Vazquez-Curet v. Colonie Police Department of Albany NY et al
SUMMARY ORDER - That Berkery's 33 motion to dismiss is DENIED. That Berkery shall respond to the complaint within the time allotted by the rules. Signed by Senior Judge Gary L. Sharpe on 4/26/2021. (Copy served via regular mail to plaintiff)(jel, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
POLICE OFFICER RYAN
Plaintiff pro se Israel Vazquez-Curet commenced this action against
defendant Police Officer Ryan Berkery pursuant to 42 U.S.C. § 1983.
(Compl., Dkt. No. 1.) On May 28, 2020, the court adopted Magistrate
Judge Daniel J. Stewart’s Report-Recommendation and Order (R&R),
dismissing the Colonie Police Department of Albany, New York from the
case, and allowing Vazquez-Curet’s Fourth Amendment excessive force
claim to move forward against Berkery. 1 (Dkt. Nos. 16, 19.) Now pending
is Berkery’s motion to dismiss. (Dkt. No. 33.) Vazquez-Curet has failed to
respond to the motion, but has filed three letters, (Dkt. Nos. 35, 37, 38),
seeking a status update of the action and informing the court that he
The court assumes the parties’ familiarity with the underlying facts, which are stated
in full in the R&R. (Dkt. No. 16 at 4.)
“miss[ed his] court day due to [his] new incarceration,” (Dkt. No. 35), and
illness, but “would like to resume [his] lawsuit,” (Dkt. No. 37). For the
reasons that follow, Berkery’s motion is denied.
The standard of review under Fed. R. Civ. P. 12(b)(6) is well settled
and will not be repeated here. For a full discussion of the governing
standard, the court refers the parties to its prior decision in Ellis v. Cohen &
Slamowitz, LLP, 701 F. Supp. 2d 215, 218 (N.D.N.Y. 2010).
“Where a properly filed motion [to dismiss] is unopposed and the
Court determines that the moving party has met its burden to demonstrate
entitlement to the relief requested therein, the non-moving party’s failure to
file or serve any papers . . . shall be deemed as consent to the granting or
denial of the motion, as the case may be, unless good cause be shown.”
Albino v. City of Amsterdam Police, No. 1:19-CV-1415, 2020 WL 7024388,
at *2 (N.D.N.Y. Nov. 30, 2020) (citation omitted). “Under such
circumstances, dismissal is appropriate where the movant’s argument for
dismissal is ‘facially meritorious.’” Id. (citation omitted); see also Herring v.
Tabor, No. 9:12-cv-1739, 2014 WL 2946545, at *5 (N.D.N.Y. June 30,
2014) (noting that where a defendant’s motion to dismiss is unopposed, the
“burden of persuasion is lightened such that, in order to succeed, the
motion need only be ‘facially meritorious’” (citation omitted)).
Berkery argues that dismissal is appropriate because the complaint
does not (1) personally identify Berkery as the individual who allegedly
used excessive force against Vazquez-Curet, or (2) specify how Berkery
caused Vazquez-Curet’s injuries. (Dkt. No. 33, Attach. 2 at 2-4.) The court
Although Vazquez-Curet’s complaint is far from a model of clarity, in
light of Vazquez-Curet’s pro se status, and the standard of review which
requires that the factual allegations be construed in the light most favorable
to the plaintiff, it is readily inferable that the “police officers” and “he”
referred to in the complaint, (Compl. at 4), is Berkery, the only individual
officer named in the action. As to the cause of his injuries, Vazquez-Curet
alleges that “they started to use violent physical force” and “he broke my
wrist.” (Id.) At this stage, accepting as true all plausible asserted facts,
and construing them in the light most favorable to Vazquez-Curet, the
allegations in the complaint demonstrate liability arising from actions taken
Accordingly, it is hereby
ORDERED that Berkery’s motion to dismiss (Dkt. No. 33) is DENIED;
and it is further
ORDERED that Berkery shall respond to the complaint within the
time allotted by the rules; and it is further
ORDERED that the Clerk provide a copy of this Summary Order to
IT IS SO ORDERED.
April 26, 2021
Albany, New York
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