Vasquez v. DOE et al
OPINION & ORDER re: 46 MOTION to Dismiss . MOTION to Strike Document No. [Dkt. 41] in relevant part filed by Police Officers John Doe(s). In light of the foregoing discussion, Defendants' Motion To Dismiss is granted i n part and denied in part. Plaintiff is given one final opportunity to file an amended complaint addressing the deficiencies identified above and specifically naming the individual defendants against whom he wishes to proceed so that those defendan ts may be served. As discussed above, the individuals are Garry Lazar, Keith Rosario, Edward McManus, and Michael Canavan. (See Dkt. Nos. 12, 16.) The amended complaint must be filed within 45 days from the date of this Opinion. If Plaintiff does not comply with these instructions, this Action will be dismissed with prejudice. The Clerk of Court is respectfully directed to terminate the pending Motion, (see Dkt. No. 46), and to mail a copy of this Opinion to Plaintiff. (As further set forth in this Order.) (Signed by Judge Kenneth M. Karas on 9/26/2017) (cf)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-vNo. 15-CV-8845 (KMK)
THE VILLAGE OF HAVERSTRAW, POLICE
OFFICER JOHN DOE I, POLICE OFFICER
JOHN DOE 2, and POLICE OFFICERS JOHN
DOE(S) AN UNSPECIFIED AMOUNT, in their
individual and official capacities,
OPINION & ORDER
4600 Monterey Oaks Blvd., #722
Austin, TX 78749
Pro Se Plaintiff
Courtney F. Chenette, Esq.
Morris Duffy Alonso & Faley
New York, NY 10006
Counsel for Defendants
KENNETH M. KARAS, District Judge:
Pro se Plaintiff Kim Vasquez (“Plaintiff”) brings this Action against Defendants
Haverstraw Police Officer(s) John Does and the Village of Haverstraw, alleging violations of his
constitutional and statutory rights pursuant to 42 U.S.C. § 1983, as well as related state law
claims. (See generally Am. Compl. (Dkt. No. 41).) Plaintiff has named the Village of
Haverstraw as a Defendant, but the Village of Haverstraw does not have a police department.
The Court therefore assumes that Plaintiff intended to name the Town of Haverstraw (the
“Town”) as a Defendant. The Town and the Haverstraw Police Officer(s) John Does
(collectively, “Defendants”) have moved to dismiss Plaintiff’s Amended Complaint on the
grounds that Plaintiff has failed to comply with the Court’s Orders, failed to effectuate service,
and failed to state a claim. In the alternative, Defendants move to strike certain claims that they
contend were improperly added to Plaintiff’s Amended Complaint. For the reasons to follow,
Defendants’ Motion To Dismiss (the “Motion”) is granted in part and denied in part.
A. Factual Background
The following facts are taken from Plaintiff’s Amended Complaint and are accepted as
true for the purpose of resolving the Motion. At the time of the events described herein, Plaintiff
resided at 60 Broad Street, Apartment #112, Haverstraw, NY. Plaintiff presently resides at 4600
Monterey Oaks Blvd., #722, Austin, TX.
Plaintiff alleges that at around 10:00 P.M. on an unspecified date between January and
February of 2015, he was sitting in the front passenger seat of a friend’s parked car at 60 Broad
Street in Haverstraw, New York, when a Haverstraw Police Officer (“John Doe #1”) approached
Plaintiff’s car door with a gun drawn and pointed at Plaintiff. (See Am. Compl. ¶¶ 8–9.)
Plaintiff contends that he held his hands up to “show he was not holding anything,” at which
point John Doe #1 “pulled . . . Plaintiff out of the vehicle while his arms were raised, by his arm,
and threw . . . [P]laintiff to the [concrete] floor.” (Id. ¶¶ 10–11.) Plaintiff’s knee and wrist were
injured as a result of being pulled out of the car. (See id. ¶ 20.) While face-down on the
concrete, Plaintiff alleges that he was handcuffed, that John Doe #1 removed “all of the
possessions in [Plaintiff’s] pocket,” and that Plaintiff was escorted by John Doe #1 to the back
seat of a police car. (Id. ¶¶ 13–14.) Plaintiff’s injuries were allegedly aggravated when he was
placed in handcuffs. (See id. ¶ 21.) While Plaintiff was in the back seat of the police car, a
different police officer (“John Doe #2”) allegedly “pulled out a gun and pointed it at [Plaintiff’s]
Muslim sister as she approached the officer after coming outside . . . to see what was going on.”
(Id. ¶ 15.) Throughout the course of this incident, Plaintiff contends that “unspecified” John Doe
Haverstraw police officers were “aiming guns” at him. (Id. ¶ 12.) However, “after about 10-15
[minutes], . . . Plaintiff was allowed out of the backseat of the police vehicle, and the handcuffs
were removed.” (Id. ¶ 16.) Plaintiff was not given a reason “as to why he endured this
treatment, and was not offered any medical attention.” (Id. ¶ 17.) In the aftermath of the
incident, Plaintiff allegedly spent “weeks” attempting to locate some of his seized property,
including his driver’s license. (Id. ¶ 19.)
Plaintiff attributes both physical and emotional injuries to John Doe #1’s actions which
“have since caused present and continual damage.” (Id. ¶ 22.) Plaintiff further contends that
John Doe #2’s treatment of his sister has caused him “trauma and . . . consistent fears and
nightmares[,] all mental and psychological.” (Id. ¶ 25.) With respect to the actions of the
unspecified John Does, Plaintiff again alleges “mental anguish,” “trauma,” and “consistent fears
and nightmares” from their conduct. (Id. ¶ 24.) Plaintiff additionally contends that the Town’s
“fail[ure] to properly train the police officers involved” amounted to a violation of his
constitutional rights and was yet another source of his injuries and trauma. (Id. ¶ 27.)
Plaintiff seeks various forms of relief. Specifically, Plaintiff seeks special damages in the
amount of $20,000 from both John Doe #1 and the Town for the “loss of time and earnings with
the loss of his license, and loss of work ability due to injuries.” (Id. ¶¶ 33–34.) Plaintiff also
seeks $2,000,000 in “general damages” from John Doe #1 for the physical and mental pain
allegedly caused by John Doe #1, and an additional $2,000,000 from the Town for its liability on
behalf of the offending John Doe Officers. (Id. ¶¶ 35–36.) Plaintiff seeks $100,000 from John
Doe #2 and each of the unspecified John Doe Officers for their roles in inflicting the alleged
mental anguish and nightmares. (See id. ¶¶ 37–38.) Plaintiff seeks $100,000 in both “nominal”
and “punitive” damages for John Doe #1’s constitutional violations and unlawful conduct,
respectively. (See id. ¶¶ 39–40.) Plaintiff additionally seeks $60,000 in punitive damages from
John Doe #2 for his conduct in the alleged incident. (See id. ¶ 41.) Lastly, Plaintiff seeks
attorney’s fees and costs as well as “such other and further relief as may appear just and
appropriate.” (Id. ¶¶ 42–43.)
B. Procedural History
On November 10, 2015, Plaintiff filed his initial Complaint. (See Dkt. No. 2.)1 On
December 10, 2015, this Court filed an Order of Service (“Valentin Order”) which, inter alia,
held that, pursuant to Valentin v. Dinkins, 121 F.3d 72 (2d Cir. 1997), Plaintiff’s Complaint
“supplie[d] sufficient information to permit the Town (or Village) of Haverstraw and its Police
Department . . . to identify the members of the Haverstraw Police Department that took part in
arresting Plaintiff.” (Order of Service 2 (Dkt. No. 6).) The Valentin Order required that the
Town provide the identities and addresses of the John Does to Plaintiff and the Court within 60
days, and that the Plaintiff amend his Complaint to reflect the newly identified individuals within
30 days of receipt of that information. (See id. at 3.)
On April 7, 2016, following Plaintiff’s motion to enter a default judgment in his favor,
which was denied, (see Dkt. No. 11), Defendants submitted a letter which identified Garry Lazar,
Keith Rosario, and Edward McManus as “individuals with knowledge of the allegations set forth
in Plaintiff’s complaint.” (Letter from Courtney F. Chenette, Esq., to Court (Apr. 7, 2016) 1
Plaintiff’s initial Complaint named Rockland County Sheriff Louis Falco as a
defendant. However, Plaintiff voluntarily withdrew the claims asserted against him. (See Dkt.
(Dkt. No. 12).) Defendants subsequently identified Michael Canavan as an individual “with
knowledge of the allegations set forth in Plaintiff’s complaint.” (Dkt. No. 16.)
In response to Plaintiff’s assertion that Defendants had not adequately complied with the
Valentin Order, (see Dkt. No. 17), the Court ordered on May 13, 2016 that Defendants explain
“how they have complied with the Valentin Order issued by the Court.” (Order 2 (Dkt. No. 18).)
On May 26, 2016, Defendants filed a letter explaining that the officers identified were, to their
knowledge, the four John Does described in Plaintiff’s Complaint. (See Dkt. No. 19.) Plaintiff
filed two letters in response, dated June 1 and June 6, 2016, respectively, in which he again
argued that Defendants did not provide the identities of the individuals who took part in
Plaintiff’s arrest. (See Dkt. Nos. 20–21.) On June 10, 2016, the Court memo endorsed one of
Plaintiff’s letters, stating that Defendants’ May 26 letter complied with the Court’s directives.
(See Dkt. No. 23.) Also on June 10, 2016, Defendants filed a letter requesting that the Court
hold a telephone conference to address the foregoing procedural issues. (See Dkt. No. 22.) On
June 13, 2016, the Court issued a memo endorsement granting Defendants’ request for a
conference. (See Dkt. No. 24.) On June 30, 2016, the Court held the telephone conference and
ordered Plaintiff to file an amended complaint by July 15, 2016. (See Dkt. (minute entry for
June 30, 2016).)
On July 20, 2016, Defendants filed a letter noting Plaintiff’s failure to comply with the
Court’s June 30 Order and requesting leave to file a premotion letter. (See Dkt. No. 25.) The
Court’s same-day memo endorsement granted Defendants’ request. (See Dkt. No. 26.) On July
26, 2016, Defendants submitted a premotion letter explaining the grounds upon which their
putative Motion To Dismiss would be based. (See Dkt. No. 27.) The following day, the Court
granted Defendants permission to file the Motion. (See Dkt. No. 28.) On August 2, 2016,
Plaintiff filed a letter that attached a proposed amended complaint and requested pro bono
counsel. (See Dkt. No. 31.) Once again, the proposed amended complaint failed to identify the
individuals against whom Plaintiff wished to proceed. (See id.) The Court subsequently
responded with a memo endorsement on August 10, 2016, denying Plaintiff’s request for pro
bono counsel without prejudice. (See Dkt. No. 32.) On August 11, 2016, the Court issued an
Order allowing Plaintiff 20 additional days to file a proper amended complaint identifying the
individuals against whom he wished to proceed, or risk facing dismissal of this Action. (See
Order 2 (Dkt. No. 33).)
On August 22, 2016, Plaintiff submitted a letter in which he requested that the Pro Se
Unit provide him with a list of capable pro bono attorneys. (See Dkt. No. 34.) On the following
day, the Court issued a memo endorsement reiterating Defendants’ sufficient compliance with
their Valentin obligations and finding that neither the Pro Se Unit nor the Clerk of the Court were
required to honor Plaintiff’s request. (See Dkt. No. 35.) On September 1, 2016, Defendants
submitted a letter noting Plaintiff’s failure to comply with the August 11 Order. (See Dkt. No.
36.) On September 12, 2016, the Court issued a memo endorsement requiring that Plaintiff
respond to Defendants’ letter by September 26, 2016, or face possible dismissal of this Action.
(See Dkt. No. 37.) On September 22, 2016, Plaintiff submitted a letter requesting a telephone
conference to establish the roles of the individuals identified in the alleged incident and to
provide additional information to help Plaintiff properly file his amended complaint. (See Dkt.
No. 38.) On September 28, 2016, by which point Plaintiff had again failed to submit an
amended complaint, the Court subsequently denied Plaintiff’s request for a conference and gave
Plaintiff “one last chance” to file his amended complaint by October 10, 2016. (See Dkt. No.
39.) The Court noted that the “identity of the unknown defendants can be addressed at an
appropriate time.” (Id.)
On October 11, 2016, Defendants submitted a letter advising the Court of Plaintiff’s
failure to comply with the September 28 Order. (See Dkt. No. 40.) However, the following day
Plaintiff submitted his Amended Complaint. (See Am. Compl.) Again, the Amended Complaint
failed to name any of the individual John Does. (See id.) On October 28, 2016, Defendants
submitted a letter seeking leave to file a renewed Motion To Dismiss, (see Dkt. No. 44), which
the Court granted the same day, (see Dkt. No. 45). Pursuant to the Court’s October 28 memo
endorsement, Defendants were to file their Motion To Dismiss by November 30, 2016, Plaintiff
was to respond by December 31, 2016, and Defendants were to reply by January 15, 2017. (See
id.) Plaintiff was not to file any additional amended complaints without the Court’s permission.
(See id.) Accordingly, Defendants filed the Motion and accompanying papers on November 30,
2016. (See Dkt. Nos. 46–48.) Plaintiff filed opposition papers on December 9, 2016, (see Dkt.
No. 49), and Defendants filed a reply on January 15, 2017, (see Dkt. No. 50).
On January 25, 2017, Plaintiff filed a letter again requesting that Defendants be ordered
to provide the names of the police officers involved in the events giving rise to this Action. (See
Dkt. No. 51.) Defendants filed a response reiterating their compliance with the Court’s orders
and arguing that Plaintiff was the one who failed to comply with the Court’s orders. (See Dkt.
No. 53.) Plaintiff filed two additional letters in an attempt to explain Defendants’ failure to
identify the names of the John Does. (See Dkt Nos. 54, 56.)
A. Failure To Comply With Court Orders
Rule 41(b) of the Federal Rules of Civil Procedure authorizes a district court to dismiss
an action if a plaintiff fails “to prosecute or to comply with . . . a court order.” Fed. R. Civ. P.
41(b); see also Lucas v. Miles, 84 F.3d 532, 534–35 (2d Cir. 1996) (“Rule 41(b) of the Federal
Rules of Civil Procedure authorizes the district court to dismiss an action when a plaintiff fails to
comply with any order of the court.” (internal quotation marks omitted)). “[A]ll litigants,
including pro ses, have an obligation to comply with court orders. When they flout that
obligation they, like all litigants, must suffer the consequences of their actions.” McDonald v.
Head Criminal Court Supervisor Officer, 850 F.2d 121, 124 (2d Cir. 1998). However,
“dismissal is a harsh remedy and is appropriate only in extreme situations.” Lucas, 84 F.3d at
535. Where a plaintiff proceeds pro se, courts should be especially hesitant to dismiss his claim
for procedural deficiencies. Id.
In determining whether dismissal with prejudice for failure to comply with the Court’s
orders is warranted in this Action, the Court must weigh several factors:
(1) the duration of the plaintiff’s failures, (2) whether plaintiff had received notice
that further delays would result in dismissal, (3) whether the defendant is likely to
be prejudiced by further delay, (4) whether the district judge has take[n] care to
strik[e] the balance between alleviating court calendar congestion and protecting a
party’s right to due process and a fair chance to be heard . . . and (5) whether the
judge has adequately assessed the efficacy of lesser sanctions.
Jackson v. City of New York, 22 F.3d 71, 74 (2d Cir. 1994) (alterations in original) (internal
quotation marks omitted); Deptola v. Doe, No. 04-CV-1379, 2005 WL 2483341, at *2 (E.D.N.Y.
Oct. 7, 2005) (same). No single factor is dispositive in deciding if dismissal is warranted. See
Spencer v. Doe, 139 F.3d 107, 113 (2d Cir. 1998) (“Generally, no factor is dispositive.”).
Many of these factors weigh in favor of granting Defendants’ Motion. However, the
Court will not dismiss this Action for failure to prosecute at this time. Plaintiff is given one final
opportunity to file an amended complaint specifically naming the individual defendants against
whom he wishes to proceed so that those defendants can be served. As discussed above, the
individuals are Garry Lazar, Keith Rosario, Edward McManus, and Michael Canavan. (See Dkt.
Nos. 12, 16.) In an ideal world, Plaintiff would know the role that each of these individuals
played in the allegedly unlawful conduct, but Defendants have been willing only to state that
these individuals have “knowledge of the allegations set forth in Plaintiff’s complaint.” (See
Dkt. No. 12.) One court has found that a similar disclosure satisfies Valentin. See Pereyra v.
Eaddy, No. 13-CV-4760, 2015 WL 3953606, at * 2 (S.D.N.Y. June 29, 2015) (noting that the
defendant identified “officers who may have been involved in an incident involving [the]
plaintiff” in response to a Valentin order (internal quotation marks omitted)). Thus, Plaintiff is
not entitled to have counsel admit to the precise roles that these individuals played in the events
giving rise to this Action. That information will be gleaned during discovery, if Plaintiff
otherwise states a claim.
Plaintiff must name Garry Lazar, Keith Rosario, Edward McManus, and Michael
Canavan in the caption of an amended complaint for this Action to proceed.2 Plaintiff need not
be concerned about committing fraud on the Court by complying with this Order. The Court is
fully aware that Plaintiff does not know the exact role that these individuals played in the
conduct giving rise to this Action. That is why the Court is only ordering Plaintiff to name these
individuals in the caption as defendants.
Of course, if Plaintiff can, he should endeavor to name them in the body of the amended
complaint as well.
This is Plaintiff’s final opportunity to comply with this Court’s orders. Failure to file an
amended complaint naming the above identified individuals will result in the dismissal of this
B. Monell Liability
Defendants additionally argue that Plaintiff’s Amended Complaint fails to satisfy the
requirements of Monell v. Department of Social Services, 436 U.S. 658 (1978), such that all
claims against the Town must be dismissed. (See Defs.’ Mem. of Law in Supp. of Mot. To
Dismiss 10 (Dkt. No. 48).)
A municipal defendant, in this case the Town, “cannot be held liable under § 1983 on a
respondeat superior theory.” Monell, 436 U.S. at 691 (italics omitted); see also Jones v. Town of
East Haven, 691 F.3d 72, 80 (2d Cir. 2012) (reaffirming that “a municipality cannot be held
liable on a respondeat superior basis for the tort of its employee” (italics omitted)). Rather, for a
plaintiff to prevail on a § 1983 claim against a municipal employer, he must satisfy the
requirements set forth in Monell and its progeny, which adhere to the well-settled principle that
“Congress did not intend municipalities to be held liable [under § 1983] unless action pursuant to
official municipal policy of some nature caused a constitutional tort.” Monell, 436 U.S. at 691;
see also Hunter v. City of New York, 35 F. Supp. 3d 310, 322 (E.D.N.Y. 2014) (“In order to
sustain a claim for relief pursuant to § 1983 against a municipal defendant, a plaintiff must show
the existence of an official policy or custom that caused injury and a direct causal connection
between that policy or custom and the deprivation of a constitutional right.”).
A plaintiff may satisfy the “policy or custom” requirement by alleging one of the
(1) a formal policy officially endorsed by the municipality; (2) actions taken by
government officials responsible for establishing the municipal policies that caused
the particular deprivation in question; (3) a practice so consistent and widespread
that, although not expressly authorized, constitutes a custom or usage of which a
supervising policy-maker must have been aware; or (4) a failure by policymakers
to provide adequate training or supervision to subordinates to such an extent that it
amounts to deliberate indifference to the rights of those who come into contact with
the municipal employees.
Brandon v. City of New York, 705 F. Supp. 2d 261, 276–77 (S.D.N.Y. 2010) (citations omitted).
In addition, a plaintiff must establish a causal link between the municipality’s policy, custom, or
practice and the alleged constitutional injury. See Roe v. City of Waterbury, 542 F.3d 31, 37 (2d
Cir. 2008) (holding that “a plaintiff must demonstrate that, through its deliberate conduct, the
municipality was the moving force behind the alleged injury” (internal quotation marks
omitted)); Tieman v. City of Newburgh, No. 13-CV-4178, 2015 WL 1379652, at *12 (S.D.N.Y.
Mar. 26, 2015) (“[T]here must be a direct causal link between a municipal policy or custom and
the alleged constitutional deprivation.” (internal quotation marks omitted)); Johnson v. City of
New York, No. 06-CV-9426, 2011 WL 666161, at *3 (S.D.N.Y. Feb. 15, 2011) (noting that “a
plaintiff must establish a causal connection—an affirmative link—between the [municipal]
policy and the deprivation of his constitutional rights” (internal quotation marks omitted)).
“Normally, a custom or policy cannot be shown by pointing to a single instance of
unconstitutional conduct by a mere employee of the municipality.” Tieman, 2015 WL 1379652,
at *12 (alteration and internal quotation marks omitted); see also Oklahoma City v. Tuttle, 471
U.S. 808, 823–24 (1985) (“Proof of a single incident of unconstitutional activity is not sufficient
to impose liability under Monell, unless proof of the incident includes proof that it was caused by
an existing, unconstitutional municipal policy . . . [that] can be attributed to a municipal
policymaker.”); Brogdon v. City of New Rochelle, 200 F. Supp. 2d 411, 427 (S.D.N.Y. 2002) (“A
single incident by itself is generally insufficient to establish the affirmative link between the
municipal policy or custom and the alleged unconstitutional violation.”). There are two
circumstances that courts have expressly identified as constituting a municipal policy: “where
there is an officially promulgated policy as that term is generally understood,” and “where a
single act is taken by a municipal employee who, as a matter of [s]tate law, has final
policymaking authority in the area in which the action was taken.” Newton v. City of New York,
566 F. Supp. 2d 256, 271 (S.D.N.Y. 2008). “A municipal ‘custom,’ on the other hand, need not
receive formal approval by the appropriate decision maker,” id., but nonetheless “may fairly
subject a municipality to liability on the theory that the relevant practice is so widespread as to
have the force of law,” Kucharczyk v. Westchester County, 95 F. Supp. 3d 529, 539 (S.D.N.Y.
2015) (internal quotation marks omitted). “To prevail on this theory of municipal liability, . . . a
plaintiff must prove that the custom at issue is permanent and well-settled.” Tieman, 2015 WL
1379652, at *16.
Plaintiff has not plausibly alleged a Monell claim. While the Amended Complaint details
an incident that Plaintiff finds objectionable, it does not plead the existence of a municipal policy
or custom. “A Monell claim cannot go forward based on conclusory claims regarding a single
incident without more evidence that connects th[e] incident to a municipal policy or practice.”
Pittman v. City of New York, No. 14-CV-4140, 2014 WL 7399308, at *7 (E.D.N.Y. Dec. 30,
2014) (italics added); see also Gordon v. City of New York, No. 10-CV-5148, 2012 WL 1068023,
at *4 (E.D.N.Y. Mar. 29, 2012) (dismissing Monell claim where the plaintiff’s “allegation [was]
unsupported by anything other than the facts of what occurred in his particular case”). Plaintiff
here offers nothing more, as the Amended Complaint is devoid of allegations to support an
inference of any Town policy, practice, or custom—other than perhaps the bare assertion that the
John Doe officers were not adequately trained, leaving Plaintiff short of the mark. See Ricciuti v.
N.Y.C. Transit Auth., 941 F.2d 119, 123 (2d Cir. 1991) (“[A] single incident alleged in a
complaint, especially if it involved only actors below the policy-making level, does not suffice to
show a municipal policy.”); 5 Borough Pawn, LLC v. City of New York, 640 F. Supp. 2d 268,
300 (S.D.N.Y. 2009) (dismissing Monell claim where the “plaintiffs fail[ed] to allege any facts
showing that there [was] a [c]ity policy—unspoken or otherwise—that violate[d] the Federal
Nor does Plaintiff assert the existence of a Town policymaker responsible for any
unconstitutional policy relevant to the causes of action here. See Pignone v. Village of Pelham
Manor, No. 10-CV-2589, 2014 WL 929805, at *4 (S.D.N.Y. Mar. 6, 2014) (noting that “[a]
plaintiff bears the burden of establishing an official’s status as a final policymaker with proof of
the official’s scope of employment and his role within the municipal or corporate organization”);
cf. Dellutri v. Village of Elmsford, 895 F. Supp. 2d 555, 568 (S.D.N.Y. 2012) (“[The] [p]laintiff
only alleges that the inspector and assistant inspector issued a notice of violation. Without more,
this does not demonstrate that these individuals exercised final policymaking authority.”).
Because Plaintiff has failed to present sufficient allegations of any policy or custom, the Court
accordingly dismisses all claims against the Town.
C. State Law Claims
In addition to the federal claims addressed above, the Amended Complaint contains a
number of claims arising under New York State law—namely, assault, battery, and false
imprisonment. (See Am. Compl. ¶ 31.) These causes of action do not present a federal question
and, at the time Plaintiff initiated this Action, he, and at least one Defendant, were citizens of
New York State.3 As such, because no independent basis for federal jurisdiction exists, the
The fact that Plaintiff currently resides in Texas does not establish diversity jurisdiction
because he was a citizen of New York when the Complaint was filed. See Bogan v.
Northwestern Mut. Life Ins. Co., 103 F. Supp. 2d 698, 700 (S.D.N.Y. 2000) (“For diversity
Court may entertain these claims pursuant only to a theory of supplemental jurisdiction. See
Matican v. City of New York, 524 F.3d 151, 154–55 (2d Cir. 2008) (“[I]f [a plaintiff] has no valid
claim under § 1983 against any defendant, it is within the district court’s discretion to decline to
exercise supplemental jurisdiction over the pendent state-law claims.”).
“State claims brought under state law in federal court are subject to state procedural
rules.” Coggins v. County of Nassau, 988 F. Supp. 2d 231, 250 (E.D.N.Y. 2013), aff’d in part,
776 F.3d 108 (2d Cir. 2015). New York General Municipal Law § 50-i “provides that a plaintiff
must commence any action against a county for ‘personal injury’ within one year and  days
from the claim’s accrual.” Id. Claims for assault, battery, and false imprisonment are subject to
this requirement. See id. at 250 n.11 (noting that personal injury includes “malicious
prosecution, assault, battery, false imprisonment, or other actionable injury to the person either
of the plaintiff, or of another”). Section 50-e(1) “requires that notice of claim be filed within
 days of the incident giving rise to the claim.” Id. at 251. These same conditions apply to
suits against employees of a county or municipality. Chamberlain v. City of White Plains, 986 F.
Supp. 2d 363, 396 (S.D.N.Y. 2013) (noting that “filing a [n]otice of [c]laim with a municipality
is a condition precedent to commencing a tort claim against any employee of that municipality”).
Plaintiff admits that he did not file a notice of claim before commencing this Action.
(See Letter from Plaintiff to Court (Jan. 27, 2017) 1 (Dkt. No. 51).) Plaintiff asserts that his time
to file a notice of claim was tolled because he had a “legal disability” during this time period.
(See id.) However, this conclusory statement is not sufficient to warrant equitable tolling. See
Johnson v. N.Y. Police Dep’t, No. 12-CV-5423, 2012 WL 6553740, at *2 (E.D.N.Y. Dec. 14,
purposes, the relevant date in determining a party’s domicile is the date on which the complaint
was filed—actions subsequent to that date, such as changing addresses or moving residences, are
2012) ("The [c]ourt finds that tolling is unwarranted because [the] plaintiff provides no specific
description of his mental illness, the duration of his mental illness, or how such illness affected
his ability to comply with the three-year statute of limitations."). Plaintiffs disability claim is
further belied by the fact that he has been litigating this Action since November 2015 and this is
the first mention of any disability. Accordingly, Plaintiffs state-law claims are dismissed for
failure to file a notice of claim.
In light of the foregoing discussion, Defendants' Motion To Dismiss is granted in part
and denied in part. Plaintiff is given one final opportunity to file an amended complaint
addressing the deficiencies identified above and specifically naming the individual defendants
against whom he wishes to proceed so that those defendants may be served. As discussed above,
the individuals are Garry Lazar, Keith Rosario, Edward McManus, and Michael Canavan. (See
Dkt. Nos. 12, 16.) The amended complaint must be filed within 45 days from the date of this
Opinion. If Plaintiff does not comply with these instructions, this Action will be dismissed with
The Clerk of Court is respectfully directed to terminate the pending Motion, (see Dkt.
No. 46), and to mail a copy of this Opinion to Plaintiff.
SeptemberO,b , 2017
White Plains, New York
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