D'Andrea v. Monroe Cnty.

602 F.Supp.3d 428

Corey A. D'ANDREA, Plaintiff,

v.MONROE COUNTY, et al., Defendants.

22-CV-6143L

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

Signed May 12, 2022

Terence McCarty, Rochester, NY, for Plaintiff.

Alissa M. Brennan, Monroe County Department of Law, Rochester, NY, for Defendants.

DECISION AND ORDER

DAVID G. LARIMER, United States District Judge

Plaintiff Corey A. D'Andrea, appearing through counsel, commenced this action in New York Supreme Court, Monroe County, by filing a summons with notice on September 23, 2021. Plaintiff filed the complaint on February 23, 2022, asserting claims against Monroe County ("County"), "Monroe County Office of Sheriff," Todd Baxter, and two unnamed "Doe" defendants. The named defendants ("County defendants") removed the case to this Court on March 24, 2022, based on federal question jurisdiction.

On March 31, 2022, the County defendants filed a motion to dismiss the complaint pursuant to Rule 12 of the Federal Rules of Civil Procedure. Pursuant to the Court's scheduling order entered April 4, 2022 (Dkt. #4), plaintiff's response was due by May 4, but he has not responded to the motion.

DISCUSSION

I. Plaintiff's Failure to Respond to the Motion to Dismiss

Plaintiff's failure to oppose the motion to dismiss, though perhaps telling, is not by itself fatal to his case. "If a complaint is sufficient to state a claim on which relief can be granted, the plaintiff's failure to respond to a Rule 12(b)(6) motion does not warrant dismissal." McCall v. Pataki , 232 F.3d 321, 322 (2d Cir. 2000). See , e.g. , Parry v. VA Med. Ctr. , 408 F.Supp.3d 281, 283 (W.D.N.Y. 2019). Thus, "accept[ing] the allegations contained in the complaint as true, and draw[ing] all reasonable inferences in favor of the non-movant," as it must in deciding a Rule 12(b)(6) motion, the Court addresses defendants’ motion to dismiss on the merits. See Sheppard v. Beerman , 18 F.3d 147, 150 (2d Cir. 1994).

II. Allegations of the Complaint

The complaint alleges the following facts, which for purposes of the present motion are accepted as true.

On March 17, 2020, plaintiff was scheduled for release from confinement pursuant to a previously-entered plea agreement relating to a charge of attempted robbery. Plaintiff does not state where he was confined, but he apparently was in state custody. Complaint ¶ 10.

Plaintiff alleges that Monroe County Court Judge Douglas A. Randall signed a "hold" order (also described as a "securing order") on March 9, 2020. Id. ¶¶ 10, 12. Monroe County Sheriff Todd Baxter "erroneously relied on" the order to arrest plaintiff on March 17. Id. ¶¶ 10, 20. Plaintiff alleges that his "expiring imprisonment [was] converted into a mental health hold ...," and that he was placed in the Monroe County Jail by two unnamed deputies. Id. ¶¶ 12, 21, 22. Plaintiff does not allege if or when he was released from custody.

Those are essentially all the facts alleged in the complaint. Based on those allegations, plaintiff asserts five causes of action: (1) unlawful imprisonment under 42 U.S.C. § 1983 ; (2) false imprisonment under New York law and § 1983 ; (3) false arrest under New York law; (4) false arrest under § 1983 ; and (5) false arrest against the Monroe County Sheriff's Office. The latter claim apparently differs from the other false claims in that it asserts municipal liability against the County, based on the allegation that defendants’ wrongful acts were taken pursuant to County customs and policies.

III. Defendants’ Motion

Defendants raise a number of arguments in support of their motion to dismiss, which are addressed seriatim.

First, defendants assert that the claims against the Monroe County Sheriff's Office must be dismissed because the Sheriff's Office is not an entity that can be sued. That is correct. To the extent that Sheriff Baxter is sued in his official capacity, the claims against him must be dismissed for the same reasons. See Crespo v. County of Monroe , No. 10-CV-6590, 2015 WL 2406112, at *3 (W.D.N.Y. May 20, 2015) (dismissing plaintiffs’ claims against the Sheriff's Department and the sheriff on the ground that such claims were effectively claims against the County itself, and as such, were subsumed within plaintiffs’ claims against the County").

Defendants next contend that the Court lacks personal jurisdiction over Baxter and the "Doe" defendants because they have not been properly served with process. In support of the motion, defendants have submitted copies of the summons with notice and affidavits of service filed by plaintiff, which state that the defendants in this action are "Monroe County" and "Monroe County Office of Sheriff," and that service was effected upon those two defendants only, by service on an attorney at the "Monroe County Government Office" building and an employee (not a defendant) at the Sheriff's Office. See Exhibits attached to Notice of Removal (Dkt. #1) and Motion to Dismiss (Dkt. #3).

Thus, neither Baxter nor the Doe defendants were named in the summons with notice, nor were they served. The claims against them are therefore subject to dismissal for lack of personal jurisdiction, pursuant to Rules 12(b)(2), (4) and (5). See Welch v. Hertz Car Rental Agency , No. 18-CV-717, 2019 WL 1243681, at *3-*4 (W.D.N.Y. Mar. 18, 2019) (dismissing claims where plaintiff "failed to come forward with any evidence to rebut Defendants’ showing that he failed to properly serve them under New York law").

Next, I agree with defendants that plaintiff's state law claims for unlawful imprisonment, false imprisonment, and false arrest are duplicative of each other and should be treated as a single claim. See Posr v. Doherty , 944 F.2d 91, 96 (2d Cir. 1991) (noting that under New York law, false arrest and false imprisonment are "synonymous"); Dash v. Montas , ––– F.Supp.3d ––––, ––––, 2020 WL 1550708, at *6 (E.D.N.Y. 2020) (claim for unlawful imprisonment is "in effect, a claim for false imprisonment") (internal quote omitted). Whether viewed as one claim or three, however, these claims must be dismissed.

First, plaintiff has failed allege compliance with the mandatory claims procedure of §§ 50-e and 50-i of New York's General Municipal Law. Those statutes generally provide that no claim can be asserted against a county or other municipality unless the plaintiff has filed a notice of claim with the municipal defendant within ninety days after the claim arose. "The burden is on the plaintiff to demonstrate compliance with the Notice of Claim requirement." Wheeler v. City of Middletown , No. 16 CV 8857, 2021 WL 2206490, at *9 (S.D.N.Y. June 1, 2021) (internal quote omitted). See , e.g. , Mulvihill v. Ontario County , No., 2014 WL 12902275, at *10 (W.D.N.Y. Feb. 13, 2014) ("Plaintiff does not allege that she has filed a notice of claim against the County. Her state law claims against the County are therefore dismissed"), defendants’ motion for reconsideration granted on other grounds in part , 2014 WL 1843463 (W.D.N.Y. May 8, 2014).

The complaint here alleges only that "[a]ll conditions precedent to this suit have been met, with Defendants failing to avail of [sic] their CPLR Section 50(h) hearing rights or adjust concomitantly to resolve this matter." Complaint ¶ 5. That is not sufficient. "A plaintiff bringing a tort claim against a municipality or its agent must plead ‘that (1) the plaintiff has served the notice of claim; [and] (2) at least thirty days have elapsed since the notice was filed (and before the complaint was filed) ....’ " Ransom v. Banks , No. 20-cv-232, 2022 WL 769344, at *7 (S.D.N.Y. Mar. 14, 2022) (quoting Hardy v. N.Y.C. Health & Hosp. Corp. , 164 F.3d 789, 793 (2d Cir. 1999) ). Since plaintiff has not pleaded such here, the state law claims must be dismissed.

The Court also agrees with defendants that plaintiff has not alleged a basis for liability on the part of the County. "Under Article XIII of the New York State Constitution, a county cannot be made liable for the acts of its sheriff or its deputies." Cain v. County of Niagara , No. 20-CV-1710, 2022 WL 616795, at *16 (W.D.N.Y. Mar. 2, 2022) (citations omitted). Although a county may by local law assume responsibility for the tortious acts of its deputy sheriffs, see Barr v. County of Albany , 50 N.Y.2d 247, 257, 428 N.Y.S.2d 665, 406 N.E.2d 481 (1980), the burden is on the plaintiff to allege and establish that the county has adopted such a law, see DiJoseph v. Erie County , No. 18-CV-919, 2020 WL 4194136, at *8 (W.D.N.Y. July 21, 2020), and plaintiff has not done so here. Indeed, this Court has previously recognized that "Monroe County has not assumed liability for the acts of the Sheriff or his deputies by local law, and therefore the County cannot be held liable to the extent [that a] Plaintiff is alleging a state law claim based upon a respondeat superior theory." Barnes v. County of Monroe , 85 F.Supp.3d 696, 718 (W.D.N.Y. 2015).

Although plaintiff alleges that he was "imprisoned pursuant to the flawed judicial order of Hon. Judge Randall, a Monroe County paid employee," Complaint ¶ 38, that also does not provide a basis for County liability. A county court "is not an arm of the County, but part of New York State's Unified Court System. No decision of any judge, even a judge of what is called the County Court, can be charged to the County." McLaurin v. New Rochelle Police Officers , 368 F.Supp.2d 289, 294 (S.D.N.Y. 2005).

The facts alleged here also do not state a claim under § 1983 or New York law for false arrest. See Gonzalez v. City of Rochester , No. 16-CV-6652, 2020 WL 5032026, at *6 (W.D.N.Y. Aug. 26, 2020) ("a claim for false arrest or unlawful imprisonment brought under § 1983 is substantially the same as a claim for false arrest under state law") (citing Jocks v. Tavernier , 316 F.3d 128, 134 (2d Cir. 2003), and Boyd v. City of New York , 336 F.3d 72, 75 (2d Cir. 2003) ).

Plaintiff expressly alleges that he was arrested pursuant to a court order. Although he alleges that this was done "erro...