Black v. Town of Harrison | Cases | Westlaw

*1 Defendants Town of Harrison (“Harrison”); Harrison Police Department (“Police Department”); and Officers “John” Castellano (“Castellano”), “John” Dereenzis (“Dereenzis”) and “John” Carpinello (“Carpinello”) (collectively referred to as individual defendants) have moved to dismiss the complaint of plaintiff Nancy Black (“Black”) pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure or, in the alternative, for summary judgment pursuant to Fed.R.Civ.P. 56(b) based upon Black's sworn testimony at a hearing pursuant to New York General Municipal Law § 50–h. Black's complaint centers around an incident where she was confronted by the individual defendants, members of the Police Department, who Black claims violated her federal and state constitutional rights, assaulted her and acted negligently as police officers.

For the following reasons, the motion is granted in part and denied in part.

Black is a resident of the County of Nassau in the State of New York.

Officers Castellano, Dereenzis and Carpinello were assigned to the Harrison Police Department as Police Officers employed by the Town of Harrison. They are sued individually and in their official capacity. Harrison was responsible for the training, supervision and conduct of the individual defendants. It was also responsible for enforcing the regulations of the Police Department and for ensuring that the Harrison Police Officers obey the laws of the City and State of New York and of the United States.

Harrison is a municipal corporation and at all relevant times employed the individual defendants.

The Police Department is an administrative arm of the Town of Harrison.

As befits a Rule 12(b)(6) motion, the following facts are drawn from Black's complaint and do not constitute findings of fact by the Court.

On March 21, 2001, at approximately 12:30 p.m., Black was lawfully on the premises of 607 West Street, Town of Harrison, County of Westchester, New York. At that time, Black was forcibly grabbed and thrown against a wooden dresser, having her head struck against the dresser, and was handcuffed while in a bent over position by Castellano, Dereenzis, and Carpinello.

While Black was being pushed against the dresser, she received a telephone call from Adam Harrington, the owner of the premises where this event occurred (“Harrington”). Harrington advised the individual defendants that Black was a guest at his premises.

The officers picked Black up from her bent over position and told her, “You are in custody, we can do whatever we want to you.” Black was then slammed down onto the bed by the individual defendants and was not released from the handcuffs for approximately five to eight more minutes. Subsequent to having the handcuffs taken off, the individual defendants laughed at Black when she told them that they did not have to treat her like that.

Black alleges that this incident was consistent with an institutionalized practice of Harrison and the Police Department, and that the individual defendants adopted and ratified this practice. Black further alleges that Harrison and the Police Department had prior notice of the “vicious propensities” of the individual defendants, but took no steps to train them, correct their abuse of authority, or discourage their unlawful use of authority. Further, Black alleges that the failure to train the individual defendants properly included the failure to instruct them in applicable provisions of New York City and State Law Enforcement Law and with proper and prudent use of force. Black further claims that Harrison and the Police Department authorized, tolerated and ratified the alleged misconduct by (1) failing to discipline employees properly, including the individual defendants, known to be irresponsible in their dealings with citizens; (2) failing to take adequate precautions in hiring, promoting and retaining officers, including the individual defendants; and (3) failing to establish or assure the functioning of a bona fide and meaningful departmental system for dealing with complaints of police officer misconduct, but instead responding to such complaints with bureaucratic power and official denials calculated to mislead the public.

*2 Black has asserted eight causes of action against the defendants:

The defendants filed their motion to dismiss on June 5, 2002. They seek to dismiss all Counts as against the Police Department as they claim it is not a proper entity that can be sued and all claims against Harrison to the extent they assert Monell claims (Count I). They further seek to dismiss Counts I, II, III, IV, V, and VIII pursuant to Rule 12(b)(6), and Counts VI, VII and VIII pursuant to Rule 56(f). Black filed opposition papers on July 11, 2002. As discussed below, Black did not respond to the defendants' arguments regarding the Police Department or regarding Counts I through IV. Further, she treated the motion as one for summary judgment, rather than as one pursuant to Rules 12(b)(6) and 56. The motion was considered fully submitted on July 10, 2002.

The defendants urge the Court to treat a portion of the motion as one for summary judgment on the basis of Black's testimony at the § 50–h hearing.

According to her testimony, Black arrived at the house she believed belonged to Harrington, located in Harrison, New York, on March 20, 2001. Black and Harrington thereafter went to dinner and arrived back at the house at approximately 9:30 p.m. After Black and Harrington watched television in the house, Black then went to sleep on the couch and Harrington retired to the master bedroom.

At approximately 4:00 a.m., Black awoke and used the bathroom contained in the master bedroom where Harrington was sleeping. Harrington told Black that he was going to be leaving for work, and that she could use his bed. Black again awoke at 8:00 a.m., went to the bathroom, and went back to bed.

*3 At approximately noon, Black awoke in Harrington's bed and found a woman standing over her screaming at her and asking Black what she was doing in her house. The woman, who Black learned was Dawn Harrington and the wife of Adam Harrington, thereafter called the police and advised them that a trespasser was in her house. Black, after attempting to explain the situation to Dawn Harrington, proceeded to go to the bathroom to get dressed.

While Black was in the bathroom changing clothes, the police arrived at the residence and entered the bathroom where Black had been changing. Black was approached by Castellano, who advised her to get dressed as she was going to have to take her down to the station to answer some questions. Shortly thereafter, Dereenzis and Carpinello joined Castellano and Black. After the officers repeated their request for Black to get dressed, Black was taken by the “sergeant,” who told Black that Dawn Harrington did not know her and that Black was going to be arrested. According to Black, the officers thereafter proceeded to remove her from the bathroom, handcuff her, throw her down onto the dresser in a bent over position and use physical force while putting handcuffs on her. While Black was handcuffed and bent over the dresser, her cell phone rang. Black asked one of the officers to answer it because she believed that it might be Harrington since she tried to contact him through her friend's husband. The officer then handed the phone to Black, who spoke to Harrington. Black explained that Dawn Harrington had called the police. Black thereafter had the cell phone grabbed from her by the sergeant who advised Harrington that he could not hear him. The sergeant then called Harrington on a regular phone. Black then claims she was thrown on the bed, still in handcuffs, and remained there for approximately ten minutes when the sergeant came back into the bedroom and advised Black she was being released. According to Black, she was handcuffed for approximately fifteen minutes. The officers then escorted Black out of the house.

In reviewing a motion to dismiss under Rule 12(b)(6), courts must “accept as true the factual allegations of the complaint, and draw all inferences in favor of the pleader.” Mills v. Polar Molecular Corp., 12 F.3d 1170, 1174 (2d Cir.1993) (citing IUE AFL–CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1052 (2d Cir.1993)). However, “legal conclusions, deductions, or opinions couched as factual allegations are not given a presumption of truthfulness.” L'Eureopeenne de Banque v. La Republica de Venezuela, 700 F.Supp. 114, 122 (S.D.N.Y.1988). “The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.” Villager Pond, Inc. v. Town of Darien, 56 F.3d 375, 378 (2d Cir.1995) (quoting Schener v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974)). A complaint may only be dismissed when “it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitled him to relief.” Conley v. Gibson, 355 U.S. 41, 45–46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). See also Allen v. WestPoint–Pepperell, Inc., 945 F.2d 40, 44 (2d Cir.1991); Berheim v. Litt, 79 F.3d 318, 321 (2d Cir.1996).

*4 Review must be limited to the complaint and documents attached or incorporated by reference thereto. Kramer v. Time Warner, Inc., 937 F.2d 767, 773 (2d Cir.1991). In this context, the Second Circuit has held that a complaint is deemed to “include ... documents that the plaintiffs either possessed or knew about and upon which they relied in bringing the suit.” Rothman v. Gregor, 220 F.3d 81, 88 (2d Cir.2000).

Fed. R. Civ. Proc. 56(e) provides that a court shall grant a motion for summary judgment “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits ... show that there is no genuine issue as to material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Silver v. City Univ., 947 F.2d 1021, 1022 (2d Cir.1991). “The party seeking summary judgment bears the burden of establishing that no genuine issue of material fact exists and that the undisputed facts establish her right to judgment as a matter of law.” Rodriguez v. City of New York, 72 F.3d 1051, 1060–61 (2d Cir.1995). In determining whether a genuine issue of material fact exists, a court must resolve all ambiguities and draw all reasonable inferences against the moving party. Matsushita Elec. Indus. Co. v.. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Gibbs–Alfano v. Burton, 281 F.3d 12, 18 (2d Cir.2002).

Black did not address the defendants' arguments with respect to Counts I (respondeat superior), II (negligence), III (negligent hiring), and IV (negligent training and supervision).¹ In light of the lack of any opposition to these arguments, the motion to dismiss these Counts is granted. In addition, Black did not address the defendants' argument that claims against the Police Department should be dismissed because the Police Department is a mere administrative arm of Harrison. Therefore, that motion is also granted.

The defendants argue that Count V should be dismissed pursuant to Rule 12(b)(6) as the conduct underlying Black's claim for intentional infliction of emotional distress falls within the ambit of her claims for false arrest and unlawful imprisonment.

New York law provides that a cause of action for intentional infliction of emotional distress (“IIED”) consists of four elements: (1) extreme and outrageous conduct; (2) the intent to cause, or reckless disregard of a substantial probability of causing, severe emotional distress; (3) a causal connection between the conduct and the injury; and (4) severe emotional distress. Stuto v. Fleishman, 164 F.3d 820, 827 (2d Cir.1999); see also Howell v. New York Post Co., 91 N.Y.2d 115, 121, 596 N.Y.S.2d 350, 353, 612 N.E.2d 699, 702 (1993). Conduct that is sufficiently egregious to support such a claim is “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized [society].” Murphy v. American Home Products Corp., 58 N.Y.2d 293, 303, 461 N.Y.S.2d 232, 236, 448 N.E.2d 86, 90 (1983) (quotations and citations omitted).

*5 “Claims for [IIED] must be dismissed where, as here, the conduct for the underlying claim may be redressed by way of traditional tort remedies such as battery, false arrest, and malicious prosecution.” Kirk v. Metropolitan Transp. Authority, , at *8 (S.D.N.Y. March 14, 2001) (quoting Naccarato v. Scarselli, 124 F.Supp.2d 36, 44 & n. 5 (N.D.N.Y.2000)). See also EEOC v. Die Fliedermaus, L.L.C., 77 F.Supp.2d 460, 472 (S.D.N.Y.1999) (dismissing IIED claim where defamation claim covered allegations); Hansel v. Sheridan, 991 F.Supp. 69, 75 (N.D.N.Y.1998) (dismissing IIED claim where based on same allegations as claims for malicious prosecution and assault and battery).

Black has failed to demonstrate how her claims for IIED are distinct from her claims for false arrest, unlawful imprisonment, assault and battery, and excessive force. Therefore, Count V is dismissed.

The defendants move against Counts VI and VIII pursuant to Rules 12(b)(6) and 56.

The elements of assault and battery by police officers are identical to the elements of excessive force under 42 U.S.C. § 1983. Posr v. Doherty, 944 F.2d 91, 95 (2d Cir.1991) (pairing federal excessive force claim with New York State assault and battery claim, and federal unlawful arrest with state false arrest as “appropriate since, except for section 1983's requirement that the tort be committed under color of state law, the essential elements of the two claims in each pair were substantially identical”).

A plaintiff pleading assault must allege facts that support a finding that the defendant intentionally placed the plaintiff in reasonable fear of imminent harmful or offensive bodily contact. United Nat. Ins. Co. v. Waterfront New York Realty Corp., 994 F.2d 105, 108 (2d Cir.1993). To sustain a battery claim, a plaintiff must introduce evidence tending to show that the defendant intentionally and wrongfully engaged in physical contact with the plaintiff without the plaintiff's consent. Id.

For such claims to rise to the level of constitutional violations cognizable pursuant to § 1983, the plaintiff must show that the force used was “objectively unreasonable” under the Fourth Amendment. Graham v. Connor, 490 U.S. 386, 393–94, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). Whether an officer's actions were reasonable depends on a fact-intensive inquiry considering the circumstances of the particular case, including the severity of the crime being investigated, whether the suspect posed an immediate threat to the safety of the officer or others and whether the suspect was actively resisting arrest or attempting to flee. Id. at 396–97; see also Sullivan v. Gagnier, 225 F.3d 161, 165 (2d Cir.2000). A plaintiff also must show that the officer intended to use force. O'Neil v. Krzeminiski, 839 F.2d 9, 11 n. 1 (2d Cir.1998).

Contrary to the defendants' conclusory assertion, Black has sufficiently pled the elements of assault and battery and excessive force. Viewing the facts in the light most favorable to the non-moving party, Black has alleged that the individual defendants intentionally placed her in reasonable fear of imminent harm or offensive bodily contact when they grappled with her, hitting her head against a dresser, and leaving her handcuffed on the bed for approximately ten to fifteen minutes. Further, the question of whether the police officers acted reasonably is a question of fact. Black was detained due to trespassing, a non-violent crime. Based on the information currently before the Court, there is no indication that Black was attempting to flee or that she posed any threat to the safety of the officers or to Dawn Harrington. The only actions that Black took according to the record before the Court is to protest her innocence and answer Harrington's call on her cell phone to prove that she was wrongfully held. On the basis of the limited information before the Court, these counts cannot be dismissed.

*6 The defendants suggest that because Black's false arrest claims fail, as discussed infra, her excessive force claims must also fail. They cite, however, two cases in which the premise of the excessive force claim was solely that there had been an unlawful arrest. Kirk, , at *10 (finding that disputed material facts concerning existence of probable cause precluded summary judgment on claims for assault and battery, which derived from false arrest and false imprisonment claims); Sulkowska v. Safir, , at *5 & n. 6 (S.D.N.Y. Oct.20, 2000) (same). Where there has been an unlawful arrest, any degree of force is unreasonable and excessive. E.g. Atkins v. New York City, 143 F.3d 100, 103 (2d Cir.1998). Although it is unclear from the face of the complaint, here presumably Black does not rely solely on her charge of false arrest to support her excessive force claim. These cases therefore are distinguishable. As a result, Counts VI and VIII survive the motions to dismiss and for summary judgment at this time.

The defendants seek to dismiss Count VII pursuant to Rule 56, claiming that the individual defendants were justified in detaining Black.

The Second Circuit has held that a false arrest/false imprisonment claim arising under § 1983 is “substantially the same” as a false arrest claim arising under state law. E.g., Weyant v. Okst, 101 F.3d 845, 852 (2d Cir.1996). To establish a claim for false arrest under New York law, the plaintiff must show that “(1) the defendant intended to confine the [plaintiff], (2) the plaintiff was conscious of the confinement, (3) the plaintiff did not consent to the confinement, and (4) the confinement was not otherwise privileged.” Singer v. Fulton Co. Sheriff, 63 F.3d 110, 118 (2d Cir.1995) (quoting Broughton v. State, 37 N.Y.2d 451, 373 N.Y.S.2d 87, 93, 335 N.E.2d 310, 314 (1975)).

“The existence of probable cause to arrest constitutes a justification and ‘is a complete defense to an action for false arrest’ ... whether that action is brought under state law or under § 1983.” Weyant, 101 F.3d at 852 (quoting Bernard v.. United States, 25 F.3d 98, 102 (2d Cir.1994)). 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. Id. (citing Dunaway v. New York, 42 U.S. 200, 208 n. 9 (1979); Wong Sun v. United States, 371 U.S. 471, 479, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); Brinegar v. United States, 338 U.S. 160, 175–76, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949)). Whether or not an officer had probable cause to make an arrest is a question of what the officer knew at the time of the arrest and whether the officer was reasonable in relying on that knowledge. See Riciuti v. New York City Transit Authority, 124 F.3d 123, 128 (2d Cir.1997).

*7 The question of whether or not probable cause existed may be determinable as a matter of law if there is no dispute as to the pertinent events and the knowledge of the officers. Id. (citing Singer, 63 F.3d at 118–19 (affirming summary dismissal of claim where facts as to store owner's complaint of theft revealed existence of probable cause); Moore v. Comesanas, 32 F.3d 670, 673 (2d Cir.1994) (where question of whether arresting officer had probable cause was “predominantly factual in nature, [it] was properly presented to the jury”)).

Black's testimony at the 50–h hearing reveals that there was probable cause.² According to Black, she was found in the Harrington house by Dawn Harrington. Upon Dawn Harrington's discovery of Black, she called the police indicating the presence of a trespasser in her home. Upon the officer's arrival, Dawn Harrington again advised the officers that Black did not belong in her house and had not received her permission. An officer who is told by a home owner that there is a trespasser in her home is reasonable in believing that the alleged trespasser has committed or is committing a crime in the absence of any indicia that the home owner is lying.

It does not matter that, according to Black, Dawn Harrington was incorrect in her belief that Black did not have a right to be in the home. Bernard v. United States, 25 F.3d 98, 102 (2d Cir.1994) (probable cause can exist where based on mistaken information). In addition, there is nothing to suggest that the police officers should have had reason to know that Dawn Harrington was not telling the truth or was mistaken in her belief. Miloslavsky v. AES Eng'g Soc'y, 808 F.Supp. 351, 355 (S.D.N.Y.1992) (“The veracity of citizen complainants who are the victims of the very crime they report to the police is assumed.”). The police officers only had reason to believe that they were mistaken in their beliefs after Black protested her innocence and then got Adam Harrington to phone them and tell the officers that they were incorrect in thinking she did not have a right to be in the house. The police officers then released Black after speaking to Harrington. These actions were reasonable and cannot support a claim for false imprisonment.

Black has asserted that summary judgment is inappropriate at this time because there has been no discovery.³ However, further fact discovery would not save this claim. Therefore, the inevitable need not be put off. Count VII is dismissed.

For the foregoing reasons, Counts I—V and VII are dismissed and all counts are dismissed as to the Police Department.

It is so ordered.