Schiff v. Stevens et al
Filing
24
ORDER granting 20 Motion to Dismiss for Failure to State a Claim. For the reasons set forth herein, the State Defendants' motion to dismiss (ECF No. 20) is granted in full, and plaintiff's claims are dismissed with leave to amend. Plai ntiff must file an amended complaint within thirty (30) days of the date of this Memorandum and Order. The amended complaint must not include any claims that the Court has dismissed with prejudice--i.e., claims for false arrest, malicious prosecutio n, unlawful search and seizure, and excessive force in connection with the June 14, 2012 arrest; and New York state tort claims for assault, battery, and intentional infliction of emotional distress, which are time-barred. Plaintiff is warned that failure to file an amended complaint will result in the dismissal of this action with prejudice, and the case will be closed. SO ORDERED. Ordered by Judge Joseph F. Bianco on 1/6/2017. (Zbrozek, Alex)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 15-CV-3598 (JFB) (AKT)
_____________________
ANN MARIE SCHIFF,
Plaintiff,
VERSUS
S.C.O. JOANNE STEVENS, ET AL.,
Defendants.
___________________
MEMORANDUM AND ORDER
January 6, 2017
___________________
JOSEPH F. BIANCO, District Judge:
For the reasons set forth below, plaintiff’s
claims against the State Defendants are
dismissed. However, the Court grants leave
to replead only with respect to the excessive
force claim in connection with the April 4,
2013 incident discussed infra.
On June 11, 2015, plaintiff Ann Marie
Schiff (“plaintiff”), proceeding pro se and in
forma pauperis, filed this action against
defendants State Court Officer Joanne
Stevens (“SCO Stevens”), Sargent [sic]
Daniel Friesm (“Friesm”), Captain Kevin
Brophy, Court Officer James Martinez, John
Does #1-2, Sherill Spatz, Kay-Ann PorterCampbell, and Joseph Casella (the “State
Defendants”); as well as Suffolk County
Police Officer Michael Flood. 1 Plaintiff
asserts claims pursuant to 42 U.S.C. §§ 1983,
1986, and 1988 arising from an arrest for
disorderly conduct in violation of New York
state criminal law and an alleged assault by
Friesm. The State Defendants now move to
dismiss the claims against them pursuant to
Federal Rule of Civil Procedure 12(b)(6).
I. BACKGROUND
A. Facts
The following facts are taken from the
complaint and are not findings of fact by the
Court. Instead, the Court will assume the
facts to be true and, for purposes of the
pending motion to dismiss, will construe
them in a light most favorable to plaintiff as
the non-moving party.
1
The State Defendants assert that defendant Joanne
Stevens’s name is properly spelled “Joanne Stephens”;
Daniel Friesm is properly spelled “Daniel Freisem”;
and Joseph Casella is properly spelled “Joseph
Kuceluk.” (State Defs.’ Mem. of Law in Supp. of Mot.
to Dismiss (“Defs.’ Br.”), ECF No. 20-6, at 1.) For
purposes of this Memorandum and Order, the Court
uses the spellings in the complaint.
1
Cohalan Court Complex and charged her
with disorderly conduct. (Id.)
Plaintiff alleges that on June 14, 2012,
she was arrested at the Cohalan Court
Complex in Central Islip, New York.
(Compl., ECF No. 1, ¶ 14.) She states that
SCO Stevens asked plaintiff to remove
herself from a chair in the court lobby
because plaintiff was “trespassing.” (Id.)
After plaintiff left the lobby and sat down on
a bench outside of the courthouse, SCO
Stevens, Friesm, and two John Does
approached and arrested her. (Id.) Plaintiff
claims that the arrest lacked probable cause,
and that SCO Stevens subsequently “illegally
searched and inventoried plaintiff’s handbag
on an inventory list sheet which is why
plaintiff was detained for almost 2 hours.”
(Id.)
On or about September 19, 2012, plaintiff
filed a Notice of Claim and commenced an
action in the New York State Court of Claims
against the State of New York contesting her
allegedly false arrest on June 14, 2012. (Id.;
Decl. of Daniel S. Hallak (“Hallak Decl.”),
Ex. B, ECF No. 20-3. 2 ) Plaintiff further
contends that, on April 4, 2013, Friesm
“assaulted, battered and harassed Plaintiff in
the lobby of the Cohalan Court Complex”
after “plaintiff simply asked of him his name
for [her] interrogatories in the Court of
Claims case.” (Compl. ¶ 15.) Plaintiff then
filed a complaint about that alleged assault
with “an investigator, Joseph Cassela,” who
purportedly told her that he did not see a
problem with Friesm’s actions.
(Id.)
Plaintiff states that she also spoke with
“Sherrill Spatz Inspector General for the New
York State Unified Court System regarding
this incident,” who told plaintiff that she
could not obtain surveillance videos of the
alleged assault. (Id.)
While plaintiff was detained, Captain
Kevin Brophy allegedly informed SCO
Stevens that plaintiff could not be charged
with trespassing and instead instructed SCO
Stevens to charge plaintiff with a disorderly
conduct violation. (Id.) Plaintiff was
subsequently released and alleges that she
was heavily medicated and groggy both
during and prior to her detention. (Id.)
By decision dated June 17, 2015, the New
York Court of Claims dismissed plaintiff’s
claims against the State of New York.
(Hallak Decl., Ex. C, ECF No. 20-4.) The
court also denied plaintiff’s motion to compel
discovery because it found that the
defendant’s responses to interrogatories and
document requests had been reasonable, and
it denied plaintiff’s request to amend her
claim to add individual defendants because
the court’s jurisdiction is limited to actions
for monetary damages against the State of
New York. (Id. at 3.) With respect to the
merits of plaintiff’s claim, the court found
that (1) probable cause supported plaintiff’s
June 14, 2012 arrest; (2) plaintiff could not
After plaintiff returned home, she
contacted the “Office of the Inspector
General for Bias Matter” and filed a
complaint about her arrest and detention with
Kay-Ann Porter-Campbell, but plaintiff
claims that, despite numerous attempts to
follow up, the Inspector General did not act
on her complaint. (Id.) Plaintiff further
alleges that “[a]fter several court dates in
front of a judge, plaintiff was handed a sworn
statement signed by Stephens [sic] and with
Friesm’s signature on it” falsely stating that
SCO Stevens arrested plaintiff inside of the
2
As discussed infra, in resolving this motion, the
Court may consider, inter alia, documents
incorporated by reference in the complaint. See
Nechis v. Oxford Health Plans, Inc., 421 F.3d 96, 100
(2d Cir. 2005).
2
(ECF No. 19.) However, to date, plaintiff has
not submitted an opposition or otherwise
communicated with the Court. Accordingly,
the Court will treat the instant motion as
unopposed. Nevertheless, as set forth below,
the Court has independently evaluated the
grounds asserted by the State Defendants in
connection with their motion.
state a claim for malicious prosecution
because probable cause existed and plaintiff
could not show that the prosecution ended
with a favorable disposition; (3) there was no
evidence of any excessive force or any
physical contact whatsoever between
plaintiff and New York State employees in
connection with plaintiff’s arrest; (4) there is
no cause of action for intentional infliction of
emotional distress against the State of New
York; (5) plaintiff’s claim for negligent
infliction of emotional distress was
duplicative of her other claims; and (6) the
court did not have jurisdiction over plaintiff’s
federal constitutional claims. (Id. at 5-7.)
II. STANDARD OF REVIEW
In reviewing a motion to dismiss pursuant
to Rule 12(b)(6), the Court must accept the
factual allegations set forth in the complaint
as true and draw all reasonable inferences in
favor of the plaintiff. See Cleveland v.
Caplaw Enters., 448 F.3d 518, 521 (2d Cir.
2006). “In order to survive a motion to
dismiss under Rule 12(b)(6), a complaint
must allege a plausible set of facts sufficient
‘to raise a right to relief above the speculative
level.’” Operating Local 649 Annuity Trust
Fund v. Smith Barney Fund Mgmt. LLC, 595
F.3d 86, 91 (2d Cir. 2010) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555
(2007)). This standard does not require
“heightened fact pleading of specifics, but
only enough facts to state a claim to relief that
is plausible on its face.” Twombly, 550 U.S.
at 570.
In the instant action, plaintiff asserts that
she suffered
[i]njuries related to event include[d]
but not limited to pain to mid-lower
back, left shoulder, right wrist,
intentional false arrest, intentional
false
imprisonment,
malicious
prosecution,
denial
of
equal
protection, deprivation of due
process, fraud, denial of medical care,
unlawful search and seizure,
excessive force, assault and battery,
harassment, intentional infliction of
emotional distress, damage to
reputation, embarrassment and other
civil rights violations subject to the
United States Constitution.
The Supreme Court clarified the
appropriate pleading standard in Ashcroft v.
Iqbal, setting forth two principles for a
district court to follow in deciding a motion
to dismiss. 556 U.S. 662 (2009). First,
district courts must “identify[] pleadings that,
because they are no more than conclusions,
are not entitled to the assumption of truth.”
Id. at 679. “While legal conclusions can
provide the framework of a complaint, they
must be supported by factual allegations.” Id.
Second, if a complaint contains “wellpleaded factual allegations, a court should
assume their veracity and then determine
whether they plausibly give rise to an
entitlement to relief.” Id.
(Compl. ¶ 16.) She seeks $50 million in
damages and injunctive relief. (Id. ¶ 17.)
B. Procedural History
Plaintiff commenced this action on June
11, 2015. (ECF No. 1.) On August 22, 2016,
the State Defendants filed a motion to dismiss
for failure to state a claim. (ECF No. 20.)
According to the briefing schedule
established by the Court, plaintiff’s
opposition was due on September 22, 2016.
3
under Rule 201 of the Federal Rules
of Evidence.
Where, as here, the plaintiff is proceeding
pro se, “a court is obliged to construe [her]
pleadings liberally, particularly when they
allege civil rights violations.” McEachin v.
McGuinnis, 357 F.3d 197, 200 (2d Cir.
2004). Nevertheless, a pro se plaintiff’s
complaint, while liberally interpreted, still
must “‘state a claim to relief that is plausible
on its face.’” Mancuso v. Hynes, 379 F.
App’x 60, 61 (2d Cir. 2010) (quoting Iqbal,
556 U.S. at 678); see also Harris v. Mills, 572
F.3d 66, 72 (2d Cir. 2009) (applying
Twombly and Iqbal to pro se complaint).
In re Merrill Lynch & Co., 273 F. Supp. 2d
351, 356-57 (S.D.N.Y. 2003) (internal
citations omitted), aff’d in part and vacated
in part on other grounds sub nom. Dabit v.
Merrill Lynch, Pierce, Fenner & Smith, Inc.,
395 F.3d 25 (2d Cir. 2005), vacated on other
grounds, 547 U.S. 71 (2006); see also Cortec
Indus., Inc. v. Sum Holding L.P., 949 F.2d 42,
48 (2d Cir. 1991) (“[T]he district court . . .
could have viewed [the documents] on the
motion to dismiss because there was
undisputed notice to plaintiffs of their
contents and they were integral to plaintiffs’
claim.”); Brodeur v. City of N.Y., No. 04 Civ.
1859, 2005 WL 1139908, at *2-3 (E.D.N.Y.
2005) (stating court could consider
documents within the public domain on a
Rule 12(b)(6) motion to dismiss).
In deciding an unopposed motion to
dismiss, the Court is to “assume the truth of a
pleading’s factual allegations and test only its
legal sufficiency. Thus, although a party is of
course to be given a reasonable opportunity
to respond to an opponent’s motion, the
sufficiency of a complaint is a matter of law
that the court is capable of determining based
on its own reading of the pleading and
knowledge of the law.” McCall v. Pataki,
232 F.3d 321, 322-23 (2d Cir. 2000) (citation
omitted).
III. DISCUSSION
The State Defendants argue that
plaintiff’s claims against them must be
dismissed for the following reasons: (1)
plaintiff failed to properly serve the State
Defendants; (2) her claims are barred by the
doctrine of collateral estoppel; (3) her claims
are barred by the doctrine of res judicata; (4)
plaintiff cannot show that the State
Defendants acted without probable cause; (5)
plaintiff cannot show that the State
Defendants were objectively unreasonable in
effectuating her arrest; (6) plaintiff has not
stated plausible claims under 42 U.S.C. §§
1983, 1986, and 1988; (7) plaintiff’s claims
for battery, assault, and intentional infliction
of emotional distress are time-barred; and (8)
the State Defendants are entitled to qualified
immunity.
The Court further notes that in
adjudicating this motion, it is entitled to
consider:
(1) facts alleged in the complaint and
documents attached to it or
incorporated in it by reference, (2)
documents ‘integral’ to the complaint
and relied upon in it, even if not
attached or incorporated by reference,
(3) documents or information
contained in defendant's motion
papers if plaintiff has knowledge or
possession of the material and relied
on it in framing the complaint, (4)
public disclosure documents required
by law to be, and that have been, filed
with the Securities and Exchange
Commission, and (5) facts of which
judicial notice may properly be taken
For the reasons set forth below, the Court
concludes that plaintiff’s claims for false
arrest/false
imprisonment,
malicious
prosecution, unlawful search and seizure, and
4
the same party or his privy and of promoting
judicial economy by preventing needless
litigation.” Parklane Hosiery Co., Inc. v.
Shore, 439 U.S. 322, 326 (1979) (footnote
omitted). “Under New York law, collateral
estoppel bars relitigation of an issue when (1)
the identical issue necessarily was decided in
the prior action and is decisive of the present
action, and (2) the party to be precluded from
relitigating the issue had a full and fair
opportunity to litigate the issue in the prior
action.” In re Hyman, 502 F.3d 61, 65 (2d
Cir. 2007). “The party seeking the benefit of
collateral estoppel bears the burden of
proving the identity of the issues, while the
party challenging its application bears the
burden of showing that he or she did not have
a full and fair opportunity to adjudicate the
claims involving those issues.” Khandhar v.
Elfenbein, 943 F.2d 244, 247 (2d Cir. 1991)
(citing Kaufman v. Eli Lilly & Co., 65 N.Y.2d
449 (1985)). Collateral estoppel generally
does not include a requirement that the party
against whom the plaintiff litigated in the
prior proceeding be the same party they
litigate against in the current proceeding. See
United States v. Mendoza, 464 U.S. 154, 158
(1984); see also Amadasu v. Bronx Lebanon
Hosp. Ctr., No. 03 Civ. 6450 (LAK) (AJP),
2005 WL 121746, at *8 (S.D.N.Y. 2005)
(“[T]he doctrine of collateral estoppel does
not require that the same parties are named in
the earlier action in order to apply to the
instant action.”).
excessive force are barred by collateral
estoppel based on the New York Court of
Claims’s prior ruling. In addition, the Court
determines that the intentional infliction of
emotional distress claim is time-barred.
Although the remaining claims for battery
and assault, insofar as they allege excessive
force with respect to the April 4, 2013
incident, fall within the three-year statutory
period for federal civil rights claims, they fail
to state a cause of action as currently pled.
Accordingly, the Court dismisses those
claims, but grants plaintiff leave to file an
amended complaint only as to the April 4,
2013 incident. 3
A. Collateral Estoppel
1. Applicable Law
“A court may dismiss a claim on res
judicata or collateral estoppel grounds on a
motion to dismiss, a motion for judgment on
the pleadings, or a motion for summary
judgment.” Swiatkowski v. Citibank, 745 F.
Supp. 2d 150, 168 (E.D.N.Y. 2010), aff’d,
446 F. App’x 360 (2d Cir. 2011).
“[C]ollateral estoppel . . . means simply that
when an issue of ultimate fact has once been
determined by a valid and final judgment,
that issue cannot again be litigated between
the same parties in any future lawsuit.”
Leather v. Eyck, 180 F.3d 420, 424 (2d Cir.
1999) (quoting Schiro v. Farley, 510 U.S.
222, 232 (1994)). “Collateral estoppel, like
the related doctrine of res judicata, has the
dual purpose of protecting litigants from the
burden of relitigating an identical issue with
With respect to the first element—
identity of issues—the advancing party must
show that “the issue to be decided in the
3
With respect to the State Defendants’ assertion that
the Court lacks personal jurisdiction over them due to
ineffective service—which is properly brought as a
Rule 12(b)(2), rather than a Rule 12(b)(6), motion—
the Court notes that a pro se litigant proceeding in
forma pauperis is “entitled to rely on service by the
U.S. Marshals.” Romandette v. Weetabix Co., 807
F.2d 309, 311 (2d Cir. 1986) (citation omitted). Thus,
“[g]ood cause under Rule 4(m) is established if the
fault for failure to serve lies with the U.S. Marshals.”
Lewal v. Wiley, 29 F. App’x 26, 28 n.2 (2d Cir. 2002).
Accordingly, the Court does not believe that it is
appropriate to grant the State Defendants’ motion to
dismiss on that ground at this juncture since the United
States Marshals effected service of plaintiff’s
summons and complaint in this action. (See ECF No.
15.)
5
second action is material to the first action or
proceeding and essential to the decision
rendered therein, and that it is the point
actually to be determined in the second action
or proceeding such that ‘a different judgment
in the second would destroy or impair rights
or interests established by the first.’”
D’Andrea v. Hulton, 81 F. Supp. 2d 440, 443
(W.D.N.Y. 1999) (quoting Schuykill Fuel
Corp. v. B. & C. Nieberg Realty Corp., 250
N.Y. 304, 307 (1929)). As to the second
element—full and fair opportunity to
litigate—courts generally consider the
following factors: “the nature of the forum
and the importance of the claim in the prior
litigation, the incentive and initiative to
litigate and the actual extent of the litigation,
the competence and expertise of counsel, the
availability of new evidence, the differences
in the applicable law, and the foreseeability
of future litigation.” Goodson v. Sedlack,
212 F. Supp. 2d 255, 257 (S.D.N.Y. 2002)
(Lynch, J.) (quoting Ryan v. New York
Telephone Co., 62 N.Y.2d 494, 501 (1984)).
“The mere fact that the plaintiff proceeded
pro se does not sufficiently establish that he
was denied a full and fair opportunity to be
heard.” Wright v. Coughlin, No. 85 CIV.
0624 (LBS), 1987 WL 19633, at *2
(S.D.N.Y. Nov. 5, 1987), aff’d, 868 F.2d
1268 (2d Cir. 1988).
(N.D.N.Y. Mar. 26, 2012); Wright, 1987 WL
19633, at *2. That the Court of Claims is
unable to consider federal constitutional
causes of action is of no moment if the issues
raised before it implicate the same operative
facts at bar in the subsequent litigation. See
Wright, 1987 WL 19633, at *2 (“Although,
the Court of Claims never considered the
action as a civil rights issue nor as one against
the individual officers, the Court of Claims
did conclusively resolve the same set of facts
on which both claims exist. Whether or not
the claim is characterized as negligence or as
a violation of civil rights, the issues are the
same—did the officers assault Mr. Wright
and may Mr. Wright recover for the alleged
property loss? These issues were decided by
the Court of Claims and are dispositive of the
action before us today. The Court of Claims
determined that the evidence was insufficient
to prove that an assault had occurred and that
no award could be made for property loss.”).
Moreover, “[c]laims for false arrest or
malicious prosecution, brought under § 1983
to vindicate the Fourth and Fourteenth
Amendment right to be free from
unreasonable seizures, are ‘substantially the
same’ as claims for false arrest or malicious
prosecution under state law.” Jocks v.
Tavernier, 316 F.3d 128, 134 (2d Cir. 2003);
see also Crews v. Cty. of Nassau, 996 F.
Supp. 2d 186, 203 (E.D.N.Y. 2014) (“Under
New York law, ‘the tort of false arrest is
synonymous
with
that
of
false
imprisonment,’ and courts use that tort to
analyze an alleged Fourth Amendment
violation in the Section 1983 context.”
(citation omitted)).
2. Analysis
As discussed above, the New York Court
of Claims found that probable cause existed
to support plaintiff’s June 14, 2012 arrest,
and courts have correctly and “repeatedly
held that a [plaintiff] may not bring a § 1983
claim against individual officers where [s]he
has previously lost at trial against the State in
the Court of Claims on state law claims
arising out of the identical alleged incident.”
Goodson, 212 F. Supp. 2d at 258; see also,
e.g., Rivera v. Patnode, No. 9:11-CV-0532
MAD/ATB, 2012 WL 1029661, at *5
Accordingly, the State Defendants have
carried their burden because the Court of
Claims’s determination that probable cause
existed to arrest plaintiff precludes relitigation of that issue in the instant action.
Further, that finding is dispositive of
plaintiff’s constitutional claims concerning
6
Claims are identical to the issues raised in the
instant action and dispositive of plaintiff’s
federal civil rights claims for false arrest,
malicious prosecution, unlawful search and
seizure, and excessive force with respect to
the June 14, 2012 arrest. Because plaintiff
had a full and fair opportunity to litigate those
issues in the Court of Claims, those claims
are barred by collateral estoppel and are
dismissed with prejudice. 6
her June 14, 2012 arrest. As the Court of
Claims noted in its decision, the existence of
probable cause is “a complete defense to a
cause of action for false arrest,” 4 McClinton
v. Henderson, No. 13-CV-3335 (JFB)
(GRB), 2014 WL 2048389, at *5 (E.D.N.Y.
May 19, 2014) (quoting Feinberg v. Saks &
Co., 56 N.Y.2d 206, 210 (1982)), and thus for
false imprisonment, as well, Crews, 996 F.
Supp. 2d at 203. Probable cause also bars a
claim for malicious prosecution. Stansbury
v. Wertman, 721 F.3d 84, 94-95 (2d Cir.
2013). 5 Finally, insofar as plaintiff alleges
that the State Defendants used excessive
force in connection with her June 14, 2012
arrest, the Court of Claims also decided that
that contention lacked merit. (Hallak Decl.,
Ex. C, at 6.)
B. Limitations Bar
1. Applicable Law
There exists no federal statute of
limitations for Section 1983 claims. See
Wilson v. Garcia, 471 U.S. 261, 266-67
(1985), superseded by statute on other
grounds as recognized in Jones v. R.R.
Donnelley & Sons Co., 541 U.S. 369, 377-81
(2004). “[W]here state law provides multiple
statutes of limitations for personal injury
actions, courts considering § 1983 claims
should borrow the general or residual statute
for personal injury actions.” Owens v. Okure,
488 U.S. 235, 249-50 (1989) (footnote
omitted). In New York State, the statute of
limitations for actions brought pursuant to
Section 1983 is three years. Shomo v. City of
N.Y., 579 F.3d 176, 181 (2d Cir. 2009) (“The
statute of limitations for claims brought
under Section 1983 is governed by state law,
and in this case is the three-year period for
personal injury actions under New York State
law.”). “While state law supplies the statute
Because plaintiff has not opposed the
State Defendants’ motion to dismiss, she has
not carried her burden of showing that she
lacked a full and fair opportunity to litigate
these claims in the prior litigation.
Nevertheless, in an abundance of caution, the
Court has reviewed the record before it and
determined that, despite plaintiff’s pro se
status, none of the factors delineated above
favors her. There is no indication that
plaintiff did not have a full and fair
opportunity to litigate these issues in the New
York Court of Claims.
Accordingly, the Court concludes that the
probable cause and excessive force
determinations by the New York Court of
4
In addition, because probable cause existed to arrest
plaintiff, any search or seizure incident to that arrest
was also lawful. See Maryland v. King, 133 S. Ct.
1958, 1970-71 (2013).
established, there is no constitutional right, whether
under the Fourth or Fourteenth Amendment, to
demand further investigation before arrest or
prosecution.”)
5
To the extent that plaintiff claims her constitutional
rights were violated by a failure to investigate her
complaint to the Inspector General about the June 14,
2012 arrest, that claim is also barred by a probable
cause finding. See Virgil v. Town of Gates, 455 F.
App’x 36, 40 (2d Cir. 2012) (“If probable cause is
6
As a result of this determination, the Court need not,
and does not, reach the State Defendants’ alternative
arguments that these claims fail due to res judicata,
existence of probable cause, failure to state a claim, or
qualified immunity.
7
barred by the one-year statutes of limitations
that apply to those causes of action under
New York law. (Defs.’ Br. at 21-22). Insofar
as plaintiff pleads those claims under New
York law, the State Defendants are correct,
because the one-year limitations period
began to run from the dates of the tortious
conduct at issue—the June 14, 2012 arrest
and the April 4, 2013 alleged assault—and
terminated before plaintiff filed this action on
June 11, 2015. See Lettis v. U.S. Postal
Service, 39 F. Supp. 2d 181, 204 (E.D.N.Y.
1998) (“Causes of action for assault and
battery accrue immediately upon the
occurrence of the tortious act . . . .”); Neufeld
v. Neufeld, 910 F. Supp. 977, 982 (S.D.N.Y.
1996) (intentional infliction of emotional
distress claims accrue upon the last wrongful
act). 7
of limitations for claims under § 1983,
federal law determines when a federal claim
accrues. The claim accrues when the plaintiff
knows or has reason to know of the harm.”
Connolly v. McCall, 254 F.3d 36, 41 (2d Cir.
2001) (quoting Eagleston v. Guido, 41 F.3d
865, 871 (2d Cir. 1994)); see also Shomo, 579
F.3d at 181 (“A Section 1983 claim
ordinarily accrues when the plaintiff knows
or has reason to know of the harm.”); Rene v.
Jablonski, No. 08 Civ. 3968 (JFB) (AKT),
2009 WL 2524865, at *5 (E.D.N.Y. Aug. 17,
2009) (“Federal law governs the question of
when a Section 1983 claim accrues. Under
federal law, ‘the time of accrual is that point
in time when the plaintiff knows or has
reason to know of the injury which is the
basis of his action.’”) (quoting Covington v.
City of N.Y., 171 F.3d 117, 121 (2d Cir. 1999)
(alterations and citations omitted)).
However, excessive force claims under
Section 1983 have a three-year statute of
limitations. See Horn v. Politopoulos, 628 F.
App’x 33, 34 (2d Cir. 2015); Perez v. Police
Dep’t of City of N.Y., 872 F. Supp. 49, 51
(S.D.N.Y. 1994), aff’d, 71 F.3d 405 (2d Cir.
1995). Thus, assuming that plaintiff is
asserting an excessive force claim under
Section 1983, then the three-year limitations
period discussed above would apply and
would not bar a constitutional cause of action
arising from the alleged April 4, 2013 assault,
which occurred less than three years before
plaintiff commenced suit on June 11, 2015. 8
Although the statute of limitations is an
affirmative defense, it “may be raised by a
pre-answer motion to dismiss under Rule
12(b)(6), without resort to summary
judgment procedure, if the defense appears
on the face of the complaint.” Pani v. Empire
Blue Cross Blue Shield, 152 F.3d 67, 74 (2d
Cir. 1998).
2. Analysis
The State Defendants argue that
plaintiff’s remaining claims for battery,
assault, and intentional emotional distress are
7
In addition, the Court has already determined supra
that collateral estoppel bars plaintiff from re-litigating
the Court of Claims’s determination that there was no
excessive force, or any physical contact at all,
involved in connection with the June 14, 2012 arrest.
it is barred under the apposite one-year statute of
limitations as discussed supra, which accrued on that
the last wrongful act was committed, see Neufeld, 910
F. Supp. at 982. Plaintiff has not alleged that a
continuing harm exists, see id., and the last wrongful
act on the face of the complaint is the alleged April 4,
2013 assault, which occurred more than one year prior
to commencement of the instant action. Accordingly,
plaintiff’s intentional infliction of emotional distress
claim is time-barred and dismissed with prejudice.
8
However, there is no federal civil rights cause of
action for infliction of emotional distress, see
Harrison v. Harlem Hosp., No. 05CIV.8271 (WHP),
2007 WL 2822231, at *4 (S.D.N.Y. Sept. 28, 2007),
aff’d, 364 F. App’x 686 (2d Cir. 2010), and insofar as
plaintiff pleads this claim under New York state law,
8
However, although plaintiff did not
oppose this motion and thus has not requested
leave to amend her complaint, the Court has
considered whether she should be afforded an
opportunity to do so. The Second Circuit
instructs that a district court should not
dismiss a pro se complaint “‘without granting
leave to amend at least once when a liberal
reading of the complaint gives any indication
that a valid claim might be stated.’” Cuoco
v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000)
(quoting Gomez v. USAA Fed. Sav. Bank, 171
F.3d 794, 795 (2d Cir. 1999)); see also
Aquino v. Prudential Life & Cas. Ins. Co.,
419 F. Supp. 2d 259, 278 (E.D.N.Y. 2005).
Rule 15(a)(2) of the Federal Rules of Civil
Procedure provides that a party shall be given
leave to amend “when justice so requires.”
Fed. R. Civ. P. 15(a)(2). “This relaxed
standard applies with particular force to pro
se litigants.” Pangburn v. Culbertson, 200
F.3d 65, 70 (2d Cir. 1999).
In sum, the applicable three-year statute
of limitations does not preclude plaintiff from
asserting that Friesm used excessive force
against her on April 4, 2013.
C. Failure to State a Claim
In the alternative, the State Defendants
argue that plaintiff has failed to state a cause
of action pursuant to 42 U.S.C. §§ 1983,
1986, and 1988 for excessive force pertaining
to the alleged April 4, 2013 assault. (Defs.’
Br. at 10 n.5, 13-15.) They assert that
“[p]laintiff vaguely alleges excessive force
with respect to the incident,” and that the
“facts behind this incident are wholly
conclusory” because plaintiff “provides no
details of the force alleged and why it was
disproportionate to the circumstances.” (Id.
at 14.)
Excessive force by a state actor violates
the Fourth Amendment “if it is objectively
unreasonable ‘in light of the facts and
circumstances confronting [him], without
regard to [his] underlying intent or
motivation.’” Harley v. Suffolk Cty. Police
Dep’t, No. 09-CV-2897 (JFB) (ARL), 2012
WL 642431, at *8 (E.D.N.Y. Feb. 28, 2012)
(quoting Maxwell v. City of N.Y., 380 F.3d
106, 108 (2d Cir. 2004). “More specifically,
‘[d]etermining whether the force used to
effect a particular seizure is “reasonable”
under the Fourth Amendment requires a
careful balancing of the nature and quality of
the intrusion on the individual’s Fourth
Amendment
interests
against
the
countervailing governmental interests at
stake.’”
Id. (quoting Graham v.
Connor, 490 U.S. 386, 396 (1989)). Here,
plaintiff’s conclusory claim of excessive
force does not allow the Court to determine
whether a plausible claim exists under the
applicable standard and, therefore, must be
dismissed.
With respect to the excessive force claim,
plaintiff may be able to supply additional
allegations regarding the incident on April 4,
2013 to articulate a plausible cause of action.
Accordingly, plaintiff is allowed to file an
amended complaint addressing those issues.
IV. CONCLUSION
For the foregoing reasons, the State
Defendants’ motion to dismiss (ECF No. 20)
is granted in full, and plaintiff’s claims are
dismissed with leave to amend. Plaintiff
must file an amended complaint within thirty
(30) days of the date of this Memorandum
and Order. The amended complaint must not
include any claims that the Court has
dismissed with prejudice—i.e., claims for
false arrest, malicious prosecution, unlawful
search and seizure, and excessive force in
connection with the June 14, 2012 arrest; and
New York state tort claims for assault,
battery, and intentional infliction of
9
emotional distress, which are time-barred.
Plaintiff is warned that failure to file an
amended complaint will result in the
dismissal of this action with prejudice, and
the case will be closed.
If the State Defendants wish to make a
second motion to dismiss, assuming an
amended complaint is so filed, the Court will
set a briefing schedule for a second motion at
the appropriate time.
The Court certifies pursuant to 28
U.S.C. § 1915(a)(3) that any appeal from this
Memorandum and Order would not be taken
in good faith, and therefore in forma pauperis
status is denied for the purpose of any appeal.
See Coppedge v. United States, 369 U.S. 438,
444-45 (1962).
SO ORDERED.
________________________
JOSEPH F. BIANCO
United States District Judge
Dated:
January 6, 2017
Central Islip, NY
***
Plaintiff Ann Marie Schiff, pro se, 7 Mystic
Lane, Northport, New York 11768. The
State Defendants are represented by Daniel
Scott Hallak, Assistant Attorney General, on
behalf of Eric T. Schneiderman, New York
State Attorney General, 300 Motor Parkway,
Suite 230, Hauppauge, New York 11788.
10
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