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Bryant v. Ciminelli

United States District Court, W.D. New York

July 26, 2017

RICKEY L. BRYANT, JR., Plaintiff,
v.
MICHAEL L. CIMINELLI, JOHN DOES 1-20, and CITY OF ROCHESTER, Defendants.

          DECISION AND ORDER

          ELIZABETH A. WOLFORD, UNITED STATES DISTRICT JUDGE

         INTRODUCTION

         Plaintiff Rickey L. Bryant, Jr. ("Plaintiff) filed this action on November 29, 2016, alleging various claims pursuant to 42 U.S.C. § 1983, as well as claims under New York state law, arising out of an alleged vicious and unprovoked attack of Plaintiff while he was riding his bicycle, by unidentified officers with the Rochester Police Department. (Dkt. 1). Presently before the Court is a motion to dismiss for failure to state a claim by the Chief of Police, defendant Michael L. Ciminelli ("Ciminelli"), John Does 1-20 ("the John Doe officers"), and the City of Rochester ("the City") (collectively, "Defendants). (Dkt. 3). For the reasons stated below, Defendants' motion is granted in part and denied in part.

         FACTUAL BACKGROUND

         The facts alleged in the complaint are as follows: Plaintiff, 17 years old at the time of the events, alleges that between 10:00 p.m. on August 7, 2016, and 1:00 a.m. on August 8, 2016, he was unconstitutionally seized and beaten by John Doe officers of the Rochester Police Department ("RPD"). (Dkt. 1 at ¶¶21-46). Plaintiff was riding his bicycle on Remington Street in Rochester, New York, when approximately twenty RPD officers traveling in three RPD vehicles "suddenly pulled over in front of Plaintiff[, ] forcing him onto the sidewalk." (Id. at ¶ 22). One John Doe officer "rapidly approached [Plaintiff] and punched him in his left eye and face[, ] causing [Plaintiff] to fall of[fj his bicycle and onto the ground." (Id. at ¶23). Plaintiff was shot with "pepper balls, " maced, and tased. (Id. at ¶¶ 24-25). Five or six John Doe officers then kicked and punched Plaintiff "while the other officers stood there watching and failing to intervene to protect Plaintiff." (Id. at ¶ 25).

         After beating Plaintiff, John Doe officers handcuffed and transported him by RPD vehicle to a police station parking lot, where ambulance personnel gave Plaintiff medical treatment. (Id. at ¶¶ 28-34). Despite Plaintiffs request, the John Doe officers refused to transport Plaintiff to the hospital for treatment. (Id. at ¶ 33). Following the medical care by ambulance personnel, Plaintiff was "told that he was free to leave." (Id. at ¶ 34). Plaintiff was never charged with a violation or crime. (Id. at ¶ 35).

         As a result of the incident, "Plaintiff suffered an orbital fracture to and injury to his left eye, blurred vision in the left eye, right chest wall contusion, head injury, headaches, concussion, right sided rib pain, right upper leg pain, multiple contusions and bruising, post-traumatic stress disorder, together with other physical and psychological injuries." (Id. at ¶37).

         DISCUSSION

         I. Standard of Review

         "A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the legal sufficiency of the party's claim for relief." Zucco v. Auto Zone, Inc., 800 F.Supp.2d 473, 475 (W.D.N.Y. 2011). In considering a motion to dismiss pursuant to Rule 12(b)(6), a court generally may consider only "facts stated in the complaint or documents attached to the complaint as exhibits or incorporated by reference." Nechis v. Oxford Health Plans, Inc., 421 F.3d 96, 100 (2d Cir. 2005). A court should consider the motion "accepting all factual allegations in the complaint and drawing all reasonable inferences in the plaintiffs favor." Ruotolo v. City of N.Y., 514 F.3d 184, 188 (2d Cir. 2008) (quoting ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007)). To withstand dismissal, a plaintiff must set forth "enough facts to state a claim to relief that is plausible on its face." Bell Ail. Corp. v. Twombly, 550 U.S. 544, 570 (2007). However, "threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, " are not entitled to an assumption of truth. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

         "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiffs obligation to provide the 'grounds' of his 'entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555 (citations omitted). Thus, "at a bare minimum, the operative standard requires the plaintiff to provide the grounds upon which his claim rests through factual allegations sufficient to raise a right to relief above the speculative level." Goldstein v. Pataki, 516 F.3d 50, 56-57 (2d Cir. 2008) (citations omitted).

         II. The Court Will Not Consider Facts Outside the Four Corners of the Complaint

         Before addressing the merits of Defendants' motion to dismiss, the Court must address facts submitted to the Court, both supporting and opposing the motion to dismiss, which do not appear in the complaint. In particular, Plaintiff submits: (1) a lengthy factual affidavit from Plaintiffs counsel (Dkt. 6); (2) an affidavit from an alleged eyewitness, Pedro Luis DeJesus (Dkt. 6-1); and (3) a letter to Plaintiffs counsel from the City dated December 29, 2016 (Dkt. 6-2). Additionally, Plaintiff, in opposition to the motion, suggests that the Court refer to papers submitted in opposition to a summary judgment motion in an entirely different, unrelated case. (See Dkt. 6-3 at 12-14). Defendants, for their part, include facts in their memorandum of law which are not present in the complaint. (See Dkt. 3-2).[1]

         In deciding a Rule 12(b)(6) motion, the Court is generally limited to reviewing "the allegations contained within the four corners of [Plaintiffs] complaint." Pani v. Empire Blue Cross Blue Shield, 152 F.3d 67, 71 (2d Cir. 1998); see, e.g., Fried! v. City of N.Y., 210 F.3d 79, 83-84 (2d Cir. 2000) (finding that a district court errs if, in deciding a Rule 12(b)(6) motion, it "relies on factual allegations contained in legal briefs or memoranda"). However, where the additional documents are integral to or relied upon by the complaint, the court may consider them without converting the motion to one for summary judgment under Federal Rule of Civil Procedure 56. See Roth v. Jennings, 489 F.3d 499, 509 (2d Cir. 2007) (holding that even if not attached to the complaint, a document which is "integral to the complaint may be considered by the court in ruling on [a Rule 12(b)(6)] motion." (citations omitted)); Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 48 (2d Cir. 1991) ("Where [the] plaintiff has actual notice of all the information in the movant's papers and has relied upon these documents in framing the complaint the necessity of translating a Rule 12(b)(6) motion into one under Rule 56 is largely dissipated.").

         Here, reliance on the facts not mentioned in the complaint by both Plaintiff and Defendants is procedurally improper. The parties have submitted facts which go beyond what is alleged in the complaint, and include information that is neither integral to nor relied on in the complaint. Plaintiff, wholly inappropriately, even suggests that this Court look to evidence submitted in another case to support his argument that the complaint was sufficiently pleaded.

         If the Court considered any of the additional facts or affidavits, the motion would be converted to one for summary judgment. No party is on notice of such a conversion, and as Plaintiffs counsel points out, no discovery has yet occurred in this case. (See Dkt. 6-3 at 17). Therefore, such conversion is inappropriate, and the Court will not consider the extraneous material provided by the parties in deciding the instant motion.

         III. Defendants' Motion to Dismiss

         Plaintiff raises eight claims. (Dkt. 1). Pursuant to § 1983, Plaintiff brings claims for: (1) illegal search and seizure against the John Doe officers and the City; (2) excessive use of force against the John Doe officers and the City; (3) failure to intervene/protect against the John Doe officers and the City; (4) "failure to implement policies, customs and practices" claim against the City; and (5) a Monell claim against the City and Ciminelli. (Id.). Plaintiff also brings claims under New York state law for: (1) battery against the John Doe officers and the City; (2) assault against the John Doe officers and the City; and (3) negligence against all Defendants. (Id.). Defendants move to dismiss all federal claims as against the City and Ciminelli, the failure to intervene/protect claim in its entirety, and the negligence claim in its entirety.[2] (Dkt. 3-2).

         A. Plaintiffs Federal Claims

         1. Plaintiffs Federal Claims Against the City of Rochester

         Defendants first argue that all § 1983 claims against the City must be dismissed. (Dkt. 3-2 at 4-6). Specifically, Defendants argue that Plaintiffs allegations fail to plausibly allege, in non-conclusory terms, that the City engaged in a pattern of unconstitutional violations. (Id. at 5).

         "The Supreme Court has made clear that 'a municipality cannot be made liable' under § 1983 for acts of its employees 'by application of the doctrine of respondeat superior."' Roe v. City of Waterbury, 542 F.3d 31, 36 (2d Cir. 2008) (quoting Pembaur v. City of Cincinnati, 475 U.S. 469, 478 (1986)). In order to maintain a § 1983 action against a municipal defendant, a plaintiff must identify a municipal "policy or custom" from which the alleged injury arose. Monell v. Dep't of Soc. Servs., 436 U.S. 658, 694 (1978).

A plaintiff may satisfy the "policy or custom" requirement by alleging the existence of "(1) a formal policy officially endorsed by the municipality; (2) actions taken by government officials responsible for establishing the municipal policies that caused the particular deprivation in question; (3) a practice so consistent and widespread that, although not expressly authorized, constitutes a custom or usage of which a supervising policymaker must have been aware; or (4) a failure by policymakers to provide adequate training or supervision to subordinates to such an extent that it amounts to deliberate indifference to the rights of those who come into contact with the municipal employees."

Perrone v. O'Flynn, 11-CV-6411 CJS-MWP, 2015 WL 7776930, at *5 (W.D.N.Y. Dec. 2, 2015) (quoting Green v. City of Mount Vernon, 96 F.Supp.3d 263, 301 (S.D.N.Y. 2015) (citation omitted)).

         It is well-settled that a plaintiffs conclusory allegations, which merely recite the elements of a Monell claim, are insufficient to state a claim for municipal liability. See Giaccio v. City of N.Y., 308 F.App'x 470, 472 (2d Cir. 2009) (affirming dismissal of a Monell claim where the plaintiff identified, "at most, only four examples" of constitutional violations, because "[t]his evidence falls far short of establishing a practice that is so persistent and widespread as to justify the imposition of municipal liability" (internal quotations omitted)); Worrell v. City of N.Y., No. 12-CV-6151 (MKB), 2014 WL 1224257, at *12 (E.D.N.Y. Mar. 24, 2014) ("[A] single incident of [the plaintiffs] own allegedly negligent investigation is not sufficient to impose municipal liability without additional allegations from which [the c]ourt may infer that it was caused by a practice so widespread as to practically have the force of law."); Weaver v. City of N.Y., No. 13-cv-20 (CBA)(SMG), 2014 WL 950041, at *7 (E.D.N.Y. Mar. 11, 2014) ("[V]ague and conclusory assertions are not sufficient to state a claim of municipal liability under MorteH."); Genovese v. Town of Southhampton, 921 F.Supp.2d 8, 25 (E.D.N.Y. 2013) ("[V]ague and conclusory assertions that the [defendant municipality] should have known that officers would encounter these situations, and that the [defendant municipality] did not adequately train officers to properly respond . . . without any actual supporting evidence, are insufficient to adequately plead a Monell claim."); Murray v. Admin, for Children's Servs., 476 F.Supp.2d 436, 442 (S.D.N.Y. 2007) ("The Amended Complaint does not allege other similar instances . . . that could raise an inference that the [defendant municipality] maintains a policy or custom of deliberate indifference to these types of constitutional deprivations."), aff'd, 293 F.App'x 831 (2d Cir. 2008); see, e.g., Fierro v. N.Y.C Dep't of Educ, 994 F.Supp.2d 581, 589 (S.D.N.Y. 2014); Irish v. City of N.Y., No. 09 Civ.5568(RMB), 2010 WL 5065896, at *6 (S.D.N.Y. Dec. 6, 2010).

         Here, Plaintiff alleges that the City:

a. fail[ed] to adequately train its police officers regarding the proper methods for stops, arrest procedures, use of force and/or intervening to prevent constitutional rights violations from occurring by other police officers;
b. fail[ed] to adequately investigate excessive force complaints of citizens whose constitutional ...

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