LaPoint v. Vasiloff et al
Filing
56
MEMORANDUM-DECISION AND ORDER granting 24 Motion for Judgment on the Pleadings; denying 37 Letter Motion from Charles C. Spagnoli, Esq. for Village of East Syracuse requesting default judgment on motion for judgment on pleadings ; granting 22 Motion for Judgment on the Pleadings. The Court hereby ORDERS that Defendants' motions for judgment on the pleadings (Dkt. Nos. 22 and 24) are GRANTED; and the Court further ORDERS that Plaintiff's claims against the County, Village and t he John Doe Defendants are DISMISSED without prejudice; and the Court further ORDERS that the Village's Letter Motion (Dkt. No. 37) is DENIED; and the Court further ORDERS that the Village and County's cross-claims are DISMISSED; and the Co urt further ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision and Order on all parties in accordance with the Local Rules (Copy mailed to Plaintiff). Signed by U.S. District Judge Mae A. D'Agostino on 03/09/2016. (bto)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
LANCE LAPOINT,
Plaintiff,
vs.
1:15-cv-185
(MAD/ATB)
SGT. PETER VASILOFF, individually
and in his official capacity, OFFICER DALE
BARHITE, individually and in his official
capacity, EAST SYRACUSE POLICE
DEPARTMENT, VILLAGE OF EAST
SYRACUSE, ONONDAGA COUNTY,
and JOHN DOES #1, 2, and 3.
Defendants.
____________________________________________
APPEARANCES:
OF COUNSEL:
LANCE LAPOINT
215 Edgemere Road
Syracuse, New York 13208
Plaintiff pro se
ONONDAGA COUNTY
ATTORNEY'S OFFICE
John H. Mulroy Civic Center
421 Montgomery Street
Syracuse, New York 13202
Attorneys for the County Defendants
KAREN ANN BLESKOSKI, ESQ.
OFFICE OF FRANK W. MILLER
6575 Kirkville Road
East Syracuse, New York 13057
Attorneys for the Village Defendants
FRANK W. MILLER, ESQ.
CHARLES C. SPAGNOLI, ESQ.
Mae A. D'Agostino, U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
On February 19, 2015, Plaintiff Lance LaPoint ("Plaintiff") commenced this action pro se
pursuant to 42 U.S.C. § 1983 against Sergeant Peter Vasiloff ("Vasiloff"), the East Syracuse
Police Department, the Village of East Syracuse ("Village"), Onondaga County ("County"),
unidentified "John Doe" Defendants, and Office Dale Barhite, asserting that Defendants violated
his constitutional rights by using excessive force and assaulting, beating and battering him, and
that Onondaga County and its officers failed to provide adequate medical care for his resulting
injuries. Dkt. No. 1 at 3-4; Dkt. No. 53. Plaintiff seeks punitive and compensatory damages in
the amount of $500,000. Dkt. No. 1 at 4.
Currently before the Court are Defendants' motions for judgment on the pleadings
pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, as well as the County's cross-claim
against Barhite, Vasiloff, and the Village, and the Village's cross-claim against the County. See
Dkt. Nos. 12, 17, 22, 24.
II. BACKGROUND
The incident giving rise to these claims occurred on or about February 25, 2012, when the
Plaintiff "hopped a train" at a train yard in Syracuse. Dkt. No. 1 at 3. After the conductor told the
Plaintiff to exit the train, Plaintiff passed through the engine area and noticed flashing lights
coming toward him. Id. According to Plaintiff, he opened the door to the engine area to allow
police officers to come through, and "immediately put [his] hands up to show [he] was
cooperating." See id. Plaintiff alleges that an officer struck Plaintiff in the face with a large
object while shining the flashlight directly in Plaintiff's eyes, temporarily blinding him. Plaintiff
fell to the floor and alleges that the officers repeatedly struck him "in and about the head and
face." Id. Thereafter Plaintiff was picked up, pushed down the train ladder, and dragged to the
police car. At this time, Plaintiff alleges that he was "in a lot of pain" and bleeding. Id.
2
Plaintiff was taken to the Onondaga County Justice Center, where he was placed in a cell.
Plaintiff alleges that he put his head over a sink to catch the blood and begged to be taken to the
hospital, but was told to "put [his] head back in the sink or [he] was going to be mopping it up."
Id. Over the course of two days, Plaintiff claims that he was suffering from "incredible" pain and
going in and out of consciousness, and continued asking to be brought to a hospital. Id. Plaintiff
was allegedly taken to a hospital over forty-eight hours later. Plaintiff was subsequently
diagnosed with a concussion, multiple fractures of his face and skull, deep lacerations and
knocked out teeth, and claims that his injuries resulted in pain, suffering, facial disfigurement and
permanent damage. Id. Plaintiff's complaint refers to the individuals allegedly responsible for his
allegations as "police officers," "officers," and "them," but contains no further information
regarding the identity or specific actions taken by the officers named as Defendants or listed as
John Doe Defendants in this case. See id.
In an Order, Report and Recommendation dated March 3, 2012, Magistrate Judge Baxter
granted Plaintiff's request to proceed in forma pauperis. In regard to Plaintiff's John Doe
Defendants, Magistrate Judge Baxter ordered that "after the complaint is served, plaintiff take
reasonable steps to ascertain the identity of the 'John and Jane Doe' defendants, and then seek to
amend the complaint to add the individuals as defendants." See Dkt. No. 4 at 9. In an Order dated
April 2, 2015, this Court adopted Magistrate Judge Baxter's Order, Report and Recommendation
in its entirety and dismissed Plaintiff's complaint as against the East Syracuse Police Department.
Dkt. No. 11. On April 8, 2015, the County filed cross-claims against Barhite, Vasiloff and the
Village for contribution, indemnification and apportionment of liability. See Dkt. No. 12.
Thereafter, the Village asserted cross-claims against the County on the same grounds. Dkt. No.
17. Service was attempted by the United States Marshal on Officers Barhite and Vasiloff but the
3
acknowledgment of receipt of summons and complaint by mail was not returned. Dkt. No. 30.
The Village and County moved for judgment on the pleadings on April 20, 2015 and April
28, 2015, respectively. Dkt. Nos. 22, 24. Plaintiff secured counsel on May 4, 2015, who
proceeded to request three additional extensions of time to respond to Defendants' motions and
secure new counsel for the Plaintiff, citing conflicts of interest. See Dkt. Nos. 32, 39, 44. The
Court granted two additional extensions of time and issued a deadline for Plaintiff to find new
counsel by August 14, 2015 and to respond to the motions by August 24, 2015. See Dkt. No. 43.
After counsel's motion to withdraw and request for a third extension of time, the Court issued the
following text order granting the request to withdraw:
In light of the lengthy extension already granted, the Court will grant
Plaintiff one final extension of thirty (30) days from the date of this
Text Order to respond to the motion for judgment on the pleadings.
Plaintiff's response to the pending motion is due regardless of whether
he is able to find new counsel.
Dkt. No. 47. After the issuance of this order, Plaintiff personally submitted a letter requesting
another extension. Dkt. No. 48. The Court ordered Plaintiff to respond to the Defendants'
motions for judgment on the pleadings by November 12, 2015, and noted that Plaintiff's failure to
respond would result in dismissal of his case with prejudice. On November 12, 2015, Plaintiff
filed an affidavit in opposition to Defendants' motions, alleging the following: (1) Vasiloff's
history of misconduct and continued employment by the village amounts to a municipal policy or
custom; (2) a notice of claim was never filed with either the Village or the County; (3) Plaintiff
was the victim of excessive force by Vasiloff and Barhite, who were both present at the incident;
and (4) the County is only liable for its failure to provide adequate medical care to the Plaintiff.
See Dkt. No. 53.
4
III. DISCUSSION
A.
Standard of Review for Motion for Judgment on the Pleadings
Rule 12(c) of the Federal Rules of Civil Procedure provides that "after the pleadings are
closed – but early enough not to delay trial – a party may move for judgment on the pleadings."
Fed. R. Civ. P. 12(c). When a party makes a Rule 12(c) motion, the court applies the same
standard as when a party files a Rule 12(b)(6) motion. See Hayden v. Paterson, 594 F.3d 150, 160
(2d Cir. 2010) (citation omitted).
A motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) of the Federal
Rules of Civil Procedure tests the legal sufficiency of the party's claim for relief. See Patane v.
Clark, 508 F.3d 106, 111-12 (2d Cir. 2007) (citation omitted). In considering the legal
sufficiency, a court must accept as true all well-pleaded facts in the pleading and draw all
reasonable inferences in the pleader's favor. See ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493
F.3d 87, 98 (2d Cir. 2007) (citation omitted). This presumption of truth, however, does not
extend to legal conclusions. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted).
Although a court's review of a motion to dismiss is generally limited to the facts presented in the
pleading, the court may consider documents that are "integral" to that pleading, even if they are
neither physically attached to, nor incorporated by reference into, the pleading. See Mangiafico v.
Blumenthal, 471 F.3d 391, 398 (2d Cir. 2006) (quoting Chambers v. Time Warner, Inc., 282 F.3d
147, 152-53 (2d Cir. 2002)).
To survive a motion to dismiss, a party need only plead "a short and plain statement of the
claim," see Fed. R. Civ. P. 8(a)(2), with sufficient factual "heft to 'sho[w] that the pleader is
entitled to relief[,]'" Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007) (quotation omitted).
Under this standard, the pleading's "[f]actual allegations must be enough to raise a right of relief
5
above the speculative level," see id. at 555 (citation omitted), and present claims that are
"plausible on [their] face," id. at 570. "The plausibility standard is not akin to a 'probability
requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully."
Iqbal, 556 U.S. at 678 (citation omitted). "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.] at 557, 127 S. Ct. 1955).
Ultimately, "when the allegations in a complaint, however true, could not raise a claim of
entitlement to relief," Twombly, 550 U.S. at 558, or where a plaintiff has "not nudged [its] claims
across the line from conceivable to plausible, the[ ] complaint must be dismissed[,]" id. at 570.
When a party proceeds pro se, the court must liberally construe his pleadings, holding
them to a standard less stringent than formal pleadings drafted by lawyers. See Erickson v.
Pardus, 551 U.S. 89, 94 (2007). If a pro se plaintiff's complaint alleges civil rights violations, the
court must construe his pleadings with "particular generosity." Davis v. Goord, 320 F.3d 346, 350
(2d Cir. 2003) (quoting Morales v. Mackalm, 278 F.3d 126, 131 (2d Cir. 2002)). Further, when a
pro se plaintiff faces a motion to dismiss, the court may consider "materials outside the complaint
to the extent they are consistent with the allegations in the complaint." Donhauser v. Goord, 314
F. Supp. 2d 119, 121 (N.D.N.Y. 2004).
B.
The Village's July 6, 2015 Letter Motion
In a letter dated July 6, 2015, the Village states that, despite being granted several
extensions, Plaintiff failed to respond to its pending motion for judgment on the pleadings. See
Dkt. No. 37 at 1. In light of this failure, the Village argues that "his claims [should] be dismissed
based on the default." Id. Pursuant to Rule 55 of the Federal Rules of Civil Procedure, a default
judgment can be entered against a party who fails to "plead or otherwise defend" when "that
6
failure is shown by affidavit[.]" The Local Rules of the Northern District of New York provide
additional requirements for parties seeking default judgment, none of which have been satisfied.
See L.R.N.D.N.Y. 55.2. As such, the Village motion for "default" is denied.
In that same letter, counsel for the Village also indicates that they represent Sgt. Vasiloff
and Officer Barhite and claims that these individuals have never been served in this matter. See
Dkt. No. 37 at 2. As such, the Village requests that the claims against them "be dismissed for
failure to effect timely service." Again, this request fails to comply with the requirements of the
Federal and Local Rules for a Rule 12(b) motion to dismiss for failure to effect service. See
L.R.N.D.N.Y. 7.1(a). Accordingly, the Court denies the Village's letter motion on this ground.
C.
Plaintiff's State Law Claims
To the extent that Plaintiff's complaint alleges state tort claims for excessive force, assault,
and failure to provide adequate medical attention, Defendants contend that Plaintiff's claims
should be dismissed as barred by the applicable statute of limitations. See Dkt. No. 22 at 8; Dkt.
No. 24 at 11.
The statute of limitations for any state claims for tortious conduct, including assault,
battery and failure to provide adequate medical care is one year and ninety days pursuant to New
York General Municipal Law § 50-i. According to Plaintiff's complaint, the alleged conduct of
assault and battery took place on or about February 25, 2012, and the failure to provide medical
care occurred over the course of the following two days while Plaintiff was held at the Justice
Center. Plaintiff filed his complaint on February 19, 2015, nearly three years after the alleged
conduct took place and after the statute of limitations had expired.
Additionally, Defendants also allege that Plaintiff failed to serve a verified notice of claim
against the Village and County. See Dkt. No. 22 at 7; Dkt. No. 24 at 11. Plaintiff concedes that
7
he did not file a notice of claim with the Village or the County. See Dkt. No. 53. In New York, a
notice of claim is a condition precedent to filing a tort claim against a city or county and against
officers acting within the scope of their employment. See N.Y. Gen. Mun. §§ 50-e, 50-i; see also
Chamberlain v. City of White Plains, 986 F. Supp. 2d 363, 396 (S.D.N.Y. 2013); LaGrange v.
Ryan, 142 F. Supp. 2d 287, 295 (N.D.N.Y. 2001). Failure to comply with these requirements
"ordinarily requires a dismissal for failure to state a cause of action" unless the action is brought in
the public interest, or the court has granted leave for the filing of a late notice. See Hardy v. New
York City Health & Hosp. Corp., 164 F.3d 789, 793-94 (2d Cir. 1999).
In light of Plaintiff's acknowledgment that he failed to comply with the Notice of Claim
requirements, and that Plaintiff's private civil rights action for recovery of personal injuries and
damages is not within the public interest, the Court grants Defendants' motions insofar as they
seek the dismissal of Plaintiff's state tort claims. See Hennenberger v. Cty. of Nassau, 465 F.
Supp. 2d 176, 199 (E.D.N.Y. 2006) (dismissing the plaintiff's state law claims for failure to file a
timely notice of claim); see also Atkins v. Cty. of Orange, 251 F. Supp. 2d 1225, 1235 (S.D.N.Y.
2003) ("[T]he public interest exception does not apply when plaintiffs are seeking money damages
for the sole purpose of redressing plaintiffs' individual injuries").
Based on the foregoing, Plaintiff's state law claims for assault, battery and the failure to
provide medical care are dismissed.1
The Village also asserts that any state-law excessive force claim made by Plaintiff should
be dismissed because Section 1983 provides a remedy for the use of excessive force. As
Plaintiff's separate causes of action are all based on the same allegations within his complaint, the
Court agrees with the Village's assertions to the extent that Plaintiff's second cause of action is
intended as a state law claim under the provisions of the New York State Constitution, and finds
that any such claim should, therefore, be dismissed. See Krug v. Cty. of Rensselaer, 559 F. Supp.
2d at 223, 248 (N.D.N.Y. 2008) ("[V]arious federal courts in this circuit have held that there is no
private right of action under the New York State Constitution ... where remedies are available
1
(continued...)
8
D.
Plaintiff's 42 U.S.C. § 1983 Claims
1. 42 U.S.C. § 1983
Section 1983 provides plaintiffs with a cause of action against government officials who,
acting under the color of government authority, have subjected a plaintiff to "deprivation of any
rights, privileges, or immunities secured by the Constitution and laws" of the United States. 42
U.S.C. § 1983; see also Johnson v. Newburgh Enlarged Sch. Dist., 239 F.3d 246, 250 (2d Cir.
2001). Section 1983 is "not itself a source of substantive rights, but a method for vindicating
federal rights elsewhere conferred by those parts of the United States Constitution and federal
statutes that it describes." Albright v. Oliver, 510 U.S. 266, 271 (1994) (quoting Baker v.
McCollan, 443 U.S. 137, 145 n.3 (1979)). To establish a Section 1983 claim, a plaintiff must
demonstrate two elements: "(1) 'the act complained of was committed by a person acting under
color of state law'; and (2) 'this conduct deprived a person of rights, privileges, or immunities
secured by the Constitution or laws of the United States.'" Greenwich Citizens Comm. v. Counties
of Warren & Washington Indus. Dev. Agency, 77 F.3d 26, 29-30 (2d Cir. 1996) (quoting Parratt
v. Taylor, 451 U.S. 527, 535 (1981)).
2. Plaintiff's claims against the John Doe Defendants
Plaintiff's complaint names three John Doe Defendants who are identified only as deputies
at the Onondaga County Sheriff's Department. In an affidavit submitted to the Court on
November 12, 2015, Plaintiff clarified that he does "not contest that the County or its officers
used excessive force, only that they failed to provide me with adequate medical attention once I
was delivered to the Justice Center." See Dkt. No. 53. Therefore, the Court's analysis of the
1
(...continued)
under §1983") (quoting Clayton v. City of Poughkeepsie, No. 06 Civ. 4881, 2007 WL 2154196, at
*7 (S.D.N.Y. June 21, 2007)) (internal quotations omitted).
9
factual allegations within the complaint will be limited to the John Doe Defendants' liability in
Plaintiff's claim for the failure to provide adequate medical care.
Section 1983 imposes liability for "conduct which 'subjects, or causes to be subjected' the
complainant to a deprivation of a right secured by the Constitution and laws." Rizzo v. Goode,
423 U.S. 362, 370-71 (1976) (quoting 42 U.S.C. § 1983). Not only must the conduct deprive the
plaintiff of rights and privileges secured by the Constitution, but the actions or omissions
attributable to each defendant must be the proximate cause of the injuries and consequent
damages that the plaintiff sustained. See Brown v. Coughlin, 758 F. Supp. 876, 881 (S.D.N.Y.
1991) (citing Martinez v. California, 444 U.S. 277, 100 S. Ct. 553, 62 L. Ed. 2d 481, reh. denied,
445 U.S. 920, 100 S. Ct. 1285, 63 L. Ed. 2d 606 (1980)). As such, for a plaintiff to recover in a
Section 1983 action, he must establish a causal connection between the acts or omissions of each
defendant and any injury or damages he suffered as a result of those acts or omissions. See id.
(citing Givhan v. Western Line Consolidated School District, 439 U.S. 410, 99 S. Ct. 693, 58 L.
Ed. 2d 619 (1979)) (other citation omitted).
Under Rule 8(a) of the Federal Rules of Civil Procedure, courts generally require plaintiffs
to "allege specific facts that would aid in identifying the defendant and thereby allow defendants
to prepare a defense." See Ritchie v. Northern Leasing Sys., Inc., 14 F. Supp. 3d 229, 237
(S.D.N.Y. 2014). Further, complaints by pro se plaintiffs, though liberally construed by the court,
"must contain at least 'some minimum level of factual support for their claims.'" See Barreto v.
Cty. of Suffolk, 762 F. Supp. 2d 482, 487 (E.D.N.Y. 2010) (quoting Megna v.United States Dep't
of the Navy, 317 F. Supp. 2d 191, 192 (E.D.N.Y. 2004)).
In the context of Section 1983 claims, the plaintiff must "name as proper defendants those
individuals who have some personal involvement" so as to satisfy the requirements of Rule 8(a).
10
See id. Courts "typically resist dismissing suits against the John Doe defendants until the plaintiff
has had some opportunity for discovery to learn the identities of responsible officials." See Davis
v. Kelly, 160 F.3d 917, 921 (2d Cir. 1998). However, the plaintiff is ultimately required to
"identify each defendant by name, or else identify them as the 'John Doe Defendants' and provide
sufficient factual basis to allow the defendants to successfully identify the John Doe Defendants
and prepare for a defense." See Regeda v. City of New York, No. 09-cv-5427, 2012 WL 7157703,
*8 (E.D.N.Y. Sept. 7, 2012) (citing Barreto, 762 F. Supp. 2d at 487). Courts have found that a
sufficient factual basis can be established where the plaintiff has identified the posts to which the
John Doe defendants were assigned, their presence at a specified time and place, or the grounds
for liability for each respective defendant. See Regeda, 2012 WL 7157703, at *8. However,
courts have declined to recognize such a basis where a complaint contains no information specific
to the identities or actions of the John Doe defendants. See Ritchie, 14 F. Supp. 3d at 237-38
(citing Gabriel Capital, L.P. v. Natwest Fin., Inc., 137 F. Supp. 2d 251, 269 (S.D.N.Y. 2000)).
In the present case, Plaintiff has failed to identify any John Doe Defendant by name or
allege a sufficient factual basis to provide fair notice to the Defendants. Plaintiff's complaint fails
to identify any specific facts that would tend to aid Defendants in identifying the officers
responsible for the alleged violations of Plaintiff's rights. See Dkt. No. 1 at 2. Moreover,
Plaintiff's allegations are not attributed to any specific Defendant. Rather, Plaintiff's complaint
generally references "police officers," "officers," and "them" to describe the individuals
responsible for the alleged unconstitutional actions taken against him. See id. at 3. In Magistrate
Judge Andrew T. Baxter's March 3, 2015 Order and Report-Recommendation, Magistrate Judge
Baxter noted that "[o]nce the County files an answer, plaintiff may seek to determine the identity
of one or more of the John Doe defendants through discovery." See Dkt. No. 4 at 7. The County's
11
answer was filed on April 28, 2015. In the nearly eleven-month period since the filing of the
County's answer, nothing in the record indicates that Plaintiff made any efforts to identify the John
Doe Defendants. Therefore, this Court finds that Plaintiff had a reasonable opportunity to conduct
discovery as to the identities of the John Doe Defendants, but has failed to do so. See Kearse v.
Lincoln Hosp., No. 07-cv-4730, 2009 WL 1706554, *3 (S.D.N.Y. June 17, 2009) ("Where a
defendant has had ample time to identify a John Doe Defendant but gives no indication that he has
made any effort to discover the [defendant's] name ... the plaintiff simply cannot continue to
maintain a suit against the John Doe Defendant") (internal quotations omitted).
Based on the foregoing, Plaintiff's claims for failure to provide adequate medical care
against the John Doe Defendants are dismissed without prejudice.2
The Court also notes that any attempts to amend the pleadings to identify the John Doe
Defendants at this stage would be futile. Section 1983 actions filed in New York are governed by
a three-year statute of limitations. See Hogan v. Fischer, 738 F.3d 509, 517 (2d Cir. 2013).
"'John Doe' pleadings cannot be used to circumvent statutes of limitations because replacing a
'John Doe' with a named party in effect constitutes a change in the party sued." Id. (citing
Aslandis v. U.S. Lines, Inc., 7 F.3d 1067, 1078 (2d Cir. 1993).
2
It is well settled that lack of knowledge regarding a John Doe Defendant's identity "does
not constitute a 'mistake of identity'" for the purposes of Rule 15(c)(1)(C). See Hogan, 738 F.3d
at 518 (citing Barrow, 66 F.3d at 470). Therefore, the Court must assess whether Rule 15(c)(1)(A)
would permit the Plaintiff to amend his complaint. Rule 15(c)(1)(A) permits an amended
pleading to relate back to the date of original filing where "the law that provides the applicable
statute of limitations allows relation back."
Under N.Y. C.P.L.R. § 1024, a party may make John Doe substitutions if the party meets
two requirements. "First, the party must exercise due diligence, prior to the running of the statute
of limitations, to identify the defendant by name . . . [s]econd, the party must describe the John
Doe party in such form as will fairly apprise the party that [he] is the intended defendant."
Hogan, 738 F.3d at 519 (internal quotations and citations omitted). Plaintiff has failed to meet the
necessary requirements prior to the running of the statute of limitations. Plaintiff has not served
any discovery requests to determine the identity of the John Doe Defendants, nor does his
complaint contain any specific factual allegations, such as the appearance of the John Doe
Defendants, to fairly apprise them that they are the intended defendants in this case. See id.
(continued...)
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E.
Municipal Liability
The County and Village Defendants contend that Plaintiff's municipal liability claims
should be dismissed because he fails to allege any facts to support an inference of a custom or
policy of the County or Village that led to a constitutional violation. See Dkt. No. 24 at 8; Dkt.
No. 22 at 6.
"Although municipalities are considered 'persons' for purposes of Section 1983, a
local government such as [a] County . . . may not be held liable under Section 1983 unless the
challenged action was performed pursuant to a municipal policy or custom." Powers v. Gipson,
No. 04-CV-6338, 2004 WL 2123490, *2 (W.D.N.Y. Sept. 14, 2004) (citing Monell v. Dep't of
Soc. Serv., 436 U.S. 658, 694 (1978)). This is because "[m]unicipalities are not subject to Section
1983 liability solely on the basis of a respondeat superior theory." Powers, 2004 WL 2123490, at
*2; Harris v. Howard, No. 08 Civ. 4837, 2009 WL 3682537, *2 (S.D.N.Y. Oct. 30, 2009) ("A
municipality may not be held liable under Section 1983 on the basis of respondeat superior"). As
a result, to demonstrate Monell liability, a plaintiff must allege a violation of constitutional rights
by employees of the municipality and "(1) 'the existence of a municipal policy or custom . . . that
caused his injuries beyond merely employing the misbehaving officer[s]'; and (2) 'a causal
connection — an affirmative link — between the policy and the deprivation of his constitutional
rights.'" Harper v. City of New York, 424 Fed. Appx. 36, 38 (2d Cir. 2011) (quoting Vippolis v.
Vill. Of Haverstraw, 768 F.2d 40, 44 (2d Cir. 1985)) (internal quotation marks omitted); see also
Harris, 2009 WL 3682537, at *2 ("In order to plead a claim under 42 U.S.C. § 1983 against a
2
(...continued)
(holding that a party satisfied the requirements of C.P.L.R. Section 1024 where the party served
multiple unanswered discovery requests to ascertain the identities of the John Doe defendants and
included substantial detail in the complaint regarding the appearances of the John Does). Thus,
any efforts to amend Plaintiff's complaint would be futile.
13
municipality, plaintiff must allege that a municipal policy or custom caused the deprivation of his
constitutional rights"). "A plaintiff may plead a municipal policy or custom by alleging: (1) a
formal policy, promulgated or adopted by the entity; or, (2) that an official with policymaking
authority took action or made a specific decision which caused the alleged violation of
constitutional rights; or (3) the existence of an unlawful practice by subordinate officials that was
so permanent or well settled so as to constitute a 'custom or usage,' and that the practice was so
widespread as to imply the constructive acquiescence of policymaking officials." Shepherd v.
Powers, No. 11 Civ. 6860, 2012 WL 4477241, *9 (S.D.N.Y. Sept. 27, 2012) (internal quotation
marks omitted).
With respect to the municipal liability of the Village Defendants, Plaintiff's November 12,
2015 affidavit to the Court alleges the following: "It is my understanding that Officer Vasiloff has
a lengthy history of misconduct and excessive use of force as a result, his continued employment
by the Village amounts to a Municipal policy or custom." See Dkt. No. 53. The Village
Defendants argue that Plaintiff's affidavit to the Court "is not a permissible response under Rule
12(c) for judgment on the pleadings based on failure to state a claim," and that, even if it was, no
policy or custom can be inferred from the continued employment of Officer Vasiloff because the
Plaintiff does not allege that the Village was on notice of the alleged history of misconduct or
excessive force. See Dkt. No. 54.
As an initial matter, the Court notes that Plaintiff's affidavit is a permissible response
under Rule 12(c). Where, as here, a pro se plaintiff faces a motion to dismiss, the court is
permitted to consider "materials outside the complaint to the extent they are consistent with the
allegations in the complaint." Donhauser, 314 F. Supp. 2d at 121. Plaintiff's affidavit, though
less than clear, appears to allege that the Village was deliberately indifferent to the tortious
14
conduct of its officers, specifically their use of excessive force, through the continued
employment of Officer Vasiloff. To establish municipal liability where the allegations focus on
an employee's single incident of tortious conduct, the plaintiff must allege facts indicating that
"the actions of the employee in question may be said to represent the conscious choices of the
municipality itself." Amnesty Am. v. West Hartford, 361 F.3d 113, 125-26 (2d Cir. 2004).
Therefore, where the tortious act at issue was committed by lower level subordinate officers, the
court's analysis of municipal liability is a "fact-driven inquiry" that "turns on the plaintiffs' ability
to attribute the subordinates' conduct to the actions or omissions of higher ranking officials with
policymaking authority." Id. at 126, 128. In such a case, municipal liability can be demonstrated
by establishing that "a policymaker ordered or ratified the subordinates' actions" or that "[t]he
policymaker was aware of a subordinate's unconstitutional actions, and consciously chose to
ignore them, effectively ratifying the actions." Id.; see also Marcano, 38 F. Supp. 3d at 266
("Deliberate indifference may be established by a showing that policymaking officials deliberately
ignored an obvious need for supervision").
Here, Plaintiff does not allege any facts indicating that the Village was on notice of
Officer's Vasiloff's alleged misconduct throughout his continued employment. While Plaintiff
contends that it is his "understanding that Officer Vasiloff has a lengthy history of misconduct,"
Plaintiff is required to allege more than mere personal conclusions or speculations regarding
Officer Vasiloff's history of misconduct. There is no basis in the facts alleged to conclude that the
Village's policymakers were on notice of Vasiloff's history of misconduct, or that they failed to
make a "meaningful attempt to forestall or prevent the unconstitutional conduct." Marcano, 38 F.
Supp. 3d at 266; see also Manville v. Town of Greece, 892 F. Supp. 2d 469, 479 (W.D.N.Y. 2012)
(holding that the plaintiff failed to establish municipal liability where the plaintiff alleged
15
excessive use of force by the defendants but submitted no evidence indicating that the
municipality knew of or approved the use of excessive force).
Moreover, Plaintiff has failed to allege any facts indicating that the County's failure to
provide him with adequate medical attention was the result of a policy or custom on behalf of the
County. Although Plaintiff is not required to identify a formal policy that has deprived him of his
rights in order to establish municipal liability, see Diblanca v. Town of Marlborough, No. 1:13cv-1579, 2014 WL 2866341, *6 (N.D.N.Y. June 23, 2014), Plaintiff's only allegations in regard to
the County's liability concern the County officers' refusal to provide him with necessary medical
attention despite being aware of his serious injuries. While Plaintiff names three John Doe
Defendants and claims that they held positions as deputies of the County, he has failed to allege
that an official with policymaking authority took action against him or approved of the County
officers' alleged actions. Without more, Plaintiff's assertions regarding the officers' conduct at the
Justice Center are insufficient to plausibly allege a custom or policy on behalf of the County. See
Marcano v. City of Schenectady, 38 F. Supp. 3d 238, 266 (N.D.N.Y. 2014) ("[P]roof of a single
incident in a complaint, especially if it involves only actors below the policy-making level, does
not suffice to show a municipal policy") (quoting Moray v. City of Yonkers, 924 F. Supp 8, 12
(S.D.N.Y. 1996)) (internal quotations omitted).
Based on the foregoing, the Plaintiff's claims for municipal liability against the Village and
County are dismissed.
IV. CONCLUSION
After carefully reviewing the entire record in this matter, the parties' submissions and the
applicable law, and for the above-stated reasons, the Court hereby
ORDERS that Defendants' motions for judgment on the pleadings (Dkt. Nos. 22 and 24)
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are GRANTED; and the Court further
ORDERS that Plaintiff's claims against the County, Village and the John Doe Defendants
are DISMISSED without prejudice; and the Court further
ORDERS that the Village's Letter Motion (Dkt. No. 37) is DENIED; and the Court
further
ORDERS that the Village and County's cross-claims are DISMISSED; and the Court
further
ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision
and Order on all parties in accordance with the Local Rules.3
IT IS SO ORDERED.
Dated: March 9, 2016
Albany, New York
As a result of this Memorandum-Decision and Order, the only remaining Defendants are
Sgt. Vasiloff and Officer Barhite.
3
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