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)

Devarnne v. City of Schenectay, Not Reported in F.Supp.2d (2011)

2011 WL 219722
Only the Westlaw citation is currently available.
United States District Court,
N.D. New York.
Steven DEVARNNE, Plaintiff,
v.
The CITY OF SCHENECTAY; Ryan Kent;
Individually and as Agent and/or Employee and
Police Officer of the City of Schenectady and the
City of Schenectady Police Department; C. Semione
Individually and as an Agent and/or Employee and
Police Officer of the City of Schenectady and the
City of Schenectady Police Department, Defendants.
No. 1:10–cv–1037.

|

Jan. 21, 2011.

Attorneys and Law Firms
Kevin A. Luibrand, Luibrand Law Firm, PLLC, Latham, NY,
for Plaintiff.
Michael J. Murphy, Carter, Conboy Law Firm, Albany, NY,
for Defendants.
Opinion
DECISION and ORDER
THOMAS J. McAVOY, Senior District Judge.
*1 Plaintiff Steven Devarnne commenced the instant action
pursuant to 42 U.S.C. § 1983 alleging violations of his
constitutional rights and also asserting various state law
claims arising out of his arrest and prosecution. Presently
before the Court are: (1) Defendant's motion to dismiss
pursuant to Fed.R.Civ.P. 12(b)(6); and (2) Plaintiff's crossmotion for leave to amend.

I. FACTS 1
According to the proposed Amended Complaint, on
September 4, 2009, at approximately 9:20 p.m., Defendants
Kent and Semione, police officers with the City of
Schenectady Police Department, had contact with Plaintiff
outside the Schenectady High School. At approximately 9:25
p.m., Plaintiff was leaving a high school football game
and was approaching his car when “one of the Defendant
Officers approached Plaintiff, and in an unprovoked manner

took out his police baton and struck Plaintiff and the
other Defendant Officer pushed Plaintiff to the ground and
contorted Plaintiff's arms to handcuff him.” Proposed Am.
Compl. at ¶ 14. “Plaintiff complained that his left arm was in
severe pain, and as a result of Defendants['] acts, Plaintiff had
sustained serious injury to his left arm which required medical
treatment.” Id. Defendants then arrested Plaintiff. On or about
September 8, 2009, Plaintiff was arraigned on the criminal
charges. Id. at ¶ 15. “[O]n July 7, 2000 [Plaintiff] received
an adjournment in contemplation of dismissal (ACOD) on the
charges.” Id. 2
As a result of the foregoing, Plaintiff asserts claims for
violations of his right to: (1) due process; (2) freedom from
false arrest; (3) freedom from unlawful arrest and seizure;
(4) freedom from excessive force; (5) freedom from unlawful
imprisonment; and (6) freedom from malicious abuse of
process. Plaintiff also asserts state law claims for false arrest,
abuse of process, assault and battery, and negligence.
Presently before the Court is Defendants' motion to dismiss
the Complaint and Plaintiff's motion for leave to file an
amended complaint.

II. STANDARD OF REVIEW
“Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short
and plain statement of the claim showing that the pleader is
entitled to relief,’ in order to ‘give the defendant fair notice
of what the ... claim is and the grounds upon which it rests.’ ”
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955,
1964, 167 L.Ed.2d 929 (2007) (quoting Conley v. Gibson,
355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). “While a
complaint attacked by a Rule 12(b)(6) motion to dismiss does
not need detailed factual allegations ... a plaintiff's obligation
to provide the ‘grounds' of his ‘entitle[ment] to relief’ requires
more than labels and conclusions, and a formulaic recitation
of the elements of a cause of action will not do.” Id. at
1964–65. “Factual allegations must be enough to raise a right
to relief above the speculative level ... on the assumption
that all the allegations in the complaint are true (even if
doubtful in fact).” Id. at 1965. “ ‘[T]he pleading must contain
something more ... than ... a statement of facts that merely
creates a suspicion [of] a legally cognizable right of action.’
” Id. at 1965 (quoting 5 C. Wright & A. Miller, Federal
Practice and Procedure § 1216, pp. 235–236 (3d ed.2004)).
“To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim
to relief that is plausible on its face.’ ” Ashcroft v. Iqbal,

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Devarnne v. City of Schenectay, Not Reported in F.Supp.2d (2011)

–––U.S. ––––, ––––, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868
(2009) (quoting Twombly, 550 U.S. at 570). A complaint
does not suffice “if it tenders naked assertions devoid of
further factual enhancement.” Ashcroft, 129 S.Ct. at 1949.
Legal conclusions must be supported by factual allegations.
Iqbal, at 1950. “Threadbare recitals of the elements of a cause
of action, supported by mere conclusory statements, do not
suffice.” Id. at 1949. “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.” Id. “Where a complaint pleads facts
that are ‘merely consistent with’ a defendant's liability, it
stops short of the line between possibility and plausibility of
entitlement to relief.” Id. (quoting Twombly, 550 U.S. 557)
(internal quotations omitted).

III. DISCUSSION
a. Leave to File an Amended Complaint
*2 Plaintiff moves for leave to file an amended complaint.
In light of: (1) Rule 15's mandate that “[t]he Court should
freely give leave when justice so requires;” (2) the fact that
this case is in its infancy; and (3) and the proposed amended
complaint does not add any new claims, but simply expands
the factual allegations of the original complaint, the Court
finds that Defendants will not be prejudiced by the proposed
amendment. Accordingly, subject to the exceptions discussed
below, the motion for leave to amend is granted. Because
Defendants oppose the cross-motion for leave to amend on
the ground that the proposed amendment would be futile, the
Court will consider Defendants' motion to dismiss as applied
to the proposed amended complaint.

b. Defendants' Motion to Dismiss
Defendants move to dismiss the original Complaint and
the proposed Amended Complaint on the ground that it
fails to meet the requisite pleading standards. Defendants
argue that the Complaint and proposed Amended Complaint
(collectively referred to as the “Complaint”) “offer[ ] mere
conclusions that the defendants unlawfully harmed the
plaintiff.”

1. Due Process
Plaintiff contends that his arrest without probable cause
constitutes a violation of due process of law. While this
contention may be legally correct, the remedy for such
a violation is under the Fourth Amendment; not under

generalized notions of due process. See Graham v. Connor,
490 U.S. 386, 395, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989);
Quinn v. City of Long Beach, 2010 WL 3893620, at *5
(E.D.N.Y.2010). The proposed amended complaint does
not cure this deficiency and, accordingly, the assertion of
this claim in the proposed amended complaint would be
futile. Accordingly, the due process claim is dismissed as
duplicative of the Fourth Amendment false arrest claim.

2. False Arrest/Unlawful Seizure/False Imprisonment
The Fourth Amendment protects against unreasonable
seizures. This encompasses the right not to be falsely arrested
or imprisoned. To make out a Fourth Amendment claim,
Plaintiff has the burden of proving (1) the defendant intended
to confine [the plaintiff], (2) the plaintiff was conscious
of the confinement, (3) the plaintiff did not consent to the
confinement and (4) the confinement was not otherwise
privileged. Curry v. City of Syracuse, 316 F.3d 324, 335 (2d
Cir.2003).
Here, the Complaint alleges that on September 4, 2009,
without provocation or reason, Defendants approached
Plaintiff, struck him with a baton and handcuffed him. These
allegations are sufficient to state a claim for a violation of
Plaintiff's Fourth Amendment rights. 3

3. Excessive Force
To state a claim for the use of excessive force, Plaintiff bears
the burden of proving that the force used was objectively
unreasonable in light of the facts and circumstances
confronting the Defendants. Richardson v. New York City
Health and Hospitals Corp. ., 2009 WL 804096, at *10
(S.D.N.Y.2009) (citing Graham v. Connor, 490 U.S. 386,
397, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989)); see also Paulk
v. Lester, 2010 WL 2560559, at *3 (N.D.N.Y.2010). The
allegations that one of the Defendant police officers struck
Plaintiff with his baton without provocation and that the other
officer pushed Plaintiff to the ground and contorted his arm
in such a manner as to cause serious injury is sufficient to
withstand a motion to dismiss. 4

4. Abuse of Process
*3 To state a claim for the malicious abuse of process,
Plaintiff must prove that the Defendant or Defendants
(1) employed regularly issued legal process to compel
performance or forbearance of some act, (2) with intent to
do harm without excuse of justification (3) in order to obtain

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Devarnne v. City of Schenectay, Not Reported in F.Supp.2d (2011)

a collateral objective that is outside the legitimate ends of
the process. Savino v. City of New York, 331 F.3d 63, 76
(2d Cir.2003). As to this claim, Plaintiff's Complaint and
proposed Amended Complaint merely parrot the elements
of the cause of action and make legal conclusions without
asserting any facts plausibly supporting such a claim. For
example, neither the Complaint nor the proposed Amended
Complaint articulate any facts suggesting an ulterior motive
by Defendants or a collateral objective the Defendants might
have sought to obtain through the use of legal process.
Because the proposed amended complaint does not cure
this deficiency, the assertion of this claim in the proposed
amended complaint would be futile. Accordingly, this claim
must be dismissed.

5. Municipal Liability
It is well-settled that, to impose liability upon a municipality,
it must be shown that the alleged constitutional violation
was the result of a municipal custom or policy. Monell v.
Dep't of Soc. Servs., 436 U.S. 658, 691, 98 S.Ct. 2018, 56
L.Ed.2d 611 (1978). “To hold a municipality liable in ...
[a § 1983] ... action, “a plaintiff is required to plead and
prove three elements: (1) an official policy or custom that
(2) causes the plaintiff to be subjected to (3) a denial of a
constitutional right.” Zahra v. Town of Southold, 48 F.3d 674,
685 (2d Cir.1995) (quoting Batista v. Rodriguez, 702 F.2d
393, 397 (2d Cir.1983)). While “municipal policy may be
inferred from the informal acts or omissions of supervisory
municipal officials ... the mere assertion ... that a municipality
has such a custom or policy is insufficient in the absence of
allegations of fact tending to support, at least circumstantially,
such an inference.” Zahra, 48 F.3d at 685 (quoting Dwares
v. City of New York, 985 F.2d 94, 100 (2d Cir.1993)).
“Conclusory allegations of a municipality's pattern or policy
of unconstitutional behavior is insufficient to establish a

Monell claim.” McAllister v. New York City Policy Dep't, 49
F.Supp.2d 688, 705 (S.D.N.Y.1999).
Here, for the reasons previously stated, there are sufficient
allegations of constitutional injury to withstand a motion
to dismiss. It may reasonably and plausibly be inferred
from the nature of the alleged constitutional violations that
Plaintiff's injuries were caused by a municipal custom or
policy (including the failure to adequately train or deliberate
indifference to constitutional rights). As was noted in
Kimbrough v. Town of Dewitt Police Depts., 2010 WL
3724121 (N.D.N.Y.2010) (M.J.Treece), “it is hard to fathom
how a plaintiff cold provide more detail at the pleading
stage regarding a Monell claim based on failure to train.”
Accordingly, while Plaintiff may not ultimately succeed on
his claim against the municipality, the Court finds that the
Complaint adequately states a claim sufficient to withstand a
Rule 12 motion to dismiss.

IV. CONCLUSION
*4 For the foregoing reasons, Defendants' motion to dismiss
is GRANTED IN PART and Plaintiff's cross-motion for
leave to amend is GRANTED IN PART. Plaintiff's claims
alleging a violation of the due process clause and for the
malicious abuse of process are DISMISSED as to the original
Complaint. In all other respects, Defendants' motion to
dismiss is DENIED. The motion for leave to file the proposed
amended complaint as to the due process and abuse of process
claims is DENIED AS FUTILE. In all other respects, the
motion for leave to amend is GRANTED. Plaintiff shall file
the proposed amended complaint within fourteen days of the
date of this Order. Upon filing of the proposed amended
complaint, the due process and abuse of process claims shall
be DISMISSED without further order of the Court.

IT IS SO ORDERED.

Footnotes

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2
3
4

For reasons to be discussed, the Court is granting, in part, Plaintiff's motion for leave to file an Amended Complaint. Accordingly,
for purposes of Defendant's motion to dismiss, the Court will use the facts as alleged in the proposed amended complaint under the
assumption that Plaintiff will timely file the proposed amended complaint.
While the proposed Amended Complaint identifies a date of July 7, 2000, the Court presumes that Plaintiff intended to indicate a
date after September 8, 2009 (probably July 7, 2010).
For similar reasons, these allegations are sufficient to state claims for common law false arrest.
For similar reasons, these allegations are sufficient to state a claim for assault and battery and negligence. See Paulk, 2010 WL
2560559, at *3 n. 4 (noting that “the essential elements of Plaintiff's excessive force claim is ‘substantially identical’ to Plaintiff's
assault and battery claim.”).

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Devarnne v. City of Schenectay, Not Reported in F.Supp.2d (2011)

End of Document

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