Brooks v. County Of Nassau et al
Filing
13
MEMORANDUM AND ORDER Re: 10 Motion to Dismiss for Failure to State a Claim and for Lack of Jurisdiction; 12 Motion to Dismiss for Failure to State a Claim; For the above reasons, defendants motion to dismiss is granted to the extent that (1) all claims against the NCPD are dismissed with prejudice; (2) all state law claims against the County are dismissed with prejudice; (3) all state claims against the individual defendants in their official capacities are dismissed with prejudice; and (4) the federal conspiracy and failure to protect claims are dismissed without prejudice to the right to amend within 30 days of the date of this Memorandum and Order. So Ordered by Judge Leonard D. Wexler, on 10/9/14 (Coleman, Laurie)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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RALIK BROOKS,
Plaintiff,
-against-
MEMORANDUM AND ORDER
CV 14-3107 (LDW) (GRB)
COUNTY OF NASSAU, et al.,
Defendants.
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WEXLER, District Judge
Plaintiff Ralik Brooks brings this civil rights action against the County of Nassau
(“County”) and the Nassau County Police Department (“NCPD”), as well as against
named and unnamed Nassau County police officers in their individual and official
capacities, including Detective James Gilroy (“Gilroy”) and Detective Robert J.
Lashinsky (“Lashinsky”). Brooks asserts claims for violation of various federal
constitutional rights under 42 U.S.C. §§ 1983, 1985(3) and 1986, and supplemental state
claims under New York law for negligence, intentional torts, and statutory and
constitutional violations. Before the Court is defendants’ motion to dismiss various
claims under Rule 12(b)(6) of the Federal Rules of Civil Procedure (“FRCP”). Plaintiff
concedes that certain claims should be dismissed but otherwise opposes the motion.
I. BACKGROUND
For purposes of this motion, the allegations of the complaint can be stated as
follows: On or about May 30, 2013, the defendant police officers, attempting to locate
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Brooks, entered his residence without permission, warrant, or exigent circumstances and
with their weapons drawn, causing him to fear imminent harm. Complaint ¶¶ 2, 34.
Upon locating Brooks, one of the defendant police officers unnecessarily sprayed Brooks
with pepper spray while jokingly repeating, “Don’t resist. Stop resisting.” Id. ¶¶ 3, 36.
Brooks did not resist arrest, and he did not threaten to harm or verbally or physically
abuse any of the defendant police officers. Id. ¶¶ 37-38. While Brooks was suffering the
effects of the pepper spray, one of the defendant police officers handcuffed him, placed
him face down on the floor, and stepped on the back of his neck. Id. ¶ 40. As that officer
restrained Brooks, defendant Gilroy pistol-whipped Brooks in the head, causing him to
lose consciousness and suffer physical injuries. Id. The defendant police officers then
searched Brooks’ residence without his permission, a search warrant, or any legal cause.
Id. ¶ 41. Defendant Lashinsky then falsely arrested Brooks on charges of resisting arrest,
causing Brooks to be wrongfully incarcerated and maliciously prosecuted. Id. ¶ 42.
During and following his arrest, Brooks requested that defendants decontaminate
and/or remove the pepper spray from his face and eyes, but they ignored and denied his
requests. Id. ¶ 44. Thereafter, defendants denied Brooks reasonable and necessary
medical care and an opportunity to shower the chemicals off for three days, causing him
to suffer additional physical, psychological, and emotional injuries and deprivation and
violation of his civil rights. Id.
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Brooks alleges that the defendant police officers and their supervisors lied,
submitted false statements, and purposefully failed to investigate the incident, all to
prevent exposure of the unlawful conduct, and that the County failed to take any
corrective action against the defendant police officers. Id. ¶¶ 43, 45.
Brooks asserts four federal claims and eight “pendant state claims.” As for the
federal claims, the first claim asserts violation of Brooks’ federal constitutional rights
under § 1983 by, inter alia, false arrest, deliberate indifference to his medical needs,
failing to intervene, unlawful search, and excessive force. Id. ¶¶ 47-72. The second
claim asserts conspiracy to deprive Brooks of his federal constitutional rights and
conspiracy to “cover up” the acts of the defendant police officers under §§ 1985(3) and
1986. Id. ¶¶ 73-84. The third claim asserts municipal liability for the actions alleged in
the first and second claims, in that the alleged deprivation of Brooks’ constitution rights
resulted from “customs, policies, usages, practices, procedures and rules” of the County.
Id. ¶¶ 85-97. The fourth claim asserts a failure to protect based on the defendant police
officers’ failure to “intervene, mitigate and/or stop the abuses set forth herein at any time
during the happening of said incident or thereafter.” Id. ¶¶ 98-109.
As for the state claims, Brooks asserts the following eight claims: (1) “Assault,
Battery and Conspiracy, ” id. ¶¶ 110-118; (2) “Negligent Hiring, Training, Supervision
and Retention,” id. ¶¶ 119-127; (3) “Intentional and Negligent Infliction of Emotional
Distress” (Id. ¶¶ 128-132); (4) “Negligence,” id. ¶¶ 133-138; (5) “Failure to Protect,” id.
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¶¶ 139-145; (6) “Violation of New York Constitution and Statutes,” by, inter alia, use of
excessive force, depriving Brooks’ of due process, and deliberate indifference to his
medical needs, id. ¶¶ 146-152; (7) “Failure to Provide Medical Treatment,” id.
¶¶ 153-158; and (8) “Prima Facie Tort,” id. ¶¶ 159-162. Regarding the state claims, the
complaint further asserts that before filing this action Brooks applied to the New York
State Supreme Court for permission to serve a late notice of claim pursuant to New York
General Municipal Law (“GML”) § 50-e. Id. ¶ 107. Ultimately, as Brooks’ concedes, the
motion was denied. See Plaintiff’s Memorandum of Law in Opposition to Motion to
Dismiss, at 6.
Defendants move to dismiss, arguing (1) that any claims against NCPD must be
dismissed because NCPD is merely an administrative arm of the County and cannot sue
or be sued; (2) that all of the supplemental state claims must be dismissed based on
Brooks’ failure to comply with the notice of claim requirements of GML §§ 50-e and 50i; and (3) that the federal conspiracy and failure to protect claims are not sufficiently pled.
II. DISCUSSION
A. Motion to Dismiss Standard
In Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), the Supreme Court held
that to avoid dismissal a plaintiff is required to plead enough facts “to state a claim for
relief that is plausible on its face.” Id. at 570; see also Ashcroft v. Iqbal, 556 U.S. 662,
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678-80 (2009). While heightened factual pleading is not required, Twombly holds that a
“formulaic recitation of the elements of a cause of action will not do.” Twombly, 550
U.S. at 555. On a motion to dismiss, the court must, as always, assume that all allegations
in the complaint are true and draw all reasonable inferences in favor of the nonmoving
party. Plair v. City of New York, 789 F. Supp. 2d 459, 463 (S.D.N.Y. 2011). However,
the court must ensure that the complaint sets forth “enough facts to state a claim to relief
that is plausible on its face.” Twombly, 550 U.S. at 570; see Ruston v. Town Bd. for Town
of Skaneateles, 610 F.3d 55, 57 (2d Cir. 2010). A pleading that does nothing more than
recite the elements of a claim, supported by mere conclusory statements, is insufficient to
“unlock the doors of discovery.” Iqbal, 556 U.S. at 678. Rather, “only a complaint that
states a plausible claim for relief survives a motion to dismiss.” Id. at 679.
Although defendants’ bring their motion under FRCP 12(b)(6), a motion to dismiss
a supplemental state claim for failure to file a notice of claim is properly asserted under
FRCP 12(b)(1) for lack of subject matter jurisdiction. Notably, “[t]he standard for
reviewing a [FRCP]12(b)(1) motion to dismiss is essentially identical to the
[FRCP]12(b)(6) standard,” except that ‘[a] plaintiff asserting subject matter jurisdiction
has the burden of proving by a preponderance of the evidence that it exists.’ ” Taylor v.
New York State Office for People with Developmental Disabilities, No. 1:13–CV–740
(NAM/CFH), 2014 WL 1202587, at *3 (N.D.N.Y. Mar. 14, 2014) (quoting Makarova v.
United States, 201 F.3d 110, 113 (2d Cir. 2000)). Moreover, the Court “may refer to
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evidence outside the pleadings” in deciding a FRCP 12(b)(1) motion. Makarova, 201
F.3d at 113.
B. Claims Against NCPD
In response to defendants’ motion, Brooks agrees to withdraw all claims against
NCPD, as NCPD does not have an identity separate and apart from the County and cannot
sue or be sued. See, e.g., Brown v. Nassau County Police Dep’t, No. 14–CV–00247 (SJF)
(ARL), 2014 WL 1401510, at *2 (E.D.N.Y. Apr. 8, 2014) (“Under New York law,
departments which are merely administrative arms of a municipality, do not have a legal
identity separate and apart from the municipality and cannot sue or be sued.” (internal
quotation marks omitted)). Accordingly, all claims against NCPD are dismissed with
prejudice.
C. State Claims Against the County
In response to defendants’ argument that Brooks’ state claims must be dismissed
based on his failure to file a notice of claim, Brooks agrees to withdraw his state
negligence claims against the County. Defendants argue, however, that all of Brooks’
state claims – not only negligence – must be dismissed based on his failure to comply
with the notice of claim requirements. The Court agrees. GML §§ 50-e and 50-i require
a plaintiff asserting a state tort claim against the County to file a notice of claim within 90
days after the claim arises. The notice of claim requirement applies not only to Brooks’
negligence claims but also to his intentional tort claims and related claims for violation of
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state constitutional and statutory provisions. See L.H. v. County of Livingston, No.
12–CV–6541, 2013 WL 5656209, at *2 (W.D.N.Y. Oct. 16, 2013); Candelario v. City of
New York, No. 12 Civ. 1206 (LAP), 2013 WL 1339102, at *10 (S.D.N.Y. Apr. 3, 2013);
Dzwonczyk v. Syracuse City Police Dept., 710 F. Supp. 2d 248, 271-72 (N.D.N.Y. 2008);
see also DC3, LLC v. Town of Geneva, 783 F. Supp. 2d 418, 423 (W.D.N.Y. 2011)
(“Section 50-i applies to New York State constitutional claims.”); Jean v. City of New
York, No. 08–CV–00157 (RER), 2009 WL 3459469, at *10 (E.D.N.Y. Oct. 22, 2009)
(holding false arrest, false imprisonment, and malicious prosecution claims under New
York constitution and common law barred by notice of claim requirement); Alexander v.
City of New York, No. 02 Civ. 3555 (TPG), 2004 WL 1907432, at *22 (S.D.N.Y. Aug.
25, 2004) (“[T]he New York notice of claim requirement applies both to common law
causes of action, and to actions founded upon violations of state constitutional
provisions.”). Thus, all of Brooks’ state claims are dismissed as against the County.
C. State Claims Against the Individual Defendants
As for the state claims against the defendant police officers, defendants argue that
the notice of claim requirement bars these claims, too. It is well settled that the failure to
file a notice of claim bars state claims against individual defendants sued in their official
capacities. See Johnson v. County of Nassau, No. 10–CV–06061 (JFB) (GRB), 2014 WL
4700025, *24 (E.D.N.Y. Sept. 22, 2014); Delaney v. City of Albany, No. 1:12–cv–1575
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(LEK/RFT), 2014 WL 701637, at *5 (N.D.N.Y. Feb. 24, 2014). Accordingly, Brooks’
state claims are barred as against the individual defendants in their official capacities.
However, as for state claims against an individual defendant in his individual
capacity, “ ‘service of a notice of claim is not a condition precedent to the commencement
of an action against a county’s employees or agents unless the county is required to
indemnify the individual defendants.’ ” Olsen v. County of Nassau, No. CV 05-3623
(ETB), 2008 WL 4838705, at *4 (E.D.N.Y. Nov. 4, 2008) (quoting Costabile v. County of
Westchester, 485 F. Supp. 2d 424, 432 (S.D.N.Y. 2007)); Delaney, 2014 WL 701637, at
*6. The County’s duty to indemnify turns on whether the defendant police officers were
acting within the scope of their employment. See Delaney, 2014 WL 701637, at *6;
Olsen, 2008 WL 4838705, at *4 (citing Grasso v. Schenectady County Pub. Library, 817
N.Y.S.2d 186, 190 (3d Dep’t 2006); Int'l Shared Servs., Inc. v. County of Nassau, 634
N.Y.S.2d 722, 724 (2d Dep’t 1995)). The Court finds that the parties have not adequately
briefed the issue of whether the County has a duty to indemnify the defendant police
officers as to specific state claims. Thus, the motion to dismiss Brooks’ state claims
against the individual defendants in their individual capacities is denied at this time.
D. Conspiracy Claims Under § 1983 and § 1985(3)
As for the conspiracy claims, the parties dispute whether Brooks sufficiently
pleads a conspiracy claim under § 1983 or § 1985(3) (which, as noted below, is the
predicate for § 1986 claim). To state a § 1983 conspiracy claim, a plaintiff must plead:
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“(1) an agreement between two or more state actors or between a state actor and a private
entity; (2) to act in concert to inflict an unconstitutional injury; and (3) an overt act done
in furtherance of that goal causing damages.” Pangburn v. Culbertson, 200 F.3d 65, 72
(2d Cir. 1999). To state a § 1985(3) conspiracy claim, a plaintiff must plead:
(1) a conspiracy; (2) for the purpose of depriving, either
directly or indirectly, any person or class of persons of equal
protection of the laws, or of equal privileges and immunities
under the laws; (3) an act in furtherance of the conspiracy; (4)
whereby a person is either injured in his person or property or
deprived of any right of a citizen of the United States.
Mian v. Donaldson, Lufkin & Jenrette Sec. Corp., 7 F.3d 1085, 1087 (2d Cir. 1993).
Moreover, the § 1985(3) conspiracy must “be motivated by ‘some racial or perhaps
otherwise class-based, invidious discriminatory animus behind the conspirators’ action.’ ”
Id. (quoting United Bhd. of Carpenters, Local 610 v. Scott, 463 U.S. 825, 829 (1983)). A
§ 1986 claim is predicated upon a valid § 1985 claim, and lies “against any person who
‘having knowledge that any of the wrongs conspired to be done and mentioned in section
1985 are about to be committed and having power to prevent or aid, neglects to do so.’ ”
Id. (quoting Katz v. Morgenthau, 709 F. Supp. 1219, 1236 (S.D.N.Y.), aff’d in part and
rev’d in part on other grounds, 892 F.2d 20 (2d Cir. 1989)).
Defendants argue, inter alia, that the conspiracy claims are deficient in that Brooks
fails to plead a factual basis supporting a “meeting of the minds” of the alleged
conspirators, relying instead on conclusory, vague or general allegations. The Court
agrees that Brooks’ conspiracy claims under § 1983 and § 1985(3) are not sufficient. As
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defendants argue, “complaints containing only conclusory, vague, or general allegations
that the defendants have engaged in a conspiracy to deprive the plaintiff of his
constitutional rights are properly dismissed; diffuse and expansive allegations are
insufficient, unless amplified by specific instances of misconduct.” Ciambriello v.
County of Nassau, 292 F.3d 307, 325 (2d Cir. 2002) (internal quotation marks omitted);
Dwares v. City of N.Y., 985 F.2d 94, 100 (2d Cir. 1993). Brooks’ claims are based on
conclusory allegations devoid of factual content suggesting a “meeting of the minds”
among or between defendants to violate his civil rights. See Liang v. City of New York,
No. 10–CV–3089 (ENV) (VVP), 2013 WL 5366394, at *15 (E.D.N.Y. Sept. 24, 2013).
Accordingly, the conspiracy claims are dismissed without prejudice.1
E. Failure to Protect Claim Under § 1983
As for the failure to protect claim, the parties dispute whether it is sufficiently
pled. “A police officer ‘has an affirmative duty to intercede on the behalf of a citizen
whose constitutional rights are being violated in his presence by other officers.’ ”
Ricciuti v. N.Y.C. Transit Auth., 124 F.3d 123, 129 (2d Cir. 1997) (quoting O’Neill v.
Krzeminski, 839 F.2d 9, 11 (2d Cir. 1988)). A failure to intervene may be grounds for
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Based on this determination, the Court need not address defendants’ additional argument
that the conspiracy claims are barred by the intracorporate conspiracy doctrine and plaintiff’s
responsive argument that its claims fall within an exception to that doctrine. See, e.g., Quinn v.
Nassau County Police Dept., 53 F. Supp. 2d 347, 359-60 (E.D.N.Y. 1999) (noting that “[u]nder
the intracorporate conspiracy doctrine, officers, agents and employees of a single corporate entity
are legally incapable of conspiring together,” but finding claim falls within the exception that
“applies to individuals within a single entity when they are pursuing personal interests wholly
separate and apart from the entity”).
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§ 1983 liability. See id. “However, an officer may only be held liable if he ‘observes or
has reason to know’ that an individual’s constitutional right has been violated and he had
‘a realistic opportunity to prevent the harm from occurring.’ ” Garnett v. City of New
York, No. 13–cv–7083–GHW, 2014 WL 3950904, at *13 (S.D.N.Y. Aug. 13, 2014)
(quoting Andersen v. Branen, 17 F.3d 552, 557 (2d Cir. 1994)).
Defendants argue that the failure to protect claim is not sufficiently pled because
Brooks does not allege the personal involvement of individual defendants who allegedly
failed to protect him, as required under § 1983. See Wright v. Smith, 21 F.3d 496, 501 (2d
Cir. 1994). The Court agrees with defendants that the claim is not sufficiently pled.
Beyond the acts allegedly committed by the named individual defendants, Gilroy and
Lashinsky, in depriving Brooks of his constitutional rights, see Complaint ¶¶ 40, 42,
Brooks fails to allege the personal involvement of an individual defendant under
circumstances showing a failure to intervene/protect his constitutional rights from
infringement by other law enforcement officers. Accordingly, the failure to protect claim
is dismissed without prejudice.
III. CONCLUSION
For the above reasons, defendants’ motion to dismiss is granted to the extent that
(1) all claims against the NCPD are dismissed with prejudice; (2) all state law claims
against the County are dismissed with prejudice; (3) all state claims against the individual
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defendants in their official capacities are dismissed with prejudice; and (4) the federal
conspiracy and failure to protect claims are dismissed without prejudice to the right to
amend within 30 days of the date of this Memorandum and Order.
SO ORDERED.
___________/s/__________________
LEONARD D. WEXLER
UNITED STATES DISTRICT JUDGE
Dated: Central Islip, New York
October 9, 2014
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