Hardy v. Daly et al
MEMORANDUM AND OPINION re: 46 LETTER MOTION to Compel Plaintiff to Respond to Interrogatories and Document Requests addressed to Judge Robert W. Sweet from Debra March dated 7/26/2017. filed by Jorge Grullon, Daly, 29 MO TION to Dismiss . The motion to dismiss, ECF No. 29, is hereby granted, and the Amended Complaint filed by Hardy is dismissed with prejudice. The pending motion to compel, ECF No. 46, is therefore denied as moot. (Signed by Judge Robert W. Sweet on 9/5/2017) (js)
UN ITE D STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
RI CHARD HARDY,
16 Civ . 8443
- against -
0 P I N I 0 N
POLICE OFFICER DALY and POLICE OFFICER
ELECTRONTC·\f 1 y ffLED
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A P P E A RA N C E S :
Pro Se Plaintiff
421 West 162 nd Street , Apt . J
New York , NY 10032
Attorne y for Defendants
NEW YORK CIT Y LAW DEPARTMENT
100 Church Street
New York , NY 1000 0 7
Debra M. March , Esq.
Defendants Police Officer Patrick Daly ("Officer
Daly") and Police Officer Jorge Gru l lon ("Grullon")
(collectively , the "Defendants " ) have moved pursuant to Rule
12(b) (6) of the Federal Rules of Civil Procedure to dismiss the
Amended Complaint of pro se plaintiff Richard Hardy ("Hardy " or
the "Plaintiff"). Based upon the facts and conclusions set forth
below , the motion is granted and the Amended Complaint is
dismissed with prejudice .
Hardy initiated the instant action on October 28 ,
2016 , bringing claims of sexual assault and intentional
infliction of emotional distress against Officer Daly . He
amended his complaint on February 7 , 2017 to add Officer Grullon
as a named defendant
(the "Amended Complaint " ).
The Defendants ' motion to dismiss the Amended
Complaint was filed on May 17 , 2017 and marked fully submitted
on July 5 , 2017 .
The facts as set for t h below are drawn from the
Plaintiff ' s Amended Comp l aint . They are taken as true f or
purposes of the motion to dismi ss .
On July 30 , 2015 , Pla intiff ' s wife , Leslie Meil l eur
Hardy, made a 9 11 domestic violence call , to wh i ch Police
Officers Daly and Grull on responded. See Plaintiff's Amended
Complaint ( " Arn. Comp l. " ) , ECF No . 13 , pp . 2 - 4 . Once the off ice rs
arrived , the Amended Comp l aint alleges, Officer Daly had sexual
intercourse with Hardy 's wife while Officer Gru ll on forced Hardy
"down [the hallway] into another room." Id. at 2 . Plaintiff
al l eges that initially he stood outside the bedroom door and
heard a sexual act being performed on Officer Daly, but that
Officer Grullon observed this and moved Plaintiff away from the
door as Plaintiff attempted to enter the bedroom . Id. at 3 .
Plaint iff alleges that, after he emerged from the
bedroom , Officer Daly confessed to Officer Grul l on that he had
sex with Pl aintiff ' s wife . Id. at 2 - 3. Plaintiff claims that
Officer Daly began threatening him , telling him "[i]f you ever
try t o have sex with her again I wil l
kill you ," and "i f you
file suit against me I will kill yo u." Id . at 3 .
Plaintiff sta t es that he repor t ed th i s i ncident to
police officers on duty at a TD Bank i n Manhattan , filed a
report with a po l ice sergeant , and was i n terviewed by the
Interna l Affa i rs department before fi l ing su i t . Id . He c l aims
that hi s wife suffers f r om me nt a l i llness and was " tricked " to
engage i n t h e sexua l acts descr i bed . Id .
The Applicable Standards
The Ru l e 12(b) (6)
standard requi res that a comp l aint
plead suf f icient facts to s t ate a cla i m upon which rel i ef can be
granted . Ashcroft v . Iqbal , 556 U.S.
662 , 677 - 78
Atl . Corp . v . Twombly , 550 U. S . 544 , 570
(2009) ; Bell
(2007) . On a mot i on to
dismi ss under Fed . R . Civ . P 1 2(b) (6) , a ll fact u al al l egations
in the compla i nt are accepted as true , and a l l reasonable
i nfere n ces are drawn in t he p l ainti ff ' s f avor . Littlejohn v.
City of N . Y ., 795 F . 3d 297 , 306 (2d Ci r . 20 1 5) ; Mills v . Polar
Mo l ecular Corp ., 1 2 F . 3d 11 70 , 1 1 74
(2d Cir . 1993) . However , " a
plaintiff ' s obligation to provide the grounds of his entitlement
to relief requires more than labels and conclusions ." Twombly ,
550 U.S. at 555 (quotation marks omitted) . A complaint must
contain "sufficient factual matter , accepted as true, to ' state
a claim to relief that is plausible on its face.'" Iqbal,
U.S. at 663 (quoting Twombly , 550 U.S. at 570).
A claim is facially plausible 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.
550 U. S. at 556) . In
other words , the factual allegations must "possess enough heft
to show that the pleader is entitled to relief." Twombly,
U.S. at 557
(internal quotation marks omitted) .
Additionally , while "a plaintiff may plead facts
alleged upon information and belief ' where the belief is based
on factual inf o rmation that makes the inference of culpab ili ty
plausible,' su ch allegations must be ' accompanied by a statement
of the facts upon which the belief is founded.'" Munoz-Nagel v .
Guess, Inc., No . 12-1312, 2013 WL 1809772, at *3 (S.D.N.Y . Apr .
30 , 2013)
(quot ing Arista Records, LLC v. Doe 3 , 604 F. 3d 11 0 ,
120 (2d Cir. 2010)) and Prince v. Madison Square Garden , 427 F.
Supp . 2d 372 , 384
(S.D . N.Y . 2006); see also Williams v .
Calderoni , No. 11 - 3020, 20 12 WL 69 1 832 , *7
(S .D.N.Y. Mar. 1,
2012) . The pleadings, however, "must contain something more than
. a statement of facts that merely creates a suspicion [of]
a legally cognizab le right of action ." Twombly , 550 U. S. at 555
(quoting 5 CHARLES ALAN W
ARTHUR R . MILLER , FE DERAL PRACTICE AND
1216 (3d ed. 2004)).
The Motions to Dismiss the Amended Complaint is Granted
Section 1983 rights are "personal to those purportedly
injured ." Nnebe v . Daus , 644 F.3d 147 , 156 (2d Cir . 2011)
(internal quotation marks and citations omitted). "A party may
not assert a civil rights claim on behalf of another ; each party
must establish that he or she was personally deprived of rights
or privileges secured by the Constitution. " Mccloud v . Delaney,
677 F. Supp . 230 , 232
(S.D . N.Y. 1988). Only when the plaintiff
can demonstrate , " ( 1 ) injury to the p l aintiff,
( 2) a close
relationship between the plaintiff and the third party that
would cause plaintiff to be an effective advocate for the third
party's rights, and (3) some hindrance to the third party ' s
ability to protect his or her own interests," can the plaintiff
bring a constitutional claim . Huth v . Haslun,
(2d Cir. 2010) .
598 F.3d 70,
Plaintiff has failed to demonstrate that he has
standing to bring the sexual assault claim on behalf of his
wife. A husband generally does not have standing to bring a
constitutional claim or New York state law claim on beha lf of
his wife . Burton v. City of N .Y., No. 97 CV 0202 , 1997 U. S .
Dist. LEXIS 19946, at *6-7
(E . D.N. Y. Nov. 28 , 1997)
motion to dismiss where husband did not have standing to bring
1983 claim or New York state claim on behalf of his wife
regarding her arrest and treatment). Other than his assertion
that his wife is mentally ill, Plaintiff has not articulated why
his wife is unable to protect her own interests. Arn. Compl. , p.
2 .; see Munoz v. City of N.Y., 2008 U.S. Dist. LEXIS 1 2305 , at
(S .D.N. Y. Feb. 16, 2008)
(noting that wife has no standing to
1983 suit on behalf of deceased husband since husband
was not a party to the action and she was not the administratrix
of his estate) . As Plaintiff does not have standing to bring
claims on behalf of his wife related to her alleged sexual
assault, the cla im is to be dismissed. See Mccloud , 677 F. Supp.
(finding that plaintiffs "failed to establish that they
were deprived of any rights or privileges under the law, their
claim being that they suffered emotional distress due to
[another individual's] alleged deprivation of his eighth
amendment rights") .
Plaintiff ' s other purported federal claim relates to
the alleged threats by Officer Daly . Howe ver , words alone do not
amount to a constitutional injury. See Malki v. Hayes , No. 11 CV- 5909 (SLT)
(LB) , 2012 U.S . Dist . LEXIS 1000 , at *14
Jan . 4 , 2012)
(noting that "[i]t is well - settled that verbal
harassment and threats alone do not constit ute a cognizable
v i o lati on of an individual's constitutional rights")
Purcell v . Coughlin , 790 F . 2d 263 , 265
(2d . Cir . 1986)).
Plaintiff ' s allegat i ons that Officer Daly threatened him by
stating "[i]f you ever try to have sex with her again I will
kill you" and "if you file suit against me I will kill you " do
not amount to a constitutional vio lati on . Therefore , this claim ,
too , is dismissed.
To the extent Plaintiff alleges a failure to intervene
or failure to prevent c l aim against Officer Grullon, these
cla ims cannot stand. Plaintiff has alleged no constitutional
violations , as set forth above, thus there are no bases on which
to sustain any claims that Officer Grullon failed to intervene.
See Feinbers v . City of N.Y ., No . 99 Civ. 121 27 , 2004 U.S . Dist.
LEXIS 1 6098 , at *12 (S . D. N. Y. Aug . 1 2 , 2004)
("If the Court
determines that the off i cer ' s conduct did not vio late a
constitutional right, however, the analysis ends.")
Saucier v. Katz,
533 U.S. 194, 201
Plaintiff's claim of intentional infliction of
emotional distress 1 must also be dismissed because Plaintiff
failed to comply with New York General Municipal Law §§ 50e (1) (a)
50-i ( 1 ) . In order to bring any state law claim, such
as intentional infliction of emotional distress, a plaintiff
must comp ly with New York's General Municipal Law, which states
that "[n]o action.
. shall be prosecuted or maintained against
. or any employee .
. unless a notice of claim
shall have been made and served upon the city." N.Y. Gen. Mun.
Law § 50-i. A notice of claim against a public corporation in
New York must be served "within ninety days after the claim
arises." N.Y. Gen . Mun. Law§ 50-e(l) (a); see also N.Y. Gen.
Mun. Law § 50-i (requir ing a plaintiff to plead in the complaint
( 1) he has served the notice o f claim;
( 2) at least thirty
days have elapsed since the notice was filed (and before the
complaint was filed); and (3)
in that time the defendant has
Plaintiff also references "tortious interference with marital
relations" as a claim. However, this type of action, a state law claim
also called "alienation of affections," was abolished by statute in
New York many decades ago. See, e.g., Hanfgarn v . Mark, 274 N.Y. 22 ,
24, 8 N.E.2d 47, 47 (1937) (holding constitutional c hapter 263 of the
Laws of 1935 (Civi l Practice Act, §§ 61-a to 61-i), which abolished
civil actions to recover damages for, inter alia, alienation of
neglected to or refused to adjust or to satisfy the claim) .
Finally, New York ' s Genera l Municipal Law requires that a claim
against New York City o r its employees must be "commenced within
one year and n inety days after the happen in g o f the event upon
which the claim is based. " N.Y. Gen . Mun . L.
50 -i (l) .
Courts in this district recognize that a plaintiff
al l eg in g a pendent state tort claim must comp l y wi th New York ' s
n ot ic e of claim rules . See Fincher v. County of Westchester , 979
F. Supp . 989 , 1002 (S . D.N.Y. 1997)
("notice of claim
requirements apply equa ll y to state tort claims brought as
pendent claims in a federal civil rights action"). "I t
settled that the failure to file a not i ce of claim bars state
cla ims against individual defendants sued in their official
capacities." Brooks v . City of Nassau , 54 F. Supp. 3d 254 , 258
(E . D. N. Y. 20 14 ) ; Ong v . Park Manor (Middletown Park) Rehab . &
Healthcare Ctr ., No . 1 2 -Cv-974
(KMK) , 2015 U.S. Dist. LEXIS
1 33304 , at *73 2 (S .D.N.Y. Sep. 30 , 2015)
(d ismissing plaintiffs
state law claims against the indi vidua l defendants sued in their
officia l capacities because p l aintiff failed to comply with the
not i ce of claim requirements) ; Vassilev v . City of New York , No .
13-CV-5 385 , 2014 U. S . Dist . LEXIS 7 11 722 , at *3 (S . D.N . Y. Aug .
12 , 2014)
(dismissing plaintiff ' s state law cla i ms because the
plaintiff failed to file a timely notice of claim , and as a
result , p l aintiff ' s state l aw claims were time barred) .
In the instant matter , Pl ainti f f alleges the state law
claim of i ntentional infliction of emotiona l distress , however ,
Plaintiff has failed to allege the filing of a Notice of Claim
or a f il ing within n i nety days of the al l eged i ncident giving
rise to this action as i s required by the General Municipal Law .
See N.Y . Gen . Mun . L .
50 - e(l) (a)
& 50 - i(l). Therefore , as
Pla i ntiff has failed to comply with the Notice of Claim
requirements , any state l aw claims must be dismissed . See Hardy
v . New York City Health & Hasps . Corp ., 164 F . 3d 789 , 793-94
Cir . 1999) .
The motion to dismiss , ECF No . 29 , is hereby granted ,
and the Amended Complaint filed by Hardy is dismissed with
prejudice. The pending motion to compe l, ECF No . 46 , is
therefore denied as moot .
It is so ordered .
ROBERT W. SWEET
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