Dempsey v. City of Rochester

• Decision Date: 30 November 2020
• Docket Number: 6:19-CV-6780 EAW
• Parties: CHARLES DEMPSEY, individually, AND L.D. by her father and natural guardian, CHARLES DEMPSEY, Plaintiffs, v. THE CITY OF ROCHESTER, a municipal entity, JAVIER ALGARIN, "JOHN DOE" RPD OFFICER RESPONSIBLE FOR TRAINING JAVIER ALGARIN, Defendants.
• Court: U.S. District Court — Western District of New York

CHARLES DEMPSEY, individually, AND L.D. by her fatherand natural guardian, CHARLES DEMPSEY, Plaintiffs, v. THE CITY OF ROCHESTER, a municipal entity, JAVIER ALGARIN,"JOHN DOE" RPD OFFICER RESPONSIBLE FOR TRAINING JAVIER ALGARIN, Defendants.

6:19-CV-6780 EAW

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK

November 30, 2020

DECISION AND ORDER

INTRODUCTION

Plaintiffs Charles Dempsey, individually, and L.D., by her father and natural guardian Charles Dempsey (collectively "Plaintiffs"), bring the instant lawsuit pursuant to 42 U.S.C. § 1983 and 1988 and New York state law, alleging defendants The City of Rochester, Javier Algarin, and John Doe, an RPD officer responsible for training Javier Algarin (collectively "Defendants"), are liable for damages arising from the entry into Plaintiffs' yard and death of Plaintiffs' dog. Presently before the Court is Defendants' partial motion to dismiss the first, third, fourth, fifth, seventh, and ninth claims in Plaintiffs' amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) or for summary judgment pursuant to Federal Rule of Civil Procedure 56 (Dkt. 13), and Plaintiffs' cross- motion for partial summary judgment (Dkt. 23) on their second and eighth claims.¹ For the reasons that follow, Defendants' motion to dismiss is granted in part and denied in part, Defendants' motion for summary judgment is denied, and Plaintiffs' cross-motion for summary judgment is denied.

BACKGROUND

On October 19, 2018, Plaintiffs resided at 53 Kosciusko Street in Rochester, New York, along with Tesla, Plaintiffs' four-year old dog. (Dkt. 8 at ¶ 32; Dkt. 23-2 at ¶ 1; Dkt. 27-8 at ¶ 1). At approximately 5:00 p.m., Rochester Police Department ("RPD") officers detained an individual in the backyard of 49 Kosciusko Street, the yard directly next to Plaintiffs. (Dkt. 8 at ¶ 33; Dkt. 23-2 at ¶ 7; Dkt. 27-8 at ¶ 7). An RPD officer directed Defendant Algarin to jump the fence between the yards to search Plaintiffs' backyard. (Dkt. 8 at ¶ 38; Dkt. 23-2 at ¶ 53; Dkt. 27-8 at ¶ 53). Defendant Algarin jumped the fence without obtaining a warrant or consent. (Dkt. at ¶ 39; Dkt. 23-2 at ¶¶ 22, 24; Dkt. 27-8 at ¶¶ 22, 24). Unaware that Defendant Algarin was in the yard, Plaintiff Dempsey opened his back door to enter the yard with Tesla. (Dkt. 8 at ¶ 45; Dkt. 23-2 at ¶ 26; Dkt. 27-8 at ¶ 26). Tesla proceeded towards Defendant Algarin who fired two shots and killed Tesla. (Dkt. 8 at ¶¶ 48-50; Dkt. 23-2 at ¶¶ 27, 29; Dkt. 27-8 at ¶¶ 27, 29). Defendant Algarin then pointed his firearm at Plaintiff Dempsey, screaming at him to get back. (Dkt. 8 at ¶¶ 55, 56; Dkt. 23-2 at ¶ 36; Dkt. 27-8 at ¶ 36). Plaintiff Dempsey ordered Defendant Algarin toleave the property but Defendant Algarin refused to leave. (Dkt. 8 at ¶ 57; Dkt. 23-2 at ¶¶ 38, 39; Dkt. 27-8 at ¶¶ 38, 39). Ultimately the RPD officers allowed Plaintiff Dempsey to take Tesla for veterinary care but it was too late and she died from the gunshot wounds. (Dkt. 8 at ¶ 71; Dkt. 23-2 at ¶ 51; Dkt. 27-8 at ¶ 51).

Plaintiffs commenced the instant lawsuit on October 21, 2019. (Dkt. 1). Defendants moved to dismiss the complaint (Dkt. 6), and Plaintiffs filed an amended complaint (Dkt. 8). The amended complaint includes claims for municipal liability, unreasonable search of curtilage, unlawful seizure of personal property, unlawful seizure, failure to intervene, assault, negligence, trespass, and trespass to chattels/conversion. Defendants filed the instant motion to dismiss and for summary judgment on January 31, 2020. (Dkt. 13). Plaintiffs filed their opposition to the motion to dismiss and cross-motion for partial summary judgment on March 27, 2020 (Dkt. 19), which they refiled on April 6, 2020 to correct deficiencies (Dkt. 23).

DISCUSSION

I. Legal Standard

"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." DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010). A court should consider the motion by "accepting all factual allegations as true and drawing all reasonable inferences in favor of the plaintiff." Trs. of Upstate N.Y. Eng'rs Pension Fund v. Ivy Asset Mgmt., 843 F.3d 561, 566 (2d Cir. 2016). To withstand dismissal, a claimantmust set forth "enough facts to state a claim to relief that is plausible on its face." Bell Atl. 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." Turkmen v. Ashcroft, 589 F.3d 542, 546 (2d Cir. 2009) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).

"While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555 (internal quotations and citations omitted). "To state a plausible claim, the complaint's '[f]actual allegations must be enough to raise a right to relief above the speculative level.'" Nielsen v. AECOM Tech. Corp., 762 F.3d 214, 218 (2d Cir. 2014) (quoting Twombly, 550 U.S. at 555).

If a party presents matters outside the pleadings on a Rule 12(b)(6) motion, "the motion must be treated as one for summary judgment under Rule 56" and "[a]ll parties must be given a reasonable opportunity to present all the material that is pertinent to the motion." Fed. R. Civ. P. 12(d). "The district court's conversion of a Rule 12(b)(6) motion into one for summary judgment is governed by principles of substance rather than form." G. & A. Books, Inc. v. Stern, 770 F.2d 288, 295 (2d Cir. 1985) ("Even where only the party moving to dismiss has submitted extrinsic material such as depositions or affidavits, the opposing party may be deemed to have had adequate notice that the motion to dismiss would be converted."); Bd. of Trs. of Teamsters Local 918 Pension Fund v. Freeburg &Freeburg, C.P.A., No. 98-CV 4895(SJ), 1999 WL 803895, at *5 (E.D.N.Y. Sept. 28, 1999) ("[I]n a motion to dismiss under 12(b)(6), where affidavits and exhibits in addition to the pleadings are presented to and not excluded by the court, the court must convert the 12(b)(6) motion into a motion for summary judgment." (collecting cases)).

Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment should be granted if the moving party establishes "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). The Court should grant summary judgment if, after considering the evidence in the light most favorable to the nonmoving party, the court finds that no rational jury could find in favor of that party. Scott v. Harris, 550 U.S. 372, 380 (2007) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)). "The moving party bears the burden of showing the absence of a genuine dispute as to any material fact[.]" Crawford v. Franklin Credit Mgmt. Corp., 758 F.3d 473, 486 (2d Cir. 2014). "Where the non-moving party will bear the burden of proof at trial, the party moving for summary judgment may meet its burden by showing the evidentiary materials of record, if reduced to admissible evidence, would be insufficient to carry the non-movant's burden of proof at trial." Johnson v. Xerox Corp., 838 F. Supp. 2d 99, 103 (W.D.N.Y. 2011) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)).

Once the moving party has met its burden, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts, and may not rely on conclusory allegations or unsubstantiated speculation." Robinson v. Concentra Health Servs., Inc., 781 F.3d 42, 44 (2d Cir. 2015) (quoting Brown v. Eli Lilly & Co., 654F.3d 347, 358 (2d Cir. 2011)). Specifically, the non-moving party "must come forward with specific evidence demonstrating the existence of a genuine dispute of material fact." Brown, 654 F.3d at 358. Indeed, "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).

II. Defendants' Motion to Dismiss and/or for Summary Judgment

Defendants move to dismiss and/or for summary judgment on six of Plaintiffs' claims for relief: four claims arising under 42 U.S.C. § 1983 (municipal liability, unlawful seizure of property, unlawful seizure, and failure to intervene), and two state law claims of negligence and trespass. The Court concludes that the record is sufficient (and Plaintiffs have had proper notice) to convert the motion directed to the unlawful seizure claims into a motion for summary judgment—indeed, Plaintiffs' cross-motion for summary judgment addresses some of the same facts at issue with the unlawful seizure claims. However, with respect to the remaining claims that are the subject of Defendants' pending motion, the Court finds that the record is not adequately developed to treat the motion directed to those claims as one for summary judgment, and therefore it will limit its consideration of Defendants' motion to the allegations in the amended complaint.

A. Section 1983 Claims

The Court begins with Plaintiffs' claims arising under 42 U.S.C. § 1983, over which this Court has original jurisdiction. 28 U.S.C. § 1331 ("The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties ofthe United States."). Section 1983 provides a federal cause of action against persons...