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United States District Court, W.D. New York
September 30, 2014
LARRY J. SHELTON COLLINS, JR., Plaintiff,v.PETER GRUEN, RN; SALLY SMITH, RN; LYDIA TORRES, RN; PATRICE MINKIEWICZ; DANIELLE WIEPERT, LPN; JENNIFER HOLOWAKA, LPN; RILEY ROBERTSON, RN; MICHELLE PORECCA, RN; SOPHIA OVERTON, LPN; LOU FUCINA, LPN; MARY BARTH, RN; PAULA CAMPANELLA; MICHELLE SIROLLI; MELANIE COMSTOCK, Nurse Practitioner; BRANDON COBURN, Nurse Practitioner; EDWIN HEIDELBERGER, M.D.; Defendants.
FRANK P. GERACI, Jr., District Judge.
Pro se Plaintiff Larry J. Shelton Collins, Jr. ("Plaintiff"), a prisoner in the custody of the New York State Department of Corrections and Community Supervision, commenced this action on January 12, 2012 by filing a Complaint (ECF No. 1), thereafter, completely replaced by an Amended Complaint filed on March 14, 2012 (ECF No. 6) seeking relief under 42 U.S.C. § 1983, alleging violations of his Fifth and Eighth Amendment rights based upon "cruel and mental punishment" due to the denial of medical treatment for diabetes while incarcerated at the Erie County Holding Center ("ECHC") located in Buffalo, New York. The Amended Complaint specifically alleged the failure of ECHC's medical staff and John and Jane Doe to administer the prescribed insulin dosages to Plaintiff for three days while under their care.
Before the Court for review and determination are the following motions: (1) a Motion to Dismiss for Failure to State a Claim pursuant to Fed.R.Civ.P. 12(b)(6) filed by Defendants Coburn and Comstock on January 30, 2013, alleging that dismissal of the Amended Complaint is proper based upon Plaintiff's failure to exhaust his administrative remedies as required by the Prison Litigation Reform Act of 1995, 42 U.S.C. § 1997e(a) ("PLRA") and that the Amended Complaint sets forth no factual allegations stating a cognizable cause of action for deliberate indifference to Plaintiff's serious medical needs nor any demonstration of their personal involvement in the treatment of Plaintiff (ECF No. 54); (2) a Motion to Dismiss for Failure to State a Claim pursuant to Fed.R.Civ.P. 12(b)(6) filed by Defendant Heidelberger on January 31, 2013, asserting as grounds for dismissal of the Amended Complaint Plaintiff's failure to allege any personal involvement by Dr. Heidelberger, and his failure to exhaust his administrative remedies as required by the PLRA (ECF No. 60); (3) a Motion for Summary Judgment filed by Plaintiff on July 22, 2013, alleging that all Defendants have withheld information pertaining to his medical treatment, Defendant Heidelberger won't admit that he is at fault, and all Defendants are responsible for damages due to pain and suffering, medical neglect, medical indifference resulting from their neglect of duty and providing him proper medical treatment (ECF No. 88); (4) a Cross Motion to Dismiss the Amended Complaint with Prejudice pursuant to Fed.R.Civ.P. 12(c), [1] filed by Defendants Gruen, Minkiewicz, Smith, and Torres on August 29, 2013, alleging Plaintiff's failure to exhaust his available administrative remedies and the failure of the Amended Complaint to state a cause of action upon which relief can be predicated under 42 U.S.C. § 1983 (ECF No. 98); (5) a Cross Motion for Summary Judgment filed by Defendants Barth, Campanella, Fucina, Holowaka, Overton, Robertson, Sirolli, and Wiepert on September 3, 2013, alleging Plaintiff's failure to exhaust his administrative remedies and his failure to show deliberate indifference regarding his medical needs (ECF No. 101); and (6) a Cross Motion for Summary Judgment filed by Defendant Heidelberger on September 3, 2013, alleging Plaintiff's failure to allege any personal involvement by Dr. Heidelberger, and his failure to exhaust his administrative remedies as required by the PLRA (ECF No. 102). The Court has considered the parties' responses in opposition and any replies filed with respect to the various motions, as well.
Because all of the motions filed by the Defendants seeking dismissal of the Amended Complaint share issue-commonality, i.e., that Plaintiff failed to exhaust his administrative remedies prior to filing this action in federal court as required by the PLRA, and because resolution of this issue is dispositive of Defendants' motions, as well as the Plaintiff's summary judgment motion, the Court has reached only the issue of exhaustion. For the reasons set forth herein below, I find that the Amended Complaint should be dismissed against all Defendants based upon Plaintiff's failure to exhaust his administrative remedies.
The Amended Complaint filed by Plaintiff named as Defendants the County of Erie, the Erie County Holding Center Medical Staff, the Erie County Holding Center Entire Staff and, additionally, stated Plaintiff's belief that various medical staff John and Jane Does, specifically, the "3 to 11 shift at night on November 18, 2011" were responsible for failing to attend to his medical needs or neglecting them. It set forth two claims giving brief recitations of the alleged involvement of the Defendants and the John and Jane Does.
In the First Claim, Plaintiff alleged that the entire medical staff at ECHC didn't provide him the services he needed, treated him unjustly and unfairly, and didn't show any concern to his matter. ECF No. 6. Plaintiff alleged "Cruel and Mental Punishment" as the constitutional basis for this claim under 42 U.S.C. § 1983. Also, regarding this First Claim, under the heading "Exhaustion of Your Administrative Remedies for this Claim, " Plaintiff checked "No, " in response to the printed question, "Did you grieve or appeal this claim?" In response to the printed question in this same section, "If you did not exhaust your administrative remedies, state why you did not do so, " Plaintiff wrote, "I believe that this matter would just been sweep under the rug." Id. at 5.
In the Second Claim, Plaintiff alleged that on November 18, 2011, he did not receive his insulin, he was denied medical attention, and the ECHC staff was aware that he was diabetic because it was in his medical record. Id. at 6. Also, regarding this Second Claim, under the heading "Exhaustion of Your Administrative Remedies for this Claim, " Plaintiff checked "No, " in response to the printed question, "Did you grieve or appeal this claim?" In response to the printed question, "If you did not exhaust your administrative remedies, state why you did not do so, " Plaintiff wrote, "I believe that no one are willing to accept that they were at fault." Id.
Plaintiff offered further statements regarding exhaustion of administrative remedies: "I believe that Jane Doe and John Doe aren't willingly to admit that it was their fault. Also I believe that this matter would have just been sweep under the rug. I honestly believe that I wouldn't gotten any responsible back." Id. at 7.
The Amended Complaint alleged in greater detail the Fifth and Eighth Amendment violations as follows:
Fifth Amend. That I was being denied medical attention, and staff didn't show and concern. They are awhere of my illness.
Fifth Amend. That know one shouldn't every be denied medical attention. Yes under New York State and Fedral law every one are entitle to medical attention even if they don't have medical cover. This is Hipqa law.
Eight Amend. By refusing to attend my medical need. Yes this is cruel and mental punishment. Also by neglecting me.
Eight Amend. I don't understand why I was being treat like this. There is no reason or excuse for this type of treatment when this matter was address to staff. The facility told the complaint that they would have to call last facility that I was at. They call Erie County Correctional Facility and they verify my circumstance. Yes Erie County Holding Center are awhere of my circumstance. Also they were given instruction that I was and diabetic, and I take 52 unit of insulin at night. Yes everything are document. The fact that this happen, and they just ignore it. This shouldn't have happen at all. I believe the entire staff should be held accountable. Like I said I had made numerous complain and staff just ignore them. Staff didn't try to correct or recify this matter no apology were made. I believe that inmate should receive better treatment. And better and update equipment. Also staff should pay more attention to inmate with special need... Negligence lack of treatment I brought this to nurse attention who was pasting out medication. And her respond was that, they will call you down to infirmary. Yes this is deadly diease that I deal with daily for three days I didn't get my insulin.
Id. at 7 and 11.
By Decision & Order dated April 16, 2012, Defendants "County of Erie, " "Erie County Holding Center Medical Staff, " and "Erie County Holding Center Entire Staff" were terminated from this action, leaving only the John and Jane Doe Medical Staff as Defendants. ECF No. 8. In accordance with the order issued therein pursuant to Valentin v. Dinkins, 121 F.3d 72 (2d Cir. 1997) (per curiam), the County Attorney of Erie County provided the full names and addresses of the John and Jane Doe defendants which Plaintiff sought to sue, and on June 6, 2012, the "John and Jane Doe defendants medical staff November 18, 2011, 3-11 shift" were terminated from this action and the names of twelve nurses were added as Defendants. Subsequently, on July 31, 2012, the Erie County Attorney's Office notified the Court of the discovery of the names of two Nurse Practitioners who worked part of the 3:00 to 11:00 P.M. shift on November 18, 2011, and a physician who may have worked or might have been on call for part, or all, of that shift. ECF No. 31. The caption of this action reflects as Defendants all of the named individuals provided by the Erie County Attorney.[2]
On July 27, 2012, Defendants Gruen, Minkiewicz, Smith, and Torres filed their Answer to the Amended Complaint, denying Plaintiff's allegations regarding deliberate indifference and neglect of his serious medical needs during the 3:00 to 11:00 P.M. shift on November 18, 2011, and alleging that none of them was responsible for administering diabetes medication to Plaintiff. ECF No. 21. They also set forth, among others, as and for a Sixth Affirmative Defense that Plaintiff failed to comply with the requirements of the PLRA. Id. ¶¶ 6, 19. Defendants Barth, Campanella, Fucina, Holowaka, Overton, Robertson, Sirolli, and Wiepert filed their Answer on August 1, 2012, denying Plaintiff's allegations regarding deliberate indifference and neglect of his serious medical needs. ECF No. 23. They set forth as an Eighth Affirmative Defense that all claims in the Amended Complaint were barred by the PLRA due to Plaintiff's failure to exhaust his administrative remedies or provide justification for the failure to do so. Id. Rule 12(b)(6) motions seeking dismissal of the Amended Complaint were filed by Defendants Coburn and Comstock on January 30, 2013 (ECF No. 54) and by Defendant Heidelberger on January 31, 2013 (ECF No. 60), in lieu of filing answers.
Plaintiff filed his Response in Opposition to the motions to dismiss and also filed an accompanying "Affirmation" of Opposition, arguing that he "was not aware of this fact that he had to go through the process of filing a grievance, " and stated his belief that "if he had in fact submitted and filed a grievance that it would have come up missing and not being filed in the first place." ECF No. 67. Furthermore, therein he argued that "even though he did not file a grievance the Court still allowed him to move forward with his Civil right claim." Id. Defendants Coburn and Comstock, and Defendant Heidelberger, respectively, filed their replies to Plaintiff's response, again, citing Plaintiff's failure to comply with the PLRA. ECF Nos. 70, 71.
Thereafter, on July 22, 2013, Plaintiff filed a Motion for Summary Judgment, [3] consisting of a three-page document alleging that all Defendants have withheld information pertaining to his medical treatment, Defendant Heidelberger won't admit that he is at fault, and all Defendants are responsible for damages due to pain and suffering, medical neglect, medical indifference resulting from their neglect of duty and providing him proper medical treatment. ECF No. 88. In their respective responses, cross motions listed herein above, and replies, Defendants opposed Plaintiff's motion, again, denying the substantive allegations and asserting his failure to comply with PLRA requirements. ECF Nos. 92, 93, 94, 95, 96, 97, 98, 99, 100, 101, 102, 107.
Responding to the opposition to his summary judgment motion and the cross motions, Plaintiff pressed allegations of deliberate indifference and failure to attend to his medical needs. ECF No. 102, 103, 104, 106, 108. In one such response, Plaintiff stated, "Even though the petitioner didn't exhaust has remedies the court still let him proceed." ECF No. 103.
A. Applicable Legal Standards
1. Motion to Dismiss
A court deciding a motion to dismiss a complaint for failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, "must accept as true all of the allegations contained in a complaint." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In order "[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Id. at 678 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678. The determination regarding "whether a complaint states a plausible claim for relief... [is] a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 679. Under this plausibility standard, a complaint must allege "more than a sheer possibility that a defendant has acted unlawfully." Id. at 678.
"[W]ell-pleaded factual allegations" permit a court to "assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Id. at 679. Although the factual allegations set forth in the Complaint are assumed to be true, this tenet is "inapplicable to legal conclusions." Id. at 678. If a plaintiff "ha[s] not nudged [his/her] claims across the line from conceivable to plausible, [his/her] complaint must be dismissed." Bell Atlantic Corp. v. Twombly, 550 U.S. at 570. "In ruling on a motion pursuant to Fed.R.Civ.P. 12(b)(6), the duty of the court is merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof." DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 113 (2d Cir. 2010) (internal citation and quotation marks omitted).
Where the complaint was filed pro se, "it must be construed liberally with special solicitude' and interpreted to raise the strongest claims that it suggests." Hogan v. Fischer, 738 F.3d 509, 515 (2d Cir. 2013) (citing Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011) (internal quotation marks omitted). Notwithstanding this solicitous approach, a pro se complaint must state a plausible claim for relief. See Harris v. Mills, 572 F.3d 66, 73 (2d Cir. 2009).
2. Judgment on the Pleadings
Rule 12(c) permits a party to move for judgment on the pleadings "after the pleadings are closed - but early enough not to delay trial." Fed.R.Civ.P. 12(c). Thus, in deciding a Rule 12(c) motion, a court employs the same standard applicable to dismissals pursuant to Fed.R.Civ.P. 12(b)(6). Hayden v. Paterson, 594 F.3d 150, 160 (2d Cir. 2010) (quoting Johnson v. Rowley, 569 F.3d 40, 43 (2d Cir. 2009) (per curiam). A court must accept as true all of the factual allegations in the complaint and draw all reasonable inferences in favor of the plaintiff. Id. To withstand a motion for judgment on the pleadings, a court must determine whether the "well-pleaded factual allegations, ' assumed to be true, plausibly give rise to an entitlement to relief.'" Id. at 161 (citing Ashcroft v. Iqbal, 556 U.S. 662 (2009)). Thus, granting judgment on the pleadings is only appropriate when, after reviewing the record, the court is convinced that the Plaintiff has failed to set forth a plausible claim for the requested relief based on the evidence presented. See generally Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007).
3. Motion for Summary Judgment
The summary judgment standard is well established. Pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, "[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); Gonzalez v. City of Schenectady, 728 F.3d 149, 154 (2d Cir. 2013) ("Summary judgment is appropriate if there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law.") (citation omitted). The burden is on the moving party to establish the absence of any material factual issues. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A court assessing a motion for summary judgment is "required to resolve all ambiguities and draw all permissible inferences in favor of the party against whom summary judgment is sought." Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003); Duse v. International Business Machines Corp., 252 F.3d 151, 158 (2d Cir. 2001) (citing, e.g., Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); see Marvel Characters, Inc. v. Kirby, 726 F.3d 119, 135 (2d Cir. 2013). Although the district court must view the evidence in favor of the nonmoving party, "[t]he mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." Jeffreys v. City of New York, 426 F.3d 549, 554 (2d Cir. 2005) (quoting Anderson, 477 U.S. at 252) (internal alterations and emphasis omitted). Reliance by the nonmoving party on "conclusory allegations or unsubstantiated speculation" is insufficient to defeat a motion for summary judgment. Id. at 554 (quoting Fujitsu Ltd. v. Federal Exp. Corp., 247 F.3d 423, 428 (2d Cir. 2001)). Summary judgment is appropriate "[w]here the record taken as a whole could lead a rational trier of fact to find for the nonmoving party." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Thus, the court's function in deciding a summary judgment motion is not "to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 249.
Plaintiff is proceeding pro se ( Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) ("A document filed pro se is to be liberally construed, and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.") (internal citation and quotation marks omitted)). This does not mean, however, that a pro se litigant is excused from following the procedural requirements of summary judgment. A pro se litigant's "bald assertion, ' completely unsupported by evidence is not sufficient to overcome a motion for summary judgment." Conklin v. Bowen, No. 9:12-cv-01478 (MAD/TWD), 2014 WL 4063294, *4 (N.D.N.Y. August 14, 2014) (quoting Lee v. Coughlin, 902 F.Supp. 424, 429 (SDNY 1995) (citing Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991)) (internal quotation marks omitted)).
4. Legal Standard Applied in this Case
Because all of the motions filed by the Defendants relative to the issue of exhaustion are directed to the allegations in the Amended Complaint and Plaintiff's statements therein that he did not exhaust his administrative remedies, the Court will consider all such motions under Rule 12(b)(6).
B. Exhaustion of Administrative Remedies under the PLRA
Section 1997e(a) of the PLRA provides: "No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." In Porter v. Nussle, 534 U.S. 516, 532 (2002), the Supreme Court declared, "[f]or the reasons stated, we hold that the PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." It is clear, generally, that a prisoner's exhaustion of administrative remedies prior to filing a federal court case is mandatory.
The PLRA's "dominant concern [is] to promote administrative redress, filter out groundless claims, and foster better prepared litigation of claims in court." Porter v. Nussle, 534 U.S. at 528. The Act "attempts to eliminate unwarranted federal-court interference with the administration of prisons." Woodford v. Ngo, 548 U.S. 81, 93 (2006). Because "Congress placed a restraint on suits filed by all litigants who could be characterized as prisoners, " the PLRA "includes within its ambit all facilities in which prisoners are held involuntarily as a result of violating the criminal law." Ruggiero v. County of Orange, 467 F.3d 170, 175 (2d Cir. 2006). Thus, the PLRA applies, "regardless of the type of facility in which they are imprisoned." Id.
Prisoners must utilize the available grievance procedures, "regardless of whether the relief sought is offered through those procedures." Espinal v. Goord, 558 F.3d 119, 124 (2d Cir. 2009) (citation omitted); Johnson v. Killian, 680 F.3d 234, 238 (2d Cir. 2012) ("Prisoners must complete the administrative review process in accordance with the applicable procedural rules - rules that are defined not by the PLRA, but by the prison grievance process itself."). Exhaustion necessitates "using all steps that the [government] agency holds out, and doing so properly." Amador v. Andrews, 655 F.2d 89, 96 (2d Cir. 2011) (quoting Woodford v. Ngo, 548 U.S. at 90).
Generally, while these grievance procedure steps must be followed prior to an inmate filing an action in federal court, see Morrison v. Parmele, 892 F.Supp.2d 485, 488 (W.D.N.Y. 2012) (citing Porter v. Nussle, 534 U.S. at 524), it is equally clear that
[C]ertain caveats apply wherein a prisoner's failure to exhaust may be excused: (1) when administrative remedies are not available to the prisoner, (2) when the defendants waive the defense by failing to raise or preserve it, or acted in such a manner that they are estopped from raising it, and (3) when special circumstances exist to justify the prisoner's failure to comply with the exhaustion requirement.
Id. (quoting Linares v. Albrith, Civ. No. 9:03-CV-1408 (LEK/RFT), 2009 WL 799969, at *4 (N.D.N.Y. Mar. 25, 2009) (citations omitted)).
There is no question the PLRA requirements applied in Plaintiff's circumstances. At the time the allegations in this case arose. Plaintiff was confined in ECHC, a county jail facility with its own prescribed grievance procedures which, according to the Affidavit of Erie County Deputy Sheriff Paul Evans, were in effect at the time Plaintiff entered the Erie County Correctional Facility and the ECHC. See Evans Aff., ¶ 5, ECF No. 58. Exhibit A attached thereto, titled "Erie County Sheriff's Office Jail Management Division Inmate Handbook" ("Handbook") on pages 16 through 18, details the Inmate Grievance Procedure consisting of both informal procedures for resolving verbal requests/complaints and formal resolution procedures for written grievances. Id.
For informal grievances not immediately resolved, the procedure required that a written request be forwarded to the appropriate person or office for review and consideration with a decision made "without undue delay." The formal resolution procedure outlined in paragraphs 1-11, required the filing of a written grievance within five (5) days of the act or occurrence, to be reviewed immediately by the housing area officer who will provide assistance both in filling out the grievance form and resolving the grievance. If the grievance cannot be resolved with the assistance of the housing area officer, it will be forwarded to a supervisor both for review and assistance in resolving it. If the grievance cannot be resolved with a supervisor's assistance, it will be forwarded to the Grievance Coordinator for processing and rendering a decision within five (5) days. If he was dissatisfied with the decision of the Grievance Coordinator, the inmate may appeal to the Superintendent within two (2) business [days] of receipt of the Grievance Coordinator's decision. The inmate will receive the decision of the Superintendent within five (5) days of the appeal. If dissatisfied with the Superintendent's decision, the inmate may appeal to the New York State Commission of Correction, and will be notified of its decision by mail within 45 days of the date it received the grievance.
Here, Plaintiff plainly has acknowledged in the Amended Complaint that he did not file a grievance or an appeal with respect to either of his claims. Indeed, the records kept in the regular course of business by the Erie County Sheriff's Department pertaining to Plaintiff's incarceration from August 8, 2011 to November 21, 2011, bear out Plaintiff's acknowledgment, for they disclose no record demonstrating that he filed or lodged a grievance with the ECSD about not receiving his diabetes mediation from on or about November 18, 2011-November 20, 2012. Evans Aff., ¶ 7. Furthermore, accepting Plaintiff's allegations as true, there is no need for this Court to consider whether he made any attempts to file a grievance, or whether the Defendants somehow thwarted such attempts.
Interpreting the Amended Complaint to raise the strongest claims that it suggests, as this Court must do, it appears that Plaintiff has attempted to justify his failure to comply with the exhaustion requirement, in essence, to explain why his failure to follow the grievance process ought to be excused, ergo, his claims that he was unaware of the grievance procedures or that they would have gone unheeded, i.e., "sweep under the rug." This Court rejects Plaintiff's approach for several reasons.
First, the Amended Complaint contains the following printed language under the section titled, Exhaustion of Administrative Remedies:
Note that according to 42 USC § 1997e(a), "[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prison[er] confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.
You must provide information about the extent of your efforts to grieve, appeal, or otherwise exhaust your administrative remedies, and you must attach copies of any decisions or other documents which indicate that you have exhausted your remedies for each claim you assert in this action. (Emphasis in original).
ECF No. 6, 4. Even assuming that Plaintiff may have overlooked this section of the form complaint, or that he may not have appreciated the significance of the language regarding the PLRA requirements when completing the Amended Complaint, this Court agrees with Defendants Coburn and Comstock that the Evans Affidavit (ECF No. 58, ¶¶ 3-8) and Exhibits B-D attached thereto, dispel any hesitation regarding rejection claims by Plaintiff that administrative remedies are not available to him, or that he was unaware of the exhaustion requirement. Exhibit B consists of a copy of the "Booking Summary Report Sheet" reflecting Plaintiff's entry into the Erie County Jails on August 8, 2011. Exhibit C consists of a copy of a document containing the "NOTICE TO ALL INMATES, " signed by Plaintiff on August 8, 2011, the date he was booked into the ECHC, acknowledging receipt of the Handbook detailing the Inmate Grievance Procedure. Exhibit D consists of a copy of the Erie County Sheriff's Office Grievance Program effective October 1, 2010.
There is nothing apparent in the Amended Complaint itself from which it is possible to conclude that Defendants waived or failed to preserve any defenses to the exhaustion of administrative remedies. In the Second Circuit, exhaustion under the PLRA is an affirmative defense for the defendants to assert. Bryant v. Williams, No. 08-CV-778S, 2009 WL 1706592, at *8 (W.D.N.Y. June 17, 2009). Indeed, as stated earlier, the Answer filed by Defendants Gruen, Minkiewicz, Smith, and Torres set forth as and for a Sixth Affirmative Defense that the Amended Complaint failed to comply with the requirements of the PLRA. ECF No. 21, ¶¶ 6, 19. Likewise in their Answer, Defendants Barth, Campanella, Fucina, Holowaka, Overton, Robertson, Sirolli, and Wiepert raised as an Eighth Affirmative Defense that the Amended Complaint is barred under the PLRA by Plaintiff's failure to exhaust his administrative remedies or provide a legally cognizable justification for the failure to do so before commencing this action. ECF No. 23, ¶ 27. Defendants Coburn and Comstock, and Defendant Heidelberger, respectively, raised the failure to exhaust defense in their Motions to Dismiss filed in lieu of answering the Amended Complaint. ECF Nos. 54, 60. Throughout this litigation, all Defendants have continued to assert Plaintiff's failure to exhaust, [4] a circumstance which, to this Court, represents an unambiguous indication that they did not waive, but preserved the non-exhaustion defense.
Nor are there allegations that any of these Defendants prevented Plaintiff from following the exhaustion procedures or engaged in other conduct by which they should be estopped from asserting non-exhaustion as a defense. Importantly, Plaintiff's allegations, simply relaying his beliefs that any filed grievance would be swept under the rug or go missing, amount to little more than unsupported conclusions on his part. No allegations articulated in the Amended Complaint plausibly or conceivably gave rise to such conclusions. I, therefore, find that administrative remedies were available to the Plaintiff, and the Defendants neither waived the defense of non-exhaustion, nor acted in such a manner that they were estopped from raising it.
In determining whether special circumstances have been plausibly alleged to excuse an inmate's failure to exhaust his administrative remedies, a court must evaluate the "circumstances which might understandably lead usually uncounseled prisoners to fail to grieve in the normally required manner." Morrison v. Parmele, 892 F.Supp.2d at 488 (quoting Giano v. Goord, 380 F.3d 670, 678 (2d Cir. 2004)). The Amended Complaint discloses no such circumstances. In this Court's estimation, a similarly situated prisoner to whom grievance procedures were made available, and who was not prevented from taking advantage of the grievance process to address an alleged failure to receive treatment for a serious medical condition such as diabetes, would not fail to utilize the grievance procedures.
I find irrelevant the fact that Plaintiff was allowed to proceed in the litigation of his claims, notwithstanding his alleged failure to exhaust his administrative remedies. Nor will Plaintiff's belated claim that he was "not aware of this fact, that he had to go through the process of filing a grievance, " offered in his sworn response to the motions to dismiss (ECF No. 67), suffice to justify non-exhaustion. "While reliance on reasonable interpretation of the grievance process has been found to constitute special circumstances, ignorance or disregard of such procedures is not an excusing special circumstance." Id. (citing Bryant v. Williams, No. 08-CV-778S, 2009 WL 1706592, at *8 (W.D.N.Y. June 17, 2009) (citing Hemphill v. New York, 380 F.3d 680, 686, 689-690 (2d Cir. 2004)). I am not persuaded that Plaintiff did not simply ignore or disregard the ECHC grievance process. Consequently, this lawsuit, filed before the exhaustion of available administrative remedies, in the absence of reasonable justification, must be dismissed.
For the reasons set forth herein above, Defendants' motions, ECF Nos. 54, 60, 98, 101, and 102, are GRANTED; and Plaintiff's motion, ECF No. 88, is DENIED on the ground that Plaintiff failed to exhaust his administrative remedies. The Amended Complaint is hereby dismissed, and the Clerk of the Court is directed to close Case No. 12-CV-6022.
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March 23, 2012
LEROI BOUCHE, PLAINTIFF,v.CITY OF MOUNT VERNON, POLICE OFFICER ANTHONY MITCHELL, POLICE OFFICER ENZO BAIA, POLICE OFFICER GEORGE OSSIPO IN THEIR OFFICIAL AND INDIVIDUAL CAPACITIES, AND JOHN AND JANE DOE 1-10, DEFENDANTS.
Leroi Bouche brings this action pursuant to section 1983 of Title 42 of the United States Code ("section 1983") raising seventeen federal and state claims. The claims are based on allegedly coerced and falsified statements police officers obtained from three witnesses in a murder investigation, leading to the alleged false arrest and malicious prosecution of the plaintiff. Defendants now move to dismiss Bouche's Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim for which relief may be granted.*fn1 For the following reasons, defendants' motion to dismiss is granted in part and denied in part.
II. BACKGROUND*fn2
A. The Incident Leading to Bouche's Arrest
On January 12, 2009, several police officers arrested Bouche for an incident occurring on one of three dates: August 13, 2008, October 13, 2008 or August 13, 2009.*fn3 The incident involved the death of Shomari Knox, who was operating a vehicle in the early hours of the morning when he was shot and killed.*fn4
The other passengers in the car were Turon Savoy, Corey Cabannis, Donny Dixon, and Travis Bryant.*fn5 All four passengers told the police that they could not identify the shooter because it was dark outside and the shooter was wearing a hoodie.*fn6
Subsequently, three individuals who were questioned by police about the shooting implicated Bouche in the crime.*fn7
B. The Three Witnesses Linking Bouche to the Shooting
The first witness, Janita Robinson, was arrested on unrelated felony charges on September 22, 2008.*fn8 On October 16, 2008, Robinson was interrogated by Police Officers Mitchell and Baia about her previous conversations and interactions with Bouche.*fn9 Bouche claims that Robinson provided false statements about the shooting, in exchange for leniency in her pending criminal matter.*fn10
The second witness, Teena Castellano, was interrogated by Police Officers Mitchell and Ossipo after being arrested on January 7, 2009 on unrelated felony charges. Bouche again alleges that Castellano provided false statements and information about the shooting, in exchange for leniency in her pending criminal matter. The final witness, Savoy, was one of the passengers in the car on the night of the murder. Savoy was arrested and prosecuted for an unrelated felony assault on April 22, 2009.*fn11 Savoy was questioned by police officers about the Knox shooting and identified Bouche as the shooter. Bouche alleges that the detectives coerced Savoy into recanting his original statement that he could not identify the shooter and identifying Bouche as the suspect. This identification of the plaintiff occurred seven months after the shooting. Bouche also alleges that the defendants showed Savoy a photograph of him during the interrogation and "indicated that he should identify the person depicted in the photos as the perpetrator . . . and that he should pick that same person out in a line-up which was held on June 3, 2009."*fn12
Bouche alleges that in exchange for identifying him in the interrogation room and in the line-up, Savoy was promised and received a reduced sentence.*fn13
C. The Arrest and Subsequent Trial
Bouche was eventually arrested for the murder of Knox. He alleges that
"as a result of the defendants' improper and unlawful investigation of
Shomari Knox's death, and the defendants, intentional, reckless,
and/or deliberate disregard for plaintiff's rights, plaintiff was
indicted by a Grand Jury."*fn14 While Bouche
awaiting trial, he was remanded and incarcerated at the Westchester
Department of Corrections ("WCDOC") and on Rikers Island.*fn15
Subsequently, on April 29, 2010, Bouche was acquitted of all
charges and the case record was sealed.*fn16
Bouche alleges that his arrest and prosecution were a "direct result of the unconstitutional policies, customs or practices of the CITY OF MOUNT VERNON, including, without limitation, the inadequate screening, hiring, retaining, training, and supervising of its employees."*fn17 Additionally, Bouche alleges that what allegedly happened to him is not an isolated incident, and that the City is aware that many of the City's officers are insufficiently trained and supervised. As a result of his alleged false arrest and malicious prosecution, Bouche claims he sustained "physical injuries, emotional distress, embarrassment, and humiliation, and deprivation of his constitutional rights."*fn18
A. Rule 12(b)(6) - Failure to State a Claim
In deciding a motion to dismiss pursuant to Rule 12(b)(6), a court must evaluate the sufficiency of a complaint under the "two-pronged approach" articulated by the Supreme Court in Ashcroft v. Iqbal.*fn19 First, a court "'can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth.'"*fn20 "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice" to withstand a motion to dismiss.*fn21 Second, "[w]hen there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief."*fn22 To survive a Rule 12(b)(6) motion to dismiss, the allegations in the complaint must meet a standard of "plausibility."*fn23 A claim is facially plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged."*fn24 Plausibility "is not akin to a probability requirement;" rather, plausibility requires "more than a sheer possibility that a defendant has acted unlawfully."*fn25
"In considering a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6), a district court may consider the facts alleged in the complaint, documents attached to the complaint as exhibits, and documents incorporated by reference in the complaint."*fn26 However, a court may also consider a document, not incorporated by reference, "where the complaint 'relies heavily upon its terms and effect,' thereby rendering the document 'integral' to the complaint."*fn27
B. Section 1983
Section 1983 states, in relevant part, that [e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . .
Section 1983 "does not create a federal right or benefit; it simply provides a mechanism for enforcing a right or benefit established elsewhere."*fn28 "The purpose of [section]1983 is to deter state actors from using the badge of their authority to deprive individuals of their federally guaranteed rights and to provide relief to victims if such deterrence fails."*fn29 In order to state a claim under section 1983, a plaintiff must show that the conduct complained of was committed by a person or entity acting under color of state law, and that the conduct deprived a person of rights, privileges, or immunities secured by the Constitution.*fn30 Any form of liability under section 1983 requires that the defendant's direct involvement caused the damages. "Because vicarious liability is inapplicable to ... [section] 1983 suits, a plaintiff must [prove] that each Government-official defendant, through the official's own individual actions, has violated the Constitution."*fn31
For a person deprived of a constitutional right to have recourse against a municipality under section 1983, he or she must show harm that results from an identified municipal "policy," "custom," or "practice."*fn32 In other words, a municipality may not be found liable simply because one of its employees or agents is guilty of some wrongdoing.*fn33 Moreover, a policy, custom, or practice cannot arise soley from a single instance of unconstitutional conduct by an employee of the municipality.*fn34 The Supreme Court has emphasized that [i]t is not enough for a § 1983 plaintiff merely to identify conduct properly attributable to the municipality. The plaintiff must also demonstrate that, through its deliberate conduct, the municipality was the "moving force" behind the injury alleged. That is, a plaintiff must show that the municipal action was taken with the requisite degree of culpability and must demonstrate a direct causal link between the municipal action and the deprivation of federal rights.*fn35
In the absence of an established written municipal policy, a plaintiff must prove that a municipal practice was so "'persistent or widespread' as to constitute 'a custom or usage with the force of law,'"*fn36 or that a practice or custom of subordinate employees was "so manifest as to imply the constructive acquiescence of senior policy-making officials."*fn37
C. False Arrest and False Imprisonment
A section 1983 claim for false arrest arises under the Fourth Amendment right to be free from unreasonable seizure and is identical to a claim for false arrest under New York law.*fn38 Falsearrest and false imprisonment are synonymous under New York law.*fn39 To establish a claim for false arrest/false imprisonment, a 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."*fn40
The existence of probable cause to arrest is a complete defense to a false arrest/imprisonment claim.*fn41 "[P]robable 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."*fn42 It is well-established that "[w]hen information [regarding an alleged crime] is received from a putative victim or an eyewitness, probable cause exists . . . unless the circumstances raise doubt as to the person's veracity."*fn43 A victim's delay in reporting a crime may also be a factor in evaluating the victim's credibility and the assessment of probable cause.*fn44
D. Malicious Prosecution
A claim for malicious prosecution is distinct from an action for false arrest/false imprisonment because it is composed of different elements and protects a different interest.*fn45 "Typically, a warrantless deprivation of liberty from the moment of arrest to the time of arraignment will find its analog in the tort of false arrest, while the tort of malicious prosecution will implicate post-arraignment deprivations of liberty."*fn46 In order to establish a claim for malicious prosecution under section 1983, a plaintiff must also allege all the elements of malicious prosecution under state law.*fn47 "To state a claim under New York law for the tort of malicious prosecution, a plaintiff must show: (1) that the defendant commenced or continued a criminal proceeding against him; (2) that the proceeding was terminated in the plaintiff's favor; (3) that there was no probable cause for the proceeding; and (4) that the proceeding was instituted with malice."*fn48 To demonstrate malice in a malicious prosecution claim, plaintiff does not have "to prove that the defendant was motivated by spite or hatred . . . ."*fn49 Rather, a plaintiff must show that the defendant "commence[d] a criminal proceeding 'due to a wrong or improper motive, something other than a desire to see the ends of justice served.'"*fn50 "A lack of probable cause generally creates an inference of malice."*fn51
"[I]n a malicious prosecution action, the relevant probable cause determination is whether there was probable cause to believe the criminal proceeding could succeed and, hence, should be commenced."*fn52 "[U]nder New York law, indictment by a grand jury creates a presumption of probable cause that may only be rebutted by evidence that the indictment was procured by 'fraud, perjury, the suppression of evidence or other police conduct undertaken in bad faith.'"*fn53 "[I]t is the plaintiff who bears the burden of proof in rebutting the presumption of probable cause that arises from the indictment."*fn54
E. Qualified Immunity
Qualified immunity protects officials from liability if "their conduct
does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known."*fn55
The Second Circuit has held that "[a] right is clearly
established if (1) the law is defined with reasonable clarity, (2) the
Supreme Court or Second Circuit has recognized the right, and (3) a
reasonable defendant [would] have understood from the existing law
that [his] conduct was unlawful."*fn56 The Second
Circuit has emphasized that "a defendant presenting an immunity
defense on a Rule 12(b)(6) motion instead of a motion for
judgment must accept the more stringent standard applicable to this
procedural route."*fn57
"It is well established that an arrest without probable cause is a constitutional violation."*fn58 However, "[e]ven if probable cause to arrest is ultimately found not to have existed, an arresting officer will still be entitled to qualified immunity from a suit for damages if he can establish that there was 'arguable probable cause' to arrest."*fn59 "Arguable probable cause exists 'if either (a) it was objectively reasonable for the officer to believe that probable cause existed, or (b) officers of reasonable competence could disagree on whether the probable cause test was met.'"*fn60
F. Abuse of Process
"'In its broadest sense, abuse of process may be defined as misuse or perversion of regularly issued legal process for a purpose not justified by the nature of the process.'"*fn61 "In New York, 'a malicious abuse-of-process claim lies against a defendant who (1) employs regularly issued legal process to compel performance or forbearance of some act (2) with intent to do harm without excuse of justification, and (3) in order to obtain a collateral objective that is outside the legitimate ends of the process.'"*fn62
G. Failure to Intervene
"It is widely recognized that all law enforcement officials have an affirmative duty to intervene to protect the constitutional rights of citizens from infringement by other law enforcement officers in their presence."*fn63 "Liability only attaches if (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 does not take reasonable steps to intervene."*fn64
H. Intentional Infliction of Emotional Distress
"New York law requires that a plaintiff alleging intentional infliction of emotional distress prove four elements: '(1) extreme and outrageous conduct; (2) 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.'"*fn65 Whether the alleged conduct is sufficiently extreme and outrageous is a matter of law for the courts to decide.*fn66
The extreme and outrageous requirement provides for liability only where the conduct has been "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."*fn67
I. Negligence
"Under New York law, the elements of a negligence claim are: (i) a duty owed to the plaintiff by the defendant; (ii) breach of that duty; and (iii) injury substantially caused by that breach."*fn68 To state a claim for negligent supervision, a plaintiff must first plead that an employee was negligent. The plaintiff must then allege "(1) that the tort-feasor and the defendant were in an employee-employer relationship; (2) that the employer 'knew or should have known of the employee's propensity for the conduct which caused the injury' prior to the injury's occurrence; and (3) that the tort was committed on the employer's premises or with the employer's chattels."*fn69
A. Claim One - Deprivation of Rights Under Section 1983
Because section 1983 "does not create a federal right or benefit; it simply provides a mechanism for enforcing a right or benefit established elsewhere,"*fn70 claim one must be dismissed.
B. Claim Two - False Arrest
Defendants argue that because three witnesses identified Bouche as the
shooter, the officers had probable cause to arrest him.*fn71
The existence of probable cause defeats a section 1983 false
arrest claim.*fn72 "[T]he probable cause standard does
not require that the arresting officer affirmatively seek out reasons
to doubt the victim or witness where none are apparent."*fn73
Nonetheless, if a defendant knows that witness statements are
false or coerced, this will defeat probable cause.
Here, the officers may well have had reasons to question the veracity of the witnesses. For instance, Savoy, a passenger in the car during the shooting, originally told the police that he was unable to identify the shooter. However, when questioned nearly eight months after the shooting, and after being arrested on a separate felony offense, Savoy identified Bouche as the shooter. Further, because Bouche alleges that the police officers coerced Savoy into falsely identifying Bouche, it is plausible that the officers knew that they did not have the necessary probable cause to arrest him. Similarly, Castellano identified Bouche five months after the crime was committed, and only when she was in custody for an unrelated crime. The lengthy delays, as well as the circumstances in which the witnesses eventually identified Bouche as the shooter, raise questions as to the legitimacy of the eyewitness accounts.Taking the facts alleged in the Complaint as true, there were sufficient indications that the identifications were unreliable and could not establish probable cause. The defendants' motion to dismiss the false arrest claim based on the existence of probable cause is therefore denied.*fn74
C. Claims Three and Nine - Malicious Prosecution
Defendants argue that Bouche's malicious prosecution claims must be dismissed because all decisions following the arraignment were made by the district attorney's office rather than the defendants. Additionally, defendants argue that Bouche failed to allege that any of the defendants had any awareness of "conscious falsity" and therefore cannot establish malice.*fn75 "Although there is a presumption that a prosecutor exercises independent judgment in deciding whether to initiate and continue a criminal proceeding, an arresting officer may be held liable for malicious prosecution 'when a police officer creates false information likely to influence a jury's decision and forwards that information to prosecutors.'"*fn76
Bouche has adequately stated a claim for malicious prosecution under
state law and under section 1983. Bouche has alleged that the police
department acted in bad faith in improperly creating and then using
unreliable eyewitness identifications. Further, this allegation of bad
faith also goes to the "conscious falsity" needed to plead malice.
Malice means "that the defendant must have commenced the prior
criminal proceeding due to a wrong or improper motive, something other
than a desire to see the ends of justice served." *fn77
Therefore, defendants' motion to dismiss Bouche's federal and
state claims for malicious prosecution is denied.
D. Claim Five - Qualified Immunity
The defendants argue, in the alternative, that the individual defendants are entitled to qualified immunity for the false arrest and malicious prosecution claims, even in the absence of probable cause, because it was objectively reasonable for them to believe there was probable cause, or at the very least, reasonable officers could disagree on whether there was probable cause. However, at this early stage it is impossible to determine whether it was objectively reasonable for an officer to believe there was probable cause to arrest and prosecute Bouche or even whether reasonable officers could disagree on this question. Bouche alleges that the officers intentionally created the false identifications which led to his arrest and prosecution. If this is accurate, the officers would not be entitled to qualified immunity because no reasonable officer would believe that there was probable cause. Accordingly, defendants' motion to dismiss based on qualified immunity is denied, without prejudice and with leave to renew.
E. Claims Four and Ten - Abuse of Process
When an arresting officer is alleged to have committed "malicious abuse of process," the plaintiff "must claim that [the arresting officer] aimed to achieve a collateral purpose beyond or in addition to his criminal prosecution."*fn78
Plaintiff has only alleged that defendants initiated the proceedings "to get credit for a high profile felony arrest."*fn79 Plaintiff has not pled that the officers sought to achieve a collateral objective beyond or in addition to an arrest of a suspect and to close a homicide case. Therefore, defendants' motion to dismiss the abuse of process claims is granted.
F. Claim Five - Failure to Intervene
Plaintiff's failure to intervene claim is vague and conclusory. Plaintiff alleges that "[d]efendants had an affirmative duty to intervene on behalf of plaintiff LEROY BOUCHE, whose constitutional rights were being violated in their presence by other officers." It is unclear which defendants plaintiff is referring to. Bouche only refers to the defendants in the collective, never identifying which defendants were responsible for specific actions. Because plaintiff failed to state who or how defendants failed to intervene, defendants' motion to dismiss claim five is granted.
G. Claim Six - Deprivation of Substantive Due Process*fn80
"Where a particular constitutional amendment 'provides an explicit textual source of constitutional protection' against a particular sort of government behavior, 'that Amendment, not the more generalized notion of 'substantive due process,' must be the guide for analyzing these claims.'"*fn81 Here, plaintiff' substantive due process claim is based upon the events surrounding his arrest and subsequent prosecution. Because the Fourth Amendment provides an explicit textual source for the constitutional protection in question, plaintiff's substantive due process claim under the Fourteenth Amendment is improper, and is therefore dismissed.*fn82
H. Claim Seven - Supervisory Liability
Plaintiff has not adequately pled that the individual defendants have supervisory liability under section 1983. Imposition of liability under section 1983 requires a defendant's direct involvement in the alleged constitutional violation.*fn83
Thus, "[a] supervisory official cannot be liable solely on account of
the acts or omissions of his or her subordinates."*fn84
In 1995, the Second Circuit held that the personal
involvement of a supervisory defendant may be shown by evidence
(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 indicated that unconstitutional acts were occurring.*fn85 However, in 2009, the Supreme Court held that "[b]ecause vicarious liability is inapplicable to . . . [section] 1983 suits, a plaintiff must [prove] that each Government-official defendant, through the official's own individual actions, has violated the Constitution."*fn86 "Accordingly only the first and third Colon factors have survived the Supreme Court's decision in Iqbal."*fn87
In the instant case, the Complaint does not identify which defendants were considered supervisors or adequately establish their alleged personal involvement. Therefore, defendants' motion to dismiss plaintiff's supervisory liability claim is dismissed.
I. Claim Eight - Monell Claim Against the City of Mount Vernon
In order to sustain a claim for relief under section 1983 against a municipal defendant, a plaintiff must show the existence of an official policy or custom that caused injury, and a direct causal connection between that policy or custom and the deprivation of a constitutional right.*fn88 "The mere assertion . . . that a municipality has such a custom or policy is insufficient in the absence of allegations of fact tending to support, at least circumstantially, such an inference . . . ."*fn89 "Plaintiff's argument that discovery is needed to acquire factual information regarding the specific policy or custom is not compelling."*fn90 Bouche has not alleged any facts tending to support an inference that any improper practice or custom was endorsed by the City. Accordingly, plaintiff's claim of municipal liability is dismissed.
J. Claim Eleven - Intentional Infliction of Emotional Distress
In New York, a claim of intentional infliction of emotional distress "is a theory of recovery that is to be invoked only as a last resort, when traditional tort remedies are unavailable."*fn91 The conduct plaintiff complains of is clearly encompassed in his other claims, including false arrest, false imprisonment, and malicious prosecution. Therefore, defendants' motion to dismiss is granted as to Bouche's claim for intentional infliction of emotional distress.
K. Claim Twelve and Thirteen - Negligent Screening, Hiring, Retention, Training and Supervision Bouche alleges that the City has failed to use reasonable care in the screening, hiring, retention, training and supervision of the individual defendants. "A claim for negligent hiring, retention, supervision and training is based on the employer's direct negligence."*fn92 "Thus, an essential element of a cause of action in negligent hiring, retention, supervision, and training is that the employer knew or should have known of the employee's propensity for the conduct which caused the injury."*fn93 Plaintiff has not alleged facts sufficient to infer that the City knew of the officers' propensity to act in the manner alleged. Accordingly, defendants' motion to dismiss the claims for negligent hiring, retention, supervision, and training is granted and claims twelve and thirteen are dismissed.
L. Claim Fourteen - Negligence
Plaintiff's negligence claim is based upon the circumstances of his
arrest and subsequent prosecution. "Under New York law, a plaintiff
may not recover under general negligence principles for a claim that
law enforcement officers failed to exercise the appropriate degree of
care in effecting an arrest or initiating a prosecution."*fn94
Additionally "[t]o the extent that Plaintiff asserts this
claim against the officers who allegedly wronged him, his negligence
claim fails because the Complaint clearly alleges intentional
conduct."*fn95 With regard to plaintiff's negligence
claim against the City, it is duplicative of claims twelve and
thirteen for negligent hiring, retention, supervision and training.
Therefore, claim fourteen is dismissed.
M. Claim Fifteen - Respondeat Superior Liability
Plaintiff argues that the City, as employer of the officers, is responsible for their conduct under respondeat superior. Defendants do not specifically address this claim in their motion to dismiss, only stating that municipalities are immune from liability based on discretionary acts of police officers - provided the actions of the officers were not inconsistent with acceptable police practice.*fn96 However, "[c]ities may be held vicariously liable for state law torts committed by police officers under a theory of respondeat superior."*fn97
To the extent plaintiff seeks to impose liability on the City under a common law theory of respondeat superior for his false arrest and malicious prosecution claims, he is allowed to proceed. Accordingly, defendants' motion to dismiss claim fifteen is denied.
N. Claims Sixteen and Seventeen - New York State Constitution Claims
Plaintiff's sixteenth and seventeenth causes of action purport to raise claims under the New York State Constitution for equal protection and for his right to be free from unreasonable seizure of his person and property. In order to adequately establish an equal protection claim, plaintiff must show discrimination was directed at an identifiable or suspect class.*fn98 Bouche does not allege that he was subjected to discrimination by any of the defendants based on race, color, creed or religion. His claim only addresses the circumstances leading to his arrest and prosecution, without any mention of discrimination. As such, defendants' motion to dismiss claim sixteen is granted and is dismissed. However, the claim for violations of Article I, section 12 remain, in accordance with the probable cause reasoning discussed above. Therefore, defendants' motion to dismiss claim seventeen is denied.
O. Leave to Replead
Whether to permit a plaintiff to amend his complaint is a matter committed to a court's "sound discretion."*fn99 Rule 15(a) provides that leave to amend a complaint "shall be freely given when justice so requires."*fn100 Moreover, "[i]t is the usual practice upon granting a motion to dismiss to allow leave to replead."*fn101 Plaintiff may amend his complaint to allege with additional specificty claims four, five, seven, eight, ten, twelve, and thirteen within twenty (20) days of the date of this Order. The remaining claims (one, six, eleven, and fourteen) are dismissed with prejudice.
For the foregoing reasons, defendants' motion to dismiss is granted as to claims one, four, five, six, seven, eight, ten, eleven, twelve, thirteen, fourteen and sixteen and is denied as to claims two, three, nine, fifteen and seventeen. The Clerk of the Court is directed to close this motion [Docket No. 5]. A conference is scheduled for April 23, 2012 at 4:30 p.m.
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She gets fucked in different postions, one of them being doggystyle from behind.
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|Kongsberg Seatex MRU 5
The MRU 5 is the ideal sensor for motion compensation of swathe bathymetric echo sounders, DP systems, ROVs, helideck monitoring systems, high speed vessel motion damping systems and tow-fish systems. It is also ideal for structural monitoring of offshore platforms and large vessels or any application where accurate motion data is crucial for high quality performance and safety.
The MRU 5 provides documented roll and pitch dynamic accuracy of 0.03° RMS at a ±5° amplitude. The MRU 5 maintains its specified accuracy aboard any surface vessel or subsea vehicle.
Key Features
High accuracy roll, pitch and heave measurements during turns and accelerations.
Each MRU delivered with Calibration Certificate.
Small size, light weight, low power consumption.
Improved dynamic accuracy in heave, roll and pitch.
Negligible drift in heave after vessel turns.
High output data rate (100 Hz).
No limitation in mounting orientation.
Lever arm compensation when mounted off the vessel
CG (centre of gravity).
Selectable communication protocols in the MRC
software for any system using motion sensors.


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1745 James Ave # 113 Miami Beach, Florida 33139
Completely furnished unit at the Sanctuary Hotel. Step from Lincoln Rd and the beach. Perfect location. Great amenities as a restaurant and pool. Perfect as a vacation home or for investment.
EWM is not responsible for the accuracy of the information listed above. The data relating to real estate for sale on this web site comes in part from the Internet Data Exchange Program and the South East Florida Regional MLS and is provided here for consumers personal, non-commercial use, It may not be used for any purpose other than to identify prospective properties consumers may be interested in purchasing. Real Estate listings held by brokerage firms other than the office owning this web site are marked with the IDX logo. Data provided is deemed reliable but not guaranteed.


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How would you like a quick and easy Persuasion Technique to get just about anyone to feel they "owe" you? Imagine what a persuasion technique this would mean for a sales call, a sales letter (yes you can do in it writing too), a negotiation, business discussions, or a situation where you are trying to get someone to do something.
There is a simple way you can create this sense of obligation in someone. You do it by using the principle of reciprocity. That is, when you give something to someone, that person will almost always feel obligated to give you something back. The sense of reciprocity is so strong that in research studies where one person treated people nicely and the other person treated the same people poorly but gave them something (lets say offered them a soda), these people were more likely to do something for the person who treated them poorly. Reciprocity is one of the most powerful persuasion techniques that you can employ.
Now if you are familiar with reciprocity don't stop reading yet, because I have a little different twist on this whole concept to share with you in few moments.
It's very likely that when you think of reciprocity, you think of giving someone a "thing" . . . it could be a gift, food, something to drink, or some other physical object. The problem with this is that in business situations current ethics guidelines may prohibit gifts (this is certainly the case in government contracts). In personal and business situations, giving a physical object creates a sense of obligation to provide something in return which can at times be awkward. Have you ever gotten a present from someone at Christmas, but didn't have anything to give in return. Next thing you know you're sneaking out of the house to run down to the store or looking in the closet for left over gifts. Reciprocity is not always an effective persuasion technique if used the wrong way at the wrong time.
Another way to create a desire to reciprocate is to expend some of your effort for someone. While my wife and I were on a trip recently our neighbors were kind enough to pick up our newspapers every day and hold them for us (we forgot to stop the delivery). That was a very nice thing to do. Shortly after we returned home, they saw the car in the driveway and brought the newspapers over. After our neighbors left, my wife looked at me, I looked at her and we both said at just about the same time "we need to do something to thank them. " Five minutes later, I was standing at the neighbor's door with a bottle of wine to repay them for the effort.
The problem with doing something for someone is that this persuasion technique won't work in situations where you don't have the opportunity to use it due to time constraints or other factors or where you may not have the desire to put out the effort.
Another way to induce reciprocity persuasion technique is to share information. The most common way to do this is for you to share information that the other person doesn't have (and would find valuable). As a marketer when making sales calls to prospective clients, I would almost always try and have some information that the client would find valuable. For example, I would often offer some upfront recommendations on how to fix current advertising to make it perform better. Another tactic I found very effective would be to tell the prospect something they didn't know about their competitors or their customer buying preferences.
By the way, a comment on ethics is important here. Do not share information that is inappropriate to give away. That is information given to you in confidence, company sensitive or proprietary information, or information which if divulged would hurt someone else.
There is one other very cool way to create the reciprocity persuasion technique. It doesn't require giving a physical object, it doesn't require expending any real effort and it puts a different slant on sharing information. If done properly, it creates a desire to "return the favor" without the person it was directed to even realizing what has happened.
This hidden use of the reciprocity persuasion technique is to SHARE A SECRET. This little twist can really build the value of information that would otherwise seem very trivial. It gives you the ability to offer something very simple to another person and quickly induce a desire to reciprocate (often at the unconscious level - it just kind of slips through).
A great example happens every day in just about any restaurant. It goes like this. The waitress walks up to your table to take your order, she bends down, looks around conspiratorially, lowers her voice and says "I shouldn't be telling you this . . . normally I would recommend the Salmon, it's one of our specialties, but today, the fish just isn't fresh, I'd recommend the Swordfish or the Ahi instead. Most people don't know this, but the Swordfish and Ahi actually cost less and you get more to eat. " Guess what happens at the end of the meal? Research studies have shown that the waitress gets a bigger tip.
A second type of secret you can share is something about yourself. This is a form of giving and can create a strong desire on the part of the other person to share information, open up, or give back in some other way. You might say something like "let me share something with you about myself that I've only told a few other people . . . " Think of all the ways you could use secrets as a reciprocity persuasion technique in sales, negotiations, or other types of persuasion situations.
A third class of secrets you could share would be little known, exclusive, insider information. People are curious and people love to be on the inside, to feel exclusive. If you have information that is exclusive, that you can ethically share, and that is relevant to the person you are trying to persuade you can offer this and quickly induce the desire to reciprocate. The neat thing is, it doesn't have to necessarily be monumental, just the fact that few people know about it can create value. Make sure you let the other person know the information being offered is exclusive. You might say something like "I want to share something with you I just found out, only a few people know about this, and it will only be shared with a handful of people . . . (offer the information). "
Before we wrap up, let me offer a couple of quick guidelines on using reciprocity persuasion technique. First, you typically want to induce it up front early if you are in a conversation. Reciprocity lowers resistance which is something you want to do early in just about any dialogue.
Second, don't offer something too large. If you are giving some sort of an object or even some information with very large value, it could be looked upon more as a bribe and might actually create resistance.
If you want to learn more about the reciprocity persuasion technique and other persuasion and influence principles, I highly recommend Kevin Hogan's "Science of Influence" Course.
That's it for today! I'm about to spend several hours on the phone (oh boy). Use the reciprocity persuasion technique, and particularly add secrets to your reciprocity arsenal. You'll be amazed that the results are even better than you expected.
Preston Campbell has been a professional in marketing, sales and persuasion for over 20 years and is an expert in applied persuasion. He is a clinical hypnotherapist and PhD candidate. He has created one of the leading web sites on persuasion and influence resources at http://www.PersuasionToolbox.com
Copyright 2005 Profit Zone Marketing. This article may be reproduced as long as the content is not altered, this author summary is included and all web links remain intact.


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Despite how crowded Siena is, we were frequently alone in gallery after gallery of important Gothic panel paintings. This is not for everyone's taste, but it's a massive...
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3 Days in Siena
3 Days in Tuscany
Tuscany Off the Beaten Path
This was an amazing experience for someone like me who enjoys art for its own sake and not because of a style or artist. We took forever to come to the end. The curators start you off on a particular staircase and you just follow your nose from one room to another and don't get lost or confused. Quite a...
Most underrated museum I've ever been to. Off the beaten track, but sheer volume of 13-15th century paintings ('bizantian' style) is remarkable. Even Uffizi doesn't have this size of collection. Museum focuses on the gothic style, so relatively little renaissance paintings (for these Uffizi is the ultimate place). Building itself is a bit run down, but this actually adds to...
Despite how crowded Siena is, we were frequently alone in gallery after gallery of important Gothic panel paintings. This is not for everyone's taste, but it's a massive, important collection. The early Renaissance bypassed Siena, so this is not at all like a museum in Florence. Alas, it's not air conditioned. Bathroom fine, staff pleasant and glad to have us....
This museum is extraordinary in many respects.
It contians the largest collection of wonderful medieaval christian art we have ever seen.
It has no Museum shop, or even a catalogue or postcards to buy!
You are supposed to visit from top floor downwards.
It displays its treasures in a way that is not very friendly for spectators, especially the lighting...
If you ignore the surrounding (building in desperate need of maintenance, random display that have nothing to do in this museum like a dress collection from a local artist and staff having loud conversation on their mobiles for example), the collection is remarkable and interestingly different from renaissance art in Florence.
Entrance fee is low too (€4).
I am a Florentine Renaissance person, but seeing the great Sienese artists was a great treat. An empty museum but with some great art. A fun place to spend an hour.
Gorgeous collection of early Siennese art---don't miss it. Very quiet, at 5 euros a great value. Easy to find, near the Duomo.
This gallery was the absolute gem of Siena. Medieval paintings are arranged in chronological order making clear the changes in style over the years.
If you are a fan of Sienese paintings you can't miss a visit to the Pinacoteca Nazionale Museum, just a 5 minute walk from Siena's cathedral.
This was an amazing collection of Sienese masters from the 12th through the 16th centuries. I have to admit that I was completely overwhelmed in a short amount of time by so many Madonna and Childs - and by all of the dazzling gold leaf -- but it was a really interesting view into the Siena School and how the...
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12 October 2012, Friday, 15:31
author: Ludmila Ternovaya
Bashkir Metropolitanate of Russian Orthodox Christian Church and the Federal Drug Circulation Control Service Dept RB will hold two joint seminars: "The role of Russian Orthodox Christian Church in establishment of a regional segment of the national system for rehabilitation of drug addicts" and "Occultism as a threat of personality – rehabilitation of people, suffering from occultism". The seminars will take place at the Bashkir State Pedagogical University.
Heads of profiled eparchial departments, representatives of the Federal Drug Circulation Control Service Dept RB, republican ministries of health protection, education and culture and pedagogues will participate in the seminars.


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IHBC North West Branch Annual Conferences
This article originally appeared in the IHBC NewsBlogs
The ever popular IHBC North West Branch annual conference, which has covered such diverse topics as energy efficiency in historic buildings, empowering local communities, heritage and the 'high street' and technology in conservation, this year (2016) looks at meeting the housing need in historic buildings and areas.
'Home is where the heart is…' will take place in Liverpool on 6th October 2016.
Houses form the highest proportion of all heritage assets, whether purpose designed or later adapted to incorporate residential accommodation. Balancing the changing needs of homeowners whilst protecting the architectural and historic value of historic buildings continues to present ongoing challenges to architects and conservation professionals alike.
Meanwhile at a national level great efforts are being placed upon boosting the supply of new housing to the meet the demands of an increasing population and changing household structures. This has resulted in great development pressure within both urban and rural areas and heritage assets, historic buildings and or conservation areas, are no exception to this process.
This conference will explore the challenges of designing new homes within historic areas, consider how to sensitively adapt and convert historic buildings to meet the needs of existing and future occupants as well as highlighting examples of best practice both locally and nationally. It will be of interest to planners, architects, developers, property owners, amenity societies, and all those who manage and care for the historic environment.
See more at http://ihbconline.co.uk/newsachive/?p=13067
For more details and to book see housing.ihbc.org.uk
For past conferences see the IHBC North West Branch page on the IHBC website
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- Developers
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- Household structures
- Institute of Historic Building Conservation.
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