Dancy v. The City of New York et al
MEMORANDUM OF DECISION: Plaintiff has withdrawn his claims against the City and the NYPD. With regard to plaintiffs claims against the Individual Defendants, the Court finds that Plaintiff has met the requirements of C.P.L.R. § 1024. Thus, the S econd Amended Complaint relates back to the date of the Original Complaint under Rule 15(c)(1) and is not time-barred. The Court also finds that plaintiff has adequately alleged the personal involvement of the Individual Defendants. As such, the Court denies defendants' motion to dismiss with respect to plaintiffs claims against the Individual Defendants. Ordered by Judge Raymond J. Dearie on 10/28/2016. (Rodriguez, Lori)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
CURTIS SEAN DANCY,
MEMORANDUM OF DECISION
- against 15 CV 432 (RJD) (RER)
THE CITY OF NEW YORK, THE NEW YORK
CITY POLICE DEPARTMENT, PO ADAM
DUMELLE, PO RAYMOND WILLIAMS, SGT.
DEARIE, District Judge:
Plaintiff Curtis Sean Dancy brings this action against the City of New York (the "City"),
the New York City Police Department (the "NYPD"), and three individually-named members of
the NYPD (the "Individual Defendants") pursuant to 42 U.S.C. § 1983. Plaintiffs lawsuit
relates to an incident that occurred on January 31, 2012, during which the Individual Defendants
are alleged to have falsely arrested plaintiff and used excessive force against him. Defendants
move to dismiss plaintiffs Second Amended Complaint pursuant to Federal Rule of Civil
Procedure 12(b)(6). Plaintiff has since withdrawn his claims against the City and the NYPD.
This Court issued an Order on September 30, 2016, granting defendants' motion with
respect to plaintiffs claims against the City and the NYPD, denying defendants' motion with
respect to plaintiffs claims against the Individual Defendants, and stating that this memorandum
of decision would follow.
Plaintiff alleges the following:
On January 31, 2012, plaintiff was at a friend's home in Brooklyn when police officers
"were called to the home because of a disagreement." Am. Compl. ("Second Amended
10, 12-13, June 24, 2015, ECF No. 13. Without explanation, the officers
handcuffed plaintiff, carried him into the hallway, and severely beat him. Id.~~ 15-20. The
officers "stomp[ed] Plaintiff with their feet while he was on the floor," "removed Plaintiffs belt
and ... use[d] it to hit Plaintiff," "hit and kick[ed] Plaintiff while he was on the ground in
handcuffs," and "beat Plaintiff on the top stair of the building until he lost conscious[ness]." Id.
17-20. Before this assault began, one of the officers stated that he and his colleagues "didn't
have to worry" because "the video cameras were painted over." Id.~ 16.
Plaintiff awoke with a sheet wrapped around his head, before being dragged down the
stairs by the officers and placed in an ambulance. Id.~~ 21-23. Plaintiff was taken to Woodhull
Hospital, treated, transferred to the psych ward, and eventually released without being charged.
25; Letter from Rhiana Swartz to Magistrate Judge Reyes, April 24, 2015, ECF No. 10
(stating that plaintiff was not arrested in connection with the incident alleged in the complaint).
Plaintiff claims serious physical and psychological injuries as a result of the encounter, including
a dislocated shoulder, bruising, swelling of his face, cuts on his head and mouth, and pain,
suffering, and mental anguish. Second Amended Complaint ~~ 24, 26, 28.
On February 15, 2012, plaintiff retained attorney Neville 0. Mitchell to represent him in
bringing a civil rights claim related to the incident. PL 's Mem. Law Opp'n Defs.' Mot. Dismiss
("Pl.'s Mem.") at 2, ECF No. 30. On April 27, 2012, plaintiff, through Mr. Mitchell, filed and
served a Notice of Claim ("NOC"), alleging false arrest and excessive force. Id. at 2. In the
NOC, plaintiff named various individual police officers, including "Police Officer Williams," as
defendants, and he noted their employment with the NYPD's 79th Precinct-where the incident
allegedly occurred. Id. at 3.
Nearly three years later, around December 2014, plaintiff contacted his present attorney,
Richard P. Reyes-who was at the time handling an unrelated matter for plaintiffs mother-and
informed him that plaintiff had been unsuccessful in his efforts to get in touch with Mr. Mitchell
to check on the status of his case. Id. Plaintiff told Mr. Reyes that his efforts to reach Mr.
Mitchell in the "final months of 2014 included repeated telephone calls." Deel. of Richard P.
10, ECF No. 30-1. Plaintiff also told Mr. Reyes that he had asked his mother to visit the
address listed on Mr. Mitchell's retainer agreement, but Mrs. Dancy had been unsuccessful in
locating Mr. Mitchell at that address. Id.
On January 7, 2015, plaintiff executed a retainer agreement with Mr. Reyes. Pl.'s Mem.
at 4. That same day, Mr. Reyes sent a Notice of Substitution of Counsel, in which he requested
plaintiffs file, to Mr. Mitchell at the same address listed on the retainer agreement. Id. Mr.
Reyes did not receive any response from Mr. Mitchell. Id.
On January 28, 2015, three days before the governing three-year statute of limitations
expired, plaintiff, through Mr. Reyes, filed his initial complaint in this action. Compl. ("Original
Complaint"), Jan. 28, 2015, ECF No. 1. The Original Complaint was brought against the City,
the NYPD, and five "John Doe" police officers, alleging four causes of action: (1) excessive
force under§ 1983 against the individual officers; (2) false arrest under§ 1983 against the
individual officers; (3) negligent hiring, retention, training, and supervision against the City and
the NYPD; and (4) municipal liability against the City. 1 Id. at 4-8. Two days later, on January
30, 2015, plaintiff, through Mr. Reyes, amended the complaint to change plaintifrs name from
"Sean Dancy" to "Curtis Sean Dancy." Am. Compl. ("First Amended Complaint"), Jan. 30,
2015, ECF No. 4.
That same day, January 30, 2015, Mr. Mitchell filed a duplicative lawsuit in this District
on plaintiffs behalf.-but without notifying plaintiff or Mr. Reyes. Dancy v. City ofNew York,
15-cv-481 (ARR) (RLM) (E.D.N.Y.) (hereinafter "Dancy II"); see also Pl.'s Mem. at 5. The
complaint in Dancy II brought claims similar to those brought here, but the complaint in that
action also named various individual police officers as defendants, including "Police Officer
Williams, Shield#_." Compl., Dancy II, ECF No. 1.2
On February 20, 2015, Magistrate Judge Reyes directed the City to provide plaintiff with
the names, shield numbers, and proper service addresses of the Individual Defendants on or
before April 29, 2015. Docket Entry dated Feb. 20, 2015. Defense counsel did not object and
produced responsive discovery. Pl.'s Mem. at 5.
On June 24, 2015, nearly five months after the three-year statute of limitations expired,
plaintiff filed his Second Amended Complaint, which amended the action's caption to name
Police Officer Adam Dumelle, Police Officer Raymond Williams, and Sergeant Timothy
The fourth cause of action is mislabeled the "sixth" cause of action. Original Complaint at 7;
First Amended Complaint at 7; Second Amended Complaint at 7.
Mr. Reyes first learned about Dancy II on February 25, 2015. Pl.'s Mem. at 6. In early
March 2015, Mr. Reyes had the Notice of Substitution of Counsel hand-delivered to the
updated address that Mr. Mitchell had listed on this Court's docket, and on April 22, 2015,
Mr. Reyes emailed Mr. Mitchell requesting a response. Id. Mr. Mitchell responded that same
day, stating that he would withdraw the duplicative Dancy II lawsuit. Id. at 6, Ex. D. Mr.
Mitchell took no action, however, and Dancy II was eventually dismissed without prejudice
by Judge Ross on September 3, 2015. Id. at 6 n.3; Order Adopting R. & R., Dancy II, ECF
Kornbluth as the Individual Defendants, in place of the earlier John Doe defendants. Second
Amended Complaint; Pl.' s Mem. at 7. The following week, plaintiff served the Individual
Defendants at the 79th Precinct. Pl. 's Mem. at 7.
Defendants moved to dismiss plaintiffs Second Amended Complaint pursuant to Federal
Rule of Civil Procedure 12(b)(6). Defs.' Mem. Law Supp. Their Mot. Dismiss ("Defs.' Mem."),
ECF No. 29-1. This Court issued an Order on September 30, 2016, ECF No. 38, granting
defendants' motion with respect to plaintiffs claims against the City and the NYPD and denying
defendants' motion with respect to plaintiffs claims against the Individual Defendants.
Plaintiff has withdrawn his claims against the City and the NYPD. See Pl.'s Mem. at 1
n.2. The claims still at issue, therefore, are plaintifrs excessive force and false arrest claims
against the Individual Defendaq.ts. Defendants' response to plaintiffs serious allegations of
misconduct is to move to dismiss the complaint pursuant to Federal Rule of Civil Procedure
l 2(b)(6), arguing that ( 1) the claims are time-barred and (2) plaintiff has not adequately alleged
the personal involvement of the Individual Defendants. Defs.' Mem. at 4-7; Defs.' Reply Mem.
Law Further Supp. Their Mot. Dismiss ("Defs.' Reply") at 2-7, ECF No. 31. For the reasons
discussed below, the Court rejects these arguments and denies defendants' motion to dismiss
with respect to plaintiffs claims against the Individual Defendants. 3
Plaintiff asks the Court to permit him to file a Third Amended Complaint containing only the
§ 1983 claims against the Individual Defendants. Pl. 's Mem. at 2, 24. In the alternative,
plaintiff requests that the Court either (a) permit plaintiff to file a Third Amended Complaint
containing only the § 1983 claims against defendant Williams, id. at 24, or (b) convene an
evidentiary hearing relating to plaintifr s efforts to timely identify the Individual Defendants.
Id. at 2, 10 n.4. Given the Court's ruling herein, neither the filing of a Third Amended
Complaint nor an evidentiary hearing is necessary. ~f plaintiff wishes to file a Third Amended
Complaint containing only the § 1983 claims against the Individual Defendants, however, he
is free to do so.
Statute of Limitations
"The statute of limitations applicable to claims brought under [§] 1983 in New York is
three years." Patterson v. Cty. of Oneida. N.Y., 375 F.3d 206, 225 (2d Cir. 2004). Plaintiffs
claims accrued on the date of the incident, January 31, 2012. Therefore, the limitations period
expired on January 31, 2015. Although the Original Complaint was filed just before that
deadline, the Second Amended Complaint-which was the first to name the Individual
Defendants-was not filed until June 24, 2015, nearly five months after the limitations period
Plaintiff argues that the claims against the Individual Defendants are nevertheless not
time-barred because (a) the Second Amended Complaint relates back to the date of the Original
Complaint under Federal Rule of Civil Procedure 15(c)(l) and state law, Pl.'s Mem. at 8-20, and
(b) because defendants constructively waived their statute of limitations defense by failing to
object to Magistrate Judge Reyes' February 20, 2015, order directing discovery. Pl.'s Mem. at
23-24. In making these arguments, "plaintiff bears the burden of establishing that 'the case at
hand falls within an exception to the limitations period."' Dooley v. Columbia Presbyterian
Med. Ctr., No. 06-cv-5644 (JCF), 2009 WL 129941, at *3 (S.D.N.Y. Jan 16, 2009) (quoting
Minichello v. N. Assurance Co. of Am., 758 N.Y.S.2d 669, 670 (App. Div. 2003)).
The Court finds that plaintiff qualifies for relation back under Rule 15(c)(l). Therefore,
plaintiffs claims against the Individual Defendants are not time-barred, and the Court need not
address whether defendants' constructively waived their statute of limitations defense.
Relation Back under Rule 15(c)(l)
Federal Rule of Civil Procedure 15(c)(l) governs when "[a]n amendment to a pleading
relates back to the date of the original pleading." Fed. R. Civ. P. 15(c)(l). Plaintiff
acknowledges that Rule 15(c)(l)(C), which "provides the federal standard for relation back,"
Hogan v. Fischer, 738 F.3d 509, 517 (2d Cir. 2013), does not permit relation back here. See Pl.'s
Mem. at 8-9; Doe v. New York, 97 F. Supp. 3d 5, 18 (E.D.N.Y. 2015) ("'[L]ack of knowledge of
a John Doe defendant's name does not constitute a mistake of identity' [as required under Rule
15(c)(l)(C)(ii)]. Therefore, plaintifrs claims in the Third Amended Complaint against the
Newly-Named Defendants cannot relate back to the original pleading under Rule 15(c)(l)(C)."
(citations omitted) (quoting Hogan, 738 F.3d at 518)).
"However, even where a plaintiffs claims do not relate back under Rule 15(c)(l)(C), the
Second Circuit has held that 'Rule 15(c)(l)(A) permits an amended pleading to relate back when
the law that provides the applicable statute of limitations allows relation back."' Doe, 97 F.
Supp. 3d at 18 (quoting Hogan, 738 F.3d at 518). Here, New York state law provides the
applicable statute of limitations. Thus, Rule 15(c)(l)(A) permits the application of New York
relation-back law to the instant case.
Relation Back under New York Law
New York law "provides a more forgiving principle of relation back in the John Doe
context, compared to the federal relation back doctrine under Rule 15(c)(l)(C)." Hogan, 738
F.3d at 518 (internal quotation marks omitted). Specifically, under Section 1024 of the New
York Civil Practice Law and Rules ("C.P.L.R."), an amended complaint relates back where (1)
the plaintiff'" exercise[s] due diligence, prior to the running of the statute of limitations, to
identify the defendant by name"'; and (2) the plaintiff "describe[s] the John Doe party 'in such
form as will fairly apprise the party that he is the intended defendant.'" Hogan, 738 F .3d at 519
(quoting Bumpus v. N.Y.C. Transit Auth., 883 N.Y.S.2d 99, 104 (App. Div. 2009)). Here,
plaintiff has met both requirements. 4
As noted, in order to invoke § 1024, plaintiff must "exercise due diligence, prior to the
running of the statute of limitations, to identify the defendant by name." Hogan, 738 F.3d at 519
(quoting Bumpus, 883 N.Y.S.2d at 104). "Due diligence in this context requires that a plaintiff
'show that he or she made timely efforts to identify the correct party before the statute of
limitations expired."' Strada, 2014 WL 3490306, at *5 (quoting Justin v. Orshan, 788 N.Y.S.2d
407, 408 (App. Div. 2005)).
In his opposition papers, plaintiff points to several actions that allegedly demonstrate his
diligence here. Pl.'s Mem. at 10-14. First, plaintiff highlights that he filed the NOC within
months of the incident-well within the statute of limitations period-and he notes that the
document named Police Officer Williams and John Doe defendants of the 79th Precinct as
defendants and provided a description of the incident. Id. 5 Plaintiff argues that his diligence is
"especially clear with respect to Police Officer Williams, who was specifically named (albeit
without a first name) in the April 27, 2012 NOC," but he asserts that his diligence is also
demonstrated with respect to the other Individual Defendants because "the information Plaintiff
Plaintiff also argues that the Second Amended Complaint relates back to the date of the
Original Complaint pursuant to C.P.L.R. § 203(t). Pl.'s Mem. at 18-20. Given that the Court
finds that plaintiff qualifies for relation back pursuant to § 1024, the Court need not address
this alternative argument.
Plaintiff notes that the complaint filed in Dancy II similarly named Officer Williams and John
Doe defendants of the 79th Precinct as defendants. See Pl. 's Mem. at 13 n.5. It appears,
however, that Officer Williams was never served in Dancy II. See Affirmation Att'y Ryan
Lozar Supp. Pl.'s Opp'n Defs.' Mot. Dismiss ("Lozar Affirmation")~ 17, ECFNo. 34-1.
provided the City about the incident was sufficient to enable even the most modest City
investigation to identify these men." Id. at 12.
Second, plaintiff argues that when Mr. Mitchell "disappeared," id. at 14, plaintiff
demonstrated "robust efforts to locate [the] missing attorney and cure the problem," id. at 14, and
ultimately "act[ed] to secure new counsel to file the lawsuit before the expiration of the statute of
limitations." Id. at 14. Plaintiff argues that his "awareness of the statute of limitations and his
retention of Mr. Reyes as a pinch-hitter for Mr. Mitchell, who had disappeared, demonstrates a
level of involvement and initiative that is rare for a party who might have believed it reasonable
to rely upon his retained lawyer." Id. at 13.
And third, plaintiff asserts that he made "expeditious use of the pretrial discovery
process," id. at 14, after "his timely filing of this action." Id. at 10. Specifically, plaintiff notes
that he "obtained the Individual Defendants' names prior to the Initial Conference and filed the
Second Amended Complaint with those names one day after the Initial Conference and served it
within a week." Id. at 13.
Following oral argument, this Court gave plaintiff an opportunity to "supplement his
opposition papers ... with additional information regarding the due diligence exercised by
plaintiff, Mr. Richard Reyes, or Mr. Neville Mitchell, prior to the running of the statute of
limitations, to identify the individual defendants by name." Electronic Order dated Apr. 15,
2016. In response, attorney Ryan Lozar, co-counsel to Mr. Reyes, filed an affirmation on May
16, 2016, in which he "provide[d] the Court with heretofore unknown facts relating to Mr.
Mitchell's diligent efforts to identify the Individual Defendants within the statute of limitations."
Letter from Ryan Lozar to Judge Raymond J. Dearie ("Lozar Letter"), May 16, 2016, ECF No.
34. Mr. Lozar stated that he learned such facts during a meeting with Mr. Mitchell on May 9,
2016, noting that he and Mr. Reyes had previously been unsuccessful in their attempts to reach
Mr. Mitchell. Id.
Mr. Lazar recounted that prior to the running of the statute of limitations, Mr. Mitchell
took the following actions to identify the individual defendants: (1) as previously noted, he filed
the NOC on April 27, 2012; (2) he (along with Mr. Dancy and Mrs. Dancy) sought out and
consulted various documents created in connection with Mr. Dancy's medical treatment
following the incident, including a New York City Fire Department Prehospital Care Report
(which states that an NYPD officer with Shield No. 2040 was involved) and Woodhull Medical
and Mental Health Center medical records (which state that NYPD Officer Stackpole, Shield No.
2464 from the 79th Precinct, was involved); (3) he consulted written statements from two
individuals who witnessed the incident, one of whom stated that Officer Williams was among the
officers involved; (4) he conducted a search for Officer Williams on SeeThroughNY, a website
"dedicated to government payroll transparency," which returned voluminous search results and
was of little assistance. See Lozar Affirmation§§ 8-16. 6
Defendants respond that while '"New York Courts have found the diligence [requirement
met] ... when plaintiffs have ... , for example, serv[ed] letters, discovery requests, or Freedom
oflnformation Law requests,' ... [p]laintiff did not take any such steps." Defs.' Reply at 3
(quoting Gullo v. City of New York, No. 10-cv-8516 (BSJ) (DF), 2012 U.S. Dist. LEXIS
Mr. Lazar also notified the Court that during his May 9, 2016, meeting with Mr. Mitchell, he
became aware of a "personal issue" that explained why plaintiff was unable to contact Mr.
Mitchell in late 2014 and early 2015. Lazar Letter at 2 n. l. Mr. Lazar stated, "I believe that
the personal issue may provide an alternate, heretofore unexplored basis for Plaintiff to
contest Defendants' statute of limitations pleading under New York C.P.L.R. §§ 2005,
3012(d)." Id. Mr. Lazar requested that plaintiff"be permitted an opportunity to be heard on
this separate question if the Court is disinclined to rule in [plaintiffs] favor on the due
diligence question." Id. Given the Court's ruling herein, it is unnecessary to delve deeper
into the "personal issue."
189573, at *20 (S.D.N.Y. May 21, 2012)). Defendants argue that "[p]laintiff in fact did nothing
to discover the identities of the officers involved in the alleged incident." Id. "[Plaintiff] did not
make even one request to the City or NYPD officials or to the Court to assist with identification
or to allow him more time to do so." Id.
Regarding the NOC, defendants argue that not only is it outside the pleadings, it also
"cannot be fairly characterized as an effort to identify defendants." Id. Rather, defendants
argue, the NOC is merely a "formal notice that plaintiff is asserting a claim and demand against
the City," and "[p]laintiff cites no authority for the proposition that a Notice of Claim is
demonstrative of diligence in the CPLR § 1024 context." Id. at 4; see also Olivo v. City of New
York, No. 14-cv-4966 (ERK), 2015 U.S. Dist. LEXIS 101957 (E.D.N.Y. Aug. 4, 2015) (finding
that plaintiff did not exercise due diligence in identifying the defendants by name, despite having
allegedly filed a notice of claim within the statute of limitations).
Defendants argue that plaintiffs efforts to locate his former counsel and secure new
counsel have "no bearing on the diligence analysis," asserting that New York's Appellate
Division has found such considerations to be irrelevant to relation-back analysis under § 1024.
Defs.' Reply at 4 (citing Fountain v. Ocean View II Assocs, 701N.Y.S.2d68 (App. Div. 1999)).
Furthermore, defendants argue, regardless of plaintiffs difficulties prior to retaining Mr. Reyes,
Mr. Reyes still had adequate time between January 7, 2015, the date of his retainer agreement,
and January 31, 2015, the date on which the limitations period expired, to pursue identification
of the John Doe defendants. Id.
Finally, defendants argue that contrary to plaintiffs assertion that he made "expeditious
use of the pretrial discovery process," plaintiff in fact made "no use of the Court or its discovery
processes to identify the officers." Id. Defendants also point out that plaintiffs use of the
discovery produced as a result of Magistrate Judge Reyes ' actions took place entirely after the
statute of limitations had already run. Id. at 5.
To be sure, plaintiff and his counsel could have collectively exhibited a greater degree of
diligence than appears on the record before the Court. The relevant question here, however, is
whether they nevertheless displayed enough diligence to satisfy § 1024' s diligence requirement,
and on that question, the Court concludes that the balance tips in plaintiffs favor.
The reality is that the present situation is primarily of Mr. Mitchell's making-not
plaintiffs or Mr. Reyes'-and plaintiff and Mr. Reyes did make some effort to remedy the
situation and identify the Individual Defendants prior to the running of the statute of limitations.
Plaintiff may have waited until the eleventh hour, but he did eventually recognize the problem
caused by Mr. Mitchell and attempt to fix it. And Mr. Reyes may reasonably have concluded
that by the time he came onboard, the only realistic hope he had of obtaining the Individual
Officers' identities prior to the running of the statute of limitations was securing Mr. Mitchell's
case file. Therefore, while a close call, the Court finds that plaintiff has met the diligence
requirement of § 1024. 7
Section 1024 requires not only that plaintiff exercise due diligence, but also that plaintiff
"describe the John Doe part[ies] 'in such form as will fairly apprise the part[ies] that [they are]
the intended defendant[s]."' Hogan, 738 F.3d at 19 (quoting Bumpus, 883 N.Y.S.2d at 104).
Plaintiff argues that he meets this requirement because the NOC and the Original Complaint
The Court also notes that it has trouble envisioning how defendants have been meaningfully
prejudiced here. The City, having received the NOC just months after the incident, could
have readily identified the officers involved should it have chosen to do so, and the Individual
Officers were named only months after the Original Complaint was timely filed.
described the date, general location, 8 and nature of the alleged incident. Pl.' s Mem. at 14-16.
Plaintiff argues, "It being rare that the police's arrest of an individual would result in such severe
physical injuries [as to cause the arrestee to be taken directly to Woodhull Hospital], even the
most modest City inquiry into the incident at the 79th Precinct in response to Plaintifrs April 27,
2012 NOC or this lawsuit would undeniably alert the responsible officers to the fact that they
were the ones involved." Id. at 15.
Defendants respond that "[t]here was simply no way for the City to be on notice of who
plaintiff was attempting to sue and no way the officers themselves could have known." Defs.'
Reply at 5. In addition to this exaggerated comment, defendants note the following: plaintiffs
Original Complaint "failed to identify the [specific] location of the incident or the approximate
time of occurrence"; "plaintiff asserted that he was arrested, which turned out not to be the
case"9 ; to the extent the Court will consider the NOC even though it is outside of the pleadings,
"different officers were named in the [NOC] than were named in the [Second Amended
Complaint]"; plaintiffs Original Complaint was filed under the name "Sean Dancy," whereas
the NOC and Dancy II were filed under the name "Curtis Dancy"; and plaintiffs Original
Complaint did not include a physical description of the Individual Defendants. Id. at 5-6; Defs.'
Mem. at 6-7.
The Original Complaint stated that plaintiff resided at 14 Alice Court, Brooklyn, New York,
and that the incident occurred "in the neighborhood." Original Complaint ~~ 8, 10-11. The
complaint in Dancy II provided a more specific location, stating that the incident occurred at
37 Kingston Avenue, Brooklyn, New York 11213. Compl. ~ 16, Dancy II, ECF No. 1.
In an April 24, 2015, letter request for an extension of time to answer or otherwise respond to
the complaint, defense counsel noted that since "plaintiff was not ... arrested in connection
with the incident alleged in the complaint . . . there is no arrest report to assist [defense
counsel] with identifying the police officers involved, and [defense counsel's] investigation
into the incident is taking longer than usual." Letter from Rhiana Swartz to Magistrate Judge
Reyes at 2, April 24, 2015, ECF No. 10.
The complaint specified the date, general location, and specific sequence of events of the
alleged incident-which were, presumably, fairly unusual, given that plaintiff was taken by
ambulance directly to Woodhull Hospital without having been arrested or the victim of assault
by some known or unknown assailant-and plaintiff clearly conveyed his intent to sue all of the
police officers involved. See Kennedy v. City of New York, No. 12-cv-4166 (KPF), 2015 WL
6442237, at *5 (S.D.N.Y. Oct. 23, 2015) ("Courts have found that where a plaintiff provides
specific contextual information, that may satisfy the description requirement of C.P.L.R. 1024.").
Also, the complaint in Dancy II, of which this Court may take judicial notice, see. e.g.,
Shuttlesworth v. City of Birmingham, 394 U.S. 147, 157 (1969), identified the specific location
of the incident and provided the last name of defendant Williams. See Compl. ~~ 8, 16, Dancy
II, ECF No. 1. Furthermore, as plaintiff points out, some details, such as physical descriptions of
the officers, are missing in part due to the Individual Defendants' alleged conduct. See Pl.' s
Mem. at 17 (noting that "[d]efendants remarked aloud, apparently with relief, that their treatment
of [p]laintiff would not be captured by video cameras," and that "at some point during the
beating, [p ]laintiff lost consciousness" and defendants put a bag over his head).
Given all this, the Court finds that the balance again tips in plaintiff's favor. The Court
finds that plaintiff has met both the diligence and notice requirements of § 1024 and is entitled to
relation back under that provision and Rule 15(c)( 1)(A), and plaintiff's claims against the
Individual Defendants are therefore not time-barred.
Adequacy of Pleading
To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a
complaint must plead "enough facts to state a claim to relief that is plausible on its face." Brown
v. Daikin Am. Inc., 756 F.3d 219, 225 (2d Cir. 2014) (quoting Bell Atl. Com. v. Twombly, 550
U.S. 544, 570 (2007)). In reviewing the complaint, this Court "accept[s] all well-pleaded
allegations in the complaint as true and draw[s] all reasonable inferences in the plaintiffs favor."
Chabad Lubavitch of Litchfield Cnty., Inc. v. Litchfield Historic Dist. Comm'n, 768 F.3d 183,
191 (2d Cir. 2014) (quoting Bigio v. Coca-Cola Co., 675 F.3d 163, 169 (2d Cir. 2012)). "A
claim has facial plausibility when the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009). However, where plaintiffs "have not nudged their claims
across the line from conceivable to plausible, their complaint must be dismissed." Twombly,
550 U.S. at 570.
In a single paragraph, defendants argue that "[e]ven if the [Second Amended Complaint]
did relate back to the timely prior-filed complaints, dismissal would still be appropriate because
plaintiff has not adequately alleged personal involvement by the officers." Defs.' Mem. at 5. In
support, defendants cite McCoy v. Goord, 255 F. Supp. 2d 233 (S.D.N.Y. 2003), and argue that
"[w]here the complaint names a defendant in the caption but contains no allegations indicating
how the defendant violated the law or injured the plaintiff, a motion to dismiss the complaint in
regard to that defendant should be granted." Defs.' Mem. at 5 (quoting McCoy, 255 F. Supp. 2d
In McCoy, however, the plaintiff"d[id] not plead any facts to suggest that the
defendants were personally aware of or involved in any of the alleged constitutional violations."
McCoy, 255 F. Supp. 2d at 258. Here, by contrast, plaintiff alleges "that the three Individual
Defendants were present, personally aware of and involved in the described acts." Pl.'s Mem. at
21 (emphasis in original); see also Second Amended Complaint~~ 5-8, 10-28. And while "[a]
Section 1983 [p]laintiff ordinarily must describe each individual defendant's involvement in a
constitutional violation ... an alleged victim of group police violence ... [r]easonably ... may
not know the names of the specific officers who struck blows or wrestled her to the ground."
Humbach v. Canon, No. 13-cv-2512 (NSR), 2014 WL 6057703, at *6 (S.D.N.Y. Nov. 12, 2014).
As such, defendants' argument that plaintiff has not adequately alleged the personal involvement
of the Individual Defendants is without merit.
Plaintiff has withdrawn his claims against the City and the NYPD. With regard to
plaintiffs claims against the Individual Defendants, the Court finds that Plaintiff has met the
requirements of C.P .L.R. § 1024. Thus, the Second Amended Complaint relates back to the date
of the Original Complaint under Rule 15(c)(l) and is not time-barred. The Court also finds that
plaintiff has adequately alleged the personal involvement of the Individual Defendants. As such,
the Court denies defendants' motion to dismiss with respect to plaintiffs claims against the
Dated: Brooklyn, New York
October 28, 2016
United States District Judge
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