Colon v. City of Rochester

• Decision Date: 06 December 2019
• Docket Number: 17-CV-6160L
• Citation: 419 F.Supp.3d 586
• Parties: Shelise COLON and Lawrence Barrett, Plaintiffs, v. CITY OF ROCHESTER, a municipal entity, et al., Defendants.
• Court: U.S. District Court — Western District of New York

419 F.Supp.3d 586

Shelise COLON and Lawrence Barrett, Plaintiffs,

v.CITY OF ROCHESTER, a municipal entity, et al., Defendants.

17-CV-6160L

United States District Court, W.D. New York.

Signed December 6, 2019

Elliot Dolby Shields, Roth & Roth, LLP, New York, NY, for Plaintiffs.

Spencer L. Ash, City of Rochester Law Department, Rochester, NY, for Defendants.

DECISION AND ORDER

DAVID G. LARIMER, United States District Judge

Plaintiffs Shelise Colon and Lawrence Barrett bring this action against the City of Rochester, New York ("City") and several individuals employed by the Rochester Police Department ("RPD"). Plaintiffs have brought seventeen causes of action against defendants, under federal and state law, arising out of an incident that occurred in Rochester on December 16, 2015. Defendants have moved to dismiss the complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.

BACKGROUND

The complaint alleges that on December 16, 2015, at around noon, plaintiffs went to the Transit Center on St. Paul Street in Rochester to catch a bus.¹ Since the bus was not due to depart for about 45 minutes, plaintiffs stopped at a nearby convenience store, and Barrett bought a cigar.

Plaintiffs then stood outside a building at 36 St. Paul Street, while Barrett smoked his cigar. Shortly thereafter, a police cruiser drove up and parked on St. Paul Street, about 15 to 20 feet away from plaintiffs.

In the front seat of the police cruiser were RPD officers William Baker and Jason Kelly. After several minutes, Baker and Kelly yelled out the window of the car to plaintiffs and told them to "move along." Complaint ¶ 38.

Plaintiffs allege that they began to walk toward the Transit Center, but Baker and Kelly got out of their car and rushed toward plaintiffs. Baker allegedly grabbed Barrett from behind, slammed him against the wall of a building, and yelled, "Where do you think you are going?" Complaint ¶ 41. When Colon asked why she and Barrett were being stopped, Baker responded that the officers did not have to explain their actions, and one of the officers grabbed Colon's arm and threw her to the side.

Officer Baker then ordered Barrett to produce identification. Barrett began to reach toward his pocket to do so, but Baker unholstered his taser and ordered Barrett to put his hands over his head. Barrett did so.

At that point, Colon took out her cell phone and began to make a video recording of what was happening. Several more times, the officers allegedly told Barrett to produce his identification, and each time, as Barrett reached toward his pocket, the officers threatened to "tase" him. Colon told the officers that she was recording the incident on her phone, and they told her to leave the area. When she refused, Baker ran over, grabbed Colon, and twisted her arm, in an effort to get her to stop recording these events.

At about this time, a second police car arrived, containing RPD officers Orlando Hernandez and Braddon Elliott. They rushed to assist Baker and Kelly. Hernandez forcibly took Colon's cell phone from her, and he and Elliott put Colon in handcuffs. Barrett was placed in the rear of Baker's and Kelly's vehicle, and Colon was put into Hernandez's and Elliott's vehicle.

RPD Sergeant Mandi E. Wheeler next arrived at the scene. After speaking with the officers and with the plaintiffs, Sgt. Wheeler "approved" plaintiffs' arrests. Complaint ¶ 71. Wheeler allegedly told plaintiffs that they were being arrested for trespass. She also said that Baker and Kelly had initially stopped plaintiffs because Barrett "fit the description" of a wanted suspect. Complaint ¶ 72.

After plaintiffs' arrest, the officers obtained a signed statement from the owner of the building at 36 St. Paul Street, Taib El Kettani, stating in sum and substance that he had not given plaintiffs permission to loiter outside his building and that he wanted them prosecuted for trespassing. Plaintiffs allege that RPD officers routinely obtain such statements from property owners to support unjustified arrests for loitering, trespass, disorderly conduct, etc. Complaint ¶ 79.

Following plaintiffs' arrest, officers Hernandez and Elliott took Colon to Rochester General Hospital, where she was treated for injuries she allegedly sustained during her arrest. Officers Baker and Kelly took Barrett to the Monroe County Jail. He was arraigned the next day and charged with one count of trespass in violation of N.Y. Penal L. § 240.05. Plaintiffs allege that "[a]ll of the violation charges against Mr. Barrett have since been dismissed and sealed." Complaint ¶ 115. The complaint does not allege whether any charges were brought against Colon following her arrest.

Based on these allegations, plaintiffs commenced this action in March 2017 against the City, Officers Baker, Kelly, Hernandez and Elliott ("Officers") and Sgt. Wheeler. Plaintiffs assert the following claims, all of which are brought by both plaintiffs unless otherwise noted: (1) a claim under 42 U.S.C. § 1983, alleging a variety of constitutional violations, including denial of due process, false arrest, excessive force, etc.; (2) a false arrest claim by Barrett against Baker and Kelly under § 1983 ; (3) a false arrest claim by Barrett against Baker, Kelly and the City under New York law; (4) an assault claim by Barrett against Baker and the City under New York law; (5) a battery claim by Barrett against Baker and the City under New York law; (6) an excessive force claim by Barrett against Baker under § 1983 ; (7) an assault claim by Colon against Baker and the City under New York law; (8) a battery claim by Colon against Baker and the City under New York law; (9) an excessive force claim by Colon against Baker under § 1983 ; (10) a claim alleging failure to intervene, by both plaintiffs against Kelly, under § 1983 ; (11) a claim alleging unlawful retaliation in violation of the First Amendment, by Colon against Baker under § 1983 ; (12) a negligence claim against the City; (13) a claim against the City alleging municipal liability for the officers' use of excessive force; (14) a municipal-liability claim against the City with respect to the officers' alleged use of false "cover" charges to punish so-called "contempt of cop"; (15) a claim against Baker, Kelly and Hernandez for denial of due process and the right to a fair trial, under § 1983 ; (16) a claim against Baker, Kelly, Hernandez, Elliott and Wheeler for conspiracy, under 42 U.S.C. § 1985(3) ; and (17) a claim of supervisory liability against the City and Wheeler under § 1983.² Plaintiffs seek an unspecified amount of compensatory and punitive damages, "appropriate declaratory and injunctive relief," and attorney's fees and costs.

DISCUSSION

I. Defendants' Motion

In support of their motion to dismiss, defendants assert that: (1) the individual officers are entitled to qualified immunity; (2) plaintiffs have not pleaded a viable conspiracy claim; (3) plaintiffs' false arrest, false imprisonment and malicious prosecution claims must be dismissed because plaintiffs have not alleged that they received a favorable disposition of their criminal charges; (4) plaintiffs have failed to allege facts supporting a claim of municipal liability under Monell v. Dep't of Social Servs. , 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), or a claim of supervisory liability; (5) plaintiffs have failed to allege facts supporting a claim of excessive force; (6) the assault and battery claims are duplicative of the excessive force claim; (7) plaintiffs' negligence claim and their intentional tort claims are mutually exclusive; and (8) plaintiffs have failed to allege facts showing that they engaged in any speech or conduct protected by the First Amendment, as required for a retaliation claim.

II. Matters Outside the Pleadings

In response to defendants' motion, plaintiffs argue that defendants have improperly submitted and asked the Court to consider materials outside the pleadings. Specifically, in support of their motion, defendants have submitted copies of an information/complaint and a supporting deposition signed by Taib El Kettani on December 16, 2015, as well as some RPD reports made in connection with plaintiffs' arrest. Those include a Prisoner Data Report concerning Colon, two Investigative Action Reports, and an Incident Report. Some of those documents contain a narrative of events as described by Hernandez, Kelly and Baker.

"On a motion to dismiss, the court's consideration generally is limited to the four corners of the complaint ...." Hopkins v. Booth , No. 16-CV-1020, 2019 WL 2422615, at *3 (W.D.N.Y. Feb. 20, 2019). But as the Court of Appeals for the Second Circuit has stated, "[a] complaint is ... deemed to include any written instrument attached to it as an exhibit, materials incorporated in it by reference, and documents that, although not incorporated by reference, are ‘integral’ to the complaint." Sierra Club v. Con-Strux, LLC , 911 F.3d 85, 88 (2d Cir. 2018) (quoting L-7 Designs, Inc. v. Old Navy, LLC , 647 F.3d 419, 422 (2d Cir. 2011) ). Accord Roth v. Jennings , 489 F.3d 499, 509 (2d Cir. 2007).

The complaint in this case not only cites El Kettani's supporting deposition and information/complaint, but quotes the deposition at some length. See Complaint ¶ 79. For that matter, an integral part of plaintiffs' claims is their allegation that RPD officers routinely draft depositions and similar papers, often containing false statements, to provide "cover" for their unlawful arrests, for which they then procure signatures by ostensible complainants. The Court will therefore consider El Kettani's supporting deposition and information/complaint.

Plaintiffs also allege in the complaint that the Officers "falsified their account" of the events "in official police paperwork ...." Complaint ¶¶ 92-94. Again, they allege that this was done pursuant to a "continuing custom or practice" of the RPD. Id.

In light of those allegations, the Court will consider the RPD...