Jones v. Mount Vernon City Police Department
OPINION & ORDER re: 42 SECOND MOTION to Dismiss filed by Shawn Harris, Rivera, Mount Vernon City Police Department. For the foregoing reasons, Defendants' motion for judgment on the pleadings is GRANTED in part and DENIED in part. The Clerk is directed to terminate the motion at ECF No. 42 and to remove Officer Rivera and the John Doe defendants from the caption. The parties are directed to appear at an in-person status conference on February 4, 2016 at 10 a.m., at which time they should provide the Court with a completed Civil Case Discovery Plan and Scheduling Order. Finally, Plaintiff is reminded that it is his obligation to promptly submit a written notification to the Court if his address changes, and the Court may dismiss the action if Plaintiff fails to do so. SO ORDERED. (Signed by Judge Nelson Stephen Roman on 12/7/2015) Copies Mailed By Chambers. (mml)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
No. 13-cv-1042 (NSR)
OPINION & ORDER
Officer Rivera, Sergeant Shawn Harris, et al.,
NELSON S. ROMAN, United States District Judge
PlaintiffChuckie Jones brings this action prose pursuant to 42 U.S.C. § 1983 alleging
claims of false arrest and excessive force against Defendants in violation of his rights under the
Fourth, Fifth, and Sixth Amendments to the United States Constitution. Before the Court is
Defendants' motion for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of
Civil Procedure. For the reasons set fmth below, Defendants' motion is GRANTED in pmt and
DENIED in part.
The following facts are taken from Plaintiffs Amended Complaint ("AC") unless
otherwise noted, and are accepted as true for the purposes of this motion.
On January 7, 2013, Plaintiff and his girlfriend were engaged in a conversation while
standing in the parking lot of the Mount Vernon East train station.
II (D).) The
conversation turned into a disagreement about their plans for the day. (Id) As Plaintiff stmted
to walk away from his girlfriend, an officer called out to him, and other officers started to
approach him. (Id.) In response, Plaintiff placed his hands over his head and knelt down on his
knees. (Id.) Upon kneeling down, Plaintiff was purportedly struck in the back by Defendant
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Harris multiple times, first with a nightstick or “bullyclub” and then with repeated kicks “for a
minute.” (Id.) Plaintiff then briefly lost consciousness. (Id.) Plaintiff was arrested and
transported to the Mount Vernon City Jail, where he was placed in a holding cell. (Id.)
The next day, while confined in a holding cell, Plaintiff was again purportedly assaulted
by police officers. Plaintiff alleges that when he requested to speak with his lawyer, he was
punched on the left side of his face and kicked in the back by one or two officers. (Id.) Plaintiff
does not identify any specific officers responsible for the assault.
As a result of the alleged excessive force, Plaintiff purportedly lost vision in his left eye
and now suffers from bad headaches for which he takes medication. (Id., ¶ III.)
Plaintiff was charged with obstructing governmental administration in the second degree,
resisting arrest, and disorderly conduct for obstructing traffic. (Affirmation of Lee B. Gorson In
Support Of Motion To Dismiss, Ex. C, Docket No. 43.) He ultimately pleaded guilty to
obstructing governmental administration in the second degree in full satisfaction of the three
crimes charged. (Id.)
STANDARD OF REVIEW
Under Federal Rule of Civil Procedure 12(c), “[a]fter 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). “To survive a Rule 12(c) motion, the complaint must contain sufficient factual matter to
‘state a claim to relief that is plausible on its face.’” Graziano v. Pataki, 689 F.3d 110, 114 (2d
Cir. 2012) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The standard for
analyzing a motion for judgment on the pleadings under Rule 12(c) is identical to the standard
for a motion to dismiss for failure to state a claim under Rule 12(b)(6). Cleveland v. Caplaw
Enterprises, 448 F.3d 518, 521 (2d Cir. 2006); see also Fed. R. Civ. P. 12(b)(6).
In ruling on a motion to dismiss, a “court may consider the facts as asserted within the
four corners of the complaint together with the documents attached to the complaint as exhibits,
and any documents incorporated in the complaint by reference.” Peter F. Gaito Architecture,
LLC v. Simone Dev. Corp., 602 F.3d 57, 64 (2d Cir. 2010) (internal quotation marks and citation
omitted). Courts also may consider “matters of which judicial notice may be taken” and
“documents either in plaintiff[’s] possession or of which plaintiff had knowledge and relied on
in bringing suit.” Brass v. Am. Film Techs., Inc., 987 F.2d 142, 150 (2d Cir. 1993).
Courts evaluating a 12(c) motion must “accept as true the factual allegations of the
complaint, and draw all inferences in favor of the pleader.” Rosner v. Bank of China, 349 F.
App’x 637, 638 (2d Cir. 2009) (quoting Mills v. Polar Molecular Corp., 12 F.3d 1170, 1174 (2d
Cir. 1993)). At the same time, a court must not “make inferences unsupported by the facts
alleged in the complaint” and “the plaintiff must provide the grounds upon which his claim rests
through factual allegations sufficient to raise a right to relief above the speculative level.”
Rosner, 349 F. App’x at 638 (internal citations and quotation marks omitted). “Judgment on the
pleadings ‘is appropriate where material facts are undisputed and where a judgment on the merits
is possible merely by considering the contents of the pleadings.’” Virgin Grp. Holdings Ltd. v.
Energy Parametics & Commc’ns, Inc., No. 10-cv-08752 (BSJ) (THK), 2011 WL 4448943, at *1
(S.D.N.Y. Sept. 26, 2011) (quoting Sellers v. M.C. Floor Crafters Inc., 842 F.2d 639, 642 (2d
To the extent that the non-moving party fails to oppose its opponent’s arguments on a
motion for judgment on the pleadings, “the sufficiency of a complaint is a matter of law that the
court is capable of determining based on its own reading of the pleading and knowledge of the
law.” McCall v. Pataki, 232 F.3d 321, 322-23 (2d Cir. 2000). “If a complaint is sufficient to
state a claim on which relief can be granted, the [non-moving party’s] failure to respond to a
Rule 12(b)(6) motion does not warrant dismissal.” Id. at 323.
Finally, “[p]ro se complaints are held to less stringent standards than those drafted by
lawyers, even following Twombly and Iqbal.” Thomas v. Westchester, No. 12-cv-6718 (CS),
2013 WL 3357171, at *2 (S.D.N.Y. July 3, 2013) (internal citations omitted). The court should
read pro se complaints “‘to raise the strongest arguments that they suggest.’” Kevilly v. New
York, 410 F. App’x 371, 374 (2d Cir. 2010) (summary order) (quoting Brownell v. Krom, 446
F.3d 305, 310 (2d Cir. 2006)); see also Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (“even
after Twombly, though, we remain obligated to construe a pro se complaint liberally.”).
“However, even pro se plaintiffs . . . cannot withstand a motion to dismiss unless their pleadings
contain factual allegations sufficient to raise ‘a right to relief above the speculative level.’”
Jackson v. N.Y.S. Dep’t of Labor, 709 F. Supp. 2d 218, 224 (S.D.N.Y. 2010) (quoting Twombly,
550 U.S. at 555). Dismissal is justified when “the complaint lacks an allegation regarding an
element necessary to obtain relief,” and therefore the “duty to liberally construe a plaintiff’s
complaint [is not] the equivalent of a duty to re-write it.” Geldzahler v. New York Medical
College, 663 F. Supp. 2d 379, 387 (S.D.N.Y. 2009) (internal citations and quotation marks
Consideration of Exhibits Submitted by Defendants on the Instant Motion
As an initial matter, the Court must decide whether it can consider and/or take judicial
notice of the police report, Misdemeanor Information, and/or Certificate of Disposition
submitted by Defendants as Exhibits A, B, and C to the instant motion. On a motion to dismiss,
a “court may consider the facts as asserted within the four corners of the complaint together with
the documents attached to the complaint as exhibits, and any documents incorporated in the
complaint by reference.” Simone Dev. Corp., 602 F.3d at 64 (internal quotation marks and
citation omitted). Courts also may consider “matters of which judicial notice may be taken” and
“documents either in plaintiff[’s] possession or of which plaintiff had knowledge and relied on
in bringing suit.” Brass, 987 F.2d at 150. “[A] plaintiff must ‘rel[y] on the terms and effect of
[the] document in drafting the complaint ...; mere notice or possession is not enough.’” Bejaoui
v. City of New York, No. 13-CV-5667 NGG RML, 2015 WL 1529633, at *5 (E.D.N.Y. Mar. 31,
2015) (citing Global Network Commc’ns, Inc. v. City of New York, 458 F.3d 150, 156 (2d Cir.
2006)) (alterations and emphasis in original) (quoting Chambers v. Time Warner, Inc., 282 F.3d
147, 153 (2d Cir. 2002) (courts may consider an extrinsic document when the complaint “relies
heavily upon its terms and effect”)).
Under Federal Rule of Evidence 201, “[t]he court may judicially notice a fact that is not
subject to reasonable dispute because it . . . can be accurately and readily determined from
sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b)(2). “Put
another way, facts appropriate for judicial notice must ‘meet either [one of the] test[s] of
indisputability contained in Rule 201(b): they [should be] common knowledge, [or] ... derived
from an unimpeachable source.’” Alvarez v. Cnty. of Orange, N.Y., 95 F. Supp. 3d 385, 398
(S.D.N.Y. 2015) (quoting Int’l Star Class Yacht Racing Ass’n v. Tommy Hilfiger U.S.A., Inc.,
146 F.3d 66, 70 (2d Cir. 1998)). “If a court takes judicial notice of documents pertinent to a
motion to dismiss, it need not convert the motion to dismiss into a motion for summary
judgment.” Chapman v. Abbott Labs., 930 F. Supp. 2d 1321, 1323 (M.D. Fla. 2013) (internal
citation omitted); see Staehr v. Hartford Fin. Servs. Grp., Inc., 547 F.3d 406, 426 (2d Cir. 2008)
(because “matters judicially noticed by the District Court are not considered matters outside the
pleadings,” conversion of a motion to dismiss to a motion for summary judgment is not
Neither the police report nor the Misdemeanor Information appear to be integral to the
allegations made in the Amended Complaint; nor are the documents incorporated into the
Amended Complaint by reference or attached to it. Moreover, Defendants have not explained
how the documents contain facts that are of common knowledge or that are derived from an
unimpeachable source, which would permit the Court to take judicial notice of them. See Fed. R.
Evid. 201(b)(2). As this Court has previously noted, in Alvarez Judge Karas declined to take
judicial notice of a police incident report, citing a number of reasons, including that “caution
must be used in determining that a fact is beyond controversy under Rule 201(b), . . . district
courts appear to be unsettled on whether judicial notice of materials such as these is appropriate
at the motion to dismiss stage, the  Second Circuit [has not weighed in] on the issue, and
Defendants fail[ed] to explain how the source of these documents is unimpeachable.” Alvarez,
95 F. Supp. 3d at 398. (internal quotation marks and citations omitted). The Court finds no
reason to depart from Alvarez or its prior decisions, and therefore will not take judicial notice of
or consider the extrinsic evidence contained in either document on the instant motion.
The Court will, however, take judicial notice of the Certificate of Disposition evidencing
Plaintiff’s guilty plea to obstructing governmental administration in the second degree in full
satisfaction of the three crimes charged. United States v. Alexander, 123 F. App’x 444, 445 (2d
Cir. 2005) (taking judicial notice of a certificate of disposition pursuant to Fed. R. Evid. 201);
Marcus v. Bush, No. 11-CV-4049 JS WDW, 2013 WL 2154786, at *3 (E.D.N.Y. May 17, 2013)
In order to state a claim under 42 U.S.C. § 1983, a plaintiff must allege the direct
or personal involvement of each defendant in the alleged constitutional deprivation. See Wright
v. Smith, 21 F.3d 496, 501 (2d Cir. 1994). There is no liability based on a theory of respondeat
superior or vicarious liability in a Section 1983 action. See Monell v. Dep’t of Social Servs., 436
U.S. 658, 691 (1978); Black v. Coughlin, 76 F.3d 72, 74 (2d Cir. 1996).
Plaintiff alleges personal involvement with respect to only Defendant Harris, asserting
that Harris was the officer who used excessive force on Plaintiff during his arrest. (AC ¶¶ II (D),
IV (G).) Plaintiff does not specifically allege which officer or officers used excessive force on
him while he was in the holding cell. Nor does Plaintiff allege that Officer Rivera, the other
named defendant in this action, used excessive force on him at all.
Because Plaintiff has failed to plead any personal involvement on the part of Officer
Rivera or any of the John Doe officer defendants, all claims against those defendants are
Although Plaintiff’s Amended Complaint focuses primarily on his allegations of
excessive force, Plaintiff asserts that he was arrested “for no reason.” (AC ¶ II (D).) The Court
construes this allegation as one of false arrest.
This Court issued an order pursuant to Valentin v. Dinkins, 121 F.3d 72 (2d Cir. 1997), ordering the
Corporation Counsel for the City of Mount Vernon to identify the three John Doe officers who arrested Plaintiff.
(Docket No. 7.) Plaintiff subsequently sought to amend his complaint by letter on June 3, 2013, stating that he had
identified Sergeant Harris as one of the John Doe officers. (Docket No. 11.) It is not clear whether Plaintiff’s
identification of Sergeant Harris resulted from an investigation conducted by the Corporation Counsel or Plaintiff’s
own recollection. Nevertheless, Plaintiff’s failure to identify any of the remaining John Doe officers in his
Amended Complaint requires their dismissal from this action, though the Court does so without prejudice to Plaintiff
renewing his claims should he be able to identify the identities of the remaining John Doe officers. To the extent
that the Corporation Counsel has identified any of the John Doe officers but has not disclosed their identities to the
Plaintiff, it should do so immediately.
A claim for false arrest requires proof that: “(1) the defendant intended to confine [the
plaintiff], (2) the plaintiff was conscious of the confinement, (3) the plaintiff did not consent to
the confinement and (4) the confinement was not otherwise privileged.” Jocks v. Tavernier, 316
F.3d 128, 134-35 (2d Cir. 2003) (internal quotation marks and citation omitted). The existence
of probable cause provides a complete defense to false arrest claims. See Covington v. City of
New York, 171 F.3d 117, 122 (2d Cir. 1999). Further, by pleading guilty to the crimes charged
resulting from the purportedly false arrest, or to any lesser-included offenses to resolve all of the
crimes charged, a plaintiff concedes as a matter of law that there was probable cause for all
charges covered by the plea agreement. Timmins v. Toto, 91 F. App’x 165, 166-67 (2d Cir.
2004); see also Cameron v. Fogarty, 806 F.2d 380, 387-89 (2d Cir. 1986).
Here, Plaintiff pleaded guilty to obstructing governmental administration in the second
degree in full satisfaction of the three crimes charged. Plaintiff’s guilty plea conclusively
establishes the existence of probable cause for his arrest and therefore provides a complete
defense to Plaintiff’s claim. Accordingly, Plaintiff’s false arrest claim is dismissed.
Plaintiff alleges two instances of excessive force – the first during his arrest and the
second during his confinement in a holding cell after his arrest. Despite the fact that Plaintiff
pleaded guilty to one of the three offenses with which he was charged, Plaintiff’s claims for
excessive force may proceed. See Bourdon v. Vacco, 213 F.3d 625 (2d Cir. 2000) (summary
Excessive Force During Plaintiff’s Arrest
Plaintiff’s claim of excessive force during his arrest is reviewed under an “objectively
reasonable” standard. Graham v. Connor, 490 U.S. 386, 397 (1989); Bowles v. New York, 37 F.
Supp. 2d 608, 612 (S.D.N.Y. 1999). The question for the Court is “whether the officers’ actions
are ‘objectively reasonable’ in light of the facts and circumstances confronting them, without
regard to their underlying intent or motivation.” Graham, 490 U.S. at 397. Granting “a motion
to dismiss an excessive force claim is appropriate if, accepting all of the allegations as true, it is
clear that the force used by the officers was objectively reasonable under the circumstances.”
Messina v. Mazzeo, 854 F. Supp. 116, 128-29 (E.D.N.Y. 1994) (citing Roundtree v. City of New
York, 778 F.Supp. 614 (E.D.N.Y. 1991)).
Accepting Plaintiff’s allegations as true for purposes of this motion, the Court cannot
conclude that it was objectively reasonable for Defendant Harris to strike Plaintiff with a
nightstick and repeatedly kick him after Plaintiff knelt down and placed his hands over his head.
(AC ¶ II (D).) Although Defendants argue that that the amount of force used was reasonable in
light of the severity of the crime; the immediate threat to the officers, victim, and bystanders; and
Plaintiff’s purported flight and resistance to arrest, the Court is required to construe the facts at
this stage in the light most favorable to Plaintiff. Evidence uncovered during discovery may
ultimately prove that Defendant Harris’ actions were objectively reasonable, to the extent they
occurred as alleged by Plaintiff, but such a determination is best resolved on a motion for
summary judgment or at trial. In fact, even Landy v. Irizarry, 884 F. Supp. 788 (S.D.N.Y. 1995),
the “analogous” case on which Defendants rely, dismissed the plaintiff’s excessive force claim
on a motion for summary judgment following the Court’s review of the evidence, not on a
motion to dismiss. Landy, 884 F. Supp. at 798-800. Importantly, Landy noted that, “[a]s a
general matter, the fact intensive inquiry of whether a particular use of force was reasonable is
best left for a jury to decide.” Id. at 797. This Court agrees.
Accordingly, Defendants’ motion to dismiss Plaintiff’s excessive force claim arising
from his arrest is denied.
Excessive Force While Confined In The Holding Cell
Plaintiff’s second claim of excessive force allegedly occurred while he was confined in a
holding cell after his arrest. Plaintiff’s allegations do not, however, identify the specific officers
responsible for using excessive force, by John Doe identifications or otherwise. Without
allegations of personal involvement on the part of specific officers, Plaintiff’s claim requires
dismissal. See Wright, 21 F.3d at 501. This dismissal is without prejudice to Plaintiff renewing
his claim should he be able to identify the specific officers allegedly involved, either by his own
recollection or by providing the Corporation Counsel of the City of Mount Vernon with more
specific information to determine the identities of the relevant officers.
Defendants assert qualified immunity as a defense to all of Plaintiff’s claims. The only
claim that remains, however, is Plaintiff’s claim of excessive force arising out of his arrest.
Therefore, the Court will not determine whether the Defendants would have been entitled to
qualified immunity on the dismissed claims.
“It is well established that qualified immunity may operate as a defense to excessive force
claims.” Mesa v. City of New York, No. 09 Civ. 10464(JPO), 2013 WL 31002, at *17 (S.D.N.Y.
Jan. 3, 2013) (citing Finnegan v. Fountain, 915 F.2d 817, 822–23 (2d Cir. 1990)). “Qualified
immunity shields federal and state officials from money damages unless a plaintiff pleads facts
showing (1) that the official violated a statutory or constitutional right, and (2) that the right was
‘clearly established’ at the time of the challenged conduct.” Ashcroft v. al-Kidd, 131 S.Ct. 2074,
2080 (2011) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). “If the law was clearly
established, the immunity defense ordinarily should fail, since a reasonably competent public
official should know the law governing his conduct.” Harlow, 457 U.S. at 818-19. It is within
the Court's discretion to determine the order in which the two prongs are analyzed. Pearson v.
Callahan, 555 U.S. 223, 236 (2009).
Having already decided that Plaintiff sufficiently alleges a claim of excessive force
arising from his arrest, the Court turns to the second prong of the test. "[I]t is beyond dispute
that the right to be free from excessive force has Jong been clearly established." Read v. Town of
Suffern Police Dep't, No. 10 CIV. 9042 JPO, 2013 WL 3193413, at *7 (S.D.N.Y. June 25,
2013), appeal dismissed (Oct. 30, 2013) (quoting Green v. Montgomery, 219 F.3d 52, 59 (2d Cir.
2000) (citation omitted)). Thus, because Plaintiff sufficiently alleges a claim of excessive force
and because the law is clearly established, Defendants' request for qualified immunity is denied.
For the foregoing reasons, Defendants' motion for judgment on the pleadings is
GRANTED in part and DENIED in part. The Clerk is directed to terminate the motion at ECF
No. 42 and to remove Officer Rivera and the John Doe defendants from the caption. The parties
are directed to appear at an in-person status conference on February 4, 2016 at 10 a.m., at which
time they should provide the Comt with a completed Civil Case Discovery Plan and Scheduling
Order. Finally, Plaintiff is reminded that it is his obligation to promptly submit a written
notification to the Comt if his address changes, and the Comt may dismiss the action if Plaintiff
fails to do so.
December l, 2015
White Plains, New York
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