United States District Court, W.D. New York
WILLIAM H. MERRILL, Plaintiff,
SGT. MIKE SCHELL and CHRIS FELICE, Defendants.
DECISION AND ORDER
LAWRENCE J. VILARDO UNITED STATES DISTRICT JUDGE.
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
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.
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.
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.
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.
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. 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.
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.
Review of Report & Recommendation
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).
Motion to Dismiss
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) ...