Ong v. Park Manor (Middletown Park) Rehab. & Healthcare Ctr.

51 F.Supp.3d 319

Bienvenido Pilao ONG, Plaintiffs

v.PARK MANOR (MIDDLETOWN PARK) REHABILITATION AND HEALTHCARE CENTER et al., Defendants.

Case No. 12–CV–974 KMK.

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

Signed Sept. 29, 2014.

Bienvenido Pilao Ong, Middletown, NY, Pro Se Plaintiff.

Katherine J. Zellinger, Esq., Law Offices of Alan I. Lamer, Elmsford, NY, for Defendants, Park Manor (Middletown Park) Rehabilitation and Healthcare Center, Darla Conklin, Eileen Masterson, Jennifer Small, Wendy Brewster, Jenna Green, Suzanne Forman, and Lisa M. Reyes.

Victor Carmine Piacentile, Esq., Kopff, Nardelli & Dopf, LLP, New York, NY, for Defendant, Park Manor (Middletown Park) Rehabilitation and Healthcare Center.

James A. Randazzo, Esq., Caitlin Grace Scheir, Esq., Gaines, Gruner, Ponzini & Novick, LLP, White Plains, NY, for Defendants, Town of Wallkill Police Department, Police Officer Jason Farmingham, Robert Hertman, Sergeant Mr. R. Procak, TOW–P.O. Jefferey Gulick, TOW–P.O. Adam Solan, Deputy Chief Anthony Spano, Sgt. Robert McLymore, Sgt. Robert Kammarada, and P.O. A. Dewey.

Carol C. Pierce, Esq., Orange County Attorney, Goshen, NY, for Defendants, County of Orange, Tim Murphy, Candice H. Crain, Dina M. Lacatena.

Michael Francis Albanese, Esq., State of New York, Attorney General's Office, New York, NY, for Defendant, Timothy Mannix.

Kenneth Andrew McLellan, Esq., Keith Robert Roussel, Esq., Winget Spadafora & Schwartzberg, LLP, New York, NY, for Defendant, Sholes & Miller, LLP.

OPINION AND ORDER

KENNETH M. KARAS, District Judge:

Plaintiff Bienvenido Pilao Ong brings this Action against multiple defendants, alleging various claims under federal and state law arising out of five incidents that took place in 2010 and 2011. Before the Court are five motions to dismiss filed by certain groups of Defendants. For the following reasons, the Court grants those motions in part and denies them in part.

I. BACKGROUND

A. Factual Background

The following facts are taken from Plaintiff's Second Amended Complaint and the exhibits attached thereto. (See Second Am. Compl. (Dkt. No. 32).)¹ Plaintiff is an Asian–American naturalized U.S. citizen over the age of 65 who, at all relevant times, was a resident of Middletown, NY. (See id. ¶¶ 28, 78.) Defendants include four entities and a number of individuals employed by those entities, which Plaintiff classifies into five categories: (1) Middletown Park Rehabilitation and Health Care Center (formerly known as “Park Manor”) (“MPRHCC”), a long-term-care facility primarily serving elderly individuals; Vincent Maniscalco (“Maniscalco”), an administrator; Darla Conklin (“Conklin”), an assistant administrator; Eileen Masterson (“Masterson”), a director of nursing; Suzzane Forman (“Forman”), a director of social services; Jenna Green (“Green”), a case manager; Jennifer Small (“Small”), a nursing manager; Wendy Brewster (“Brewster”), another nursing manager; Lisa Reyes (“Reyes”), a physical therapist; “Ms. Dawn” (“Dawn”), a duty nurse; “Ms. Tiffany” (“Tiffany”), a nursing aid; and “Ms. Yvette” (“Yvette”), another nursing aid, (collectively, “MPRHCC Defendants”); (2) Town of Wallkill Police Department (“Wallkill”); Chief of Police Robert Hertman (“Hertman”); Deputy Chief Antonio Spano (“Spano”); Sergeant Robert Kammarada (“Kammarada”); Sergeant Robert McLymore (“McLymore”); Sergeant Richard Procak (“Procak”); Officer Jason Farmingham (“Framingham”); Officer “A. Dewey” (“Dewey”); Officer Thomas Kleveno (“Kleveno”); Officer “S. Belgiovene” (“Belgiovene”); Officer Jeffrey Gulick (“Gulick”); Officer Adam Solan (“Solan”); Sergeant “A. Moskowitz” (“Moskowitz”); and Angelina Guzman (“Guzman”), a police dispatcher (collectively, “Wallkill Defendants”); (3) “New York State Police—Troop F” (“New York State”) and Timothy Mannix (“Mannix”), a New York State police officer; (4) County of Orange (“Orange County”); Tim Murphy (“Murphy”), the head supervisor of Orange County's Adult Protective Services department (“APS”); and APS case workers Candice Crain (“Crain”), Kate Labuda (“Labuda”), Dina Lacatena (“Lacatena”), and Andrea Leo (“Leo”) (collectively, “Orange County Defendants”); and (5) Sholes & Miller, LLP (“Sholes & Miller”), a New York law firm. (See id. at 1–3.)

The Complaint divides its allegations and exhibits into five sections corresponding to the five days on which the events giving rise to Plaintiff's Complaint allegedly occurred. The Court's summary follows Plaintiff's chronological organization.

1. March 30, 2010

On March 30, 2010, Plaintiff got into an argument with his daughter, who was a minor. (Id. ¶¶ 63, 109.) The police were called, and Defendant Farmingham, along with other unnamed police officers, arrived at Plaintiff's home. (Id. ¶ 109.) Plaintiff attempted to explain the situation, but “Farmingham did not listen to [his] explanation,” and instead “just hand cuff [ed]” Plaintiff and “dragg[ed] [him] down stair[s] going to ... [a] driveway.” (Id. ) Farmingham then “unlawfully arrested” Plaintiff, using “substantial force ... without provocation” while doing so (Id. )

Farmingham “never created or made [an] arrest/incident[ ] report,” (id. ¶ 51.1), but Plaintiff was nevertheless charged with one count of second-degree menacing, N.Y. Penal Law § 120.14, and one count of endangering the welfare of a child, N.Y. Penal Law § 260.10, both Class A misdemeanors under New York law, (see id. ¶ 56; see also id. Ex. 1.2 (Securing Order, dated Mar. 30, 2010)). Bail was set at $1,000 cash or $2,000 bond, but Plaintiff was remanded and remained in jail until he was released on April 4, 2010. (See id. ¶ 59; see also id. Ex. 1.2.) Plaintiff was ultimately convicted of one count of endangering the welfare of a child, as charged, and one count of disorderly conduct, N.Y. Penal Law § 240.20 (the latter of which is a “violation,” as opposed to a Class A misdemeanor) on May 6, 2010. (See id. Ex. 1.4 (Seal Order, dated Mar. 21, 2013, indicating that Plaintiff's case was adjudicated on May 6, 2010, and that it “was terminated with a conviction for a noncriminal offense”); see also id. (Certificate of Disposition, dated Jan. 15, 2013, indicating same).)

While Plaintiff was in jail, authorities took two actions related to Plaintiff's charges. First, on March 30, the day of Plaintiff's arrest, a town court justice issued a temporary Order of Protection against Plaintiff, prohibiting him from certain types of contact with his daughter and two other individuals. (See id. ¶ 60; see also id. Ex. 1.1 (Order of Protection, dated Mar. 30, 2010).) That order expired on April 15, 2010. (See id. ¶ 63; see also id. Ex. 1.1.) Nevertheless, perhaps due in part to the Order, Plaintiff stayed in a hotel from April 4, 2010 (the day he was released) until May 20, 2010, and thereby incurred $3,306.94 in charges. (See id. ¶ 59; see also id. Ex. 1.6 (Microtel Folio).) Second, on March 31, the day after Plaintiff's arrest, while he was still in jail, Wallkill police officers—one of whom was Defendant Dewey—went to Plaintiff's home and seized a firearm and a pistol permit, the former of which police later secured in an armory, and the latter of which they forwarded to the Orange County Pistol Permit Office. (See id. ¶¶ 39, 56, 59, 110; see also id. Exs. 1.5–1, 1.5–2 (Firearms Surrender Report, dated Mar. 31, 2010).) It is unclear whether police returned these items to Plaintiff when he was released, but on April 7, three days later, a county court judge issued an Order of Suspension, ordering that Plaintiff's pistol permit be suspended, that Plaintiff “immediately surrender all weapons and license [sic] to the Orange County Sheriff's Department,” and that, if Plaintiff did not comply, the Orange County Sheriff's Department would be “directed to send a representative to take custody of said weapons.” (Id. Ex. 1.5A (Order of Suspension, dated Apr. 7, 2010); see also id. ¶ 63.2.)

2. August 20, 2010

On August 20, 2010, Plaintiff lived with his mother in an apartment in Middletown. (Id. ¶ 111.) That afternoon, Defendant Guzman, a 911 operator, received a call from Plaintiff's neighbor, who reported that “Plaintiff's mother was yelling that she was being sexually assaulted and/or otherwise physically abused by Plaintiff.” (Id. ) Guzman then dispatched Defendants Farmingham and Kleveno to Plaintiff's apartment. (Id. ) After they arrived at the apartment and knocked on the door, Plaintiff answered and asked them why they were there. (Id.; see also id. ¶ 75.) Initially, Farmingham asked Plaintiff if Plaintiff knew him; Plaintiff responded that he remembered Farmingham as the officer who arrested him on March 30, 2010. (Id. ¶¶ 75, 111.) Farmingham then told Plaintiff that he was there to arrest Plaintiff again, and when Plaintiff asked him why, Farmingham responded that the police had received a call from Plaintiff's neighbor reporting that Plaintiff's mother was “ ‘yelling for help’ ” and that “it sounded as though someone [was] being raped.” (Id. ¶¶ 64, 111; see also id. ¶ 75 (alleging that Farmingham told Plaintiff that he was “going to arrest [him] again because somebody heard ... [his] mom yelling [that] she was getting or being rape[d] and [that] [someone] [was] biting [his] mother”).) When Plaintiff asked about the neighbor's identity, the officers refused to tell him. (Id. ¶¶ 75, 111.)²

Farmingham and Kleveno then “immediately” entered the apartment and “closed the door,” at which point Farmingham “push[ed] [Plaintiff] near [a] door,” told him to “put [his] hand[s] up,” and then told him to “start strip[ping] from head to foot.” (Id. ¶ 111.) The officers, aware that Plaintiff previously possessed a handgun and a pistol license, were specifically looking for a “weapon or gun.” (Id. ) Farmingham then “put hand cuffs on [Plaintiff] [and] then start[ed] biting Plaintiff”; Kleveno saw this occur, but did not try to intervene. (Id.; see also id. ¶¶ 64, 71.)

At some point while in Plaintiff's apartment, Farmingham stated that he detected a “ ‘very strong odor of...