Opinion
5:22-CV-1011 (BKS/ML)
11-15-2023
PATRICK M. BOOTH, Plaintiff, v. CITY OF WATERTOWN; WATERTOWN POLICE DEP'T; DUSTIN C. SHAWCROSS, Police Officer; PEARCE A. PARSONS, Police Officer; DAVID PAULSEN, County Attorney; and CHARLES DONOGHUE, Chief of City Police, Defendants.
PATRICK M. BOOTH Plaintiff, Pro Se
PATRICK M. BOOTH Plaintiff, Pro Se
REPORT AND RECOMMENDATION
MIROSLAV LOVRIC, UNITED STATES MAGISTRATE JUDGE
I. INTRODUCTION
Plaintiff Patrick M. Booth (“Plaintiff”) commenced this civil rights action pro se on September 26, 2022, asserting claims arising from an interaction he had with members of the Watertown Police Department on June 24, 2022. (Dkt. No. 1.) Plaintiff did not pay the filing fee for this action and sought leave to proceed in forma pauperis (“IFP”). (Dkt. Nos. 2, 3, 4.) On February 7, 2023, the undersigned denied Plaintiff's IFP applications without prejudice and with leave to renew. (Dkt. No. 8.) The undersigned's order dated February 7, 2023, directed Plaintiff to, within thirty days, either pay the $402.00 filing fee, or submit a renewed IFP application. (Id.) On March 14, 2023, the undersigned issued an Order and Report Recommendation which, inter alia, recommended that Plaintiff's Complaint be dismissed without prejudice for failure to comply with the filing fee requirement. (Dkt. No. 10.) On April 28, 2023, Chief United States District Judge Brenda K. Sannes adopted the undersigned's Order and Report-Recommendation and dismissed Plaintiff's Complaint without prejudice. (Dkt. No. 13.)
On May 15, 2023, Plaintiff filed a motion for reconsideration of Chief Judge Sannes's order dismissing the Complaint. (Dkt. No. 16.) On May 23, 2023, Chief Judge Sannes granted Plaintiff's motion for reconsideration, directed the Clerk of the Court to re-open the case, and directed Plaintiff to, within thirty days, either (1) pay the $402.00 filing fee, or (2) submit a renewed IFP application. (Dkt. No. 22.)
On June 5, 2023, the Court received Plaintiff's filing fee in full. (Docket entry dated 6/05/2023.)
Currently pending before the Court is Plaintiff's Complaint for review pursuant to 28 U.S.C. § 1915A. For the reasons set forth below, I recommend that Plaintiff's Complaint be accepted in part for filing and dismissed in part with leave to amend.
Construed as liberally as possible, Plaintiff's Complaint alleges that his civil rights were violated by Defendants City of Watertown, the Watertown Police Department, Dustin C. Shawcross (police officer), Pearce A. Parsons (police officer), David Paulsen (County Attorney), and Charles Donoghue (Chief of City Police) (collectively “Defendants”). (See generally Dkt. No. 1.)
The court must interpret pro se complaints to raise the strongest arguments they suggest. Soto v. Walker, 44 F.3d 169, 173 (2d Cir. 1995) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)).
More specifically, Plaintiff alleges that on June 24, 2022, in the City of Watertown, New York, around 3:00 a.m., Defendants Shawcross and Parsons-who are employed by Defendant Watertown Police Department-put a knee on Plaintiff's neck, which cut off Plaintiff's ability to breathe. (Dkt. No. 1 at 2.) In addition, the Complaint alleges that Defendants Shawcross and Parsons “assault[ed]” Plaintiff by punching him repeatedly in the head and face with closed fists. (Id.) Plaintiff alleges that as a result of this interaction with Defendants Shawcross and Parsons, his nerves are damaged, and he experiences panic attacks and nightmares. (Id.)
Based on these factual allegations Plaintiff appears to assert the following four causes of action: (1) a claim that Defendants used excessive force against Plaintiff in violation of the Eighth Amendment and 42 U.S.C. § 1983; (2) a claim that Defendants failed to protect Plaintiff in violation of the Eighth Amendment and 42 U.S.C. § 1983; (3) a claim that Defendants violated Plaintiff's right to be free from cruel and unusual punishment in violation of the Eighth Amendment and 42 U.S.C. § 1983; and (4) a claim that Defendants violated Plaintiff's right to life, liberty, and property pursuant to the Fourteenth Amendment and 42 U.S.C. § 1983. (Dkt. No. 1 at 4.)
As relief, Plaintiff seeks compensatory and punitive damages in the amount of $1,500,000.00. (Dkt. No. 1 at 5.)
II. LEGAL STANDARD FOR INITIAL REVIEW OF THE COMPLAINT
Pursuant to 28 U.S.C. § 1915A, a court must review any “complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity” and must “identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint . . . is frivolous, malicious, or fails to state a claim upon which relief may be granted; or . . . seeks monetary relief from a defendant who is immune from such relief.” 28 U.S.C. § 1915A; see also Carr v. Dvorin, 171 F.3d 115, 116 (2d Cir. 1999) (finding that Section 1915A applies to all actions brought by prisoners against government officials); Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007) (stating that both 28 U.S.C. § 1915 and 28 U.S.C. § 1915A are available to evaluate prisoner pro se complaints).
In reviewing a pro se complaint, a court has a duty to show liberality toward pro se litigants, see Nance v. Kelly, 912 F.2d 605, 606 (2d Cir. 1990), and should exercise “extreme caution . . . in ordering sua sponte dismissal of a pro se complaint before the adverse party has been served and both parties (but particularly the plaintiff) have had an opportunity to respond,” Anderson v. Coughlin, 700 F.2d 37, 41 (2d Cir. 1983) (internal citations omitted). Therefore, a court should not dismiss a complaint if the plaintiff has stated “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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). Although a court should construe the factual allegations in the light most favorable to the plaintiff, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. (citing Twombly, 550 U.S. at 555). “[W]here 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.'” Id. at 679 (quoting Fed.R.Civ.P. 8(a)(2)). The Supreme Court has stated that Rule 8 “demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. at 678 (citing Twombly, 550 U.S. at 555). Thus, a pleading that only “tenders naked assertions devoid of further factual enhancement” will not suffice. Id. (cleaned up).
III. ANALYSIS
In addressing the sufficiency of a plaintiff's complaint, the court must construe his pleadings liberally. Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008). Having reviewed Plaintiff's Complaint with this principle in mind, I recommend that a response be required to some of Plaintiff's claims and that other claims be dismissed.
A. Claims Against Defendant Paulsen
“Dismissal is appropriate where a defendant is listed in the caption, but the body of the complaint fails to indicate what the defendant did to the plaintiff.” Cipriani v. Buffardi, 06-CV-0889, 2007 WL 607341, at *1 (N.D.N.Y. Feb. 20, 2007) (Kahn, J.) (citing Gonzalez v. City of New York, 97-CV-2246, 1998 WL 382055, at *2 (S.D.N.Y. July 9, 1998)); see also Crown v. Wagenstein, 96-CV-3895, 1998 WL 118169, at *1 (S.D.N.Y. Mar. 16, 1998) (mere inclusion of warden's name in complaint insufficient to allege personal involvement); Taylor v. City of New York, 953 F.Supp. 95, 99 (S.D.N.Y. 1997) (same).
Here, Plaintiff names Defendant Paulsen as a defendant, but the body of the Complaint lacks any allegations of wrongdoing by this official. (See generally Dkt. No. 1.) Moreover, the undersigned has no basis to plausibly infer that this official-who is not employed by the City of Watertown or the Watertown Police Department-possessed the authority to address, in any respect, the alleged wrongdoing detailed in the Complaint. See, e.g., Kregler v. City of New York, 821 F.Supp.2d 651, 658-59 (S.D.N.Y. 2011) (“Because it is undisputed that Schwam and Keenaghan were subordinates and thus lacked the authority to prevent the alleged constitutional violation caused by their supervisor, Kregler's claim of deliberate indifference fails as a matter of law.”); Kuolkina v. City of New York, 559 F.Supp.2d 300, 317 (S.D.N.Y. 2008) (dismissing claims against state officials who “did not have the authority to take action with respect to any constitutional violation plaintiffs may have suffered” (collecting cases)).
For each of these reasons, I recommend that Plaintiff's claims against Defendant Paulsen be dismissed pursuant to 28 U.S.C. § 1915A(b) for failure to state a claim upon which relief may be granted.
B. Claims Against Defendant Watertown Police Department
“Although a municipality is subject to suit pursuant to section 1983, see Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690 (1978), a municipal . . . department does not have the capacity to be sued as an entity separate from the municipality in which it is located.” White v. Syracuse Police Dep't, 18-CV-1471, 2019 WL 981850, at *3 (N.D.N.Y. Jan. 7, 2019) (Peebles, M.J.) (citing Krug v. Cnty. of Rennselaer, 559 F.Supp.2d 223, 247 (N.D.N.Y. 2008) (McAvoy, J.); Turczyn ex rel. McGregor v. City of Utica, 13-CV-1357, 2014 WL 6685476, at *2 (N.D.N.Y. Nov. 26, 2014) (Sharpe, J.); Hoisington v. Cnty. of Sullivan, 55 F.Supp.2d 212, 214 (S.D.N.Y. 1999) (“Under New York law, a department of a municipal entity is merely a subdivision of the municipality and has no separate legal existence. Therefore, municipal departments like the Department of Social Services are not amenable to suit and no claims lie directly against the Department.”)), report and recommendation adopted, 2019 WL 974824 (N.D.N.Y. Feb. 28, 2019) (Suddaby, C.J.).
Thus, Defendant Watertown Police Department is not proper a party, which would be amenable to suit. As a result, I recommend that Plaintiff's claims against Defendant Watertown Police Department be dismissed.
C. Claims Against Defendant City of Watertown
A municipality may only be named as a defendant in certain circumstances. In Monell v. Dep't of Soc. Servs., 436 U.S. 658 (1978), the Supreme Court outlined the limited circumstances under which a municipality may be liable under Section 1983. A municipality may not be held liable solely because it employs a tortfeasor. Los Angeles Cnty., Cal. v. Humphries, 562 U.S. 29, 36 (2010). Only when the municipality, through the execution of its policies, actually deprives an individual of his constitutional rights, is it liable for the injury. Monell, 436 U.S. at 694.
To establish municipal liability, the policy must actually cause the violation of constitutional rights; it must be the moving force behind the violation. Id.; Dominguez v. Beame, 603 F.2d 337, 341 (2d Cir. 1979). Official policy includes the decisions of a government's lawmakers, the acts of policymaking officials, and practices that are so widespread as to “practically have the force of law.” Connick v. Thompson, 563 U.S. 51, 61 (2011). Municipal liability may also be shown by establishing that a policymaking official ordered or ratified the employees' actions either expressly or tacitly.
Finally, municipal liability can, under limited circumstances, be based upon a failure to properly train the municipality's employees. Connick, 563 U.S. at 51. However, municipal liability is most tenuous when a claim turns on the failure to train. Id. (citing Oklahoma City v. Tuttle, 471 U.S. 808, 822-23 (1985) (plurality opinion) (“[A] ‘policy' of ‘inadequate training'” is “far more nebulous, and a good deal further removed from the constitutional violation, than was the policy in Monell”)). To satisfy the statute, a municipality's failure to train its employees must amount to “‘deliberate indifference to the rights of persons with whom the [untrained employees] come into contact.'” Id. (citing City of Canton, Ohio v. Harris, 489 U.S. 378, 388 (1989)).
There is no basis for municipal liability alleged in the Complaint. Plaintiff essentially complains of a single incident, during which an officer or officers employed by the Watertown Police Department did not act properly. There is no indication that Plaintiff can assert a policy or custom which would support municipal liability based on these facts. In addition, none of Plaintiff's allegations reflect a failure to train or “deliberate indifference” to the rights of persons who would come into contact with employees of Defendant Watertown Police Department.
As a result, I recommend that Plaintiff's claims against Defendant City of Watertown be dismissed at this time. See Flagg v. NYS Division of Parole, 19-CV-0886, 2019 WL 5002215, at *5 (N.D.N.Y. Aug. 15, 2019) (Baxter, M.J.) (citing DeCarlo v. Fry, 141 F.3d 56, 61 (2d Cir. 1998)) (“A single incident, particularly if it involved individuals below the policy-making level is insufficient to state a Monell claim.”), report and recommendation adopted, 2019 WL 4963112 (N.D.N.Y. Oct. 8, 2019) (McAvoy, J.).
D. Claims Against Defendant Donoghue
“It is well settled in this Circuit that ‘personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983.'” Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994) (quoting Moffitt v. Town of Brookfield, 950 F.2d 880, 885 (2d Cir. 1991)). In order to prevail on a section 1983 cause of action against an individual, a plaintiff must show “a tangible connection between the acts of a defendant and the injuries suffered.” Bass v. Jackson, 790 F.2d 260, 263 (2d Cir. 1986). “[D]irect participation as a basis of liability in this context requires intentional participation in the conduct constituting a violation of the victim's rights by one who knew of the facts rendering it illegal.” Provost v. City of Newburgh, 262 F.3d 146, 155 (2d Cir. 2001) (internal quotation marks omitted).
Courts in this circuit routinely hold that “the doctrine of respondeat superior cannot be applied to section 1983 actions to satisfy the prerequisite of personal involvement. Therefore, a prison official may not be found liable for a constitutional violation merely because of the acts of those under his control.” Kinch v. Artuz, 97-CV-2419, 1997 WL 576038, at *2 (S.D.N.Y. Sept. 15, 1997) (citing Colon v. Coughlin, 58 F.3d 865, 874 (2d Cir. 1995); Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994)). Thus, supervisory officials may not be held liable for their subordinates' constitutional violations merely because they are in a position of authority. See Black v. Coughlin, 76 F.3d 72, 74 (2d Cir. 1996); see also Colon, 58 F.3d at 874 (holding that the fact that the defendant occupied a high-ranking position in the New York prison hierarchy, without more, was insufficient to establish personal involvement).
In Tangreti v. Bachmann, 983 F.3d 609 (2d Cir. 2020), the Second Circuit concluded that “there is no special rule for supervisory liability,” and held that a “plaintiff must plead and prove ‘that each Government-official defendant, through the official's own individual actions, had violated the Constitution.'” Tangreti, 983 F.3d at 618. The Second Circuit explained that, “‘the factors necessary to establish a [§ 1983] violation will vary with the constitutional provision at issue' because the elements of different constitutional violations vary. The violation must be established against the supervisory official directly.” Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009)).
Here, Plaintiff names Defendant Donoghue as a defendant, but the body of the Complaint lacks any allegations of wrongdoing by this official. (See generally Dkt. No. 1.) Thus, the Complaint fails to allege the personal involvement of Defendant Donoghue in the wrongdoing detailed in the Complaint. As a result, I recommend that Plaintiff's claims against Defendant Donoghue be dismissed for failure to state a claim upon which relief may be granted pursuant to 28 U.S.C. § 1915A(b).
E. Claims Against Defendants Showcross and Parsons
1. Excessive Force
It is well-settled that the Fourth Amendment prohibits the use of excessive force by a police officer during a “seizure” of a free citizen. See Graham v. Connor, 490 U.S. 386, 395 (1989). In contrast, the Eighth Amendment prohibits cruel and unusual punishment for incarcerated persons. See Whitley v. Albers, 475 U.S. 312, 319 (1986).
As a result, to the extent that Plaintiff's excessive force claim is asserted pursuant to the Eighth Amendment, I recommend that it be dismissed for failure to state a claim upon which relief may be granted because the allegations in the Complaint appear to relate to the seizure of Plaintiff as a free citizen.
“The Fourth Amendment prohibits the use of excessive force in making an arrest, and whether the force used is excessive is to be analyzed under that Amendment's reasonableness standard.'” Outlaw v. City of Hartford, 884 F.3d 351, 366 (2d Cir. 2018) (quoting Brown v. City of New York, 798 F.3d 94, 100 (2d Cir. 2015)). “The ‘proper application' of this standard ‘requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.'” Outlaw, 884 F.3d at 366 (quoting Graham v. Connor, 490 U.S. 386, 396 (1989)). The reasonableness determination must include consideration of the fact that law enforcement officers often are forced to make quick decisions under stressful and rapidly evolving circumstances rendering the calculation of what amount of force is reasonable difficult. See Graham, 490 U.S. at 396-97. Relevant factors include the severity of the crime at issue, whether the suspect posed an immediate threat to the safety of the officers or others, and whether the suspect was actively resisting arrest. See Brown, 798 F.3d at 100 (citing Graham, 490 U.S. at 396).
Out of an abundance of caution, mindful of the Second Circuit's instruction that a pro se plaintiff's pleadings must be liberally construed, see, e.g., Sealed Plaintiff, 537 F.3d at 191, and without expressing an opinion as to whether Plaintiff can withstand a properly filed motion to dismiss or for summary judgment, I recommend that a response be required to Plaintiff's excessive force claim pursuant to the Fourth Amendment against Defendants Shawcross and Parsons. See Penree v. City of Utica, 13-CV-1323, 2016 WL 915252, at *8 (N.D.N.Y. Mar.. 4, 2016) (D'Agostino, J.) (“The Fourth Amendment's prohibitions against unreasonable seizures applies equally to how an arrest is carried out, and, therefore, all claims that law enforcement officers have used excessive force . . . in the course of an arrest . . . should be analyzed under the Fourth Amendment.” (internal quotation marks and citation omitted)).
2. Failure to Protect/Failure to Intervene
As set forth above in note 2, to the extent that Plaintiff's failure to intervene claim is asserted pursuant to the Eighth Amendment, I recommend that it be dismissed for failure to state a claim upon which relief may be granted because the allegations in the Complaint appear to relate to the seizure of Plaintiff as a free citizen. However, the undersigned construed the Complaint liberally as asserting a failure to intervene claim pursuant to the Fourth Amendment.
“[A]ll law enforcement officials have an affirmative duty to intervene to protect the constitutional rights of citizens from infringement by other law enforcement officers in their presence.” Anderson v. Branen, 17 F.3d 552, 557 (2d Cir. 1994). “[W]here plaintiffs have properly alleged at least one constitutional violation, courts regularly permit such plaintiffs to plead in the alternative as to multiple defendants, finding that such plaintiffs are entitled to discovery to determine which officers participated directly in the constitutional violation.” Lalonde v. City of Ogdensburg, 22-CV-0164, 2023 WL 2537626, at *10 (N.D.N.Y. Mar. 16, 2023) (Kahn, J.) (citing Matthews v. City of New York, 889 F.Supp.2d 418, 444 (E.D.N.Y. 2012) (“Because plaintiffs properly allege at least one constitutional violation, plaintiffs are entitled to discovery to determine which officers participated directly in the alleged constitutional violation and which officers were present and failed to intervene.”); Durr v. Slator, 558 F.Supp.3d 1, 26 (N.D.N.Y. 2021) (D'Agostino, J.) (“Plaintiff does not allege that either Defendant in particular acted with deliberate indifference by transporting Plaintiff to the Oneida Police Station rather than the Upstate Emergency Department. As such, Plaintiff is permitted to plead in the alternative that Defendants Clark and Slator failed to intervene in the alleged constitutional violation.”).
Liability for failure to intervene pursuant to the Fourth Amendment attaches if police “fail to intervene to protect the constitutional rights of citizens from infringement by other law enforcement officers in their presence.” Morris v. City of New York, 14-CV-1749, 2015 WL 1914906, at *5 (E.D.N.Y. 2015); see Sanabria v. Tezlof, 11-CV-6578, 2016 WL 4371750, at *5 (S.D.N.Y. Aug. 12, 2016) (explaining that liability attaches if an officer “observes or has reason to know . . . that a citizen has been unjustifiably arrested”).
Out of an abundance of caution, mindful of the Second Circuit's instruction that a pro se plaintiff's pleadings must be liberally construed, see, e.g., Sealed Plaintiff, 537 F.3d at 191, and without expressing an opinion as to whether Plaintiff can withstand a properly filed motion to dismiss or for summary judgment, I recommend that a response be required to Plaintiff's failure to intervene claim pursuant to the Fourth Amendment against Defendants Shawcross and Parsons.
3. Cruel and Unusual Punishment
To the extent that Plaintiff has alleged an Eighth Amendment claim of cruel and unusual punishment, I recommend that it be dismissed for failure to state a claim upon which relief may be granted. The protections of the Eighth Amendment “only apply to a person who has been criminally convicted and sentenced; they do not apply to the conduct of police officers in connection with the investigation and arrest of suspects prior to conviction and sentencing.” Spicer v. Burden, 564 F.Supp.3d 22, 31 (D. Conn. 2021) (citing Whitley v. Albers, 475 U.S. 312, 318-19 (1986)); City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983). “Accordingly, any claim purportedly brought by [P]laintiff under the Eighth Amendment for cruel and unusual punishment must be dismissed.” McNair v. Utica Police Dep't, 23-CV-0699, 2023 WL 4935993, at *6 (N.D.N.Y. June 26, 2023) (Baxter, M.J.), report and recommendation adopted, 2023 WL 4931609 (N.D.N.Y. Aug. 1, 2023) (Hurd, J.).
4. Right to Life, Liberty, and Property
To prevail on a Fourteenth Amendment procedural due process claim, a plaintiff “must be able to demonstrate (1) that Defendants deprived him of a cognizable interest in life, liberty, or property, (2) without affording him constitutionally sufficient process.” Proctor v. LeClaire, 846 F.3d 597, 608 (2d Cir. 2017) (citations and quotation marks omitted).
The Complaint fails to allege facts plausibly suggesting that Defendants Shawcross and Parsons deprived Plaintiff of life, liberty, or property or that he was denied constitutionally sufficient process based on the incident that occurred on June 24, 2022. As a result, I recommend that Plaintiff's procedural due process claim against Defendants Shawcross and Parsons be dismissed for failure to state a claim upon which relief may be granted.
IV. OPPORTUNITY TO AMEND
Generally, a court should not dismiss claims contained in a complaint filed by a pro se litigant without granting leave to amend at least once “when a liberal reading of the complaint gives any indication that a valid claim might be stated.” Branum v. Clark, 927 F.2d 698, 704-05 (2d Cir. 1991); see also Fed.R.Civ.P. 15(a)(2) (“The court should freely give leave when justice so requires.”). An opportunity to amend is not required, however, where “the problem with [the plaintiff's] causes of action is substantive” such that “better pleading will not cure it.” Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000); see also Cortec Indus. Inc. v. Sum Holding L.P., 949 F.2d 42, 48 (2d Cir. 1991) (“Of course, where a plaintiff is unable to allege any fact sufficient to support its claim, a complaint should be dismissed with prejudice.”). Stated differently, “[w]here it appears that granting leave to amend is unlikely to be productive, . . . it is not an abuse of discretion to deny leave to amend.” Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir. 1993); accord, Brown v. Peters, 95-CV-1641, 1997 WL 599355, at *1 (N.D.N.Y. Sept. 22, 1997) (Pooler, J.).
See also Carris v. First Student, Inc., 132 F.Supp.3d 321, 340-41 n.1 (N.D.N.Y. 2015) (Suddaby, C.J.) (explaining that the standard set forth in Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 796 (2d Cir. 1999)-that the Court should grant leave to amend “unless the court can rule out any possibility, however unlikely it might be, that an amended complaint would be successful in stating a claim”-is likely not an accurate recitation of the governing law after Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)), rev'd on other grounds, 682 Fed.Appx. 30.
Although I have serious doubts about whether Plaintiff can replead to assert actionable claims that I recommend be dismissed here, given that this is the Court's first review of Plaintiff's pleading, out of an abundance of caution and in light of Plaintiff's status as a pro se litigant, I recommend that he be permitted leave to amend.
If Plaintiff chooses to file an amended complaint, he should note that the law in this circuit clearly provides that “‘complaints relying on the civil rights statutes are insufficient unless they contain some specific allegations of fact indicating a deprivation of rights, instead of a litany of general conclusions that shock but have no meaning.'” Hunt v. Budd, 895 F.Supp. 35, 38 (N.D.N.Y. 1995) (McAvoy, J.) (quoting Barr v. Abrams, 810 F.2d 358, 363 (2d Cir. 1987)); accord Pourzancvakil v. Humphry, 94-CV-1594, 1995 WL 316935, at *7 (N.D.N.Y. May 22, 1995) (Pooler, J.). Therefore, in any amended complaint, Plaintiff must clearly set forth facts that give rise to the claims, including the dates, times, and places of the alleged underlying acts, and each individual who committed each alleged wrongful act. In addition, the revised pleading should allege facts demonstrating the specific involvement of any of the named defendants in the constitutional deprivations alleged in sufficient detail to establish that they were tangibly connected to those deprivations. Bass v. Jackson, 790 F.2d 260, 263 (2d Cir. 1986). Finally, Plaintiff is informed that any such amended complaint will replace the existing complaint, and must be a wholly integrated and complete pleading that does not rely upon or incorporate by reference any pleading or document previously filed with the Court. See Shields v. Citytrust Bancorp, Inc., 25 F.3d 1124, 1128 (2d Cir. 1994) (“It is well established that an amended complaint ordinarily supersedes the original and renders it of no legal effect.”).
ACCORDINGLY, it is respectfully
RECOMMENDED that the Court DISMISS WITH LEAVE TO REPLEAD Plaintiff's Complaint (Dkt. No. 1) to the extent that it asserts (1) claims against Defendants Paulsen, Donoghue, City of Watertown, and Watertown Police Department; and (2) claims against Defendants Shawcross and Parsons asserting (a) an excessive force claim pursuant to the Eighth Amendment and 42 U.S.C. § 1983, (b) a failure to protect claim pursuant to the Eighth Amendment and 42 U.S.C. § 1983, (c) a claim of cruel and unusual punishment pursuant to the Eighth Amendment and 42 U.S.C. § 1983, and (d) a procedural due process claim pursuant to the Fourteenth Amendment and 42 U.S.C. § 1983, because it fails to state a claim upon which relief may be granted pursuant to 28 U.S.C. § 1915A(b); and it is further respectfully
RECOMMENDED that the Court ACCEPT FOR FILING Plaintiff's Complaint (Dkt. No. 1) to the extent that it asserts claims against Defendants Shawcross and Parsons asserting (1) a claim of excessive force pursuant to the Fourth Amendment and 42 U.S.C. § 1983, and (2) a claim of failure to intervene pursuant to the Fourth Amendment and 42 U.S.C. § 1983; and it is further
ORDERED that the Clerk of the Court shall file a copy of this Report and Recommendation on the docket of this case and serve a copy upon the parties in accordance with the local rules.
The Clerk shall also provide Plaintiff with copies of all unreported decisions cited herein in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW . 28 U.S.C. § 636(b)(1) (Supp. 2013); Fed.R.Civ.P. 6(a), 6(d), 72; Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Sec'y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)).
If you are proceeding pro se and served with this report, recommendation, and order by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date that the report, recommendation, and order was mailed to you to serve and file objections. Fed.R.Civ.P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. Fed.R.Civ.P. 6(a)(1)(C).