McMahon v. Officer Carns et al

Filing 21

MEMORANDUM-DECISION AND ORDER: Defendants' # 19 Motion to Dismiss is DENIED, except that the claims against Defendants Carns, Cope, Novitsky and Tassini are DISMISSED in their entirety with prejudice. Signed by Chief Judge Norman A. Mordue on 5/17/2011. (mae)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________________
SEAN E. McMAHON,
Plaintiff,
vs.

5:10-CV-1063
(NAM/GHL)

OFFICER CARNS, BRENDAN COPE, OFFICER
FURA, OFFICER NOVITSKY, OFFICER PATTI,
OFFICER SUMMERS, OFFICER TASSINI and
CITY OF SYRACUSE,
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Defendants.
_________________________________________
APPEARANCES:

OF COUNSEL:

Meggesto Crossett & Valerino, L.L.P
313 E. Willow Street, Suite 201
Syracuse, New York 13203
Attorneys for Plaintiff

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Juanita Perez Williams, Esq.
Corporation Counsel
City of Syracuse
300 City Hall
Syracuse, New York 13202
Attorneys for Defendants

James A. Meggesto, Esq.

James P. McGinty, Esq.
Asst. Corporation Counsel

Norman A. Mordue, Chief U.S. District Judge
MEMORANDUM-DECISION and ORDER
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I.

INTRODUCTION
Plaintiff filed the instant lawsuit following an incident involving various officers of the

Syracuse Police Department in June 2009. Plaintiff asserts that he was standing with a group of
friends on a street corner in the City of Syracuse when they were approached by a number of
police officers on the basis that they were in violation of a City ordinance which regulates and
prohibits the gathering of crowds on City sidewalks. When plaintiff attempted to leave, he claims
he was chased by two officers and detained. After he was under police control, plaintiff asserts
that he was punched in the face and fell to the ground, hitting his head on the pavement. Once he

was on the ground, plaintiff alleges that two officers repeatedly punched and kicked him and then
forcefully put his hands behind his back and handcuffed him. Plaintiff’s complaint alleges
various violations of his civil rights by the police officers and the defendant City pursuant to 42
U.S.C. § 1983, false imprisonment, assault, negligence, and the unconstitutionality of the City of
Syracuse “Disorderly Crowds” ordinance. The City has moved for dismissal of the various
claims against individual officers and dismissal of the entire complaint pursuant to Fed. R. Civ. P.
12 (b) (6). Plaintiff opposes said motion except to the extent that plaintiff consents to the
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dismissal of defendants Carns, Cope, Novitsky and Tassini.1
II.

DISCUSSION

A.

Conclusory Allegations and Failure to Support § 1983 Claim with Substantive Law
First, defendants allege that the allegations in plaintiff’s complaint are conclusory and

insufficient to withstand a motion to dismiss. Defendants also contend that the complaint fails to
assert which substantive federal or constitutional law is at the core of plaintiff’s 42 U.S.C. § 1983
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claim. The Court questions whether counsel for defendants actually read the complaint prior to
filing the instant motion. There is nothing conclusory or insufficient about plaintiff alleging that
he was “punched in the face [by defendant Fura] ... causing [him] to fall to his stomach ... and hit
his head on the pavement.” Morever, the allegation that defendant Summers “struck him near his
left eyebrow” while he was “lying facedown” is equally non-conclusory. As a further matter, the
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complaint states plainly at Paragraph 14 that the acts of defendants were a violation of plaintiff’s
rights “under the Fourth and Fourteenth Amendments to the United States Constitution.” Based
thereupon, defendants’ motion to dismiss based on the alleged conclusory nature of the complaint
and failure to support specifically the claim under 42 U.S.C. § 1983 must be denied.

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In addition, the Court observes that plaintiff consents to dismissal of all claims against Officer “Murphy”
who is not named as a defendant in this action. However, it is also notable that defendants requested that all claims
against Officer “Murphy” be dismissed.

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B.

Official Capacity of Defendant Officers
Defendants argue that state officers are not amenable to suits for damages under 42 U.S.C.

§ 1983. Review of the complaint, however, reveals that the defendant officers are in each
instance named in their individual capacities. Consequently, there is no basis for dismissing the
claims against the defendant officers based on their status as state officials.
III.

CONCLUSION
Based on the foregoing, it is therefore

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ORDERED that defendants’ motion to dismiss the complaint pursuant to Fed. R. Civ. P.
12 (b) (6) is DENIED except to the extent that the claims against defendants Carns, Cope,
Novitsky and Tassini are dismissed in their entirety with prejudice.
IT IS SO ORDERED.
Date: May 17, 2011
Syracuse, New York

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