Casaccia v. City of Rochester et al
DECISION AND ORDER granting in part and denying in part 11 Motion to Dismiss; granting in part and denying in part 11 Motion to Dismiss for Failure to State a Claim. Specifically, (1) the motion is granted with respect to all of Plaintiffs clai ms against the RPD, (2) Plaintiffs claims against the City based on the theory of supervisory liability are dismissed, and (3) Plaintiffs state law claims for intentional and negligent infliction of emotional distress are dismissed. The City Defend ants motion is denied in all other respects. The Clerk of the Court is directed to terminate the Rochester Police Department as a named defendant in this case.. Signed by Hon. Michael A. Telesca on 1/8/18. (JMC)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
DECISION AND ORDER
CITY OF ROCHESTER, et al.,
commenced the instant action on May 23, 2017, alleging violations
of his Fourth and Fourteenth Amendment rights, as well as state law
Currently pending before the Court is a motion to dismiss filed by
defendants the City of Rochester (the “City”), the Rochester Police
Department (the “RPD”), Rochester Police Sergeant Kevin Leckinger
DiPoala, Gary Wegman, Matthew Cushman, Joshua Hall, and Amy Bauer
(collectively, the “City Defendants”).
The City Defendants seek
dismissal of all the claims asserted against them, arguing that:
(1) Plaintiff has failed to state a claim based on municipal or
supervisory liability; (2) Sergeant Leckinger had probable cause to
arrest Plaintiff; (3) Plaintiff’s assault and battery claims are
duplicative and lack support in the record; (4) Plaintiff has
failed to state a claim for intentional or negligent infliction of
emotional distress; (5) the RPD lacks the capacity to be sued;
(6) the City Defendants are immune to Plaintiff’s state law claims
of false arrest, false imprisonment, and malicious prosecution; and
(7) the City Defendants are entitled to qualified immunity.
the reasons discussed below, the City Defendants’ motion is granted
in part and denied in part.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff alleges that around 5:00 p.m. on May 23, 2016, he
and his wife arrived at the City Grill restaurant, located at
384 East Avenue in the City of Rochester, having been alerted that
their daughter Megan was there and might be in need of medical
assistance. (Docket No. 1 at ¶¶ 27-29).
Upon arrival, Plaintiff
bathroom, seemingly in and out of consciousness. (Id. at ¶ 30).
Plaintiff claims that he called 911 to request an ambulance and
that Defendants Robert Young and John Doe (collectively, the “EMT
(“RMC”), responded to the call. (Id. at ¶32).
Plaintiff’s daughter, the EMT Defendants allegedly told Plaintiff
that she was intoxicated and that he could take her home. (Id. at
According to Plaintiff, he asked the EMT Defendants to
check Megan’s vitals to determine if she needed to be taken to the
hospital, at which time they placed Megan on a gurney and moved her
Plaintiff alleges that Megan continued to drift in and out of
consciousness while in the ambulance, and that the EMT Defendants
performed a series of sternum rubs to awaken her.
Once Megan regained consciousness, the EMT Defendants
allegedly began interrogating her about why she was at City Grill
and whether she used a fake ID, and denied her request for water.
(Id. at ¶¶ 42-43).
The EMT Defendants then allegedly forced Megan
to lay down on the gurney and tried to strap her down, prompting
her to scream. (Id. at ¶¶ 43-45).
Plaintiff claims that he asked
the EMT Defendants to stop and offered to take Megan home, but that
the EMT Defendants told him he could not take Megan home and that
he needed to wait for the police to arrive. (Id. at ¶¶ 46-47).
Sergeant Leckinger was the first officer to arrive at City Grill.
(Id. ¶¶ 48-49).
According to Plaintiff, Sergeant Leckinger has testified as
follows regarding the incident underlying this litigation: (1) upon
arriving at City Grill, the only information known to him was that
the RMC ambulance crew had requested police assistance because they
were fighting with a patient; (2) when he arrived at City Grill, he
observed Plaintiff and his wife standing outside the ambulance by
its back door, and the ambulance crew inside with a female patient
on a gurney; (3) as Sergeant Leckinger approached the ambulance, an
arrested; and (4) in response to the ambulance crew member’s
request, Sergeant Leckinger asked Plaintiff to put his hands behind
(Id. at ¶¶ 51-55).
Plaintiff alleges that he did not immediately comply with
Sergeant Leckinger’s request that he place his hands behind his
back, but instead asked why he was being arrested.
(Id. at ¶ 56).
According to Plaintiff, Sergeant Leckinger, aided by the EMT
ambulance, punched him in the head or face twice, and slammed him
onto the pavement, causing him to sustain various injuries. (Id.).
Plaintiff further alleges that Defendant RPD Officers DiPoala,
Cushman, Hall, and Bauer had also responded to City Grill by this
time, and that they, along with Sergeant Leckinger and the EMT
Defendants, held Plaintiff down on the pavement, forced his hands
behind his back (overextending his arms in the process), and choked
him until he lost consciousness, thereby causing various additional
(Id. at ¶¶ 57, 59).
Plaintiff claims that one or all of
Sergeant Leckinger and Officers DiPoala, Cushman, Hall, and Bauer
(collectively, the “RPD Officer Defendants”) handcuffed him and,
after he regained consciousness, placed him in the back of a patrol
(Id. at ¶¶ 60-61).
Plaintiff was taken to the police station
for booking, and was subsequently released on bail.
(Id. at ¶¶ 62-
misdemeanor informations against him, charging him with the crimes
of Obstructing Governmental Administration in the Second Degree and
Resisting Arrest. (Id. ¶ 64). Plaintiff was arraigned in Rochester
City Court on May 26, 2016, and, following a suppression hearing
held on July 26, 2016, Rochester City Court Judge Ellen M. Yacknin
dismissed the charge of resisting arrest, finding that Sergeant
Leckinger lacked probable cause to arrest Plaintiff. (Id. at ¶¶ 6768 (citing People v Casaccia, 52 Misc. 3d 1223(A), at *4 (City Ct.
obstruction of governmental administration charge was dismissed on
January 3, 2017, upon being formally abandoned by the prosecuting
attorney. (Id. at ¶ 69).
Plaintiff further alleges that the RPD
Officer Defendants were never reprimanded, suspended, or terminated
as a result of the incident at City Grill. (Id. ¶ 70).
Plaintiff commenced the instant action on May 23, 2017.
(Docket No. 1).
RMC and Robert Young filed an answer on July 19,
2017, in which they denied the claims against them and asserted a
cross-claim for indemnification and/or contribution against the
(Docket No. 5).
The City Defendants filed the instant motion to dismiss on
October 5, 2017.
(Docket Nos. 11, 15).
RMC and Mr. Young did not
file a response to the instant motion, but did file an attorney
affirmation noting that the claims against them are asserted only
under state law and requesting that, in the event the Court decides
to dismiss the federal claims against the City Defendants, it in
turn decline to exercise jurisdiction over any remaining state law
(Docket No. 12).
“To survive a motion to dismiss [made pursuant to Federal Rule
of Civil Procedure 12(b)(6)], a complaint must contain sufficient
factual matter, accepted as true, to state a claim to relief that
is plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (internal quotation marks and citation omitted).
has facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
complaint need not provide “detailed factual allegations,” it
nevertheless must assert “more than labels and conclusions,” and “a
formulaic recitation of the elements of a cause of action” will not
suffice. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 545 (2007).
The plaintiff must plead facts that “raise a right to relief above
the speculative level on the assumption that all the allegations in
the complaint are true.”
Id. (citations omitted).
For its part,
the Court must accept, as true, all factual allegations in the
complaint, and must draw all reasonable inferences in favor of the
nonmovant. Atwood v. Cohen & Slamowitz LLP, No. 17-702-CV, 2017 WL
6403506, at *1 (2d Cir. Dec. 15, 2017).
Elements of a 42 U.S.C. § 1983 Claim
Pursuant to 42 U.S.C. § 1983 (“Section 1983"), “‘anyone acting
under color of any [state] statute, ordinance, regulation, custom,
or usage,’ who causes a United States citizen to be deprived ‘of
any rights, privileges, or immunities secured by the Constitution
and laws, shall be liable to the party injured in an action at law,
suit in equity, or other proper proceeding for redress.’” Sybalski
v. Indep. Grp. Home Living Program, Inc., 546 F.3d 255, 257
(2d Cir. 2008) (quoting 42 U.S.C. § 1983).
A plaintiff seeking
relief under Section 1983 “must allege that (1) the challenged
conduct was attributable to a person acting under color of state
guaranteed under the Constitution.”
Snider v. Dylag, 188 F.3d 51,
53 (2d Cir. 1999) (citation omitted).
Consideration of the City Defendants’ Exhibits
Defendants have filed a “Statement of Undisputed Facts” (which is
actually a declaration by their counsel) along with
exhibits, including a copy of the RPD Incident Report from the
night at issue, supporting depositions completed by Mr. Young and
by City Grill employee Jasmine S. Disch, and a copy of Plaintiff’s
(See Docket Nos. 11 to 11-7). The City
Defendants contend that these documents are not extraneous, are
incorporated into the Complaint by reference, are documents that
are in Plaintiff’s possession, or are documents of which Plaintiff
had knowledge and relied on in bringing suit.
In ruling on a motion to dismiss, the Court “may consider the
facts as asserted within the four corners of the complaint together
with the documents attached to the complaint as exhibits, and any
documents incorporated in the complaint by reference.” Peter F.
Gaito Architecture, LLC v. Simone Dev. Corp., 602 F.3d 57, 64 (2d
Cir. 2010) (quotations omitted).
“A complaint ‘is deemed to
include any written instrument attached to it as an exhibit or any
statements or documents incorporated in it by reference.’” Nicosia
v. Amazon.com, Inc., 834 F.3d 220, 230 (2d Cir. 2016) (quoting
Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002)).
Plaintiff’s “mere notice or possession [of a document] is not
enough” to permit the Court to consider it on a Rule 12(b)(6)
document is considered integral to the complaint, it must be clear
on the record that no dispute exists regarding the authenticity or
accuracy of the document,” and that there are “no material disputed
issues of fact regarding the relevance of the document.”
(internal quotation marks omitted) (quoting DiFolco, 622 F.3d at
111; Faulkner v. Beer, 463 F.3d 130, 134 (2d Cir. 2006)).
Here, Plaintiff’s Complaint does not append any of the City
Defendants’ exhibits to it, nor does it incorporate any of them by
The Complaint also does not heavily rely upon these
documents in its drafting or for their terms and effect.
contrary, Plaintiff’s Complaint clearly disputes the accuracy of
the exhibits, which purport to describe the events surrounding
Plaintiff’s arrest and serve as the basis for the declaration by
the City Defendants’ counsel. Accordingly, the City Defendants’
exhibits, and counsel’s declaration made in reliance thereon, do
considered upon a motion to dismiss.
As such, in deciding the
instant motion, the Court has not relied upon the City Defendants’
exhibits for the truth of the matters asserted therein.
D. Capacity of the RPD to Sue or Be Sued
As a threshold matter, the City Defendants contend that
Plaintiff cannot sue the RPD because it is merely an administrative
arm of the City and does not have a legal identity separate and
apart from it. Plaintiff has failed to respond to this argument in
his opposition papers.
Pursuant to Federal Rule of Civil Procedure 17(b)(3), the
capacity of local law enforcement agencies to sue or be sued is
determined by reference to New York law.
“Under New York law,
departments which are merely administrative arms of a municipality
have no separate legal identity apart from the municipality and
therefore cannot sue or be sued,"
S.W. by J.W. v. Warren, 528 F.
Supp. 2d 282, 302 (S.D.N.Y. 2007), and “[a] police department is an
administrative arm of the municipal corporation.” Nix v. City of
Rochester, No. 6:14-CV-06395(MAT), 2017 WL 3387103, at *8 (W.D.N.Y.
Aug. 5, 2017).
The City Defendants are correct that the RPD, which
is an administrative arm of the City and lacks the capacity to sue
or be sued, is not a proper defendant in this matter.
As such, the
City Defendants’ motion to dismiss is granted as to all claims
against the RPD, and the Clerk of the Court is instructed to
dismiss the RPD as a defendant in this matter.
Municipal and Supervisory Liability
Plaintiff’s fourth and sixth causes of action purport to
assert Section 1983 claims against the City and the RPD based on
the theories of municipal and supervisory liability.
Defendants contend that Plaintiff has failed to state a claim based
on either municipal or supervisory liability, arguing that his
allegations are conclusory and that, as a matter of law, the City
cannot be held liable for any alleged deficiencies in hiring,
training, or retaining the RPD Officer Defendants.
The Court will
consider the City Defendants’ arguments separately with regard to
the theories of municipal liability and supervisory liability.
deliberate choice to follow a course of action is made from among
various alternatives by the official or officials responsible for
establishing final policy with respect to the subject matter in
Roe v. City of Waterbury, 542 F.3d 31, 36 (2d Cir.
As established in Monell v. Department of Social Services
of the City of New York, 436 U.S. 658 (1978), a municipality may be
found liable under Section 1983 where a constitutional violation
occurs and: (1) a formal policy that is officially endorsed by the
municipality causes the alleged violation; (2) municipal officials
with final decision making authority take actions or make decisions
causing the alleged violation; (3) “a practice [is] so persistent
and widespread that it constitutes a custom of which constructive
officials”; or (4) policymaking officials fail to “properly train
indifference’ to the rights of those who come in contact with the
Hall v. Town of Brighton, No. 13-CV-6155T,
2014 WL 340106, at *5 (W.D.N.Y. Jan. 30, 2014) (quoting Bliven v.
Hunt, 478 F. Supp.2d 332, 336-37 (E.D.N.Y. 2007)).
Here, Plaintiff’s Complaint alleges sufficient factual matter,
accepted as true, to state a claim against the City under Monell.
In particular, Plaintiff’s allegations that (1) the City had a
policy and custom of failing to investigate police misconduct
complaints or to refer such complaints to the Rochester Civilian
Review Board (the “RCRB”)1; (2) the City improperly permitted the
RPD to control and influence the processing of police misconduct
cases, rather than allowing the RCRB to function independently; and
(3) the City’s policy and custom of failing to properly investigate
The RCRB is a voluntary body, run under the auspices of the Center for
Dispute Settlement, that “review[s] and make recommendations on completed
internal affairs investigations of alleged misconduct by employees of the
Rochester Police Department.”
City of Rochester, Rochester Civilian Review
Board, available online at http://www.cityofrochester.gov/CivilianReviewBoard/
(last visited January 2, 2018).
or process police misconduct complaints amounts to deliberate
indifference are specific factual allegations that, if proven to be
true, could potentially support the imposition of liability on the
See, e.g., Iqbal, 556 U.S. at 678.
Accordingly, to the
extent that the City Defendants’ seek dismissal of Plaintiff’s
fourth cause of action in its entirety, that request is denied.
The City Defendants have also argued, in the alternative, that
Plaintiff’s claims against the City must be dismissed to the extent
that they are based on allegedly negligent hiring, training, or
retention, because the City does not contest that the RPD Officer
Defendants were acting within the scope of their employment at all
relevant times. This argument is misplaced. The case on which the
City Defendants rely for this contention, Rowley v. City of New
York, 2005 WL 2429514 (S.D.N.Y. Sept. 30, 2005) was expressly
considering whether a claim for negligent hiring or supervision
could proceed under New York State law where the employer conceded
that the challenged actions were taken in the scope of employment.
Id. at *12.
The Rowley court concluded that such claims were not
cognizable because, again under New York State law, “[w]here an
employee acts within the scope of his or her employment, the
employer generally is held liable for all the employees’ torts
under the doctrine of respondeat superior.”
Id.; see also Bleiwas
v. City of New York, No. 15 CIV. 10046 (ER), 2017 WL 3524679, at
*10 (S.D.N.Y. Aug. 15, 2017) (noting that Rowley stands for the
negligent hiring, screening, retention, supervision, and training
where defendants act within the scope of their employment.”)
(emphasis added and citation omitted).
The Rowley decision was
addressing the specific issue of New York State law common law
claims for negligent hiring and supervision, and did not address
the issue of municipal liability under Section 1983 and Monell.
Moreover, the analysis in Rowley is inapplicable to Section 1983
claims, because it is based on the doctrine of respondeat superior
and “[r]espondeat superior . . . liability will not attach under
City of Canton, Ohio v. Harris, 489 U.S. 378, 385 (1989)
Contrary to the City Defendants’ arguments, the Rowley court
did not hold that a failure to train or supervise is not cognizable
under Section 1983 (as opposed to New York State law) where the
Schoolcraft v. City of New York, 103 F. Supp. 3d
465(S.D.N.Y. 2015), which the City Defendants have also cited,
illustrates the importance of this distinction.
In that case, the
court cited Rowley and acknowledged that “New York law does not
Id. at 521-22.
However, the Schoolcraft court also
separately considered whether municipal liability existed as to the
plaintiff’s federal claims, acknowledging that “[a] municipality
may . . . be liable under Monell where the Plaintiff demonstrates
indifference to the rights of those with whom the municipality’s
employees interact.” Id. at 517 (quotation omitted).
words, the Schoolcraft decision illustrates that the proposition
set forth in Rowley (that is, that a claim for negligent hiring,
training, retention or supervision is not cognizable where the
defendants act in the scope of their employment) applies to state
common law claims, and not to an analysis of potential municipal
liability under Monell. Accordingly, the City Defendants’ argument
that Plaintiff’s federal claims against the City must be dismissed
as a matter of law to the extent they are based on allegedly
negligent hiring, training, and supervision is without merit.
Plaintiff’s sixth cause of action purports to assert Section
1983 claims against the City of Rochester and the RPD based on the
theory of supervisory liability.
The City Defendants seek
dismissal of this claim, noting that Plaintiff has alleged no
personal involvement of any City official or policymaker.
Under Section 1983, supervisory liability attaches where a
individual actions, has violated the Constitution.”
U.S. at 676.
By definition, the theory of supervisory liability
As the City Defendants correctly note, Plaintiff has
not identified (or named as a defendant) any individual City
official or policymaker who was allegedly involved in the claimed
deprivation of his rights. As such, the City Defendants’ motion is
granted to the extent it seeks dismissal of Plaintiff’s sixth cause
F. False Arrest and Imprisonment
The City Defendants devote a significant portion of their
motion papers to arguing that Sergeant Leckinger had probable cause
to arrest Plaintiff.
Although the City Defendants do not specify
which of Plaintiff’s claims they seek dismissal of on this basis,
it appears that they are arguing that Plaintiff cannot maintain
claims of false arrest and imprisonment due to the existence of
This argument lacks merit.
The Second Circuit has explained that “[t]he common law tort
of false arrest is a species of false imprisonment.”
Fulton Cty. Sheriff, 63 F.3d 110, 118 (2d Cir. 1995).
New York law, the elements of a false imprisonment claim are: ‘(1)
plaintiff was conscious of the confinement, (3) the plaintiff did
not consent to the confinement and (4) the confinement was not
Id. (quoting Broughton v. State, 373
N.Y.S.2d 87, 93 (1975)).
“There can be no federal civil rights
claim for false arrest where the arresting officer had probable
Id. (citing Bernard v. United States, 25 F.3d 98, 102
(2d Cir. 1994)). An officer has probable cause to arrest a person
if he has
“knowledge or reasonably trustworthy information of
facts and circumstances that are sufficient to warrant a person of
reasonable caution in the belief that the person to be arrested has
Schenectady, 728 F.3d 149, 155 (2d Cir. 2013). “Probable cause to
arrest may exist even if the arresting officers do not possess
firsthand knowledge of the suspect’s alleged criminal activity.”
Watkins v. Ruscitto, No. 14 CIV. 7504 (AJP), 2016 WL 3748498, at *6
(S.D.N.Y. July 11, 2016).
probable cause to arrest Plaintiff because an ambulance crew member
told Sergeant Leckinger that Plaintiff was interfering with the
Leckinger personally observed Plaintiff yelling at ambulance crew
members and attempting to climb inside the ambulance.
Defendants’ argument is fatally flawed because it relies upon
alleged facts that are outside the four corners of and directly
Complaint specifically alleges that the ambulance crew member told
Sergeant Leckinger to arrest Plaintiff without further explanation,
and makes no mention whatsoever of any yelling by Plaintiff or
attempts to enter the ambulance.
As discussed at length above, on
a motion to dismiss, this Court cannot and will not accept the
truth of the statements set forth in the City Defendants’ exhibits.
The fact that Rochester City Court Judge Yacknin expressly
found that Sergeant Leckinger lacked probable cause to arrest
Notably, the City Defendants fail to discuss the
Rochester City Court decision in their moving papers.
circumstances of this case, the Court simply cannot conclude as a
matter of law that Sergeant Leckinger had probable cause to arrest
Plaintiff, nor can it dismiss any of Plaintiff’s claims on this
Assault and Battery
The City Defendants have also made a cursory argument that
duplicative and without support in the record.
In particular, the
City Defendants contend that the assault and battery claims are
evaluated under the same standard as a Fourth Amendment excessive
force claim, and should be dismissed for the same reasons as
Plaintiff’s Section 1983 claims.
To the extent the City Defendants are arguing that state law
assault and battery claims cannot be asserted in tandem with a
Although state law assault and battery claims are “substantially
identical” to excessive force claims, they are not duplicative
under Section 1983
additional requirement that it “be committed under color of state
Posr v. Doherty, 944 F.2d 91, 94-95 (2d Cir. 1991)).
Accordingly, it is well-established that a plaintiff may pursue a
Fourth Amendment excessive force claim and state law assault and
batter claims in the same action.
See, e.g., Estate of Jaquez v.
City of New York, 104 F. Supp. 3d 414, 439 (S.D.N.Y. 2015); LaLonde
v. Bates, 166 F. Supp. 2d 713, 719 (N.D.N.Y. 2001).
The Court is further unpersuaded by the City Defendants’
contention that Plaintiff’s assault and battery claims lack factual
support. Plaintiff alleges that Sergeant Leckinger pushed him into
an ambulance, punched him in the face and head, and slammed him
into the pavement.
He further alleges that the RPD Officer
Defendants held him on the ground, overextended his arms, and
choked him into unconsciousness.
Under New York law, “[i]f an
arrest is determined to be unlawful, any use of force against a
plaintiff may constitute an assault and battery, regardless of
whether the force would be deemed reasonable if applied during a
lawful arrest.” Sulkowska v. City of New York, 129 F. Supp. 2d 274,
294 (S.D.N.Y. 2001).
In this case, as discussed above, the Court
is unable to determine at this state of the proceedings that
Sergeant Leckinger had probable cause to arrest Plaintiff or that
the arrest was lawful.
As such, and accepting the allegations in
the Complaint as true, as the Court must on a motion to dismiss,
there is no basis to dismiss Plaintiff’s state law assault and
H. Intentional Infliction of Emotional Distress and
Negligent Infliction of Emotional Distress
The City Defendants seek dismissal of Plaintiff’s claims for
infliction of emotional distress, arguing that an intentional
traditional tort remedies are available and that a negligent
infliction of emotional distress claim may not be premised on
The Court agrees with the City Defendants
that these claims are subject to dismissal.
Intentional Infliction of Emotional Distress
“Under New York law, intentional infliction of emotional
conduct; (ii) intent to cause, or disregard of a substantial
probability of causing, severe emotional distress; (iii) a causal
Warr v. Liberatore, No. 6:13-CV-06508 EAW,
2017 WL 3872491, at *11 (W.D.N.Y. Sept. 5, 2017) (quoting Howell v.
N.Y. Post Co., Inc., 81 N.Y.2d 115, 121 (1993)). A claim for
unavailable where other traditional tort remedies are available.”
Id. at *11 (citation omitted); see also Naccarato v. Scarselli, 124
F. Supp.2d 36, 44 (N.D.N.Y. 2000) (“In New York, intentional
infliction of emotional distress is a theory of recovery that is to
be invoked only as a last resort, when traditional tort remedies
emotional distress claim will lie where the conduct underlying the
claim falls within the ambit of traditional tort liability.”)
(internal citations and quotations omitted).
Here, because the traditional torts of false arrest, malicious
prosecution, and battery encompass the conduct Plaintiff complains
of, Plaintiff’s claim for intentional infliction of emotional
distress must be dismissed.
See Naccarato, 124 F. Supp.2d at 44
encompassed in plaintiff’s claims for assault and battery and
malicious prosecution, plaintiff’s claim for intentional infliction
of emotional distress must be dismissed.”).
Negligent Infliction of Emotional Distress
Turning to Plaintiff’s claim for negligent infliction of
emotional distress, “[w]hen a plaintiff brings 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.”
Id. at 45 (citations omitted); see also
Warr, 2017 WL 3872491 at *12 (“Under New York law, [w]hen a
plaintiff asserts excessive force and assault claims which are
negligence claim with respect to the same conduct will not lie.”)
In this case, the conduct that gives rise to
Plaintiff’s excessive force and assault and battery claims is also
the conduct on which his negligent infliction of emotional distress
claim relies, and that claim therefore must be dismissed.
Immunity from State Law Claims of False Arrest and
Imprisonment, and Malicious Prosecution
With respect to Plaintiff’s state law claims of false arrest
and imprisonment and malicious prosecution, the City Defendants
argue that the City and the RPD are immune from Plaintiff’s state
prosecution, because they are based on discretionary acts of police
Because the Court has already dismissed all claims
against the RPD, the Court will only address whether claims against
the City should be dismissed based on the City’s alleged immunity
from these state law claims.
“Eleventh Amendment sovereign immunity does not apply to
municipal actors, and Plaintiff’s claims are based on state law.
Thus, the City’s immunity, if any, would arise only by operation of
Williams v. City of New York, 121 F. Supp. 3d 354,
375-76 (S.D.N.Y. 2015) (citing Monell, 436 U.S. at 690 n.54).
“[M]unicipalities surrendered their common-law tort immunity for
the misfeasance of their officers and employees long ago.” Lore v.
City of Syracuse, 670 F.3d 127, 168 (2d Cir. 2012).
However, “[a]lthough New York State has waived sovereign
immunity on behalf of itself and its municipal subdivisions, ‘the
common-law doctrine of governmental immunity continues to shield
public entities from liability for discretionary actions taken
during the performance of government functions.’” Denis v. Town of
Haverstraw, 852 F. Supp. 2d 405, 410 (S.D.N.Y. 2012) (quoting
Valdez v. City of New York, 18 N.Y.3d 69, 75-6 (2011)).
negligence claims and does not preclude a plaintiff from pursuing
“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); see also Williams v. City of New York, 121 F. Supp. 3d 354,
376 (S.D.N.Y. 2015) (explaining that “the ‘discretionary act’
municipalities may be held liable for negligent acts of [their]
employees given the State’s waiver of immunity” and that “[u]nder
New York law, the City, just like any other private entity, is
answerable for the conduct of its officers who commit common-law
torts, such as assault and false imprisonment, when they are acting
in the course of their employment.”) (internal quotations omitted
and emphasis in original).
Here, the sole negligence-based claim asserted by Plaintiff is
one for negligent infliction of emotional distress, and the Court
has already determined that this cause of action must be dismissed,
as discussed above.
With respect to Plaintiff’s intentional tort
claims for false arrest and imprisonment and malicious prosecution,
the “discretionary act” immunity asserted by the City Defendants
simply does not apply to these causes of action, and dismissal is
not warranted on this basis.
The City Defendants’ final argument is that the RPD Officer
Defendants are entitled to qualified immunity with respect to all
of Plaintiff’s claims, because they justifiably arrested Plaintiff
and used an appropriate amount of force against him. The Court
finds, for the reasons discussed below, that the RPD Officer
Defendants are not entitled to dismissal on the basis of qualified
“A police officer is entitled to qualified immunity from
liability for his discretionary actions if either (1) his conduct
does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known, or (2) it was
objectively reasonable for him to believe that his actions were
lawful at the time of the challenged act.”
F.3d 194, 199 (2d Cir. 2001).
Cerrone v. Brown, 246
“A right is considered to be
sufficiently clear that a reasonable official would understand that
what he is doing violates that right.’” Id. (quoting Anderson v.
Creighton, 483 U.S. 635, 640 (1987)). Although “a defendant may
assert a qualified immunity defense on a Rule 12(b)(6) motion,
‘that defense faces a formidable hurdle when advanced on such a
Moore v. Newton, 220 F. Supp. 3d 275, 288 (E.D.N.Y.
2016) (quoting McKenna v. Wright, 386 F.3d 432, 433 (2d Cir.
In the context of a Rule 12(b)(6) motion, the facts
supporting the defense of qualified immunity must appear on the
face of the complaint. See Hyman v. Abrams, 630 F. App’x 40, 42
(2d Cir. 2015). “Thus, the plaintiff is entitled to all reasonable
inferences from the facts alleged, not only those that support his
claim, but also those that defeat the immunity defense.”
386 F.3d at 436.
Here, the Complaint sets forth plausible factual allegations
that the RPD Officer Defendants arrested Plaintiff without probable
cause and used excessive force in executing their arrest. (See,
No. 1 at ¶¶ 50-61, 67-68).
Although the City
Defendants have submitted exhibits to the Court that they contend
demonstrate the existence of probable cause as a matter of law, as
discussed above, the content of those exhibits may not properly be
considered by the Court on a motion to dismiss.
is limited to the facts
Instead, the Court
set forth in the Complaint.
those facts, and at this early stage of the proceedings, the Court
cannot determine that the RPD Officer Defendants are entitled to
qualified immunity as a matter of law.
For the reasons set forth above, the City Defendants’ motion
to dismiss (Docket No. 11) is granted in part and denied in part.
Specifically, (1) the motion is granted with respect to all of
Plaintiff’s claims against the RPD, (2) Plaintiff’s claims against
dismissed, and (3)
Plaintiff’s state law claims for intentional
and negligent infliction of emotional distress are dismissed.
City Defendants’ motion is denied in all other respects. The Clerk
Department as a named defendant in this case.
ALL OF THE ABOVE IS SO ORDERED.
S/Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
January 8, 2018
Rochester, New York
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