Bryant v. Ciminelli et al
DECISION AND ORDER granting in part and denying in part 3 Motion to Dismiss. The Clerk of Court is directed to terminate defendant Ciminelli as a party to this action. SO ORDERED. Signed by Hon. Elizabeth A. Wolford on 7/26/17. (JPL)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
RICKEY L. BRYANT, JR.,
DECISION AND ORDER
MICHAEL L. CIMINELLI, JOHN DOES 1-20,
and CITY OF ROCHESTER,
Plaintiff Rickey L. Bryant, Jr. ("Plaintiff') filed this action on November 29, 2016,
alleging various claims pursuant to 42 U.S.C. § 1983, as well as claims under New York
state law, arising out of an alleged vicious and unprovoked attack of Plaintiff while he
was riding his bicycle, by unidentified officers with the Rochester Police Department.
(Dkt. 1). Presently before the Court is a motion to dismiss for failure to state a claim by
the Chief of Police, defendant Michael L. Ciminelli ("Ciminelli"), John Does 1-20 ("the
John Doe officers"), and the City of Rochester ("the City") (collectively, "Defendants).
(Dkt. 3). For the reasons stated below, Defendants' motion is granted in part and denied
The facts alleged in the complaint are as follows: Plaintiff, 17 years old at the time
of the events, alleges that between 10:00 p.m. on August 7, 2016, and 1:00 a.m. on
August 8, 2016, he was unconstitutionally seized and beaten by John Doe officers of the
Rochester Police Department ("RPD"). (Dkt. 1 at
Plaintiff was riding his
bicycle on Remington Street in Rochester, New York, when approximately twenty RPD
officers traveling in three RPD vehicles "suddenly pulled over in front of Plaintiff[,]
forcing him onto the sidewalk." (Id. at ,r 22). One John Doe officer "rapidly approached
[Plaintiff] and punched him in his left eye and face[,] causing [Plaintiff] to fall of[f] his
bicycle and onto the ground." (Id. at
maced, and tased. (Id. at
Plaintiff was shot with "pepper balls,"
Five or six John Doe officers then kicked and
punched Plaintiff "while the other officers stood there watching and failing to intervene
to protect Plaintiff." (Id. at ,r 25).
After beating Plaintiff, John Doe officers handcuffed and transported him by RPD
vehicle to a police station parking lot, where ambulance personnel gave Plaintiff medical
treatment. (Id. at ,r,r 28-34). Despite Plaintiffs request, the John Doe officers refused to
transport Plaintiff to the hospital for treatment. (Id. at ,r 33). Following the medical care
by ambulance personnel, Plaintiff was "told that he was free to leave." (Id. at
Plaintiff was never charged with a violation or crime. (Id. at ,r 35).
As a result of the incident, "Plaintiff suffered an orbital fracture to and injury to
his left eye, blurred vision in the left eye, right chest wall contusion, head injury,
headaches, concussion, right sided rib pain, right upper leg pain, multiple contusions and
bruising, post-traumatic stress disorder, together with other physical and psychological
injuries." (Id. at ,r 37).
Standard of Review
"A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the
legal sufficiency of the party's claim for relief." Zucco v. Auto Zone, Inc., 800 F. Supp.
2d 473, 475 (W.D.N.Y. 2011). In considering a motion to dismiss pursuant to Rule
12(b)(6), a court generally may consider only "facts stated in the complaint or documents
attached to the complaint as exhibits or incorporated by reference." Nechis v. Oxford
Health Plans, Inc., 421 F.3d 96, 100 (2d Cir. 2005). A court should consider the motion
"accepting all factual allegations in the complaint and drawing all reasonable inferences
in the plaintiff's favor."
Ruotolo v. City of NY., 514 F.3d 184, 188 (2d Cir. 2008)
(quoting ATS! Commc 'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007)). To
withstand dismissal, a plaintiff must set forth "enough facts to state a claim to relief that
is plausible on its face."
Bell At!. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
However, "threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements," are not entitled to an assumption of truth. Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009).
"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." Twombly, 550 U.S. at 555
( citations omitted).
Thus, "at a bare minimum, the operative standard requires the
plaintiff to provide the grounds upon which his claim rests through factual allegations
sufficient to raise a right to relief above the speculative level." Goldstein v. Pataki, 516
F .3d 50, 56-57 (2d Cir. 2008) (citations omitted).
The Court Will Not Consider Facts Outside the Four Corners of the
Before addressing the merits of Defendants' motion to dismiss, the Court must
address facts submitted to the Court, both supporting and opposing the motion to dismiss,
which do not appear in the complaint. In particular, Plaintiff submits: (1) a lengthy
factual affidavit from Plaintiff's counsel (Dkt. 6); (2) an affidavit from an alleged
eyewitness, Pedro Luis DeJesus (Dkt. 6-1); and (3) a letter to Plaintiff's counsel from the
City dated December 29, 2016 (Dkt. 6-2). Additionally, Plaintiff, in opposition to the
motion, suggests that the Court refer to papers submitted in opposition to a summary
judgment motion in an entirely different, unrelated case.
(See Dkt. 6-3 at 12-14).
Defendants, for their part, include facts in their memorandum of law which are not
present in the complaint. (See Dkt. 3-2). 1
In deciding a Rule l 2(b )( 6) motion, the Court is generally limited to reviewing
"the allegations contained within the four corners of [Plaintiff's] complaint." Pani v.
Empire Blue Cross Blue Shield, 152 F.3d 67, 71 (2d Cir. 1998); see, e.g., Friedl v. City of
NY, 210 F.3d 79, 83-84 (2d Cir. 2000) (finding that a district court errs if, in deciding a
For instance, Defendants contend, without citation to anything in the record, that
police were responding to a 911 call that a black male on a bicycle had fired a gun at the
location. (Dkt. 3-2 at 1).
Rule l 2(b )( 6) motion, it "relies on factual allegations contained in legal briefs or
memoranda"). However, where the additional documents are integral to or relied upon
by the complaint, the court may consider them without converting the motion to one for
summary judgment under Federal Rule of Civil Procedure 56. See Roth v. Jennings, 489
F.3d 499, 509 (2d Cir. 2007) (holding that even if not attached to the complaint, a
document which is "integral to the complaint may be considered by the court in ruling on
[a Rule 12(b)(6)] motion." (citations omitted)); Cartee Indus., Inc. v. Sum Holding L.P.,
949 F.2d 42, 48 (2d Cir. 1991) ("Where [the] plaintiff has actual notice of all the
information in the movant's papers and has relied upon these documents in framing the
complaint the necessity of translating a Rule l 2(b )( 6) motion into one under Rule 56 is
Here, reliance on the facts not mentioned in the complaint by both Plaintiff and
Defendants is procedurally improper. The parties have submitted facts which go beyond
what is alleged in the complaint, and include information that is neither integral to nor
relied on in the complaint. Plaintiff, wholly inappropriately, even suggests that this Court
look to evidence submitted in another case to support his argument that the complaint
was sufficiently pleaded.
If the Court considered any of the additional facts or affidavits, the motion would
be converted to one for summary judgment. No party is on notice of such a conversion,
and as Plaintiff's counsel points out, no discovery has yet occurred in this case. (See Dkt.
6-3 at 17). Therefore, such conversion is inappropriate, and the Court will not consider
the extraneous material provided by the parties in deciding the instant motion.
Defendants' Motion to Dismiss
Plaintiff raises eight claims. (Dkt. 1). Pursuant to § 1983, Plaintiff brings claims
for: (1) illegal search and seizure against the John Doe officers and the City;
(2) excessive use of force against the John Doe officers and the City; (3) failure to
intervene/protect against the John Doe officers and the City; (4) "failure to implement
policies, customs and practices" claim against the City; and (5) a Monell claim against
the City and Ciminelli. (Id.). Plaintiff also brings claims under New York state law for:
(1) battery against the John Doe officers and the City; (2) assault against the John Doe
officers and the City; and (3) negligence against all Defendants. (Id.). Defendants move
to dismiss all federal claims as against the City and Ciminelli, the failure to
intervene/protect claim in its entirety, and the negligence claim in its entirety.2 (Dkt. 32).
Plaintiff's Federal Claims
Plaintiff's Federal Claims Against the City of Rochester
Defendants first argue that all § 1983 claims against the City must be dismissed.
(Dkt. 3-2 at 4-6).
Specifically, Defendants argue that Plaintiff's allegations fail to
Defendants do not move to dismiss the illegal search and seizure, excessive use of
force, battery, and assault claims against the John Doe officers. (See Dkt. 3-2).
Defendants also do not move to dismiss the battery and assault claims against the City.
plausibly allege, in non-conclusory terms, that the City engaged m a pattern of
unconstitutional violations. (Id. at 5).
"The Supreme Court has made clear that 'a municipality cannot be made liable'
under § 1983 for acts of its employees 'by application of the doctrine of respondeat
superior."' Roe v. City of Waterbury, 542 F.3d 31, 36 (2d Cir. 2008) (quoting Pembaur
v. City of Cincinnati, 475 U.S. 469, 478 (1986)). In order to maintain a § 1983 action
against a municipal defendant, a plaintiff must identify a municipal "policy or custom"
from which the alleged injury arose. Monell v. Dep 't of Soc. Servs., 436 U.S. 658, 694
A plaintiff may satisfy the "policy or custom" requirement by alleging the
existence of "( 1) a fonnal 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 policymaker 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."
Perrone v. O'Flynn, l l-CV-6411 CJS-MWP, 2015 WL 7776930, at *5 (W.D.N.Y. Dec.
2, 2015) (quoting Green v. City of Mount Vernon, 96 F. Supp. 3d 263, 301 (S.D.N.Y.
2015) (citation omitted)).
It is well-settled that a plaintiffs conclusory allegations, which merely recite the
elements of a Monell claim, are insufficient to state a claim for municipal liability. See
Giaccio v. City of NY, 308 F. App 'x 470, 4 72 (2d Cir. 2009) (affirming dismissal of a
Monell claim where the plaintiff identified, "at most, only four examples" of
constitutional violations, because "[t]his evidence falls far short of establishing a practice
that is so persistent and widespread as to justify the imposition of municipal liability"
(internal quotations omitted)); Worrell v. City of NY, No. 12-CV-6151 (MKB), 2014
WL 1224257, at *12 (E.D.N.Y. Mar. 24, 2014) ("[A] single incident of [the plaintiffs]
own allegedly negligent investigation is not sufficient to impose municipal liability
without additional allegations from which [the c]ourt may infer that it was caused by a
practice so widespread as to practically have the force of law."); Weaver v. City of NY,
No. 13-cv-20 (CBA)(SMG), 2014 WL 950041, at *7 (E.D.N.Y. Mar. 11, 2014)
("[V]ague and conclusory assertions are not sufficient to state a claim of municipal
liability under Monell."); Genovese v. Town of Southhampton, 921 F. Supp. 2d 8, 25
(E.D.N.Y. 2013) ("[V]ague and conclusory assertions that the [defendant municipality]
should have known that officers would encounter these situations, and that the [defendant
municipality] did not adequately train officers to properly respond ... without any actual
supporting evidence, are insufficient to adequately plead a Monell claim."); Murray v.
Admin. for Children's Servs., 476 F. Supp. 2d 436, 442 (S.D.N.Y. 2007) ("The Amended
Complaint does not allege other similar instances ... that could raise an inference that the
[defendant municipality] maintains a policy or custom of deliberate indifference to these
types of constitutional deprivations."), ajf'd, 293 F. App'x 831 (2d Cir. 2008); see, e.g.,
Fierro v. NYC Dep't of Educ., 994 F. Supp. 2d 581,589 (S.D.N.Y. 2014); Irish v. City
ofNY, No. 09 Civ.5568(RMB), 2010 WL 5065896, at *6 (S.D.N.Y. Dec. 6, 2010).
Here, Plaintiff alleges that the City:
fail[ ed] to adequately train its police officers regarding the proper
methods for stops, arrest procedures, use of force and/or intervening to
prevent constitutional rights violations from occurring by other police
fail[ ed] to adequately investigate excessive force complaints of
citizens whose constitutional rights are violated;
fail[ ed] to independently investigate and [sic] all excessive force
complaints of citizens which are brought to its attention;
fail[ ed] to refer all excessive force complaints of citizens to the
Civilian Review Board for review;
allow[ ed] the investigation and internal review of excessive
force/police misconduct cases to be controlled and/or influenced by the
Rochester Police Department and not by the Center For Dispute Settlement,
an independent Civilian Review Board or other agency;
fail[ ed] to administer the internal review process of excessive force
and/or police misconduct cases through an independent Civilian Review
Board through Center For Dispute Settlement and in compliance with
Rochester City Council Resolution 92-40, enacted October 13, 1992, and
modified in 1995 by Resolution 95-8 of the Rochester City Council;
promot[ ed] and tolerat[ ed] a custom and policy in which officers
violate the constitutional rights of citizens through unlawful stops, searches,
seizures, excessive force and/or fail[ ed] to intervene to prevent such
fail[ ed] to suspend, terminate or take disciplinary action against
officers who violate rights of citizens through unlawful stops, searches and
seizures, excessive force and/or fail[ ed] to intervene to prevent such
fail[ ed] to adequately train and supervise officers who are prone to
commit unlawful stops, searches and seizures, use of excessive force and/or
failure to intervene to prevent such constitutional rights violations.
(Dkt. 1 at ,i 78). Plaintiff states that such practices are "so consistent and widespread and
constitute customs or usages of which City of Rochester supervising policy-makers were
aware of and which cause deprivation of constitutional rights of citizens, including
Plaintiff." (Id. at ,i 80).
Despite the fairly lengthy recitation of the basis for his claims against the City,
Plaintiff puts forth no facts alleging a municipal policy. In essence, Plaintiff contends
that the City failed to adequately train its officers and failed to implement an appropriate
process for addressing complaints of police misconduct-but these allegations are
conclusory in nature.
In short, "Plaintiff's complaint is light on facts and heavy on
conclusory language .... " Grantley v. City of N. Y, No. 12 Civ. 8294(KBF), 2013 WL
6139688, at *3 (S.D.N.Y. Nov. 21, 2013); see also Costello v. City of Burlington, 632
F.3d 41, 49 (2d Cir. 2011) (dismissing Monell claims because "the complaint d[id] not
allege facts sufficient to show that 'the violation of [the plaintiffs] constitutional rights
resulted from a municipal custom or policy.'" (citation omitted)). The complaint includes
no allegations of other incidents which could point to a policy or custom of deliberate
indifference by the City. Plaintiff only alleges facts related to a single incident, which is
insufficient to establish Monell liability. Ricciuti v. NYC 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
Accordingly, the motion to dismiss Plaintiff's § 1983 claims against the City
Plaintiff's Supervisory Liability Claims
Defendants next argue that Plaintiff's claims for supervisory liability against
Ciminelli must be dismissed. (Dkt. 3-2 at 7-8).
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A supervisory defendant must have been personally involved in a constitutional
deprivation to be held liable under§ 1983. Williams v. Smith, 781 F.2d 319,323 (2d Cir.
1986); see Richardson v. Goard, 347 F.3d 431,435 (2d Cir. 2003) ("Supervisor liability
in a § 1983 action depends on a showing of some personal responsibility, and cannot rest
on respondeat superior." (citation omitted)).
"[A] plaintiff must plead that each
Government-official defendant, through the official's own individual actions, has
violated the Constitution." Iqbal, 556 U.S. at 676. Personal involvement may be shown
A supervisory official, after learning of the violation through a report or
appeal, ... failed to remedy the wrong[;] ... created a policy or custom
under which unconstitutional practices occurred, or allowed such a policy
or custom to continue[; or] ... was grossly negligent in managing
subordinates who caused the unlawful condition or event.
Williams, 781 F .2d at 323-24 (internal citations omitted). However, a "'plaintiff cannot
base liability solely on the defendant's supervisory capacity or the fact that he held the
highest position of authority' within the relevant governmental agency or department."
Houghton v. Cardone, 295 F. Supp. 2d 268,276 (W.D.N.Y. 2003) (citation omitted).
"[T]he conclusory assertion that a supervisory official was personally involved in
the deprivation of constitutional rights, without supporting factual allegations, is not
sufficient to state a claim under§ 1983." Roberites v. Huff, No. l l-CV-521SC, 2012 WL
1113479, at *6 (W.D.N.Y. Mar. 30, 2012) (citing Houghton, 295 F. Supp. 2d at 276-77);
see also Montero v. Travis, 171 F.3d 757, 761-62 (2d Cir. 1999) (finding a claim ag3:inst
a parole board chairman was "properly dismissed as frivolous because [the plaintiff!
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never alleged any facts describing [the chairman's] personal involvement in the claimed
Here, Plaintiff's allegations are wholly conclusory. Plaintiff alleges, as the basis
for his supervisory liability claim:
Failure to adequately train and supervise City of Rochester police
officers regarding: 1) their duty to intervene to prevent to protect the
constitutional rights of citizens from infringement; 2) constitutional
limitations on stops; 3) the use of force; 4) arrests; and 5) searches and
seizures of persons;
Failure to adequately discipline, suspend, terminate and/or retrain
officers involved in misconduct;
Hiring, assigning/selecting and retention of City of Rochester police
officers with demonstrable propensities for use of excessive force, violence,
dishonesty and other misconduct;
Condoning and encouraging City of Rochester police officers in the
belief that they can violate the rights of persons such as Plaintiff with
impunity, and that such conduct will not adversely affect their opportunities
for continued employment, promotion and other employment benefits;
Failure to take adequate measures to discipline City of Rochester
police officers who engage in the use of excessive force, unlawful stops,
arrests, searches, seizures, violence, dishonesty and other misconduct;
Failure to practice and enforce proper reporting and investigation of
use of force by City of Rochester police officers;
Allowing the investigation and internal review of excessive
force/police misconduct cases to be controlled and/or influenced by the
Rochester Police Department and not by the Center For Dispute Settlement,
an independent Civilian Review Board or other agency;
Failing to allow the internal review process of excessive force cases
through an independent Civilian Review Board through Center For Dispute
Settlement and in compliance with Rochester City Council Resolution 9240, enacted October 13, 1992, and modified in 1995 by Resolution 95-8 of
the Rochester City Council;
Ratification by the highest levels of authority of the specific
unconstitutional acts alleged in [the complaint].
(Dkt. 1 at 1 88).
- 12 -
As with his claims against the City, Plaintiff alleges no facts suggesting personal
involvement by Ciminelli. Plaintiffs accusations are conclusory and fail to raise the
specter of relief beyond the speculative level.
Plaintiffs citation to Kastle v. Town of Kent, NY., No. 13 CV 2256(VB), 2014
WL 1508703 (S.D.N.Y. Mar. 21, 2014), is misplaced. (See Dkt. 6-3 at 16). The critical
difference between that case and this one is that in Kastle the plaintiff included factual
allegations in his complaint which gave rise to "a plausible inference [the supervisory
defendants] were deliberately indifferent to violations .... " Id. at * 13. Here, Plaintiff
failed to plead a single fact suggesting personal involvement by Ciminelli. Therefore, the
motion to dismiss Plaintiffs§ 1983 claims against Ciminelli is granted.
Plaintiff's Failure to Intervene/Protect Claim
Defendants also argue that Plaintiffs failure to intervene/protect claim should be
(Dkt. 3-2 at 10-11 ).
"It is widely recognized that all law enforcement
officials have an affirmative duty to intervene to protect the constitutional rights of
citizens from infringement by other law enforcement officers in their presence."
Anderson v. Branen, 17 F.3d 552, 557 (2d Cir. 1994).
An officer who fails to intercede in the use of excessive force or another
constitutional violation is liable for the preventable harm caused by the
actions of other officers. Whether the officer had a "realistic opportunity"
to intervene is normally a question for the jury, unless, "considering all the
evidence, a reasonable jury could not possibly conclude otherwise."
Terebesi v. Torreso, 764 F.3d 217, 243-44 (2d Cir. 2014) (citations omitted). "A police
officer cannot be held liable in damages for failure to intercede unless such failure
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permitted fellow officers to violate a suspect's 'clearly established statutory or
constitutional rights' of which a reasonable person would have known."
NYC Transit Auth., 124 F.3d 123, 129 (2d Cir. 1997).
If true, the events described in the complaint-a vicious, unprovoked attack on
Plaintiff by five or six John Doe officers-clearly would violate Plaintiffs right to be
free from the use of excessive force and unconstitutional searches and seizures, and a
reasonable officer would know as such. Plaintiff alleges that more than a dozen John
Doe officers stood by while he was beaten. These allegations are sufficient to state a
claim for failure to intervene.
Defendants raise the issue of qualified immunity. (Dkt. 3-2 at 10). Qualified
immunity can be established by the facts alleged in a complaint. Garcia v. Does, 779
F.3d 84, 97 (2d Cir. 2015). However, the facts Plaintiff alleges do not allow for the
inference that the John Doe officers acted within clearly established law, or that it was
objectively reasonable for the John Doe officers to think they were acting within the law.
See id. at 92 ("Qualified immunity protects public officials from liability for civil
damages when one of two conditions is satisfied: (a) the defendant's action did not
violate clearly established law, or (b) it was objectively reasonable for the defendant to
believe that his action did not violate such law." (citation omitted)).
As such, the
existence of qualified immunity cannot be determined from the facts alleged in the
- 14 -
Defendants also argue that "Plaintiff has stated no facts demonstrating specific
Officers were acting to stop and/or arrest  Plaintiff and other Officers, if any, were not
engaged in the stop or failed to act." (Dkt. 3-2 at 11). Defendants' argument seems to be
premised on the fact that Plaintiff has named "John Does," rather than the specific
individuals purportedly involved in the incident. (See id.). Defendants' argument lacks
merit. "When a plaintiff is ignorant as to the true identity of a defendant at the time of
filing the complaint, most federal courts typically will allow the use of a fictitious name
in the caption .... "
5A C. Wright, A. Miller, et al., Federal Practice & Procedure
§ 1321 (3d ed. 2017). As a result, Plaintiff may name "John Doe" defendants, and the
fact that those defendants are so named does not change this Court's analysis as to
whether Plaintiffs allegations state a claim. See Sealed Plaintiff v. Sealed Defendant,
537 F.3d 185, 191 (2d Cir. 2008) (reversing where the district court dismissed a prose
complaint, in part, because the plaintiff failed to identify two "John Doe" defendants, and
finding that under Fed. R. Civ. P. 8(a), "a complaint need not contain detailed factual
allegations-such as ... the names of 'each and every individual' involved in the
At least at this stage of the proceedings, Plaintiff states a claim for failure to
intercede. As such, this portion of Defendants' motion is denied.
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Plaintiff's State Law Claims
Defendants next argue that Plaintiffs negligent hiring, training, supervision, and
retention claim against the City and Ciminelli must be dismissed. (Dkt. 3-2 at 8).
Plaintiffs negligence claims arise under New York state law.
To maintain a claim against a municipal employer for the "negligent hiring,
training, and retention" of a tortfeasor under New York law, a plaintiff must
show that the employee acted "outside the scope of her employment." If
the employee acted within the scope of her employment, the employer and
the employee's supervisors may be held liable for the employee's
negligence only under a theory of respondeat superior.
Velez v. City ofN.Y, 730 F.3d 128, 136 (2d Cir. 2013) (citations omitted).
Here, although Plaintiff does not use the words "within the scope of their
employment" in his complaint, the import of his allegations is clear-Plaintiff alleges
that the police officers were acting within the scope of their employment. The complaint
states that the John Doe officers beat Plaintiff "while acting in their official capacities and
under color of State law," (Dkt. 1 at
that the John Doe officers "are sued in their
individual and official capacities as police officers . .. ," (id. at
,r 10 (emphasis
and that the John Doe officers "were acting under color of State law as police officers
employed by [the City]," (id. at ,r 11 (emphasis added)).
In opposition to Defendants' motion, Plaintiff contends that he should be
permitted to conduct discovery on this issue and plead in the alternative. (Dkt. 6-3 at 1619). The problem with Plaintiffs argument is that he has not even attempted to plead his
- 16 -
negligence claims in the alternative. At no point in the complaint is it alleged that the
John Doe officers were acting outside the scope of their employment.
As it stands, the complaint only contains allegations that the John Doe officers
were acting within the scope of their employment. As a result, the motion to dismiss
Plaintiff's claims against the City and Ciminelli for negligent hiring, training,
supervision, and retention, is granted. See Velez, 730 F.3d at 136; see, e.g., Steele v.
Rochester City Police Dep't, No. 6:16-cv-06022-MAT, 2016 WL 1274710, at *3
(W.D.N.Y. Apr. 1, 2016); Stevens v. Webb, No. 12-CV-2909 (KAM), 2014 WL 1154246,
at *12 (E.D.N.Y. Mar. 21, 2014).
Plaintiff's Negligence and Negligent Infliction of Emotional
Finally, Defendants argue that Plaintiff's claims for negligence and negligent
infliction of emotional distress must also be dismissed because Plaintiff alleges
intentional conduct, and because Plaintiff has not alleged a special duty as required under
New York law. (Dkt. 3-2 at 8-10).
Under New York law, "[w]hen a plaintiff asserts excessive force and assault
claims which are premised upon a defendant's allegedly intentional conduct, a negligence
claim with respect to the same conduct will not lie." Dineen ex rel. Dineen v. Stramka,
228 F. Supp. 2d 447, 454 (S.D.N.Y. 2002). "[O]nce intentional offensive contact has
been established, the actor is liable for assault and not negligence, even when the physical
- 17 -
injuries may have been inflicted inadvertently." Mazzaferro v. Albany Motel Enters.,
Inc., 515 N.Y.S.2d 631, 632-33 (3d Dep't 1987).
Here, Plaintiffs allegations cannot be read as arising in negligence, as Plaintiff
clearly asserts intentional conduct by five or six John Doe officers. As Plaintiff alleges
intentional conduct by Defendants, he cannot also claim negligence.
Moreover, even if Plaintiff was permitted to claim negligence as an alternative
cause of action, he has failed to do so properly. "[A]n 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."' McLean v.
City of NY, 12 N.Y.3d 194, 199 (2009); see, e.g., Valdez v. City of NY, 18 N.Y.3d 69,
75 (2011) ("Under the public duty rule, although a municipality owes a general duty to
the public at large to furnish police protection, this does not create a duty of care running
to a specific individual sufficient to support a negligence claim, unless the facts
demonstrate that a special duty was created.").
A special duty requires a "special
relationship between the plaintiff and the governmental entity." McLean, 12 N.Y.3d at
A special relationship can be formed in three ways: (1) when the
municipality violates a statutory duty enacted for the benefit of a particular
class of persons; (2) when it voluntarily assumes a duty that generates
justifiable reliance by the person who benefits from the duty; or (3) when
the municipality assumes positive direction and control in the face of a
known, blatant and dangerous safety violation.
Id. (citation omitted).
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"It is the plaintifff ]s obligation to prove that the government defendant owed a
special duty of care to the injured party because duty is an essential element of the
negligence claim itself." Applewhite v. Accuhealth, Inc., 21 N.Y.3d 420, 426 (2013). "In
situations where the plaintiff fails to meet this burden, the analysis ends and liability may
not be imputed to the municipality that acted in a governmental capacity." Id.
Plaintiff has not alleged any special duty between Defendants and himself.
Plaintiff only alleges that Defendants owed him a duty of care-the same duty which
would be owed to the general public. (See Dkt. 1 at ,r 117 ("Defendants owed a duty of
care to Plaintiff to act in a lawful manner and to not use unlawful excessive physical
force against Plaintiff. ... ")). Plaintiff's argument that the negligence claims "should not
be dismissed since discovery is necessary," (Dkt. 6-3 at 19), is rejected outright as failing
to understand the purpose of the instant motion, which is directed to the plausibility of the
factual allegations in the complaint.
As a result, the motion to dismiss Plaintiff's claims for negligence and negligent
infliction of emotional distress is granted. See Valdez, 18 N.Y.3d at 75 ("[I]n order to
pursue [a] negligence action against the [municipal defendant] in this case, [the] plaintiffs
were required to allege a special duty.").
Without Prejudice Dismissal
Although Plaintiff has failed to state a cause of action with respect to the claims
outlined above, because the Court cannot definitively conclude that Plaintiff is unable to
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state a cause of action with respect to at least some of those claims, the dismissal is
Plaintiff has not made any request for leave to replead, and, even if the Court
considered the additional factual information Plaintiff offers outside the four corners of
the complaint, it is not clear he could assert viable causes of action. As a result, the Court
declines to sua sponte grant leave to replead the dismissed causes of action. See Pani v.
Empire Blue Cross Blue Shield, 152 F.3d 67, 76 (2d Cir. 1998).
For the foregoing reasons, Defendants' motion is granted in part and denied in
pa~. The Clerk of Court is directed to terminate defendant Ciminelli as a party to this
action. The following claims remain: (1) illegal search and seizure against the John Doe
officers; (2) excessive use of force against the John Doe officers; (3) failure to
intervene/protect against the John Doe officers; (4) battery against the John Doe officers
and the City; and (5) assault against the John Doe officers and the City.
Dated: July 26, 2017
Rochester, New York
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