LaPoint v. Vasiloff et al
MEMORANDUM-DECISION AND ORDER granting in part and denying in part 74 Motion to Dismiss. Signed by U.S. District Judge Mae A. D'Agostino on 3/13/17. (ban)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
SGT. PETER VASILOFF, individually
and in his official capacity, and OFFICER
DALE BARHITE, individually and in his
OFFICE OF JOHN W. SHARON
109 South Warren Street
Syracuse, New York 13202
Attorneys for Plaintiff
JOHN W. SHARON, 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
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 Officer 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. See Dkt. No. 1 at 3-4; Dkt. No. 53.
On March 9, 2016, the Court granted the Village and County's motion for judgment on the
pleadings. See Dkt. No. 56. Defendants Vasiloff and Barhite, who are the only remaining
Defendants, have moved to dismiss the complaint. See Dkt. No. 74. Plaintiff, who is now
represented by counsel, has responded in opposition.
The incident giving rise to Plaintiff's claims occurred on or about February 25, 2012, when
Plaintiff "hopped a train" at a train yard in Syracuse. See Dkt. No. 1 at 3. After the conductor
told Plaintiff to exit the train, Plaintiff passed through the engine area, blew the train whistle, and
noticed flashing lights coming toward him. See id. According to Plaintiff, he then 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." Id. At this point, Plaintiff claims that "[w]hile one officer was
still shining his flashlight directly in [his] face . . ., [he] was suddenly struck in the face with
something very hard." Id. Plaintiff fell to the floor and alleges that the officers repeatedly struck
him "in and about the head and face." Id. Thereafter, Plaintiff was handcuffed, picked up,
pushed down the train ladder, and dragged to the police car. See id. Plaintiff alleges that he was
"in a lot of pain" and bleeding from his mouth and face. See id. At this point, Plaintiff was taken
to the Onondaga County Justice Center, where he was placed in a cell. See id.
In their motion to dismiss, Defendants contend that Plaintiff's state-law claims fail because
Plaintiff did not serve a timely notice of claim and they are barred by the applicable statute of
limitations. See Dkt. No. 74-3 at 4-6. As to the section 1983 excessive force claim, Defendants
argue that the complaint fails to provide any specific allegations that they engaged in this
conduct. See id. at 7-9. Rather, Defendants contend that the complaint merely indicates that they
were "present" and, therefore, "responsible" for the alleged use of excessive force. See id. at 7-8.
Standard of Review for Motion to Dismiss
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). 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
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
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.
Despite this recent tightening of the standard for pleading a claim, complaints by pro se
parties continue to be accorded more deference than those filed by attorneys. See Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (quotation omitted). As such, Twombly and Iqbal
notwithstanding, this Court must continue to "'construe [a complaint] broadly, and interpret [it] to
raise the strongest arguments that [it] suggests.'" Weixel v. Bd. of Educ., 287 F.3d 138, 146 (2d
Cir. 2002) (quotation omitted); Lopez v. Jet Blue Airways, 662 F.3d 593, 596 (2d Cir. 2011)
Consideration of the Police Report
In his response to Defendants' motion to dismiss, Plaintiff attached as an exhibit the police
report drafted by Defendant Barhite. See Dkt. No. 88 at 12. According to Plaintiff, Defendants'
motion should be denied because the report clearly states that Defendants Barhite and Vasiloff
"were both present and both used force on [Plaintiff]. . . ." Id. at 3-4. Although Plaintiff believes
that the complaint sufficiently sets forth a plausible claim against both Defendants, he argues that
this report cures any possible deficiency. See id. Defendants, however, contend that Plaintiff
cannot rely on this report to defeat their motion because the report is neither mentioned in nor
integral to the complaint. See Dkt. No. 90 at 1-2.
The court is normally confined to consider only the complaint and "any documents that
are either incorporated into the complaint by reference or attached to the complaint as exhibits"
on a 12(b)(6) motion. Blue Tree Hotels Inv. (Can.), Ltd. v. Starwood Hotels & Resorts
Worldwide, Inc., 369 F.3d 212, 217 (2d Cir. 2004). "Even where a document is not incorporated
by reference, the court may nevertheless consider it where the complaint relies heavily upon its
terms and effects, which renders the document integral to the complaint." Chambers, 282 F.3d at
In the present matter, the Court finds that it is inappropriate to consider the police report
Plaintiff attached to his response. The complaint does not mention any such report and it is not
integral to the complaint. Moreover, the police report is not the type of document of which the
Court may take judicial notice. The majority of authority available from this Circuit supports this
result. See Weaver v. City of New York, No. 13-CV-20, 2014 WL 950041, *3 (E.D.N.Y. Mar. 11,
2014) (explaining that the court was "not persuaded ... that Second Circuit precedent permits
consideration of an arrest report on a 12(b)(6) motion" because "mere notice or possession is not
enough" and the complaint which alleged false arrest, among other things, did not "reference" the
arrest report, nor was it "integral" to the plaintiff's allegations) (internal quotation marks omitted);
Fanelli v. City of New York, No. 13-CV-1423, 2013 WL 6017904, *2 (S.D.N.Y. Nov. 1, 2013)
(taking into account a desk appearance ticket, but not a police complaint on a motion to dismiss a
false arrest claim, because the desk appearance ticket was "incorporated by reference into [the]
plaintiff's complaint," but the "police complaint [was] not," and it was "unclear based on [the]
plaintiff's allegations whether [the] plaintiff had ever seen the police complaint prior to filing
[the] action"); Peterec v. Hilliard, No. 12-CV-3944, 2013 WL 5178328, *3 (S.D.N.Y. Sept. 16,
2013) (considering traffic tickets that the defendants submitted on a motion to dismiss a false
arrest claim because they were "integral" to the plaintiff's complaint, but declining to consider the
incident report or the plaintiff's notice of claim because they were not incorporated by reference
or integral to the complaint) (citations omitted); Coggins v. County of Nassau, No. 07-CV-3624,
2008 WL 2522501, *6 n.4 (E.D.N.Y. June 20, 2008) (holding that it was inappropriate to consider
the police reports when deciding a motion to dismiss) (citations omitted).
As such, the Court will not consider the police report in deciding whether Plaintiff has set
forth any plausible causes of action.
Plaintiff's State Law Claims
In his second cause of action, Plaintiff asserts assault and battery and excessive force
claims under New York State law. See Dkt. No. 1 at 4. In their motion, Defendants contend that
these claims should be dismissed because Plaintiff does not allege that he filed a notice of claim
and, even if he did, the claims are barred by the one year and ninety day statute of limitations.
See Dkt. No. 74-3 at 4-6. In his response, Plaintiff does not address the arguments regarding his
state law claims and does not contend that he filed a notice of claim.
First, the Court finds that, since Plaintiff failed to respond to this aspect of Defendants'
motion, the Court finds that Plaintiff has abandoned this state law claims. See Jackson v. Federal
Exp., 766 F.3d 189, 194-95 (2d Cir. 2014) (holding that "a partial response arguing that summary
judgment should be denied as to some claims while not mentioning others may be deemed an
abandonment of the unmentioned claims" by a counseled party); Silverman v. Household Fin.
Realty Corp. of New York, 979 F. Supp. 2d 313, 317 (E.D.N.Y. 2013) (dismissing eleven out of
fifteen causes of action due to the plaintiff's failure to oppose the defendants' arguments); Reid v.
Ingerman Smith LLP, 876 F. Supp. 2d 176, 186 (E.D.N.Y. 2012) ("This Court may, and generally
will, deem a claim abandoned when a plaintiff fails to respond to a defendant's arguments that the
claim should be dismissed") (citing Arma v. Buyseasons, Inc., 591 F. Supp. 2d 637, 643
(S.D.N.Y. 2008)); Abbatiello v. Monsanto Co., 522 F. Supp. 2d 524, 530 (S.D.N.Y.2007).
Second, even if Plaintiff had not abandoned these claims, they are still subject to dismissal
because Plaintiff failed to plead that he filed a notice of claim as required under New York law.1
See Kennedy v. City of Albany, No. 1:15-cv-491, 2015 WL 6394513, *2 (N.D.N.Y. Oct. 22, 2015)
(finding that the plaintiff was required to file a notice of claim as to his state law claims for
assault, battery, and false arrest); see also Reyes v.. City of New York, 992 F. Supp. 2d 290, 300
(S.D.N.Y. 2014) (quoting Hardy v. N.Y.C. Health & Hosp. Corp., 164 F.3d 789, 793 (2d Cir.
1999)). Third, even if Plaintiff did file a notice of claim, he failed to commence this suit within
one year and ninety days as required by New York General Municipal Law § 50-i. See Kennedy,
2015 WL 6394513, at *3. Rather, Plaintiff commenced this suit on February 19, 2015, nearly
three years after the alleged incident on February 25, 2012.
Finally, in his second cause of action, Plaintiff asserts an excessive force claim under the
New York State Constitution. See Dkt. No. 1 at 3. Since Plaintiff has remedies available
pursuant to 42 U.S.C. § 1983, this claim must 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 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).
Based on the foregoing, the Court grants Defendants' motion to dismiss as to Plaintiff's
state law causes of action.
Plaintiff's 42 U.S.C. § 1983 Claims
1. 42 U.S.C. § 1983
The Court notes that, in a previous filing, Plaintiff concedes that he did not file a notice
of claim with the Village or the County. See Dkt. No. 53.
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. Personal Involvement
In their motion, Defendants contend that, "[a]lthough Plaintiff alleges a claim of excessive
force against Defendants Barhite and Vasiloff, he fails to provide any specific allegations of the
use of excessive force by them." Dkt. No. 74-3 at 7. Defendants argue that Plaintiff "has done no
more in his Complaint than assert they are liable to him for excessive force, which is a 'mere
conclusory statement.'" Id. Plaintiff, however, contends that his complaint satisfies the pleading
requirements. See Dkt. No. 88 at 2. Plaintiff argues that in cases involving police misconduct,
the defendants "are necessarily in control of most of the facts at the beginning of a case.
Clarification of the facts by and for the Plaintiff will necessarily rely on the discovery process to
obtain documents, reports, photos, medical reports, testimony and possibly the assistance of an
expert witness regarding the alleged assault." Id. at 3. Further, relying on the police report
attached to his response, Plaintiff contends that they both used force against Plaintiff, thereby
satisfying his pleading requirements. See id. at 3-4.
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). Personal involvement for the purposes of a Section
1983 excessive force claim can be shown where a police officer directly participates in an assault,
or was present during the assault with reasonable opportunity to intercede on plaintiff's behalf yet
failed to do so. See Younger v. City of New York, 480 F. Supp. 2d 723, 732 (S.D.N.Y. 2007)
In the present matter, the Court finds that Plaintiff's pro se complaint plausibly alleges that
Defendants Barhite and Vasiloff used excessive force in effecting Plaintiff's arrest. Defendants
Barhite and Vasiloff are the only two individuals specifically named in the complaint. Plaintiff
alleges that the "officers began repeatedly striking me in and about the head and face" despite his
alleged cooperation with the officers. Given the special solicitude afforded to pro se plaintiffs,
the Court finds that these allegations are sufficient to withstand Defendants' motion to dismiss.
See De Michele v. City of New York, No. 09 Civ. 9334, 2012 WL 4354763, *16-*17 (S.D.N.Y.
Sept. 24, 2012). Plaintiff's failure to identify each Defendants specific actions is further explained
by the fact that Plaintiff contends that he was unable to see because "one officer was still shining
his flashlight directly in my face causing me to be unable to see[.]" Dkt. No. 1 at 3. It was at this
point that Plaintiff was first "struck in the face with something very hard" causing his eyes to
become blurry. Id. Accordingly, the Court finds that Plaintiff has plausibly alleged the personal
involvement of the only two named police officers (Defendants Barhite and Vasiloff) in the
alleged unconstitutional conduct. See Snoussi v. Bivona, No. 05-cv-3133, 2010 WL 3924255, *3
(E.D.N.Y. Feb. 17, 2010) ("As to plaintiff's purported failure to specifically allege who did what
to him, such specific allegations would be implausible here: taking plaintiff's allegations as true, it
would be hard to see who did what and who was where when someone has a boot thrust into your
neck as you lie naked and handcuffed on the floor of your home").
Based on the foregoing, the Court denies Defendants' motion to dismiss.2
After carefully reviewing the entire record in this matter, the parties' submissions and the
The Court notes that Plaintiff did name three "John Doe" Defendants in his complaint.
These John Doe Defendants, who were previously dismissed from this action, were identified in
the complaint only as deputies with the Onondaga County Sheriff's Department. See Dkt. No. 1
at 2. In a pro se 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." Dkt. No.
53. Plaintiff also clarified that he is only claiming that Defendants Barhite and Vasiloff are the
only individuals accused of using excessive force against Plaintiff. Since Plaintiff was
proceeding pro se when he submitted the November 12, 2015 affidavit, it was properly
considered by the Court in deciding the Village and County's motions for judgment on the
pleadings. See Tsai v. Rockefeller Univ., 137 F. Supp. 2d 276, 280 (S.D.N.Y. 2001) (citing Gill v.
Mooney, 824 F.2d 192, 195 (2d Cir. 1987)) (other citation omitted).
applicable law, and for the above-stated reasons, the Court hereby
ORDERS that Defendants' motion to dismiss (Dkt. No. 74) is GRANTED in part and
DENIED in part; 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 13, 2017
Albany, New York
As a result of this Memorandum-Decision and Order, Plaintiff's excessive force claim
against Defendants Barhite and Vasiloff is the only remaining claim.
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