Opinion
6:18-CV-06700 EAW
2020-04-06
Robert FORBES, Plaintiff, v. CITY OF ROCHESTER, et al.Plaintiff alleges that Ms. Black had not
David S. Stern, Elliott, Stern & Calabrese, LLP, Rochester, NY, for Plaintiff.
David S. Stern, Elliott, Stern & Calabrese, LLP, Rochester, NY, for Plaintiff.
DECISION AND ORDER
ELIZABETH A. WOLFORD, United States District Judge
INTRODUCTION
Pro se plaintiff Robert Forbes ("Plaintiff") is a former Monroe County Jail inmate. Plaintiff filed a civil rights action asserting claims under 42 U.S.C. § 1983. (Dkt. 1). The Court previously granted Plaintiff's request to proceed in forma pauperis and dismissed Plaintiff's claims pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A. (Dkt. 7). Plaintiff was granted leave to replead his claims.
Plaintiff has filed an Amended Complaint, in which he pleads federal and state claims related to a traffic stop and his connected arrest in the City of Rochester. (Dkt. 8). Pursuant to §§ 1915(e)(2)(B) and 1915A, the Court dismisses Plaintiff's claims of negligence as asserted in the seventh cause of action, all claims under the New York State Constitution, prima facie tort, and punitive damages, and orders that Defendants Rochester Police Department ("RPD") and Monroe County Sheriff be terminated from the action. Further, the Court directs service of the Amended Complaint on the remaining Defendants for the reasons discussed below.
BACKGROUND
The following facts are taken from Plaintiff's Amended Complaint and, as required at this stage of the proceedings, are accepted as true. On June 10, 2017, in Rochester, New York, Plaintiff was picked up in a vehicle driven by Latoya Black, the mother of Plaintiff's two-year-old child who was sitting in the back seat. (Dkt. 8 at ¶¶ 21, 24). Plaintiff had just exited Salvatore's Pizza on Electric Avenue, crossed the street, and climbed into Ms. Black's jeep, which was pulled over in front of a convenience store located across the street from Salvatore's. (Id. at ¶ 23).
As Ms. Black proceeded down Electric Avenue, taking right turns on Chaumont Street and Clay Avenue, and then turning right on Dewey Avenue in the direction of Plaintiff's home, she noticed an RPD patrol car following her. (Id. at ¶ 26). Ms. Black traveled about three blocks before she was stopped by two RPD officers, Defendants Bongiovanni ("Bongiovanni") and Officer DiMauro ("DiMauro"). (Id. at ¶ 27). Plaintiff alleges that Ms. Black had not violated the law or committed any traffic infractions or equipment violations. (Id. at ¶¶ 28-29). When Bongiovanni and DiMauro approached the jeep, Bongiovanni accused Plaintiff of engaging in a drug transaction with Ms. Black, who they did not believe to be previously acquainted with Plaintiff. (Id. at ¶ 34). After repeatedly hesitating to explain why he had stopped the jeep, Bongiovanni finally gave "tinted windows" as the reason for pulling the vehicle over. (Id. at ¶ 36). However, Ms. Black was never charged with an equipment violation, or any other traffic infraction. (Id. at ¶¶ 39-40). Bongiovanni stated that he and his partner wanted to check Ms. Black and Plaintiff for warrants "and if everything was clear, [they] could go." (Id. at ¶ 43).
When Bongiovanni and DiMauro were informed by the police dispatcher that Plaintiff was on felony parole for a weapons charge, they started "whistling and hooting and ... gave [each other] a high-five." (Id. ). Bongiovanni and DiMauro then conspired to "invent a pretense authorizing [a] search of the vehicle and said if they couldn't convince Ms. Black to consent to a search, they needed to create a way to ruffle Ms. Black's and Plaintiff's feathers so they could justify a search of the vehicle." (Id. at ¶ 46).
Ms. Black and Plaintiff refused to consent. (Id. at ¶ 48). "Bongiovanni then insisted Plaintiff remove himself from the vehicle," reached into the car, and unlocked Plaintiff's door. (Id. at ¶¶ 48-54). When Plaintiff relocked the door, Bongiovanni "unsnapped the holster to his service weapon," and both Plaintiff and his daughter began crying. (Id. at ¶¶ 55-56). Bongiovanni unlocked the door again and stated that he "was not going to tell Plaintiff one more time to get out of the vehicle." (Id. at ¶ 57). Plaintiff exited the vehicle, and DiMauro held Plaintiff's hands behind his back as "Bongiovanni searched Plaintiff from head to toe." (Id. at ¶ 59). DiMauro "began lifting Plaintiff's arms behind his back[,] placing Plaintiff in a very uncomfortable position[,] causing him to bend his torso forward to relieve pressure on his shoulders." (Id. at ¶ 61). Bongiovanni "who now was searching Plaintiff for the third of fourth time began shoving Plaintiff's chest back causing [him] to suffer more shoulder pain." (Id. ). "Bongiovanni then began reaching ... into Plaintiff's underwear attempting to search around Plaintiff's genitalia," while DiMauro pulled "Plaintiff's arms uncomfortably higher behind his back." (Id. at ¶ 63).
Plaintiff broke away from the officers and ran down Albermarle Street. (Id. at ¶ 64). Bongiovanni and DiMauro chased Plaintiff, tackled him to the ground, and arrested him. (Id. at ¶ 65). After Plaintiff was handcuffed and arrested, Defendant Officer Christina Moorhouse ("Moorhouse") "arrived at the scene and allegedly found four glassine vials containing marijuana behind the fences at 259 Albermarle Street." (Id. at ¶ 67). "Plaintiff was then taken to [the] Aquinas Institute" where Bongiovanni searched Plaintiff again several times. (Id. at ¶ 69). Bongiovanni then "began reaching up Plaintiff's right pant leg. Plaintiff asked what [he] was doing and Bongiovanni responded with a sneer and laughter." (Id. at ¶ 70).
Plaintiff was taken to the Monroe County Jail for booking. (Id. at ¶ 71). Defendant Officer Christopher M. Shadder ("Shadder") directed Plaintiff to remove his shoes. (Id. at ¶ 75). "[A]s Plaintiff removed his right shoe, a plastic clear vial with a white lid fell out of [his] right pant leg and hit the floor." (Id. at ¶ 75). Plaintiff believed that Bongiovanni had planted the vial of marijuana when he had searched Plaintiff at the Aquinas Institute earlier that day. (Id. at ¶ 78). Plaintiff was charged with obstructing governmental administration in the second degree, unlawful possession of marijuana, promoting prison contraband in the second degree, and a parole violation that carried a possible 36-month prison sentence. (Id . at ¶ 84). Plaintiff alleges that Bongiovanni and DiMauro "conspired" with Defendants Shadder, Moorhouse, and "John Does" to pursue "false charges" and "maliciously prosecute" him, and that Bongiovanni lied in a criminal complaint sworn to on June 10, 2017. (Id . at ¶¶ 86, 87). The criminal charges against Plaintiff were dismissed by Judge Maija Dixon on October 23, 2017. (Id. at ¶ 104).
As a result of Defendants' actions during his arrest, "Plaintiff became sick, sore, lame and disabled and suffered and is still suffering great physical and mental pain and discomfort." (Id . at ¶ 162). Plaintiff also alleges that all of his injuries are of a permanent nature. (Id. ).
DISCUSSION
I. Legal Standard
Section 1915 "provide[s] an efficient means by which a court can screen for and dismiss legally insufficient claims." Abbas v. Dixon , 480 F.3d 636, 639 (2d Cir. 2007) (citing Shakur v. Selsky , 391 F.3d 106, 112 (2d Cir. 2004) ). The court shall dismiss a complaint in a civil action in which a prisoner seeks redress from a governmental entity, or an officer or employee of a governmental entity, if the court determines that the action (1) fails to state a claim upon which relief may be granted or (2) seeks monetary relief against a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1)-(2). Generally, the court will afford a pro se plaintiff an opportunity to amend or to be heard prior to dismissal "unless the court can rule out any possibility, however unlikely it might be, that an amended complaint would succeed in stating a claim." Abbas , 480 F.3d at 639 (quotation omitted). Nevertheless, leave to amend pleadings may be denied when any amendment would be futile. See Cuoco v. Moritsugu , 222 F.3d 99, 112 (2d Cir. 2000).
In evaluating the Complaint, the Court must accept all factual allegations as true and must draw all inferences in Plaintiff's favor. See Larkin v. Savage , 318 F.3d 138, 139 (2d Cir. 2003) (per curiam); King v. Simpson , 189 F.3d 284, 287 (2d Cir. 1999). "Specific facts are not necessary," and a plaintiff "need only ‘give the defendant fair notice of what the ... claim is and the grounds upon which it rests.’ " Erickson v. Pardus , 551 U.S. 89, 93, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (internal quotation marks and citation omitted)); see also Boykin v. KeyCorp , 521 F.3d 202, 213 (2d Cir. 2008) (discussing pleading standard in pro se cases after Twombly : "even after Twombly , dismissal of a pro se claim as insufficiently pleaded is appropriate only in the most unsustainable of cases"). Although "a court is obliged to construe [pro se ] pleadings liberally, particularly when they allege civil rights violations," McEachin v. McGuinnis , 357 F.3d 197, 200 (2d Cir. 2004), even pleadings submitted pro se must meet the notice requirements of Rule 8 of the Federal Rules of Civil Procedure, see Wynder v. McMahon , 360 F.3d 73 (2d Cir. 2004).
"To state a valid claim under 42 U.S.C. § 1983, the plaintiff must allege that the challenged conduct (1) was attributable to a person acting under color of state law, and (2) deprived the plaintiff of a right, privilege, or immunity secured by the Constitution or laws of the United States." Whalen v. County of Fulton , 126 F.3d 400, 405 (2d Cir. 1997) (citing Eagleston v. Guido , 41 F.3d 865, 875-76 (2d Cir. 1994) ). " Section 1983 itself creates no substantive rights; it provides only a procedure for redress for the deprivation of rights established elsewhere." Sykes v. James , 13 F.3d 515, 519 (2d Cir. 1993) (citing City of Oklahoma City v. Tuttle , 471 U.S. 808, 816, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985) ).
To establish liability against an official under § 1983, a plaintiff must allege that individual's personal involvement in the alleged constitutional violation; it is not enough to assert that the defendant is a link in the chain of command. See McKenna v. Wright , 386 F.3d 432, 437 (2d Cir. 2004) ; Colon v. Coughlin , 58 F.3d 865, 873 (2d Cir. 1995). Moreover, the theory of respondeat superior is not available in a § 1983 action. See Hernandez v. Keane , 341 F.3d 137, 144 (2d Cir. 2003). A supervisory official can be found to have been personally involved in an alleged constitutional violation in one of several ways:
(1) the defendant participated directly in the alleged constitutional violation, (2) the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong, (3) the defendant created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom, (4) the defendant was grossly negligent in supervising subordinates who committed the wrongful acts, or (5) the defendant exhibited deliberate indifference to the rights of inmates by failing to act on information indicating that unconstitutional acts were occurring.
Colon , 58 F.3d at 873 (citing Wright v. Smith , 21 F.3d 496, 501 (2d Cir. 1994) ).
II. Plaintiff's Claims
A. § 1983 Excessive Force
"The Fourth Amendment's protection against unreasonable seizures prohibits the use of excessive force by police officers in arresting suspects. To establish a Fourth Amendment excessive force claim, the Plaintiff must show that the force used by the officer was ‘objectively unreasonable.’ " Correa v. McLeod , No. 3:17CV1059(VLB), 2017 WL 2962884, at *3 (D. Conn. July 11, 2017). Determining whether the force is "reasonable" under the Fourth Amendment requires a careful balancing of "the nature and quality of the intrusion on the individual's Fourth Amendment interests" against the governmental interests at stake. Graham v. Connor , 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) (citing Tennessee v. Garner , 471 U.S. 1, 8, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985) ). A court shall consider "the facts and circumstances of each particular case, including the severity of the crime at issue, whether the [arrestee] poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight." Id.
Simply put, " ‘[n]ot every push or shove’ amounts to a Fourth Amendment violation. Indeed, a ‘de minimis use of force will rarely suffice to state a Constitutional claim.’ " Acosta v. City of New York , No. 11 Civ. 856(KBF), 2012 WL 1506954, at *10 (S.D.N.Y. Apr. 26, 2012) (citing Romano v. Howarth , 998 F.2d 101, 105 (2d Cir. 2005) ). Moreover, a plaintiff must allege that he sustained an injury. Wims v. N.Y.C. Police Dep't , No. 10 Civ. 6128, 2011 WL 2946369, at *4 (S.D.N.Y. July 20, 2011). "However, an individual does not need to sustain a severe injury to maintain a claim." Id. (citing Robison v. Via, 821 F.2d 913, 924 (2d Cir. 1987) ("If the force used was unreasonable and excessive, the plaintiff may recover even if the injuries inflicted were not permanent or severe.")). Plaintiff alleges that during his arrest, DiMauro lifted "Plaintiff's arms behind his back[,] placing Plaintiff in a very uncomfortable position[,] causing him to bend his torso forward to relieve pressure on his shoulders." (Dkt. 8 at ¶ 61). Bongiovanni "began shoving Plaintiff's chest back causing [him] to suffer more shoulder pain." (Id. ). "Bongiovanni then began reaching ... into Plaintiff's underwear attempting to search around Plaintiff's genitalia," while DiMauro pulled "Plaintiff's arms uncomfortably higher behind his back." (Id. at ¶ 63). Plaintiff alleges that as a result of such actions, he "became sick, sore, lame and disabled and suffered and is still suffering great physical and mental pain and discomfort." (Id . at ¶ 162). Accepting Plaintiff's allegations as true, the Court concludes Plaintiff's excessive force claim against Bongiovanni and DiMauro may proceed to service.
In allowing claims to proceed and directing Defendants to respond, the Court expresses no opinion as to whether Plaintiff's claims can withstand a properly filed motion to dismiss or for summary judgment.
B. § 1983 False Imprisonment
"A section 1983 claim for false imprisonment is anchored in the Fourth Amendment right ‘to be free from unreasonable seizures.’ " Iverson v. Annucci , No. 18-CV-0886-LJV, 2020 WL 1083152, at *6 (W.D.N.Y. Feb. 28, 2020) (citing Russo v. City of Bridgeport , 479 F.3d 196, 203 (2d Cir. 2007) ). "In analyzing false imprisonment claims under Section 1983, the Second Circuit has generally looked to the law of the state in which the arrest occurred." Aragon v. New York , No. 14-CV-9797 (ER), 2017 WL 2703562, at *5 (S.D.N.Y. June 22, 2017) (citing Jaegly v. Couch , 439 F.3d 149, 151 (2d Cir. 2006) ).
To state a claim for false imprisonment in New York, "a plaintiff must allege: (1) that the defendant intentionally confined plaintiff; (2) that plaintiff was conscious of the confinement and did not consent to it, and (3) that the confinement was not otherwise privileged." Id. (citing Jocks v. Tavernier , 316 F.3d 128, 134-35 (2d Cir. 2003) ). "[I]t is well established that probable cause to arrest is a complete defense to a claim of false arrest or false imprisonment." Levantino v. N.Y. State Police , 56 F.Supp. 3d 191, 200 (E.D.N.Y. 2014) (citing Betts v. Shearman , 751 F.3d 78, 82 (2d Cir. 2014) ). "In general, probable cause to arrest exists when the officers have 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." Weyant v. Okst , 101 F.3d 845, 852 (2d Cir. 1996).
Here, Plaintiff alleges that he was arrested and detained at the Rochester Police Station without probable cause. (Id. at ¶¶ 119, 121-23). Accepting Plaintiff's allegations as true, the Court concludes Plaintiff's false imprisonment claim may proceed to service.
C. § 1983 Unreasonable Search and Seizure
Plaintiff's Amended Complaint alleges a § 1983 excessive force claim, which contains allegations of an unreasonable search and seizure. (See Dkt. 8 at ¶ 110). As such, the Court construes Plaintiff's Amended Complaint as also alleging an unreasonable search and seizure claim.
The Fourth Amendment protects the rights of the people "to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV. "A person is seized by the police and thus entitled to challenge the government's action under the Fourth Amendment when the officer, ‘by means of physical force or show of authority,’ terminates or restrains his freedom of movement, ‘through means intentionally applied.’ " Brendlin v. California , 551 U.S. 249, 254, 127 S.Ct. 2400, 168 L.Ed.2d 132 (2007) (citations omitted). "The law is settled that in Fourth Amendment terms a traffic stop entails a seizure of the driver ‘even though the purpose of the stop is limited and the resulting detention quite brief.’ " Id. at 255, 127 S.Ct. 2400 (quoting Delaware v. Prouse , 440 U.S. 648, 653, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979) ); see Whren v. United States , 517 U.S. 806, 809-10, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996) ("Temporary detention of individuals during the stop of an automobile by the police, even if only for a brief period and for a limited purpose, constitutes a ‘seizure’ of ‘persons’ within the meaning of [the Fourth Amendment]....").
Because it constitutes a seizure for Fourth Amendment purposes, a traffic stop "must satisfy the Fourth Amendment's reasonableness limitation, which ‘requires that an officer making a traffic stop have probable cause or reasonable suspicion that the person stopped has committed a traffic violation or is otherwise engaged in or about to be engaged in criminal activity.’ " United States v. Gomez , 877 F.3d 76, 86 (2d Cir. 2017) (citation omitted). A law enforcement officer may initiate a "stop" based upon "a reasonable suspicion of criminal activity supported by specific and articulable facts." United States v. Foreste , 780 F.3d 518, 523 (2d Cir. 2015). Reasonable suspicion is "considerably less than proof of wrongdoing by a preponderance of the evidence," United States v. Sokolow , 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989), and must be "supported by articulable facts that criminal activity may be afoot," and it cannot be based on "inchoate suspicion or mere hunch," United States v. Freeman , 735 F.3d 92, 96 (2d Cir. 2013).
Plaintiff alleges that prior to being pulled over, Ms. Black had not violated the law or committed any traffic infractions or equipment violations. (Dkt. 8 at ¶¶ 28-29). Bongiovanni accused Plaintiff of engaging in a drug transaction with Ms. Black, hesitated to explain why he had stopped the jeep, and finally gave "tinted windows" as the reason. (Id. at ¶¶ 34, 36). Plaintiff and Ms. Black refused to consent to a search of the vehicle. (Id. at ¶ 48). Plaintiff exited the vehicle only upon Bongiovanni "unsnapp[ing] the holster to his service weapon," unlocking the vehicle door, and telling Plaintiff that he "was not going to tell Plaintiff one more time to get out of the vehicle." (Id. at ¶¶ 55-57). Plaintiff attempted to run away, but was eventually tackled and arrested by the officers. (Id. at ¶¶ 64-65). Accepting Plaintiff's allegations as true, the Court concludes Plaintiff's unreasonable search and seizure claim against Bongiovanni and DiMauro may proceed to service.
D. Monell Liability
Municipalities cannot be held vicariously liable under § 1983 for the constitutional torts of their employees, nor can they be subject to liability under § 1983 pursuant to a theory of respondeat superior . See Collins v. City of Harker Heights, Tex. , 503 U.S. 115, 122, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992) ; Canton v. Harris , 489 U.S. 378, 385, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989). Where a plaintiff seeks to impose liability on a municipality, he must allege that the constitutional violation was caused by "action pursuant to official municipal policy." Connick v. Thompson , 563 U.S. 51, 60, 131 S.Ct. 1350, 179 L.Ed.2d 417 (2011) (quoting Monell v. Dep't of Soc. Servs. of City of N.Y. , 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) ).
Plaintiff alleges, among other things, that the actions of Defendant officers "were carried out pursuant to overlapping police policies and practices of the City which were in existence at the time of the conduct alleged herein and were engaged in with the full knowledge, consent, and cooperation and under the supervisory authority of the Defendant, City, and its agency the RPD." (Dkt. 8 at ¶ 127). For purposes of initial review, Plaintiff has plausibly alleged Monell liability as to Defendants City of Rochester and Monroe County.
However, the Court concludes that the claims against RPD and the Monroe County Sheriff must be dismissed. Under New York law, the RPD is merely an arm of the City of Rochester and does not have a legal identity separate and apart from the City. See Loria v. Town of Irondequoit , 775 F. Supp. 599, 606 (W.D.N.Y. 1990) (holding dismissal of defendant police department proper because "departments like the defendant, which are merely administrative arms of a municipal corporation, do not have a legal identity separate and apart from the town").
Similarly, the Monroe County Sheriff is merely an arm of Monroe County and does not have a legal identity separate and apart from the City. See Franklin v. Chenango Cnty. Sheriff's Office , No. 9:18-CV-0896 (LEK/ATB), 2018 WL 4344942, at *3 (N.D.N.Y. Sept. 11, 2018) ("[B]ecause the Chenango County Sheriff's Office is an administrative arm of Chenango County, without a legal identity separate and apart from the County, it lacks the capacity to be sued." (internal quotation marks, alterations, and citation omitted)). Accordingly, the RPD and Monroe County Sheriff are dismissed from the action, and Plaintiff's claims against the City of Rochester and Monroe County may proceed to service.
E. New York State Law Claims
Plaintiff asserts claims pursuant to the New York State Constitution, in addition to common law tort claims of assault, battery, false arrest and imprisonment, negligence, negligent hiring, intentional infliction of emotional distress (IIED), prima facie tort, and malicious prosecution. (See Dkt. 8). For the reasons discussed below, Plaintiff's claims of false arrest and false imprisonment, assault, battery, negligent hiring, IIED, and malicious prosecution may proceed to service, and Plaintiff's remaining state law claims are dismissed.
1. Supplemental Jurisdiction
A district court has discretion to hear state law claims where the relationship between a plaintiff's federal and state claims present "but one constitutional case" and "derive from a common nucleus of operative fact." United Mine Workers v. Gibbs , 383 U.S. 715, 725, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966). If "plaintiff's claims are such that he would ordinarily be expected to try them all in one judicial proceeding," the court will generally exercise supplemental jurisdiction if "judicial economy, [and] convenience and fairness to litigants" weigh in favor of hearing the state claims at the same time. Id. at 726, 86 S.Ct. 1130 ; see also 28 U.S.C. § 1367(a) ("[I]n any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution.").
Here, Plaintiff's claims of false arrest and false imprisonment, assault, battery, negligent hiring, IIED, and malicious prosecution derive from the same operative facts as his federal claims and thus shall proceed to service.
2. New York State Constitution
Plaintiff asserts the following claims pursuant to the New York State Constitution: freedom of expression and association; protection against unlawful seizure; due process; equal protection; and protection from cruel and unusual punishment. (Dkt. 8 at ¶ 145). However, Plaintiff's claims must be dismissed as courts in this Circuit "have consistently held that there is no private right of action under the New York State Constitution where, as here, remedies are available under [ Section] 1983." Talarico v. Port Authority of New York & New Jersey , 367 F. Supp. 3d 161, 171 (S.D.N.Y. 2019) (citations omitted).
"Accordingly, where a complaint alleges no theories of liability that are cognizable exclusively under the New York State Constitution, any claims brought under the state constitution are ordinarily dismissed." Id. ; see also Gounden v. City of New York , No. 14 Civ. 7411(BMC), 2015 WL 5793625, at *5 n.3 (E.D.N.Y. Oct. 2, 2015) ("It is a common view among District Courts in this Circuit, however, that there is no right of action under the New York State Constitution for claims that can be brought under § 1983." (citation omitted)). Consequently, because the Amended Complaint "alleges no theories of liability that are cognizable exclusively under the New York State Constitution, [Plaintiff's] claims brought under the New York State Constitution are ... dismissed." Talarico , 367 F. Supp. 3d at 172.
3. Negligence
Plaintiff alleges a negligence claim against Bongiovanni and DiMauro because they "knew or should have known they placed Plaintiff in certain risk of injury by their [wanton] violent actions and in doing so failed to conduct themselves as reasonable persons under the circumstances" when they "without justification ... proceeded to restrain Plaintiff ... by tightly handcuffing his wrists and when taking him to prison based upon false pretenses." (Dkt. 8 at ¶¶ 158, 160). Based on this same intentional conduct, Plaintiff also alleges claims of excessive force, assault, and battery. Accordingly, Plaintiff's negligence claim must be dismissed.
"When a plaintiff brings excessive force and assault claims which are premised upon a defendant's allegedly intentional conduct, a negligence claim with respect to the same conduct will not lie." Naccarato v. Scarselli , 124 F. Supp. 2d 36, 45 (N.D.N.Y. 2000). "The question is not of alternate pleadings arising out of the same conduct, but of a single set of facts which if proved can only provide the basis for one or more intentional torts (which themselves may be alleged alternatively)." Vilkhu v. City of New York , No. 06-CV-2095 (CPS)(JO), 2008 WL 1991099, at *9 (E.D.N.Y. May 5, 2008) ; see also Bah v. City of New York , No. 13 Civ. 6690(PKC)(KNF), 2014 WL 1760063, at *13 (S.D.N.Y. May 1, 2014) ("Though litigants may allege alternate, or inconsistent, claims in a pleading, when the conduct alleged, if true, may only give rise to liability for an intentional act, a claim of negligence may be dismissed." (citing Fed. R. Civ. P. 8(d) )).
Accordingly, Plaintiff's negligence claim against Bongiovanni and DiMauro as alleged in the seventh cause of action, premised on the same intentional conduct underlying his excessive force, assault, and battery claims, must be dismissed. See Burroughs v. Mitchell , 325 F. Supp. 3d 249, 284 (N.D.N.Y. 2018) (dismissing negligence claim pursuant to §§ 1915(e), 1915A, where plaintiff alleged excessive force and assault claims premised on same intentional conduct conduct); Naccarato , 124 F. Supp. 2d at 45 ("Since plaintiff's claims against the defendants are premised on their intentional conduct, his claim for negligent infliction of emotional distress must also be dismissed.").
4. Prima Facie Tort
Plaintiff alleges a prima facie tort based on Defendants' failure "to adhere to proper police protocol." (Dkt. 8 at ¶¶ 179-81). To assert a prima facie tort, a plaintiff must allege: "(1) intentional infliction of harm; (2) resulting in special damages; (3) without excuse or justification; (4) by an act that would otherwise be lawful." Treppel v. Biovail Corp. , No. 03 Civ. 3002(PKL), 2004 WL 2339759, at *19 (S.D.N.Y. Oct. 15, 2004) (citing Twin Labs., Inc. v. Weider Health & Fitness , 900 F.2d 566, 571 (2d Cir. 1990) ). "However, a set of facts giving rise to a common-law tort is fatal to a prima facie tort claim (and by analogy, to a claim for intentional tort) for ‘once a traditional tort is established the cause of action for prima facie tort disappears.’ " Chen v. United States , 854 F.2d 622, 628 (2d Cir. 1988) (internal quotation marks omitted).
Plaintiff's prima facie tort claim fails for several reasons. First, having plausibly alleged common-law tort claims, Plaintiff's prima facie tort claim necessarily fails. See Chen , 854 F.2d at 628. Further Plaintiff does not allege that Defendants engaged in acts that would otherwise be lawful, nor does Plaintiff allege special damages. Accordingly, Plaintiff's prima facie tort claim must be dismissed.
F. Punitive Damages
Plaintiff alleges a claim for punitive damages. (Dkt. 8 at 25-26). Plaintiff's claim for punitive damages against the City of Rochester and Monroe County must be dismissed because municipalities are immune from punitive damages under Section 1983. See City of Newport v. Fact Concerts, Inc. , 453 U.S. 247, 271, 101 S.Ct. 2748, 69 L.Ed.2d 616 (1981). Further, Plaintiff's claim for punitive damages must be dismissed "because there is no separate claim for punitive damages." See Carbajal v. Cnty. of Nassau , 271 F. Supp. 2d 415, 424 (E.D.N.Y. 2003). "Rather, [Plaintiff] may be entitled to an award of punitive damages against the remaining individual defendants as part of the damages in the remaining claims." Id. (citing Lee v. Edwards , 101 F.3d 805, 812 (2d Cir. 1996) ).
G. John Doe Defendants
Plaintiff lists officers "John Does" described as officers involved in his arrest, as defendants. Pursuant to Valentin v. Dinkins , 121 F.3d 72 (2d. Cir. 1997) (per curiam), the Court requests that the City of Rochester's Corporation Counsel, located at 30 Church Street, Rochester, New York 14614, ascertain, if possible, the full names of these individuals. Corporation Counsel is also requested to provide the addresses where the officers can currently be served. Corporation Counsel need not undertake to defend or indemnify such individuals at this juncture. This Order merely provides a means by which Plaintiff may name and properly serve Defendants John Does as instructed by the Second Circuit in Valentin .
The Corporation Counsel is hereby requested to produce the information specified above regarding the identities of the individuals within 35 days. Once this information is provided to the Court, the Amended Complaint shall be deemed amended to reflect the full names of Defendants John Does, summonses shall be issued, and service is directed without further order.
The Clerk of Court shall send a copy of this Decision and Order and the Amended Complaint to Corporation Counsel, City of Rochester, 30 Church Street, #400A, Rochester, New York 14614.
CONCLUSION
For the reasons set forth above, the following claims are dismissed: the negligence claim alleged in the seventh cause of action, all claims under the New York State Constitution, prima facie tort, and punitive damages. The Rochester Police Department and the Monroe County Sheriff are terminated as Defendants in this action.
Plaintiff's remaining claims ( § 1983 claims of excessive force, false imprisonment, and unreasonable search and seizure; and state law claims of false arrest and false imprisonment, assault, battery, negligent hiring, IIED, and malicious prosecution) may proceed to service.
ORDER
IT HEREBY IS ORDERED that the Rochester Police Department and Monroe County Sheriff are terminated from this action;
FURTHER, that the Clerk of the Court is directed to cause the United States Marshal to serve copies of the Summonses, the Amended Complaint, and this Order upon the remaining Defendants, including John Does once identified, without Plaintiff's payment therefor, with unpaid fees to be recoverable if this action terminates by monetary award in Plaintiff's favor;
FURTHER, the Clerk of Court is directed to forward a copy of this Order to Corporation Counsel, City of Rochester, Department of Law, 30 Church Street, #400A, Rochester, New York 14614; and
FURTHER, pursuant to 42 U.S.C. § 1997e(g), Defendants are directed to respond the Amended Complaint upon service.
SO ORDERED.