to take adequate precautions in the hiring,
promotion, and retention of police personnel, including
d. Failing to forward to the office of the District Attorney
of Oneida County evidence of criminal acts committed by
e. Failing to establish or assure the functioning of a bona
fide and meaningful departmental system for dealing with
complaints of police misconduct, but instead responding to
these types of complaints with bureaucratic power and
official denials calculated to mislead the public.
f. Failing to properly train subordinates.
g. Failing to provide proper teaching tools in handling the
issuance of simplified traffic tickts [sic].
h. There was no legitimate purpose for the treatment
subjected upon the plaintiff by the defendants in the course
of issuing a simplified traffic ticket. By the defendant Guca
grabbing plaintiff from his car, slamming him across the hood
and patting him down, Guca's actions were totally
improper. Because plaintiff was African American he treated
him wrongfully and clearly having no purpose therefore wanted
access to the interior of plaintiff's vehicle looking for
STANDARD OF REVIEW
motion to dismiss under Rule 12(b)(6), 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. Ashcroft v.
Iqbal, 556 U.S. 662, 678 (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 A 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. (citation a internal
quotations 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.
(citations omitted) “Conclusory allegations or legal
conclusions masquerading as factual conclusions will not
suffice to defeat a motion to dismiss.” Luna v. N.
Babylon Teacher's Org., 11 F.Supp.3d 396, 401
(E.D.N.Y. 2014); see Faber v. Metropolitan Life
Ins., 648 F.3d 98, 104 (2d Cir. 2011).
Defendant, Demand For Relief, and Claims Dismissed without
Leave to Replead
January 30, 2017 Decision and Order, the Court terminated the
YPD as a defendant, struck from the Complaint any demand for
punitive damages against the Villag ...