Avallon v. City of Newport et al

Filing 20

MEMORANDUM AND ORDER denying 15 Motion to Dismiss. So Ordered by District Judge William E. Smith on 8/1/2022. (Urizandi, Nissheneyra)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
___________________________________

)
)
KIMBERLY AVALLON,
)
)
Plaintiff,
)
)
v.
)
)
City of Newport et al.,
)
)
Defendants.
)
___________________________________)

C.A. No. 20-515 WES

MEMORANDUM AND ORDER
William E. Smith, District Judge.
Before the Court is Defendants’ Motion to Dismiss Counts I
and IV of Plaintiff’s Amended Complaint, ECF No. 15.

For the

reasons that follow, the Motion to Dismiss is DENIED.
I.

BACKGROUND
On July 13, 2016, Plaintiff arrived at her mental health

counselor’s office with self-inflicted wounds on her arms. Am.
Compl. ¶ 6, ECF No. 1-1; Mem. in Supp. of Pl.’s Opp’n to Defs.’
Mot. to Dismiss (“Pl.’s Opp’n”) 1, ECF No. 16-1.

Two of the

Defendants here, Officers Adkins and McGregor, responded to a call
from the facility concerning Plaintiff.

Am. Compl. ¶ 6.

While

attempting to restrain Plaintiff, the officers pressed her against
a wall with her knees resting on a desk organizer, which toppled

over.

Am. Compl. ¶¶ 8-10.

Plaintiff’s arm broke in the fall.

Id. ¶ 10.
Ms.

Avallon

alleges

that

Defendants

Adkins

and

McGregor

violated her constitutional rights under the Fourth Amendment
(excessive force), that they committed certain common law torts
against her as they attempted to restrain her, and that the city
is vicariously liable for those torts. Am. Compl. ¶¶ 11-20.

She

brings a four-count Complaint asserting claims for: negligence
(Count I), excessive force constituting an unreasonable seizure,
42 U.S.C. §1983 (Count II), assault and battery (Count III), and
Respondeat Superior against the city for the officers’ negligence
(Count IV).
Defendants have moved to dismiss only Counts I and IV on the
grounds that claims of excessive force and negligence are legally
inconsistent because they would require a defendant to act both
negligently and intentionally at the same time.

Defs. Mem. of Law

in Support of Mot. to Dismiss 3-4, ECF No. 15-1.

See Mucci v.

Town of North Providence, 815 F. Supp. 2d 541 (D.R.I. 2011).

In

response, Plaintiff has asked this Court to convert the Motion to
Dismiss to one for summary judgment, and to deny it.
II.

Pl.’ Opp’n 2.

LEGAL STANDARD
When evaluating a motion to dismiss for failure to state a

claim, “the Court must construe the complaint in the light most
favorable to the plaintiff; taking all well-pleaded allegations as
2

true

and

giving

inferences.”

the

plaintiff

the

benefit

of

all

reasonable

See Tomas v. Buckley, C.A. No. 20-00235-WES, 2020 WL

5064218, at *2 (D.R.I. Aug. 27, 2020) (internal citations omitted),
R. & R. adopted, 2020 WL 6462930, at *1 (D.R.I. Nov. 3, 2020).

In

order for Plaintiff “[t]o survive a motion to dismiss, [the]
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) (quoting Bell Atl.
Corp. v. Twombley, 550 U.S. 544, 570 (2007)).

When a claim is

pled with facts that “allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged,”
it is deemed plausible on its face.

Id.

III. DISCUSSION
A.

Conversion

The Plaintiff seeks to have the Defendants’ Motion to Dismiss
converted to a motion for summary judgment so that the Court may
consider

additional

materials

provided

in

discovery.

Pl.’s

Opp’n 2.

This Court has “discretion whether to consider matters

outside the pleadings, but if it does so, it must follow Fed. R.
Civ. P. 12(d) and convert the motion to dismiss to a motion for
summary judgment.”

Yagoozan, Inc. v. Kids Fly Safe, No. CA 14-

040 ML, 2014 WL 3109797, at *3 (D.R.I. July 8, 2014) (citing Royal
Bank of Scotland v. M/T STAVRODROMI, No. 11-372ML, 2013 WL 1343538,
at *3 (D.R.I. Feb. 12, 2013)).

However, “conversion is disfavored
3

unless

the

case

has

reached

the

stage

where

there

has

been

sufficient factual development so that the parties have a true
‘reasonable opportunity’ to present pertinent summary judgment
materials.”

Id. at *4 (citing Rubert-Torres v. Hosp. San Pablo,

Inc., 205 F.3d 472, 475-76 (1st Cir. 2000)).
While

there

are

reasons

that

would

favor

conversion

(Plaintiff invites it, and the defense has not opposed it or
responded at all), those reasons are outweighed by other factors.
First,

the

parties

are

currently

engaged

in

discovery

and

Defendants likely have not had a fair opportunity for full factual
development of their defenses.

Additionally, Plaintiff explicitly

states she believes neither party is entitled to summary judgment
because there is still a dispute of material fact.
Opp’n 7-8.

See Pl.’s

Converting Defendants’ motion to one for summary

judgment only to deny it, where they have not argued the merits,
would unfairly prejudice Defendants.

And while it is true that

this would allow the Court to potentially reach the viability of
Plaintiff’s negligence claim, the issue should be fully briefed.
Therefore, because conversion is generally disfavored, discovery
is

not

complete,

Defendants

would

arguably

be

prejudiced

by

conversion, and conversion would require the Court to reach issues
which are only partially briefed, the Court declines to exercise
its discretion in converting the Motion to Dismiss to summary
judgment.
4

B.

Count I: Negligence

The key question is whether both Plaintiff’s claims for
negligence and excessive force, premised on the same acts, may
survive a motion to dismiss even if she may not press both at
summary judgment.

The Court concludes they do.

See Rodriguez v.

City of Portland, Civil No. 09–850–KI, 2009 WL 3518004, at *2
(D.Or. Oct. 21, 2009) (holding that a party may plead in the
alternative negligence and constitutional claims under § 1983, but
a party may not advance both negligence and constitutional claims
at the summary judgment stage).
This holding is consistent with Rule 8(d)(2), which states
that “[a] party may set out two or more statements of a claim or
defense alternatively or hypothetically, either in a single count
or defense or in separate ones.

If a party makes alternative

statements, the pleading is sufficient if any one of them is
sufficient.”

Furthermore, Rule 8(d)(3) states that “[a] party may

state as many separate claims or defenses as it has, regardless of
consistency.”

This is also more consistent with the purpose of

notice pleadings, which is to “giv[e] the opposing party fair
notice of the nature and basis or grounds of the claim and a
general

indication

of

the

type

of

litigation

involved;

the

discovery process bears the burden of filling in the details.”
See Rodriguez, 2009 WL 3518004, at *2 (quoting 5 Charles Alan

5

Wright & Arthur R. Miller, Federal Practice and Procedure § 1215
(2d ed. 1987)).
Arguing the opposite, the Defendants rely on Mucci, where
this Court held that “a plaintiff may not advance claims of
excessive force and negligence predicated on identical facts.”
815 F. Supp. 2d at 548 (citing Hall v. Lanier, 708 F. Supp. 2d 28,
31-32 (D.D.C. 2010)).

Critically, however, Mucci was decided at

the summary judgment stage, where it is expected that a plaintiff’s
claims will have been distilled and clarified by the process of
discovery.

Id. at 548-49.

Thus, while it remains true that to

“maintain claims of both negligence and excessive force [at summary
judgment], a plaintiff must allege at least one fact that is
distinct in one claim from the other,” id. at 548, the same is not
true at the 12(b)(6) stage, where a plaintiff may contend that a
defendant’s actions were either intentional or negligent.
While Defendant’s Motion must be denied for these reasons,
the Court notes that Plaintiff’s victory may be short-lived.

For

as currently pleaded, Ms. Avallon relies on identical alleged facts
to support both her negligence and excessive force claims.
Compl.

¶¶

11-15.

Plaintiff’s
developed

As

such,

absent

negligence

claim

from

through

discovery

or

alleged

her

facts

excessive

differentiated

in

Am.

separating

force
an

claim

amended

complaint, Mucci will be a formidable obstacle to her at summary
judgment.
6

C.

Count IV: Respondeat Superior

Any claim against the city rests solely on the negligence
claim on a respondeat superior theory.

See Langan v. Picerne Inv.

Corp., C.A. NO. 82-580, 1983 WL 481438, at *1 (R.I. Super. Ct.
Jan. 12, 1983) (“[T]he negligence of any Town officer is chargeable
to the Town . . . under the doctrine of respondeat superior.”).
Because Plaintiff’s negligence claim against the officers has
survived at this juncture, her claim of vicarious liability against
the city does too.
IV.

CONCLUSION
For

the

reasons

contained

Dismiss, ECF No. 15, is DENIED.

William E. Smith
District Judge
Date: August 1, 2022

7

herein,

Defendants’

Motion

to