Fisher v. Cnty. of Nassau

• Decision Date: 13 October 2011
• Docket Number: 10-CV-0677(JS)(ETB)
• Parties: STEVEN FISHER, Plaintiff, v. COUNTY OF NASSAU, NASSAU COUNTY POLICE DEPARTMENT, and POLICE OFFICER JAMES CRAWFORD, Defendants.
• Court: U.S. District Court — Eastern District of New York

STEVEN FISHER, Plaintiff, v. COUNTY OF NASSAU, NASSAU COUNTY POLICE DEPARTMENT and POLICE OFFICER JAMES CRAWFORD, Defendants.

10-CV-0677(JS)(ETB)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

Dated: October 13, 2011

MEMORANDUM & ORDER

APPEARANCES:

For Plaintiff: Brian Kennedy, Esq.

For Defendants: Sanjay V. Nair, Esq.

Pablo A. Fernandez, Esq.

Jennean R. Rogers, Esq.

Office of the Nassau County Attorney

SEYBERT, District Judge:

Steven Fisher ("Plaintiff") sued Nassau County (the "County"), the Nassau County Police Department (the "Police Department"), and Nassau County Police Officer James Crawford (collectively, "Defendants") for civil rights violations and state law torts arising out of Crawford's allegedly shackling Plaintiff and pushing him down a flight of stairs. Trial is scheduled to begin shortly, and the parties have filed cross-motions addressing the timeliness of Plaintiff's state law claims. Pending before the Court is Defendants' motion topreclude Plaintiff's state law claims (Docket Entry 23) and Plaintiff's motion to strike Defendants' statute of limitations-based affirmative defense (Docket Entry 22). For the reasons that follow, Defendants' motion is GRANTED and Plaintiff's motion is DENIED. Plaintiff's state law claims against Nassau County and Officer Crawford are DISMISSED.

BACKGROUND

Plaintiff's case is relatively straightforward. He alleges that he was arrested on or about October 27, 2008 by the Nassau County Police Department. (Am. Compl. ¶ 8.) The following day, while still in custody, Officer Crawford shackled Plaintiff's hands and legs and pushed him down a flight of stairs at the police station. (Id. ¶ 9.) Plaintiff was injured in the fall, and Crawford denied him proper medical care. (Id.) Plaintiff asserts claims that (1) all Defendants violated his rights under the federal and New York State constitutions; (2) the County and the Police Department were negligent in training and supervising Officer Crawford; (3) the County and the Police Department were negligent in hiring Officer Crawford; (4) Officer Crawford assaulted Plaintiff; and (5) Officer Crawford battered Plaintiff.

Plaintiff, proceeding pro se, sent Nassau County a notice of claim on April 14, 2009 that named "Laura Kase Worker," "C/O Officer Crawford," "Nassau County Corr. Facilityand Sheriff Dept." and the "Nassau University Medical Center" (the "Notice of Claim"). The Notice of Claim explained that:

Prior to being taken to court on 10 29 08 the officers displayed deliberate indifference to the claimant's medical needs. Officer Crawford used excessive and inappropriate restraints, by placing a singele [sic] small set of handcuffs and shackles inappropriate for the size of claimant causing the fall down a flight of stairs by the claimant. Officer Crawford used inappropriate force causing the claimant to fall down a flight of stairs causing permanent injury and the loss of hearing in the claimant [sic] right ear. Officer Crawford used excessive force by kicking the complainant in the rectom [sic] causing bleeding which continue [sic] to this day.

Officer Crawford's use of force was racially motivated as evidenced by his statement "I heard you niggers from the 5 Boro's [sic] like it up the ass."

The medical staff of the NCCC displayed deliberate indifference to the claimant's medical needs by failing to respond to the claimant's sick call requests to follow up on injuries received on 10/29/08. No response was made for two weeks.

The case worker (Laura) at the NCCC was deliberately indifferent to the claimant's condition and participated in a conspiracy to conceal the injuries of the claimant from his family by having the claimant moved to different locations within the NCCC thus making the claimant unavailable for visits and consealing [sic] his injuries from his family.

(Def. Ex. A, Notice of Claim.)

On August 18, 2009, the County conducted a pre-suit examination of Plaintiff pursuant to New York General Municipal Law Section 50-h. Plaintiff testified that "sheriffs" assaulted him. (Def. Ex. B, Tr. of Plaintiff's 50-h Examination.)

On February 17, 2010, Plaintiff filed his original Complaint, which named "Officer Crawford" as a defendant and described him as "law enforcement personnel of the County of Nassau and the Nassau County Sheriff's Department." (Def. Ex. C, Complaint ¶¶ 7, 9.) In the Complaint, Plaintiff alleged that he was assaulted while in the "custody of Defendant Nassau County Sheriff's Department" (id. ¶ 8), and he described Crawford's actions as being taken "within the course and scope of [his] employment with Defendant County of Nassau and Defendant Nassau County Sheriff's Department" (id. ¶ 11).

According to Defendants, Defendants' counsel informed Plaintiff's counsel on November 12, 2010 that there were two Nassau County corrections officers named Crawford but that they did not match Plaintiff's description of a white male. (Def. Mot. in Limine 13.) Defendants' counsel maintains that during this conversation he asked Plaintiff's counsel whether "Officer Crawford" might be a different type of law enforcement officer (such as a police or court officer) but that Plaintiff's counsel denied that Crawford could be anything other than a corrections officer. (Id. ; see also Def. Ex. L, Apr. 13, 2011 Ltr. toPlaintiff's Counsel.) At one point in this litigation, Plaintiff's counsel apparently believed that Defendants' counsel falsely represented that there was no "Officer Crawford" among all of Nassau's law enforcement officers. (See Def. Ex. K, Apr. 6, 2011 Ltr.) Beyond a letter from Plaintiff's counsel containing that accusation (id.), there is no evidence to support his claim.

On March 21, 2011, Defendant's counsel received Plaintiff's medical records from the Nassau University Medical Center ("NUMC"). (Def. Ex. O.) Among other things, these records revealed that Police Officer James Crawford was involved with Plaintiff's arrest.

On August 10, 2011, the parties stipulated to an Amended Complaint that named "Police Officer James Crawford." Plaintiff filed the Amended Complaint on August 16, 2011.

DISCUSSION

Defendants argue that (1) Plaintiff's state law claims must be dismissed because Plaintiff did not comply with New York's notice of claim procedures and (2) Plaintiff's state law claims against Officer Crawford are time-barred. Plaintiff also requests that the Court sanction Defendant. (Pl. Mot. to Strike 10.) In essence, Plaintiff argues that his delay in naming Officer Crawford should be excused because Defendants failed to timely identify him and that, in any event, Plaintiff's claimsagainst Crawford relate back to the date of his original Complaint because Crawford's attorneys were on constructive notice of Crawford's potential liability. The Court addresses these arguments in turn.¹

I. Notice of Claim Requirements

Plaintiff's negligence claims against the County must be dismissed because he did not comply with New York's notice of claim procedure. Among other things, Plaintiff's Notice of Claim is required to state the nature of his claim and "the time when, the place where and the manner in which the claim arose." N.Y. Mun. L. 50-e(2) (2010); Phillipps v. N.Y. City Transit Auth. , 68 A.D.3d 461, 462, 890 N.Y.S.2d 510, 512 (1st Dep't 2009). The Notice need not provide that information with "literal nicety or exactness"; rather, the test is whether the Notice provides facts sufficient to enable the County to investigate. Phillipps, 890 N.Y.S.2d at 512; Baker v. Town of Niskayuna, 69 A.D.3d 1016, 1017-1018, 891 N.Y.S.2d 749, 751 (3dDep't 2010). In evaluating the Notice of Claim, the Court may consider Plaintiff's General Municipal Law § 50-h examination testimony and any other evidence properly before it. Atwater v. Cnty. of Suffolk, 50 A.D.3d 713, 714-715, 855 N.Y.S.2d 226, 227-28 (2d Dep't 2008).

Here, Plaintiff's Notice of Claim did not satisfy the statutory requirements. Its shortcomings include its failure to identify the place of the alleged assault and its arguable misidentification of Defendant Crawford. The most significant of its defects, though, is its failure to indicate the legal theories on which Plaintiff now proceeds against the County. Nowhere in his Notice of Claim narrative does Plaintiff suggest that he planned to pursue negligent hiring and negligent supervision. This oversight is fatal to these causes of action. Ferlito v. Cnty. of Suffolk, No. 06-CV-5708, 2007 WL 4180670, at *1 (E.D.N.Y. Nov. 19, 2007) (dismissing negligent hiring and training claims where the notice of claim lacked facts to support them); see also Gagnon v. City of Saratoga Springs, 51 A.D.3d 1096, 1098-99, 858 N.Y.S.2d 797, 800-01 (3d Dep't 2008); Delgado v. N.Y. City Hous. Auth., 51 A.D.3d 570, 571, 858 N.Y.S.2d 163, 164 (1st Dep't 2008); Chieffet v. N.Y. City Transit Auth., 10 A.D.3d 526, 527, 782 N.Y.S.2d 56, 57 (1st Dep't 2004). Plaintiff may not file a late Notice of Claim with respect to these claims because the statute of limitations hasexpired, see N.Y. Gen. Mun. Law § 50-e(5), and the Court cannot excuse these defects because the new theories would substantially alter the nature of Plaintiff's claims and are thus not within the notice of claim provision that permits amendments in certain circumstances. See N.Y. Gen. Mun. Law § 50-e(6); Ruggiero v. Suffolk Cnty. Police Dep't, 7 A.D.3d 605, 605, 775 N.Y.S.2d 904, 904 (2d Dep't 2004).

Accordingly, Plaintiff's negligence claims against the County are dismissed. The Court need not decide here whether the Notice of Claim was sufficient as to Plaintiff's state law claims against Office Crawford because, as discussed next, these claims fail on independent grounds.

II. Plaintiff's Claims against Crawford are Time-Barred

Plaintiff named Police Officer James Crawford as a defendant for the first time in his Amended Complaint, which he filed on August 16, 2011. (Docket Entry 18.) Under the circumstances of this case, Plaintiff's attempt to substitute Police...