United States District Court, W.D. New York
RICKEY L. BRYANT, JR., Plaintiff,
MICHAEL L. CIMINELLI, JOHN DOES 1-20, and CITY OF ROCHESTER, Defendants.
DECISION AND ORDER
ELIZABETH A. WOLFORD, UNITED STATES DISTRICT JUDGE
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.
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).
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
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).
Standard of Review
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).
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).
The Court Will Not Consider Facts Outside the Four
Corners of the Complaint
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
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
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.
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.
Defendants' Motion to Dismiss
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. (Dkt. 3-2).
Plaintiffs Federal Claims
Plaintiffs Federal Claims Against the City of
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).
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
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)).
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,
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 ...