Mustafa v. Ontario County Sheriff Povero, et al

Filing 27

DECISION AND ORDER granting in part and denying in part 4 Motion to Dismiss. The Complaint is deemed amended, to include Docket Nos. [#4-2] & [#4-3] as attachments. Defendants' motion [#4] to dismiss the Complaint, as amended, is granted in part and denied in part. The § 1983 false arrest and improper search and seizure claims may proceed as against Birx and John/Jane Does 1-6. Otherwise, the claims in the Complaint, including all claims against Povero, are dismissed. The Clerk of the Court is directed to terminate Povero as a party to this action. Defendants shall file and serve an answer within 21 days after this Decision and Order is filed. Signed by Hon. Charles J. Siragusa on 9/19/17. (KAP)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
__________________________________________
MOHAMMED MUSTAFA,
Plaintiff
DECISION AND ORDER
-vs15-CV-6714 CJS
PHILIP C. POVERO, Ontario County Sheriff in his
Official and Individual Capacity, REBECCA L. BIRX,
Ontario County Sheriff in her Official Capacity and
Individually, ONTARIO COUNTY SHERIFF
DEPUTIES JOHN/JANE DOES 1-6 in their
Official Capacity and Individually,
Defendants
__________________________________________

INTRODUCTION
Mohammed Mustafa (“Plaintiff”) maintains, inter alia, that Defendants falsely arrested
him and subjected him to excessive force after they incorrectly suspected him of driving
under the influence of alcohol or drugs. Plaintiff asserts claims under both 42 U.S.C. § 1983
and New York State law. Now before the Court is Defendants’ pre-answer motion (Docket
No. [#4]) to dismiss the action pursuant to Federal Rule of Civil Procedure (“Fed. R. Civ. P.”)
12(b)(6), or, alternatively, for summary judgment pursuant to Fed. R. Civ. P. 56. The motion
for summary judgment is denied and the application to dismiss is granted in part and denied
in part.
BACKGROUND
The following facts are taken from Plaintiff’s Complaint [#1]. In that regard, in
resolving a 12(b)(6) motion, a court is limited as to what it can consider. See, Vasquez v.

1

City of New York, No. 10 Civ. 6277(LBS), 2012 WL 4377774 at *1 (S.D.N.Y. Sep. 24, 2012).
(On a 12(b)(6) motion, “a court may consider ‘documents attached to the complaint as an
exhibit or incorporated in it by reference, ... matters of which judicial notice may be taken,
or ... documents either in plaintiffs’ possession or of which plaintiffs had knowledge and
relied on in bringing suit.’” Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002)
(quoting Brass v. Am. Film Techs., Inc., 987 F.2d 142, 150 (2d Cir. 1993)).”).
Here, along with their motion to dismiss, Defendants submitted four documents that
are extrinsic to the Complaint: 1) an affidavit from defendant Deputy Rebecca Birx (“Birx”);
2) an affidavit from David Tillman, Undersheriff of Ontario County; 3) a transcript of a 911
telephone call between the Ontario County 911 Operator and a citizen motorist; and 4) a
transcript of a radio call between the 911 Operator and responding officers. Defendants
maintain that the Court can consider these documents on a 12(b)(6) motion because the
documents “are referenced in the Complaint, were in Plaintiff’s possession prior to his filing
the Complaint, or are public records.”1 Alternatively, Defendants indicate that if the Court
is not willing to consider those documents on a 12(b)(6) motion, it should convert their
motion to a summary judgment motion under Rule 56.2 However, none of those four
documents is incorporated in Plaintiff’s Complaint, nor do Defendants explain how Plaintiff
would have had any of them in his possession prior to filing his action.3 Further, the
1

Def. Memo of Law [#4-1] at p. 2, n. 1.

2

Def. Memo of Law [#4-1] at p. 2, n. 1.

3

Plaintiff commenced this action on November 25, 2015. Birx and Tillman did not execute their
affidavits until January 5, 2016 and January 7, 2016, respectively, so Plaintiff obviously did not have the
affidavits prior to commencing this action. Nor have Defendants claimed to have turned over the 911
trancripts prior to the commencement of this action. In any event, even assuming that Plaintiff had the
documents prior to drafting the Complaint, Defendants would also have to show that Plaintiff relied on the
documents when drafting the Complaint, which Defendants have not done.

2

documents are not of the type which the Court can take judicial notice. Moreover, the Court
declines to convert the motion to one for summary judgment.
On the other hand, Plaintiff does not oppose the Court’s consideration of these
documents, and, in fact, asks the Court for permission to amend the Complaint to append
these documents. See, Pl. Response [#18] at ¶ ¶ 51-52 (“Mustafa moves to amend his
complaint to include the facts set forth in Tillman’s and Birx’s declaration[s] and the exhibits
attached [t]hereto.”) (emphasis in original).4 Accordingly, the Court will grant Plaintiff’s
request and deem the submissions (Docket Nos. [#4-2] & [#4-3]) to be attachments to the
Complaint.5 Accordingly, the Court may consider the documents in connection with the
subject 12(b)(6) motion.
On November 29, 2014, at approximately 6:00 p.m., the 911 Call Center in Ontario
County received a telephone call concerning a car that “c[ould]n’t stay on the road too well.”6
The citizen caller, who provided his name, address and telephone number, indicated that
he was driving behind a dark colored car with Indiana license plates, which was not staying
in its lane and driving well below the speed limit.7 The 911 Operator then made an
announcement over the police radio, describing the vehicle and asking for an officer to
check “for a sick or intox cellphone” [sic]. Ontario Sheriff’s Car 108, which was apparently
being operated by defendant Deputy Birx, located the car at the Valero gas station in

4
Defendants oppose that request as being futile, see, Defs. Reply [#20] at p. 8, but the Court
does not agree that the amendment would be futile.
5

Such amendment does not moot Defendants’ motion.

6

911 Call Transcript [#4-3] at p. 1.

7

911 Call Transcript [#4-3] at p. 1 (“[H]e wasn’t completely in the lane for a long ways and now,
and now we’re going 40 miles an hour in a 55.”).

3

Canandaigua. Birx and other officers (John/Jane Does 1-6) pulled into the Valero parking
lot to investigate.
When the officers arrived, Plaintiff was standing beside his car (a dark colored vehicle
with Indiana plates) in the parking lot. Birx approached Plaintiff and demanded that he give
her his car keys and driver’s license. Plaintiff complied with the request. Birx then asked
Plaintiff what he had eaten that day, whether he had been drinking, and whether he had
taken any drugs.

Plaintiff responded that he had consumed only food, water, and

prescription medication that he took for diabetes and cholesterol. Birx then administered
field sobriety tests including the “walk and turn test,” “one leg test” and test to estimate
passage of time. Plaintiff failed the sobriety tests.8 Birx then pulled Plaintiff’s arms behind
his back, handcuffed him, placed him in the back of a police car, and transported him to the
Sheriff’s Station.
At the Sheriff’s Station, Birx administered a breathalyzer test, which indicated that
Plaintiff had not consumed alcohol. Birx then told Plaintiff that he would not be free to leave
until a “specialist” examined him . Plaintiff asked why he was being detained, and Birx
responded “that someone had called and said the [he] was drunk.”9 Plaintiff remained at
the Sheriff’s Station for approximately two hours, until a “specialist” arrived, who advised
Plaintiff of his Miranda rights, and then re-administered field sobriety tests and a
breathalyzer test. The breathalyzer test indicated that Plaintiff had not been drinking. Birx

8

The Complaint does not specifically indicate whether Plaintiff passed or failed the field sobriety
tests, but the reasonable inference is that he failed, since Birx arrested him immediately after he took the
tests. This inference is further supported by the fact that the Complaint specifically alleges that Plaintiff
passed the breathalyzer tets that were subsequently administered at the police station. Presumably, if
Plaintiff had passed the field sobriety tests, the Complaint would have stated that fact.
9

Complaint [#1] at ¶ 40.

4

eventually told Plaintiff that he was free to leave, and drove Plaintiff to the lot where his car
had been towed. Plaintiff observed that his car had apparently been searched, as the
contents were in disarray.
On November 25, 2015, Plaintiff commenced this action.

The Complaint [#1]

purports to assert nine10 separate causes of action. The first four causes of action purport
to state claims under 42 U.S.C. § § 1983 and/or 1985, while the remaining five claims
purport to state tort claims under the common law of New York State. The four federal
causes of action are: 1) false arrest, illegal search and seizure; 2) excessive force; 3)
conspiracy to violate civil rights; and 4) Monell failure-to-train/supervise claim against the
Ontario County Sheriff. The five state-law causes of action are: 1) battery; 2) assault; 3)
intentional infliction of emotional distress (“IIED”); 4) negligent infliction of emotional distress;
and 5) negligence. Plaintiff has not sued Ontario County directly, but has sued the individual
defendants in their official and individual capacities.
On January 8, 2016, Defendants filed the subject motion, asserting that the
Complaint should be dismissed for the following reasons: 1) the § 1983 official-capacity
claims for money damages are barred; 2) the § 1983 claims fail to state plausible claims; 3)
the individual defendants are entitled to qualified immunity; 4) the state-law claims are
procedurally barred because Plaintiff did not comply with the notice-of-claim and pleading
requirements of New York’s General Municipal Law; and 5) the state-law causes of action

10

The causes of action are numbered as follows: I, II, III, IV, V, VI, VIII, IX and X. There is no

claim VII.

5

do not state plausible claims.11 On May 3, 2016, Plaintiff filed a response [#18] to the
motion, and on May 12, 2016, Defendants filed a reply [#21]. On September 15, 2016,
counsel for the parties appeared before the undersigned for oral argument.
DISCUSSION
The Motion to Dismiss Standard
Defendants maintains that Plaintiff’s Complaint fails to state a claim upon which relief
can be granted. The general legal principles concerning motions under FRCP 12(b)(6) are
well settled:
Federal Rule of Civil Procedure 8(a)(2) requires only a short and plain
statement of the claim showing that the pleader is entitled to relief, in order to
give the defendant fair notice of what the claim is and the grounds upon which
it rests. While a complaint attacked by a Rule 12(b)(6) motion to dismiss does
not need detailed factual allegations, a plaintiff's obligation to provide the
grounds of his entitlement to relief requires more than labels and conclusions,
and a formulaic recitation of the elements of a cause of action will not do.
Factual allegations must be enough to raise a right to relief above the
speculative level, on the assumption that all the allegations in the complaint
are true (even if doubtful in fact).
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964–65, 167 L.Ed.2d 929
(2007); see also, ATSI Communications, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir.
2007) (“To survive dismissal, 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.’”) (quoting Bell Atl. Corp. v. Twombly ) (footnote omitted).

11

Defendants also argued that Plaintiff should be estopped from pursuing tort claims because he
previously indicated, in a letter, that the incident was a mere “mistake.” However, the Court does not
believe that this argument has sufficient merit to warrant discussion.

6

The Official Capacity Claims Are Barred
Defendants contend that the official capacity claims must be dismissed, and the Court
agrees. The Complaint purports to sue all defendants in their individual and official
capacities, seeking only money damages.12 State officials can be sued in their official
capacities for injunctive relief, but not for money damages. See Fulton v. Goord, 591 F.3d
37, 45 (2d Cir.2009) (Observing that “Kentucky v. Graham, 473 U.S. 159, 169, 105 S.Ct.
3099, 87 L.Ed.2d 114 (1985), holds that in a suit against state officials in their official
capacities, monetary relief (unlike prospective injunctive relief) is generally barred by the
Eleventh Amendment,” though such immunity may be waived or abrogated in a particular
case). In the instant case, Plaintiff is suing for money damages. Accordingly, the officialcapacity claims are dismissed.
The Conspiracy Claim is Dismissed
Defendants also contend that the conspiracy claim must be dismissed, and the Court
again agrees. The Complaint alleges, in conclusory fashion, that “Birx and Does 1-6"
conspired to violate Plaintiff’s constitutional rights.13 However, “[c]omplaints containing only
conclusory, vague, or general allegations that the defendants have engaged in a conspiracy
to deprive the plaintiff of his constitutional rights are properly dismissed; diffuse and
expansive allegations are insufficient, unless amplified by specific instances of misconduct.”
Corsini v. Nast, No. 14–2207, 613 F. App'x 1, 3 (2d Cir. May 12, 2015) (citations omitted).
Here, there are no factual allegations to plausibly suggest that anyone conspired to violate
12

Complaint at ¶ 1 and “wherefore” clause.” Plaintiff opposes this aspect of Defendants’ motion
by claiming that the Complaint demands declaratory relief as well as money damages, but that is
incorrect.
13

Complaint at ¶ ¶ 102-106.

7

Plaintiff’s rights. Accordingly, the conspiracy cause of action (“Count III”) is dismissed.
The § 1983 Claims Against Sheriff Povero Fail to Allege Personal Involvement
The Complaint does not allege that Sheriff Povero was actually present during
Plaintiff’s arrest and detention. Nevertheless, the pleading contends that Povero is liable
under § 1983 for the alleged constitutional violations, based upon “negligent training,
supervision and retention of [the defendant] deputies.”14 However, Defendants contend that
the pleading fails to allege sufficient personal involvement by Povero, and the Court agrees.
The applicable legal principles concerning supervisory liability under 42 U.S.C. § 1983
are well settled:
Supervisor liability under § 1983 requires some personal involvement or
responsibility and can be shown in one or more of the following ways: (1)
actual direct participation in the constitutional violation, (2) failure to remedy
a wrong after being informed through a report or appeal, (3) creation of a
policy or custom that sanctioned conduct amounting to a constitutional
violation, or allowing such a policy or custom to continue, (4) grossly negligent
supervision of subordinates who committed a violation, or (5) failure to act on
information indicating that unconstitutional acts were occurring.
Guillory v. Cuomo, No. 14–4569–pr, 616 F. App'x 12 (2d Cir. Sep. 29, 2015) (citing
Hernandez v. Keane, 341 F.3d 137, 145 (2d Cir.2003)).
Of the five ways listed above for establishing supervisory liability under § 1983, the
instant Complaint alleges personal involvement by Sheriff Povero under numbers (3)
(“creation of policy or custom”) and (4) (“grossly negligent supervision”). To sufficiently
plead personal involvement through the creation of a “policy or custom,” the pleading must

14

Complaint at ¶ 1.

8

identify a particular policy or custom15 that resulted in the Plaintiff’s constitutional rights being
violated. See, Batista v. Rodriguez, 702 F.2d 393, 397 (2d Cir. 1983) (“[T]o hold a city liable
under § 1983 for the unconstitutional actions of its employees, a plaintiff is required to plead
and prove three elements: (1) an official policy or custom that (2) causes the plaintiff to be
subjected to (3) a denial of a constitutional right.”) (citations omitted).
With regard to pleading personal involvement through “grossly negligent supervision,”
the term
“gross negligence” denotes a higher degree of culpability than mere
negligence. It is the kind of conduct where the defendant has reason to know
of facts creating a high degree of risk of harm to another and deliberately acts
or fails to act in conscious disregard or indifference to that risk. ... The
standard of gross negligence is satisfied where the plaintiff establishes that
the defendant-supervisor was aware of a subordinate's prior substantial
misconduct but failed to take appropriate action to prevent future similar
misconduct before the plaintiff was eventually injured.
Raspardo v. Carlone, 770 F.3d 97, 116–17 (2d Cir. 2014) (citations and internal quotation
marks omitted). Such gross negligence may also exist where a supervisor fails to train his
subordinates. See, Ryan v. Moss, No. 11-CV-6015P, 2013 WL 956722, at *17 (W.D.N.Y.
Mar. 12, 2013) (“Ryan offers conclusory allegations concerning Moss's purported failure to
adequately train or supervise his subordinates regarding the use of excessive force. Such
allegations, without facts to suggest that Moss's failure to train or supervise his subordinates
was his deliberate choice or that he was aware of a specific deficiency in the training
program, may not establish a basis for individual liability against Moss.”) (citation omitted).

15

“The policy or custom need not be memorialized in a specific rule or regulation. However, when
discriminatory practices of city officials become ‘persistent and widespread,’ they may be considered to
constitute a municipal custom or usage.” Kern v. City of Rochester, 93 F.3d 38, 44 (2d Cir. 1996) (citations
omitted).

9

In the instant case, the pleading makes only conclusory, boiler-plate allegations
concerning Povero’s creation of a policy and his alleged failure to supervise or train his
subordinates. For example, the Complaint contends that “Defendant Birx and Does 1-6s’
actions were part of the customary practices of the Ontario County Sheriff’s Department.”
(Complaint at ¶ 87; see also id. at ¶ 96). Similarly, paragraphs 72-73 of the Complaint state:
72. Upon information and belief, Defendants Birx and Does 1-6 had
inadequate training and supervision regarding arrests and reasonable use of
force which led to constitutional and New York State law violations in this
case.
73. Based on the foregoing, Defendants [sic] Povero failed to adequately train
and supervise Defendants Birx and Does 1-6.
See also, e.g., Complaint ¶ ¶ 88, 97.

The Complaint does not contain any factual

allegations to plausibly suggest that Povero actually failed to supervise or train his
employees, including Birx and John/Jane Does 1-6.
Instead, the Complaint merely alleges that because Birx and Does 1-6 violated
Plaintiff’s rights, Povero must have failed to properly supervise or train them. (See, e.g.,
Complaint at ¶ 108) (“By the actions described in paragraphs 1 through 106 above
[concerning Plaintiff], Defendant Povero has demonstrated a policy, ordinance, custom,
regulation and/or decision of deliberate indifference to the rights of Plaintiff and others[.]”)
(emphasis added). However, it is well-settled that such an assertion is insufficient to plead
a plausible claim. See, Allen v. New York City Dep't of Envtl. Prot., 51 F. Supp. 3d 504, 519
(S.D.N.Y. 2014) (“[A]lleged discrimination suffered by Plaintiff alone is not sufficient to plead
a policy or custom.”) (collecting cases). Additionally, the Complaint fails to plausibly allege
that Povero acted with the requisite state of mind. Instead, the pleading merely states that
10

Povero “was aware or should have been aware that his deputies . . . require special training
. . . so as to not infringe upon the legal and constitutional rights of citizens, including
Plaintiff.” Complaint ¶ 75; see also, id. at ¶ 108 (Asserting conclusory allegations that Povero
acted with deliberate indifference); ¶ 154 (conclusory allegation that Povero “learn[ed of his
employees’] propensity to act in an unlawful and unauthorized manny by applying excessive
physical force and psychological harm during encounters with other persons.”).
Accordingly, the § 1983 claims against Povero in his individual capacity fail to allege
personal involvement, and Counts I-IV are dismissed as against Povero.
The State-Law Respondeat Superior Claims Against Povero Are Not Actionable
The Complaint asserts that Povero, “as the Ontario County Sheriff,” has respondeat
superior liability for the state-law torts allegedly committed by Birx and John/Jane Does 1-6.
See, Complaint, Counts V,VI, VIII, IX and X, and ¶ ¶ 119, 126, 135, 143). Defendants
contend that, to the extent that Plaintiff is attempting to assert such liability against Povero
personally, the claims are not actionable under New York law. The Court agrees. See,
D'Amico v. Corr. Med. Care, Inc., 120 A.D.3d 956, 959, 991 N.Y.S.2d 687, 692 (4th Dept.
2014) (“It is also well established that a Sheriff cannot be held personally liable for the acts
or omissions of his deputies while performing criminal justice functions, and that this
principle precludes vicarious liability for the torts of a deputy.”) (citations omitted).
To the extent that Plaintiff is attempting to assert respondeat superior claims against
Povero in his official capacity as Sheriff of Ontario County, which is a claim against Ontario
County, Defendants contend that such claim must also be dismissed, since the County has
not assumed such liability. On this point, Defendants cite Villar v. County of Erie, 126
A.D.3d 1295, 1296-1297, 5 N.Y.S.3d 747 (4th Dept. 2015), Trisvan v. County of Monroe, 26
11

A.D.3d 875, 876, 809 N.Y.S.2d 369 (4th Dept. 2006), and this Court’s decision in Miller v.
County of Monroe, No. 11-CV-6219, 2013 WL 2180738 (W.D.N.Y. May 17, 2013).
Defendants have correctly stated the law. As this Court observed in Miller, “it is well
established that a county may not be held responsible for the negligent acts of the Sheriff
and his deputies on the theory of respondeat superior, in the absence of a local law
assuming such responsibility.” Miller, 2013 WL 2180738, at *5 (citation omitted; collecting
cases); accord, Villar v. County of Erie, 126 A.D.3d at 1296-1297 (“Defendant may not be
held responsible for the negligent acts of the Sheriff and his deputies on the theory of
respondeat superior, in the absence of a local law assuming such responsibility.”) (citation
omitted).
Here, the Complaint does not allege that Ontario County has passed a local law
assuming respondeat superior liability for the acts of the Sheriff or his deputies. Nor, does
Plaintiff’s responding brief [#18] challenge this aspect of Defendants’ motion in any way.
Accordingly, the Complaint fails to state a respondeat superior claim against Povero in his
capacity as Ontario County Sheriff.

For all of the foregoing reasons, the state-law

respondeat superior claims are dismissed.
The State-Law Failure-To-Train/Supervise Claim Against Povero Is Not
Actionable
Count X of the Complaint alleges, inter alia, that Povero negligently failed to train and
supervise Birx and John/Jane Does 1-6. However, Defendants contend that such claims are
not actionable under New York law, and the Court agrees.16 Recently, this Court stated the
applicable New York law as follows:
16

Plaintiff’s response [#18] does not address this aspect of Defendants’ motion.

12

[W]here the acts of ‘employees' are concerned, an employer can be held
vicariously liable under principles of respondeat superior for acts committed
within the scope of the employee's employment, or may be held directly liable
for 'negligent hiring, retention, or supervision’ for acts committed outside that
scope.
Ben v. United States, 160 F. Supp. 3d 460, 476–77 (N.D.N.Y. 2016) (Siragusa, J. as acting
Judge of the Northern District)(quoting Williams v. Boulevard Lines, Inc., No. 10 CIV. 2924
DF, 2013 WL 1180389, at *13, n. 10 (S.D.N.Y. Mar. 12, 2013) (citations omitted)).
In the instant case, the Complaint clearly alleges that Birx and John/Jane Does were
acting within the scope of their employment at all times. See, e.g., Complaint at ¶ 13 (“At
all times material to the allegations in this Complaint, Defendants Birx, Does 1-6 and Povero
were acting in their capacities as deputy sheriffs and Sheriff respectively[.]”); see also, id.
at ¶ 16 (“At times herein relevant, Birx, Does 1-6 and Povero were acting within the course
and scope of their duties in the performance of the acts herein alleged.”); id. at ¶ 119 (“Birx
and Does 1-6 who were purporting to act or were acting in the course and scope of their
employment.”); ¶ ¶ 126, 135, 143. Accordingly, the negligent training/supervision claim
against Povero must be dismissed. See, e.g., Malay v. City of Syracuse, 151 A.D.3d 1624,
57 N.Y.S.3d 267, 269 (4th Dept. 2017) (“[T]he cause of action concerning negligent
supervision and training was properly dismissed inasmuch as such a cause of action does
not lie where, as here, the employees are acting within the scope of their employment[.]”)
(citation omitted).

13

The Section 1983 Claims May Proceed Against Birx and Does 1-6,
Except for the Excessive Force Claim
Defendants contend that the Complaint fails to state actionable § 1983 claims against
Birx and John/Jane Does 1-6, for false arrest, false imprisonment and improper search and
seizure. In that regard, Defendants note that according to the Complaint in this action, they
detained and arrested Plaintiff, and then searched his car, “without probable cause or
reasonable suspicion that a crime had been committed.” See, e.g., Complaint at ¶ 82.
However, Defendants contend that they had reasonable suspicion to detain Plaintiff in the
first place, which then developed into probable cause after he failed the field sobriety tests.
Defendants contend that they are entitled to dismissal of these claims as a matter of law,
or, alternatively, that they are entitled to qualified immunity.
Defendants’ arguments on this point all rest on the same premise: That the
information provided by the citizen who called the 911 operator, concerning Plaintiff’s erratic
driving, was later relayed, by the 911 operator, to Birx.17 Such information, Defendants
maintain, provided reasonable suspicion for Birx to administer sobriety tests, the results of
which then provided probable cause to arrest Plaintiff. See, Defs. Memo of Law [#4-1] at p.
10 (“The 911 caller’s and Deputy Birx’s observations alone were enough to support an arrest
for common law driving while intoxicated.”). More particularly, Defendants argue as follows:
“Reasonable suspicion can be based solely on an informant’s tip if there is
sufficient indicia of reliability’ under a ‘totality of the circumstances’ test.” U.S.
v. Rivera, 353 Fed.Appx. 535, 536 (2d Cir. 2009). . . . Here, the private
citizen whose information led to Plaintiff’s stop relayed his first-hand
observation of Plaintiff’s erratic driving to the 911 dispatcher, and continued
to do so as Plaintiff proceed south on Main Street through Canandaigua. He
17

See, Defs. Memo of Law [#4-1] at pp. 8-11, 18-19.

14

described Plaintiff’s vehicle, including the license plate number. The caller
also gave the 911 operator his name, address and phone number, providing
additional veracity to his report. Given these circumstances, the offers were
well justified in stopping Plaintiff to determine whether his dangerous driving
was the result of him being ill or intoxicated.
Defs. Memo of Law [#4-1] at p. 8 (citations omitted); see also, Def. Reply [#20] at p. 2
(“[G]iven the 911 caller’s report of Plaintiff’s prolonged erratic driving, Deputy Birx was
justified in performing the field sobriety tests, and arresting Plaintiff when he failed all five
of them.”).
However, the 911 call transcript does not support Defendants’ argument. Most
notably, the transcript does not indicate that the 911 operator conveyed to Birx the
information that was provided by the citizen informant. Rather, the transcript indicates that
after speaking to the citizen informant by telephone, the 911 operator merely used the police
radio to describe Plaintiff’s car, and to ask for an officer in the vicinity to check for a “sick or
intox” driver. Neither does Birx’s affidavit indicate that the 911 operator relayed all of the
aforementioned information provided by the citizen caller. Instead, Birx merely indicates that
she “heard a transmission from the Ontario County 911 dispatcher regarding a potentially
six or intoxicated driver.”18 Defendants do not contend that this information by itself would
have been sufficient to justify Birx’s initial stop of Plaintiff. Accordingly, Defendants’ motion
to dismiss the § 1983 false arrest, false imprisonment and improper search and seizure

18

Birx Aff. [#4-2] at ¶ 2. There is an interesting but unexplained entry in the transcript, in which
the officer in “Car 108," which was presumably Birx, states, “I’m speaking with the caller right now.”
(Docket No. 4-3] at p. 8). This entry seems to suggest that the citizen who reported Plaintiff’s erratic
driving remained at the scene when Plaintiff pulled into the Valero gas station, and remained there until
Birx arrived, and spoke directly to Birx. If so, he presumably would have relayed the same information to
Birx that he gave to the 911 operator. However, regardless of what the transcript suggests, such
information is not contained in Birx’s affidavit.

15

claims against Birx and Does 1-6 is denied.
Defendants also contend that the § 1983 excessive force claim is deficient as a
matter or law, because it is conclusory and does not allege that Plaintiff endured more than
de minimis force. Defendants argue that while the Complaint asserts that Birx “violently”
pulled Plaintiff’s arms behind his back to handcuff him, and then “violently” pushed him into
the back of a police car, the pleading is deficient as a matter of law, because it does not
claim that Plaintiff experienced pain, and admits that he did not seek medical attention until
two days later.
Plaintiff responds that the force used was necessarily excessive, because the officers
had no probable to cause to think that he was committing a crime.19 Plaintiff further
contends that he offered no resistance to Birx, and that the application of force was
objectively unreasonable, or that there are at least triable issues of fact concerning the
reasonableness of such force.
Excessive force claims raised in the context of an arrest are analyzed under the
Fourth Amendment, and must allege conduct that is “sufficiently serious to reach
constitutional dimensions;” the alleged injuries “need not be severe or permanent, but they
must be more than de minimis.” Hays v. City of New York, No. 14-CV-10126 (JMF), 2017
WL 782496, at *5 (S.D.N.Y. Feb. 28, 2017) (citations and internal quotation marks omitted).
Preliminarily, to the extent that Plaintiff is arguing that any use of force is necessarily
excessive where there is no probable cause to arrest, he is incorrect. See, Morse v.
Fitzgerald, No. 10-CV-6306 CJS, 2013 WL 1195036, at *9 (W.D.N.Y. Mar. 22, 2013) (“[T]he

19

Pl. Response [#18] at p. 9, ¶ ¶ 68-69; p. 11 at ¶ ¶ 81-83.

16

fact that Plaintiff's arrest may have been unlawful does not establish, per se, that the force
used against him was excessive.”) (citing Jones v. Parmley, 465 F.3d 46, 62 (2d Cir.2006)).
Rather, even assuming that there was no probable cause to arrest, the issue is still whether
the use of force was reasonable under the circumstances. Id.
Moreover, the Court agrees with Defendants that the excessive force allegations are
too conclusory to state a plausible claim. On this point, the Complaint merely contends that
Plaintiff was handcuffed and placed in a patrol car “violently,” which is insufficient to state
a plausible claim of constitutional dimensions. See, e.g., Pierre v. City of New York, No. 12
CIV. 9462 LAK GWG, 2014 WL 56923, at *9 (S.D.N.Y. Jan. 7, 2014) (“Pierre does not
make allegations showing that arresting officers used any significant force whatsoever. His
assertions of being arrested ‘with excessive force’ or in an ‘aggressive’ manner are mere
‘labels and conclusions,’ and thus cannot overcome a motion to dismiss.”) (citation omitted).
Further, the Complaint vaguely suggests that Plaintiff suffered some injury, but fails to
identify the injury or explain how it was caused by the act of handcuffing him and placing him
in the patrol car. See, Corsini v. Bloomberg, 26 F. Supp. 3d 230, 243 (S.D.N.Y. 2014)
(“Here, Plaintiff has alleged merely that he complained that the handcuffs were too tight and
that he suffered ‘physical injury,’ without specifying any factual content about the injury. This
conclusory allegation of injury is insufficient to plead . . . a viable handcuffing-related claim
of excessive force.”) (footnote omitted), aff'd in part, appeal dismissed in part sub nom.
Corsini v. Nast, 613 F. App'x 1 (2d Cir. 2015). Accordingly, the excessive force claim is
dismissed for failure to state a plausible claim.

17

Defendants Have Not Shown That A Notice of Claim Was Required
Defendants further contend that all of Plaintiff’s state-law claims are procedurally
barred, because Plaintiff did not file a notice of claim within ninety days, as required by New
York General Municipal Law § 50-e. See, Defs. Memo of Law [#4-1] at p. 21 (“[N]o such
notice was served, far more than 90 days have elapsed since Plaintiff’s arrest, and Plaintiff
has not alleged compliance with the notice of claim statute. Accordingly, Counts V through
X should be dismissed.”). Plaintiff’s response [#18] does not address this argument.
In New York State, one cannot sue a county in tort without first complying with the
requirements of General Municipal Law § § 50-e and 50-i.20 Pursuant to § 50-e, if a plaintiff
intends to sue a county, he must first serve a notice of claim on the county, but if he intends
to sue only a county employee and not the county itself, he is not required to serve the
county, unless the county has a statutory obligation to indemnify the employee. Gen. Mun.
L. § 50-e[1][a]&[b]; see also, Brooks v. Cty. of Nassau, 54 F. Supp. 3d 254, 258 (E.D.N.Y.
2014) (“It is well settled that the failure to file a notice of claim bars state claims against
individual defendants sued in their official capacities.”) (citations omitted).
However, counties in New York are not necessarily required to indemnify their sheriffs
or sheriff’s deputies. See, e.g., Villar v. Howard, 28 N.Y.3d at 78-80(Notice of claim was not
required to sue sheriff, because county did not have statutory obligation to indemnify sheriff);
see also, Rew v. County of Niagara, 73 A.D.3d 1463, 1464, 901 N.Y.S.2d 442, 443 (4th

20

See, County Law § 52[1] (“Any claim or notice of claim against a county for damage, injury or
death, or for invasion of personal or property rights, of every name and nature, and whether casual or
continuing trespass or nuisance and any other claim for damages arising at law or in equity, alleged to
have been caused or sustained in whole or in part by or because of any misfeasance, omission of duty,
negligence or wrongful act on the part of the county, its officers, agents, servants or employees, must be
made and served in compliance with section fifty-e of the general municipal law. Every action upon such
claim shall be commenced pursuant to the provisions of section fifty-i of the general municipal law.”)

18

Dept. 2010) (Discussing, inter alia, whether, under the facts of the case, the county had a
duty to indemnify a sheriff’s deputy).
Here, Defendants’ brief does not specifically address the applicability of the notice-ofclaim provisions to the Sheriff and his deputies. However, in connection with a different
argument, such brief states as follows:
[T]he County (or Sheriff Povero in his official capacity) cannot be held liable
for the deputies’ acts, absent a local law assuming such liability. Villar v.
County of Erie, 126 A.D.3d 1295, 1296-1297 (4th Dept. 2015); Trisvan, 26
A.D.3d at 876. This Court recognized this rule in Miller, 2013 U.S. Dist. LEXIS
70467 at 13-14. However, Plaintiff has not alleged the existence of any such
local law, and he cannot do so because none exists.
Defs. Memo of Law [#4-1] at p. 17. Therefore, it appears that Ontario County does not have
a statutory duty to indemnify the defendants, which would obviate the need for a notice of
claim. In any event, at this juncture Defendants have not demonstrated their entitlement to
dismissal of the state-law claims based upon a failure to serve a notice of claim, and
accordingly this aspect of their motion is denied.
The Negligence Claims Are Not Actionable
Defendants alternatively contend that the negligence claims must be dismissed
because they pertain to the performance of governmental functions, and no special
relationship existed between themselves and Plaintiff. It appears that Defendants have
correctly delineated the law of New York on this point, which is as follows:
New York Courts have long followed the rule that an agency of government is
not liable for the negligent performance of a governmental function unless
there existed a special duty to the injured person, in contrast to a general duty
owed to the public. Accordingly, under New York law, a plaintiff may not
recover under general negligence principles for a claim that law enforcement
officers failed to exercise the appropriate degree of care in effecting an arrest
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or initiating a prosecution. A plaintiff seeking relief from injuries flowing from
an arrest, investigation, or prosecution is instead limited to the traditional
intentional tort remedies of false arrest, false imprisonment, and malicious
prosecution.
Sullivan v. Lakeram, No. 13 CIV. 7677 (NRB), 2016 WL 4097856, at *4 (S.D.N.Y. July 28,
2016) (citations omitted).
Plaintiff’s response does not address this aspect of Defendants’ motion. Nor does
the Complaint allege the existence of any special duty owed to Plaintiff by Defendants. On
the other hand, the claims clearly appear to involve the type of discretionary governmental
functions that are covered by rule set forth above. Accordingly, Plaintiff’s negligence claims,
including the claim for negligent infliction of emotional distress (Counts IX & X), are
dismissed.
The Claim for Intentional Infliction of Emotional Distress Is Not Actionable
Defendants next contend that the IIED claim (Count VIII) fails to state an actionable
claim, because such claims are “highly disfavored,” and because the Complaint does not
allege sufficiently “extreme and outrageous” conduct by Defendants. In this regard, it is well
settled that “[u]nder New York law, to prove a claim of intentional infliction of emotional
distress, a plaintiff must establish (1) extreme and outrageous conduct, (2) intent to cause
severe emotional distress, (3) a causal connection between the conduct and the injury, and
(4) severe emotional distress.” Noonan v. New York City Police Dep't Officer Carlos Becker,
No. 14 CV 4084-LTS-JLC, 2017 WL 3638201, at *5 (S.D.N.Y. Aug. 23, 2017) (citing Bender
v. City of N.Y., 78 F.3d 787, 790 (2d Cir. 1996)).
Plaintiff admits that IIED claims are “highly disfavored,” but nevertheless suggests
that “Birx’s conduct towards Mustafa was more than likely because Mustafa was obviously
20

Arabic and a Muslim who hardly spoke or understood English.”21 However, such statement
is completely unsupported by any factual averment plausibly suggesting that Plaintiff was
actually targeted for arrest because of his ethnic background. Much to the contrary, the
record strongly suggests that Plaintiff was questioned because he was driving erratically,
and arrested because he failed the sobriety tests, regardless of whether Defendants had the
requisite probable cause. But in any event, the allegations in the Complaint do not even
remotely approach the level of extreme and outrageous conduct required to support an IIED
claim. Accordingly the IIED claim is dismissed.
The Assault and Battery Claims Must Be Dismissed
Lastly, Defendants contend that the state-law assault and battery claims must be
dismissed. More particularly, Defendants state that, “[a]s a matter of law, no civil assault or
battery claim may arise from an arrest without excessive force.”22 Plaintiff responds with
certain arguments regarding his assault and battery claims, but does not address the precise
argument raised here by Defendants.
Defendants are correct in asserting that when state-law assault and battery claims
arise from an arrest by a police officer, they essentially mirror a 4th Amendment excessive
force claim. Humphrey v. Landers, 344 F. App’x 686, 688 (2d Cir. Sep. 1. 2009) (“Except for
§ 1983's requirement that the tort be committed under color of state law, the essential
elements of excessive force and state law assault and battery claims are substantially
identical.”) (citation and internal quotation marks omitted). Moreover, since Plaintiff’s assault
and battery claims are based upon the very same conduct, and factual averments, on which

21

Pl. Memo of Law [#18] at p. 21.

22

Defs. Memo of Law [#4-1] at p. 25.

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the excessive force claim was based, they must be dismissed for the same reasons that the
Court is dismissing the excessive force claim. See, e.g., Hays v. City of New York, No.
14-CV-10126 (JMF), 2017 WL 782496, at *5 (S.D.N.Y. Feb. 28, 2017) (“Hays's state law
claims based on the same incidents—for assault and battery . . . must also be dismissed.
. . . [H]er assault and battery claims fail for the same reasons as her excessive force
claims.”) (citation omitted); see also, B. v. City of New York, No. 14-CV-1021 (KAM)(PK),
2016 WL 4530455, at *12 (E.D.N.Y. Aug. 29, 2016) (“Plaintiff S.B. brings an excessive force
claim arising out of the April 7, 2012 incident, but provides no factual detail regarding any
officer's use of force. S.B.'s federal excessive force claim and related state law assault and
battery claims are therefore dismissed.”) (citation to record omitted).
CONCLUSION
The Complaint is deemed amended, to include Docket Nos. [#4-2] & [#4-3] as
attachments. Defendants’ motion [#4] to dismiss the Complaint, as amended, is granted in
part and denied in part. The § 1983 false arrest and improper search and seizure claims
may proceed as against Birx and John/Jane Does 1-6. Otherwise, the claims in the
Complaint, including all claims against Povero, are dismissed. The Clerk of the Court is
directed to terminate Povero as a party to this action. Defendants shall file and serve an
answer within 21 days after this Decision and Order is filed.
SO ORDERED.
Dated:

Rochester, New York
September 19, 2017
ENTER:
/s/ Charles J. Siragusa
CHARLES J. SIRAGUSA
United States District Judge
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