Case Information
*1 UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
___________________________________________
SHELISE COLON and LAWRENCE BARRETT,
DECISION AND ORDER Plaintiffs,
17-CV-6160L v.
CITY OF ROCHESTER, a municipal entity, et al.,
Defendants.
___________________________________________
Plaintiffs Shelise Colon and Lawrence Barrett bring this action against the City of Rochester, New York (“City”) and several individuals employed by the Rochester Police Department (“RPD”). Plaintiffs have brought seventeen causes of action against defendants, under federal and state law, arising out of an incident that occurred in Rochester on December 16, 2015. Defendants have moved to dismiss the complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.
BACKGROUND
The complaint alleges that on December 16, 2015, at around noon, plaintiffs went to the Transit Center on St. Paul Street in Rochester to catch a bus. [1] Since the bus was not due to depart for about 45 minutes, plaintiffs stopped at a nearby convenience store, and Barrett bought a cigar.
*2 Plaintiffs then stood outside a building at 36 St. Paul Street, while Barrett smoked his cigar. Shortly thereafter, a police cruiser drove up and parked on St. Paul Street, about 15 to 20 feet away from plaintiffs.
In the front seat of the police cruiser were RPD officers William Baker and Jason Kelly. After several minutes, Baker and Kelly yelled out the window of the car to plaintiffs and told them to “move along.” Complaint ¶ 38.
Plaintiffs allege that they began to walk toward the Transit Center, but Baker and Kelly got out of their car and rushed toward plaintiffs. Baker allegedly grabbed Barrett from behind, slammed him against the wall of a building, and yelled, “Where do you think you are going?” Complaint ¶ 41. When Colon asked why she and Barrett were being stopped, Baker responded that the officers did not have to explain their actions, and one of the officers grabbed Colon’s arm and threw her to the side.
Officer Baker then ordered Barrett to produce identification. Barrett began to reach toward his pocket to do so, but Baker unholstered his taser and ordered Barrett to put his hands over his head. Barrett did so.
At that point, Colon took out her cell phone and began to make a video recording of what was happening. Several more times, the officers allegedly told Barrett to produce his identification, and each time, as Barrett reached toward his pocket, the officers threatened to “tase” him. Colon told the officers that she was recording the incident on her phone, and they told her to leave the area. When she refused, Baker ran over, grabbed Colon, and twisted her arm, in an effort to get her to stop recording these events.
At about this time, a second police car arrived, containing RPD officers Orlando Hernandez and Braddon Elliott. They rushed to assist Baker and Kelly. Hernandez forcibly took Colon’s cell phone from her, and he and Elliott put Colon in handcuffs. Barrett was placed in the rear of Baker’s and Kelly’s vehicle, and Colon was put into Hernandez’s and Elliott’s vehicle.
RPD Sergeant Mandi E. Wheeler next arrived at the scene. After speaking with the officers and with the plaintiffs, Sgt. Wheeler “approved” plaintiffs’ arrests. Complaint ¶ 71. Wheeler allegedly told plaintiffs that they were being arrested for trespass. She also said that Baker and Kelly had initially stopped plaintiffs because Barrett “fit the description” of a wanted suspect. Complaint ¶ 72.
After plaintiffs’ arrest, the officers obtained a signed statement from the owner of the building at 36 St. Paul Street, Taib El Kettani, stating in sum and substance that he had not given plaintiffs permission to loiter outside his building and that he wanted them prosecuted for trespassing. Plaintiffs allege that RPD officers routinely obtain such statements from property owners to support unjustified arrests for loitering, trespass, disorderly conduct, etc. Complaint ¶ 79.
Following plaintiffs’ arrest, officers Hernandez and Elliott took Colon to Rochester General Hospital, where she was treated for injuries she allegedly sustained during her arrest. Officers Baker and Kelly took Barrett to the Monroe County Jail. He was arraigned the next day and charged with one count of trespass in violation of N.Y. Penal L. § 240.05. Plaintiffs allege that “[a]ll of the violation charges against Mr. Barrett have since been dismissed and sealed.” *4 Complaint ¶ 115. The complaint does not allege whether any charges were brought against Colon following her arrest.
Based on these allegations, plaintiffs commenced this action in March 2017 against the City, Officers Baker, Kelly, Hernandez and Elliott (“Officers”) and Sgt. Wheeler. Plaintiffs assert the following claims, all of which are brought by both plaintiffs unless otherwise noted: (1) a claim under 42 U.S.C. § 1983, alleging a variety of constitutional violations, including denial of due process, false arrest, excessive force, etc.; (2) a false arrest claim by Barrett against Baker and Kelly under § 1983; (3) a false arrest claim by Barrett against Baker, Kelly and the City under New York law; (4) an assault claim by Barrett against Baker and the City under New York law; (5) a battery claim by Barrett against Baker and the City under New York law; (6) an excessive force claim by Barrett against Baker under § 1983; (7) an assault claim by Colon against Baker and the City under New York law; (8) a battery claim by Colon against Baker and the City under New York law; (9) an excessive force claim by Colon against Baker under § 1983; (10) a claim alleging failure to intervene, by both plaintiffs against Kelly, under § 1983; (11) a claim alleging unlawful retaliation in violation of the First Amendment, by Colon against Baker under § 1983; (12) a negligence claim against the City; (13) a claim against the City alleging municipal liability for the officers’ use of excessive force; (14) a municipal-liability claim against the City with respect to the officers’ alleged use of false “cover” charges to punish so-called “contempt of cop”; (15) a claim against Baker, Kelly and Hernandez for denial of due process and the right to a fair trial, under § 1983; (16) a claim against Baker, Kelly, Hernandez, Elliott and Wheeler for conspiracy, under 42 U.S.C. § 1985(3); and (17) a claim of supervisory *5 liability against the City and Wheeler under § 1983. [2] Plaintiffs seek an unspecified amount of compensatory and punitive damages, “appropriate declaratory and injunctive relief,” and attorney’s fees and costs.
DISCUSSION
I. Defendants’ Motion
In support of their motion to dismiss, defendants assert that: (1) the individual officers
are entitled to qualified immunity; (2) plaintiffs have not pleaded a viable conspiracy claim;
(3) plaintiffs’ false arrest, false imprisonment and malicious prosecution claims must be
dismissed because plaintiffs have not alleged that they received a favorable disposition of their
criminal charges; (4) plaintiffs have failed to allege facts supporting a claim of municipal
liability under
Monell v. Dep’t of Social Servs.
,
*6 II. Matters Outside the Pleadings
In response to defendants’ motion, plaintiffs argue that defendants have improperly submitted and asked the Court to consider materials outside the pleadings. Specifically, in support of their motion, defendants have submitted copies of an information/complaint and a supporting deposition signed by Taib El Kettani on December 16, 2015, as well as some RPD reports made in connection with plaintiffs’ arrest. Those include a Prisoner Data Report concerning Colon, two Investigative Action Reports, and an Incident Report. Some of those documents contain a narrative of events as described by Hernandez, Kelly and Baker.
“On a motion to dismiss, the court’s consideration generally is limited to the four corners
of the complaint ... .”
Hopkins v. Booth
, No. 16-CV-1020,
The complaint in this case not only cites El Kettani’s supporting deposition and information/complaint, but quotes the deposition at some length. See Complaint ¶ 79. For that matter, an integral part of plaintiffs’ claims is their allegation that RPD officers routinely draft depositions and similar papers, often containing false statements, to provide “cover” for their unlawful arrests, for which they then procure signatures by ostensible complainants. The Court will therefore consider El Kettani’s supporting deposition and information/complaint.
Plaintiffs also allege in the complaint that the Officers “falsified their account” of the events “in official police paperwork ... .” Complaint ¶¶ 92-94. Again, they allege that this was done pursuant to a “continuing custom or practice” of the RPD. Id.
In light of those allegations, the Court will consider the RPD documents that defendants
have submitted, which were originally filed in connection with plaintiffs’ arrests. That does not
mean that the Court will accept the truth of the statements contained therein, but the Court will
consider the fact that they were filed, and that they contain certain statements.
See Feinberg v.
T. Rowe Price Group, Inc.
, No. 17-0427,
III. Conspiracy
In their sixteenth cause of action, which is brought pursuant to 42 U.S.C. §§ 1983 and
1985(3), plaintiffs allege that the Officers and Wheeler conspired with each other to deprive
plaintiffs of their rights. To establish such a claim, plaintiffs must show “(1) an agreement
between two or more state actors or between a state actor and a private entity, (2) to act in
*8
concert to inflict an unconstitutional injury, and (3) an overt act done in furtherance of that goal,
causing damages.”
Pangburn v. Culbertson
,
Defendants contend that this claim should be dismissed pursuant to the “intracorporate
conspiracy doctrine.” Under that doctrine, “officers, agents and employees of a single corporate
entity are legally incapable of conspiring together.”
Sherman v. City of New York
, No.
18-cv-5359,
The Court agrees with defendants that this claim is barred by the intracorporate
conspiracy doctrine. Although there is an exception to the general rule “where the individual
defendants, despite being a part of the same entity, are pursuing personal interests wholly
separate and apart from the entity,”
Ivery v. Baldauf
,
In their response to defendants’ motion, plaintiffs simply repeat their allegations that
defendants conspired with each other. That conclusory allegation is insufficient to state a
conspiracy claim against the individual defendants.
See Sherman
,
In the second and third causes of action, Barrett asserts claims of false arrest against Baker and Kelly under § 1983, and against Baker, Kelly and the City under New York law, respectively. Defendants contend that these claims must be dismissed because plaintiffs have not alleged that Barrett received a favorable disposition of the charges against him. [3]
The elements of a false arrest claim are the same under New York law and § 1983.
See
Simpson v. City of New York
,
There is case law from this circuit that, on the surface, might appear contradictory about
whether a plaintiff asserting a false arrest claim must allege or prove that the underlying criminal
*10
proceedings terminated in his favor. The Court of Appeals for the Second Circuit has stated that
“under New York law, while the favorable termination of judicial proceedings is an element of a
claim for malicious prosecution, it is not an element of a claim for false arrest.”
Weyant v. Okst
,
A closer examination of the case law shows that there is no inconsistency. Where the
plaintiff has been convicted of at least one offense for which he was arrested, that conviction will
generally “foreclose[] a false arrest claim by serving as conclusive evidence of probable cause to
arrest.”
Bennett v. N.Y.C. Police Dep’t Transit Dist.
, No. 19-CV-0403,
The court in
Weyant
did not hold to the contrary. In the context of the facts before it, the
Court of Appeals simply stated that a plaintiff who asserts a claim of false arrest need not have
insisted that he be criminally prosecuted following the arrest, or, if a prosecution was brought
against him, that he have pursued the case to an acquittal or unqualified dismissal, in order to
preserve a later false arrest claim.
In addition, the favorable-termination principle stems from the Supreme Court’s holding
in
Heck v. Humphrey
,
In the case at bar, plaintiffs allege that “[a]ll of the violation charges against Mr. Barrett have ... been dismissed and sealed.” Complaint ¶ 115. Plaintiffs do not state what the basis or reason was for the dismissal of the charges.
In their memorandum of law, defendants state that plaintiffs “were either convicted or
pled guilty to an ACD,”
i.e.
, adjournment in contemplation of dismissal (Dkt. #4-6 at 5). That is
an odd statement, since (1) defendants presumably would be in a position to know what the
disposition was of whatever charges were brought against plaintiffs, and (2) one cannot “plead
guilty” to an ACD, since “[u]nlike a conviction, an ACD leaves open the question of guilt, and
does not bar [a plaintiff] from pursuing [a] false arrest claim.”
Ivery
,
On this motion to dismiss, the Court cannot make a determination in that regard. The Court is limited to what is alleged or incorporated by reference in the complaint. Furthermore, even if the Court could consider defendants’ assertions, they are unhelpful. Defendants have stated, in effect, that either one thing or the other happened, evidence of neither of which appears in the complaint, or for that matter, anywhere else in the record. It is difficult to understand how defendants think the Court could dismiss these claims on that basis.
As stated, defendants have also submitted copies of El Kettani’s supporting deposition and information/complaint, both of which are dated December 16, 2015. In the deposition, El Kettani states that at around 2:00 p.m. on that date, he “was contacted by Rochester Police Dept. regarding people trespassing on [his] property ... .” He states that he had experienced ongoing problems with people loitering outside his building, and that he was “very thankful” for the RPD’s help in dealing with that problem. (Dkt. #4-3.) In the information/complaint (Dkt. #4-4), El Kettani states that on December 16, 2015, plaintiffs were on his premises without his permission, and blocking the entrance to his building. But he does not state that he actually saw them outside the building, or that he had any direct knowledge of the events leading to plaintiffs’ arrest.
There is authority that an arresting officer is entitled to rely on an alleged victim’s
complaint, absent circumstances raising doubts as to the victim’s veracity.
See
,
e.g.
,
Singer v.
Fulton Cty. Sheriff
,
Neither the complaint, nor any materials the Court may consider on the present motion,
suggest that such occurred here. In his supporting deposition, El Kettani states that RPD
contacted
him
about an alleged trespass. That jibes with plaintiffs’ allegation that after
plaintiffs’ arrest, the officers drafted a supporting deposition and complaint and presented them
to El Kettani for his signature, in order to justify,
post hoc
, their arrest of plaintiffs.
Cf.
Nansaram v. City of New York
, No. 12-CV-5038,
In short, there is no basis upon which the Court can dismiss the false arrest claims.
Defendants do not appear to contend that the allegations of the complaint are deficient (other
than with respect to the outcome of any charges that were brought against plaintiffs, as discussed
above), and assuming the truth of plaintiffs’ factual allegations, as I must at this stage, the Court
cannot find as a matter of law that the Officers had probable cause to arrest plaintiffs. According
to plaintiffs, they were simply standing on a sidewalk, not far from the bus station, when Baker
and Kelly told them to move along. When plaintiffs started walking away, the officers ran over
and arrested them. Those allegations state a facially sufficient claim of false arrest as to Baker
and Kelly.
[4]
See Guntlow v. Barbera
,
Defendants also contend that the officers are entitled to qualified immunity. Qualified
immunity shields public officials, including police officers, from an action for civil damages, to
the extent that their challenged acts do not violate “clearly established statutory or constitutional
rights of which a reasonable person would have known.”
Harlow v. Fitzgerald
,
Whether defendants are entitled to qualified immunity can sometimes be determined on a
motion to dismiss.
See Garcia v. Does
,
As stated, the facts alleged in the complaint, if accepted as true, show that Baker and
Kelly charged out of their police car and arrested plaintiffs, who were doing nothing more than
standing on a public sidewalk. Perhaps the arrests were justified, or the officers may reasonably
have believed them to have been justified. But the Court cannot make a determination in that
regard on a motion to dismiss.
See Guntlow
,
Plaintiffs have asserted claims of excessive force in violation of federal law, and claims of assault and battery in violation of New York law. Defendants contend that these claims should be dismissed because plaintiffs have not alleged facts showing that the officers used an unreasonable amount of force.
The standard for assessing a claim of excessive force under § 1983 is one of “objective
reasonableness.”
Tracy v. Freshwater
,
“Federal excessive force claims and state law assault and battery claims against police
officers are nearly identical.”
Graham v. City of New York
,
Whether probable cause for the arrest existed is not dispositive of a Fourth Amendment
excessive force claim.
See County of Los Angeles v. Mendez
,
Under New York law, however, the use of
any
force during the course of an unlawful
arrest gives rise to assault and battery claims against the arresting officer. See
Goonewardena v.
Spinelli
, No. 15-CV-5239,
To recapitulate, accepting the truth of plaintiffs’ allegations, they were standing on a public sidewalk when Officers Baker and Kelly told them to “move along.” As plaintiffs began to walk away, Baker and Kelly sprang out of their vehicle and ran toward plaintiffs. Baker grabbed Barrett and pushed him against the wall of the adjacent building. Baker demanded that Barrett produce identification, but every time Barrett reached to his pocket to do so, Baker threatened to “tase” him.
Colon began recording these events on her cell phone, and told the officers that she was doing so. Baker ran over and grabbed her arm, and Hernandez, who had arrived in the *17 meantime, took the phone. Both plaintiffs were then handcuffed and put into police vehicles. [5] Barrett was taken to the local jail, and Colon was taken to a hospital, where she was attended to and later released.
As to the federal claims of excessive force, it is questionable whether the force alleged to
have been used could fairly be characterized as excessive. But that cannot be determined on this
motion to dismiss. Despite the relatively modest level of force alleged, the Court cannot
determine now, as a matter of law, that the force used was
de minimis
, as would be required to
support dismissal of these claims.
See Jackson v. Mastrangelo
, __ F.Supp.3d __, 2019 WL
4686456, at *3 (W.D.N.Y. 2019) (“for Fourth Amendment excessive force claims, ‘[i]t is the
force used, not the injuries caused, which must be determined to be de minimis as a matter of
law’”) (quoting
Campbell v. City of New York
, No. 06-CV-5743,
As explained above, plaintiffs have stated a facially valid claim for false arrest as to Barrett. They have not asserted a false arrest claim as to Colon, but they have alleged that she was arrested and that the force used against her was unwarranted. According to plaintiffs, all Colon did was record the incident on her phone, and the officers forcibly took her phone from her. If plaintiffs’ allegations are true, then they have stated facially valid claims for assault and *18 battery under New York law, since any use of force to effect an arrest without probable cause can give rise to a claim for assault and battery under New York law.
Defendants have asserted a qualified immunity defense on these claims as well. “The
standard for determining whether police officers enjoy immunity for ... battery actions is the
same under state law as it is under federal law.”
Graham
,
Since plaintiffs’ claims of excessive force and assault and battery survive defendants’
motion to dismiss, defendants’ motion to dismiss based on qualified immunity must also be
denied. Both a claim of excessive force and a qualified immunity defense to such a claim
depend on whether or not the officer’s actions were objectively reasonable.
See Jackson
, 2019
WL 4686456, at *4 (“Because the Court finds Plaintiff has adequately alleged Fourth
Amendment claims against Defendants, Defendants’ motion to dismiss on the basis of qualified
immunity is denied”);
see also Spencer
,
VI. Failure to Intervene
The tenth cause of action is asserted by both defendants against Kelly, alleging that Kelly had a duty to intervene on plaintiffs’ behalf to prevent or stop Baker from violating plaintiffs’ rights, and that Kelly failed to do so.
“[L]aw 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.”
Terebesi v. Torreso
,
An officer may be liable for the preventable harm caused by his failure to intervene
during a constitutional violation where the officer “observes the [constitutional violation] and
has sufficient time to act to prevent it.”
Figueroa v. Mazza
,
While plaintiffs’ allegations in support of this claim can fairly be described as thin, I find them sufficient at this stage to allow this claim to proceed. The allegations of the complaint describe a brief incident, involving a relatively small degree of force. But Kelly is alleged to have taken part, and assuming the truth of plaintiffs’ allegations, the Court cannot rule as a matter of law that the failure-to-intervene claim as pleaded is facially inadequate.
I also deny Kelly’s motion to dismiss this claim on the ground of qualified immunity. It
is not clear at this point whether excessive force was used, and if so, whether Kelly could or
should have intervened to prevent or stop it.
See Walker v. Schult
,
In the eleventh cause of action, plaintiff Colon asserts a claim pursuant to § 1983 against Baker of unlawful retaliation under the First Amendment. Specifically, plaintiffs allege that when Colon began recording the incident on her cell phone camera, Baker stopped what he was doing with Barrett, went over to Colon, grabbed her and attempted to forcibly take her cell phone from her, “to retaliate against her and to chill and deter her from further First Amendment protected activity.” Complaint ¶ 188. In support of their motion to dismiss this claim, defendants argue that “[p]laintiffs had no right to resist arrest, whether or not they had a camera.” Def. Mem. (Dkt. #4-6) at 14.
As explained above, the facts are in dispute as to whether there was a lawful basis to arrest plaintiffs. In any event, the allegation here is not that Baker’s arrest of Colon incidentally prevented her from recording the incident, but that Baker assaulted her precisely because she was recording Barrett’s arrest on her phone.
There is case authority that such allegations suffice to make out a First Amendment
claim.
See
,
e.g. McKenzie v. City of N.Y.
, No. 17 Civ. 4899,
Again, the Court must keep in mind that this is a motion to dismiss. Whether this claim survives discovery or trial remains to be seen. But construing the allegations of the complaint in the light most favorable to plaintiffs, I conclude that Colon has adequately stated a First Amendment claim.
VIII. Municipal Liability
A. State Law Claims
In Claims 3, 4, 5, 7, 8, 12, 13, 14 and 17, plaintiffs have asserted claims against the City, as well as against the individual defendants named in those counts, under New York law.
With respect to those claims, much of defendants’ papers in support of their motion to
dismiss is taken up by a discussion of so-called
Monell
liability,
see Monell v. Dep’t of Social
Services
,
While Monell is relevant to plaintiffs’ federal claims (as discussed below), it is not dispositive with respect to plaintiffs’ state-law claims against the City.
First, it is obvious from the complaint that the Officers were acting in the scope of their
employment. The law in New York is well established that a “New York [municipal] employer
... is liable for intentional torts, such as assault and battery, committed by its employees provided
that the tort is committed within the scope of the plaintiff’s employment.”
Green v. City of New
York
,
The City has conceded that the named officers were acting within the scope of their employment during the events in question, see Def. Mem. (Dkt. #4-6) at 10. Therefore, claims 3 (false arrest), 4, 5, 7 and 8 (assault and battery), all of which are based on New York law, and all of which survive against the individually named defendants, survive against the City as well.
Claim 12 is brought against the City under state law, alleging negligence with respect to the City’s hiring, retention, training and supervision of its police officers. Plaintiffs also allege that the City was negligent in failing to discipline and take corrective action against Officers Baker and Kelly after their past acts of misconduct. Again, this claim is largely defeated by the fact that the Officers were clearly acting within the scope of their employment.
“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 [his or] her employment” when committing the tort.
Velez v. City of New
York
,
As stated above, the City concedes that the officers were acting within the scope of their
employment, and nothing before me indicates otherwise. An act falls within the scope of
employment “if it is in furtherance of, or reasonably necessary or incidental to, the employer’s
business or interest.”
Hamilton v. City of New York
, No. 15-CV-4574,
The Court’s conclusion in this regard renders it unnecessary for me to address the
elements of a failure-to-train claim, concerning whether the municipality knew or should have
known of the employee’s propensity to engage in the conduct causing the plaintiff’s injury, etc.
See Marcinkowski
,
B. Federal Claims
1. Use of Excessive Force and “Cover” Charges
In their thirteenth and fourteenth claims for relief, plaintiffs allege respectively that the City has maintained unconstitutional policies with respect to the use of excessive force in making arrests, and by permitting the RPD’s use of “cover” charges to punish so-called “contempt of cop.” In support of the thirteenth claim, plaintiffs have set forth allegations about several RPD officers, none of whom were involved in the incident giving rise to this suit, asserting that those officers have used excessive force and were never disciplined for their actions. Complaint ¶¶ 218-51.
There is no bright-line rule for determining whether allegations of prior incidents
involving other officers and different alleged victims are sufficient to make out a
Monell
claim.
On the one hand, a plaintiff asserting a
Monell
claim must go beyond merely reciting a “litany of
other police-misconduct cases” involving the same municipality.
Pryor v. City of N.Y.
, No.
16-CV-8232,
But that does not mean that past incidents are irrelevant, or that they can never support a
claim of municipal liability. A plaintiff asserting a
Monell
claim based on a municipality’s
ongoing practice or custom will typically need to rely on past cases involving police misconduct.
See Outlaw v. City of Hartford
,
In making that determination, courts typically consider both the number of alleged prior
incidents and the degree of similarity that they bear to the incident that gave rise to the lawsuit at
bar.
See
,
e.g.
,
Scott v. City of Rochester
, No. 17-CV-6359,
In the case before me, plaintiffs have set forth allegations about six RPD officers who have allegedly used excessive force in the past, but never been disciplined for doing so. See Complaint ¶¶ 218-51. Those twelve incidents took place between July 15, 2001 and September 18, 2015.
Some of the incidents alleged are factually quite dissimilar from the incident that occurred here. For example, plaintiffs allege that on August 31, 2002, Officer Thomas Rodriguez, with other RPD officers, attacked a certain individual in Rochester, “by tacking [sic] him to the ground, shooting him with a TASER, punching, kicking, and beating him with night sticks,” and that the man died as a result of his injuries. (Complaint ¶ 219.) That is a far cry from what happened here. In addition, plaintiffs have alleged no facts providing any background for that incident, so there is no way to gauge the extent to which any of the force used was reasonable. Obviously, in some circumstances, even lethal force may be justified.
Some of the alleged incidents, however, do bear some similarity to the one alleged in this case. For instance, plaintiffs allege that on May 12, 2011, Officer Mario Masic falsely arrested and assaulted Rochester resident Emily Good in retaliation for her making a video recording of RPD officers as they searched an African-American motorist’s vehicle on the street in front of Good’s home. Plaintiffs allege that the charges against Good were eventually dismissed, and that Masic was not reprimanded or otherwise disciplined for his actions. Complaint ¶¶ 237-38. The other incidents alleged fall at various points on the spectrum in terms of their similarity to the incident here, but in they all involve alleged uses of excessive force by RPD officers, who were not disciplined for their actions.
As stated, plaintiffs assert in the thirteenth cause of action that the City has been deliberately indifferent to RPD officers’ use of excessive force, both in carrying out arrests and in non-arrest interactions with civilians. Plaintiffs allege that at the time of the incident giving rise to this suit, the RPD essentially had no standards governing officers’ use of force. In other words, officers were given free rein to use force as they saw fit.
Given those allegations, the Court cannot simply disregard the allegations about prior incidents. If the claim is that the City and the RPD have routinely ignored officers’ use of force, no matter how excessive or unwarranted, then the fact that some of the prior alleged incidents involved uses of force that were more egregious than what is alleged here is not dispositive.
In making this determination, the Court is mindful that this is not a motion for summary
judgment. On a motion to dismiss, the Court must accept the truth of plaintiffs’ factual
allegations, and construe all reasonable inferences in their favor. Applying that standard, I
conclude that plaintiffs’ thirteenth claim should be allowed to proceed.
See Acquah v. City of
Syracuse
, No. 18-CV-1378,
The fourteenth claim alleges that the City and RPD have created and maintained a custom and policy of wrongfully arresting people without probable cause. Plaintiffs allege a number of aspects in which those arrests are wrongful, such as: the use of false “cover” charges like disorderly conduct, trespass, resisting arrest, etc.; so-called “contempt of cop” arrests based on the arrestee’s perceived lack of respect for the officer; and making arrests without probable cause, simply to meet the goals of temporary law-enforcement initiatives.
Plaintiffs also allege that the City’s and RPD’s policies in this regard proximately caused their injuries. In particular, plaintiffs allege that the arrests of plaintiffs were made in part to carry out an RPD policy then in effect, known as “Operation Cool Down,” pursuant to which RPD officers were instructed to aggressively engage citizens in public areas, in an ostensible effort to deter crime and violence in Rochester. Complaint ¶¶ 312, 314.
As in the thirteenth cause of action, plaintiffs have alleged and rely upon other past incidents involving RPD officers. One such incident relates to a case filed in this Court, Redd v. City of Rochester , No. 15-CV-6049, which was ultimately settled pursuant to a stipulation of discontinuance. See id. , Dkt. #56. Plaintiffs also again cite the incident involving Officer Masic’s arrest of Emily Good, and a May 1, 2013 arrest of Benny Warr, which is currently the subject of another lawsuit in this Court, Warr v. Liberatore , No. 13-CV-6508.
While the matter is not free from doubt, the Court will deny defendants’ motion to
dismiss this claim. The mere fact that lawsuits were filed in connection with these incidents is
not in itself probative of the existence of a municipal custom or policy.
See Torres v. Vasta
, No.
18-CV-8706,
But as with the excessive force claim, that does not mean that the underlying incidents themselves may not be considered in determining whether plaintiffs have adequately stated a claim. Again, this is not a motion for summary judgment, and accepting the truth of plaintiffs’ allegations, I conclude that they have presented a facially viable Monell claim in their fourteenth cause of action.
It bears repeating that this decision is based on the relatively lenient standard applicable
to Rule 12(b)(6) motions. It remains to be seen whether, after discovery, summary judgment
may be appropriate.
See Vann
,
2. Denial of the Right to a Fair Trial
In their fifteenth claim for relief, plaintiffs allege that by their actions, defendants Baker, Kelly and Hernandez denied plaintiffs their right to a fair trial. Plaintiffs allege that they did so by manufacturing false evidence and providing that fabricated evidence to prosecutors.
Defendants’ initial memorandum of law does not explicitly address this claim, and in their response, plaintiffs assert that “[d]efendants have not moved to dismiss” this claim. (Dkt. #12-1 at 17.) In their reply, defendants state that they have done so implicitly, because they have addressed the paucity of the allegations underlying this claim.
To state a claim for denial of the constitutional right to a fair trial based on an officer’s
falsifying information, a plaintiff must allege that the officer created false information, the
officer forwarded the false information to prosecutors, the false information was likely to
influence a jury’s decision, and that the plaintiff suffered a deprivation of life, liberty, or
property as a result.
See Caravalho v. City of New York
,
The information in question must be “both false and likely to influence a jury’s
decision.”
Garnett
,
In this case, there was no trial. As explained above, either the charges were dismissed, or one or both plaintiffs pled to an ACD, but there is no suggestion by either side that any charges against either plaintiff proceeded to trial.
The case law indicates that a trial is not a prerequisite for a fair-trial claim.
Case v. City
of New York
, __ F.Supp.3d __,
As with plaintiffs’ other claims, it remains to be seen whether plaintiffs will be able to prevail on this cause of action. But the complaint does allege that the officers essentially lied about the events immediately preceding plaintiffs’ arrests, and that Colon was charged with a crime as a result. Accepting the truth of those allegations, the Court denies defendants’ motion to dismiss this claim.
*34 3. Supervisory Liability
In their seventeenth cause of action, plaintiffs assert a claim under § 1983 against the City and Sergeant Wheeler, based on supervisory liability. Complaint ¶ 338.
With respect to Wheeler, this claim requires, at this stage, plausible allegations of her personal involvement in the underlying constitutional violations.
To state a claim under § 1983 against a supervisory official, “a plaintiff must allege that
individual’s personal involvement in the alleged constitutional violation; it is not enough to
assert that the defendant is a link in the chain of command.”
Dublino v. Biegaj
, No.
19-CV-6269,
A supervisory official can be found to have been personally involved in an alleged
constitutional violation in a number of ways, including failing to remedy the wrong after being
informed of the violation, and approving or ratifying the action that created the violation. A
supervisory official may also be held liable if she created a policy or custom under which
unconstitutional practices occurred, or was grossly negligent in supervising subordinates who
committed the wrongful acts.
See Bloodywone v. Bellnier
,
In the case at bar, plaintiffs allege that Wheeler showed up shortly after plaintiffs had been taken into custody, spoke to the officers and to plaintiffs, and then “approved the arrests” of plaintiffs. Complaint ¶ 71. In my view, that is sufficient to state a claim against Wheeler. Drawing all reasonable inferences in plaintiffs’ favor, plaintiffs have plausibly alleged that Wheeler understood the circumstances leading up to plaintiffs’ arrests, and ratified those arrests. As with many of plaintiffs’ claims, that may not hold up to scrutiny following discovery, but at this point it is sufficient to state a claim against Wheeler.
To the extent that this claim is asserted against the City, it is duplicative of plaintiffs’ Monell claim. It is based on an alleged failure to train, supervise, and discipline RPD officers. Though there may be a distinction between the City’s alleged past failures in that regard, leading up to this incident, and the City’s alleged failure to remedy this violation or to discipline the officers involved, all of plaintiffs’ claims against the City are subsumed in their Monell claims. Plaintiffs’ supervisory-liability claim against the City is therefore dismissed.
IX. First Claim for Relief
Though it might seem odd to save discussion of plaintiffs’ first claim for relief until now, the Court does so because the first claim is little more than a summary of the federal claims that follow. The first claim simply alleges that plaintiffs’ federally protected rights were violated, as set forth in the later-stated claims. As such, it is both multiplicitous and duplicitous. It is not so much a standalone claim as a summary of what is to follow. The first claim is therefore dismissed.
CONCLUSION
Defendants’ motion to dismiss the complaint (Dkt. #4) is granted in part and denied in part.
Defendants’ motion is granted as to plaintiffs’ first, twelfth, and sixteenth claims, and those claims are dismissed.
Defendants’ motion is granted in part as to plaintiffs’ seventeenth cause of action. That claim is dismissed as to the City of Rochester.
In all other respects, defendants’ motion is denied.
IT IS SO ORDERED.
_______________________________________ DAVID G. LARIMER United States District Judge Dated: Rochester, New York
December 6, 2019.
Notes
[1] In different places, the complaint gives the date as December 16 and as December 17. See , e.g. , Complaint ¶¶ 2, 31. It appears from some of the papers that the correct date is December 16, but for the purposes of this Decision and Order, the exact date is inconsequential.
[2] Through an apparent oversight, the seventeenth claim is denominated in the complaint as the “Eighteenth Claim for Relief.” (Dkt. #1 at 65.)
[3] In their memorandum of law, defendants assert that plaintiffs’ claims for false arrest, false imprisonment and malicious prosecution must be dismissed because “[p]laintiffs have not alleged that they received a favorable termination of their criminal charges.” Plaintiffs have not asserted a claim of malicious prosecution, nor have they alleged that any criminal charges were brought against Colon. It is not apparent why defendants refer to either of those.
[4] Plaintiffs’ various claims against the City are addressed later in this Decision and Order.
[5] This is a somewhat simplified recitation of the events alleged in the complaint, which alleges at some points that Kelly “and/or” Baker, Hernandez and Elliott did certain things. Assuming the truth of plaintiffs’ allegations, this appears to have been a relatively brief, chaotic and fluid event.
[6] Given the Court’s ruling in this regard, it is unnecessary for me to decide at this point whether Baker’s
alleged threats to “tase” Barrett could alone give rise to an excessive force claim, or whether defendants are entitled
to qualified immunity in that regard.
See Hall v. McGhee
,
[7] There appears to be some question whether a guilty plea forecloses a fair-trial claim based on fabrication
of evidence, particularly in light of the Supreme Court’s recent decision in
McDonough v. Smith
, __ U.S. __, 139
S.Ct. 2149 (2019) (holding plaintiff “could not bring his fabricated evidence claim under § 1983 prior to the
favorable termination of his prosecution”). But as explained above, it appears that the charges against plaintiffs were
either dismissed outright, or resolved through an ACD. As another district court has recently held, I find that such
an outcome does not bar plaintiffs’ claim.
See Ross v. City of New York
, No. 17-CV-3505,