Lluberes et al v. City of Troy et al

Filing 76

MEMORANDUM-DECISION and ORDER granting in part and denying in part 60 Motion for Summary Judgment; denying 62 Motion for Summary Judgment. ORDERED that plaintiffs' 62 motion for summary judgment is DENIED in its entirety. It is further ORDERED that defendants' 60 motion for summary judgment is GRANTED in part and DENIED in part. ORDERED that all claims against Anderson, Castle, Dean, Hoffman, Pirro, Negron, Evangelista, Salvatore, Sarris, Tutunjian, Troy PD, John and Jane Doe defendants, and individual defendants in their official capacities be dismissed from this action. ORDERED that Gillette's trial will proceed as scheduled on 4/28/2014 at 9:30 a.m. Upon the conclusion of that trial, the Court will set a dat e for Llubere's trial. Signed by Magistrate Judge Christian F. Hummel on 3/21/2014. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O) (dpk)

Delaney v. City of Albany, Slip Copy (2014)

2014 WL 701637
Only the Westlaw citation is currently available.
United States District Court,
N.D. New York.
Clarence DELANEY, Jr., Plaintiff,
v.
CITY OF ALBANY; Adam Mantei, individually
and as City of Albany Police Officer; and
Police Officer Maioriello, individually and
as City of Albany Police Officer, Defendants.
No. 1:12–cv–1575 (LEK/RFT).

|

Feb. 24, 2014.

Attorneys and Law Firms
Clarence Delaney, Jr., Sonyea, NY, pro se.
Eric P. Sugar, John Joseph Reilly, City of Albany Corporation
Counsel, Albany, NY, for Defendants.

the scene of a car accident and continued toward his home.
Id. Defendant Mantei responded to the accident, saw Plaintiff
about halfway down the block, and yelled to Plaintiff, “who
was driving this car?” Id. Defendant Mantei then told Plaintiff
to “come here now.” Id. at 5. Plaintiff continued to walk
away from Defendant Mantei, who chased Plaintiff and
threw him to the ground. Id. Other police officers, including
Defendant Maioriello, responded to the accident. Id. The
Individual Defendants dragged Plaintiff on the sidewalk,
removed Plaintiff's pants, and forced Plaintiff to remain on
the sidewalk pantless for about thirty minutes. Id. Plaintiff
sustained bruises to his knees and an injury to his alreadydisabled right arm. Id. The Individual Defendants refused
Plaintiff's requests for medical treatment for his injuries. Id.
At the police station “booking,” police searched Plaintiff's
belongings and found a credit card and New York State
benefits card, both of which had been previously reported
stolen. See Dkt. No. 23–8 (“Police Reports”). 2 Police
added criminal possession of stolen property charges against
Plaintiff, to which he later pled guilty, while charges related
to the accident were not pursued. See Resp. at 7.

Opinion
MEMORANDUM–DECISION and ORDER
LAWRENCE E. KAHN, District Judge.
I. INTRODUCTION
*1 Before the Court is Defendants Police Officer Adam
Mantei; Police Officer Maioriello (together, the “Individual
Defendants”); and City of Albany's (“City”) (collectively,
“Defendants”) Motion for failure to state a claim and for
judgment on the pleadings and attached memorandum of law.
Dkt. Nos. 23 (“Motion”); 23–11 (“Memorandum”). Plaintiff
Clarence Delaney, Jr. (“Plaintiff”) filed a Complaint-which
he later amended-asserting causes of action for false arrest;
excessive force; illegal search and seizure; failure to train
and supervise officers; “loss of life, liberty, and property”;
as well as common-law assault. Dkt. Nos. 1 (“Complaint”);
20 (“Amended Complaint”). Defendants filed an Answer
and their Motion. Dkt. No. 21 (“Answer”); Mot. Plaintiff
submitted a Response brief, and Defendants a Reply. Dkt.
Nos. 32 (“Response”); 33 (“Reply”). For the following
reasons, Defendants' Motion is granted in part.

II. BACKGROUND 1
In November 2011, Plaintiff was walking home on Clinton
Avenue in Albany. Am. Compl. at 4. Plaintiff walked past

III. STANDARD OF REVIEW
To survive a motion to dismiss pursuant to Federal Rule
of Civil Procedure 12(b)(6), 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, 663, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570,
127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)); see also FED. R.
CIV. P. 12(b)(6). A court must accept as true the factual
allegations contained in a complaint and draw all inferences
in a plaintiff's favor. See Allaire Corp. v. Okumus, 433 F.3d
248, 249–50 (2d Cir.2006). A complaint may be dismissed
pursuant to Rule 12(b)(6) only where it appears that there
are not “enough facts to state a claim to relief that is
plausible on its face.” Twombly, 550 U.S. at 570. Plausibility
requires “enough fact[s] to raise a reasonable expectation that
discovery will reveal evidence of [the alleged misconduct].”
Id. at 556. The plausibility standard “asks for more than a
sheer possibility that a defendant has acted unlawfully.” Iqbal,
556 U.S. at 678 (citing Twombly, 550 U.S. at 556). “[T]he
pleading standard Rule 8 announces does not require ‘detailed
factual allegations,’ but it demands more than an unadorned,
the-defendant-unlawfully-harmed-me accusation.” Id. (citing
Twombly, 550 U.S. at 555). Where a court is unable to infer
more than the mere possibility of the alleged misconduct
based on the pleaded facts, the pleader has not demonstrated

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Delaney v. City of Albany, Slip Copy (2014)

that she is entitled to relief and the action is subject to
dismissal. See id . at 678–79.
*2 A motion brought under Rule 12(c) is similar to a 12(b)
(6) motion, except that it is brought after the close of the
pleadings, implicating the pleadings as a whole. See 5 Charles
A. Wright & Arthur R. Miller, Federal Practice & Procedure,
§ 1367 (3d ed.2013). The Rule 12(c) motion attempts to
resolve claims based solely upon agreed-upon facts and issues
of law, and includes judicially noticed materials. See In re
Thelen, 736 F.3d 213, 218 (2d Cir.2013).

IV. DISCUSSION
Defendants make several arguments in support of the
dismissal of Plaintiff's claims: (1) Plaintiff's guilty plea
prevents him from now arguing that the Individual
Defendants' seizure, search, and arrest of Plaintiff were
unconstitutional; (2) Plaintiff pled only a de minimis use of
force by the officers; (3) Plaintiffs' allegations, considered as
a whole, do not meet the standard for municipal liability; (4)
the Individual Defendants are entitled to qualified immunity;
(5) Plaintiff's claim for common-law assault does not comply
with state jurisdictional requirements.

A. False Arrest and Illegal Search and Seizure
A § 1983 plaintiff cannot bring a civil suit that “necessarily
impl[ies] the invalidity of his conviction or sentence” until she
has succeeded in overturning that conviction through direct
appeal or a writ of habeas corpus. Heck v. Humphrey, 512 U.S.
477, 487, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). In general,
a guilty plea is equivalent to a conviction on the underlying
charge to which the criminal defendant pleads guilty. Saddler
v. United States, 531 F.2d 83, 85 (2d Cir.1976). A false arrest
claim “derives from [the] Fourth Amendment right to remain
free from unreasonable seizures.” Jaegly v. Couch, 439 F.3d
149, 151 (2d Cir.2006).
Heck rested upon the premise that “Congress has determined
that habeas corpus is the appropriate remedy for state
prisoners attacking the validity of the fact or length of their
confinement, and that specific determination must override
the general terms of § 1983.” Heck, 512 U.S. at 482 (quoting
Preiser v. Rodriguez, 411 U.S. 475, 490, 93 S.Ct. 1827, 36
L.Ed.2d 439 (1973)). Heck bars all § 1983 actions that would
necessarily implicate the validity of the plaintiff's conviction,
regardless of the relief sought. Heck, 512 U.S. at 483.
However, Heck test does not apply to all issues surrounding
search, seizure, and arrest. See Mem. at 11. For example,

the Supreme Court contemplated that an unlawful search and
seizure could be challenged in a § 1983 action if the fruits
of that search could have been lawfully discovered under the
independent source and inevitable discovery doctrines. See
Heck, 512 U.S. at 487 n. 7.
The Court must determine whether the validity of Plaintiff's
seizure and arrest necessarily implicates his guilty plea and
resulting conviction. “In a case where the only evidence for
conviction was obtained pursuant to an arrest, recovery in a
civil case based on false arrest would necessarily impugn any
conviction resulting from use of that evidence.” Covington
v. City of N.Y., 171 F.3d 117, 123 (2d Cir.1999). Here,
Plaintiff pled guilty to criminal possession of a stolen credit
card. Plaintiff states that this credit card was not discovered
exactly at the time of his initial arrest. See Resp. at 7.
Rather, the card was found-ostensibly pursuant to a search
to inventory Plaintiff's personal property-later that night. See
Police Reports.
*3 However, because the police inventory search revealing
the stolen credit card would only have been valid if the
underlying arrest were valid, see, e.g., Illinois v. Lafayette,
462 U.S. 640, 643, 103 S.Ct. 2605, 77 L.Ed.2d 65
(1983) (narrowing discussion of the scope and legality of
inventory searches to those “person[s] under lawful arrest”),
Plaintiff cannot in any regard challenge the underlying arrest
stemming from his putative involvement in the car accident
as unlawful without also invalidating the inventory search.
Similarly, Plaintiff cannot challenge the search incident to
arrest, even though police did not discover the credit card
in that search, because Plaintiff would need to prove that
the arrest was unlawful as a necessary element. As a result,
Plaintiff's claim for false arrest is Heck barred until such
time as Plaintiff successfully challenges his conviction. 3 The
Court accordingly dismisses that claim without prejudice.

B. Excessive Force
Defendants next argue that their de minimis use of force
was objectively reasonable. “Claims that law enforcement
officers have used excessive force ... in the course of an arrest,
investigatory stop, or other ‘seizure’ ... are analyzed under
the Fourth Amendment and its ‘reasonableness' standard.”
Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865,
104 L.Ed.2d 443 (1989). There is no excessive force where,
“accepting all of the allegations as true, it is clear that the force
used by the officers was objectively reasonable under the
circumstances.” Messina v. Mazzeo, 854 F.Supp. 116, 128–

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Delaney v. City of Albany, Slip Copy (2014)

29 (E.D.N.Y.1994). The test weighs the “nature and quality of
the intrusion on the individual's Fourth Amendment interests
against the countervailing governmental interests at stake.”
Graham v. Conner 490 U.S. 386, 396, 109 S.Ct. 1865, 104
L.Ed.2d 443 (1989). A de minimis use of force, without an
alleged injury “will rarely suffice to state a constitutional
claim”; Plaintiff must plead both force and injury. Roman v.
Howarth, 998 F.2d 101, 105 (2d Cir.1993).
Defendants cite cases in which injury was alleged without
force, see Mem. at 13; Betts v. Shearman, No. 12 Civ. 3195,
2013 WL 2946369, at *11 (S.D.N.Y. Jan. 24, 2013); Wims v.
N.Y. City Police Dep't, 10 Civ. 6128, 2011 WL 2946369, at
*4 (S.D.N.Y. July 20, 2011), and in which force was alleged
without specified injury, see Mem. at 13; Guerrero v. City
of N.Y., 12 Civ. 2916, 2013 WL 673872, at *5 (S.D.N.Y.
Feb.25, 2013); Acosta v. City of N.Y., 11 Civ. 856, 2012 WL
1506954, at *10–11 (S.D.N.Y. Apr.26, 2012). These cases
are inapposite, because Plaintiff cites both a particular use
of force-the tackling, dragging, and removal of Plaintiff's
pants-and a particular injury-cuts and scrapes, as well as the
aggravation of his already-disabled arm. Taking Plaintiff's
allegation that he was not involved in the accident as true, it
was not objectively reasonable for the Individual Defendants
to seize Plaintiff by tackling him. 4 Although probable cause
for a drunk driving arrest may exist where it is reasonable to
suspect that the Plaintiff was drunk, see Frank v. Police Dep't
of City of Eunice, 244 F.3d 137, 137 (5th Cir.2000) (finding
probable cause for arresting man that was lying near the scene
of an car accident and appeared intoxicated), the Court cannot
draw such an inference at the motion to dismiss stage.
*4 Defendants argue that the Police Reports establish
that the Individual Defendants' conduct was objectively
reasonable. This argument misconstrues the scope and effect
of judicial notice. In reviewing a 12(c) motion, the Court
accepts all of a plaintiff's factual allegations as true, and
resolves all inferences in his favor. In re Thelen, 736 F.3d at
218. The Court cannot take judicial notice of a police report
for the purpose of establishing the truth of the allegations
therein. See, e.g., Gordon v. City of N.Y., No. 10–cv–5148,
2012 WL 1068023, at *6 (E.D.N.Y. March 29, 2012).
Neither do the Individual Defendants' allegations establish
a qualified immunity defense. Qualified immunity is an
affirmative defense. Lee v. Sandberg, 136 F.3d 94, 101 (2d
Cir.1997). “The doctrine of qualified immunity entitles public
officials to freedom from suit for acts undertaken in their
official capacity if (1) their conduct does not violate clearly

established constitutional rights, or (2) it was objectively
reasonable for them to believe that their acts did not violate
those rights.” Martinez v. Simonetti, 202 F.3d 625, 633–
34 (2d Cir.2000). Significant emphasis should be placed
on whether or not the legality of the act is governed by
controlling Circuit precedent. See Richardson v. Selsky, 5
F.3d 616, 623 (2d Cir.1993). On a Rule 12 motion, the Court
must resolve all factual inferences in a plaintiff's favor-“not
only those that support his claim, but also those that defeat
the immunity defense.” McKenna v. Wright, 386 F.3d 432,
436 (2d Cir.2004). Therefore, “[g]iven the factual nature of
this qualified immunity inquiry, ... it is rarely appropriate to
recognize the defense on a motion to dismiss.” Meserole St.
Recycling, Inc. v. City of N.Y., No. 06 Civ. 1773, 2007 WL
18679, at *8 (S.D.N.Y. Jan. 23, 2007).
In the Second Circuit, “[i]t is beyond dispute that the
right to be free from excessive force has long been
clearly established.” Green v. Montgomery, 219 F.3d 52,
59 (2d Cir.2000). Furthermore, the Court established above
that Defendants have not properly proved their conduct
“objectively reasonable.” Thus, the Court cannot grant
qualified immunity at this stage, and Plaintiff's claim for
excessive force may proceed.

C. Monell Claims
A municipal government may be sued under 42 U.S.C. § 1983
if the practices of its officials rise to the level of a “custom
or usage” that is attributable to the municipality. See Monell,
436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978); 42
U.S.C. § 1983. Inadequate police training can serve as a basis
for a Monell claim “only where the failure to train amounts
to deliberate indifference to the rights of persons with whom
the police come into contact.” City of Canton v. Harris, 489
U.S. 378, 388, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989). In
the Second Circuit, failure-to-train claims face a high bar:
The plaintiff must show that a
policymaker knows ‘to a moral
certainty’ that her employees will
confront a given situation.... Second,
the plaintiff must show that the
situation either presents the employee
with a difficult choice of the sort that
training will make less difficult or
that there is a history of employees
mishandling the situation.... Finally,
the plaintiff must show that the wrong
choice by the city employee will

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Delaney v. City of Albany, Slip Copy (2014)

frequently cause the deprivation of a
citizen's constitutional rights.
*5 Walker v. City of N.Y., 974 F.2d 293, 297–98 (2d
Cir.1992). Plaintiff alleges that, because he previously filed
an action for Fourth Amendment violations against the City,
he has sufficiently established a failure-to-train claim. See
Am. Compl. at 6–7; Resp. at 15–16. Plaintiff further asserts
that “the City of Albany has had numerous complaints by
citizens of this nature in the past decade.” Resp. at 15.
Plaintiff has not set forth specific allegations that tie the
alleged misconduct to a failure to train. Prior to the Court's
clarification of the pleading standard in Twombly and Iqbal,
the Second Circuit stated as dictum that a plaintiff would
be “unlikely [to] have information about the city's training
programs or about the cause of the misconduct at the pleading
stage, and therefore need only plead that the city's failure to
train caused the constitutional violation.” Amnesty America
v. Town of West Hartford, 361 F.3d 113, 130 n. 10 (2d
Cir.2004). However, several courts have declined to follow
Amnesty America in light of the Supreme Court's clarification
of the Rule 8 standard, requiring instead some direct proof
that the municipality's training programs are deficient. See,
e.g., Triano v. Town of Harrison, 895 F.Supp.2d 526, 539–
40 (S.D.N.Y.2012); Gauthier v. Kirkpatrick, No. 13–cv–187,
2013 WL 6407716, at *10 (D.Vt. Dec.9, 2013); Miller v.
Cnty. of Monroe, No. 11–cv–6219, 2013 WL 2180738, at *8
(W.D.N.Y. May 17, 2013); Simms v. City of N.Y., No. 10–cv–
3420, 2011 WL 4543051, at *2 n. 3 (E.D.N.Y. Sep.28, 2011).
Following the consensus in the Circuit, the two instances
of alleged misconduct with respect to Plaintiff's Fourth
Amendment rights are not enough to give rise to an inference
of deliberate indifference by the City of Albany because
Plaintiff has not alleged any facts to show that the City's
training is deficient. 5 The Court dismisses this claim without
prejudice.

D. Common–Law Assault
Under New York law, certain tort claims against
municipalities are permissible only upon proper service of
a notice of claim. See N.Y. GEN. MUN. LAW § 50–i(1).
Notices of claim must be served within 90 days of the date that
the claim accrued. See id. § 50–e(1). Courts have discretion
to grant requests to file late notices of claim only up to the
statute of limitations period-one year and ninety days from
the accrual of the claim-including after commencement of
an action if it falls within the limitations period. Pierson v.

City of N.Y., 56 N.Y.2d 950, 954–55, 453 N.Y.S.2d 615, 439
N.E.2d 331 (N.Y.1982). Requesting leave to file a late claim
is necessary once the appropriate period has passed. N.Y.
GEN. MUN. LAW § 50–e(5). Claims for assault accrue on
the date of the assault. McElveen v. Police Dep't of the City of
N.Y., 70 A.D.2d 858, 418 N.Y.S.2d 49, 50 (App.Div.1979).
Plaintiff's detention did not toll the filing period. Therefore,
Plaintiff's notice was filed outside of the statutory period. See
Resp. at 17 (“Plaintiff sent a notice of intent to file a claim ...
two days before he was due to be sentenced on October 18,
2012”); Am. Compl. at 4 (stating that the putative assault
occurred in November of 2011). Plaintiff has not moved the
Court for permission to serve a late notice of claim and,
even construing Plaintiff's Response as a motion for leave
to file late notice of claim, that request would be outside
the limitations period. See Resp. Therefore, the Court must
dismiss Plaintiff's claims for assault against the City, see
Grullon v. City of N.Y., 222 A.D.2d 257, 635 N.Y.S.2d 24, 25
(App.Div.1995), and against the individual police officers in
their official capacities, see N.Y. GEN. MUN. LAW 50 j.
*6 However, whether the notice of claim requirement
applies to the Individual Defendants in their individual
capacities is more complicated. A notice of claim must be
served on the municipal employee only if the municipality
has a statutory duty to indemnify the officer for the putative
violation. See Grays v. City of New Rochelle, 354 F.Supp.2d
323, 327 (S.D.N.Y.2005); D'Angelo v. City of N.Y., 929
F.Supp. 129, 135 (S.D.N.Y.1996). Defendants have made
no claim that a specific statutory provision indemnifies the
Individual Defendants; therefore, the Court must examine
N.Y. General Municipal Law 50 j in order to determine if
municipalities indemnify the Individual Defendants' conduct
here. The City must “assume the liability ... any duly
appointed police officer ... for any negligent act or tort,”
while the officer “acts in the performance of his duties and
within the scope of his employment .” N.Y. GEN. MUN.
LAW 50 j. A law enforcement defendant acts within the scope
of his employment when he is “engaged in the immediate
and actual performance of a public duty imposed by law
and such public duty performed was for the benefit of
the citizens of the community.” Id. Courts have previously
interpreted the putative intentional torts of police officers
in furtherance of making an arrest as being within the
scope of employment. See LaGrange v. Ryan, 142 F.Supp.2d
287, 295–96 (N.D.N.Y.2001). Here, because the alleged tort
occurred in the process of law enforcement, specifically
making an arrest, the statute would require indemnity.

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Delaney v. City of Albany, Slip Copy (2014)

Therefore, the Court must also dismiss the assault claim as to
the Individual Defendants in their individual capacities.

V. CONCLUSION
Accordingly, it is hereby:
ORDERED, that Defendant's Motion (Dkt. No. 23) to
dismiss and for judgment on the pleadings is GRANTED in
part and DENIED in part. Plaintiff's claims for failure to
train police officers, false arrest and illegal search and seizure,
and emotional distress are DISMISSED without prejudice.

Plaintiff's claim for assault (Am.Compl.¶ 7g) is DISMISSED
with prejudice; and it is further
ORDERED, that Defendant City of Albany is DISMISSED
from this action;
ORDERED, that the Clerk serve a copy of this
Memorandum–Decision and Order on all parties in
accordance with the Local Rules.
IT IS SO ORDERED.

Footnotes

1

2

3
4
5

The Court accepts the Plaintiff's factual allegations as true in a Rule 12(b)(6) motion for failure to state a claim. See Tellabs, Inc. v.
Makor Issues & Rights, Inc., 551 U.S. 308, 309, 127 S.Ct. 2499, 168 L.Ed.2d 179 (2007). The standard for a Rule 12(c) motion is
the same. See In re Thelen, 736 F.3d 213, 218 (2d Cir.2013). Thus, the allegations in the Amended Complaint form the sole basis
for this section.
The Court judicially notices the Police Reports for the limited purpose of determining that Plaintiff pled guilty to a charge that did
not directly result from his initial arrest. The Police Reports are not otherwise judicially noticeable. See Pina v. Henderson, 752
F.2d 47, 50 (recognizing that judicial notice is appropriate not for issues “critical ... to the ultimate disposition of the case,” but for
matters “beyond controversy”).
The limitations period for the false arrest claim is tolled until Plaintiff successfully challenges his conviction. See Heck, 512 U.S. at
489–90. Thus, if Plaintiff succeeds in his pending state court action or subsequent federal habeas petition, he may then promptly file
suit for the false arrest claim without facing statute-of-limitations issues.
Because a factfinder need not make any findings on whether the Individual Defendants had probable cause to arrest Plaintiff, allowing
her to consider whether probable cause existed as one factor in determining whether the level of force was objectively reasonable
does not “necessarily implicate the validity of Plaintiff's confinement.”
The Court acknowledges that pleading a Monell failure-to-train claim under the modern interpretation of Rule 8 is a daunting task.
Indeed, it appears difficult for a private citizen to distinguish between unlawful police action in contravention of established policy,
and unlawful police action pursuant to established policy at the time of pleading.

End of Document

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