Opinion
INDEX NO. 150522/2016
09-22-2018
JAMMAL CLARK, Plaintiff, v. POLICE OFFICER MONSERRATE BADILLO #5090, POLICE SERGEANT MARTIN MCBRIDE #3081, POLICE OFFICER MICHAEL LECLAIR #5045, POLICE OFFICER BILLY ACOSTA #31 and POLICE OFFICER JACK PALIMENI #642, Defendants.
NYSCEF DOC. NO. 37 PRESENT: HON. VERNA L. SAUNDERS , J.S.C. Justice MOTION SEQ. NO. 002
DECISION AND ORDER
The following e-filed documents, listed by NYSCEF document number (Motion 002) 27, 28, 29, 30, 31, 32, 33, 34, 35, 36 were read on this motion to/for DISMISS .
Plaintiff, Jammal Clark, commenced this action asserting a claim of excessive force against the captioned defendants. Plaintiff claimed that on the morning of April 17, 2014, he was sleeping in his bedroom at his mother's apartment in the Washington Heights section of Manhattan when half dozen or so plain clothed officers came in and grabbed him by the arm, ripped him out of bed, and threw him on the ground like a "ragdoll." Plaintiff contends, among other things, that several of the officers, including defendant officers Badillo, Leclair, Acosta, and Palimeni, began punching him in the ribs and back, grabbing and twisting his arms and legs, and choking him.
The City of New York ("City") on behalf of defendants now seeks to dismiss plaintiff's complaint in its entirety pursuant to CPLR 3211(a)(7) on the ground that plaintiff failed to sufficiently plead its federal excessive force claim. The City asserts that the complaint does not specifically state which officers were responsible for which conduct, but instead improperly relies on vague terms and collective actions to describe the acts and individuals in question, e.g, "one of the officers," "defendant officers," "an officer," and "defendants" to describe the alleged perpetrators.
After a review of the papers, the Court finds the complaint has sufficiently alleged a cause of action for excessive force. "In order to succeed on a claim for damages under 42 U.S.C. § 1983 for violation of his constitutional rights, the plaintiff must show by a preponderance of the evidence that the defendant was personally involved in the constitutional violation." (Fischl v Armitage, 128 F3d 50 [2d Cir 1997].) A defendant's personal involvement can be inferred from evidence showing the defendant was in the vicinity of the alleged incident and took no action to stop it. (Miller v. Smith, 220 F3d 491 [7th Cir 2000]; Jeffreys v Rossi, 275 F Supp 2d 463, [SD NY2003].)
Here, all the named defendants were alleged to be in the immediate vicinity of the area where the alleged force took place. A fact which is beyond dispute. Moreover, plaintiff avers that all the named defendants, with the exception of Sergeant Martin McBride, contributed in the acts of force by punching him or twisting his arm. The fact that the complaint does not allocate each alleged wrongdoing to a specific defendant is not sufficient in this case to warrant dismissal. It is not reasonable to assume that in the nature of the assaultive conduct alleged here that a plaintiff is able to establish specificity as to action of each individual in the group when all are present, participating, and here in plain clothes. To hold otherwise would create a pleading burden beyond that which the statute and case law require. As such, the City's motion to dismiss is denied. According it is hereby,
ORDERED that the City of New York's motion for summary judgment is denied; and it is further
ORDERED that the parties are directed to appear for an early settlement conference on November 13, 2018 at 2:00 PM, Part DCM, Room 103, 80 Centre Street, New York, N.Y. September 22 , 2018
/s/ _________
HON. VERNA L. SAUNDERS, JSC