Plaintiff Deborah LaLonde (“plaintiff” or “Ms. LaLonde”) brought this action pursuant to 42 U.S.C. §§ 1983, 1985, 1986, 1988, the First, Fourth, Fifth and Fourteenth Amendments of the United States Constitution,1 and New York State law, claiming that Rome City Police Officers Timothy Bates (“Officer Bates”) and David Bruce (“Officer Bruce”) (collectively referred to as “defendants”), and the City of Rome, New York, violated her civil rights.2 The defendants moved for summary judgment pursuant to Fed.R.Civ.P. 56. Plaintiff opposed. Oral argument was heard on July 6, 2001, in Utica, New York. Decision was reserved.
II. FACTS
On March 18, 1999, Rome Police Investigator Scott Hall (“Investigator Hall”) obtained a warrant from the Rome City Court authorizing the search of Apartment # 2 located at 508 East Bloomfield Street in Rome, New York, a 1986 black Chevrolet *716 Cavalier automobile with the license plate number W174JM, and the person of Juan Breton (“Breton”). This warrant permitted the seizure of crack cocaine and a handgun.
On March 22, 1999, at about 7:30 p.m., Investigator Hall conducted a briefing at the Rome Police Station at which time he provided a number of police officers, including Officer Bates and Officer Bruce, with information regarding the search warrant. He informed the officers that Breton was suspected of being in possession of crack cocaine and a handgun, that he might be alone or accompanied by one or two women, and gave out the license plate number of the black Cavalier covered by the search warrant. During the briefing, two confidential informants called the police station and informed police that Breton was on his way to the apartment named in the search warrant. A number of police officers, including Investigator Hall, Officer Bates, and Officer Bruce, then proceeded to the apartment to await Breton's arrival.
On the date of this incident, plaintiff3 resided in Apartment # 4 at 326 East Bloomfield Street in Rome, New York, which is approximately nine buildings away from the apartment named in the search warrant, and owned a 1986 blue Chevrolet Celebrity automobile, license plate number M800BZ. At approximately 8:00 p.m. on March 22, 1999, Ms. LaLonde left her apartment, went out to her car and started it up. It had been snowing that day, and plaintiff asserts she allowed the heater and rear window defroster to run while she brushed the snow off all the windows and the front and back of the car, including the headlights, taillights, and license plates. Ms. LaLonde then got into her car and exited the parking lot of the apartment complex onto East Bloomfield Street, with the intention of picking her boyfriend up from work.
Almost immediately, plaintiff's car was pulled over by Officers Bates and Bruce. They had been instructed to stop the vehicle by Investigator Hall after he observed the plaintiff's dark colored Chevrolet exiting the parking area of the apartment complex. After pulling her vehicle off to the side of the road and rolling down the driver's side window, plaintiff was verbally instructed to turn off the car and throw her keys out the window. She was then ordered to exit the vehicle, place her hands behind her head and walk backwards toward the officers. Plaintiff was then told to get down on her knees and lie face down on the road with her arms outstretched. Plaintiff complied with all of these demands. Ms. LaLonde repeatedly asked the officers why she had been stopped and what she had done wrong, only to be told to be quiet.
As she was lying in the street, Officer Bruce grabbed the back of plaintiff's jacket as Officer Bates held her right arm behind her back, and they both pulled her off the ground. At this time, Investigator Hall arrived at the scene and instructed Officers Bates and Bruce not to handcuff plaintiff, as she was not a suspect. He then asked plaintiff to get into her car and drive to a nearby parking lot. While at the parking lot, Investigator Hall explained to Ms. LaLonde that the police had made a mistake, apologized to her, and told her she was free to go.
Plaintiff asserts that fifteen to twenty minutes passed between the time she was pulled over to the time she was told she was free to go, and that for at least part of the incident, the officers had their guns *717 drawn. Following this incident, plaintiff was counseled by Certified Social Worker, John Carroll, who diagnosed her with post-traumatic stress disorder, with various symptoms including depression, flashbacks, nightmares, and panic attacks, stemming from the incident.
In the instant case, defendants argue that they acted reasonably in stopping Ms. LaLonde's vehicle on March 22, 1999, and that enacting felony-stop procedures which culminated in plaintiff's lying in the street, terrified, was justified under the circumstances. However, plaintiff presents a number of facts which call into question the reasonableness of the defendants' *718 actions. First, the defendants were in possession of a detailed description of the vehicle named in the search warrant, including make, model, year, color, and most importantly, license plate number. Plaintiff's car, although the same make and year as the suspect car, was a different model and color, and displayed a different license plate number than the vehicle named in the warrant. Second, defendants were told to look for a Hispanic male, who could be alone or accompanied by one or two women. Plaintiff, a white female, was alone in her car when defendants stopped her vehicle.4 Third, defendants were at the apartment complex awaiting Breton's arrival. Plaintiff was driving away from the apartment complex on her way to pick up her boyfriend at the time defendants stopped her vehicle. And fourth, plaintiff was alone, unarmed, non-confrontational, and cooperated fully with defendants demands, calling into question the necessity and reasonableness of felony-stop procedures.
Defendants argue that they are protected from liability for unlawful search and seizure by virtue of the fellow officer rule. “Under [this] rule, arresting officers may rely upon information or direction from another officer because the directing officer is presumed to possess probable cause.” Mendoza v. City of Rome, 872 F.Supp. 1110, 1116 (N.D.N.Y.1994). Defendants maintain that they reasonably relied on Investigator Hall's instructions to stop plaintiff's vehicle, assuming that Hall had probable cause for the stop. However, when a seizure is challenged, the government must establish that the officer giving the instructions actually possessed probable cause, and if they are unable to do so, the arrest is unlawful, regardless of the arresting officer's good faith. Id. Investigator Hall merely “observed a dark colored Chevrolet car matching the general description of the suspect vehicle exiting the parking lot ....” (Hall Aff. ¶ 4.) This is insufficient to hold, as a matter of law, that Hall had probable cause to stop Ms. LaLonde. Therefore, the fellow officer rule does not absolve the defendants of liability under the circumstances of this case.
Because material questions of fact exist with regard to the reasonableness of the defendants' actions in stopping Ms. LaLonde's vehicle, it follows that material questions of fact exist as to the lawfulness of the stop. If the stop itself was unlawful, any force used by the defendant's in effecting that stop is excessive. Id. Therefore, the existence of factual questions preclude summary judgment on the issue of excessive force as the reasonableness determination is more properly made by a jury.
D. Discrimination and Conspiracy
Plaintiff asserts causes of action against the defendants for discrimination and conspiracy under 42 U.S.C. §§ 1985 and 1986. Defendants move for summary judgment with regard to these claims on the basis that they are conclusory and unsubstantiated, and thus unsuitable as a basis for federal civil rights actions. Plaintiff has agreed to discontinue her conspiracy claim. (Benson Aff. ¶ 14.) Because plaintiff has failed to oppose defendants' motion for summary judgment with regard to the discrimination claim, defendants' motion shall be granted.
“A civil action is commenced by filing a complaint with the court.” Fed.R.Civ.P. 3. This complaint must contain “a short and plain statement of the claim[s]” upon which the plaintiff seeks relief. Fed.R.Civ.P. 8. This requirement serves to ensure that the defendants are aware of each claim upon which the plaintiff seeks to recover. See Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir.1988).
In the instant case, plaintiff fails to state a claim for false arrest and/or false imprisonment under New York State law in her complaint, as required by Rule 8. The first mention of this claim appears in plaintiff's Attorney's Affidavit in Opposition to Motion for Summary Judgment. (Benson Aff. ¶ 10). This is insufficient. Further, plaintiff made no attempt to amend her complaint in order to add a claim for false arrest and/or false imprisonment pursuant to Fed.R.Civ.P. 15. Therefore, plaintiff's allusions to a viable claim for false arrest and/or false imprisonment are invalidated by her failure to properly address them in her complaint.
Because Ms. LaLonde has asserted claims of unlawful search and seizure, excessive force, and assault and battery, and pled facts which lend support to these claims, she cannot additionally argue that the same facts would give rise to a claim for either negligence or gross negligence. Therefore, plaintiff's claims with regard to negligence and gross negligence must be dismissed as inconsistent with the intentional torts pled.
Viewing the facts most favorable to the plaintiff, questions exist as to whether the defendants' actions were objectively reasonable. The determination of whether the officers are entitled to qualified immunity from liability in this civil rights action, is properly left for the time of trial. See Breen v. Garrison, 169 F.3d 152, 153 (2d Cir.1999); see also Lennon, 66 F.3d at 420;Naccarato, 124 F.Supp.2d at 45. Defendants' request for summary judgment based on the affirmative defense of qualified immunity must be denied.
IV. CONCLUSION
Because questions of material fact exist as to the reasonableness of the defendants' actions, summary judgment is precluded with respect to plaintiff's claims of unlawful search and seizure and excessive force under federal law, and assault and battery under state law. These questions of fact similarly preclude defendants' asserted defenses of qualified immunity and the fellow officer rule.
Accordingly, it is
ORDERED, that the defendants' motion for summary judgment is GRANTED in part and DENIED in part:
1. Defendants' motion is GRANTED to the extent that following claims are DISMISSED:
a. False arrest and false imprisonment;
b. Negligence and gross negligence; and
*721 c. Discrimination and conspiracy;
d. First and Fifth Amendment; and
e. City of Rome (except the assault and battery claim);
2. Defendants' motion is DENIED with respect to the following claims:
Plaintiff has voluntarily dismissed her federal claim of municipal liability against the City of Rome, New York. However, she continues to assert that it is liable for the alleged violations of state law by Officer Bates and Officer Bruce under the doctrine of respondeat superior. (Benson Aff. ¶ 14.)
Plaintiff is a forty-year-old woman. She is a diabetic and suffers from diabetic neuropathy. Additionally, she had previously fractured her left shoulder and had only 70% use of her left arm at the time of this incident.
Defendants contend that snow covered plaintiff's vehicle at the time of her stop, rendering it impossible for them to view either her license plate number or the interior of her vehicle. Plaintiff disputes this claim, maintaining that she had completely removed any snow from her vehicle prior to getting into her car and driving out of the apartment complex's parking area, and that it was only lightly snowing at the time defendants stopped her vehicle. These disputed material issues of fact further illustrate why summary judgment cannot be granted.