Scott v. City of Rochester et al
DECISION AND ORDER: Plaintiff's 4 Motion for Default Judgment is DENIED and Defendants' 5 Motion to Dismiss Counts Two, Three, Six, Seven, and Eight is GRANTED and the causes of action are DISMISSED. The Clerk of the Court shall termi nate the City of Rochester and Chief Michael L. Ciminelli as Defendants in this case.Unchallenged, Count One, claim of excessive force by Defendants Feldman, Henry, and Flood, Count Four, claim of delay in treatment by Defendants Feldman, Potuck, Henry, Kester, Flood, and Count Five, claim of failure to intervene by Defendants Flood, Kester, and Potuck remain.By separate Order, this case will be referred to a United States Magistrate Judge for pretrial proceedings.SO ORDERED. Signed by Hon. Frank P. Geraci, Jr. on 9/25/17. (JO)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
DUDLEY T. SCOTT,
Case # 17-CV-6004-FPG
DECISION AND ORDER
CITY OF ROCHESTER, et al.,
On January 3, 2017 Plaintiff Dudley T. Scott filed a Complaint alleging that police officers
pulled him over on August 21, 2014, handcuffed him and then beat him, violating his constitutional
rights. ECF No. 1. In the Complaint, Scott alleges the following: in Count One, Defendant Police
Officers Michael Feldman, Evan Henry, and Donald Flood violated Scott’s Fourth Amendment
rights by using excessive force; in Count Two, Defendants Feldman, Henry, and Flood violated
Scott’s Eighth Amendment rights by using excessive force; in Count Three, Defendants Feldman,
Henry, and Flood violated Scott’s Fourteenth Amendment rights by using excessive force; in
Count Four, Defendant Police Officers Feldman, Randy Potuck, Henry, Jeff Kester, Flood, John
Doe #1, and John Doe #2 violated Scott’s Fourth, Eighth, and Fourteenth Amendment rights by
delaying treatment of his injuries; in Count Five, Defendants Flood, Kester, and Potuck violated
Scott’s Fourth, Eighth, and Fourteenth Amendment rights by failing to intervene in the beating; in
Count Six, Defendants Police Chief Michael L. Ciminelli, Feldman, Potuck, Henry, Kester, Flood,
John Doe #1, and John Doe #2 violated Scott’s Fourth, Eighth, and Fourteenth Amendment rights
by conspiring to violate his constitutional rights; in Count Seven, Defendants City of Rochester
and Chief Ciminelli are liable for the actions of the Defendant Police Officers since there is a
widespread pattern of racial discrimination in the Rochester Police Department and Defendants
City of Rochester and Chief Ciminelli have taken inadequate steps to control the racial
discrimination; in Count Eight, Defendants City of Rochester and Chief Ciminelli are liable for
the actions of the Defendant Police Officers since there is a widespread use of excessive force in
the Rochester Police Department and Defendants City of Rochester and Chief Ciminelli have
failed to screen, train, and supervise Police Officers in the Rochester Police Department.
After receiving Scott’s Complaint, Defendants failed to respond to the Complaint within
the 21-day deadline. ECF No. 2. Scott moved for a default judgment on February 17, 2017. ECF
Defendants opposed Plaintiff’s Motion for Default, ECF No. 7, and further moved to
dismiss Counts Two, Three, Six, Seven, and Eight of Plaintiff’s Complaint under Federal Rule of
Civil Procedure 12(b)(6). ECF No. 5. In his response, Plaintiff consented to the dismissal of
Counts Two and Three. ECF No. 10 at 3. For the reasons that follow, Plaintiff’s Motion for
Default Judgment is DENIED and Defendants’ Motion to Dismiss is GRANTED. Counts Six,
Seven, and Eight are dismissed, and Defendants City of Rochester and Chief Ciminelli are
terminated as Defendants in this case. Unchallenged, Counts One (excessive force under the
Fourth Amendment), Four (delay in treatment), and Five (failure to intervene) remain.
Plaintiff Dudley T. Scott alleges that Defendant Michael Feldman, a Rochester Police
Officer, pulled him over on Maple Street in the early morning of August 21, 2014. ECF No. 1, at
¶ 21. Scott was ordered out of the car by Feldman, handcuffed, and beaten. Id. at ¶¶ 25-31. The
beating included punches to Scott’s left eye, right eye, and face, kicks to the body, and the use of
a Taser. Id. at ¶¶ 27-31. Defendants Feldman, Evan Henry, and Donald Flood, all Rochester
Police Officers, participated in the beating. Id. at ¶ 31. Scott at no point resisted. Id. at ¶ 37.
Scott sustained several injuries during the beating, including a concussion, permanent
blindness in his right eye, orbital fractures, permanently diminished vision in his left eye and
multiple bruises. Id at ¶ 36. After the beating, Defendants delayed treating Scott’s injuries,
worsening them. Id. at ¶¶ 84-90.
Scott further alleges that the beating is part of “a pattern of abuse and violence” against
African-American men in violation of their constitutional rights perpetrated by the Rochester
Police Department. Id. at ¶¶ 117, 129, 138. Scott alleges that Defendants City of Rochester and
Rochester Chief of Police Chief Ciminelli failed to screen, train, and supervise officers to prevent
the types of abuse experienced by Scott and other Rochester citizens, and created and/or enabled
a custom and practice of the use of excessive force against African-American men. Id. at ¶¶ 140143, 146. He further alleges that Defendants conspired to beat Scott and engaged in racial
discrimination via the beating and ensuing delay in treatment. Id. at ¶¶ 119, 133.
Motion for Default Judgment
Plaintiff Dudley T. Scott moves for a default judgment.
A party must follow a specific process to obtain a default judgment. Fed. R. Civ. P. 55;
Gasser v. Infanti Int'l, Inc., No. 03 CV 6413 (ILG), 2008 WL 2876531, at *6 n.6 (E.D.N.Y. July
23, 2008); Brown v. Marshall, No. 08-CV-12F, 2009 WL 1064189, at *1 (W.D.N.Y. Apr. 20,
2009). First, when a party has “failed to plead or otherwise defend” an action against it, the
opposing party must secure an entry of default from the clerk via an affidavit or other showing.
Fed. R. Civ. P. 55(a). Next, if the party seeking a default judgment is a plaintiff whose claim is a
“sum certain” and the defendant is neither a minor nor incompetent, the plaintiff may request the
clerk to enter a default judgment, and the clerk must oblige. Fed. R. Civ. P. 55(b)(1). “In all other
cases,” the party seeking a default judgment must apply to the court. Fed. R. Civ. P. 55(b)(2). If
the Clerk enters default against a defendant under Fed. R. Civ. P. 55(a), the Court may set it aside
for good cause. Fed. R. Civ. P. 55(c). Default judgments are generally disfavored and are reserved
for rare occasions. Enron Oil Corp. v. Diakuhara, 10 F.3d 90, 96 (2d Cir. 1993).
The entry of default by the Clerk is a mandatory pre-condition to seeking a default
judgment from the Court. See, e.g., Perkins v. Napoli, No. 08–CV–6248 CJS, 2010 WL 455475
at * 1 (W.D.N.Y. Feb. 4, 2010). It is undisputed that Plaintiff did not seek the entry of a default
and subsequently the Clerk did not enter default against Defendants. Therefore, on this basis alone,
Plaintiff’s Motion for Default Judgment fails. On February 17, 2017 Scott filed his Motion for
Default Judgment 40 minutes before Defendants filed their Motion to Dismiss, the latter eight days
after missing the February 9, 2017 deadline for filing an answer to the Complaint. ECF Nos. 5, 7.
The Motion for Default Judgment was Scott’s first and only filing regarding the Defendants’
default. He did not request Clerk to enter a default before his Motion for Default Judgment.
Consequently, Scott failed to follow the proper procedure to obtain a default judgment.
Even if the Clerk of Court had entered default, the Court would find that good cause exists
to set aside such a default. Good cause is determined via three criteria: “(1) the willfulness of
default, (2) the existence of any meritorious defenses, and (3) prejudice to the non-defaulting
party.” Guggenheim Capital, LLC v. Birnbaum, 722 F.3d 444, 454 (2d Cir. 2013).
A default is “willful” when it is deliberate and not brought on by outside factors.
Bricklayers & Allied Craftworkers Local 2, Albany Pension Fund v. Moulton Masonry & Const.,
LLC, 779 F.3d 182, 188 (2d Cir. 2015); Guggenheim Capital, LLC, 722 F.3d at 455. A defense is
meritorious if it is “more than conclusory.” New York v. Green, 420 F.3d 99, 110 (2d Cir. 2005);
Bricklayers, 779 F.3d at 187. Finally, prejudice exists where delay will “thwart [the non-defaulting
party’s] recovery or remedy[,]…result in the loss of evidence, create increased difficulties of
discovery, or provide greater opportunity for fraud and collusion.” Green, 420 F.3d at 110
(quoting Davis v. Musler, 713 F.2d 907, 915 (2d Cir. 1983)).
Even if Scott had followed the proper procedure, Defendants have shown good cause to set
aside a Clerk’s entry of default. Defendants have demonstrated good cause, which would in any
event cause a default judgment to be set aside.
First, the default was not willful. Defendants filed their Motion to Dismiss just eight days
after missing the February 9, 2017 deadline. ECF No. 5. In their Memorandum of Law opposing
Plaintiff’s motion for default judgment, Defendants stated that they “inadvertently” missed the
deadline due to a high workload. ECF No. 7. While the Court does not condone Defendant’s
disregard of the filing deadlines, the Court is satisfied that the default was accidental and not
willful. Defendants also present a defense that is “more than conclusory.” Bricklayers, 779 F.3d
at 187. While they declined to address three of the claims Scott raises in his Complaint, they
provide successful defenses to the remaining five claims, as the Court explains below. Finally,
there is no prejudice present. No evidence will be lost, no discovery difficulties will be created,
and no opportunity for fraud and collusion will be presented because of Defendants’ default.
Accordingly, Plaintiff’s Motion for Default Judgment is denied because he neglected to
obtain a Clerk’s entry of default, as required by Fed. R. Civ. P. 55(a), and even if he had,
Defendants have shown good cause to allow the Court to set aside any Clerk’s entry of default.
Motion to Dismiss
A complaint will survive a motion to dismiss when it states a plausible claim for relief.
Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 55556 (2007). A claim for relief is plausible when the plaintiff pleads sufficient facts that allow the
Court to draw reasonable inferences that the defendant is liable for the alleged conduct. Ashcroft,
556 U.S. at 678. A pleading that consists of “labels and conclusions” or “a formulaic recitation of
the elements of a cause of action will not do.” Twombly, 550 U.S. at 555. In considering the
plausibility of a claim, the Court must accept factual allegations as true and draw all reasonable
inferences in the plaintiff’s favor. Faber v. Metro. Life Ins. Co., 648 F.3d 98, 104 (2d Cir. 2011).
At the same time, the Court is not required to accord “[l]egal conclusions, deductions, or opinions
couched as factual allegations . . . a presumption of truthfulness.” In re NYSE Specialists Sec.
Litig., 503 F.3d 89, 95 (2d Cir. 2007) (quotation marks omitted); see also Barr v. Abrams, 810
F.2d 358, 363 (2d Cir. 1987) (“As we have repeatedly held, complaints relying on the civil rights
statutes are insufficient unless they contain some specific allegations of fact indicating a
deprivation of rights, instead of a litany of general conclusions that shock but have no meaning.”).
Count Six – Conspiracy
“To prove a § 1983 conspiracy, a plaintiff must show: (1) an agreement between two or
more state actors or between a state actor and a private entity; (2) to act in concert to inflict an
unconstitutional injury; and (3) an overt act done in furtherance of that goal causing damages.”
Gustafson v. Vill. of Fairport, 106 F. Supp. 3d 340, 352 (W.D.N.Y. 2015) (quoting Pangburn v.
Culbertson, 200 F.3d 65, 72 (2d Cir. 1999)).
“To withstand a motion to dismiss a § 1983...conspiracy claim, a plaintiff must provide
some factual basis supporting a meeting of the minds, such as that defendants entered into an
agreement, express or tacit, to achieve the unlawful end, augmented by some details of time and
place and the alleged effects of the conspiracy.” K.D. ex rel. Duncan v. White Plains School Dist.,
921 F. Supp. 2d 197, 208-09 (S.D.N.Y. 2013) (quoting Romer v. Morgenthau, 119 F. Supp. 2d
346, 363 (S.D.N.Y.2000)) (internal quotation marks omitted).
Count Six, alleging conspiracy, is dismissed since Scott’s Complaint fails to plead facts
that plausibly allege an agreement establishing a conspiracy. Scott alleges that Defendants Chief
Ciminelli, Feldman, Potuck, Henry, Kester, Flood, John Doe #1, and John Doe #2 “conspired” to
deprive Scott of his constitutional rights. ECF No. 1 at ¶¶ 119, 122. Scott provides no further
allegations of “an agreement, express or tacit,” or any “details of time and place.” K.D. ex rel.
Duncan, 921 F. Supp. 2d at 208. Scott’s conclusory allegations are insufficient to state a plausible
claim for relief. Twombly, 550 U.S. at 555. Accordingly, Count Six is dismissed.
Municipal and Supervisory Liability Under § 1983
A municipality may be held liable for a violation of a plaintiff’s constitutional rights if the
violation is “caused by a governmental custom, policy, or usage of the municipality.” Jones v.
Town of East Haven, 691 F.3d 72, 80 (2d Cir. 2012) (citing Monell v. Dep’t of Soc. Servs., 436
U.S. 658, 690-91 (1978)). Liability is generally not found where the plaintiff shows only “isolated
acts of excessive force by non-policymaking municipal employees….” Jones, 691 F.3d at 81
(citing Villante v. Dep't. of Corr., 786 F.2d 516, 519 (2d Cir. 1986)). To establish municipal
liability for acts of non-policymaking municipal employees, a plaintiff must establish one of the
following: (1) the acts were carried out “pursuant to a municipal policy”; (2) the acts “were
sufficiently widespread and persistent to support a finding that they constituted a custom, policy,
or usage of which [policymaking] authorities must have been aware”; or, (3) “a municipal custom,
policy, or usage would be inferred from evidence of deliberate indifference of [policymaking]
officials to such abuses.” Jones, 691 F.3d at 81 (citing Amnesty Am. v. Town of W. Hartford, 361
F.3d 113, 125–26 (2d Cir. 2004)).
It is well settled that supervisors cannot be held liable under § 1983 solely on a respondeat
superior theory. See Richardson v. Goord, 347 F.3d 431, 435 (2d Cir. 2003); Ayers v. Coughlin,
780 F.2d 205, 210 (2d Cir. 1985) (requiring “a showing of more than the linkage in the  chain of
command” to hold a supervisor liable under § 1983). “To state a claim under § 1983, a plaintiff
must allege the personal involvement of each defendant.” Holland v. City of New York, 197 F.
Supp. 3d 529, 550 (S.D.N.Y. 2016) (citing Williams v. Smith, 781 F.2d 319, 323 (2d Cir. 1986)).
“Conclusory accusations regarding a defendant's personal involvement in the alleged violation,
standing alone, are not sufficient, and supervisors cannot be held liable based solely on the alleged
misconduct of their subordinates.” Id. (quoting Kee v. Hasty, No. 01 Civ. 2123, 2004 WL 807071,
at *12 (S.D.N.Y. Apr. 14, 2004)) (internal quotation marks omitted). “Rather, a plaintiff in a [§]
1983 action must show that the supervisor was personally involved in a constitutional violation by
either (1) directly participating in the violation; (2) failing to remedy the violation after learning
of it through a report or appeal; (3) creating a custom or policy fostering the violation or allowing
the custom or policy to continue after learning about it; (4) being grossly negligent in supervising
the officers involved; or (5) exhibiting deliberate indifference to the constitutional rights of inmates
by failing to act on information indicating that unconstitutional acts were occurring.” Id. (citing
Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995)). A conclusory allegation of the personal
involvement of supervisors is insufficient to state a claim for relief. Bradley v. Rell, 703 F. Supp.
2d, 124-25 (N.D.N.Y. 2010) (finding allegation that a supervisory defendant “responsibility stems
from not providing adequate training to the officers of his department” insufficient to state a claim
for relief); Houghton v. Cardone, 295 F. Supp. 2d 268, 276-77 (W.D.N.Y. 2003) (finding
allegation that supervisory defendant “failed to adequately train or supervise the officers; (2) knew
about and tolerated the officers' allegedly unlawful behavior; and (3) ‘failed to institute a proper
system of review and reprimand’ of his deputies so as to prevent the types of unlawful acts alleged”
insufficient to plausibly state a claim for relief).
Scott alleges widespread and persistent acts of racial discrimination in Count Seven and
deliberate indifference via the failure to train, screen, and supervise its employees in Count Eight,
both against Defendants City of Rochester and Chief Ciminelli. The Court addresses each Count
Count Seven – Racial Discrimination
To establish a finding of a custom, policy, or usage, a plaintiff must show a pattern of
abusive conduct so widespread and persistent that it must have been known and tolerated by
policymaking officials. Jones, 691 F.3d at 82; see also Okin v. Vill. of Cornwall-On-Hudson
Police Dep’t, 577 F.3d 415, 440 (2d Cir. 2009) (denying summary judgment where the record
showed more than a dozen acts). Such a finding may be inappropriate, however, even when a
plaintiff alleges multiple instances of abusive conduct. See Jones, 691 F.3d at 81 (finding six
incidents insufficient to support a judgment as a matter of law).
Scott alleges a “pattern [of abuse] so widespread that constructive knowledge by
supervisors and policy makers, including Chief Ciminelli, may be inferred.” ECF No. 1 at ¶130.
He further states that “the City [of Rochester] has taken inadequate steps or no steps to control the
abuse.” ECF No. 1 at ¶ 131. He fails, however, to name any acts other than the beating he received
that constitute the pattern he alleges. He simply alleges in conclusory fashion that the City of
Rochester has taken inadequate steps to control the abuse and Chief Ciminelli is deliberately
indifferent to a pattern of abuse. This “formulaic recitation of the elements of [the] cause of action
will not do.” Twombly, 550 U.S. at 555. Accordingly, Count Seven is dismissed.
Count Eight – Failure to Screen, Train, and Supervise
“The failure to train or supervise city employees may constitute an official policy or custom
if the failure amounts to deliberate indifference . . . .” Wray v. City of New York, 490 F.3d 189,
195 (2d Cir. 2007) (quoting City of Canton v. Harris, 489 U.S. 378, 388 (1989)) (internal quotation
“To establish deliberate indifference, a plaintiff must show that: [(1)] a
policymaker knows to a moral certainty that city employees will confront a particular situation;
[(2)] the situation either presents the employee with a difficult choice of the sort that training or
supervision will make less difficult or there is a history of employees mishandling the situation;
and [(3)] the wrong choice by the city employee will frequently cause the deprivation of a citizen's
constitutional rights.” Wray, 490 F.3d at 195-96 (quoting Walker v. City of New York, 974 F.2d
293, 297-98 (2d Cir.1992)) (internal quotation marks omitted). Where a city has a training
program, a plaintiff must also “identify a specific deficiency in the city's training program and
establish that [the] deficiency is closely related to the ultimate injury, such that it actually caused
the constitutional deprivation.” Wray, 490 F.3d at 196 (quoting Amnesty, 361 F.3d at 129) (internal
quotation marks omitted).
Count Eight’s conclusory allegations fare no better. Scott alleges only that Defendants
City of Rochester and Chief Ciminelli failed to “screen,” “train,” “discipline,” and “supervise”
police officers, including those officers involved in the alleged acts, and that Chief Ciminelli
“creat[ed] and/or enable[ed] a custom and practice of excessive force….” ECF No. 1 at ¶¶ 14047. Scott again neglects to allege any facts that state a plausible claim for relief under the required
standards outlined above. Accordingly, Count Eight is also dismissed.
For the foregoing reasons, Plaintiff’s Motion for Default Judgment (ECF No. 4) is
DENIED, Defendants’ Motion to Dismiss (ECF No. 5) Counts Two, Three, Six, Seven, and Eight
is GRANTED and the causes of action are DISMISSED. The Clerk of the Court shall terminate
the City of Rochester and Chief Michael L. Ciminelli as Defendants in this case.
Unchallenged, Count One, claim of excessive force by Defendants Feldman, Henry, and
Flood, Count Four, claim of delay in treatment by Defendants Feldman, Potuck, Henry, Kester,
Flood, and Count Five, claim of failure to intervene by Defendants Flood, Kester, and Potuck
By separate Order, this case will be referred to a United States Magistrate Judge for
IT IS SO ORDERED.
Dated: September 25, 2017
Rochester, New York
HON. FRANK P. GERACI, JR.
United States District Court
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