Opinion
5:24-CV-1391 (BKS/MJK)
12-11-2024
DAVID KEITH, individually and as the parent and natural guardian of D.K., Plaintiff, v. OFFICER COLIN MAHAR, OFFICER DANIEL MEDLOCK, OFFICER JASON LADD OFFICER DANIEL FAHEY OFFICER KIMBERLY DISHAW, and SERGEANT JONATHAN TUCKER Defendants.
DAVID KEITH individually and o/b/o D.K., Plaintiff, pro se
DAVID KEITH individually and o/b/o D.K., Plaintiff, pro se
TO THE HONORABLE BRENDA K. SANNES, CHIEF U.S. DISTRICT JUDGE
ORDER AND REPORT-RECOMMENDATION
MITCHELL J. KATZ, U.S. MAGISTRATE JUDGE
On November 15, 2024, pro se plaintiff filed a civil rights complaint pursuant to 42 U.S.C. § 1983 on behalf of himself and his minor child, D.K. (Dkt. No. 1). In addition to the complaint, plaintiff filed an application to proceed in forma pauperis (“IFP”). (Dkt. No. 2).
I. IFP Application
Plaintiff declares in his IFP application that he is unable to pay the filing fee. (Dkt. No. 2). After reviewing his application, this court finds that plaintiff is financially eligible for IFP status.
However, in addition to determining whether plaintiff meets the financial criteria to proceed IFP, the court must also consider the sufficiency of the allegations set forth in the complaint in light of 28 U.S.C. § 1915, which provides that the court shall dismiss the case at any time if the court determines that the action is (i) frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915 (e)(2)(B)(i)-(iii).
In determining whether an action is frivolous, the court must consider whether the complaint lacks an arguable basis in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989), abrogated on other grounds by Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) and 28 U.S.C. § 1915. Dismissal of frivolous actions is appropriate to prevent abuses of court process as well as to discourage the waste of judicial resources. Neitzke, 490 U.S. at 327; Harkins v. Eldredge, 505 F.2d 802, 804 (8th Cir. 1974). Although the court has a duty to show liberality toward pro se litigants and must use extreme caution in ordering sua sponte dismissal of a pro se complaint before the adverse party has been served and has had an opportunity to respond, the court still has a responsibility to determine that a claim is not frivolous before permitting a plaintiff to proceed. Fitzgerald v. First E. Seventh St. Tenants Corp., 221 F.3d 362, 363 (2d Cir. 2000) (finding that a district court may dismiss a frivolous complaint sua sponte even when plaintiff has paid the filing fee).
To survive dismissal for failure to state a claim, the complaint must contain sufficient factual matter, accepted as true, to state a claim that is “plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. (citing Bell Atl. Corp., 550 U.S. at 555).
In addition, Fed.R.Civ.P. 8(a)(2) requires that a pleading contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Although Rule 8 does not require detailed factual allegations, it does “demand[] more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Houston v. Collerman, No. 9:16-CV-1009 (BKS/ATB), 2016 WL 6267968, at *2 (N.D.N.Y. Oct. 26, 2016) (quoting Iqbal, 556 U.S. at 678). A pleading that contains allegations that “‘are so vague as to fail to give the defendants adequate notice of the claims against them' is subject to dismissal.” Id. (citing Sheehy v. Brown, 335 Fed.Appx. 102, 104 (2d Cir. 2009)).
II. Complaint
Plaintiff alleges that on November 17, 2021 at approximately 9:53 a.m., he was peacefully protesting at 2200 Onondaga Creek Boulevard because his minor daughter was being bullied at South Side Academy Charter School. (Compl., pg. 3). The complaint alleges that on November 16, 2021, plaintiff was asked to take his twelve-year daughter home because she had written a paper about harming other children as a result of having been bullied. (Id.). According to the complaint, school officials refused to discuss the matter with plaintiff. (Id.).
All page references are to the CM/ECF pagination system.
Plaintiff claims that while he was speaking to a parent/staff member of South Side Academy Charter School on November 17, 2021, Officer Mahar approached him, wanting to speak to him about “some alleged serious threats” he made (Id.). According to the complaint, Officer Mahar told his partner, Officer Ladd, that plaintiff was “obviously a porkchop so stay put, we'll have to detain him because he's being a porkchop.” (Id.). When asked what a “porkchop” was, Officer Mahar explained to plaintiff that “I suppose a porkchop would be someone who walks into a school, says he's going to shoot it up, then stands outside and acts like this. That would be a porkchop by my definition.” (Id., pg. 4). Officer Mahar did not ask plaintiff any “pertinent questions” about the situation and Officers Mahar and Ladd proceeded to frisk plaintiff and place him in hand cuffs. (Id.). Shortly thereafter, the complaint alleges that Officers Medlock, Fahey, and Dishaw arrived and were informed by Officer Mahar that plaintiff was “super uncooperative” and that is why he was sitting in the “back of his crusier.” (Id.). After conferring with Officer Mahar, Officers Medlock, Fahey and Dishaw went inside to South Side Academy Charter School at approximately 10:00 a.m. When Officer Fahey asked Principal Pugh whether she had called and whether she heard plaintiff make any threats, a different staff member told Officer Fahey that plaintiff had not made any threats. (Id.). According to the complaint, plaintiff was not released after Officer Fahey was informed that plaintiff had not made any threats. (Id.).
Plaintiff experienced trouble breathing while he was detained, and Officer Mahar called an ambulance. (Id.). Plaintiff was examined by the paramedics but was not taken to the hospital. (Id.). At approximately 10:27 a.m., Officer Fahey informed Officer Mahar that plaintiff “did not make any threats.” (Id.). Nevertheless, Officer Mahar said “[w]e will keep him detained.” (Id.). The paramedics told Officers Ladd and Mahar that they would “be standing over there” in case they were needed. (Id.). Plaintiff continued to have trouble breathing and “all of the officers refused to alert the paramedics to [plaintiff's] difficulty breathing again.” (Id.). Plaintiff alleges that Officer Mahar told him that “the ambulance just checked you and they said you were fine.” (Id.).
Plaintiff also alleges that the handcuffs were too tight and when Officer Mahar adjusted them, “he pulled on the chain causing more pain in the right cuff.” (Id). Plaintiff alleges that Officer Mahar's conduct was deliberate. (Id.). The complaint further alleges that he was kept in handcuffs while the five officers and Sergeant Tucker investigated whether D.K. was seen by mental health. (Id.). Plaintiff alleges that all of the officers discussed the fact that plaintiff had not committed a crime and that Officer Medlock suggested that plaintiff be held until D.K. was found. (Id., pg. 5).
Plaintiff was released after approximately seventy minutes and returned home to find that Officers Medlock and Fahey were standing outside of his house with D.K. (Id.). Plaintiff discovered that Officers Medlock and Fahey had entered his home without permission while he was being detained, and transported D.K. to CPEP without his permission. (Id.). Plaintiff also learned that on several occasions, D.K. asked to go home, but was denied. (Id.).
Plaintiff seeks relief against the defendants in their individual and personal capacities in varying amounts. (Compl., pg. 10).
III. First and Eleventh Claims (Unlawful Detainment)
A. Legal Standard
Plaintiff contends that he was improperly detained by defendants in violation of his Fourth Amendment rights. “[T]he first step in any Fourth Amendment claim (or, as in this case, any section 1983 claim predicated on the Fourth Amendment) is to determine whether there has been a constitutionally cognizable seizure.” Medeiros v. O'Connell, 150 F.3d 164, 167 (2d Cir. 1998). A Fourth Amendment “seizure” occurs when police detain an individual under circumstances in which a reasonable person would believe he or she is not at liberty to leave. United States v. Mendenhall, 446 U.S. 544, 554, (1980). “Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled.” Id. However, “mere police questioning does not constitute a seizure.” Muehler v. Mena, 544 U.S. 93, 101, (2005) (internal quotation omitted).
B. Analysis
The complaint plausibly alleges a claim for unlawful detainment against Officer Mahar, Ladd, and Medlock. Here, plaintiff alleges two separate claims for unlawful detainment, both of which arise from the same underlying facts. Specifically, plaintiff alleges that the defendants detained him and held him in handcuffs even though all defendants were allegedly aware that he had not committed a crime. (Compl., pg. 4). As pleaded, it was reasonable for plaintiff to believe that he was “not at liberty to leave.” Mendenhall, 446 U.S. at 554. At this juncture, it is not for the court to determine whether the detainment was in fact a “constitutionally cognizable seizure.” Medeiros, 150 F.3d at 167. Accordingly, the court recommends that plaintiff's claims for unlawful detainment survive sua sponte review and that a response be required.
IV. Second Claim (Unlawful Arrest)
A. Legal Standard
A section 1983 claim for false arrest or false imprisonment “rest[s] on the Fourth Amendment right of an individual to be free from unreasonable seizures, including arrest without probable cause.” Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996). “False arrest is simply false imprisonment accomplished by means of an unlawful arrest.” Jenkins v. City of N.Y., 478 F.3d 76, 88 n.10 (2d Cir. 2007). Such claims are one and the same because “[f]alse arrest and false imprisonment overlap; the former is a species of the latter.” Wallace v. Kato, 549 U.S. 384, 388 (2007). The elements of a Fourth Amendment false arrest/imprisonment claim under 42 U.S.C. § 1983 are the same as those for a false arrest claim under New York law. See Kraft v. City of New York, 696 F.Supp.2d 403, 418 (S.D.N.Y. 2010). The New York State standard for false arrest requires that: “‘(1) the defendants 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.'” Sethi v. Nassau County, No. 11-CV-6380, 2014 WL 2526620, at *3 (E.D.N.Y. Jun. 3, 2014) (quoting Jocks v. Tavernier, 316 F.3d 128, 134-35 (2d Cir. 2003)). An arrest is privileged if it is based on probable cause. Jenkins v. City of New York, 478 F.3d 76, 84 (2d Cir. 2007) (“The existence of probable cause to arrest constitutes justification and is a complete defense to an action for false arrest.”) (citations and quotations omitted).
B. Analysis
The court recommends that plaintiff's claim against Officer Mahar for false arrest should survive sua sponte review and that a response be required. The complaint alleges sufficient facts at this juncture to satisfy the elements set forth in Sethi, 2014 WL 2526620, at *3 . Although the court is recommending that a response be required, it is not suggesting that plaintiff's claim for false arrest would survive a properly filed dispositive motion.
V. Third Claim (Denial of Medical Attention)
A. Legal Standard
“The Due Process Clause . . . does require the responsible government or governmental agency to provide medical care to persons . . . who have been injured while being apprehended by the police.” City of Revere v. Massachusetts Gen. Hosp., 463 U.S. 239, 244 (1983). “In fact, the due process rights of a person in [the arrestee's] situation are at least as great as the Eighth Amendment protections available to a convicted prisoner.” Id. (citing Bell v. Wolfish, 441 U.S. 520, 535, n. 16 (1979)). A claim for deliberate indifference to a serious medical need for an arrestee are governed by the same standard as a pretrial detainee when their claim arises from their arrest. See Maldonado v. Town of Greenburgh, 460 F.Supp.3d 382, 394-95 (S.D.N.Y. 2020). Plaintiff's claim, to the extent it is construed as one for deliberate indifference to medical care, is governed by the Due Process Clause of the Fourteenth Amendment, rather than the Cruel and Unusual Punishments Clause of the Eighth Amendment. See Yancey v. Robertson, 828 Fed.Appx. 801, 803 (2d Cir. 2020) (citing Darnell v. Pineiro, 849 F.3d 17, 29 (2d Cir. 2017)). “This, in turn, requires a two-step inquiry ... First, the plaintiff must satisfy the ‘objective prong' by showing a sufficiently serious need . .. Second, the plaintiff must meet the ‘subjective prong' which requires the officer to have acted with ‘deliberate indifference' to the challenged condition.” Id. (citing Darnell, 849 F.3d at 29) (international citations omitted). However, a claim for “‘deliberate indifference' does not require proof of ‘a malicious or callous state of mind' and is instead akin to recklessness, requiring a plaintiff to show that the official knew or should have known of the excessive risk to the plaintiff's health.” Id. at 803, n.2.
B. Analysis
Plaintiffs fails to plausibly allege a claim against Officers Medlock, Mahar, Ladd, Fahey, and Sergeant Tucker for deliberate indifference to his medical needs. The complaint alleges that Officer Mahar called an ambulance when plaintiff reported having difficulty breathing. (Compl., pg. 4). Plaintiff was seen by paramedics, but not taken to the hospital. (Id.). After examining plaintiff, the paramedics informed Officers Ladd and Mahar that “[j]ust in case we'll be standing over there.” (Id.). When plaintiff complained again about having difficulty breathing, Officer Mahar said to plaintiff “[w]ell the ambulance just checked you and they said you were fine.” (Id.). Absent from the complaint are any allegations that plaintiff had a medical need that was “sufficiently serious.” Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994) (citations omitted). A medical need is serious for constitutional purposes if it presents “‘a condition of urgency' that may result in ‘degeneration' or ‘extreme pain.'” Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998) (citations omitted). Nor has plaintiff alleged that the defendants acted with “deliberate indifference” to his medical need. As the complaint fails to plausibly allege both that plaintiff suffered an objective, sufficiently serious deprivation of medical care and that any defendant was deliberately indifferent toward plaintiff's medical condition, it is the court's recommendation that plaintiff's deliberate medical indifference claim be dismissed without prejudice and with leave to amend.
VI. Fourth Claim (Due Process and Equal Protection) Twelfth Claim (Due Process)
Plaintiff's fourth claim alleges due process and equal protection claims against Officer Mahar under the Fourteenth Amendment. Plaintiff's twelfth claim alleges a violation of his Fourteenth Amendment due process rights against Officers Medlock and Mahar. The court will analyze plaintiff's due process claims asserted in the fourth and twelfth claims together.
A. Due Process
1. Legal Standard
The Fourteenth Amendment provides that a state may not deprive a person of liberty or property “without due process of law.” U.S. Const. amend. XIV. The Due Process Clause contains both a procedural and substantive component. Procedural due process claims concern the “adequacy of the procedure provided by [a] governmental body for the protection of liberty or property rights of an individual.” Sanchez v. Univ. of Connecticut Health Care, 292 F.Supp.2d 385, 397 (D. Conn. 2003) (citation omitted). To successfully state a claim under section 1983 for denial of procedural due process, a plaintiff must show that he or she 1) possessed an actual liberty or property interest, and 2) was deprived of that interest without being afforded sufficient process. See Shakur v. Selsky, 391 F.3d 106, 118 (2d Cir. 2004); see also Tellier v. Fields, 280 F.3d 69, 79-80 (2d Cir. 2000) (citations omitted).
In addition to its governance over fair process, the Fourteenth Amendment “cover[s] a substantive sphere as well, barring certain government actions regardless of the fairness of the procedures used to implement them.” Hurd v. Fredenburgh, No. 193482, 2021 WL 96886, at *7 (2d Cir. Jan. 12, 2021) (quoting Cnty. of Sacramento v. Lewis, 523 U.S. 833, 840, (1998) (internal quotation marks and citations omitted)). “Substantive due process rights safeguard persons against the government's exercise of power without any reasonable justification in the service of a legitimate governmental objective.” Id. (quoting Southerland v. City of New York, 680 F.3d 127, 151 (2d Cir. 2012) (internal quotation marks and citation omitted).
2. Analysis
Here, the complaint plausibly alleges that plaintiff's constitutional due process rights were violated when he remained handcuffed after all the officers on scene, including Officers Mahar and Medlock, were aware that plaintiff had not committed a crime. (Compl., pg. 4). Nevertheless, the complaint alleges that Officer Medlock “suggested that [plaintiff] be held until [his] daughter [was] found.” (Compl., pg. 5). Mindful of the Second Circuit's instruction that a pro se plaintiff's pleadings must be liberally construed, and without expressing an opinion as to whether plaintiff can withstand a properly filed motion to dismiss or for summary judgment, the court recommends that a response be required to plaintiff's Fourteenth Amendment due process claims against Officers Medlock and Mahar.
B. Equal Protection
1. Legal Standard
“Although the prototypical equal protection claim involves discrimination against people based on their membership in a vulnerable class, the Second Circuit has long recognized that the equal protection guarantee also extends to individuals who allege no specific class membership but are nonetheless subjected to invidious discrimination at the hands of government officials.” Panzella v. City of Newburgh, 231 F.Supp.3d 1, 6 (S.D.N.Y.), aff'd, 705 Fed.Appx. 50 (2d Cir. 2017) (quoting Harlen Assocs. v. Inc. Vill. of Mineola, 273 F.3d 494, 499 (2d Cir. 2001)) (cleaned up). There exist two theories for this kind of Equal Protection violation: “selective enforcement” and “class of one” discrimination. Bristol v. Town of Camden, 669 F.Supp.3d 135, 154 (N.D.N.Y. Apr. 19, 2023) (citing Bizzarro v. Miranda, 394 F.3d 82, 86 (2d Cir. 2005)). However, both selective enforcement and class-of-one claims require the plaintiff to “make a showing of different or unequal treatment.” Bristol, 699 F.Supp.3d at 154.
2. Analysis
Plaintiff's equal protection claim fails to allege that he is a member of an identifiable group, or that he was treated differently from a comparable plaintiff. Accordingly, his equal protection claims must fail. See MacPherson v. Town of Southampton, 738 F.Supp.2d 353 (E.D.N.Y. Sept. 7, 2010) (finding plaintiff's equal protection claim deficient as a matter of law because plaintiff's complaint “failed to identify any comparators or similarly situated entities at all”). The court therefore recommends that plaintiff's equal protection claim against Officer Mahar be dismissed without prejudice and with leave to amend.
VII. Fifth Claim (Retaliation)
A. Legal Standard
Claims brought under Section 1983 generally must be filed within three years of the date a claim accrues.Section 1983 claims generally accrue when a plaintiff knows or has reason to know of the injury that is the basis of the claim. Hogan v. Fischer, 738 F.3d 509, 518 (2d Cir. 2013). Here, the underlying events giving rise to plaintiff's First Amendment retaliation claim occurred on October 9, 2021, more than three years prior to the filing this action.
The statute of limitations for Section 1983 claims is found in the “general or residual [state] statute [of limitations] for personal injury actions.” Pearl v. City of Long Beach, 296 F.3d 76, 79 (2d Cir. 2002) (quoting Owens v. Okure, 488 U.S. 235, 249-50 (1989)). In New York, that period is three years. See N.Y. C.P.L.R. § 214(5).
Thus, in the absence of some basis for tolling or disregarding the limitations period,plaintiff's § 1983 claim is subject to dismissal as untimely asserted. See Abbas v. Dixon, 480 F.3d 636, 640-41 (2d Cir. 2007) (explaining that a district court should not dismiss a complaint as time-barred without providing a pro se plaintiff with notice and an opportunity to be heard as to whether there might be a meritorious tolling argument or other reason why the complaint might be considered timely); see also Walters v. Indus. and Commercial Bank of China, Ltd., 651 F.3d 280, 293 (2d Cir. 2011) (“[D]istrict courts may dismiss an action sua sponte on limitations grounds in certain circumstances where the facts supporting the statute of limitations defense are set forth in the papers plaintiff himself submitted.”) (internal quotation marks and citation omitted); Pino v. Ryan, 49 F.3d 51, 53 (2d Cir. 1995) (affirming sua sponte dismissal of complaint as frivolous on statute of limitations grounds).
Equitable tolling is available in “rare and exceptional” cases where “extraordinary circumstances prevented a party from timely performing a required act,” and “the party acted with reasonable diligence throughout the period” to be tolled. Walker v. Jastremski, 430 F.3d 560, 564 (2d Cir. 2005). As the Second Circuit recognized in Abbas, New York law recognizes the equitable tolling doctrine where a plaintiff demonstrates that he was induced by fraud, misrepresentations, or deception to refrain from timely commencing an action, and that he acted with due diligence throughout the period to be tolled. See Abbas v. Dixon, 480 F.3d 636, 642 (2d Cir. 2007); see also Gonzalez v. Hasty, 651 F.3d 318, 322 (2d Cir. 2011) (“Equitable tolling is an extraordinary measure that applies only when plaintiff is prevented from filing despite exercising that level of diligence which could reasonably be expected in the circumstances.”).
Even if plaintiff's First Amendment claim for retaliation was not time barred, it is nevertheless subject to dismissal. To state a claim of retaliation under the First Amendment, a plaintiff must allege facts plausibly suggesting the following: (1) the speech or conduct at issue was “protected;” (2) the defendants took “adverse action” against the plaintiff - namely, action that would deter a similarly situated individual of ordinary firmness from exercising his or her constitutional rights; and (3) there was a causal connection between the protected speech and the adverse action - in other words, that the protected conduct was a “substantial or motivating factor” in the defendant's decision to take action against the plaintiff. Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977); see also Gill v. Pidlypchak, 389 F.3d 379, 380 (2d Cir. 2004).
B. Analysis
Plaintiff's allegations that he called Officer Mahar “obscenities and disrespectful names on a previous occasion” constitutes protected speech under the First Amendment. See Wilson v. New York City, No. 92-CV-2709, 1996 WL 63053, at *3 (S.D.N.Y. Feb. 14, 1996) (citation omitted) (“Criticism of police officers and obscene words and gestures directed at police officers are protected speech that may not be punished by the state.”). However, plaintiff has failed to allege any causal connection between the October 9, 2021 incident and the alleged retaliatory act, i.e., the unlawful detainment that is the subject of this action. “A plaintiff can establish a causal connection that suggests retaliatory intent by showing that his protected activity was close in time to the complained-of adverse action. Dadaille v. Coxsackie Correctional Facility, No. 9:23-CV-1583 (GTS/ML), 2024 WL 1257378, at *6 (N.D.N.Y. Mar. 25, 2024) (citing Espinal v. Goord, 558 F.3d 119, 129 (2d Cir. 2001) (citations omitted)). While there is no “bright line to define the outer limits beyond which a temporal relationship is too attenuated to establish a causal relationship” Gorman-Bakos v. Cornell Coop. Extn. of Schenectady Cty., 252 F.3d 545, 554 (2d Cir. 2001), “the interval between a protected activity and an adverse action that results in a finding of retaliation is generally no more than several months” Ashok v. Barnhart, 289 F.Supp.2d 305, 314 (E.D.N.Y. 2003); see also Espinal, 558 F.3d at 129 (the passage of only six months is sufficient to support an inference of a causal connection; Gorman-Bakos, 252 F.3d at 555 (suggesting the lapse of five months between protected activity and retaliation may show a causal connection). Since the alleged retaliatory act by Officer Mahar occurred thirty-seven months after the October 9, 2021 incident, the court recommends that plaintiff's fifth claim against Officer Mahar for retaliation be dismissed with prejudice and without leave to amend.
VIII. Sixth Claim (Failure to Intervene)
A. Legal Standard
To state a failure-to-intervene claim, a plaintiff must allege that “(1) the officer had a realistic opportunity to intervene and prevent the harm; (2) a reasonable person in the officer's position would know that the victim's constitutional rights were being violated; and (3) the officer [did] not take reasonable steps to intervene.” Jean-Laurent v. Wilkinson, 540 F.Supp.2d 501, 512 (S.D.N.Y. 2008). To determine whether the defendant had a realistic chance to intervene, courts in this Circuit consider a number of factors, including “(1) the number of police officers present; (2) the officers' relative placement; (3) the environment in which the officers acted; [and] (4) the nature of the assault.” Johnson v. City of New York, No. 15-CV-6915, 2019 WL 294796, at *9 (S.D.N.Y. Jan. 23, 2019) (citing Figueroa v. Mazza, 825 F.3d 89, 107-08 (2d Cir. 2016)). The duration of the alleged violation “will always be relevant and will frequently assume great importance.” Id.; see also O'Neill v. Krzeminski, 839 F.2d 9, 11 (2d Cir. 1988) (finding that officers did not have realistic opportunity to intervene where another officer hit the plaintiff three times in rapid succession); Ross v. Willis, No. 16-CV-6704, 2021 WL 3500163, at *15 (S.D.N.Y. Aug. 9, 2021) (same where another officer pepper sprayed the plaintiff, because the spraying lasted only seconds); Arminio v. Holder, No. 15-CV-5812, 2019 WL 176804, at *6 (S.D.N.Y. Jan. 11, 2019) (“On some occasions, as in this case, the seconds it takes for excessive force to occur are not enough to provide an officer with a realistic opportunity to intervene.”).
C. Analysis
The complaint plausibly alleges a claim against Officer Ladd, Medlock, Fahey, Dishaw, and Sergeant Tucker for failure to intervene against all defendants. Specifically, plaintiff alleges that Officer Fahey was informed by a school staff member that plaintiff did not make any threats (Compl., pg. 4) and that “each officer present discussed me not committing any crime and Officer Medlock suggested I be held until my daughter is found.” (Compl., pgs. 4-5). Nevertheless, the complaint alleges that plaintiff was restrained in handcuffs for seventy minutes. (Compl., pg. 5). The court therefore recommends that plaintiff's sixth claim for failure to intervene survive supa sponte review and that a response be required.
IX. Seventh Claim (Excessive Use of Force)
A. Legal Standard
“Claims that law enforcement officers have used excessive force . .. in the course of an arrest, investigatory stop, or other ‘seizure' of a free citizen should be analyzed under the Fourth Amendment and its ‘reasonableness' standard.” Graham v. Connor, 490 U.S. 386, 395 (1989); see also Tracy v. Freshwater, 623 F.3d 90, 96 (2d Cir. 2010). “[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 114, 120 (2d Cir. 2002) (quoting Graham, 490 U.S. at 397).
“Courts apply a separate standard to claims for excessive force in the use of handcuffs.” Sachs v. Cantwell, No. 10-CV-1663, 2012 WL 3822220, at *14 (S.D.N.Y. Sept. 4, 2012). This modified standard reflects the need for a careful balance. On the one hand, “[i]t is well established that the right to make an arrest accompanies with it the right to use some degree of physical coercion [and] to be effective handcuffs must be tight enough to prevent the arrestee's hands from slipping out.” Esmont v. City of New York, 371 F.Supp.2d 202, 214-15 (E.D.N.Y. Mar. 16, 2005) (citations omitted). On the other hand, “overly tight handcuffing can constitute excessive force.” Lynch ex rel. Lynch v. City of Mount Vernon, 567 F.Supp.2d 459, 468 (S.D.N.Y. Jun. 13, 2008). “[I]n evaluating the reasonableness of handcuffing, a Court is to consider evidence that: 1) the handcuffs were unreasonably tight; 2) the defendants ignored the arrestee's pleas that the handcuffs were too tight; and 3) the degree of injury to the wrists.” Esmont, 371 F.Supp.2d at 215 (citations omitted). As always, this inquiry must reflect the totality of the circumstances, including any facts that bear on whether use of an unusual degree of force may have been justified. See Matthews v. City of New York, 889 F.Supp.2d 418, 2012 WL 3839505, at *18 (E.D.N.Y. Sept. 5, 2012) (noting that where “plaintiffs allegedly were compliant with police orders and not violent or resisting arrest,” this fact "suggests that their arrests likely did not necessitate an unusual degree of force”).
The injury requirement is “particularly important." Sachs, 2012 WL 3822220, at *14. “Courts have found that handcuffing can give rise to a § 1983 excessive force claim where plaintiff suffers an injury as a result.” Gonzalez v. City of New York, No. 98-CV-3084, 2000 WL 516682, at *4 (E.D.N.Y. Mar. 7, 2000). However, “[t]here is a consensus among courts in this circuit that tight handcuffing does not constitute excessive force unless it causes some injury beyond temporary discomfort.” Lynch, 567 F.Supp.2d at 468; see also Gonzalez v. The City of New York, No. 98-CV-3084, 2000 WL 516682, at *4 (E.D.N.Y. Mar. 7, 2000) (“[I]f the application of handcuffs was merely uncomfortable or caused pain, that is generally insufficient to constitute excessive force.”). These injuries need not be “severe or permanent,” Vogeler v. Colbath, No. 04-CV-6071, 2005 WL 2482549, at *9 (S.D.N.Y. Oct. 6, 2005), but must be more than merely “de minimis,” Washpon v. Parr, 561 F.Supp.2d 394, 407. The most common injuries found to satisfy the injury requirement in handcuff cases are scarring and nerve damage. Id. (scarring), Esmont, 371 F.Supp.2d at 214-15 (nerve damage).
B. Analysis
Here, plaintiff alleges that after he complained that the handcuffs placed on him were too tight, Officer Mahar adjusted them and “pulled on the chain causing more pain in the right cuff.” (Compl., pg. 4). Absent from the complaint are any allegations that the handcuffs caused any injury beyond some “temporary discomfort.” Lynch, 567 F.Supp.2d at 468. Accordingly, the court recommends that plaintiff's claim for excessive use of force be dismissed against Officer Mahar without prejudice and with leave to amend.
X. Eighth Claim (Failure to Supervise)
A. Legal Standard
Plaintiff's eighth claim alleges that defendant Sgt. Tucker “was aware and allowed Officers Fahey and Medlock [to go] to my home and interview[] my minor child without my knowledge and/or permission knowing that I was in police custody at the time.” (Compl., pg. 8).
“It is well settled in this Circuit that ‘personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983.'” Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994) (quoting Moffitt v. Town of Brookfield, 950 F.2d 880, 885 (2d Cir. 1991)). To prevail on a section 1983 claim against an individual, a plaintiff must show “a tangible connection between the acts of a defendant and the injuries suffered.” Bass v. Jackson, 790 F.2d 260, 263 (2d Cir. 1986). “[D]irect participation as a basis of liability in this context requires intentional participation in the conduct constituting a violation of the victim's rights by one who knew of the facts rendering it illegal.” Provost v. City of Newburgh, 262 F.3d 146, 155 (2d Cir. 2001) (internal quotation marks omitted).
Courts in this circuit routinely hold that “the doctrine of respondeat superior cannot be applied to section 1983 actions to satisfy the prerequisite of personal involvement. Therefore, a [supervisory] official may not be found liable for a constitutional violation merely because of the acts of those under his control.” Kinch v. Artuz, 97-CV-2419, 1997 WL 576038, at *2 (S.D.N.Y. Sept. 15, 1997) (citing Colon v. Coughlin, 58 F.3d 865, 874 (2d Cir. 1995); Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994)). Thus, supervisory officials may not be held liable for their subordinates' constitutional violations merely because they are in a position of authority. See Black v. Coughlin, 76 F.3d 72, 74 (2d Cir. 1996); see also Colon, 58 F.3d at 874 (holding that the fact that the defendant occupied a high-ranking position in the New York prison hierarchy, without more, was insufficient to establish personal involvement).
In Tangreti v. Bachmann, 983 F.3d 609 (2d Cir. 2020), the Second Circuit concluded that “there is no special rule for supervisory liability,” and held that a “plaintiff must plead and prove ‘that each Government-official defendant, through the official's own individual actions, had violated the Constitution.'” Tangreti, 983 F.3d at 618. The Second Circuit explained that, “‘the factors necessary to establish a [§ 1983] violation will vary with the constitutional provision at issue' because the elements of different constitutional violations vary. The violation must be established against the supervisory official directly.” Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009)).
B. Analysis
Here, the complaint plausibly alleges a claim against Sergeant Tucker for failure to supervise. Plaintiff alleges that Sergeant Tucker was personally involved with plaintiff's detention and was aware that plaintiff had not committed a crime. (Compl., pg. 4). Nevertheless, the complaint alleges that Officers Medlock and Fahey removed plaintiff's minor daughter from his house without consent. (Compl., pg. 11). Although the complaint does not provide significant detail relative to this claim, the allegations as plead do meet the minimal pleading requirements of Federal Rule of Civil Procedure 8. The purpose of Rule 8 is to give adequate notice regarding the nature of the claim being asserted so that the defendant can prepare an adequate defense. See Powell v. Marine Midland Bank, 162 F.R.D. 15, 16 (N.D.N.Y. 1995). Accordingly, the court recommends that plaintiff's claims against Sergeant Tucker for failure to supervise survive sua sponte review and that a response be required.
XI. Ninth Claim (Unlawful Entry)
The Fourth Amendment protects against “unreasonable searches and seizures.” U.S. Const. amend IV. “It is axiomatic that the physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.” Welsh v. Wisconsin, 466 U.S. 740, 748, (1984) (internal quotation marks omitted). It is thus a “basic principle of Fourth Amendment law[] that searches and seizures inside a home without a warrant are presumptively unreasonable.” Id. at 749.
In order to overcome this presumption, the warrantless entry of a home must fall under a relevant exception, such as the “exigent circumstances” or “emergency aid” doctrine, which excuses a warrantless entry “if law enforcement has probable cause to believe that a person is ‘seriously injured or threatened with such injury.'” Chamberlain v. City of White Plains, 960 F.3d 100, 105 (2d Cir. 2020) (quoting Brigham City v. Stuart, 547 U.S. 398, 403 (2006)). Police seeking to apply the doctrine bear a heavy burden to demonstrate that “the facts, as they appeared at the moment of entry, would lead a reasonable, experienced officer, to believe that there was an urgent need to render aid or take action.” Chamberlain, 960 F.3d 100 at 106 (quoting United States v. Klump, 536 F.3d 113, 117-18 (2d Cir. 2008)); see also Hogan v. Caputo, No. 02-CV-1040 (LFK/RFT), 2024 WL 1376395, at*6 (N.D.N.Y. Jun. 21, 2004) (“When a warrantless entry is made, the burden lies with the government to establish an exception to the warrant requirement.”) (citation omitted). The presumption can also be overcome “if authorities have obtained the voluntary consent of a person authorized to grant such permission.” United States v. Hernandez, 85 F.3d 1023, 1028 (2d Cir. 1996).
C. Analysis
Plaintiff plausibly alleges a claim against Officers Medlock and Fahey for unlawful entry. The complaint specifically alleges that Officers Medlock and Fahey “entered [plaintiff's] home while [plaintiff] was being detained and they removed [D.K.] from the home without [plaintiff's] permission.” Plaintiff, having plead that he did not grant Officers Medlock and Fahey permission to enter his home, shifts the burden to Officers Medlock and Fahey to establish that their warrantless entry was necessitated by “exigent circumstances” or the need for “emergency aid.” See Chamberlain, 960 F.3d at 105. The court therefore recommends that plaintiff's claim for unlawful entry survive sua sponte review and that a response be required.
XII. Tenth Claim (Unlawful Detainment of D.K.)
“A litigant in federal court has a right to act as his or her own counsel.” Cheung v. Youth Orchestra Found., 906 F.2d 59, 61 (2d Cir. 1990) (citing 28 U.S.C. § 1654). “The statutory right to proceed pro se reflects a respect for the choice of an individual citizen to plead his or her own cause.” Id. However, “a non-attorney parent must be represented by counsel in bringing an action on behalf of his or her child.” Id. This is because the choice to appear pro se is not a true choice for minors who, under state law, cannot determine their own legal actions. Id. (citing Fed.R.Civ.P. 17(b)). Minor children “are entitled to trained legal assistance so their rights may be fully protected.” Cheung v. Youth Orchestra Found., 906 F.2d at 61. Thus, the “court has an affirmative duty to enforce the rule that a non-attorney parent must be represented by counsel when bringing an action on behalf of his or her child.” Fauconier v. Comm. on Special Educ., No. 02 Civ. 1050, 2003 WL 21345549, at *1 (S.D.N.Y. June 10, 2003), aff'd sub nom. Fauconier v. Comm. on Special Educ., 112 Fed.Appx. 85 (2d Cir. 2004). Here, the non-attorney plaintiff may not appear pro se on behalf of his minor daughter, and the tenth and seventeenth claims in the complaint must therefore be dismissed as asserted on D.K.'s behalf.
The Second Circuit has carved out limited exceptions to this general rule, including for claims filed on behalf of minors under the Individuals with Disabilities Education Act (“IDEA”) and actions relating to social security benefits. Liberally construed, plaintiff's complaint does not fall within any of the noted, limited exceptions.
XIII. New York State Constitutional Claims
Plaintiff's thirteenth through eighteenth claims seeking relief under the New York State Constitution are duplicative of his Section 1983 claims under the United States Constitution and are therefore dismissed. “Where a § 1983 claim is brought for a parallel constitutional right, a court will properly dismiss state constitutional claims.” Barzilay v. City of N.Y., 610 F.Supp.3d 544, 619 (S.D.N.Y. 2022) (citation omitted); see also Allen v. Antal, 665 Fed.Appx. 9, 13 (2d Cir. 2016) (summary order) (“The New York State Constitution provides a right of action where remedies are otherwise unavailable at common law or under § 1983.”); see also Talarico v. Port Auth. N.Y. & N.J., 367 F.Supp.3d 161, 171 (“[W]here 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.”). The court therefore recommends dismissing plaintiff's New York State constitutional claims against all defendants without prejudice and with leave to amend only if plaintiff can identify a remedy that is available under the New York State Constitution that is not otherwise available to him under United States Constitution.
XIV. Damages
Plaintiff seeks damages against all defendants in various amounts in their individual and professional capacities. The court recommends that plaintiff's claims for damages against the individual defendants in their official capacities, be dismissed with prejudice pursuant to the Eleventh Amendment. “[A]s a general rule, state governments may not be sued in federal court unless they have waived their Eleventh Amendment immunity, or unless Congress has abrogate[d] the states' Eleventh Amendment immunity ....” Gollomp v. Spitzer, 568 F.3d 355, 366 (2d Cir. 2009) (alteration in original) (quotation marks and citation omitted). “[T]he immunity recognized by the Eleventh Amendment extends beyond the states themselves to state agents and state instrumentalities that are, effectively, arms of a state.” Id. (citation omitted). DOCCS is a state agency for purposes of the Eleventh Amendment. See Simmons v. Gowanda Corr. Facility, No. 13-CV-647, 2013 WL 3340646, at *2 (W.D.N.Y. July 1, 2013); see also Jackson v. Johnson, 985 F.Supp. 422, 426 (S.D.N.Y. 1997). Moreover, plaintiff's claims against the defendants in their official capacities are construed as claims against New York State and are also barred by Eleventh Amendment immunity. See Drawhorne v. Aloise, 23-CV-1278 (TJM/TWD), 2023 WL 8188396, at *3 (N.D.N.Y. Nov. 27, 2023).
XV. Opportunity to Amend
Generally, before the court dismisses a pro se complaint or any part of the complaint sua sponte, the court should afford the plaintiff the opportunity to amend at least once; however, leave to re-plead may be denied where any amendment would be futile. Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir. 1993). Futility is present when the problem with plaintiff's claims is substantive such that better pleading will not cure it. Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (citation omitted).
The court recommends that plaintiff be allowed to amend his complaint as follows:
a. Plaintiff's third claim for denial of medical attention against Officers Medlock, Ladd, Mahar, Fahey and Sergeant Tucker be dismissed without prejudice and with leave to amend;
b. Plaintiff's fourth claim for violation of his equal protection rights against Officer Mahar be dismissed without prejudice and with leave to amend;
c. Plaintiff's seventh claim for excessive use of force against Officer Mahar be dismissed without prejudice and with leave to amend; and
d. Plaintiff's thirteenth through and including his eighteenth claims be dismissed without prejudice and with leave to amend only if plaintiff can identify a remedy that is available under the New York State Constitution that is not otherwise available to him under United States Constitution.
If the court approves this recommendation and allows plaintiff to submit a proposed amended complaint, plaintiff should be warned that any amended complaint must be a complete and separate pleading. Plaintiff must state all of his claims in the new pleading, and may not incorporate by reference any part of his original complaint.
WHEREFORE, based on the findings above, it is
ORDERED, that plaintiff's motion to proceed IFP (Dkt. No. 2) be GRANTED, and it is
RECOMMENDED, that:
a. Plaintiff's first and eleventh claims for unlawful detainment against Officers Mahar, Ladd, and Medlock survive sua sponte review and that a response be required;
b. Plaintiff's second claim for unlawful arrest against Officer Mahar survive sua sponte review and that a response be required;
c. Plaintiff's third claim for denial of medical attention against Officers Medlock, Ladd, Mahar, Fahey and Sergeant Tucker be DISMISSED WITHOUT PREJUDICE and with leave to amend;
d. Plaintiff's fourth claim for violation of his due process rights against Officer Mahar survive sua sponte review and that a response be required, that plaintiff's fourth claim for violation of his equal protection rights against Officer Mahar be dismissed without prejudice and with leave to amend, and that plaintiff's twelfth claim against Officers Medlock and Mahar for violation of his due process rights survive sua sponte review and that a response be required;
e. Plaintiff's fifth claim for retaliation against Officer Mahar be DISMISSED WITH PREJUDICE and without leave to amend;
f. Plaintiff's sixth claim for failure to intervene against Officers Ladd, Medlock, Fahey, Dishaw and Sergeant Tucker survive sua sponte review and that a response be required;
g. Plaintiff's seventh claim for excessive use of force against Officer Mahar be DISMISSED WITHOUT PREJUDICE and with leave to amend;
h. Plaintiff's eighth claim for failure to supervise against Sergeant Tucker survive sua sponte review and that a response be required;
i. Plaintiff's ninth claim for unlawful entry against Officers Medlock and Fahey survive sua sponte review and that a response be required;
j. Plaintiff's tenth claim for unlawful detention of D.K. be DISMISSED WITHOUT PREJUDICE;
k. Plaintiff's thirteenth through and including his eighteenth claims be DISMISSED WITHOUT PREJUDICE and with leave to amend only if plaintiff can identify a remedy that is available under the New York State Constitution that is not otherwise available to him under United States Constitution.; and
l. Plaintiff's claims for damages against all defendants in their official capacities are DISMISSED WITH PREJUDICE and without leave to amend.
ORDERED, that the Clerk of the Court serve a copy of this Order and Report Recommendation on plaintiff by regular mail.
The Clerk shall also provide plaintiff with copies of all unreported decisions cited herein in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the parties have fourteen (14) days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Sec'y of Health and Hum. Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(e), 72.