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Merrill v. Schell

United States District Court, W.D. New York

August 30, 2017

WILLIAM H. MERRILL, Plaintiff,
v.
SGT. MIKE SCHELL and CHRIS FELICE, Defendants.

          DECISION AND ORDER

          LAWRENCE J. VILARDO UNITED STATES DISTRICT JUDGE.

         The plaintiff, William H. Merrill, brought this suit under 42 U.S.C. § 1983 alleging the violation of his constitutional rights. More specifically, he claims that the defendants, Mike Schell and Chris Felice, both of them employed by the Seneca County Sheriff's Department, unlawfully used excessive force against him in violation of the Fourth and Fourteenth Amendments to the United States Constitution. For the following reasons, this Court adopts the August 18, 2016 Report and Recommendation (“R&R”) of Magistrate Judge Leslie G. Foschio in part and denies the defendants' motion for judgment on the pleadings under Rule 12(c) (“motion to dismiss”).

         BACKGROUND

         I. Factual Background

         The following facts are construed in the light most favorable to the plaintiff, who opposes the defendants' motion to dismiss. Hamilton Chapter of Alpha Delta Phi, Inc. v. Hamilton Coll., 128 F.3d 59, 63 (2d Cir. 1997) (citing Hosp. Bldg. Co. v. Tr. of Rex Hosp., 425 U.S. 738, 740 (1976)). On December 11, 2008, Merrill appeared for a child custody hearing in Seneca County Family Court at the Seneca County Courthouse in Waterloo, New York. Docket Item 56 at 2. Felice, a Seneca County Sheriff's Deputy, arrested Merrill in the lobby of the courthouse pursuant to a warrant based on an aggravated harassment charge. Docket Item 13 at 2. Felice handcuffed Merrill, who was cooperative during the arrest, and placed him in a nearby patrol vehicle. Docket Item 56 at 2. He then awaited the arrival of his co-defendant, Sergeant Schell. Id.

         Schell knew Merrill, having encountered him frequently in connection with Merrill's family court issues and complaints. See Docket Item 13 at 3. In addition, Merrill believes that Felice and Schell were both friends with the mother of Merrill's child and her relatives. See Docket Item 1 at 6. Indeed, Schell himself says that he asked “what's going on[, ] Bill” when Schell arrived because of his familiarity with Merrill's custody problems. Docket Item 13 at 3. And Merrill's initial complaint and first amended complaint included claims, later dismissed, that both Schell and Felice had harassed him over the phone and in person many times over the past three years. See Docket Item 1 at 6; Docket Item 11 at 6, 8. In short, Schell and Felice had dealt with Merrill before; at the very least, they were familiar with one another.

         Schell arrived a short time later. Docket Item 56 at 2. While Merrill was in custody in the vehicle, Schell pointed his service weapon at Merrill, within a few inches of his temple, and told Merrill to stop seeking custody of his daughter and to pay any amount of child support that his daughter's mother requested. Docket Item 11 at 2-3. Merrill alleges that as a result of this incident, he suffers from stress, anxiety, and psychological trauma. Docket Item 56 at 3.

         II. Procedural Background

         Merrill commenced this section 1983 action, pro se, by filing a complaint in the United States District Court for the Northern District of New York. On August 30, 2011, the case was transferred to this Court and was assigned to District Judge Richard J. Arcara. Docket Item 7. On April 24, 2012, the plaintiff filed an amended complaint, Docket Item 10, and on October 29, 2014, Judge Arcara referred this case to Judge Foschio for all pretrial matters, including a report and recommendation on dispositive motions. Docket Item 40.

         Merrill moved for appointment of counsel, and Judge Foschio appointed counsel to represent him on November 5, 2014. Docket Item 43. Merrill then filed a second amended complaint on July 17, 2015, asserting two claims of excessive force: one against Felice and Schell for the incident of December 11, 2008, and a second against Schell for an incident in January or February 2009.[1] Docket Item 56. On August 7, 2015, the defendants moved to dismiss the first excessive-force claim. Docket Item 59. On March 7, 2016, this matter was reassigned to the undersigned. Docket Item 67.

         On August 18, 2016, Judge Foschio issued his R&R, which recommended denying the defendants' motion to dismiss on excessive-force grounds but granting the motion based on qualified immunity. Docket Item 79. Merrill objected to Judge Foschio's recommendation that the claim be dismissed based on qualified immunity, Docket Item 84, and the defendants objected to Judge Foschio's recommendation to deny the motion to dismiss on the issue of excessive force, Docket Item 86. This Court heard oral argument on the objections on October 31, 2016, and reserved decision.

         STANDARDS OF REVIEW

         I. Review of Report & Recommendation

         A district court “may accept, reject, or modify, in whole or in part, the findings or recommendation” of a magistrate judge. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3). A district court must conduct a de novo review of those portions of a magistrate judge's recommendation to which objection is made. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3).

         II. Motion to Dismiss

         A motion to dismiss under Rule 12(c) is decided under the same standard as a Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted. See Burnette v. Carothers, 192 F.3d 52, 56 (2d Cir. 1999). When a court decides a motion to dismiss, all well-pleaded allegations are assumed to be true and construed in the non-moving party's favor. Sheppard v. Beerman, 18 F.3d 147, 150 (2d Cir. 1994). To survive such a motion, the complaint must include “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is “facial[ly] plausibl[e] when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Sykes v. Bank of America, 723 F.3d 399, 403 (2d Cir. 2013) ...


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