United States District Court, N.D. New York
ERVING & SAVAGE LLP Attorneys for Plaintiff CARLO
ALEXANDRE C. DE OLIVEIRA, ESQ
SCOLAMIERO & HURD, LLP Attorneys for Defendants The Town
of Saugerties, Chief of Police Joseph Sinagra, and Ryan
Hampel JUDITH B. AUMAND, ESQ.
& MACK LLP Attorneys for Defendants James Mullen, The
County of Ulster, The County of Ulster URGENT Task Force
Board of Directors, Holley Carnright, Sheriff Paul
VanBlarcum, and William Weishaupt DAVID L. POSNER, ESQ.
BURNS, LLP Attorneys for Defendant Daniel Waage THOMAS K.
MEMORANDUM-DECISION AND ORDER
Frederick J. Scullin United States District Judge
Mabb (“Plaintiff”) commenced this action against
the Town of Saugerties (“Defendant Town of
Saugerties”), the Town of Saugerties's Chief of
Police, Joseph Sinagra (“Defendant Sinagra”),
Police Officer Ryan Hampel (“Defendant Hampel”),
Police Officer James Mullen (“Defendant Mullen”),
the County of Ulster (“Defendant Ulster County”),
the Ulster County URGENT Task Force Board of Directors
(“Defendant URGENT Task Force”), and Defendant
URGENT Task Force's Board Members Holley Carnright, Paul
VanBlarcum, Daniel Waage, and William Weishaupt, in their
individual capacities, (“Defendants Carnright,
VanBlarcum, Waage, and Weishaupt”) seeking compensatory
damages, punitive damages, and attorney's fees for
alleged violations of his civil rights. See
generally Dkt. No. 1. Defendants Mullen and Hampel have
moved to dismiss several of Plaintiff's claims against
them, see generally Dkt. Nos. 17, 26; and the
remaining Defendants have moved to dismiss the complaint in
its entirety pursuant to Rules 12(b)(6) and 12(c) of the
Federal Rules of Civil Procedure, see generally Dkt.
Nos. 14, 17, 26.
alleges that, on July 25, 2017, while sitting in traffic at a
red light, he noticed a dark SUV come up behind his vehicle.
Upon information and belief, Plaintiff contends that
Defendant Mullen was driving the car and Defendant Hampel was
a passenger. Both men are Investigators and Police Officers
with the Town of Saugerties Police Department, and they were
working undercover for the Ulster County URGENT Task Force at
the time; but Plaintiff alleges that he did not know they
were police officers. Plaintiff claims that the SUV stopped
about six inches from his rear bumper, and he moved his car
forward and stopped. According to Plaintiff, the SUV then
pulled up again; and he again moved forward. See Id.
Plaintiff states that he looked in his rear-view mirror,
thinking the SUV's driver was not paying attention; and
he saw two males smiling at him. Plaintiff alleges that the
SUV then moved up within inches of his vehicle again, and
Plaintiff inched forward.
alleges that, because he was feeling threatened, he motioned
for the driver and passenger in the SUV to stop harassing
him. According to Plaintiff, Defendants Mullen and Hampel
appeared angry; and so he put up his windows, locked his
doors, and reached in the back of his vehicle and moved a
baseball bat to the passenger seat of his car. Plaintiff
alleges that, when he looked back again after grabbing his
baseball bat, Defendant Hampel “motioned both hands
back and forth toward his chest as if he was inviting
Plaintiff for a fight.”
response, Plaintiff states that he made a right turn onto 9W
north while the traffic light was yellow to get away from the
SUV; but the SUV ran the red light and followed him onto 9W
north. Lights were flashing on the visors and grill of the
SUV when it caught up to Plaintiff's vehicle; and, at
that point, Plaintiff called 911. Plaintiff alleges that,
while he was on the phone with the 911 dispatcher, he stopped
at a traffic light and the SUV pulled over in front of his
vehicle, which blocked his passage to the road. According to
Plaintiff, the two males then exited the vehicle with their
guns drawn and pointed at him; and they demanded that he put
his phone down and shut his car off. Plaintiff alleges that,
as soon as he unbuckled his seat belt, Defendant Mullen
yanked him out of his vehicle from a seated position to six
inches off the ground, threw his body against his car,
handcuffed his right hand, and proceeded to force his left
arm backwards in an effort to handcuff him.
further asserts that, due to a physical disability, his arm
did not bend backwards; and, when he tried to tell Defendants
Mullen and Hampel this, they mocked and threatened him.
Plaintiff alleges that, eventually, he was handcuffed in the
front, taken to the police station, and charged with
misdemeanor criminal possession of a weapon, misdemeanor
menacing, a violation of driving across hazardous markings,
and a violation for failing to comply with a lawful order of
a police officer. All of the charges were eventually
withdrawn by the People and dismissed by the Saugerties Town
Court. However, as a result of this incident, Plaintiff
alleges he suffered injuries in and around his back, neck,
and shoulders; and he is traumatized, suffering from
post-traumatic stress disorder, depression, and anxiety.
on these allegations, Plaintiff filed his complaint in the
instant suit on July 24, 2018, asserting the following seven
causes of action:
(1) Excessive use of force pursuant to 42 U.S.C. § 1983
and the Fourth Amendmentagainst Defendants Mullen and Hampel;
(2) Failure to intervene pursuant to 42 U.S.C. § 1983
and the Fourth Amendment against Defendants Mullen and
(3) Failure to train, supervise, or discipline pursuant to 42
U.S.C. § 1983 against Defendants Town of Saugerties,
Sinagra, Ulster County, the URGENT Task Force, Carnright,
VanBlarcum, Waage, and Weishaupt;
(4) Assault and battery pursuant to New York common law
against Defendants Mullen and Hampel;
(5) Negligence and gross negligence pursuant to New York
common law against all Defendants;
(6) False arrest, false imprisonment, and unreasonable search
pursuant to the Fourth and Fourteenth Amendments against
Defendants Mullen and Hampel; and
(7) Malicious prosecution pursuant to 42 U.S.C. § 1983
against all Defendants.
generally Dkt. No. 1.
Legal standard governing a motion to dismiss
motion to dismiss pursuant to Rule 12(b)(6) “challenges
only the ‘legal feasibility' of a complaint.”
Goel v. Bunge, Ltd., 820 F.3d 554, 558 (2d Cir.
2016) (quoting Global Network Commc'ns, Inc. v. City
of New York, 458 F.3d 150, 155 (2d Cir. 2006)).
“To survive a motion to dismiss, a complaint must
contain 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 Atl. Corp. v. Twombly, 550
U.S. 544, ] 570, 127 S.Ct. 1955). “The plausibility
standard is not akin to a ‘probability
requirement,' but it asks for more than a sheer
possibility that a defendant has acted unlawfully.”
Id. (citation omitted).
a complaint attacked by a Rule 12(b)(6) motion to dismiss
does not need detailed factual allegations … a
plaintiff's obligation to provide the ‘grounds'
of his ‘entitle[ment] to relief' requires more than
labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do[.] …”
Bell Atl. Corp. v. Twombly, 550 U.S. 544');">550 U.S. 544, 555 (2007)
(internal citations and quotations omitted).
“Determining whether a complaint states a plausible
claim for relief will … be a context-specific task
that requires the reviewing court to draw on its judicial
experience and common sense.” Iqbal, 556 U.S.
at 679 (citation omitted). When making its decision, this
court must “accept all well-pleaded facts as true and
consider those facts in the light most favorable to the
plaintiff.” Chapman v. N.Y. State Div. for
Youth, 546 F.3d 230, 235 (2d Cir. 2008) (citing
Patane v. Clark, 508 F.3d 106, 111 (2d Cir. 2007)
Claims against Defendants Mullen and
Failure to intervene
is widely recognized that all law enforcement officials have
an affirmative duty to intervene to protect the
constitutional rights of citizens from infringement by other
law enforcement officers in their presence.”
Anderson v. Branen, 17 F.3d 552, 557 (2d Cir. 1994)
(citing O'Neill v. Krzeminski, 839 F.2d 9, 11
(2d Cir. 1988)) (other citations omitted). “Whether an
officer had sufficient time to intercede or was capable of
preventing the harm being caused by another officer is an
issue of fact for the jury unless, considering all the
evidence, a reasonable jury could not possibly conclude
otherwise.” Id. (citing [O'Neill,
839 F.3d at 11-12]). At the summary judgment stage, courts
have held, “where the officer is a direct participant
in the allegedly excessive use of force, the failure to
intervene theory of liability is inapplicable.”
Cuellar v. Love, No. 11-CV-3632 (NSR), 2014 U.S.
Dist. LEXIS 51622, *23 (S.D.N.Y. Apr. 11, 2014) (citations
matter is in the pleading stage, and Plaintiff has not yet
conducted any discovery on this issue. Plaintiff argues that
he is unable to determine which officer used the excessive
force and which officer was the bystander. See Dkt.
No. 18 at 16. Plaintiff further contends that the Court
should permit him to plead inconsistent theories of liability
in the alternative until he has had the opportunity to
investigate which theory of liability is supported by the
facts. See Id. (citing Consol. Risk ...