United States District Court, S.D. New York
Plaintiff RICHARD HARDY
Attorney for Defendants NEW YORK CITY LAW DEPARTMENT By:
Debra M. March, Esq.
W. SWEET, U.S.D.J.
Police Officer Patrick Daly ("Officer Daly") and
Police Officer Jorge Grullon ("Grullon")
(collectively, the "Defendants") have moved
pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure to dismiss the Amended Complaint of pro se
plaintiff Richard Hardy ("Hardy" or the
"Plaintiff"). Based upon the facts and conclusions
set forth below, the motion is granted and the Amended
Complaint is dismissed with prejudice.
initiated the instant action on October 28, 2016, bringing
claims of sexual assault and intentional infliction of
emotional distress against Officer Daly. He amended his
complaint on February 7, 2017 to add Officer Grullon as a
named defendant (the "Amended Complaint").
Defendants' motion to dismiss the Amended Complaint was
filed on May 17, 2017 and marked fully submitted on July 5,
facts as set forth below are drawn from the Plaintiff's
Amended Complaint. They are taken as true for purposes of the
motion to dismiss.
30, 2015, Plaintiff's wife, Leslie Meilleur Hardy, made a
911 domestic violence call, to which Police Officers Daly and
Grullon responded. See Plaintiff's Amended
Complaint ("Am. Compl."), ECF No. 13, pp. 2-4. Once
the officers arrived, the Amended Complaint alleges, Officer
Daly had sexual intercourse with Hardy's wife while
Officer Grullon forced Hardy "down [the hallway] into
another room." Id. at 2. Plaintiff alleges that
initially he stood outside the bedroom door and heard a
sexual act being performed on Officer Daly, but that Officer
Grullon observed this and moved Plaintiff away from the door
as Plaintiff attempted to enter the bedroom. Id. at
alleges that, after he emerged from the bedroom, Officer Daly
confessed to Officer Grullon that he had sex with
Plaintiff's wife. Id. at 2-3. Plaintiff claims
that Officer Daly began threatening him, telling him
"[i]f you ever try to have sex with her again I will
kill you, " and "if you file suit against me I will
kill you." Id. at 3.
states that he reported this incident to police officers on
duty at a TD Bank in Manhattan, filed a report with a police
sergeant, and was interviewed by the Internal Affairs
department before filing suit. Id. He claims that
his wife suffers from mental illness and was
"tricked" to engage in the sexual acts described.
The Applicable Standards
Rule 12(b) (6) standard requires that a complaint plead
sufficient facts to state a claim upon which relief can be
granted. Ashcroft v. Iqbal,556 U.S. 662, 677-78
(2009); Bell Atl. Corp. v. Twombly,550 U.S. 544,
570 (2007). On a motion to dismiss under Fed. R. Civ. P
12(b)(6), all factual allegations in the complaint are
accepted as true, and all reasonable inferences are drawn in
the plaintiff's favor. Littlejohn v. City of
N.Y.,795 F.3d 297, 306 (2d Cir. 2015); Mills v.
Polar Molecular Corp.,12 F.3d 1170, 1174 (2d Cir.
1993). However, "a plaintiff s obligation to provide the
grounds of his entitlement to relief requires more than
labels and conclusions." Twombly, 550 U.S. at
555 (quotation marks omitted). A complaint must contain