Callicutt v. Scalise

DEVON CALLICUTT, Plaintiff,

v.ANTHONY SCALISE, Albany County Police Department Officer, et al., Defendants.

1:11-CV-1282 (LEK/RFT)

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

Dated: February 4, 2013

MEMORANDUM-DECISION and ORDER

I. INTRODUCTION

On October 26, 2011, pro se Plaintiff Devon Callicutt ("Plaintiff") filed a civil rights Complaint against six unnamed John Doe Defendants pursuant to 42 U.S.C. § 1983. Dkt. No. 1 ("Complaint"). Plaintiff filed an Amended Complaint on May 9, 2012, naming as Defendants Albany County Police Officers Anthony Scalise, Brian Masters, Brian Hogan, Thomas Mahar, Paul Forkeutis, and a single John Doe officer (collectively, "Defendants"). Dkt. No. 9 ("Amended Complaint"). Presently before the Court is Defendants' Motion to dismiss Plaintiff's Amended Complaint, brought pursuant to Rules 12(b)(2) and 12(b)(6) of the Federal Rules of Civil Procedure. Dkt. No. 15 ("Motion").

II. BACKGROUND

A. Procedural History

On December 5, 2011, upon an initial screening of the Complaint by the Honorable Randolph F. Treece, United States Magistrate Judge, Plaintiff was granted thirty days in which to file an amended complaint and was warned that, if he did not, Judge Treece would recommend thatthe Complaint be dismissed. Dkt. No. 5 ("December Order"). Plaintiff did not file an amended complaint within the allotted time. See Dkt. Therefore, on April 27, 2012, Judge Treece issued another Order granting Plaintiff an additional thirty days, but stating that if Plaintiff did not file an amended complaint, Judge Treece would recommend that the Court dismiss the Complaint for failure to prosecute. Dkt. No. 8 ("April Order"). In compliance with the April Order, Plaintiff filed his Amended Complaint on May 9, 2012. On May 15, 2012, Summonses were issued as to all named Defendants. Dkt. No. 11.

On June 20, 2012, Defendants filed their Motion to dismiss the Amended Complaint. Defendants argue that Plaintiff's claims are barred by the applicable statute of limitations and that Plaintiff has failed to obtain personal jurisdiction over Plaintiffs. See Dkt. No. 17 ("Defendants' Memorandum of Law"). Plaintiff subsequently filed a Response, and Defendants in turn filed a Reply.¹ Dkt. Nos. 22 ("Response"), 23 ("Reply").

B. Factual Allegations

Plaintiff's claims stem from a November 30, 2008 encounter with Defendants. Am. Compl. ¶ 11. On that date, Defendants were pursuing Plaintiff on foot, when he attempted to climb an eight-foot-tall fence. Id. While Plaintiff was perched atop the fence, Defendant Scalise pushed Plaintiff over. Id. Plaintiff fell backwards and landed on his back, causing the firearm he wascarrying to discharge. Id. ¶ 13. Once in the backyard,² Plaintiff threw away his weapon, surrendered himself to Defendants, and was arrested. Id. ¶¶ 12-14. During the arrest, Plaintiff offered no resistance. Id. ¶ 12.

Once he had been handcuffed, however, Plaintiff was set upon by Defendants. Id. After handcuffing Plaintiff, Defendant Masters acted as though he were preparing to walk Plaintiff out of the yard, but then threw Plaintiff to the ground. Id. ¶ 15. Defendant Masters proceeded to hold Plaintiff's head to the ground, and Defendant Hogan held Plaintiff's legs. Id. ¶ 16. While the other two officers kept Plaintiff subdued, Defendant Mahar punched Plaintiff in the face "a couple of times." Id. ¶ 17. Plaintiff was then able to move his face to shield it from Defendant Mahar's blows; however, Defendant Mahar responded by striking Plaintiff twice with his pistol. Id. ¶ 18. Throughout the assault, Defendants Doe and Forkeutis tased Plaintiff until he was on the verge of losing consciousness. Id. ¶ 19. However, when Defendant Masters realized that Plaintiff was beginning to lose consciousness, Defendant Masters told the other Defendants "[t]hat's enough . . . [b]efore he dies." Id. ¶ 20.

After Plaintiff heard this warning, he lost consciousness. Id. ¶ 21. Plaintiff awoke first in an ambulance and then regained consciousness in a hospital. Id. At the hospital, Plaintiff was treated for burn marks on his back from the taser and received five staples to the top left part of his head as treatment for the injuries from being struck with the pistol. Id. ¶ 22.

For a complete statement of Plaintiff's allegations, reference is made to the Amended Complaint.

III. STANDARD OF REVIEW

A. Rule 12(b)(6)

In order to survive a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, a "complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also FED. R. CIV. P. 12(b)(6). Such a determination "requires the reviewing court to draw on its judicial experience and common sense." Iqbal, 556 U.S. at 679 (citation omitted). A Court must accept as true the factual allegations contained in the complaint and draw all inferences in favor of the plaintiff. See Allaire Corp. v. Okumus, 433 F.3d 248, 249-50 (2d Cir. 2006). A complaint may be dismissed pursuant to Rule 12(b)(6) only where it appears that there are not "enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570. Plausibility requires "enough fact[s] to raise a reasonable expectation that discovery will reveal evidence of [the alleged misconduct]." Id. at 556. The plausibility standard "asks for more than a sheer possibility that a defendant has acted unlawfully." Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). "[T]he pleading standard Rule 8 announces does not require 'detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Id. at 678 (citing Twombly, 550 U.S. at 555). Where a court is unable to infer more than the mere possibility of the alleged misconduct based on the pleaded facts, the pleader has not demonstrated that she is entitled to relief and the action is subject to dismissal. See Id. at 678-79. Finally, 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); see also Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008).

B. Rule 12(b)(2)

Where a party moves to dismiss an action for lack of personal jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(2), the plaintiff bears the burden of showing that the court has jurisdiction over the defendant. Metro. Life Ins. Co. v. Robertson-Ceco Corp., 84 F.3d 560, 566 (2d Cir. 1996). Prior to discovery, a plaintiff may survive a 12(b)(2) motion to dismiss by pleading in good faith legally sufficient allegations of jurisdiction. Id. (citing Ball v. Metallurgie Hoboken-Overpelt, S.A., 902 F.2d 194, 197 (2d Cir. 1990)). Where a court relies only upon the pleadings and supporting affidavits, a plaintiff need only make a prima facie showing of personal jurisdiction over a defendant. Grand River Enters. Six Nations, Ltd. v. Pryor, 425 F.3d 158, 165 (2d Cir. 2005); Cutco Indus., Inc. v. Naughton, 806 F.2d 361, 364 (2d Cir. 1986) (citing Marine Midland Bank N.A. v. Miller, 664 F.2d 899, 904 (2d Cir. 1981)).

IV. DISCUSSION

Defendants first contend that Plaintiff's allegations are time-barred and that his Amended Complaint should therefore be dismissed for failure to state a claim. Def.'s Mem at 7-11. Because the Court grants Defendants' Motion on 12(b)(6) grounds, the Court need not address Defendants' alternative request for dismissal under Rule 12(b)(2).

In New York, the three-year statute of limitations applicable to personal injury actions also applies to § 1983 claims and runs from the date the plaintiff had reason to know of her injury. See, e.g., Connolly v. McCall, 254 F.3d 36, 40 (2d Cir. 2001); Murphy v. Lynn, 53 F.3d 547, 548 (2d Cir. 1995); Singleton v. City of New York, 632 F.2d 185, 191 (2d Cir. 1980). Because the alleged injury in this case occurred on November 30, 2008, the statute of limitations expired on November 30, 2011. While there is no question that Plaintiff's original Complaint - filed on October 26, 2011- was timely, Defendants contend that: (1) the Complaint was improperly drafted because it named only "John Doe" Defendants; (2) Plaintiff failed to file his Amended Complaint within the window permitted by the statute of limitations; and (3) the Amended Complaint "does not meet the criteria set forth in Federal Rule of Civil Procedure 15(c) so as to relate-back to the date of the originally filed complaint." Defs.' Mem. at 7-11.

In order to add a party to a complaint after the statute of limitations has run, a plaintiff must satisfy the relation back doctrine set forth in Rule 15.

An amendment adding a party to the complaint after the statute of limitations has run relates back to the timely filed complaint if (1) the amendment asserts a claim arising from the "conduct, transaction or occurrence" in the original pleading; and (2) within 120 days after the complaint is filed, the party to be added (i) "received such notice of the action that it will not be prejudiced in defending on the merits" and (ii) "knew or should have known that the action would have been brought against it, but for a mistake concerning the proper party's identity."

Abdell v. City of New York, 759 F. Supp. 2d 450, 454 (S.D.N.Y. 2010) (quoting FED. R. CIV. P. 15(c)(1)(B-C)).

In this case, there is no question that the claims asserted in the Amended Complaint relate back to the original Complaint; indeed, the claims are identical but are simply leveled against named individuals as opposed to generic placeholders. Compare Compl., with Am. Compl. Plaintiff, however, makes no suggestion that he provided Defendants with notice during the time period prescribed by Rule 4(m) of the Federal Rules of Civil Procedure. Therefore, the only question for the Court in determining whether Plaintiff's...