KENNETH M. KARAS, District Judge.
Plaintiff Bienvenido Pilao Ong brings this Action against multiple defendants, alleging various claims under federal and state law arising out of six incidents that took place in 2010, 2011, and 2013. Before the Court are five motions to dismiss filed by four groups of Defendants. For the following reasons, the Court grants those Motions in part and denies them in part.
The following facts are taken from Plaintiff's Third Amended Complaint ("TAC") and Fourth Amended Complaint ("FAC"), the latter of which Plaintiff appears to have intended to supplement the TAC. (See Third Amend. Compl. ("TAC") (Dkt. No. 162); Fourth Am. Compl. ("FAC") (Dkt. No. 172).) Plaintiff is an Asian-American naturalized U.S. citizen over the age of 65 who, at all relevant times, was a resident of Middletown, NY. (See FAC 1, 3.)
Plaintiff's TAC and FAC divide Plaintiff's allegations and exhibits into sections corresponding to separate incidents—five principle incidents and one additional incident that Plaintiff references for the first time in his TAC—which collectively constitute the events giving rise to Plaintiff's claims. In his TAC and FAC, Plaintiff adopts and restates the Court's summary of the facts of his case in its 2014 Opinion and Order, (Dkt. No. 144), characterizes those summaries as accurate, (see TAC 10-27 (quoting the Court's summary of each incident verbatim); id. at 28-42 (reproducing the remainder of the Court's 2014 Opinion and Order); id. at 65, 72, 94, 107, 140 (describing Court's summary of each incident as "accurate"); FAC 14, 16, 18, 21, 25 (stating that the Court's summary of each incident was "ACCURATE"); id. 28-42 (reproducing the remainder of the Court's 2014 Opinion and Order)), and adds limited additional facts, clarifications, and explanations, (see, e.g., TAC 65, 72, 94, 107, 140 (indicating that Plaintiff "explain[ed] more detail" about the incidents in question)). The Court accordingly reproduces its summary of the facts from its 2014 Opinion and Order below, adding Plaintiff's additional allegations and clarifications as relevant.
On March 30, 2010, Plaintiff got into an argument with his daughter, who was a minor. (Second Am. Compl ("SAC") ¶¶ 63, 109 (Dkt. No. 23).) The police were called, and Farmingham and Dewey arrived at Plaintiff's home. (Id. ¶ 109; TAC 11, 45.) Plaintiff attempted to explain the situation, but "Farmingham did not listen to [his] explanation," and instead "just hand cuff[ed]" Plaintiff and "dragg[ed] [him] down stair[s] going . . . towards [a] driveway," (SAC ¶ 109), at which time the temperature outside was "27F" (TAC 45). Farmingham then "unlawfully arrested" Plaintiff, using "substantial force . . . without provocation" while doing so. (SAC ¶ 109)
Farmingham "never created or made [an] arrest/incident[] report," (id. ¶ 51.1), though Dewey did so, (TAC 11), and Plaintiff was charged with one count of second-degree menacing, N.Y. Penal Law § 120.14, and one count of endangering the welfare of a child, N.Y. Penal Law § 260.10, both Class A misdemeanors under New York law, (see id. ¶ 56; see also id. Ex. 1.2 (Securing Order, dated Mar. 30, 2010)).
While Plaintiff was in jail, authorities took two actions related to Plaintiff's charges.
On August 20, 2010, Plaintiff lived with his mother in an apartment in Middletown. (Id. ¶ 111.) That afternoon, Guzman, a 911 operator, received a call from Plaintiff's neighbor, who reported that "Plaintiff's mother was yelling that she was being sexually assaulted and/or otherwise physically abused by Plaintiff." (Id.) Guzman then dispatched Defendants Farmingham and Kleveno to Plaintiff's apartment. (Id.) After they arrived at the apartment and knocked on the door, Plaintiff answered and asked them why they were there. (Id.; see also id. ¶ 75.) Initially, Farmingham asked Plaintiff if Plaintiff knew him; Plaintiff responded that he remembered Farmingham as the officer who arrested him on March 30, 2010. (Id. ¶¶ 75, 111.) Farmingham then told Plaintiff that he was there to arrest Plaintiff again, and when Plaintiff asked him why, Farmingham responded that the police had received a call from Plaintiff's neighbor reporting that Plaintiff's mother was "`yelling for help'" and that "it sounded as though someone [was] being raped." (Id. ¶¶ 64, 111; see also id. ¶ 75 (alleging that Farmingham told Plaintiff that he was "going to arrest [him] again because somebody heard . . . [his] mom yelling [that] she was getting or being rape[d] and [that] [someone] [was] biting [his] mother").) When Plaintiff asked about the neighbor's identity, the officers refused to tell him. (Id. ¶¶ 75, 111.)
Farmingham and Kleveno "immediately" entered the apartment and "closed the door," at which point Farmingham "push[ed] [Plaintiff] near [a] door," told him to "put [his] hand[s] up," and then told him to "start strip[ping] from head to foot." (Id. ¶ 111.) The officers, aware that Plaintiff previously possessed a handgun and a pistol license, were specifically looking for a "weapon or gun." (Id.) Farmingham then "put hand cuffs on [Plaintiff] [and] . . . start[ed] biting Plaintiff"; Kleveno saw this occur, but did not try to intervene. (Id.; see also id. ¶¶ 64, 71.) Plaintiff asserts that in the process, his stomach was bruised when he was pushed up against a door knob. (See TAC 69.)
At some point while in Plaintiff's apartment, Farmingham stated that he detected a "`very strong odor of something rotting.'" (SAC ¶ 65.) He then "went to [Plaintiff's] refrigerator," "open[ed]" it, commented that it "`smell[ed] [of] rotten food,'" and asked Plaintiff whether he was "`feeding [his] mother'" rotten food. (Id. ¶ 67.) Plaintiff responded that the officers should "not [be] searching and opening [his] refrigerator" because they were there for the "`purpose'" of responding to the "`anonymous call,'" and that they were "`violating [his] privacy and at the same time harassing'" and "`intimidating'" him. (Id.) In a similar incident, while Plaintiff was in handcuffs, he asked Farmingham to "close[] [his] laptop" before the officers brought him to the police station, but Farmingham refused. (Id. ¶ 73.) Plaintiff alleges that he was later told by a friend who went to Plaintiff's apartment after Plaintiff was taken to jail that Farmingham searched Plaintiff's laptop and made a comment to Plaintiff's friend about Plaintiff's finances based on information he obtained in the search. (Id. ¶¶ 73, 111.)
While the officers were at the scene, an ambulance arrived, as well as Crain, who appeared on behalf of APS. (See id. ¶ 77.1; see also id. Ex. 2.0 (Incident Report, dated Aug. 20, 2010, indicating that Crain and a non-party nurse were at the scene); id. Ex. 2.1 (Arrest Report, dated Aug. 20, 2010, indicating same).) All Parties present entered Plaintiff's mother's bedroom and, after examining her at the scene, decided to send her to Orange Regional Medical Center for a full evaluation. (See id. Ex. 2.0.) Although the examining doctor found "[n]o information regarding sexual or psychiatric abuse" and that there were "no fracture[s]" or "signs of infection," he did determine that Plaintiff's mother suffered from "[d]ementia," "severe dehydration," and "[p]hysical abuse" in the form of "ecchymosis on the skin of upper and lower extremities and blisters." (Id. ¶ 77.1.; id. Ex. 2.14 (History and Physical, dated Aug. 20, 2010).)
The police filed an Incident Report that day, which included an officer's account of the arrest:
(SAC Ex. 2.0.) The police also provided Plaintiff with an official notice, required by N.Y. Crim. Proc. § 710.30, of the county's intent later to offer Plaintiff's statement, "I tie [sic] her legs down," into evidence. (Id. Ex. 2.0-2 (710.30 Notice, dated Aug. 20, 2010).)
Plaintiff was charged that day with second-degree endangering the welfare of a vulnerable elderly person (a Class E felony), N.Y. Penal Law § 260.32, third-degree assault (a Class A misdemeanor), N.Y. Penal Law § 120.00, and second-degree unlawful imprisonment (a Class A misdemeanor), N.Y. Penal Law § 135.05. (Id. ¶ 65; see also id. Ex. 2.1 (Arrest Report, dated Aug. 20, 2010).) In a misdemeanor information and felony complaint filed the same day, Farmingham offered an account of the incident that appears to be consistent with the account he gave in the Incident Report:
(Id. Ex. 2.2 (Misdemeanor Information, filed Aug. 20, 2010).)
(Id. Ex. 2.3 (Felony Complaint, filed Aug. 20, 2010).)
Later that day, Plaintiff alleges that he visited the emergency room because of an asthma attack. (See TAC 70; FAC 33.) Farmingham accompanied him to the ER, and Plaintiff alleges that when he asked Farmingham to use the bathroom, Farmingham handcuffed Plaintiff to his bed and refused to allow a nurse to provide Plaintiff a plastic bag to relieve himself, causing Plaintiff to urinate on himself. (See TAC 70; FAC 33-34.) After his release from jail, Farmingham allegedly explained to a "Sheriff's Officer" that Plaintiff urinated in his pants because he "doesn't like . . . to go to [the] bathroom in ER Rooms." (TAC 70; FAC 34.) Plaintiff also alleges that Farmingham incorrectly told Plaintiff that Plaintiff's mother was not in the same hospital. (TAC 70; FAC 34.)
Following his visit to the ER, Plaintiff was kept in jail overnight, but the next morning he was released on bail with the assistance of his friend, Brent Borgmann ("Borgmann"). (SAC ¶ 64.) That same day, Plaintiff saw a doctor who completed a medical examination, which included taking numerous x-rays, and concluded that Plaintiff had bruises on his stomach and left arm. (See id. ¶ 71; id. Ex. H (prescription slip, noting that Plaintiff complained of being "bitten by police" and had "bruise[s]" on his chest and abdomen); id. Exs. I, J, K (x-ray images); id. Exs. L, M, N (photos of Plaintiff appearing to indicate bruises).)
On June 10, 2011, Plaintiff's mother was a resident at MPRHCC, where she lived on the third floor, fifth unit, in Room #511. (SAC ¶¶ 102, 112.) While visiting his mother in her room, Plaintiff observed that his mother had been "neglected," in that she was not wearing any pants or socks, but was "covered [only] by [three] bed sheet[s]" and was therefore "chilling because [the air conditioner] was so high." (Id. ¶ 90; see also id. ¶ 102.) He also observed that her pants, which had been "`thrown in the garbage,'" were "full of feces and soak[ed] with urine." (Id. ¶¶ 90, 102.) Plaintiff was concerned, not only because of his mother's present situation, but also because he knew that multiple times his mother had repeatedly pushed a "`red button'" in her room to summon help, "but no one came[] in." (Id. ¶ 90.) Plaintiff asked two nurses, Tiffany and Yvette, to watch his mother while he asked a third nurse, Du Bois, who was alone at a nearby nursing station, to bring his mother some socks. (Id. ¶¶ 90, 102.) Plaintiff alleges that Du Bois "failed to listen," despite Plaintiff's mother's repeated pushing of the red button, when Plaintiff's mother "beg[ed] . . . Du Bois to bring[] her to her bedroom" to rest and "to be clean," and that, as a result, Plaintiff's mother "fell . . . [when] trying to get out of [her] wheelchair and hit her head," causing a laceration. (FAC 24-25; TAC 18.)
At some point, Du Bois "reported Plaintiff to [the] Director of Nursing." (SAC ¶ 90.) Then, Brewster, a nursing manager, and Reyes, a physical therapist, "allegedly called the [Wallkill] police to inform the[m] that she [sic] had heard Plaintiff yelling [at his] mother and [making] verbal threat[s] regarding the use of [a] firearm." (Id. ¶ 112.) Two police officers responded to the scene: Gulick, from Wallkill, and Mannix, a state trooper. (See id. ¶¶ 88, 102-03.) They did not find a firearm at the scene, (id. ¶ 112), but Gulick did arrest Plaintiff and charge him with third-degree attempted assault (a Class B misdemeanor), N.Y. Penal Law §§ 110.00, 120.00, and first-degree endangering the welfare of an incompetent or physically disabled person (a Class A misdemeanor), N.Y. Penal Law § 260.25, (see id. ¶¶ 88, 102; see also id. Ex. 3.18 (Arrest Report, dated June 10, 2011).) Plaintiff alleges that, throughout the course of the incident, only seven people were present: Gulick, Mannix, Tiffany, Yvette, Plaintiff, his mother, and Masterson. (Id. ¶ 102.) Conversely, he alleges that a number of Defendants— specifically, Conklin, Small, Brewster, Green, Forman, Reyes, and Maniscalco—were not present. (Id. ¶¶ 86, 87, 89, 90, 102.)
A temporary Order of Protection issued that same day, ordering Plaintiff to surrender any firearms he owned or possessed, and prohibiting Plaintiff from certain types of contact with his mother. (Id. Ex. 3.15 (Order of Protection, dated June 10, 2011).) Another temporary Order of Protection was then entered on July 12, 2011, restricting Plaintiff generally from any form of communication or contact with his mother, but allowing Plaintiff to visit his mother "only. . . under the supervision of [Plaintiff's friend] . . . Borgmann." (Id. Ex. 3.21 (Order of Protection, dated July 12, 2011).) A final temporary Order of Protection was issued on August 2, 2011, retaining the supervised-visit condition of the previous order while also ordering Plaintiff to refrain from committing "any criminal offense or interference with" his mother. (Id. Ex. 3.23 (Order of Protection, dated Aug. 2, 2011).) The Order, which expired on August 2, 2012, also entered an "adjournment in contemplation of dismissal" of Plaintiff's case, meaning that if Plaintiff complied with the Order for one year, he could expect the charges to be dismissed. (Id.; see also id. Ex. 3.26 (Letter from Plaintiff's attorney, Craig Stephen Brown, Esq., to Plaintiff, dated Aug. 5, 2011, informing Plaintiff that he "[was] given a one . . . year Adjournment in Contemplation of Dismissal [("ACD")] with a limited Order of Protection," and that "[i]f [he] [did] not get arrested within this one . . . year time period, the charge [would] be dismissed").) Plaintiff alleges that after receiving the ACD, he and Borgmann went to MPRHCC to visit Plaintiff's mother, but that he was "drag[ged] . . . out [the] entrance door" by an MPRHCC guard "and immediately follow[ed] by . . . 3 or 4" nurses, including Conklin, who after several hours ordered certain unnamed police officers to "strip" Plaintiff to check if he had any weapons on him. (FAC 20.)
Documents attached to the Second Amended Complaint—including a Domestic Incident Report and an Incident Report—contain Gulick's account of the incident that led to Plaintiff's arrest that day:
(SAC Ex. 3.17 (Domestic Incident Report, dated June 11, 2011).)
(Id. Exs. 3.19, 3.19-1 (Incident Report and Additional Narrative, dated June 10, 2011).) The SAC also contains, as an attached exhibit, a deposition from Reyes, taken by Gulick the day of the incident, which was submitted in support of the Misdemeanor Information filed against Plaintiff and provides Reyes's account of the incident:
(Id. Ex. 3.16.1 (Supporting Deposition of Lisa M. Reyes, dated June 10, 2011).)
Plaintiff was arrested again on September 13, 2011. (Id. ¶ 113.) On August 9, 2011, three Defendants employed by MPRHCC—Masterson, Brewster, and Small—gave statements to Solan regarding allegations of harassment against Plaintiff. First, Masterson stated that, "[i]n the past week, [her] staff ha[d] been receiving numerous phone calls from [Plaintiff]. [Plaintiff] call[ed] at all hours of the day[,] t[y]ing up [her] staff just to vent his frustrations with [her] and [Brewster] for having him arrested." (Id. Ex. 4.5 (Masterson Statement, dated Aug. 9, 2011).) She also alleged that these phone calls "serve[d] no legitimate purpose in that all [Plaintiff] want[ed] to do [was] vent." (Id.) She further alleged that when Plaintiff was "allowed at the facility, he would harass other visitors[,] causing a hazardous environment." (Id.) Finally, she alleged that Plaintiff's "action[s] ha[d] left [her] and other staff in fear of their safety." (Id.)
Second, Brewster stated that, "on [June 10, 2010], [she] was one of the nursing staff involved in an incident between [Plaintiff] and his mother." (Id. Ex. 4.6 (Brewster Statement, dated Aug. 9, 2011).) She acknowledged that, "[s]ince the incident, [she] ha[d] not spoken with [Plaintiff]." (Id.) However, she alleged that "numerous threats were made at [her] when other nursing staff ha[d] spoken with him," and she further alleged that, "[a]lthough the threats were not made directly to [her], [she] still [was] in fear for [her] safety and well[-]being." (Id.)
Third, Small stated that she had received a call from Plaintiff on August 8, 2011 (the previous day) "while working at [MPRHCC]." (Id. Ex. 4.7 (Small Statement, dated Aug. 9, 2011).) According to Small, Plaintiff "seemed very irate and rambeling [sic]" on the call. (Id.) In this context, he told Small, "`I know it was [Brewster] that called 911 the day I was taken into police custody. I have rights to my mother. [Brewster] and [Masterson] will pay the ultimate consequence and I can see it in my mind what I will do to you.'" (Id.) Small "reported the incident to [Maniscalco] . . . that day." (Id.)
Approximately two weeks later, on August 23, Maniscalco provided Farmingham a handwritten log of phone calls MPRHCC had received from Plaintiff since July 12, 2011, reflecting that Plaintiff had made 11 such calls. (Id. Ex. 4.3 (note from Maniscalco to Farmingham, dated Aug. 23, 2011).) Maniscalco also gave a statement:
(Id. Ex. 4.4 (Supporting Deposition of Vincent Maniscalco, dated Aug. 23, 2011).)
On September 13, 2011, Wallkill police arrested Plaintiff and charged him with second-degree aggravated harassment, N.Y. Penal Law § 240.30 (a Class A misdemeanor). (Id. Ex. 4.0 (Arrest Report, dated Sept. 13, 2011).) According to the Arrest Report, Solan was the arresting officer. (Id.) On the day of his arrest, Plaintiff alleges that he surrendered at 2pm with the assistance of his lawyer, Craig Brown. (TAC 106.) Plaintiff claims that Solan told his lawyer that his booking, fingerprints, and mugshot would only take 30 minutes, but that Plaintiff was instead kept until 5pm before he was released to Borgmann. (Id.) Ultimately, the charge was dismissed, for reasons that are not clear based on the SAC and accompanying exhibits. (See SAC Ex. 4.9 (Certificate of Disposition, dated Oct. 18, 2011).)
The fifth incident discussed in Plaintiff's SAC involves a petition for guardianship filed on August 24, 2011, and litigated at a November 10, 2011 Surrogate's Court hearing. On August 24, 2011, Sholes & Miller, on behalf of MPRHCC, filed a petition in Orange County Surrogate's Court to determine whether Plaintiff's mother should be appointed a legal guardian. (Id. ¶¶ 24, 108.) The petition claimed that Plaintiff's sister, Victoria Chang ("Chang"), sought to become her mother's legal guardian:
(Id. Ex. 18 (apparent excerpt from guardianship petition).) Along with the petition, Sholes & Miller filed a number of supporting documents, including (1) a "Family Health Care Decision Information" form signed by Green and dated June 29, 2011, noting that Plaintiff's mother had an existing Health Care Proxy, that she did not have a guardian, but that she did have two daughters (Victoria Chang and Eloisa Kern), (see id. Ex. 12); (2) a "Consent by Surrogate to DNR Order" form signed by Plaintiff (as his mother's surrogate), witnessed by Green, and dated March 31, 2011, indicating Plaintiff's consent for a physician to issue a do-not-resuscitate order ("DNR"), (see id. Ex. 14); (3) supporting documentation regarding the DNR consent form, (see id. Exs. 15-17); and (4) a New Jersey police report memorializing a domestic dispute in November 2007 involving Plaintiff's mother (as the offender), Chang (as the complainant), and a third-party witness, (see id. Ex. 19).
A judge issued an Order To Show Cause the same day the petition was filed. (See id. Exs. 5.0, 5.0-1 (Order To Show Cause, dated Aug. 24, 2011).) Moreover, at some point, Plaintiff's mother was appointed a temporary guardian from the OCDSS, a "court evaluator," and an attorney from Mental Hygiene Legal Services, Inc. to represent her in connection with the guardianship petition. (See id. Ex. Index No. 2011-08338 ("Guardianship Order") (Order & J. Appointing Guardian of the Person and Property, dated Dec. 12, 2011).) A hearing was originally scheduled to take place in October, but it was rescheduled to November 10. (See id. Ex. 13 (Letter from Sarah E. Sholes, Esq., to Plaintiff and others (Oct. 14, 2011).)
At the hearing, Sholes appeared on behalf of petitioner; the court evaluator appeared on behalf of the court; Plaintiff's mother's attorney appeared on behalf of Plaintiff's mother; and David Medford of the Orange County Attorney's Office appeared on behalf of OCDSS. (See id. Ex. 5.1 ("Hr'g Tr.") (Hr'g Tr., dated Nov. 10, 2011).) In support of the petition, Sholes called a number of witnesses, including the court evaluator, and Masterson, Forman, Smalls, Farmingham, and Crain. (See id. (Index page).) Plaintiff's mother's attorney also called a number of witnesses, including Plaintiff's mother, Chang, and Plaintiff. (See id.) The court was also presented with a number of exhibits, including the court evaluator's report, Plaintiff's mother's medical records, and exhibits from the Wallkill Police Department. (See Guardianship Order 2.)
At the hearing, Plaintiff alleges that Crain, with Murphy's coaching, offered false testimony at the guardianship hearing. (TAC 37, 40 (brackets omitted); FAC 10, 35, 37.) Plaintiff also alleges that Sholes submitted "falsified/altered documents" with the assistance of Murphy and Jolly. (TAC 7.) Maniscalco, Masterson, Small, Murphy, Crain and Sholes also allegedly did not intervene when Farmingham prevented Plaintiff from giving his mother a "hug and kiss" at the hearing, or even going near her, warning Plaintiff that he would be "handcuff[ed] [and] arrested again" if he did so. (FAC 8, 33.)
Plaintiff also identifies a number of excerpts from the Hearing Transcript of relevance. First, the court evaluator (who is not a party to this Action) testified regarding Plaintiff's status as Power of Attorney. After being shown a copy of a document dated November 20, 2007, wherein Plaintiff's mother appears to have granted Plaintiff power of attorney, Sholes asked the court evaluator whether he had seen that document:
(Hr'g Tr. 9.)
Second, Defendant Masterson testified on direct examination regarding Plaintiff's treatment of his mother at MPRHCC:
(Id. 14-18.)
(Id. 19-21.)
Third, Forman testified on direct examination regarding her position at MPRHCC, her qualifications, and her presence at the scene of the July 20, 2011 incident:
(Id. 22, 24-25.)
Fourth, Small testified on direct examination about her prior conversations with Plaintiff:
(Id. at 33-35.)
Fifth, Farmingham testified about his interactions with Plaintiff:
(Id. at 39-48.)
(Id. at 51-53.) Crain also examined and testified to a number of photographs taken at the hospital on August 20, 2010, purportedly depicting bruises on various parts of Plaintiff's mother's body. (See id. at 53-56.)
On December 12, 2011, the Surrogate's Court issued an order finding that Plaintiff's mother was sufficiently "incapacitated" that she would "likely suffer harm because of her functional limitations" and that "the appointment of a Guardian [was] necessary to prevent such harm." (Guardianship Order 2-3.) Accordingly, the court appointed Chang guardian. (Id. at 3.) The order also decreed that "all health care proxies and power of attorney documents previously executed by [Plaintiff's mother] [were] [t]hereby revoked and vacated and any appointments made thereunder [were] [t]hereby terminated." (Id. at 7.) And it issued a permanent Order of Protection against Plaintiff, ordering that he "remain at least 500 feet from [his mother] [at] all times" and "refrain from any and all telephone and other contact" with her. (Id. at 7-8; see also SAC Ex. Index No. 2011-008338 (Order of Protection, dated Dec. 12, 2011).) Plaintiff's mother passed away approximately one month later, on January 10, 2012. (SAC ¶ 81.)
In the TAC, Plaintiff alleges, for the first time, that an additional incident occurred on September 3, 2013. (TAC 27.) Plaintiff alleges that on that day he was charged with a registration violation and an inspection certificate violation, both of which were dismissed. (Id. 28; see also id. at 149-50 (traffic tickets with not guilty plea).) Because Plaintiff does not allege any further detail about the incident, and the tickets indicate that the violations were issued by non-party Patrick Marcial, (see id. at 149-50), the Court does not consider these allegations in the context of Defendants' Motions.
Plaintiff filed the instant Action on February 6, 2012. At that time, the Complaint was 12 pages long (not including approximately 56 pages of exhibits), contained allegations involving only the August 2010, June 2011, and September 2011 incidents, and named only the Town of Wallkill Police Department and MPRHCC as defendants—although it did include references to, inter alia, Farmingham, Reyes, Tiffany, Yvette, Du Bois, Maniscalco, and Gulick. (See Dkt. No. 2.) On March 27, 2012, the Court issued an Order noting that the Complaint contained numerous allegations against Farmingham, and therefore "directed [the Clerk of Court] to amend the caption of th[e] action to add [Farmingham] as a defendant." (Dkt. No. 7 at 3-4.) The Court also directed the Clerk "to substitute as a defendant the Town of Wallkill for the Town of Wallkill Police Department." (Id. at 4.)
The Court held an initial conference on November 30, 2012, at which Plaintiff and counsel for Wallkill, Farmingham, and MPRHCC appeared. (See Dkt. (minute entry for Nov. 30, 2012).) At that conference, the Court granted Plaintiff leave to file an amended complaint. (See id.) After successfully seeking numerous extensions of the original January 15, 2013 deadline, Plaintiff ultimately filed his Amended Complaint on May 7, 2013. (See Dkt. No. 23.)
On July 11, 2013, the Court issued, sua sponte, an Order directing Plaintiff to submit a second amended complaint. After reminding Plaintiff that, in granting him leave to file his Amended Complaint, the Court "specifically directed [him] to be clearer as to the entities and/or persons he intend[ed] to sue, the actionable conduct those entities or persons allegedly engaged in, and the federal statutory or constitutional basis for his claims," the Court noted that the Amended Complaint was "extremely difficult to follow," and that "it [was] in many respects less clear than [the] original Complaint." (Order ("July 2013 Order") 1-2 (Dkt. No. 25).) The Court was able to "discern that Plaintiff intends to pursue malicious prosecution, excessive force, failure to intervene, and false imprisonment claims against the law enforcement Defendants," and it could "construe some of the allegations in the Amended Complaint to support a claim against the law enforcement Defendants for violating Plaintiff's right to familial association with his mother." (Id. at 6.) However, the Court noted that "by presenting a great amount of disjointed and nonsequential information to the Court about the various events giving rise to Plaintiff's arrests, Plaintiff ha[d] rendered it impossible to comprehend what actually happened to him." (Id.) It therefore held that "[Plaintiff's] claims against the law enforcement Defendants. . . [did] not satisfy the pleading requirements of Rule 8." (Id.) It also held that, with regard to the other Defendants, "Plaintiff [did] not clearly or specifically allege how they were personally involved in any alleged wrongdoing or any basis for their liability under federal law," and it therefore held that "[t]he balance of the Amended Complaint . . . also [did] not satisfy the pleading requirements established by Rule 8." (Id.)
The Court then granted Plaintiff "one more opportunity to file an Amended Complaint...in order [to] correct the above deficiencies and to allege clearly and concisely facts to support his claims." (Id. at 7.) The Court specifically instructed Plaintiff to "provide a short plain statement of the relevant facts, in separate numbered paragraphs in chronological order, supporting each claim against each Defendant." (Id.) It also instructed Plaintiff to allege, in the second amended complaint, "who violated Plaintiff's federally protected rights; what facts show that his federally protected rights were violated; when such violation(s) occurred; where such violation(s) occurred; and why Plaintiff is entitled to relief." (Id. at 8.) Finally, the Court instructed Plaintiff to "allege, in separate numbered paragraphs, for each named Defendant, what that Defendant did to be personally involved in the violation of Plaintiff's constitutional rights," and it warned Plaintiff that "[i]f [he] [did] not comply with this instruction, his pleading may be dismissed as against any Defendant whose personal involvement [could not] be discerned from reading the pleading." (Id.) It also twice told Plaintiff that "this may be his final opportunity to amend." (Id. at 7; see also id. at 8 ("[T]he Court may not grant Plaintiff another chance to amend.").)
Plaintiff submitted his SAC on September 24, 2013. (See Dkt. No. 32.)
The Court has held two pre-motion conferences in this case. The first was held on December 17, 2013, at the request of counsel for Wallkill and Farmingham, each of whom was named in the original Complaint. (See Dkt. (minute entry for Dec. 17, 2013).)
On September 29, 2014, the Court issued an Opinion and Order (the "2014 Opinion and Order"), granting Defendants' Motions in part and denying them in part. The Court (1) dismissed without prejudice all claims against Defendants New York State, Yvette, Tiffany, and Guzman without prejudice for failure to serve; (2) dismissed all claims with prejudice against Defendants Conklin, Labuda, and Lacatena for failure to comply with Federal Rule of Civil Procedure 8; (3) dismissed without prejudice all claims against Kammarada, McLymore, Belgiovene, Moskowitz, and Leo for failure to comply with Federal Rule of Civil Procedure 8; (4) denied Defendants' Rule 8 motions in all other respects, without prejudice to file a Rule 12(b)(6) motion to dismiss; (5) dismissed with prejudice all claims against Mannix for failure to state a claim; and (6) dismissed all claims against Defendants Orange County, Murphy, and Crain without prejudice for failure to state a claim. Ong v. Park Manor (Middletown Park) Rehab. and Healthcare Ctr., 51 F.Supp.3d 319, 356 (S.D.N.Y. 2014). The Court also granted Plaintiff leave to file a third amended complaint with respect to Kammarada, McLymore, Belgiovene, Moskowitz, Leo, Murphy, Crain, and Orange County, and made clear that the third amended complaint should "contain[] . . . allegations only against these Defendants." (Id. at 356.) The Court also granted Plaintiff leave to include allegations against new Defendants Jolly and Yeddu. (Id. at 356 n.29.)
Plaintiff filed his TAC on November 19, 2014, alleging substantially the same claims against substantially the same Defendants as those in the SAC, though for the first time Plaintiff added a claim for intentional infliction of emotional distress. (See, e.g., TAC 6.) The Court accepted Plaintiff's TAC for filing, and dismissed Defendant Sholes & Miller's Motion To Dismiss as moot because it sought to dismiss Plaintiff's SAC. (See Dkt. No. 163.) In the same Order, the Court adopted a briefing schedule for motions to dismiss the TAC. (See id.; see also Dkt. Nos. 165, 168, 177 (requesting a schedule for putative motions to dismiss).)
On January 5, 2015, Plaintiff filed another complaint, presumably because Plaintiff "had more to add[]" to his allegations which included, for the first time, claims for negligence and negligent infliction of emotional distress. (See, e.g., FAC 7, 47.) The Court construed Plaintiff's filing as his FAC and adjusted the briefing schedule for motions to dismiss accordingly. (See Dkt. No. 173). Pursuant to this briefing schedule, the Orange County Defendants filed a Motion To Dismiss and associated documents on February 4, 2015, (Dkt. Nos. 178-182), the Sholes Defendants filed a Motion To Dismiss and associated documents on the same day, (Dkt. Nos. 183-187), the Wallkill Defendants filed a Motion To Dismiss and associated dockets on February 5, 2015, (Dkt. Nos. 188-190), and the MPRHCC Defendants filed a Motion To Dismiss and associated documents on the same day, (Dkt. Nos. 191-195). Plaintiff filed an Affirmation in Opposition on March 10, 2015. (Dkt. No. 198). The Sholes Defendants filed a Reply on March 26, 2015, (Dkt. No. 199), as did the Orange County Defendants, (Dkt. No. 201). Plaintiff subsequently requested oral argument on August 3, 2015, (Dkt. No. 208), which request the Court denied as unnecessary to its consideration of the instant Motions, (Dkt. No. 209).
The Supreme Court has held that although a complaint "does not need detailed factual allegations" to survive a motion to dismiss, "a plaintiff's obligation to provide the `grounds' of his [or her] `entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (second alteration in original) (citations omitted). Instead, the Supreme Court has emphasized that "[f]actual allegations must be enough to raise a right to relief above the speculative level," see id., and that "once a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint," id. at 563. A plaintiff must allege "only enough facts to state a claim to relief that is plausible on its face." Id. at 570. But if a plaintiff has "not nudged [his or her] claims across the line from conceivable to plausible, the[] complaint must be dismissed." Id.; see also Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) ("Determining whether a complaint states a plausible claim for relief will. . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not `show[n]'—`that the pleader is entitled to relief.'" (alteration in original) (citation omitted) (quoting Fed. R. Civ. P. 8(a)(2))).
For the purposes of Defendants' Motions To Dismiss, the Court is required to consider as true the factual allegations contained in the Complaint. See Ruotolo v. City of New York, 514 F.3d 184, 188 (2d Cir. 2008) ("We review de novo a district court's dismissal of a complaint pursuant to Rule 12(b)(6), accepting all factual allegations in the complaint and drawing all reasonable inferences in the plaintiff's favor." (internal quotation marks omitted)); Gonzalez v. Caballero, 572 F.Supp.2d 463, 466 (S.D.N.Y. 2008) ("On a Rule 12(b)(6) motion to dismiss a complain, the court must accept a plaintiff's factual allegations as true and draw all reasonable inferences in his favor."). "In adjudicating a Rule 12(b)(6) motion, a district court must confine its consideration to facts stated on the face of the complaint, in documents appended to the complaint or incorporated in the complaint by reference, and to matters of which judicial notice may be taken." Leonard F. v. Isr. Disc. Bank of N.Y., 199 F.3d 99, 107 (2d Cir. 1999) (internal quotation marks omitted). Because Plaintiff is proceeding pro se, the court construes his "submissions. . . liberally" and interprets them "to raise the strongest arguments that they suggest." Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (internal quotation marks omitted). Furthermore, for the same reason, it is appropriate to consider "materials outside the complaint to the extent that they are consistent with the allegations in the complaint," see Alsaifullah v. Furco, No. 12-CV-2907, 2013 WL 3972514, at *4 n.3 (S.D.N.Y. Aug. 2, 2013) (internal quotation marks omitted), including "documents that a pro se litigant attaches to his opposition papers," Agu v. Rhea, No. 09-CV-4732, 2010 WL 5186839, at *4 n.6 (E.D.N.Y. Dec. 15, 2010) (italics omitted); see also Walker v. Schult, 717 F.3d 119, 122 n.1 (2d Cir. 2013) (noting that a court may consider "factual allegations made by a pro se party in his papers opposing the motion") (italics omitted); Rodriguez v. Rodriguez, No. 10-CV-891, 2013 WL 4779639, at *1 (S.D.N.Y. July 8, 2013) ("Although the Court is typically confined to the allegations contained within the four corners of the complaint, when analyzing the sufficiency of a pro se pleading, a court may consider factual allegations contained in a pro se litigant's opposition papers and other court filings." (citations and internal quotation marks omitted)).
Plaintiff makes several claims in his TAC and FAC. In the TAC, those claims include § 1983 claims for false arrest, false imprisonment, "strip search," "conspiracy," failure to intervene, and malicious prosecution, (TAC 6), state law claims for malicious abuse of process, violation of the New York Civil Rights Act, false arrest and imprisonment, assault, battery, conspiracy, "coercion and intimidation," "intentional torts," and "intentional infliction of emotional distress. (See, e.g., id. at 6.) In the FAC, Plaintiff removed his "intentional torts" and "coercion and intimidation" claims, and added claims for negligence and negligent infliction of emotional distress. (See, e.g., FAC 2-3.) The Court will proceed by liberally construing the most recent explanation of Plaintiff's claims, namely included in the FAC, and therefore dismisses any claims for "coercion and intimidation" or "intentional torts." Given that Plaintiff has clearly laid out the claims he wishes to allege, the Court also, except as otherwise noted below, will not consider claims that Plaintiff merely makes passing reference to in his TAC, FAC, and Opposition because, as discussed in the 2014 Opinion and Order, those claims fail to meet Rule 8's fair notice requirement in that the FAC and TAC do not allege facts that specifically support those claims. (See, e.g., FAC 40, 46 (discussing defamation); Aff'n in Opp'n to Mot. (Pl.'s Opp'n) (Dkt. No. 198) (noting that "Plaintiff[] will be claiming `Defamation of Character' on several Defendants"); Reply Mem. of Law in Supp. of the County Defs.' Mot. To Dismiss 4 ("Orange County Reply") (Dkt. No. 201) (listing several new claims contained Plaintiff's Opposition).) See Park Manor, 51 F. Supp. 3d at 350; see also Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988) ("When a complaint does not comply with the requirement that it be short and plain, the court has the power, on its own initiative or in response to a motion by the defendant, to strike any portions that are redundant or immaterial. . . ."); Ceparano v. Suffolk Cty., No. 10-CV-2030, 2010 WL 5437212, at *3 (E.D.N.Y. Dec. 15, 2010) ("[P]rolix, unintelligible, speculative complaints that are argumentative, disjointed[,] and needlessly ramble have routinely been dismissed in this Circuit." (collecting cases)); cf. Raghavendra v. Trustees of Columbia Univ., Nos 06-CV-6841, et al., 2012 WL 3778714, at *11 n. 20 (S.D.N.Y. July 11, 2012) n.20 (noting that the pro se plaintiff's mere "passing references" to age discrimination claims without supporting factual allegations beyond the plaintiff's approximate age are insufficient), adopted by 2012 WL 3778823 (S.D.N.Y. Aug. 31, 2012); Windley v. Leonardo, No. 89-CV-7839, 1990 WL 106774, at *2 (S.D.N.Y. July 24, 1990) (noting that the pro se plaintiff's "passing references" to the Fourteenth Amendment without reference to any case law were inadequate to give notice of a Fourteenth Amendment claim).
As the Sholes Defendants argue in their Motion, the Court expressly granted Plaintiff only limited leave to amend his SAC. (See Mem. of Law in Supp. of Defs. Sholes & Miller LLP's and Sara Sholes, Esq.'s Motion To Dismiss Pl.'s Fourth Am. Compl. ("Sholes Mem.") 6-9 (Dkt. No. 184).) Specifically, the Court granted leave to amend as to Defendants Kammarada, McLymore, Belgiovene, Moskowitz, Leo, Murphy, Crain, Orange County, Jolly, and Yeddu. Park Manor, 51 F. Supp. 3d at 356 & n.29. Accordingly, as to all other Defendants, the Court has adequate basis to dismiss Plaintiff's new claims, and to disregard any new allegations, on this ground alone. See, e.g., Ebron v. Lantz, No. 04-CV-1375, 2006 WL 3246770, at *1, *4 (D. Conn. Nov. 6, 2006) (dismissing claims against new defendants in an amended complaint because the court "did not grant [the plaintiff] permission to add . . . new defendants, and [the plaintiff] never sought that permission); Pagan v. N.Y. State Div. of Parole, No. 98-CV-5840, 2002 WL 398682 (S.D.N.Y. Mar. 13, 2002) (granting the defendants' motion to dismiss with prejudice as to new state law claims alleged in amended complaint when the court's order granted plaintiff leave to re-plead only his Title VII, § 1981, and NYSHRL claims); Willett v. City Univ. of N.Y., No. 94-CV-3873, 1997 WL 104769 (E.D.N.Y. Feb. 18, 1997) (declining to consider five of eight new claims in amended complaint, on basis they exceeded scope of court's order granting plaintiff leave to amend); Kuntz v. N.Y. State Bd. of Elections, 924 F.Supp. 364, 367 (N.D.N.Y. 1996), aff'd, 113 F.3d. 326 (2d. Cir. 1997) (dismissing three new claims in amended complaint where they "appear[ed] to proceed on entirely new factual allegations and legal bases and clearly exceed the mandated scope of the Court's leave to amend"); see also Palm Beach Strategic Income, LP v. Salzman, 457 F. App'x 40, 43 (2d Cir. 2012) (finding no abuse of discretion in district court's decision to "reject [an] amended complaint as exceeding the parameters of the leave that was given," and noting that "[d]istrict courts in this Circuit have routinely dismissed claims in amended complaints where the court granted leave to amend for a limited purpose and the plaintiff filed an amended complaint exceeding the scope of the permission granted.").
Given Plaintiff's pro se status, and the Court's obligation to liberally construe pro se pleadings, the Court is hesitant to dismiss Plaintiff's FAC and TAC on this ground. Instead, except as noted below, the Court will proceed as if its acceptance of the FAC and TAC for filing constituted nunc pro tunc approval of their content. See Vitale v. Marlborough Gallery, No. 93-CV-6276, 1994 WL 644494, at *1 n.1 (S.D.N.Y. July 5, 1994) (granting "leave to amend [the complaint] nunc pro tunc" after an amended complaint was filed (italics omitted)); First Marine Shipyard, Inc. v. Harbor Ins. Co., No. 86-CV-2005, 1987 WL 27003, at *1 (E.D.N.Y. Nov. 25, 1987) (same); see also Ross v. Patrusky, Mintz & Semel, No. 90-CV-1356, 1997 WL 214957, at *14 (S.D.N.Y. Apr. 29, 1997) (granting leave to amend nunc pro tunc because the amended complaint's "factual allegations are largely similar to those contained in the initial complaint," and the challenging defendant "failed to articulate any way in which it would be prejudiced").
In its 2014 Opinion and Order, the Court dismissed Plaintiff's claims against Conklin, Labuda, Lacatena, and Mannix with prejudice. Park Manor, 51 F. Supp. 3d at 356. Nonetheless, Plaintiff once again filed claims against Conklin, Labuda, Lacatena, and Mannix in his TAC and FAC. (See FAC 8; see also Orange County Mem. 8; MPRHCC Mem. 6.) Because Plaintiff did not seek, and the Court did not grant, leave to amend as to these Defendants, and because Plaintiff has neither moved for nor provided a basis for reconsideration of the Court's 2014 Opinion and Order, the Court dismisses Plaintiff's claims against Conklin, Labuda, Lacatena, and Mannix with prejudice once again. See Collier v. Boymelgreen Developers, No. 06-CV-5425, 2008 WL 835706, at *5 (E.D.N.Y. Mar. 28, 2008) (declining to revisit claims that were previously dismissed with prejudice); Cancall PCS, LLC v. Omnipoint Corp., No. 99-CV-3395, 2001 WL 293981, at *6 (S.D.N.Y. Mar. 26, 2001) (noting fact that the plaintiff's claim "was already dismissed with prejudice" is "by itself[] grounds to dismiss" that claim in an amended complaint).
As of the Court's 2014 Opinion and Order, Plaintiff had failed to serve New York State, Yvette, Tiffany, Guzman, Belgiovene and Moskowitz. See Park Manor, 51 F. Supp. 3d at 340. After filing his FAC, Plaintiff filed an Affirmation of Service, averring that he served his TAC and FAC on all Defendants. (See Dkt. No. 196.) Based on the Affirmation, Plaintiff served attorneys that have already appeared in this Action, and did not directly serve those Defendants who had not yet been served. (See id. at 2 (indicating that Plaintiff served Katherine J. Zellinger and Victor Carmine Piacentile on behalf of the MPRHCC Defendants, James Randazzo and Caitlin Grace Scheir on behalf of the Wallkill Defendants, Michael Francis Albanese on behalf of Defendants New York State and Mannix, Carol C. Pierce on behalf of the Orange County Defendants, and Kenneth McLellan and Robert Roussel on behalf of the Sholes Defendants)) Such service is insufficient, particularly because Plaintiff has not alleged, and the Court is not aware of any circumstances suggesting, that the unserved Defendants authorized any attorneys to accept service on their behalf. See Santos v. State Farm Fire & Cas. Co., 902 F.2d 1092, 1094 (2d Cir. 1990) ("[S]ervice of process on an attorney not authorized to accept service for his client is ineffective."); Zherka v. Ryan, 52 F.Supp.3d 571, 577 (S.D.N.Y. 2014) (same)
The same infirmity applies to Plaintiff's attempts to serve new Defendants Yeddu, Brennan, and Terwillinger, as well. Plaintiff purportedly served attorneys on behalf of these Defendants instead of serving them directly. (See Mem. of Law in Supp. of Defs.' Park Manor (Middletown Park) Rehabilitation Center, Vincent Maniscalco, Darla Conklin, Eileen Masterson, Jennifer Small, Wendy Brewster, Jenna Green, Suzanna Forman, Lisa M. Reyes, Ms. Yvette, Ms. Dawn, Ms. Tiffany, Lynn Terwillinger, Jennifer Brennan, et al. Mot. To Dismiss Pl.'s Second Am. Compl. ("MPRHCC Mem.") 6 (Dkt. No. 195); Dkt. No. 196, at 2.)
The Court is unaware of any other action that Plaintiff has taken in an attempt to serve these Defendants, and Plaintiff has not otherwise requested an extension of time to do so or assistance from the Marshals Service under Federal Rule of Civil Procedure 4(c), as he has done in the past. (See MPRHCC Mem. 6; Mem. of Law in Supp. of Town of Wallkill Defs.' Mot. To Dismiss Pl.'s Fourth Amended Complaint ("Wallkill Mem.") 13 (Dkt. No. 190); MPRHCC Mem. 6.) Accordingly, pursuant to Rules 4(m) and 41(b) of the Federal Rules of Civil Procedure, and as warned by the Court in its December 18, 2013 Order, (Dkt. No. 36), and 2014 Opinion and Order, see Park Manor, 51 F. Supp. 3d at 339-341, 356 (dismissing some Defendants for failure to serve), Plaintiff's claims against Defendants New York State, Yvette, Tiffany, Guzman, Belgiovene, Moskowitz, Yeddu, Brennan, and Terwillinger are dismissed, with prejudice, for failure to serve.
The same infirmity also applies to Plaintiff's attempted service of Sholes and Jolly. The Court noted in its 2014 Opinion and Order that Plaintiff had previously made "no attempt to add Sholes as a Defendant or to serve her," Park Manor, 51 F. Supp. 3d at 339 n.7, and once again only attempted to serve the attorneys for Sholes and Miller on her behalf, (see Dkt. No. 196 at 2). Plaintiff likewise attempted to serve an attorney on behalf of Jolly, rather than Jolly himself, (see Dkt. No. 196), even though that attorney, Carol Pierce, did enter an appearance on behalf of Jolly two days after Plaintiff filed his Affirmation of Service, (Dkt. No. 179).
Neither the Sholes Defendants nor the Orange County Defendants argue in their respective Motions that Sholes and Jolly were not adequately served. (See generally Sholes Mem; Orange County Mem.) Nonetheless, Federal Rule of Civil Procedure 4(m) "authorizes sua sponte dismissal for failure to serve, provided that the plaintiff has received notice of that possibility." Ringer v. People of the State of N.Y., 2010 WL 1169949, at *1 (S.D.N.Y. Feb. 25, 2010) (italics omitted) (citing Thompson v. Maldonado, 309 F.3d 107, 110 (2d Cir. 2002)), adopted by 2010 WL 1169949 (S.D.N.Y. Feb. 25, 2010). As outlined above, Plaintiff has been given more than ample notice that his failure to serve Defendants would result in the dismissal of his claims against those Defendants. (See Dkt. No. 32 (warning Plaintiff that failure to serve would result in dismissal).). See also Park Manor, 51 F. Supp. 3d at 339-341, 356 (dismissing some Defendants for failure to serve); Ringer, 2010 WL 1169949, at *2 (finding that a letter from the court that "expressly notified [the] [p]laintiff that it would recommend dismissing the case if he failed to serve [the] [d]efendants" by a certain date "without...good cause for that failure" constituted sufficient notice). Accordingly, the Court dismisses Plaintiff's claims against Sholes and Jolly, with prejudice, for failure to serve.
The Orange County Defendants argue, in their Motion, that OCDSS is not a suable entity. (Mem. of Law in Supp. of County Defs.' Mot. To Dismiss (`Orange County Mem.") 8 (Dkt. No. 181).) They are technically correct: Under Federal Rule of Civil Procedure 17(b), "an entity can only be sued in federal court if it would be suable under the laws of the state where it was created," New York law in this case. MetroPCS N.Y., LLC v. City of Mount Vernon, 739 F.Supp.2d 409, 419 (S.D.N.Y. 2010). "In New York...agencies of a municipality are not suable entities because they are merely administrative arms of a municipality, [and] do not have a legal identity separate and apart from the municipality." Id. (alteration in original) (internal quotation marks omitted) see also Schweitzer v. Crofton, 935 F.Supp.2d 527, 551 (E.D.N.Y. 2013) (dismissing claim against the Suffolk County Department of Social Services "because it is not a suable entity"), aff'd, 560 F. App'x 6 (2d Cir. 2014). While this would normally be sufficient for the Court to dismiss Plaintiff's claims against OCDSS, on May 27, 2014, counsel for the Orange County Defendants requested that Orange County be substituted for OCDSS, presumably because OCDSS is not a suable entity, as discussed at the May 21, 2014 pre-motion conference. (See Dkt. No. 96.) Accordingly, in light of Plaintiff's pro se status, rather than dismiss Plaintiff's claims against OCDSS on this ground, the Court will construe Plaintiff's claims against OCDSS as claims against the Orange County, per counsel for the Orange County Defendants' previous request.
In their Motions, the MPRHCC Defendants, Orange County Defendants, and Sholes Defendants seek to dismiss portions of Plaintiff's TAC and FAC as untimely. Specifically, (a) the Wallkill Defendants contend that "the new claims asserted in the Fourth Amended Complaint" are time-barred as to the new MPHRCC [D]efendants," namely Terwillinger, Yeddu, and Brennan (the "new MPHRCC Defendants"), because of the three-year statute of limitations governing § 1983 and § 1985 claims, and the one-year statute of limitations governing claims of "false imprisonment, malicious prosecution, libel, [and] slander" under New York law, (MPRHCC Mem. 5); (b) the Orange County Defendants argue that Plaintiff's § 1983 and § 1985 claims stemming from incidents on March 30, 2010, March 31, 2010, and August 20, 2010 are time-barred because "[t]he [Orange] County Defendants were only added to Plaintiff' Second Amended Complaint on September 24, 2013," that Plaintiff's new allegations that Orange County officers denied Plaintiff's "requests for a late dinner" on March 31, 2010 and that Crain was somehow involved in Plaintiff's arrest on August 20, 2010 raise claims that are time-barred, and that Plaintiff's new claim of intentional infliction of emotional distress is barred by the one-year statute of limitations provided by New York Civil Practice Law and Rules § 215(3) (Orange County Mem. 9-10); and (c) the Sholes Defendants argue that Plaintiff's claim for intentional infliction of emotional distress is time-barred for the same reason argued by the Orange County Defendants, (Sholes Mem. 9-10).
Although "[t]he lapse of a limitations period is an affirmative defense that a defendant must plead and prove[,]" a statute of limitations defense may be "raise[d] . . . in a pre-answer Rule 12(b)(6) motion if the defense appears on the face of the complaint." Staehr v. Hartford Fin. Servs. Grp., 547 F.3d 406, 425 (2d Cir. 2008); see also Zhou v. Wu, No. 14-CV-1775, 2015 WL 925962, at *3 (S.D.N.Y. Mar. 3, 2015) (same); Mosdos Chofetz Chaim, Inc. v. RBS Citizens, N.A., 14 F.Supp.3d 191, 209 (S.D.N.Y. 2014) ("[B]ecause the defendants bear the burden of establishing the expiration of the statute of limitations as an affirmative defense, a pre-answer motion to dismiss on this ground may be granted only if it is clear on the face of the complaint that the statute of limitations has run." (alteration in original) (internal quotation marks omitted)); cf. Wang v. Palmisano, 51 F.Supp.3d 521, 536-37 (S.D.N.Y. 2014) (refusing to dismiss several employment claims under state and federal law as untimely pursuant to Rule 12(b)(6) because of two uncertainties on the face of the complaint as to when the claims accrued).
To this end, Defendants properly identify the three-year limitations period that governs Plaintiff's federal claims. Because § 1983 "does not provide a specific statute of limitations," "courts apply the statute of limitations for personal injury actions under state law." Hogan v. Fischer, 738 F.3d 509, 517 (2d Cir. 2013); see also Ormiston v. Nelson, 117 F.3d 69, 71 (2d Cir. 1997) (finding that in considering Section 1983 claims, courts should apply "the general or residual [state] statute [of limitations] for personal injury actions" (alteration in original) (internal quotation marks omitted)). Therefore, "[§] 1983 actions filed in New York are . . . subject to a three-year statute of limitations." Hogan, 738 F.3d at 517; see also Ormiston, 117 F.3d at 71 (explaining that "New York's three-year statute of limitations for unspecified personal injury actions, New York Civil Practice Law and Rules § 214(5), governs § 1983 actions in New York"). Section 1985 claims are likewise governed by the same three-year statute of limitations. See Nguyen v. Bush, No. 15-CV-641, 2015 WL 1966296, at *2 (E.D.N.Y. May 1, 2015) ("In New York State, the statute of limitations for actions brought pursuant to Sections 1983 and 1985 is three years." (citing Paige v. Police Dep't of Schenectady, 264 F.3d 197, 199 n.2 (2d Cir. 2001)). Defendants also properly identify the one-year limitations period that governs Plaintiff's intentional infliction of emotional distress claim. See Solomon v. Siemens Indus., Inc., No. 11-CV-1321, 2014 WL 1271192, at *19 (E.D.N.Y. Mar. 26, 2014) ("[T]he limitations period applicable to claims for intentional infliction of emotional distress is one year."); accord Patterson v. Balsamico, 440 F.3d 104, 112 n. 4 (2d Cir. 2006) (noting that "New York courts have held that a claim for damages for intentional infliction of emotional distress is subject to the one-year statute of limitations in C.P.L.R. Section 215(3)" (citations omitted)). The Court will begin in the reverse order and first consider the timeliness of Plaintiff's intentional infliction of emotional distress claim.
Given that there is no dispute as to when the relevant alleged incidents occurred, namely on or before November 20, 2011, and that Plaintiff did not allege this claim until he filed his TAC on November 19, 2014, it is clear that, absent tolling, Plaintiff's claim for intentional infliction of emotional distress is time-barred. Accordingly, the Court must consider whether, under Federal Rule of Civil Procedure 15(c), Plaintiff's intentional infliction of emotional distress claim relates back to the date of his original complaint. Under Rule 15(c), a claim relates back to the filing of the original complaint if
Fed. R. Civ. P. 15(c)(1); see also Maccharulo v. Gould, 643 F.Supp.2d 587, 593 n.10 (S.D.N.Y. 2009) (same).
The Court finds that his intentional infliction of emotional distress claim "advances a new legal theory . . . premised upon the same set of facts alleged in the [o]riginal Complaint." Maccharulo, 643 F. Supp. 2d at 593. In his original Complaint, Plaintiff made clear that he wanted to be "compensated" for his "emotional stress" stemming from events occurring prior to, and including, his mother's death on January 10, 2012. (Dkt. No. 2 at 5.) The instant claim grows from that same allegation. The Court therefore construes Plaintiff's intentional infliction of emotional distress claim as filed on February 6, 2012, the date of Plaintiff's original Complaint. (Dkt. No. 2). See also Tiller v. Atl. Coast Lin R.R. Co., 323 U.S. 574, 581 (1945) (holding that an amended complaint that sets forth a claim arising under a different statute based on the same underlying facts relates back under Rule 15(c)). Plaintiff's intentional infliction of emotional distress claim is therefore timely, in general, because the Court deems it made within a year of at least some of the factual allegations contained in his TAC and FAC.
Even if Plaintiff's intentional infliction of emotional distress claim as made on February 6, 2012 related back to the date of his original complaint, the Orange County Defendants and Sholes Defendants were not added to this Action until Plaintiff filed his SAC on September 24, 2013, and the new MPHRCC Defendants were not added to this Action until Plaintiff filed his TAC on November 19, 2014, both well over one year after the most recent misconduct that Plaintiff alleges. Accordingly, unless Plaintiff's addition of the Orange County Defendants, Sholes Defendants, and new MPHRCC Defendants relates back to the Original Complaint—an issue which no Party has briefed—Plaintiff's intentional infliction of emotional distress claim is untimely as to those Defendants.
Under Federal Rule of Civil Procedure 15(c)(3)
Fed. R. Civ. P. 15(c)(3); see also Soto v. Brooklyn Corr. Facility, 80 F.3d 34, 35 (2d Cir. 1996) (same). The Court need not discuss each of these conditions, as Plaintiff cannot demonstrate that the Orange County Defendants, Sholes Defendants, and new MPRHCC Defendants "knew or should have known that but for a mistake concerning the identity of the proper party, the action would have been brought against [them]."
"[W]here a Plaintiff can show that he misapprehended the identity of the person he wished to sue (a factual mistake), or failed to understand the legal requirements of his claim (a legal mistake), then the claim satisfies the mistake requirement of Rule 15(c)." Maccharulo, 643 F. Supp. 2d at 595 (internal quotation marks omitted); see also In re WorldCom. Inc. Sec. Litig., Nos. 02-CV-3146 et al., 2004 WL 540450, at *4 (S.D.N.Y. Mar. 19, 2004) ("A mistake regarding the identity of the proper party for purposes of Rule 15(c) can be a mistake of either fact or law." (internal quotation marks omitted)). There is no indication in Plaintiff's TAC or FAC, and Plaintiff does not otherwise argue, that he failed to include the Defendants at issue because of a factual or legal error. Rather, Plaintiff appears to have added claims against Defendants he either already knew of but strategically decided to leave out, see In re WorldCom, 2004 WL 540450, at *5 (finding no mistake where "the plaintiff made a strategic decision to name only one of two entities"), or learned were involved during his investigation of the case, see Rodriguez v. City of New York, No. 10-CV-1849, 2011 WL 4344057, at *8 (S.D.N.Y. Sept. 7, 2011) ("[The] [p]laintiff did not know the identity of the officers he now seeks to add and therefore did not make a mistake concerning the parties' identities."). Therefore, the Court will not deem Plaintiff's addition of the Orange County Defendants, Sholes Defendants, or new MPRHCC Defendants to relate back to the original Complaint. Plaintiff's intentional infliction of emotional distress claim is dismissed as untimely, with prejudice, as to the Sholes Defendants, Orange County Defendants, and new MPRHCC Defendants.
Given the new MPHRCC Defendants were not added until November 19, 2014, more than three years after all of the alleged misconduct, and their addition does not relate back to any previously filed Complaint, most of Plaintiff's other claims, as the MPHRCC Defendants argued, (MPHRCC Mem. 5), are time-barred as to those Defendants. As indicated above, the statute of limitations for Plaintiff's federal claims is three years. Additionally, with two exceptions, namely negligence and negligent infliction of emotional distress, which are both subject to a three-year statute of limitations, (see N.Y. C.P.L.R. § 214(5) (providing three-year statute of limitations for "action[s] to recover damages for a personal injury," unless an exception applies), all of Plaintiff's state law claims are intentional torts, which are subject to a one-year statute of limitations. (See N.Y. C.P.L.R. § 215(3) (providing one-year statute of limitations for a number of intentional torts, including "assault, battery, false imprisonment, libel, slander"); see also Borison v. Cornacchia, No. 96-CV-4783, 1997 WL 232294, at *1 (S.D.N.Y. May 7, 1997) ("[A]ll appellate courts . . . recognize that a claim for damages for an intentional tort such as abuse of process is subject to the one-year limitations period."). Accordingly, all of Plaintiff's state law claims, except those for negligence and negligent infliction of emotional distress, and all of Plaintiff's federal claims, are dismissed as to the new MPHRCC Defendants as time-barred, with prejudice.
The Court also finds that Plaintiff's claims stemming from conduct alleged to have occurred as part of the March 30-31 and August 20, 2010 incidents are untimely as to the Orange County Defendants. As discussed above, Plaintiff's federal claims are governed by a three-year statute of limitations, his state intentional tort claims are governed by a one-year statute of limitations, and the Orange County Defendants were added in Plaintiff's SAC on September 24, 2013, more than three years after misconduct alleged to have occurred as part of these incidents. (See Orange County Mem. 8-10.) Therefore, because the addition of the Orange County Defendants does not relate back to the initial Complaint, the Court dismisses Plaintiff's federal claims, and state law claims other than negligence and negligent infliction of emotional distress, against the Orange County Defendants, with prejudice, insofar as they stem from conduct that occurred on March 30-31 or August 20, 2010.
Defendants assert two absolute immunity claims. First, the Wallkill Defendants argue that Farmingham is absolutely immune from liability for any allegedly false testimony he gave at the guardianship hearing under Briscoe v. LaHue, 460 U.S. 325 (1983). (See Wallkill Mem. 23.) As the Second Circuit has made clear, because "[t]he functions of a police officer witness in a judicial proceeding are the same as those of any other witness," a police officer is entitled to absolute immunity when testifying at a judicial proceeding, provided that he is not a complaining witness, i.e., a witness instituting the proceeding. Sykes v. James, 13 F.3d 515, 519-21 (2d Cir. 1993); see also Collins v. City of New York, 923 F.Supp.2d 462, 467, 472-73 (E.D.N.Y. 2013) (finding that an assistant district attorney was entitled to absolute immunity when averring to no wrongdoing in an affirmation submitted in response to a petitioner's collateral attacks on his conviction); cf. Gardner ex rel. Gardner v. Parson, 874 F.2d 131, 145-46 (3d Cir. 1989) (noting that a guardian ad litem is entitled to absolute immunity when testifying). Because guardianship hearings are a form of judicial proceeding, see Blouin ex rel. Estate of Pouliot v. Spitzer, 356 F.3d 348, 358 (2d Cir. 2004) (noting that "guardianship proceedings [are] a form of judicial proceedings"), Farmingham is entitled to absolute immunity for his testimony. Accordingly, the Court dismisses all of Plaintiff's claims against Farmingham stemming from the allegedly false testimony he gave at the guardianship hearing.
Second, the Orange County Defendants argue that Murphy, Crain, and Jolly are absolutely immune from suit because they were "performing duties within the scope of their employment" under New York Social Services Law § 473(3). (Orange County Mem. 10-13.) New York Social Services Law § 473(3) provides that
N.Y. Soc. Serv. Law § 473(3); see also Shinn v. City of New York, 884 N.Y.S.2d 466, 467 (App. Div. 2009) (affirming grant of summary judgment to defendants, including New York City Adult Protective Services, because they were immune from civil liability under this statute when they acted "pursuant to a court order granting access to the plaintiff as an adult person believed to be in need of protective services"). In support of their immunity contention, the Orange County Defendants argue that "the alleged conduct occurred while the Orange County Defendants were executing their duties and responsibilities as employees of the Department of Social Services," which include "reporting, investigation, and providing . . . protective services to Plaintiff's mother, who was determined to be an adult person in need of protection." (Orange County Mem. 12.) However, under the plain language of the law, if Plaintiff plausibly alleges that Murphy, Crain, and Jolly are liable by virtue of a willful act, were grossly negligent, or acted outside the scope of their employment, then they are not entitled to immunity. See Cortlandt v. Westchester Cty., No. 07-CV-1783, 2007 WL 3238674, at *9-10 (S.D.N.Y. Oct. 31, 2007) (finding that the defendants were not be immune from suit under § 473 because the plaintiff alleged that they acted in a grossly negligent manner and contrary to the requirements of the Mental Hygiene Law).
Alternatively, the Orange County Defendants argue that, under New York Social Services Law § 473-b, Murphy, Crain, and Jolly are immune from civil liability for their testimony at the guardianship proceeding. (Orange County Mem. 13.) New York Social Services Law § 473-b provides that
N.Y. Soc. Serv. Law § 473-b. In support of this contention, the Orange County Defendants argue that Crain was "clearly . . . testifying at a guardianship hearing as an employee of" the Department of Social Services, which is "well within the scope of her employment," that Murphy's presence at the hearing was similarly "within the scope of his employment," and that under Social Services Law § 473(5), Murphy, Crain, and Jolly are "mandatory reporters" such that they must "report and/or investigate any allegation of abuse," which, "as part of their duties and responsibilities," requires "testify[ing] at judicial proceedings." (Orange County Mem. 13.) However, under the plain language of the law, if Plaintiff plausibly alleges that Murphy, Crain, and Jolly testified in bad faith, then they are not entitled to immunity.
While the Court notes that it has already dismissed most of Plaintiff's claims against the Orange County Defendants as untimely, and all claims against Jolly for failure to serve, it evaluates the Orange County Defendants' claim of immunity in the alternative. First, it is impossible for the Court to evaluate Jolly's entitlement to immunity because Plaintiff makes almost no allegations against him, as discussed below. Second, with regard to Murphy and Crain, the Court finds that they are not, at this stage, entitled to immunity from Plaintiff's claims.
On their face, both § 473(3) and § 473-b appear to apply. With regard to § 473(3), while the cases that the Orange County Defendants cite are not particularly persuasive, (see Orange County Mem. 12-13), Murphy and Crain do appear to have been acting within the scope of their employment here when testifying (or, in Murphy's case, accompanying a subordinate who was testifying) at a hearing consistent with their reporting requirement under New York Social Services Law § 473(5). With regard to § 473-b, as discussed above, Crain, at least, was clearly "testifying in [a] judicial or administrative proceeding" arising from a "report or referral." (TAC 19; FAC 25.) See Marilyn S. v. Indep. Grp. Home Living Program, Inc., 904 N.Y.S.2d 70, 72 (App. Div. 2010) (granting the defendants immunity for "act[ing] in good faith when they reported allegations of sexual abuse made by the Plaintiffs' son"). The central question, though, is whether Murphy and Crain are liable by virtue of a "willful[] act or gross negligence," N.Y. Soc. Serv. Law § 473(3), or otherwise testified in "good faith," id. § 473-b. Plaintiff alleges that that Crain, with Murphy's coaching, testified falsely at the hearing with a "malicious" motive, namely the "intent to harm Plaintiff[]." (FAC 10, 37.) While not backed by the sort of factual underpinning to render Plaintiff's allegations particularly compelling, they do suggest the sort of "bad faith" or "willful act" that vitiates immunity. See Cortlandt, 2007 WL 3238674, at *9-10 (denying motion to dismiss on immunity grounds because the plaintiff alleged that the social services officials acted in a "grossly negligent manner"); Recant v. N.Y. Presbyterian Hosp., 2009 WL 3490940, at *4 (N.Y. Sup. Ct. Oct. 15, 2009) (denying motion to dismiss on immunity grounds because the plaintiff alleged that the defendant made allegations in bad faith, and the defendant "fail[ed] to come forward with evidence of her good faith"). Accordingly, the Court declines to dismiss Plaintiff's claims against Murphy, Crain, and Jolly on immunity grounds.
As the Court has made clear on multiple occasions, see Park Manor, 51 F. Supp. 3d at 339 (noting that the Court previously warned Plaintiff that his complaint may be dismissed "as against any Defendant whose personal involvement could not be discerned from reading the pleading" (brackets and internal quotation marks omitted), 353 (same), 356 (warning that "if Plaintiff does not comply with the Court's instruction that he allege a Defendants' personal involvement, the Court will dismiss his claims against that Defendant without leave to amend), Plaintiff must allege the personal involvement of Defendants in order to state a claim against them, see id. at 352 (finding that allegations were "insufficient to meet [the] burden of stating a plausible claim for relief" under § 1983 because they did not allege "personal involve[ment]"); see also Grullon v. City of New Haven, 720 F.3d 133, 138 (2d Cir. 2013) ("It is well settled that, in order to establish a defendant's individual liability in a suit brought under § 1983, a plaintiff must show . . . the defendant's personal involvement in the alleged constitutional deprivation."); Inside Connect. Inc. v. Fischer, No. 13-CV-1138, 2014 WL 2933221, at *10 (S.D.N.Y. June 30, 2014) ("[W]here the complaint names defendants in the caption but contains no allegations indicating how they violated the law or injured the plaintiff, dismissal is appropriate." (brackets and internal quotation marks omitted)). Nonetheless, Plaintiff has failed to allege sufficient personal involvement as to several Defendants.
First, Plaintiff has failed to allege any personal involvement of Kammarada and Moskowitz. Other than listing them as Defendants, Plaintiff includes no allegations regarding any misconduct in which they engaged. (See Wallkill Mem. 13; Orange County Mem. 14.) Accordingly, Plaintiff has failed to allege personal involvement, and Plaintiff's claims against Kammarada and Moskowitz, acknowledging that the Court has already dismissed Plaintiff's claims against Moskowitz for failure to serve, are dismissed in their entirety, with prejudice.
Second, Plaintiff alleges insufficient personal involvement with regard to several other Defendants. Beginning with the MPRHCC Defendants, with regard to Green, Plaintiff only alleges that he met with Green on March 31, 2011, and that on that date, at Green's request, Plaintiff showed or gave Green a number of documents concerning Plaintiff's power to make medical decisions for his mother. (TAC 2, 8, 92; FAC 4, 11, 40.)
Moving next to the Wallkill Defendants, with regard to McLymore, other than acting as a "supervisor," (TAC 69), Plaintiff alleges only that McLymore attested to the existence of Plaintiff's criminal record, and that his name shows up in an incident report. (See FAC 39, 50; see also Wallkill Mem. 13.) With regard to Belgiovene, who the Court has already dismissed for failure to serve, Plaintiff's alleges only that Belgiovene assisted Gulick in arresting Plaintiff on June 10, 2011 (without explaining what role Belgiovene actually played), and that the arrest was "unlawful and malicious." (FAC 34-35; see also Wallkill Mem. 13.)
Finally, as far as the Orange County Defendants are concerned, with regard to Leo, Plaintiff only alleges that she "took" Plaintiff's mother's "case," that she was at one point "called" by Masterson, and that she was somehow "involved" the conspiracy at issue. (See TAC 17, 89; FAC 19, 36, 40.)
As was true in the Second Amended Complaint, the problem with Plaintiff's allegations against Green, Yeddu, Terwillinger, Brennan, McLymore, Belgiovene, and Leo, is that they either are, once again, only "assertion[s] of liability without any explanation as to [each Defendant's] role in harming Plaintiff," Park Manor, 51 F. Supp. 3d at 350, or contain no allegations of liability at all. Accordingly, acknowledging that the Court has already dismissed claims against some of these Defendants for other reasons, the Court nonetheless dismisses Plaintiff's claims against Green, Yeddu, Terwillinger, Brennan, McLymore, Belgiovene, and Leo for failure to allege personal involvement, with prejudice.
The Wallkill Defendants and Orange County Defendants also argue that Plaintiff failed to allege personal participation of certain supervisory Defendants. A plaintiff does not state a claim against a defendant under § 1983 when he asserts that an official is liable solely because he or she has a supervisory role or a position of authority. See Black v. Coughlin, 76 F.3d 72, 74 (2d Cir. 1996) ("We see no error in the dismissal of the claim against Coughlin for lack of personal involvement, since a defendant in a § 1983 action may not be held liable for damages for constitutional violations merely because he held a high position of authority."); Canner v. City of Long Beach, No. 12-CV-2611, 2015 WL 4926014, at *2 (E.D.N.Y. Aug. 18, 2015) ("[A] defendant in a § 1983 action may not be held liable for damages for constitutional violations merely because he held a position of high authority."); Kee v. Hasty, No. 01-CV-2123, 2004 WL 807071, at *2 (S.D.N.Y. Apr. 14, 2004) ("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." (citations omitted)). A plaintiff is personally involved as a supervisor when he or she "(1) . . . participate[s] directly in the alleged constitutional violation, (2) . . . after being informed of the violation through a report or appeal, fail[s] to remedy the wrong, (3) . . . create[s] a policy or custom under which unconstitutional practices occurred, or allow[s] the continuance of such a policy or custom, (4) . . . [is] grossly negligent in supervising subordinates who commit[] the wrongful acts, or (5) . . . exhibit[s] deliberate indifference . . . by failing to act on information indicating that unconstitutional acts were occurring." Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995); see also Black, 76 F.3d at 74 ("We have construed personal involvement for these purposes to mean direct participation, or failure to remedy the alleged wrong after learning of it, or creation of a policy or custom under which unconstitutional practices occurred, or gross negligence in managing subordinates.").
The Wallkill Defendants argue that Plaintiff fails to allege sufficient personal involvement of Hertman, Spano, and Procak. (Wallkill Mem. 15-16.) With regard to Hertman, Plaintiff alleges that Hertman "[did] not . . . listen to Plaintiff['s] request" to have his firearm returned, that he indicated, in a March 29, 2013 letter, that he would "conduct[] and investigation" into Plaintiff's "`complaint of failure to take proper Police action'" yet never did so," that he "fail[ed[] to supervise, monitor, or investigate" certain police officers, and that he "admitted that several officers violated" their duties with respect to Plaintiff on March 31, 2010. (TAC 12, 103; FAC 7-8, 15, 32, 37, 39, 47.) With regard to Spano, Plaintiff alleges only that he is liable by virtue of his failure to "supervise, monitor, and investigate" certain police officers. (FAC 8, 32, 37, 39, 47.) With regard to Procak, Plaintiff alleges only that Procak stated in a police report that he assisted with the June 10, 2011 arrest and that Gulick actually arrested Plaintiff that day, assisted by Mannix. (TAC 139; FAC 35.)
On this basis of these allegations, the Court finds that Plaintiff has only alleged the personal involvement of Hertman. Plaintiff arguably alleged that in failing to act on Plaintiff's report, Hertman personally failed to remedy a wrong reported to him. See Colon, 58 F.3d at 873. By contrast, Plaintiff's allegations against Spano and Procak are wholly inadequate. With regard to Spano, Plaintiff does not allege how Spano's supervision was lacking, never mind how it may have been "grossly negligent," such that Plaintiff's theory is liability is based on anything more than Plaintiff's supervisory role. With regard to Procak, Plaintiff suggests that Procak was not involved in the only arrest Plaintiff associates him with, and does not explain how signing the police report at issue had any effect on Plaintiff at all. These allegations are not only insufficient to state a § 1983 claim, but are also insufficient to demonstrate any liability at all. Accordingly, the Court dismisses Plaintiff's claims against Spano and Procak.
In the same vein, the Orange County Defendants contend that Plaintiff failed to allege sufficient personal involvement of Murphy and Jolly. (See Orange County Mem. 14-16.) With regard to Defendant Murphy, Plaintiff alleges, in relevant part, that he coached Crain to offer false testimony at the guardianship hearing with "malicious intent," (TAC 37, 40 (brackets omitted); FAC 10, 35, 37), and that he "assist[ed]" Sholes in submitting of "falsified/altered documents" at the Guardianship hearing, (TAC 7, 43). With regard to Defendant Jolly, Plaintiff only alleges that Jolly "assist[ed]" Sholes in submitting "falsified/altered documents" at the Guardianship hearing. (TAC 7, 43.) In this context, the Court finds that Plaintiff has alleged sufficient personal involvement with respect to Murphy, but insufficient personal involvement with respect to Jolly. While Murphy's acts of "coaching" certainly allege personal involvement, it is not clear from the TAC and FAC how Jolly "assisted" Sholes in the filing of falsified documents, what such assistance entailed, and which documents were false. Cf. Leeds v. Meltz, 83 F.3d 51, 55 (2d Cir. 1996) (noting that the "bare conclusion . . . that various . . . employees somehow `prevented' publication" of the plaintiff's advertisement in the school newspaper were insufficient)).
The Orange County Defendants argue that Plaintiff failed to allege the personal involvement of Crain and Orange County. (See Orange County Mem. 14.) Plaintiff alleges that Crain, in relevant part, together with other Defendants as part of a conspiracy, made false statements under oath at the November 10, 2011 guardianship hearing, "resulting in Plaintiff losing certain rights related to his mother," (TAC 37, 40; FAC 4, 10, 35, 37).
The MPRHCC Defendants argue that Plaintiff did not sufficiently allege the personal involvement of Brewster, Reyes, Masterson, Maniscalco, and Small, arguing that the FAC "fail[s] to delineate the specific actions that [P]laintiff claims deprived him of his constitutional rights." (MPHRCC Mem. 4.) With regard to Brewster, Plaintiff alleges that she called the police on June 10, 2011 to falsely report that she heard Plaintiff yelling at his mother and making verbal threats about using a firearm, leading to Plaintiff's arrest on that day. (TAC 16; FAC 4, 18, 35-36, 44.) Plaintiff also alleges that Brewster gave false statements to Solan on August 9, 2011 regarding Plaintiff's alleged harassment of her, leading to Plaintiff's arrest September 13, 2011. (TAC 18, 36; FAC 4, 20-21, 23.) With regard to Reyes, Plaintiff alleges that Reyes called the police on June 10, 2011 with Brewster, (TAC 16, 36; FAC 4, 18), and that she provided a false sworn statement of that incident to Gulick that day, (TAC 17; FAC 18, 35-36, 44). With regard to Masterson, Plaintiff alleges that she was "present" during the June 10, 2011 incident, (TAC 16; FAC 18), provided a false, sworn statement to Solan on August 9, 2011 that contributed to his arrest on September 13, 2011, (TAC 18, 36; FAC 21, 23, 35), acted as a witness and falsely testified in the guardianship hearing, (TAC 20-22, 24-25, 37; FAC 4, 26, 33, 35, 45-46), and did not intervene when Farmingham prevented Plaintiff from giving his mother a "hug and kiss" at the hearing, (FAC 8, 37).
Prior to considering the Plaintiff's individual claims, it is worth taking stock of those Defendants and claims that the Court has already dismissed, and those that remain. While the Court will detail exactly which claims were dismissed, and whether those dismissals are with or without prejudice, at the conclusion of this Opinion, the Court notes that it has dismissed all claims against Defendants Conklin, Green, Tiffany, Yvette, Terwillinger, Yeddu, Brennan, Spano, Kammarada, McLymore, Procak, Belgiovene, Moskowitz, Guzman, New York State, Mannix, Labuda, Lacatena, Leo, Jolly, and Sholes.
Accordingly, at this point, Plaintiff only has viable claims against nineteen Defendants: MPRHCC, Maniscalco, Masterson, Forman, Small, Brewster, Reyes, Du Bois, Orange County, Murphy, Crain, Wallkill, Hertman, Farmingham, Dewey, Kleveno, Gulick, Solan, and Sholes & Miller. The Court has explicitly limited the scope of these claims as to five Defendants: Plaintiff's claims against Sholes and Miller are viable except for intentional infliction of emotional distress, his claims against Orange County, Murphy, and Crain are viable only with regard to the August 20, 2010 incident and except for intentional infliction of emotional distress, and his claims against Farmingham are viable except with regard to the November 10, 2011 guardianship hearing.
In their Memoranda the Court notes that the Wallkill Defendants "acknowledge that the [FAC] states federal claims" for conduct during the August 20, 2010 arrest. (Wallkill Mem. 2.) Specifically, the Wallkill Defendants concede that Plaintiff states a claim "against Farmingham for false arrest, unlawful search[,] and excessive force" on August 20, and a claim "against Kleveno for failure to intervene in connection with Plaintiff's . . . arrest" on the same day. (Id.) The Wallkill Defendants do not seek to dismiss those claims. (Id.) While some of Plaintiff's other claims against Farmingham and Kleveno are dismissed below, the Court notes that the Wallkill Defendants do not contend that Plaintiff cannot maintain a malicious prosecution claim based on the same incident. (See Wallkill Mem. 21 (noting that "Defendants concede that there are sufficiently plead claims against Farmingham and Kleveno" in connection with the August 20 arrest).) Accordingly, the Court notes that Plaintiff may still pursue a malicious prosecution claim against Farmingham and Kleveno as well.
Given the Wallkill Defendants concede that Plaintiff has stated claims against Farmingham and Kleveno based on the August 20, 2010 arrest, the Court notes that the only other allegations against a specific Defendant that Plaintiff makes in connection with the August 20 incident are against Crain. The Court has, however, already limited Plaintiff's claims against Crain to those arising from the November 10, 2011 guardianship hearing. Accordingly, there are no Defendants, other than Farmingham and Kleveno, against whom Plaintiff states a claim in connection with the November 10, 2010 arrest.
The Wallkill Defendants allege that Plaintiff does not state a claim for false arrest, false imprisonment, or malicious prosecution based on any of the remaining incidents. (See Wallkill Mem. 18.) To state a false arrest or false imprisonment claim, a plaintiff must allege that "(1) the defendant intended to confine [the plaintiff], (2) the plaintiff was conscious of the confinement, (3) the plaintiff did not consent to the confinement[,] and (4) the confinement was not otherwise privileged." Willey v. Kirkpatrick, ___ F.3d ___, 2015 WL 5059377, at *17 (2d Cir. Aug. 28, 2015) (internal quotation marks omitted). An arrest may be "otherwise privileged" when conducted with probable cause. See Curley v. AMR Corp., 143 F.3d 5, 13 (2d Cir. 1998) (noting that one example of such privilege is "confinement . . . with probable cause"); see also Morel v. Reed, Nos. 11-CV-1808 et al., 2015 WL 1506132, at *4 (E.D.N.Y. Mar. 31, 2015) (defining the fourth element as "the confinement was not otherwise privileged by probable cause" (brackets omitted)). To state a claim for malicious prosecution, a plaintiff must allege "`(1) that the defendant commenced or continued a criminal proceeding against him; (2) that the proceeding was terminated in the plaintiff's favor; (3) that there was no probable cause for the proceeding; and (4) that the proceeding was instituted with malice.'" Oxman v. Downs, 999 F.Supp.2d 404, 412-413 (E.D.N.Y. 2014) (quoting Kinzer v. Jackson, 316 F.3d 139, 143 (2d Cir. 2003). A finding of probable cause is also enough to overcome a malicious prosecution claim, see Dickerson v. Napolitano, 604 F.3d 732, 751 (2d Cir. 2010) ("Probable cause is a complete defense to any action for false arrest or malicious prosecution in New York."); Fiore v. Rivera, No. 14-CV-3570, 2015 WL 5007938, at *3 (E.D.N.Y. Aug. 20, 2015) (noting that probable cause is a "required element of both false arrest and malicious prosecution claims"). Additionally, a plaintiff cannot establish a claim of false arrest, false imprisonment, or malicious prosecution, "if he was convicted of the offense for which he was arrested," Cameron v. Fogarty, 806 F.2d 380, 387 (2d Cir. 1986), even if those charges are resolved by plea, see Maietta v. Artuz, 84 F.3d 100, 102 n.1 (2d Cir. 1996); see also Larocco v. Jackson, No. 10-CV-1651, 2012 WL 760396, at *3 (E.D.N.Y. Mar. 8, 2012) (noting that the plaintiff could not establish a lack of probable cause for his arrest and that guilty plea precluded a finding that the proceedings had been terminated in his favor).
Probable cause for an arrest (or imprisonment) exists where the arresting officer "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 committed or is committing a crime." Jaegly v. Couch, 439 F.3d 149, 152 (2d Cir. 1996) (internal quotation marks omitted). By contrast, "[t]he standard for probable cause in the case of malicious prosecution is slightly different—probable cause exists when the facts and circumstances `would lead a reasonably prudent person in like circumstances to believe [the] plaintiff [to be] guilty.'" Thimmesch v. City of New York, No. 12-CV-8882, 2013 WL 1558699, at *1 n.3 (S.D.N.Y. Apr. 9, 2013) (quoting Colon v. City of New York, 455 N.E.2d 1248, 1250 (N.Y. 1983)). Either way, probable cause exists when a law enforcement officer "receive[s] . . . information from some person, normally the putative victim or eyewitness, . . . unless the circumstances raise doubt as to the person's veracity." Panetta v. Crowley, 460 F.3d 388, 395 (2d Cir. 2006); see also Singer v. Fulton Cty. Sheriff, 63 F.3d 110, 119 (2d Cir. 1995) ("An arresting officer advised of a crime by a person who claims to be the victim, and who has signed a complaint or information charging someone with the crime, has probable cause to effect an arrest absent circumstances that raise doubts as to the victim's veracity."). "Probable cause may also exist where the officer has relied on mistaken information, so long as it was reasonable for him to rely on it." Manganiello v. City of New York, 612 F.3d 149, 161 (2d Cir. 2010).
With regard to the March 30-31, 2010 incident, the Wallkill Defendants point out that Plaintiff "concedes he was convicted of one count of endangering the welfare of a child and one count of disorderly conduct." (Wallkill Mem. 20 (citing FAC 13-15).) For this reason, Plaintiff cannot maintain a claim for false arrest, false imprisonment, or malicious prosecution on the basis of that incident, and accordingly those claims are dismissed. See Cameron, 806 F.2d at 387.
With regard to the June 10, 2011 incident, the Wallkill Defendants allege that Gulick "obtained a sworn statement from [a] witness detailing the allegations and arrested Plaintiff for the crimes of attempted assault in the third degree and endangering the welfare of an incompetent or physically disabled person." (Wallkill Mem. 21-22.) Based on the exhibits integrated into Plaintiff's TAC and FAC (or exhibits that were attached to the SAC that are referenced in the TAC and FAC), it is clear that Gulick obtained a statement "from [a] staff member who witnessed [the] incident," Reyes, (Declaration of James A. Randazzo ("Randazzo Decl.") Ex. L (Dkt. No. 189); TAC 96), whose statement Gulick obtained at the scene, (see Randazzo Decl. Ex. J; TAC 17 (referencing this exhibit)). Plaintiff does not respond to the Wallkill Defendants' claim, nor does he advance any reason why Gulick should have doubted Reyes's statement. Accordingly, Plaintiff cannot maintain a claim for false arrest or false imprisonment based on this incident. See Panetta, 460 F.3d at 395. Moreover, because Plaintiff's charges were resolved with an adjournment in contemplation of dismissal, (see Randazzo Decl. Ex. I (Letter from Plaintiff's attorney, Craig Stephen Brown, Esq., to Plaintiff, dated Aug. 5, 2011, informing Plaintiff that he "[was] given a one . . . year Adjournment in Contemplation of Dismissal [("ACD")] with a limited Order of Protection," and that "[i]f [he] [did] not get arrested within this one . . . year time period, the charge [would] be dismissed"); TAC 17 (referencing this exhibit), Plaintiff cannot maintain a malicious prosecution claim. See Smith v. City of New York, 2013 WL 592224, at *3 ("An adjournment in contemplation of dismissal does not constitute a favorable termination for the purposes of a malicious prosecution claim." (citing Shain v. Ellison, 273 F.3d 56, 68 (2d Cir. 2001)). Accordingly, Plaintiff's claims for false arrest, false imprisonment, and malicious prosecution based on the June 20, 2011 incident are dismissed.
With regard to the September 13, 2011 incident, the Wallkill Defendants argue, based on exhibits integrated into Plaintiff's TAC and FAC, that prior to Solan's arrest of Plaintiff, "[t]he police obtained sworn deposition statements from known witnesses alleging numerous phone calls from Plaintiff serving no legitimate purpose, and the police were provided with a handwritten log of some of those phone calls." (Wallkill Mem. 23.) Based on Plaintiff's TAC, FAC, and the referenced exhibits, it is clear that Solan received sworn statements from Masterson, Brewster, Small, and Maniscalco that discussed Plaintiff's phone calls, (Randazzo Decl. Ex. M-O, Q; TAC 113-16), and that Farmingham received a call log, (id. Ex. P; TAC 117), all before Plaintiff's arrest on September 13. Once again, Plaintiff did not respond to the Wallkill Defendants' argument, nor does he offer any reason why Solan should have questioned the voracity of the information he received. Even if, as Plaintiff asserts, Masterson, Brewster, Small, and Maniscalco each were lying to Solan at the time, Plaintiff does not allege that Solan was aware of it. Accordingly, Solan had sufficient information to arrest Plaintiff for aggravated harassment, and to believe him guilty. (Id. Ex. R.) Accordingly, Plaintiff's claims for false arrest, false imprisonment, and malicious prosecution based on the September 13, 2011 incident are dismissed.
Plaintiff also may allege an excessive force claim in connection with the March 30-31, 2010 incident. (See, e.g., TAC 11 (discussing excessive force in the context of this incident).) "`Claims that law enforcement officers have used excessive force . . . in the course of an arrest, investigatory stop, or other seizure of a free citizen [are] analyzed under the Fourth Amendment and its reasonableness standard." Usavage v. Port Auth., 932 F.Supp.2d 575, 591 (S.D.N.Y. 2013) (some internal quotation marks omitted) (quoting Graham v. Connor, 490 U.S. 386, 395 (1989)). "[T]he reasonableness question is whether the officers' actions were `objectively reasonable' in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation." Mickle v. Morin, 297 F.3d 113, 120 (2d Cir. 2002). Accordingly, "courts should examine whether the use of force is objectively unreasonable in light of the facts and circumstances confronting them. . . ." Jones v. Parmley, 465 F.3d 46, 61 (2d Cir. 2006) (internal quotation marks omitted).
The Wallkill Defendants argue that Plaintiff does not state a claim for excessive force based on the March 30, 2010 because he does not allege any resulting injury. (See Wallkill Mem. 20.) The Court agrees: absent a demonstration of injury, Plaintiff cannot demonstrate that the use of force at issue was "objectively sufficiently serious or harmful enough to be actionable." Washpon v. Parr, 561 F.Supp.2d 394, 406 (S.D.N.Y. 2008); see also Riddick v. Thomas, No. 11-CV-2986, 2012 WL 919328, at *4 (S.D.N.Y. Mar. 15, 2012) ("Nothing in the record suggests that [the] plaintiff in fact suffered any actual injuries or that any injuries he suffered were related to his being escorted from the post office. Accordingly, [the] plaintiff has not raised a triable issue of fact with respect to the excessive force claim."); Warheit v. City of New York, No. 02-CV-7345, 2006 WL 2381871, at *8 (S.D.N.Y. Aug. 15, 2006) ("[The Defendant's] action caused no physical injury to [plaintiff]. . . . Any force was de minimis, and therefore does not amount to a constitutional violation." (italics omitted)), aff'd 271 F. App'x 123 (2d Cir. 2008). Accordingly, to the extent that Plaintiff intended to allege for excessive force based on the March 30, 2010 incident, that claim is dismissed.
Plaintiff also claims that, because his firearm was seized in connection with the March 30, 2010 incident, Defendants conduct constituted a search in violation of the Fourth Amendment, and a seizure of his firearm in violation of the Second Amendment. (See TAC 12, 45, 64-66.) In response to Plaintiff's Fourth Amendment claim, the Wallkill Defendants assert that Plaintiff's firearm was not seized the next day, as Plaintiff alleges, but rather was seized on the day of the incident. (Wallkill Mem. 20-21.) Accordingly, the Wallkill Defendants contend, based on an exhibit to the SAC that is referenced in the TAC and FAC, that Plaintiff's firearm was seized when the officer permissibly searched Plaintiff's "person and the area within his immediate control . . . the area from within which he might gain possession of a weapon or destructible evidence." United States v. Gandia, 424 F.3d 255, 261 (2d Cir. 2005) (internal quotation marks omitted). The search therefore, according to the Wallkill Defendants, did not violate Plaintiff's Fourth Amendment Rights. The relevant part of the pertinent exhibit is a narrative indicates that Dewey "turned" over Plaintiff's firearm and that it was "seized by . . . Dewey at the scene of a violent domestic incident." (See Randazzo Decl. Ex. D; see also TAC 12-13 (referencing exhibit); FAC 15 (same).) While suggestive, the exhibit only indicates where Dewey seized the firearm; it does not indicate when, and the fact that the firearm was turned over on March 31, rather than March 30, also suggests that Dewey seized the gun after the arrest in question. Accordingly, the Court declines to dismiss Plaintiff's Fourth Amendment claim based on the March 30-31, 2010 incident.
The Wallkill Defendants also argue that because "the right to bear arms is not a right to hold some particular gun," Garcha v. City of Beacon, 351 F.Supp.2d 213, 217 (S.D.N.Y. 2005), and Plaintiff does not allege that Defendants prevented Plaintiff from acquiring another gun, his conduct does not amount of a Second Amendment violation. The Court agrees, and accordingly dismisses Plaintiff's Second Amendment Claim, with prejudice. See Vaher v. Town of Orangetown, 916 F.Supp.2d 404, 429-30 (S.D.N.Y. 2008) (dismissing Second Amendment claim because the plaintiff did not allege that the Defendants' "actions . . . affected [the] [p]laintiff's ability to retain or acquire other firearms or ammunition, and no law has been cited that infringes on [the] [p]laintiff's right to obtain other firearms"); Garcha v. City of Beacon, 351 F.Supp.2d 213, 217, 219 (S.D.N.Y. 2005) (dismissing Second Amendment claim based on destruction of gun seized incident to an arrest where the plaintiff had not alleged that "any action taken by [the] defendants would prevent him from acquiring another weapon").
The Wallkill Defendants also argue that Plaintiff cannot maintain a § 1983 failure to intercede claim based on the March 30-31, 2010, June 20, 2011, and September 13 2011 incidents. (See Wallkill Mem. 19.) "A police officer `has an affirmative duty to intercede on the behalf of a citizen whose constitutional rights are being violated in his presence by other officers.'" Henry-Lee v. City of New York, 746 F.Supp.2d 546, 565 (S.D.N.Y. 2010) (quoting O'Neill v. Krzeminski, 839 F.2d 9, 11 (2d Cir. 1988)). As such, "[a]n underlying constitutional violation is an essential element of a failure to intercede claim." Henry-Lee, 746 F. Supp. 2d at 566 (citing Ricciuti v. N.Y.C. Transit Auth., 124 F.3d 123, 129 (2d Cir. 1997). Because Plaintiff has not established a false arrest, false imprisonment, or malicious prosecution claim, as discussed above, he has not established a constitutional violation and cannot maintain a failure to intercede claim. See id. at 566 (granting summary judgment on failure to intercede claim because the plaintiff failed to establish an issue of material of fact as to "whether a constitutional violation occurred"). Accordingly, Plaintiff's failure to intercede claim, phrased in the TAC as "refusing or neglecting to prevent," (TAC 6), is dismissed.
The Wallkill Defendants argue that Plaintiff's claims against the Town of Wallkill should be dismissed because Plaintiff has failed to allege a Monell claim. (See Wallkill Mem. 14.) The Orange County Defendants make the same argument, claiming that Plaintiff has failed to allege that Orange County "created a custom, policy[,] or practice" that was unconstitutional. (Orange County Mem. 15, 16.)
"Congress did not intend municipalities to be held liable [under § 1983] unless action pursuant to official municipal policy of some nature caused a constitutional tort." Monell, 436 U.S. at 691.
A plaintiff may satisfy the "policy or custom" requirement by alleging:
Brandon v. City of New York, 705 F.Supp.2d 261, 276-77 (S.D.N.Y. 2010) (citations omitted). Under the third method, "an act performed pursuant to a `custom' that has not been formally approved by an appropriate decisionmaker may fairly subject a municipality to liability on the theory that the relevant practice is so widespread as to have the force of law." See Bd. of the Cty. Comm'rs of Bryan Cty. v. Brown, 520 U.S. 397, 404 (1997); see also Kern v. City of Rochester, 93 F.3d 38, 44 (2d Cir. 1996) (noting that a municipality's custom "need not be memorialized in a specific rule or regulation"). Therefore, a plaintiff may establish municipal liability by demonstrating that a policy maker "indirectly caused the misconduct of a subordinate municipal employee by acquiescing in a longstanding practice or custom which may fairly be said to represent official policy." See Miller v. Cty. of Nassau, 467 F.Supp.2d 308, 314 (E.D.N.Y. 2006). To prevail on this theory of municipal liability, however, a plaintiff must prove that the custom at issue is permanent and well-settled. See Praprotnik, 485 U.S. at 127 (noting that the Supreme Court "has long recognized that a plaintiff may be able to prove the existence of a widespread practice that, although not authorized by written law or express municipal policy, is `so permanent and well settled as to constitute a custom or usage with the force of law'" (quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 167-68 (1970) (some internal quotation marks omitted))). Accordingly, and of particular importance in this case, "a custom or policy cannot be shown by pointing to a single instance of unconstitutional conduct by a mere employee of the [municipality]." See Newton, 566 F. Supp. 2d at 271; see also City of Okla. v. Tuttle, 471 U.S. 808, 823-24 (1985) (plurality opinion) ("Proof of a single incident of unconstitutional activity is not sufficient to impose liability under Monell, unless proof of the incident includes proof that it was caused by an existing, unconstitutional municipal policy, which policy can be attributed to a municipal policymaker."); Brogdon v. City of New Rochelle, 200 F.Supp.2d 411, 427 (S.D.N.Y. 2002) ("A single incident by itself is generally insufficient to establish the affirmative link between the municipal policy or custom and the alleged unconstitutional violation."). In the end, "a plaintiff must demonstrate that, through its deliberate conduct, the municipality was the `moving force' behind the alleged injury." Roe, 542 F.3d at 37 (quoting Brown, 520 U.S. at 404); see also Tuttle, 471 U.S. at 824 n.8 ("The fact that a municipal `policy' might lead to `police misconduct' is hardly sufficient to satisfy Monell's requirement that the particular policy be the `moving force' behind a constitutional violation. There must at least be an affirmative link between [for example] the training inadequacies alleged, and the particular constitutional violation at issue."); Batista v. Rodriguez, 702 F.2d 393, 397 (2d Cir. 1983) ("Absent a showing of a causal link between an official policy or custom and the plaintiffs' injury, Monell prohibits a finding of liability against the City."); Johnson v. City of New York, No. 06-CV-9426, 2011 WL 666161, at *3 (S.D.N.Y. Feb. 15, 2011) (noting that after demonstrating the existence of a municipal policy or custom, "a plaintiff must establish a causal connection—an affirmative link—between the policy and the deprivation of his constitutional rights" (internal quotation marks omitted)).
At this stage, of course, Plaintiff need not prove these elements, but he must still plead them sufficiently to make out a plausible claim for relief. Although there is no heightened pleading requirement for complaints alleging municipal liability under § 1983, Leatherman v. Tarrant Cty. Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 168 (1993), a complaint does not "suffice if it tenders naked assertion[s] devoid of further factual enhancement," Iqbal, 556 U.S. at 678 (alteration in original) (internal quotation marks omitted). Thus, to survive a Motion To Dismiss, Plaintiff cannot merely allege the existence of a municipal policy or custom, but "must allege facts tending to support, at least circumstantially, an inference that such a municipal policy or custom exists." Santos v. New York City, 847 F.Supp.2d 573, 575-76 (S.D.N.Y. 2012).
Plaintiff makes no attempt, anywhere in his TAC or FAC, to allege a custom, policy, or practice. Rather, Plaintiff explicitly relies on respondeat superior liability, (see FAC 42-43, 46-47 (referring to "respondent superior")), which, as is made clear above, is insufficient to state a claim, see Pembaur, 475 U.S. at 478. Accordingly, the Court dismisses Plaintiff's claims against the remaining municipal entities, Wallkill and Orange County.
The Second Circuit has recognized that there is a "narrow opening for § 1983 claims...seeking liability based not on affirmative conduct but on a government official's failure to act." Reynolds v. Giuliani, 506 F.3d 183, 191 (2d Cir. 2007). Specifically, "a government supervisor who fails to take obvious steps to prevent manifest misconduct is subject to suit under § 1983 in certain, limited circumstances." Id. at 192. Nonetheless, even when alleging a failure to supervise, Plaintiff must still:
Id. at 193; see also Poventud v. City of New York, No. 07-CV-3998, 2015 WL 1062186, at *12 (S.D.N.Y. Mar. 9, 2015) (identifying the elements as "(1) a policymaker knows `to a moral certainty' that city employees will confront a particular situation, (2) the situation either presents the employees with a difficult choice that training or supervision will make less difficult or there is a record of employees mishandling the situation, and (3) the wrong choice by the employees frequently will cause the deprivation of constitutional rights" (citing Walker v. City of New York, 974 F.2d 293, 297-98 (2d Cir. 1992)). Indeed, the supervisor's failure must be so "patently inadequate as to amount to deliberate indifference." See McKay v. Vill. of Spring Valley, No. 12-CV-3077, 2013 WL 5745923, at *5 (S.D.N.Y. Oct. 23, 2013) (internal quotation marks omitted).
As explained above, Plaintiff alleges that Hertman, the only remaining supervisory Defendant, "[did] not . . . listen to Plaintiff[']s[] request" to have his firearm returned, that he indicated, in a March 29, 2013 letter, that he would "conduct[] and investigation" into Plaintiff's "`complaint of failure to take proper Police action'" yet never did so," that he "fail[ed[] to supervise, monitor, or investigate" certain police officers, and that he "admitted that several officers violated" their duties with respect to Plaintiff on March 31, 2010. (TAC 12, 103; FAC 7-8, 15, 32, 37, 39, 47.) While the only non-conclusory aspect of these allegations arguably assert a single deficiency in Hertman's supervision—a failure to investigate Plaintiff's complaint's about police misconduct—the allegations do not establish (a) that Hertman was aware of the risks associated with his failure to supervise, or that they were obvious, because Plaintiff has only alleged that Hertman was aware of one instance of misconduct, as compared to "repeated complaints of civil rights violations," See Green v. City of Mount Vernon, ___ F. Supp. 3d ___, 2015 WL 1455701, at *30 (S.D.N.Y. Mar. 31, 2015) (internal quotation marks omitted); see also Walker v. City of New York, 53 F.Supp.3d 301, 312 (E.D.N.Y. 2014) (dismissing failure to supervise claim because the plaintiff failed to identify "any additional, similar examples of unconstitutional practices" beyond a single instance alleged in the complaint); cf. Triano v. Town of Harrison, 895 F.Supp.2d 526, 532 (S.D.N.Y. 2012) ("Normally, a custom or policy cannot be shown by pointing to a single instance of unconstitutional conduct by a mere employee of the municipality") (brackets and internal quotation marks omitted), or (b) that there was any causal relationship between the alleged failure to supervise, the only specific instance of which occurred in March 2010 or later, and the harm alleged, which occurred, at latest, in 2011. Accordingly, Plaintiff also fails to state a Monell claim against Hertman.
The Orange County Defendants and Wallkill Defendants also argue that Plaintiff has failed to plead a conspiracy. To state a § 1983 conspiracy claim, a plaintiff must plead "(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." Pangburn v. Culbertson, 200 F.3d 65, 72 (2d Cir. 1999); see also Brooks v. Cty. of Nassau, 54 F.Supp.3d 254, 258 (E.D.N.Y. 2014) (same). Similarly, to state a § 1985(3) conspiracy claim, a plaintiff must plead
See Mian v. Donaldson, Lufkin & Jenrette Sec. Corp., 7 F.3d 1085, 1087 (2d Cir. 1993); see also Brooks, 54 F. Supp. 3d at 258-59 (same). Further, a § 1985(3) conspiracy must "be motivated by some racial or perhaps otherwise class-based, invidious discriminatory animus behind the conspirators' action. Mian, 7 F.3d at 1088 (quoting Untied Bhd. of Carpenters & Joiners of America, Local 610, AFL-CIO v. Scott, 463 U.S. 825, 829 (1983)). In both cases, a plaintiff must also allege a factual foundation for a "meeting of the minds" among the Defendants. See Webb v. Goord, 340 F.3d 105, 111 (2d Cir. 2003) (dismissing conspiracy claim where the plaintiffs alleged only "in the most conclusory fashion[] that any such meeting of the minds occurred among any or all of the defendants") (2d Cir. 2003); Bermudez v. City of New York, No. 11-CV-750, 2013 WL 593791, at *8 (S.D.N.Y. Feb. 14, 2013) ("[A] plaintiff must allege facts that plausibly suggest a meeting of the minds such as that [the] defendants entered into an agreement, express or tacit, to achieve the unlawful end." (internal quotation marks omitted). Both the Orange County Defendants and the Wallkill Defendants contend that Plaintiff has not included sufficient allegations to plausibly state a conspiracy claim under §§ 1983 and 1985. The Court agrees. Mere "conclusory allegations of conspiracy are insufficient to survive a motion to dismiss." Bermudez, 2013 WL 593791, at *8 (alterations and internal quotation marks omitted); see also Ciambriello v. Cty. of Nassau, 292 F.3d 307, 325 (2d Cir. 2002) ("[C]omplaints containing only conclusory, vague, or general allegations that the defendants have engaged in a conspiracy to deprive the plaintiff of his constitutional rights are properly dismissed; diffuse and expansive allegations are insufficient, unless amplified by specific instances of misconduct." (internal quotation marks omitted)). Yet Plaintiff's claims are largely this ilk: other than using the word "conspiracy" several times in the TAC and FAC, (see, e.g., TAC 16 ("Very simply, Plaintiff[] [is] alleging/asserting that there was a conspiracy. . . ."), 137 ("Defendants conspired against Plaintiff throughout the court of the June 10, September 13, and November 10 incidents."); FAC 10 (same)), and stating the elements of a conspiracy claim, (see, e.g., FAC 7-8), Plaintiff alleges simply that Defendants "conspired to defame and setup Plaintiff" in the context of all of the misconduct alleged, (FAC 7).
The only allegations that arguably establish an element of the "meeting of the minds" are the allegations and Murphy and Maniscalco coached others, (see, e.g., FAC 10, 33, 35, 37), and Plaintiff's allegation that Lacatena told Plaintiff that the August 20, 2011 incident was "planned by . . . Murphy" and that the statements made at the guardianship hearing were "rehearse[d]" with Crain and "planned . . . together with . . . Maniscalco," (FAC 36-37). Plaintiff's allegations are flawed in several ways, however. First, Plaintiff fails to allege "at what point the meeting of the minds occurred," namely when the conspiracy came to be. Bermudez, 2013 WL 593791, at *9 (dismissing the plaintiff's conspiracy claim in part for this reason). Indeed, the bulk of Plaintiff's allegations regarding a meeting of the minds refer to the guardianship hearing, the last incident in the series of incidents alleged. Second, the mere fact of "planning" or "coaching," as the Court recognizes is common before any witness testifies at a hearing, does not plausibly establish the existence of a conspiracy among the Defendants. Accordingly, the mere allegation of joint planning or decision-making does not establish that the planning was in furtherance of a conspiracy. See id. (finding conspiracy allegations insufficient because, inter alia, the plaintiff did not allege how the Defendants "conspired together" when he alleged that they "`intentionally elected not to call'" a witness, or that the decision "was based on a conspiracy . . . rather than" prosecutorial discretion).
The Court also notes that to the extent that Plaintiff is attempting to allege a § 1986 failure-to-intervene claim, that claim is also dismissed with prejudice because it must be premised on a valid, underlying § 1985 claim. See Brown v. City of Oneonta, 221 F.3d 329, 341 (2d Cir. 1999) ("[A] § 1986 claim must be predicated on a valid § 1985 claim. . . ." (internal quotation marks omitted)).
Insofar as Plaintiff alleges a § 1983 claim against the Sholes Defendants, they argue that Plaintiff's claim must fail because neither Defendant "acted under color of state law or deprived Plaintiff of any of his constitutional rights." (Sholes Mem. 12.) See also Gerardi v. Huntington Union Free Sch. Dist., ___ F. Supp. 3d ___, 2015 WL 5062451, at *19 (E.D.N.Y. Aug. 25, 2015) ("In order to establish individual liability under § 1983, a plaintiff must show (a) that the defendant is a `person' acting `under the color of state law,' and (b) that the defendant caused the plaintiff to be deprived of a federal right." (some internal quotation marks omitted) (quoting Back v. Hastings On Hudson Union Free Sch. Dist., 365 F.3d 107, 122 (2d Cir. 2004)). The Court agrees. While "[p]rivate parties act under the color of state law if they jointly participate or conspire with a state actor to violate an individual's federal rights," Fish v. Letterman, 401 F.Supp.3d 362, 376 (S.D.N.Y. 2005) (citing Adickes, 398 U.S. at 152), the Sholes Defendants represented MPRHCC in the guardianship hearing, a private entity, "in its application to have a private guardian appointed" for Plaintiff's mother, (Sholes Mem. 12-14), and Plaintiff did not allege any facts suggesting conspiracy with state authorities, as discussed elsewhere in this Opinion. Plaintiff's only allegation in response, which is wholly conclusory, is that Sholes "want[ed] to be a[] `state private actor.'" (TAC 19). Accordingly, recognizing that the Court has already dismissed Sholes for failure to serve, the Court finds that Plaintiff has not plausibly alleged that the Sholes Defendants acted under color of law, and any § 1983 claim against the Sholes Defendants is dismissed. See Fisk, 401 F. Supp. 2d at 378 (recommending dismissal of § 1983 claim against private attorney because there were no facts presented to infer that attorney conspired with state officials to violate the plaintiff's constitutional rights).
The Wallkill Defendants allege that Plaintiff's state law claims should be dismissed because Plaintiff has not served Defendants with a notice of claim, nor has he alleged that he has done so. (See Wallkill Mem. 13.) "[I]n a federal court, state notice-of-claim statutes apply to state-law claims." Hardy v. N.Y.C. Health & Hosp. Corp., 164 F.3d 789, 793 (2d Cir. 1999) (emphasis omitted). More specifically, as a "condition precedent to commencing a tort claim against any employee of [a] municipality," a plaintiff must file a notice of claim with that municipality within ninety days from the time his cause of action accrued in order to "permit the defendant to conduct a proper investigation and assess the merits of the claim." Chamberlain v. City of White Plains, 986 F.Supp.2d 363, 396 (S.D.N.Y. 2013) (some internal quotation marks omitted) (quoting Aegis Ins. Servs., Inc. v. Port Auth., 435 F. App'x 18, 25 (2d Cir. 2011)); see also N.Y. Gen. Mun. Law §§ 50-e(1)(a), 50-i(1); Brooks, 54 F. Supp. 3d at 257-58 ("It is well settled that the failure to file a notice of claim bars state claims against individual defendants sued in their official capacities.").
"Notice of claim requirements are construed strictly by New York state courts. Failure to comply with these requirements ordinarily requires a dismissal for failure to state a cause of action." Hardy, 164 F.3d at 793-94. Plaintiff has not alleged that he filed a timely notice of claim, which § 50-i requires, see Allen v. Antal, No. 12-CV-8024, 2014 WL 2526977, at *14 (S.D.N.Y. Mar. 13, 2014), and the Wallkill Defendants likewise allege that they have never been served with one, (Wallkill Mem. 13). Accordingly, Plaintiff's state law claims against the remaining Wallkill Defendants—Wallkill, Hertman, Dewey, Farmingham, Kleveno, and Solan— are dismissed in their entirety. See Vassilev v. City of New York, No. 13-CV-5385, 2014 WL 39282783, at *3 (S.D.N.Y. Aug. 12, 2014) (dismissing the plaintiff's state law claims as time-barred because the plaintiff "did not file a timely notice of claim").
As the Court noted in its 2014 Opinion and Order, and as the Sholes Defendants argue, (see Sholes Mem. 10), conspiracy to commit a tort is not a cause of action independent of the underlying tort itself. Park Manor, 51 F. Supp. 3d at 347; Aaprea v. N.Y.S. Bd. of Elections, 960 N.Y.S.2d 255, 257 (App. Div. 2013) ("Conspiracy to commit a tort is not an independent cause of action."). Accordingly, while the Court previously construed Plaintiff's state law conspiracy claim as an abuse of process claim in the context of its discussion of Rule 8, Park Manor, 51 F. Supp. 3d at 347-48, for the sake of clarity, the Court dismisses Plaintiff's claim for conspiracy as to all Defendants.
As the Court did in its 2014 Opinion and Order, it once again construes Plaintiff's allegations of conspiracy and perjury as abuse of process claims. See Park Manor, 51 F. Supp. 3d at 347-48. The Orange County Defendants, (see Orange County Mem. 19), and Sholes Defendants, (see Sholes Mem. 11), move to dismiss the claim.
To plead a claim of abuse of process under New York law, Plaintiff "must plead . . . that there was (1) regularly issued civil process, (2) an intent to do harm without excuse or justification, (3) use of the process in a perverted manner to obtain a collateral objective, and (4) actual or special damages." Mosdos Chofetz Chaim, 14 F. Supp. 3d at 212 (brackets, ellipses, and internal quotation marks omitted); see also D'Amico v. Corr. Med. Care, Inc., 991 N.Y.S.2d 687, 692 (App. Div. 2014) (same). Plaintiff alleges that Masterson, Forman, Small, Farmingham, and Crain "gave false statements under oath at the November 10, 2011 hearing, resulting in Plaintiff losing certain rights related to his mother," (FAC 4), and that Murphy and Maniscalco "coached" these statements, (TAC 37, 40; FAC 4, 10, 33, 35, 37). Plaintiff also alleges that Murphy "planned by" the August 20, 2010 incident and" sent Crain to help," (FAC 37), that Brewster and Reyes gave false statements to police, resulting in Plaintiff's arrest on June 10, 2011, (TAC 16, 36; FAC 4, 18), and that Masterson, Brewster, Small, and Maniscalco gave false statements to Spano, resulting in Plaintiff's arrest on September 13, 2011, (TAC 17, 18, 25, 26; FAC 18, 20-21, 23, 35, 44).
Plaintiff alleges generally that Defendants' collective motivation was "to prosecute [P]laintiff[] with malice [and] intent to harm." (FAC 50.) More specifically, Plaintiff alleges that Crain and Farmingham made "false statements with malice," (FAC 10), that Murphy coached Crain with a "had a malicious [intent]" so they could "get what they want[ed]," and that Maniscalco also "witness[ed]/coach[ed] his nursing staff, as well as Crain, "to intimidate, harass[], and coerc[e]" Plaintiff, (TAC 33, 40-41; FAC 37.) Plaintiff also appears to suggest that the false statements were intended to "make questionable" Plaintiff's other claims and prevent plaintiff from "proceed[ing] to federal court[]," and that some of Defendants' conduct may also been motivated by assistance he provided to Borgmann small claims court. (Id. at 40; TAC 8, 25.)
As the Court previously stated, "a malicious motive alone does not give rise to a cause of action for abuse of process" under New York law. Savino v. City of New York, 331 F.3d 63, 77 (2d Cir. 2003) (brackets, ellipses, and internal quotation marks omitted) (quoting Curiano v. Suozzi, 63 N.Y.2d 113, 480 N.Y.S.2d 466 (App. Div. 1984)); see also Allen v. Antal, No. 12-CV-8024, 2014 WL 2526977, at *16 (S.D.N.Y. Mar. 13, 1984) ("Neither retaliation nor a malicious motive . . . is a sufficient collateral objective to satisfy that element of a cognizable malicious abuse of process claim." (internal quotation marks omitted)); Shakima O. v. Westchester Cty., No. 12-CV-9468, 2014 WL 521608, at *3 (S.D.N.Y. Feb. 10, 2014) ("The allegation that defendants' actions arose out of personal animosity towards plaintiffs is not sufficient to state a claim for abuse of process, because personal animosity is a collateral motive, not a collateral purpose." (brackets and internal quotation marks omitted)). Moreover, to the extent the Third Amended Complaint asserts that Crain had a collateral objective to cryptically get what she wanted, or that the Defendants were otherwise motivated to prevent Plaintiff from getting to federal court or to retaliate for Plaintiff's small claims court assistance, the allegations are conclusory and the Court need not consider them in evaluating Defendants' Motion. See Burroughs v. Dorn, No. 13-CV-3609, 2013 WL 3820673, at *6 (E.D.N.Y. July 22, 2013) (dismissing an abuse-of-process claim where the plaintiff "offer[ed] nothing more than conclusory statements as to [the] allegation that [a defendant] intended to do harm without justification"); Jovanovic v. City of New York, No. 04-CV-8437, 2006 WL 2411541, at *12 (S.D.N.Y. Aug. 17, 2006) (dismissing an abuse-of-process claim where the plaintiff "allege[d] a collateral objective only in the most conclusory fashion, failing to provide any basis for assessing [a defendant's] motive for the [use of process]"), reconsideration granted in part on other grounds, 2008 WL 355515 (S.D.N.Y. Feb. 7, 2008). Therefore, because Plaintiff fails to allege a sufficient collateral objective, (see Orange County Mem. 20; Sholes Mem. 12), the Court dismisses Plaintiff's abuse of process claim.
Of note, the only specific allegations that Plaintiff makes against Murphy are that he "planned" the August 20, 2011 incident and "coached Crain to give false statements" at the guardianship proceeding, and the only specific allegations against Crain are that she was "involved" in Plaintiff's arrest on August 20, 2011 and that she "gave false statements" at the guardianship hearing, (TAC 37; FAC 4, 10, 35, 37.)
Based on Plaintiff's remaining allegations, Plaintiff cannot maintain any additional claims because the allegations at issue are either insufficient to state a claim or fail to provide fair notice of a claim.
With regard to the March 30-31, 2010 incident, Plaintiff's only specific allegations pertain to Farmingham, Dewey and Hertman. Given the Court has already dismissed Plaintiff's § 1983 claims for false arrest, false imprisonment, and malicious prosecution arising out of that incident (except for Plaintiff's Fourth Amendment search claim), Plaintiff's § 1985 and § 1986 claims to the extent he intends to allege them, and all state law claims as to all Wallkill Defendants, Plaintiff cannot state any further claims as to Farmingham and Dewey March 30-31 incident.
With regard to the August 20, 2010 incident, the only unaddressed allegations are those pertaining to Farmingham's conduct at the hospital. As explained above, when Plaintiff asked Farmingham to use the bathroom, Farmingham handcuffed Plaintiff to his bed and refused to allow a nurse to provide Plaintiff a plastic bag to relieve himself, causing Plaintiff to urinate in his pants, and that Farmingham incorrectly told Plaintiff that Plaintiff's mother was not in the same hospital. (See TAC 70; FAC 33-34.) Because the Wallkill Defendants have conceded the viability of false arrest, unlawful search, and excessive force claims against Farmingham, to the extent Plaintiff believes these allegations are relevant to those claims—the sole federal claims from Plaintiff's TAC and SAC that remain viable as to this incident—Plaintiff may seek discovery to that effect. However, because the Court has dismissed all state claims against the Wallkill Defendants for failure to provide a Notice of Claim, they cannot make out a new, separate state cause of action. Accordingly, Plaintiff cannot state any new claims stemming from the August 20, 2010 incident.
With regard to the June 10, 2011 incident, the only specific allegations about Defendants who have not already been dismissed from the case are against Du Bois, Brewster, Reyes, Gulick, and Maniscalco. First, given the Court has already dismissed Plaintiff's § 1983 claims arising out of that incident, all of Plaintiff's § 1985 and § 1986 claims, and all state law claims as to all Wallkill Defendants, Plaintiff cannot state any further claims against Gulick. Second, because the Court has already dismissed Plaintiff's abuse of process claim, Plaintiff cannot state any further claim against Brewster or Reyes because their only alleged involvement in the incident was making false statements to police. (See TAC 16, 36; FAC 4, 18.)
With regard to the September 13, 2011 incident, the only specific allegations about Defendants who have not already been dismissed are against Masterson, Brewster, Small, Solan, and Farmingham. Given the Court has already dismissed Plaintiff's § 1983 claims arising out of that incident, has dismissed all of Plaintiff's § 1985 and § 1986 claims, and has dismissed all state law claims as to all Wallkill Defendants, Plaintiff cannot state any further claims against Solan and Farmingham. Moreover, the only allegations against Brewster, Small, and Masterson are that that they provided false statements—or in Masterson's case, a false call log—to Solan. Given the Court already dismissed Plaintiff's abuse of process claim, Plaintiff cannot state any further claim as to the Brewster, Small, or Masterson arising out of that incident either. Accordingly, Plaintiff cannot state any further claims based on the September 13 incident.
With regard to the November 10, 2011 incident, the only specific allegations against Defendants who have not already been dismissed or deemed immune from claims stemming from this incident are Maniscalco, Masterson, Forman, Green, Small, and Sholes & Miller. Given that the Court has dismissed Plaintiff's abuse of process and failure to intercede claims (except Plaintiff's claims for failure to intercede against Kleveno stemming from the August 20 incident), Plaintiff cannot state any claims stemming from the November 10 incident.
In light of the foregoing, the Court holds that Defendants Motions are granted in part and denied in part. Plaintiffs claims against the MPHRCC Defendants, New York State, Mannix, the Orange County Defendants, and the Sholes Defendants are dismissed in their entirety, with prejudice. Plaintiffs claims against Farmingham and Kleveno are dismissed except for Plaintiffs§ 1983 for false arrest, false imprisonment, malicious prosecution, and failure to intercede claims stemming from the August 20, 20 I 0 incident. Because Plaintiff has had several chances to amend his complaint, the Court makes clear that Plaintiff may not amend his Complaint at this stage without prior leave of the Court.
The Clerk of the Court is directed to terminate the pending motions. (Dkt. Nos. 178, 183, 188, 191.)
SO ORDERED.
Additionally, while Plaintiff does not appear to have filed, or pled that he filed, a Notice of Claim as to any other Defendant, the Court declines to dismiss those claims on this ground sua sponte in light of Plaintiff's pro se status.
The Court also notes that, because it has dismissed all claims against the individual MPHRCC Defendants, Plaintiff also has no basis for any claim against the MPHRCC itself, either. Any claims against MPHRCC are, accordingly, also dismissed.