Opinion
6:19-CV-766 (GTS/TWD)
01-30-2020
GEORGE JOHN KUCHMA, Plaintiff, v. CITY OF UTICA, et al., Defendants.
APPEARANCES: GEORGE JOHN KUCHMA Plaintiff, pro se 905 Saratoga Street Apartment 3 Utica, New York 13502 CITY OF UTICA - CORPORATION COUNSEL Attorneys for Defendants 1 Kennedy Plaza, 2nd Floor Utica, New York 13502 ZACHARY OREN, ESQ.
APPEARANCES: GEORGE JOHN KUCHMA
Plaintiff, pro se
905 Saratoga Street
Apartment 3
Utica, New York 13502 CITY OF UTICA - CORPORATION COUNSEL
Attorneys for Defendants
1 Kennedy Plaza, 2nd Floor
Utica, New York 13502 ZACHARY OREN, ESQ. THÉRÈSE WILEY DANCKS, United States Magistrate Judge ORDER AND REPORT-RECOMMENDATION
This Court issued an Order and Report-Recommendation on July 30, 2019, granting George John Kuchma's ("Plaintiff") application to proceed in forma pauperis and recommending his Complaint (Dkt. No. 1) be dismissed without prejudice. (Dkt. No. 4.) On August 23, 2019, Plaintiff filed an amended complaint. (Dkt. No. 9.) Hon. Glenn T. Suddaby, Chief United States District Judge, adopted this Court's Report-Recommendation and directed Plaintiff to, within thirty-days, either notify the court whether his proposed amended complaint (Dkt. No. 9) is the amended complaint on which he wishes to proceed or file a revised amended complaint. (Dkt. No. 10.) Plaintiff did not respond to the Court's order. Accordingly, due to the passage of time, the Court construes Plaintiff's amended complaint (Dkt. No. 9) as the operative complaint and will consider whether it satisfies 28 U.S.C. § 1915(e) pleading standards. For the reasons that follow, this Court recommends Plaintiff's amended complaint be dismissed with prejudice.
I. SUFFICIENCY OF THE COMPLAINT
A. Standard of Review
28 U.S.C. § 1915(e) directs that when a person proceeds in forma pauperis, "the court shall dismiss the case at any time if the court determines that . . . the action . . . (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B)(i)-(iii).
In determining whether an action is frivolous, the court must look to see whether the complaint lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). "An action is frivolous when either: (1) the factual contentions are clearly baseless such as when the claims are the product of delusion or fantasy; or (2) the claim is based on an indisputably meritless legal theory." Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998) (citations and internal quotation marks omitted). Although extreme caution should be exercised in ordering sua sponte dismissal of a pro se complaint before the adverse party has been served and the parties have had an opportunity to respond, Anderson v. Coughlin, 700 F.2d 37, 41 (2d Cir. 1983), the court still has a responsibility to determine that a claim is not frivolous before permitting a plaintiff to proceed. See, e.g., Thomas v. Scully, 943 F.2d 259, 260 (2d Cir. 1991) (per curiam) (holding a district court has the power to dismiss a complaint sua sponte if the complaint is frivolous).
To survive dismissal for failure to state a claim, a complaint must plead enough facts to state a claim 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). While Rule 8(a) of the Federal Rules of Civil Procedure, which sets forth the general rules of pleading, "does not require detailed factual allegations, . . . it demands more than an unadorned, the-defendant-harmed-me accusation." Id. In determining whether a complaint states a claim upon which relief may be granted, "the court must accept the material facts alleged in the complaint as true and construe all reasonable inferences in the plaintiff's favor." Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994) (citation omitted). "[T]he 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.
Where a plaintiff proceeds pro se, the pleadings must be read liberally and construed to raise the strongest arguments they suggest. Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008) (citation omitted). Moreover, a pro se complaint should not be dismissed "without giving leave to amend at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated." Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999) (citation and internal quotation marks omitted). However, an opportunity to amend is not required 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).
The facts in the amended complaint and the original complaint are identical except for Paragraphs 25-28, which describe Plaintiff's excessive force claim in more detail. (Compare Dkt. No. 1, with Dkt. No. 9.)
In September 2017, Plaintiff visited a Stewarts Shop at 425 Court St. in Utica, New York and was accused of shoplifting and told not to return. (Dkt. No. 9 at ¶ 1.) Nearly a year later, at 5:00 a.m. on August 29, 2018, Plaintiff went to the same Stewarts Shop to purchase a pack of cigarettes. Id. at ¶ 2. Plaintiff alleges he purchased cigarettes with no incident and went to an outdoor picnic table to smoke a cigarette. Id. at ¶¶ 3, 4. He noted two Utica Police Officers were near him and he engaged the officers in conversation. Id. at ¶¶ 5, 6. One of these officers was Sergeant Abel. Id. at ¶ 5.
According to Plaintiff, Sergeant Abel asked Plaintiff whether he knew the manager of the Stewarts Shop did not want Plaintiff on the property. Id. at ¶ 7. Plaintiff replied the previous incident occurred nearly a year ago and he had just bought cigarettes, so he did not think it was a problem. Id. ¶ 8. Plaintiff asserted he told the officers he would leave after using the free air pump to re-fill air in his bicycle tire. Id. at ¶ 9.
Rather than letting him leave, Plaintiff alleges Sergeant Abel placed Plaintiff under arrest and ordered him to put his hands behind his back. Id. at ¶ 10, 11. Plaintiff asserts he obeyed Sergeant Abel's orders and Sergeant Abel "tightly applied hand cuffs." Id. at ¶ 12. According to Plaintiff, Sergeant Abel then pulled on the handcuffs hard enough to cut into the skin on his left wrist. Id. at ¶ 13. Plaintiff was next placed in the rear of a police car and transported to the police station for processing. Id. at ¶ 14. Plaintiff stated the booking officer noted his hands were bloody when he removed his handcuffs. Id. at ¶ 16. Plaintiff claims he spent approximately 45 minutes in the handcuffs. Id. at ¶ 18. Plaintiff was issued a citation for trespassing. Id. at ¶ 15.
Based on the foregoing, the Court construes the amended complaint as asserting three causes of action pursuant to 42 U.S.C. § 1983. First, Plaintiff alleges Sergeant Abel did not have probable cause to arrest him for trespassing and, therefore, his detainment violated the Fourth Amendment to the United States Constitution. Id. at ¶¶ 19-23. Second, Plaintiff alleges the level of force used to effectuate his arrest was unreasonable in violation of the Fourth Amendment's prohibition against excessive force. Id. at ¶¶ 24-28. Specifically, he argues Sergeant Abel knew or should have known that applying handcuffs tightly and then exerting upward force on the handcuffs would cause an injury. Id. at ¶ 26. Plaintiff also attached photos of his wrists taken on the day of the arrest and then again 20-days later to demonstrate the injury he suffered as a result of the handcuffs. (Dkt. No. 9-1.) Finally, Plaintiff appears to assert a municipal liability claim against the Utica Police Department and the City of Utica related to his excessive force claim. (Dkt. No. 9 at ¶¶ 27-28.)
II. ANALYSIS
A. Utica Police Department
The Court notes Plaintiff added the Utica Police Department as a party to this lawsuit. (Dkt. No. 9. at 1-2.) However, "[a] police department cannot sue or be sued because it does not exist separate and apart from the municipality and does not have its own legal identity." Baker v. Willett, 42 F. Supp. 2d 192, 198 (N.D.N.Y. 1999) (dismissing claims against county sheriff's department) (citations omitted); see also Jackson v. Cty. of Nassau, 07-CV-245, 2010 WL 335581, at *5 (E.D.N.Y. Jan. 22, 2010) ("Under New York law, departments which are merely administrative arms of a municipality do not have a legal identity separate and apart from the municipality and cannot sue or be sued."); see, e.g., La Grande v. Town of Bethlehem Police Dep't, No. 1:08-CV-0738 (LEK/DRH), 2009 WL 2868231, at *2 (N.D.N.Y. Sept. 1, 2009) ("Since the Bethlehem Police Department cannot be sued pursuant to 42 U.S.C. § 1983, [the plaintiff's] [c]omplaint is dismissed as against the Town of Bethlehem Police Department."); Jenkins v. Liadka, No. 5:10-CV-1223 (GTS/DEP), 2012 WL 4052286, at *5 (N.D.N.Y. Sept. 13, 2012) ("Because the Syracuse Police Department is merely an administrative arm of the City of Syracuse, it is not a proper defendant.").
Therefore, the Court recommends denying Plaintiff's attempt to amend the caption to add the Utica Police Department as a defendant.
B. False Arrest
"To establish a claim for false arrest under 42 U.S.C. § 1983, a plaintiff must show that the defendant intentionally confined him without his consent and without justification." Escalera v. Lunn, 361 F.3d 737, 743 (2d Cir. 2004) (internal quotation marks omitted). "A section 1983 claim for false arrest is substantially the same as a claim for false arrest under New York law." Jenkins v. City of N.Y., 478 F.3d 76, 84 (2d Cir. 2007). "The existence of probable cause to arrest constitutes justification and is a complete defense to an action for false arrest, whether that action is brought under state law or under § 1983." Id. (internal quotation marks omitted). "[P]robable cause to arrest exists when the officers have knowledge or reasonably trustworthy information of facts and circumstances that are sufficient to warrant a person of reasonable caution in the belief that the person to be arrested has committed or is committing a crime." Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996). Even without probable cause to arrest, "an arresting officer will still be entitled to qualified immunity from a suit for damages if he can establish that there was 'arguable probable cause' to arrest." Escalera, 361 F.3d at 743. "Arguable probable cause exists 'if either (a) it was objectively reasonable for the officer to believe that probable cause existed, or (b) officers of reasonable competence could disagree on whether the probable cause test was met.'" Id. (quoting Golino v. City of New Haven, 950 F.2d 864, 870 (2d Cir. 1991)); see also Caldarola v. Calabrese, 298 F.3d 156, 162 (2d Cir. 2002) (stating that, "in situations where an officer may have reasonably but mistakenly concluded that probable cause existed, the officer is nonetheless entitled to qualified immunity") (citations omitted). The test for qualified immunity is "more favorable to the officers than the one for probable cause." Escalera, 361 F.3d at 743.
Here, Plaintiff has failed to cure his complaint from the shortcomings the Court recognized in its initial ruling. (Dkt. No. 4 at 7.) Specifically, the amended complaint still asserts facts that reveal Sergeant Abel had at least arguable probable cause to arrest Plaintiff for criminal trespass. See id. Accordingly, the Court recommends Plaintiff's claim for false arrest be dismissed.
C. Excessive Force - Tight Handcuffing
As the Court discussed in its initial decision, an excessive force claim based on the use of handcuffs turns on the following factors: (1) whether the handcuffs were unreasonably tight; (2) whether the defendants ignored pleas that the handcuffs were too tight; and (3) the degree of injury to the wrists. (Dkt. No. 4 at 8.) Previously, the Court found Plaintiff's excessive force claim was deficient because he failed to address two of those factors, namely: (1) whether he informed Sergeant Abel that the handcuffs were too tight, and (2) the extent of his injury. Id. Plaintiff's amended complaint successfully addressed the extent of his injury but added nothing with respect to whether he complained that the handcuffs were too tight.
However, recently the Second Circuit issued a decision clarifying the law with respect to excessive force claims involving tight handcuffing. To that end, Cugini v. City of New York, 941 F.3d 604 (2d Cir. 2019), held that it was no longer a pre-requisite to a viable excessive force claim for the individual to have specifically voiced protest to the officer that the handcuffs were too tight. Id. at 615. Rather, the touchstone of an excessive force claim regarding tight handcuffing turned on whether a reasonable officer would have known that the force used was excessive. Id. at 614.
Under this framework, the Court finds Plaintiff's complaint adequately alleges an excessive force claim regarding use of handcuffs. Specifically, the photo attached to the complaint allegedly taken the day after the arrest shows lacerations on his wrists (Dkt. No. 9-1), and Plaintiff alleged the handcuffs were bloody after cutting into his skin. (Dkt. No. 9 at ¶¶ 13, 17.) Given these allegations, a reasonable officer in Sergeant Abel's position should have known the handcuffs were too tight.
Nonetheless, Cugini is also instructive regarding its discussion on qualified immunity. When considering whether a defendant officer is entitled to qualified immunity the Court is required to assess whether "under clearly established law, every reasonable officer would have concluded that [the defendant's] actions violated [the plaintiff's] Fourth Amendment rights in the particular circumstance presented by the uncontested facts and the facts presumed in [the plaintiff's] favor." Brown v. City of New York, 862 F.3d 182, 190 (2d Cir. 2017).
The Second Circuit in Cugini dismissed the plaintiff's claims because the officer was entitled to qualified immunity given the state of the law at the time of the arrest. To that end, the Court concluded that, at the time of the plaintiff's arrest (June 26, 2014), "[i]t remained an open question in this Circuit whether a plaintiff asserting an excessive force claim was required to show evidence that an officer was made reasonably aware of her pain by means of an explicit verbal complaint." Cugini, 941 F.3d at 616. In other words, clearly established law did not require an officer to respond to non-verbal physical manifestations of discomfort regarding tight handcuffing. Id. at 616.
Here, Sergeant Abel is similarly situated to the officers in Cugini in every important aspect. Specifically, the actions at issue here occurred in September 2017, at a time when the law regarding excessive force and handcuffs was not clearly established. See id. (citing Shamir v. City of New York, 804 F.3d 553, 557 (2d Cir. 2015); Arroyo v. City of New York, 683 F. App'x 73, 75 (2d Cir. 2017)). To that end, when Sergeant Abel arrested Plaintiff, it was an open question "whether a plaintiff asserting an excessive force claim was required to show evidence that an officer was made reasonably aware of her pain by means of an explicit verbal complaint." Cugini, 941 F.3d at 616. Therefore, absent allegations of such a verbal complaint, the Court finds Sergeant Abel is entitled to qualified immunity on Plaintiff's excessive force claim. Accordingly, the Court recommends dismissing this claim.
D. Municipal Liability
Qualified immunity applies to individuals, not municipalities. Askins v. Doe No. 1, 727 F.3d 248, 254 (2d Cir. 2013) ("Qualified immunity is a defense available only to individuals sued in their individual capacity"). Thus, Plaintiff may still have a viable claim against the city regardless of whether he has no individual claims. As noted in the Court's previous decision, a municipality may not be held liable under that section for the acts of its employees based on a theory of respondeat superior. Monell v. Dep't of Social Servs. of City of New York, 436 U.S. 658, 691 (1978); Blond v. City of Schenectady, No. 10-CV-0598, 2010 WL 4316810, at *3 (N.D.N.Y. Oct. 26, 2010). To sustain a section 1983 claim for municipal liability, a plaintiff must show that he suffered a constitutional violation, and the violation resulted from an identified municipal policy or custom. Monell, 436 U.S. at 694-695.
An "official policy or custom" can be shown in several ways: (1) a formal policy officially endorsed by the municipality; (2) actions taken by government officials responsible for establishing municipal policies related to the particular deprivation in question; (3) a practice so consistent and widespread it constitutes a custom or usage sufficient to impute constructive knowledge of the practice to policymaking officials; or (4) a failure by policymakers to train or supervise subordinates to such an extent it amounts to deliberate indifference to the rights of those who come in contact with the municipal employees. Dorsett-Felicelli, Inc. v. Cty. of Clinton, 371 F. Supp. 2d 183, 194 (N.D.N.Y. 2005) (citing Monell, 436 U.S. at 690-91). "Custom denotes persistent and widespread practices, and thus proof of a single incident of unconstitutional activity is not sufficient to impose liability under Monell . . . ." Ahern v. City of Syracuse, 411 F. Supp. 2d 132, 139 (N.D.N.Y. 2006) (punctuation and citation omitted).
Plaintiff's allegations in this respect are conclusory and do not state a viable claim. Specifically, two paragraphs in the amended complaint attempt to state a municipal claim. First, paragraph 27 asserts the Utica Police Department has been sued before on excessive force claims. (Dkt. No. 9 at ¶ 27.) However, such a claim—even if true—is irrelevant because being sued is not tantamount to being responsible for instances of excessive force. Moreover, paragraph 27 is not related to handcuffing. Similarly, paragraph 28 merely asserts the Utica Police Department does not have a written policy on handcuffing techniques or the use of force spectrum. Id. at ¶ 28. In sum, the Court finds Plaintiff's amended complaint fails to allege sufficient facts to state a viable municipal liability claim. As such, the Court recommends dismissing Plaintiff's municipal liability claim.
E. Leave to Amend
Normally, when a pro se plaintiff's complaint is facially deficient, he or she is given at least one chance to amend the complaint to state a viable claim. Here, Plaintiff was granted such an opportunity and still failed to state a claim. Given the nature of the claims at issue, the Court finds Plaintiff would be unable to cure the deficiencies in the amended complaint and therefore recommends Plaintiff's amended complaint be dismissed with prejudice. Cuoco, 222 F.3d at 112.
ACCORDINGLY, it is hereby
RECOMMENDED that the amended complaint (Dkt. No. 9) be DISMISSED WITH PREJUDICE; and it is further
ORDERED that the Clerk serve a copy of this Order and Report-Recommendation on Plaintiff, along with a copy of the unpublished decisions cited herein in accordance with the Second Circuit's decision in Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
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. 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)); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72, 6(a). Dated: January 30, 2020
If you are proceeding pro se and are served with this Order and Report-Recommendation by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date the Order and Report-Recommendation 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).
Syracuse, New York
/s/_________
Thérèse Wiley Dancks
United States Magistrate Judge