Bembo v. County of Niagara

Filing 9

-CLERK TO FOLLOW UP---DECISION AND ORDER denying Defendants' 3 Motion to Dismiss for failure to exhaust administrative remedies. The motion to dismiss plaintiff's claim for the use of excessive force is denied. The defendants are directed to file an answer to the complaint and to proceed in accordance with the Federal Rules of Civil Procedure. Signed by Hon. John T. Curtin on 9/18/2013. (JEC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

RODRIGUEZ A. BEMBO,
Plaintiff,
-vs-

13-CV-413JTC

COUNTY OF NIAGARA, OFFICER PHILLIPS,
OFFICER SHAVER, and SERGEANT KOLBE,
Defendants.

APPEARANCES:

PRATHIMA REDDY, ESQ., Buffalo, New York,
Attorney for Plaintiff.
GIBSON, McASKILL & CROSBY, LLP (ELIZABETH
M. BERGEN, ESQ., Of Counsel), Buffalo, New York,
Attorneys for Defendants.

INTRODUCTION
On April 26, 2013, plaintiff, Rodriguez A. Bembo, filed a complaint alleging
violations of the Eighth Amendment to the United States Constitution and seeking
damages pursuant to 42 U.S.C. § 1983. Specifically, plaintiff alleged that he was
subjected to cruel and unusual punishment and excessive force, and suffered
permanent injuries. Additionally, plaintiff alleged state law claims for the intentional and
negligent infliction of emotional distress (Item 1). Presently before the court is
defendants’ motion to dismiss for failure to exhaust administrative remedies and for
failure to properly allege the excessive force claim pursuant to section 1983 (Item 3).

BACKGROUND and FACTS
On or about January 11, 2012, plaintiff was incarcerated at the Niagara County
Jail. Item 1, ¶ 10. In his complaint, he alleges that defendants Phillips and Shaver
“aggressively and unnecessarily placed him in handcuffs.” Id., ¶ 14. While he was
restrained, the defendants used excessive force and injured plaintiff’s right wrist. Id., ¶
15. He was denied any treatment for the injury despite his complaints of pain and the
inability to use his right hand. Id., ¶¶ 18-19. On or about February 2, 2012, plaintiff was
released from the Niagara County Jail. Id., ¶ 20. He underwent surgery on his right
wrist in April 2012, but suffers permanent damage and has not regained the full use of
his right wrist and hand. Id., ¶¶ 25-26. Plaintiff states that, at the time of his
incarceration, administrative remedies were not available to him and that he is no
longer incarcerated. Id., ¶ 31.
In the introductory paragraph of his complaint, plaintiff states that he filed “this
complaint for damages under 42 U.S.C. § 1983 for the violation of his civil rights, as
protected under the United States Constitution . . ..” Item 1. In Count I of the
complaint, alleging cruel and unusual punishment in violation of the Eighth Amendment,
plaintiff specifically states that he “is entitled to recover damages from harm suffered as
a result of the cruel and unusual punishment pursuant to 42 U.S.C. § 1983.” Id., ¶ 34.
In Count II of the complaint, alleging the excessive use of force, plaintiff does not
explicitly state that he is entitled to damages pursuant to section 1983, but incorporates
the preceding paragraphs of the complaint. Id., ¶¶ 37, 40.
In lieu of an answer, on May 28, 2013, defendants filed a motion to dismiss the

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complaint, arguing that plaintiff filed to exhaust his administrative remedies as required
by the Prison Litigation Reform Act, 42 U.S.C. § 1997e et seq. (“PLRA”). Item 3.
Additionally, they argued that plaintiff failed properly to allege his claim for the
excessive use of force pursuant to 42 U.S.C. § 1983 and thus the court lacks subject
matter jurisdiction to hear the claim. Plaintiff filed a response to the motion on August
16, 2013 (Item 7). Defendants declined to file a reply, and the motion was submitted
without oral argument. For the following reasons, the defendants’ motion is denied.

DISCUSSION
1. Standard on a Motion to Dismiss
In considering a motion to dismiss pursuant to Rule 12(b)(6), the court must take
“factual allegations [in the complaint] to be true and draw[ ] all reasonable inferences in
the plaintiff's favor.” Harris v. Mills, 572 F.3d 66, 71 (2d Cir. 2009) (citation omitted).
The court's function on a motion to dismiss is “not to weigh the evidence that might be
presented at a trial but merely to determine whether the complaint itself is legally
sufficient.” Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir. 1985) (citation omitted).
The court should not dismiss the complaint if the plaintiff has provided “enough facts to
state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While the court
should construe the factual allegations in the light most favorable to the plaintiff, “the

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tenet that [the court] must accept as true all of the allegations contained in a complaint
is inapplicable to legal conclusions.” Id.
2. Prison Litigation Reform Act (“PLRA”)
The PLRA provides that “[n]o action shall be brought with respect to prison
conditions under section 1983 ... by a prisoner confined in any jail, prison, or other
correctional facility until such administrative remedies as are available are exhausted.”
42 U.S.C. § 1997e(a). This exhaustion requirement is mandatory and covers “all
inmate suits about prison life, whether they involve general circumstances or particular
episodes, and whether they allege excessive force or some other wrong.” Porter v.
Nussle, 534 U.S. 516, 532 (2002). However, this statute mandates exhaustion only for
those actions filed by prisoners while “confined” in a jail or prison. Thus, the statute is
inapplicable where the litigant commencing the action files suit after release from
confinement. See Grieg v. Goord, 169 F.3d 165, 167 (2d Cir. 1999); Dilworth v.
Goldberg, 2011 WL 3501869, *14 (S.D.N.Y. July 28, 2011).
Here, plaintiff has alleged that he is no longer incarcerated and filed suit after his
release from the Niagara County Jail. Accordingly, plaintiff has sufficiently stated a
claim for relief pursuant to section 1983, as the exhaustion requirements of the PLRA
do not apply to this action.
3. Section 1983 Claim
Alternatively, defendants argue that plaintiff has failed properly to assert a
section 1983 claim for the excessive use of force, relying exclusively on the Eighth
Amendment. The court has reviewed the complaint and disagrees. Although the

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statute is not explicitly cited in Count II of the complaint, plaintiff clearly states in the
introductory paragraph that his federal claims are brought pursuant to section 1983. In
addition, plaintiff twice incorporated the preceding paragraphs of the complaint, wherein
he cited section 1983, in Count II . See Item 1, ¶¶ 37, 40. The failure to specifically
cite a statute in the complaint is not fatal to the plaintiff’s claim. See, e.g., Simonton v.
Runyon, 232 F.3d 33, 36–37 (2d Cir. 2000) (“[G]enerally a complaint that gives full
notice of the circumstances giving rise to the plaintiff's claim for relief need not also
correctly plead the legal theory or theories and statutory basis supporting the claim.”)
(citation and internal quotation marks omitted); Northrop v. Hoffman of Simsbury, Inc.,
134 F.3d 41, 46 (2d Cir. 1997), abrogated on other grounds by Swierkiewicz v. Sorema
N.A., 534 U.S. 506 (2002) (“Under the liberal pleading principles established by Rule 8
of the Federal Rules of Civil Procedure, in ruling on a 12(b)(6) motion the failure in a
complaint to cite a statute, or to cite the correct one, in no way affects the merits of a
claim. Factual allegations alone are what matters.”) (citation and internal quotation
marks omitted); Sabilia v. Richmond, 2011 WL 7091353, *26, (S.D.N.Y. October 26,
2011), Report and Recommendation adopted by, 2012 WL 213656 (S.D.N.Y. January
24, 2012) (“That plaintiffs did not label these allegations as a breach-of-contract claim is
not fatal to their pleading, since we must look to the factual allegations of the complaint
as defining the nature of the claim rather [than] depend upon the legal labels affixed to
those factual allegations.”) (citations omitted). Despite his failure explicitly to invoke the
statute in Count II of the complaint, plaintiff has sufficiently alleged a claim pursuant to
section 1983 for the excessive use of force in violation of the Eighth Amendment.

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CONCLUSION
Defendants’ motion to dismiss for failure to exhaust administrative remedies is
DENIED. Likewise, the motion to dismiss plaintiff’s claim for the use of excessive force
is DENIED. The defendants are directed to file an answer to the complaint and to
proceed in accordance with the Federal Rules of Civil Procedure.
So Ordered.

____\s\ John T. Curtin______
JOHN T. CURTIN
United States District Judge
Dated: September 18, 2013
p:\pending\2013\13-413.sep17.2013

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