Triano v. Town of Harrison

• Decision Date: 26 September 2012
• Docket Number: No. 09–CV–6319 (KMK).,09–CV–6319 (KMK).
• Citation: 895 F.Supp.2d 526
• Parties: Richard C. TRIANO, Plaintiff, v. TOWN OF HARRISON, NY; P.O. Stephan Barone, Defendants.
• Court: U.S. District Court — Southern District of New York

895 F.Supp.2d 526

Richard C. TRIANO, Plaintiff,

v.TOWN OF HARRISON, NY; P.O. Stephan Barone, Defendants.

No. 09–CV–6319 (KMK).

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

Sept. 26, 2012.

Gary Mitchel Gash, Esq., Gash & Associates, P.C., White Plains, NY, for Plaintiff.

Neil Stuart Torczyner, Esq., Friedman, Harfenist, Kraut & Perlstein, Lake Success, NY, for Defendants.

OPINION AND ORDER

KENNETH M. KARAS, District Judge:

Richard C. Triano (“Plaintiff”) brings this action against the Town of Harrison, New York (“Town” or “Town of Harrison”) and Police Officer Stephan Barone (“Barone”) in his individual and official capacity (collectively, “Defendants”), alleging that Defendants are liable under 42 U.S.C. § 1983 for violating Plaintiff's rights under the Fourth, Fifth, and Fourteenth Amendments.¹ The Town moves to dismiss Causes of Action Three and Seven of Plaintiff's Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons stated herein, the Town's motion is granted.

I. Background

A. Facts

The Court assumes the following facts, as alleged in the Amended Complaint, to be true for purposes of the Motion to Dismiss. At about 10:00 p.m. on July 2, 2006, Defendant Barone, of the Town of Harrison Police Department, arrived at Plaintiff's home in West Harrison to investigate an alleged theft of services regarding a taxi cab fare. (Am. Compl. ¶¶ 23–25.) Plaintiff's mother answered the door, and without invitation, Barone entered the apartment and walked into Plaintiff's bedroom, where Plaintiff was in his bed. ( Id. ¶ 25.) Barone directed Plaintiff to walk into the living room of the apartment, and Plaintiff waited there while Barone went outside to speak to the taxi driver. ( Id. ¶ 26.) Plaintiff and his mother heard Barone say to the taxi driver: “Just say it's Richie, because either way I'm locking Richie up tonight.” ( Id. ¶ 27.) Barone then re-entered the apartment and allegedly grabbed Plaintiff's left wrist and attempted to pull Plaintiff toward the front door. ( Id. ¶ 28.) Plaintiff protested, saying that he wanted to get his shoes, and Barone then lost his grip on Plaintiff's wrist. ( Id. ¶ 29.) As Plaintiff entered his bedroom to get his shoes, Barone chased him and allegedly slammed Plaintiff into the door and into the wall, while twisting Plaintiff's right arm and hand behind Plaintiff's back. ( Id. ¶ 30.) When Plaintiff's mother protested, Barone allegedly told her “I'll break both of his arms,” and threw her to the floor. ( Id. ¶ 31.) After Plaintiff was handcuffed, Barone “violently threw Plaintiff to the floor, while thrusting his knees on top of Plaintiff's legs.” ( Id. ¶ 32.) Plaintiff claims that he never attacked or provoked Barone. ( Id. ¶ 33.)

Plaintiff was taken to the police station, where after two hours, he was given an Appearance Ticket for Theft of Services and Resisting Arrest. ( Id. ¶ 35.) The next morning, Plaintiff went to the Emergency Room at the White Plains Hospital. ( Id. ¶ 37.) Plaintiff claims that as a result of Barone's actions, he has “suffered severe and permanent physical pain and suffering, he has undergone multiple surgeries to his entire body, including his bones and joints, and he is suffering severe and continuing emotional distress and mental anguish.” ( Id. ¶ 41.)

B. Procedural History

Plaintiff filed a Notice of Claim against the Town of Harrison on September 28, 2006, and on June 29, 2007 he filed a Summons with Notice in New York Supreme Court, Westchester County, naming the Town of Harrison and the Town of Harrison Police Department as Defendants. ( Id. ¶¶ 7–10; Decl. of Neil Torczyner, Exs. B, C.) ² On July 26, 2007, Defendants removed the action to federal court, and on December 14, 2007, the action was discontinued without prejudice. (Am. Compl. ¶¶ 11–13.) On June 24, 2009 Plaintiff filed a Complaint with the Court's pro se office naming the Town of Harrison, Lieutenant Robert Collins, Police Officer Stephan Barone, and the Town of Harrison Police Department as Defendants. (Dkt. No. 2.)

Plaintiff obtained counsel in November 2009 (Dkt. No. 12), and upon leave of the Court, filed an Amended Complaint on August 9, 2011, (Dkt. No. 37). In his First and Second Causes of Action, Plaintiff brings claims against Barone under 42 U.S.C. § 1983. (Am. Compl. ¶¶ 43–63.) Plaintiff claims that Barone violated his right to be free from unlawful searches and seizures, and that Barone used excessive force against Plaintiff, in violation of the Fourth Amendment. Plaintiff also claims that Barone violated his Fifth Amendment Due Process and Fourteenth Amendment Equal Protection rights. Barone has not moved to dismiss these claims. In his Third and Seventh Causes of Action, Plaintiff seeks to hold the Town liable for Barone's actions under a theory of municipal liability pursuant to Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). The Town moves to dismiss these claims. (Dkt. No. 46.) The Court held oral argument on September 20, 2012.

II. Discussion

A. Standard of Review

“On a Rule 12(b)(6) motion to dismiss a complaint, the court must accept a plaintiff's factual allegations as true and draw all reasonable inferences in [the plaintiff's] favor.” Gonzalez v. Caballero, 572 F.Supp.2d 463, 466 (S.D.N.Y.2008); see also Ruotolo v. City of New York, 514 F.3d 184, 188 (2d Cir.2008) (“We review de novo a district court's dismissal of a complaint pursuant to Rule 12(b)(6), accepting all factual allegations in the complaint and drawing all reasonable inferences in the plaintiff's favor.” (internal quotation marks omitted)). “In adjudicating a Rule 12(b)(6) motion, a district court must confine its consideration to facts stated on the face of the complaint, in documents appended to the complaint or incorporated in the complaint by reference, and to matters of which judicial notice may be taken.” Leonard F. v. Isr. Disc. Bank of N.Y., 199 F.3d 99, 107 (2d Cir.1999) (internal quotation marks omitted).

“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.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (alteration in original) (internal citations omitted). Instead, the Supreme Court has emphasized that “[f]actual allegations must be enough to raise a right to relief above the speculative level,” id., and that “once a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint,” id. at 563, 127 S.Ct. 1955. A plaintiff must allege “enough facts to state a claim to relief that is plausible on its face.” Id. at 570, 127 S.Ct. 1955. If a plaintiff “ha[s] not nudged [his/her] claims across the line from conceivable to plausible, [his/her] complaint must be dismissed.” Id.; see also Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (“Determining whether a complaint states a plausible claim for relief will ... be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not ‘show [n]’—‘that the pleader is entitled to relief.’ ” (alteration in original) (internal citation omitted) (quoting Fed.R.Civ.P. 8(a)(2))).

B. Analysis

In his Third and Seventh Causes of Action, Plaintiff seeks to hold the Town liable under 42 U.S.C. § 1983, alleging that the Town has a custom or practice of tolerating civil rights abuses by its police officers and of failing to adequately discipline police officers. Plaintiff also alleges that the Town has failed to adequately train and supervise its police officers. The Town argues that Plaintiff has not pled any facts which would plausibly support an inference that the allegedly unconstitutional acts of Barone could be attributed to a municipal custom or policy. (Mem. of Law in Supp. of Def. Town of Harrison NY's Mot. to Dismiss (“Def.'s Mem.”) 2.) The Town additionally argues that the Monell claims in the Amended Complaint are time barred and cannot be deemed to “relate back” to the original complaint filed in June 2009. ( Id.) ³

1. Section 1983 Municipal Liability

“Congress did not intend municipalities to be held liable [under § 1983] unless action pursuant to official municipal policy of some nature caused a constitutional tort.” Monell, 436 U.S. at 691, 98 S.Ct. 2018. Thus, “to prevail on a claim against a municipality under section 1983 based on acts of a public official, a plaintiff is required to prove: (1) actions taken under color of law; (2) deprivation of a constitutional or statutory right; (3) causation; (4) damages; and (5) that an official policy of the municipality caused the constitutional injury.” Roe v. City of Waterbury, 542 F.3d 31, 36 (2d Cir.2008); cf. Salvatierra v. Connolly, No. 09–CV–3722, 2010 WL 5480756, at *10 (S.D.N.Y. Sept. 1, 2010) (dismissing claim against agencies where plaintiff did not allege that any policy or custom caused the deprivation of his rights); Arnold v. Westchester Cnty., No. 09–CV–3727, 2010 WL 3397375, at *9 (S.D.N.Y. Apr. 16, 2010) (dismissing claim against county because complaint “does not allege the existence of an unconstitutional custom or policy”). The fifth element reflects the notion that “a municipality may not be held liable under § 1983 solely because it employs a tortfeasor.” Bd. of Cnty. Comm'rs v. Brown, 520 U.S. 397, 403, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997); see also Newton v. City of New York, 566 F.Supp.2d 256, 270 (S.D.N.Y.2008) (“As subsequently reaffirmed and explained by the Supreme Court,...