Durr v. Slator, 5:20-CV-00662 (MAD/TWD)

• Court: United States District Courts. 2nd Circuit. United States District Court of Northern District of New York
• Writing for the Court: Mae A. D'Agostino, U.S. District Judge
• Parties: JERRY DURR, Plaintiff, v. DANIEL SLATOR, Police Officer; WILLIAM CLARK, Police Sergeant; CITY OF ONEIDA, NEW YORK; AARON SILVERMAN, Sheriff's Deputy; and MADISON COUNTY, NEW YORK, Defendants. AARON SILVERMAN, Sheriff's Deputy; and MADISON COUNTY, NEW YORK, Cross-Plaintiffs, v. DANIEL SLATOR, Police Officer; WILLIAM CLARK, Police Sergeant; and CITY OF ONEIDA, NEW YORK, Cross-Defendants.
• Docket Number: 5:20-CV-00662 (MAD/TWD)
• Decision Date: 02 September 2021

JERRY DURR, Plaintiff,
v.
DANIEL SLATOR, Police Officer; WILLIAM CLARK, Police Sergeant; CITY OF ONEIDA, NEW YORK; AARON SILVERMAN, Sheriff's Deputy; and MADISON COUNTY, NEW YORK, Defendants.

AARON SILVERMAN, Sheriff's Deputy; and MADISON COUNTY, NEW YORK, Cross-Plaintiffs,
v.
DANIEL SLATOR, Police Officer; WILLIAM CLARK, Police Sergeant; and CITY OF ONEIDA, NEW YORK, Cross-Defendants.

No. 5:20-CV-00662 (MAD/TWD)

United States District Court, N.D. New York

September 2, 2021

LAW OFFICE OF DAVID A. LONGERETTA, PLLC, Attorneys for Plaintiff

LAW OFFICE OF ZACHARY C. OREN, ESQ. Attorneys for Plaintiff

KENNEY SHELTON LIPTAK NOWAK LLP Attorneys for Defendants Daniel Slator, William Clark, and City of Oneida

MARTIN, RAYHILL LAW FIRM Attorneys for Defendants Aaron Silverman and Madison County

OF COUNSEL:

DAVID A. LONGERETTA, ESQ.

ZACHARY C. OREN, ESQ.

DAVID H. WALSH, IV, ESQ. DANIEL CARTWRIGHT, ESQ.

KEVIN G. MARTIN, ESQ.

MEMORANDUM-DECISION AND ORDER

Mae A. D'Agostino, U.S. District Judge

I. INTRODUCTION

Plaintiff, Jerry Durr, brought this action on June 12, 2020, asserting thirteen causes of action pursuant to 42 U.S.C. §§ 1983, 1988, 12132, and the Fourth, Fifth, Sixth, and Fourteenth Amendments of the United States Constitution against Defendants Officer Daniel Slator, Sergeant William Clark, the City of Oneida, New York, Sheriff's Deputy Aaron Silverman, and Madison County, New York. Dkt. Nos. 1, 5. Plaintiff's claims arise out of his arrest on March 15, 2019, and his subsequent detainment. Dkt. No. 5. On September 29, 2020, Defendants Slator, Clark, the City of Oneida (hereinafter the "City Defendants") filed a pre-answer motion to dismiss. Dkt. No. 18. On October 21, 2020, Defendants Silverman and Madison County (hereinafter the "County Defendants") filed a motion for judgment on the pleadings.^[1] Dkt. No. 30.

Currently before the Court are the City Defendants' motion to dismiss and the County Defendants' motion for judgment on the pleadings. Dkt. Nos. 18, 30. Based on the following, the City Defendants' motion to dismiss and the County Defendants' motion for judgment on the pleadings are both granted in part and denied in part.

II. BACKGROUND

A. Facts

On March 15, 2019, Plaintiff was obstructing traffic and yelling in the roadway of Lenox Avenue, in Oneida, New York. Dkt. No. 5 at ¶ 10. Plaintiff has been diagnosed with, and receives social security disability benefits for, bipolar depression and attention deficit disorder. Id. at ¶ 37. On March 15, 2019, Plaintiff had not taken his medication and asserts that he was having a psychotic episode. Id. at ¶¶ 10, 39. Additionally, Plaintiff asserts that he was exhibiting erratic behavior sufficient to have classified him as a mentally disturbed person. Id. at ¶ 13.

Defendants Slator and Silverman arrived at the scene and Defendant Slator arrested Plaintiff. Id. at ¶¶ 11-14. Plaintiff consented to being handcuffed but then spit toward Defendant Slator. Id. at ¶¶ 15-17. Defendant Silverman kicked Plaintiff while he was handcuffed, dislocating Plaintiff's knee, and causing him to fall to the ground in pain. Id. at ¶¶ 19-20. Defendants Slator, Clark, ^[2] and Silverman then took Plaintiff to Oneida Healthcare for treatment for his knee via ambulance. Id. at ¶¶ 24, 26. Plaintiff was subsequently discharged with instructions that he be transferred to the Upstate Emergency Department because Oneida Healthcare did not have orthopedic services. Id. at ¶ 27.

Rather than bring Plaintiff to the Upstate Emergency Department, Plaintiff was placed in a cell at the Oneida City Police Station. Id. at ¶ 28. While in his cell, Plaintiff's knee began to swell and became so painful that he could not use the toilet and twice defecated on himself. Id. at ¶¶ 29-30. After the second time, Defendant Clark asked Plaintiff why he defecated on himself, and Plaintiff responded that he could not get up due to his knee and that he would clean it up. Id. at ¶ 31. Plaintiff was then charged for criminal tampering in the third degree for defecating on the floor and throwing toilet paper covered in his feces on the walls. Id. at ¶ 32; Dkt. No. 5-1.

On June 12, 2020, Plaintiff brought this action asserting claims for excessive force against Defendants Slator and Silverman; deliberate indifference to Plaintiff's serious medical condition against Defendants Slator, Silverman, and Clark; violation of Title II of the Americans with Disabilities Act against all Defendants; and failure to intervene for a constitutional violation against all Defendants in violation of 42 U.S.C. §§ 1983, 12132. Dkt. No. 5 at ¶¶ 10-77. Additionally, Plaintiff asserts a Monell claim against Defendants City of Oneida and Madison County for a failing to investigate, supervise, and discipline Defendants Slator, Clark, and Silverman. Id. at ¶¶ 78-83. Finally, Plaintiff asserts claims for assault, negligence, and violations of New York Human Rights Law § 28 for failure to provide medical care and mental health assistance against Defendants. Id. at ¶¶ 84-132.

On September 30, 2020, the City Defendants filed a pre-answer motion to dismiss. Dkt. No. 18. On October 21, 2020, the County Defendants filed a motion for judgment on the pleadings. Dkt. No. 31. On November 23, 2020, Plaintiff filed oppositions to both the City Defendants' motion to dismiss and the County Defendants' motion for judgment on the pleadings. Dkt. Nos. 31, 32. The City Defendants filed a reply on December 1, 2020. Dkt. No. 34. The County Defendants filed a reply on December 7, 2020. Dkt. No. 35.

III. DISCUSSION

A. Standard of Review

A motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure tests the legal sufficiency of the party's claim for relief. See Patane v. Clark, 508 F.3d 106, 111-12 (2d Cir. 2007) (citation omitted). In considering the legal sufficiency, a court must accept as true all well-pleaded facts in the pleading and draw all reasonable inferences in the pleader's favor. See ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007) (citation omitted). This presumption of truth, however, does not extend to legal conclusions. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). Although a court's review of a motion to dismiss is generally limited to the facts presented in the pleading, the court may consider documents that are "integral" to that pleading, even if they are neither physically attached to, nor incorporated by reference into, the pleading. See Mangiafico v. Blumenthal, 471 F.3d 391, 398 (2d Cir. 2006) (quoting Chambers v. Time Warner, Inc., 282 F.3d 147, 152-53 (2d Cir. 2002)).

To survive a motion to dismiss, a party need only plead "a short and plain statement of the claim," see Fed.R.Civ.P. 8(a)(2), with sufficient factual "heft to 'sho[w] that the pleader is entitled to relief[, ]'" Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007) (quotation omitted). Under this standard, the pleading's "[f]actual allegations must be enough to raise a right of relief above the speculative level," see id. at 555 (citation omitted), and present claims that are "plausible on [their] face," id. at 570. "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Iqbal, 556 U.S. at 678 (citation omitted). "Where a complaint pleads facts that are 'merely consistent with' a defendant's liability, it 'stops short of the line between possibility and plausibility of "entitlement to relief."'" Id. (quoting [Twombly, 550 U.S.] at 557, 127 S.Ct. 1955). Ultimately, "when the allegations in a complaint, however true, could not raise a claim of entitlement to relief," Twombly, 550 U.S. at 558, or where a plaintiff has "not nudged [its] claims across the line from conceivable to plausible, the[ ] complaint must be dismissed[, ]" id. at 570.

"In deciding a Rule 12(c) motion, we 'employ[ ] 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)) (alterations in original). "Thus, we will accept all factual allegations in the complaint as true and draw all reasonable inferences in [the plaintiff's] favor." Id. at 43-44 (citing ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007)). "To survive a Rule 12(c) motion, [the plaintiff's] complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Id. (quoting Iqbal, 556 U.S. at 678).

B. Plaintiff's Claims for Excessive Force

Plaintiff claims that Defendants Slator and Silverman engaged in an excessive use of force when Defendant Silverman kicked Plaintiff while he was handcuffed. Dkt. No. 5 at ¶¶ 19-22. The City Defendants assert that Plaintiff's claim must be dismissed against Defendant Slator because he was not personally involved in the use of excessive force. Dkt. No. 18 at 6-8. The County Defendants assert that Plaintiff's claim must be dismissed because the act of sweeping Plaintiff's leg was not unreasonable, and Plaintiff's pre-existing knee condition was the primary reason for his injury. Dkt. No. 30-6 at 8-10. Based on the following, the City Defendants' motion to dismiss is granted and the County Defendants' motion for judgment on the pleadings is denied.

1. Reasonableness of Force

"Excessive force claims related to an arrest or seizure are evaluated under the Fourth Amendment using an 'objective unreasonableness' standard." Bogart v. City of New York, No. 13-cv-1017, 2016 WL 4939075, *7 (S.D.N.Y. Sept. 6, 2016) (quoting Graham v. Connor, 490 U.S. 386, 388 (1989)). "Excessive force claims asserted in the 'non-seizure, non-prisoner context' are analyzed under the Due Process Clause of the Fourteenth Amendment using a...