Schmelzinger v. City of Buffalo

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NEW YORK

JUDY J. SCHMELZINGER, as Executrix }

of the Estate of Robert J. Closs, )

Plaintiff,

Vv. Case No. 1:22-cv-186

CITY OF BUFFALO, ef a,

Defendants.

OPINION AND ORDER

GRANTING DEFENDANTS’ MOTION TO DISMISS

AND FOR SUMMARY JUDGMENT

(Doc. 28)

Plaintiff Judy J. Schmelzinger (“Plaintiff”), as Executrix of the Estate of Robert J.

Closs (the “Decedent”), brings this action against Defendants the City of Buffalo; the

Buffalo Police Department; and Buffalo Police Officer Clayton P. Reed, Buffalo Police

Officer Michael Healy, Buffalo Police Officer Caitlin Hidinger, Buffalo Police Officer

Michael Ross, Buffalo Police Officer Ellen Taylor, Buffalo Police Officer Judith

Bigelow, Buffalo Police Lieutenant Michael Long, Buffalo Police Lieutenant Patrick

Morrow, and Buffalo Police Captain Robert Lee (the “Police Defendants”) (collectively,

Defendants”).

Plaintiff asserts four causes of action: use of excessive force in violation of 42

U.S.C. § 1983 against the Police Defendants in their individual capacities (Count 1);

negligence in violation of New York law against the Police Defendants in their individual

capacities (Count 2); assault in violation of New York law against the Police Defendants

in their individual capacities (Count 3); and use of “excessive force in [violation] of 42

U.S.C. § 1982” against the City of Buffalo and the Buffalo Police Department (Count 4).

(Doc. 1-1 at 7) (emphasis and capitalization omitted). Plaintiff seeks $1,000,000 in actual

damages, $3,000,000 in punitive damages, and attorney’s fees and costs.

Pending before the court is Defendants’ August 31, 2023 motion to dismiss

Plaintiff's Complaint and for summary judgment pursuant to Federal Rules of Civil

Procedure 12(b)(6) and 56. (Doc. 28.) Plaintiff has not filed an opposition, and the

deadline to do so has expired.

Plaintiff is represented by Joshua I. Ramos, Esq. Defendants are represented by

David M. Lee, Esq.

I. The Allegations of the Complaint.

In the Complaint, Plaintiff alleges that the nine Police Defendants forcibly

removed the Decedent, a seventy-eight-year-old who was “well known to the Buffalo

Police Department and its employees/agents as a citizen of the City of Buffalo with

mental health problems[,]” from a vehicle and “mercilessf{ly] beat” him. (Doc. 1-1 at 2-3,

10, 16) (capitalization omitted). The Decedent allegedly died approximately three

weeks later from blunt force trauma caused by the incident. Plaintiff further claims that

although “{t]here were no allegations of weapons being invo!ved[,]” the Police

Defendants “intentionally hit and struck” the Decedent while they “attempted to subdue”

him, although “they did not intend to cause [his] death.” /d. at 5, {| 27; id. at 7, (936, 38.

Il. The Undisputed Facts.

Shortly before 6:30 p.m. on March 6, 2019, the Decedent, without a valid driver’s

license, stole a Buffalo Police vehicle, Officers Reed and Healy pursued the Decedent in

their police cruiser. The Decedent ran a red light while driving at a fast speed and

collided with another vehicle that had the right-of-way. He crashed into a parked car in a

parking lot and reversed into the police cruiser pursuing him before coming to a stop. The

driver’s side airbag deployed during the incident.

Officers Reed and Healy exited their patrol vehicle, approached the driver’s side

of the stolen police vehicle, and issued verbal commands to the Decedent to exit the

vehicle. The Decedent refused to comply, struggled with the officers as they attempted to

remove him from the vehicle, and refused to take his hands off the steering wheel and the

gear shifter. Officers Reed and Healy then forcibly removed the Decedent from the

vehicle. Because the Decedent continued to struggle, Officers Reed and Healy forcibly

handcuffed him. No other Buffalo Police Department officers were involved in the use of

force against the Decedent.

After the Decedent was subdued, he was taken to the Erie County Medical Center.

On March 30, 2019, he died at Buffalo General Medical Center from complications of

blunt force injuries to his torso. The Erie Country Medical Examiner’s Office’s Fatality

Certification lists the manner of the Decedent’s death as “accident” and describes the

source of his injuries as a “[m]otor vehicle collision[.]” (Doc. 28-3 at 2) (capitalization

omitted),

Plaintiff does not have an expert medical opinion that the Decedent’s injuries or

death were caused by the Police Defendants’ use of force. In a state court proceeding,

Plaintiff sought leave to serve a late notice of claim upon the City of Buffalo. On

December 3, 2020, the court denied Plaintiffs motion and observed:

The Petition does not set forth when [Plaintiff] was appointed

administratrix, so the court is unable to analyze the time frame from

appointment to filing of the instant Petition. However, a letter dated

January 28, 2020 advised [the City of Buffalo and the Buffalo Police

Department] that it would be filing a motion for late notice. However, the

instant Petition was not filed until October 02, 2020.

The record indicates that [D]ecedent struck several vehicles and

other property before the alleged physical interaction oceurred with [the

Police Defendants]. The court finds that [the City of Buffalo and the

Buffalo Police Department] would be prejudiced by late filing since it may

not have been able to investigate properly and adequately for a

determination as to whether the alleged injuries were the result of the

multiple motor vehicle accidents that occurred when he was operating the

stolen vehicle or the police interaction thereafter.

(Doc. 28-4 at 2.) On March 7, 2022, Plaintiff commenced the current action.

Ii. Conclusions of Law and Analysis.

A. Applicable Standards of Review.

In their motion, Defendants seek dismissal of Plaintiff's Complaint for failure to

state a claim for which relief can be granted pursuant to Fed. R. Civ. P. 12(b)(6) and for

summary judgment under Rule 56. To survive a motion to dismiss filed pursuant to Fed,

R. Civ. P, 12(b)(6), “a complaint must contain sufficient factual matter, accepted as true,

to ‘state a claim to relief that is plausible on its face.’” Asheroft v. Iqbal, 556 U.S. 662,

678 (2009) (quoting Bell Atl. Corp, v. Twombly, 550 U.S. 544, 570 (2007). Plaintiffs

must allege sufficient facts to “nudge[] their claims across the line from conceivable to

plausible[.]” Twombly, 550 U.S. at $70. “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.” /gbal, 556 U.S. at 678.

The sufficiency of a complaint under Rule 12(b)(6) is evaluated using a “two-

pronged approach[.]” Hayden v. Paterson, 594 F.3d 150, 161 (2d Cir. 2010) (internal

quotation marks omitted) (quoting Zgbal, 556 U.S. at 679). First, the court discounts legal

conclusions and “[t]hreadbare recitals of the elements of a cause of action, supported by

mere conclusory statements[.]” Jgbal, 556 U.S. at 678. The court is also “not bound to

accept as true a legal conclusion couched as a factual allegation[.]” /d, (internal quotation

marks and citation omitted). Second, the court considers whether the factual allegations,

taken as true, “plausibly give rise to an entitlement to relief.” Jd. at 679. This second step

is fact-bound and context-specific, requiring the court “to draw on its judicial experience

and common sense.” Jd. The court does not “weigh the evidence” or “evaluate the

likelihood” that a plaintiff will prevail. Christiansen v. Omnicom Grp., Inc., 852 F.3d

195, 201 (2d Cir. 2017).

The court must grant summary judgment when “there is no genuine dispute as to

any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ.

P, 56(a). “A fact is ‘material’. . . if it ‘might affect the outcome of the suit under the

governing law.” Rodriguez v. Vill. Green Realty, Inc., 788 F.3d 31, 39 (2d Cir. 2015)

(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). “A dispute of fact is

‘senuine’ if ‘the evidence is such that a reasonable jury could return a verdict for the

nonmoving party.’” Jd. at 39-40 (quoting Anderson, 477 U.S. at 248), The court

“construles] the evidence in the light most favorable to the non-moving party” and

“resolvels] all ambiguities and draw/]s] all permissible factual inferences in favor of the

party against whom summary judgment is sought.” Lenzi v. Systemax, Inc., 944 F.3d 97,

107 (2d Cir. 2019) (internal quotation marks omitted). There is no genuine dispute where

“the record taken as a whole could not lead a rational trier of fact to find for the non-

moving party[.]” Matsushita Elec. Indus. Co, y, Zenith Radio Corp., 475 U.S. 574, 587

(1986) (citation omitted).

The moving party always “bears the initial responsibility of informing the district

court of the basis for its motion, and identifying those portions of the pleadings,

depositions, answers to interrogatories, and admissions on file, together with the

affidavits, if any, which it believes demonstrate the absence of a genuine issue of material

fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal quotation marks

omitted), “Once the moving party demonstrates that there are no genuine issues of

material fact, the nonmoving party must come forth with evidence sufficient to allow a

reasonable jury to find in its favor.” Spinelli v. City of New York, 579 F.3d 160, 166 (2d

Cir. 2009) (alteration adopted) (internal quotation marks omitted). “Thus, a nonmoving

party can defeat a summary judgment motion only by coming forward with evidence that

would be sufficient, if all reasonable inferences were drawn in its favor, to establish the

existence of an element at trial.” /d. at 166-67 (alterations adopted) (internal quotation

marks omitted).

“The function of the district court in considering the motion for summary

judgment is not to resolve disputed questions of fact but only to determine whether, as to

any material issue, a genuine factual dispute exists.” Kaytor v. Elec. Boat Corp., 609 F.3d

537, 545 (2d Cir. 2010) (citation omitted).

“A non-moving party cannot avoid summary judgment simply by asserting a

‘metaphysical doubt as to the material facts.”” Woodman v. WWOR-TYV, Inc,, 411 F.3d 69,

75 (2d Cir. 2005) (quoting Matsushita, 475 U.S. at 586), “If the evidence is merely

colorable, or is not significantly probative, summary judgment may be granted.”

Anderson, 477 U.S. at 249-50 (citations omitted). However, if the evidence “presents a

sufficient disagreement to require submission to a jury[,]” the court should deny

summary judgment. Id. at 251-52. “Credibility determinations, the weighing of the

evidence, and the drawing of legitimate inferences from the facts are jury functions, not

those of a judge.” Kaytor, 609 F.3d at 545 (internal quotation marks and emphasis

omitted).

B. Whether Plaintiff’s State Law Claims for Assault, Negligence, Personal

Injury, and Wrongful Death are Time-Barred.

Defendants argue Counts 2 and 3 must be dismissed because Plaintiff has not

complied with N.Y. Gen. Mun. L. § 50-e and, as a result, these claims are time-barred.

Under N.Y. Gen. Mun. L. § 50-e(1)(a):

In any case founded upon tort where a notice of claim is required by law as

a condition precedent to the commencement of an action or special

proceeding against a public corporation... or any officer, appointee or

employee thereof, the notice of claim shall comply with and be served in

accordance with the provisions of this section within ninety days after the

claim arises; except that in wrongful death actions, the ninety days shall run

from the appointment of a representative of the decedent’s estate.

N.Y. Gen. Mun. L. § 50-e(1)(a). The notice of claim must set forth “the nature of the

claim[,] .. . the time when, the place where and the manner in which the claim arose[,]

and... the items of damage or injuries[.]” Jd. at § 50-e(2). “Upon application, [a] court,

in its discretion, may extend the time to serve a notice of claim specified in paragraph (a)

of subdivision one of this section[.]” Jd, at § 50-e(5). “Notice of claim requirements are

construed strictly by New York state courts and failure to comply with them ordinarily

requires dismissal.” Mayes v. City of Yonkers, 2023 WL 8528641, at *4 (S.D.N.Y, Dec.

8, 2023) (quoting Hardy v. N.Y.C. Health & Hosp. Ctr., 164 F.3d 789, 793 (2d Cir.

1999)) (internal quotation marks and brackets omitted).

“As a general rule, state notice-of-claim statutes apply to state-law claims asserted

as pendant claims in a federal action.” Macintyre v. Moore, 335 F. Supp. 3d 402, 411

(W.D.N.Y. 2018) (citation and internal quotation marks omitted). “[T]o the extent [the

plaintiff] argues that, because he filed suit in federal court, his state law claims are not

subject to dismissal for failure to comply with New York State’s notice-of-claim

requirement, N.Y. Gen. Mun. Law § 50-e, he is mistaken.” Santiago v. City of New York,

697 F, App’x 36, 38 (2d Cir. 2017) (citing Hardy, 164 F.3d at 793). Accordingly,

“Cwihile New York’s notice of claim requirements are not applicable to section 1983

claims brought in federal court| |, the requirements do apply to state law personal injury

claims that are brought in federal court as related to section 1983 cases.” In re Dayton,

786 F, Supp. 2d 809, 823 (S.D.N.Y. 2011) (internal quotation marks omitted) (second

alteration in original).

It is undisputed that Plaintiff failed to timely serve notice of her state law clams,

and her state court motion for an extension of time to file was denied. Even if she had

properly served a notice of claim, she failed to commence her lawsuit within the

timeframe required by § 50-e(1)(a). The court thus GRANTS Defendants’ motion to

dismiss Plaintiff's state law claims in Counts 2 and 3 because they are time-barred.

Cc, Whether the Statute of Limitations Bars Plaintiff’s § 1983 Claim.

Defendants next argue that Plaintiff's § 1983 excessive force claim against the

Police Defendants must be dismissed because it is also barred by the statute of

limitations. Because § 1983 does not contain a statute of limitations, “courts must borrow

a state statute of limitations.” Kane v. Mount Pleasant Cent. Sch. Dist., 80 F.4th 101, 107

(2d Cir. 2023); see also Horn y. Politopoulos, 628 F. App’x 33, 34 (2d Cir, 201 5) (“In

§ 1983 actions, state statutes of limitations for personal injury actions and state tolling

rules generally govern the time a party has to bring her action.”), “In section 1983 actions

[in New York], the applicable limitations period is . . . three years.” Zapata v. City of

New York, 502 F.3d 192, 194 n.3:(2d Cir. 2007) (internal quotation marks omitted)

(second alteration in original); see also N.Y. C.P.L.R, § 214 (stating “an action to recover

damages for a personal injury” must be “commenced within three years”).

“The statute of limitations is an affirmative defense, and on a motion to dismiss

pursuant to ‘such defense, the defendant has the burden of demonstrating, based on the

allegations in the complaint, that the claim is untimely.” Egan v. Kennedy, 2008 WL

4647740, at *3 (W.D.N.Y. Oct. 17, 2008).

When a defendant attempts to use the statute of limitations as an affirmative

defense, the defendant bears the burden of establishing by prima facie proof

that the limitations period has expired since the plaintiff's claims accrued.

If the defendant meets this burden, then the plaintiff has the burden to show

that the limitations period should be tolled. A motion to dismiss on the

basis that a claim is time-barred may only be granted when the allegations

of the complaint make clear that the claim is barred by the limitations

period.

Omollo vy, Citibank, N.A., 2008 WL 1966721, at *3 (S.D.N.Y. May 6, 2008) (footnotes

and internal quotation marks omitted), “A claim accrues under federal law when the

plaintiff knows, or has reason to know, of the injury on which the claim is based.” Horn,

628 F, App’x at 34. “[D]iscovery of the injury, not discovery of the other elements ofa

claim, is what starts the clock.” /d. (quoting Rotella v. Wood, 528 U.S. 549, 555 (2000)).

In her Complaint, Plaintiff alleges the Decedent sustained injuries allegedly

caused by the Police Defendants’ conduct on March 6, 2019. Plaintiff thus knew of the

injury allegedly giving rise to her claim on that date. On March 7, 2022, Plaintiff filed the

Complaint. Because more than three years had elapsed from the date the claim accrued

and the date Plaintiff filed the Complaint, Defendants have met their initial burden of

demonstrating that the limitations period has expired. See Benzemann v. Houslanger &

Assocs., PLLC, 924 F.3d 73, 81 (2d Cir. 2019), cert. denied, 140 8, Ct. 82 (2019)

(affirming dismissal of claim as time-barred because it was filed one day after the

limitations period expired). Plaintiff has not responded to Defendants’ motion and has

therefore failed to satisfy her burden to show that the limitations period should be tolled.

See Toolan y. Bd. of Educ. of City of New York, 2003 WL 22015437, at *2 (S.D.N.Y.

Aug. 25, 2003) (dismissing plaintiff's pro se complaint where, “[a]lthough she was only

one day late, she was still late, and no basis [was] presented for application of the

doctrine of equitable tolling”) The court thus GRANTS Defendants’ motion to dismiss

Count 1.

D. Whether Plaintiff Fails to State a Claim for Wrongful Death.

As an alternative basis for dismissal of Plaintiff's wrongful death state law claim,

Defendants assert that, under New York law, a plaintiff must allege “(1) the death ofa

human being; (2) a wrongful act, neglect[,] or default of the defendant that caused the

decedent’s death; (3) the survival of distributees who suffered pecuniary loss by reason of

the decedent’s death; and (4) the appointment of a personal representative of the

decedent.” Matthias v. United States, 475 F. Supp. 3d 125, 143 (E.D.N_Y. 2020) (internal

quotation marks omitted).

In her Complaint, Plaintiff plausibly alleges the death of the Decedent. Plaintiff

fails to allege, however, that there are surviving distributees or that any surviving

distributees have suffered pecuniary damages as a result of the Decedent’s death. See id.

(noting “[p]laintiff fails to allege ‘pecuniary damages’ caused by the death of her infant

son”). Because Plaintiff has not plausibly alleged two of the essential elements of her

wrongful death claim, dismissal is appropriate on this basis as well.

E. Whether Plaintiff’s Municipal Liability Claim under § 1982 Fails to

State a Claim.

Plaintiff asserts a municipal liability claim in Count 4 pursuant to 42 U.S.C,

§ 1982. Defendants argue dismissal of this claim is appropriate for failure to allege racial

discrimination related to property rights.

Section 1982 provides that “[a]ll citizens of the United States shall have the same

right, in every State and Territory, as is enjoyed by white citizens thereof to inherit,

purchase, lease, sell, hold, and convey real and personal property.” 42 U.S.C. § 1982.

“While § 1982 does not use the phrase ‘discrimination based on race,’ that is its plain

meaning.” Gomez-Perez v. Potter, 553 U.S. 474, 479 (2008). Because “Plaintiff fails to

allege that Defendant{s’| actions were motivated by ‘some racial or perhaps otherwise

class-based, invidious discriminatory animus[,]’” Defendants are entitled to judgment as

a matter of law on her § 1982 claim. Johnson v. City of New York, 2018 WL 1175139, at

*3 (E.D.N.Y, Mar. 5, 2018) (quoting Mian v. Donaldson, Lufkin & Jenrette Sec. Corp., 7

F.3d 1085, 1088 (2d Cir. 1993)).

Defendants further argue that, to the extent Plaintiff alleges a claim for municipal

liability in Count 4, the Complaint fails to plausibly state a claim for relief under Monell

vy. Dep't of Social Services of City of New York, 436 U.S. 658 (1978). A municipality can

be liable under § 1983 “if the deprivation of the plaintiffs rights under federal law is

caused by a governmental custom, policy, or usage of the municipality.” Jones v. Town of

E. Haven, 691 F.3d 72, 80 (2d Cir. 2012). “A plaintiff may satisfy the ‘policy, custom or

practice’ requirement [of a Monell claim] in one of four ways|,|” Brandon v. City of New

York, 705 F. Supp. 2d 261, 276 (S.D.N.Y. 2010), by alleging:

(1) a formal policy endorsed by the municipality; (2) actions directed by the

government’s authorized decisionmakers or those who establish

governmental policy; (3) a persistent and widespread practice that amounts

to a custom of which policymakers must have been aware; or (4) a

constitutional violation resulting from policymakers’ failure to train

municipal employees|.]

Deferio v. City of Syracuse, 770 F. App’x 587, 590 (2d Cir. 2019) (citations and internal

quotation marks omitted) (alterations adopted). “[A] plaintiff also must establish an

‘affirmative’ causal link between the municipality’s policy, custom, or practice and the

alleged constitutional injury.” Dumel v. Westchester Cnty., 2021 WL 738365, at *5

(S.D.N.Y. Feb, 25, 2021).

To plead a Monell claim based on a failure to train or supervise, a plaintiff must

plead (1) that “a policymaker knows ‘to a moral certainty’ that her employees will

confront a given situation[,]” (2) “that the situation either presents the employee with a

difficult choice of the sort that training or supervision will make less difficult or that there

is a history of employees mishandling the situation[,]” and (3) “that the wrong choice by

the city employee will frequently cause the deprivation of a citizen’s constitutional

rights.” Walker v. City of New York, 974 F.2d 293, 297-98 (2d Cir. 1992), As the

Supreme Court has observed:

A pattern of similar constitutional violations by untrained employees is

“ordinarily necessary” to demonstrate deliberate indifference for purposes

of failure to train [or supervise]. Policymakers’ “continued adherence to an

approach that they know or should know has failed to prevent tortious

conduct by employees may establish the conscious disregard for the

consequences of their action-—the ‘deliberate indifference’—necessary to

trigger municipal liability.” Without notice that a course of training [or

supervision] is deficient in a particular respect, decisionmakers can hardly

be said to have deliberately chosen a training program that will cause

violations of constitutional rights.

Connick v. Thompson, 563 U.S. 51, 62 (2011) (citations omitted).

“Merely alleging that Defendants failed to institute adequate procedures is not

enough to survive dismissal. Such a failure must first rise to the level of deliberate

10

indifference to be actionable.” Hardy v. Erie Cnty., 2012 WL 1835624, at *3 (W.D.N.Y.

May 18, 2012), With regard to a failure to train or supervise claim, “when [municipal]

policymakers are on actual or constructive notice that a particular omission in their

training program causes [municipal] employees to violate citizens’ constitutional rights,

the [municipality] may be deemed deliberately indifferent if the policymakers choose to

retain that program.” Connick, 563 U.S. at 61 (citations omitted). Correspondingly, a

failure to train or supervise evinces a municipal custom or policy only where decision-

makers adopt an “approach that they know or should know has failed to prevent tortious

conduct by employees[.]” Ba. of Cnty. Comm’rs of Bryan Cnty. v. Brown, 520 U.S. 397,

407 (1997).

A single instance of allegedly unconstitutional conduct is generally insufficient to

impose Monell liability. See Oklahoma City v, Tuttle, 471 U.S. 808, 831 (1985) (“To

infer the existence of a [County] policy from the isolated misconduct of a single, low-

level officer, and then to hold the [County] liable on the basis of that policy, would

amount to permitting precisely the theory of strict respondeat superior liability rejected

in Monell,”) (J. Brennan, concurring); Jacovangelo v. Corr, Med. Care, Inc., 624 F,

App’x 10, 14 (2d Cir. 2015) (affirming a dismissal of a plaintiffs Monell claim for

deliberate indifference to serious medical needs because “the amended complaint

provides only one additional example of a similar incident”); Jones, 691 F.3d at 85

(finding that the plaintiff showed “two . . . or at the most three” cases of unconstitutional

conduct by a “small number of officers” that occurred “over a period of several years[,]”

which “fell far short of showing a policy, custom, or usage of officers” or conduct “so

persistent that it must have been known to supervisory authorities”).

In her Complaint, Plaintiff alleges, “[u]pon information and belief,” that the City

of Buffalo and the Buffalo Police Department have “a policy and/or custom in place that

enabled its agents and employees to act with deliberate indifference to the constitutional

rights of individuals; to wit, tolerating misconduct by its police officers, and encouraging

misconduct by failing to adequately supervise, discipline or train.” (Doc. 1-1 at 5, 4 23);

see also id. at 7,4 41 (alleging the City of Buffalo’s and the Buffalo Police Department’s

11

“policy or custom enabled its agents and employees to act with deliberate indifference to

[the DJecedent’s constitutional rights”). This allegation is unsupported by facts, vague

and generalized, and does not allege an affirmative causal link between that policy,

custom, or practice and the alleged constitutional injury.

Because Plaintiff fails to plausibly allege a Monel/ claim against Defendants,

Defendants’ motion for summary judgment on Plaintiff's Monell claim is GRANTED

and Count 4 is DISMISSED.

KF. Whether Plaintiff Fails to Allege Personal Involvement.

As an additional basis for dismissal, Defendants argue that they are entitled to

judgment as a matter of law on Count 4 because Plaintiff fails to allege the personal

involvement of any individual officer and instead relies on impermissible “group

pleading.” (Doc. 28 at 12) (internal quotation marks omitted). The court agrees.

In order to allege a violation under § 1983, a plaintiff must plausibly allege a

defendant’s personal involvement in the constitutional violation. See Patierson v. Cnty. of

Oneida, N.Y., 375 F.3d 206, 229 (2d Cir. 2004) (holding “a plaintiff must establish a

given defendant’s personal involvement in the claimed violation in order to hold that

defendant liable in his individual capacity under § 1983”). In her Complaint, Plaintiffs

allegations regarding the personal involvement of Defendants are conclusory and reflect

impermissible “group pleading” because she has not alleged the personal involvement of

any particular defendant. Gonzalez v. Yepes, 2019 WL 2603533, at *7 (D. Conn, June 25,

2019) (“As a corollary of the personal involvement requirement, complaints that rely on

‘group pleading’ and ‘fail to differentiate as to which defendant was involved in the

alleged unlawful conduct are insufficient to state a claim.’”) (quoting Adamou v. Cnty. of

Spotsylvania, Va., 2016 WL 1064608, at *11 (S.D.N.Y. Mar. 14, 2016)); Wright v.

Orleans Cnty., 2015 WL 5316410, at *13 (W.D.N.Y, Sept. 10, 2015), report &

recommendation adopted, 2015 WL 13660397 (W.D.N.Y. Oct. 27, 2015) (finding that in

the context of the personal involvement requirement under § 1983, “[p]leadings that fail

to differentiate as to which defendant was involved in the alleged unlawful conduct are

insufficient to state a claim”).

12

Because Plaintiff has not plausibly alleged the personal involvement of any of the

individual Defendants, their motion for summary judgment on Count 4 is GRANTED on

that basis as well.

G. Whether Officers Reed and Healy are Entitled to Qualified Immunity.

Defendants’ final argument in support of their motion for summary judgment is

that Officers Reed and Healy are entitled to qualified immunity from Plaintiff's excessive

force claim. The doctrine of “[q]ualified immunity shields federal and state officials from

money damages unless a plaintiff pleads facts showing (1) that the official violated a

statutory or constitutional right, and (2) that the right was ‘clearly established’ at the time

of the challenged conduct.” Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011) (quoting

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). “[C]ourts have discretion to decide

which of the two prongs of qualified-immunity analysis to tackle first.” Jd. (citing

Pearson v. Callahan, 555 U.S. 223, 236 (2009)). Although on summary judgment the

“facts are viewed in the light most favorable” to the nonmoving party, when a “case

concerns the defense of qualified immunity, . . . the [c]ourt considers only the facts that

were knowable to the defendant officers.” White v. Pauly, 580 U.S. 73, 76-77 (2017)

(citations omitted).

“Whether the force used to effect an arrest is ‘reasonable’ or ‘excessive’ turns on

‘a careful balancing of the nature and quality of the intrusion on the individual’s Fourth

Amendment interests against the countervailing government interests at stake.’” Figueroa

v, Mazza, 825 F.3d 89, 105 (2d Cir. 2016) (quoting Graham v. Connor, 490 U.S. 386,

396 (1989)). Among other things, the court must consider “the need for the application of

force, the relationship between the need and the amount of force that was used, the extent

of injury inflicted, and whether force was applied in a good faith effort to maintain or

restore discipline[.|” Jd. (internal quotation marks omitted), “The subjective motivations

of the individual officers have no bearing on whether a particular seizure is unreasonable

under the Fourth Amendment.” Bryant v. City of New York, 404 F.3d 128, 136 (2d Cir.

2005) (internal quotation marks and alterations omitted). The court must make

“allowance[s} for the fact that police officers are often forced to make split-second

13

judgments—in circumstances that are tense, uncertain, and rapidly evolving —about the

amount of force that is necessary in a particular situation.” Graham, 490 U.S. at 397,

every push or shove’” is excessive, id. at 396 (quoting Johnson v. Glick, 481 F.2d

1028, 1033 (2d Cir. 1973)), and “de minimis uses of force generally do not suffice to state

a constitutional claim[.]” Griffin v. Crippen, 193 F.3d 89, 92 (2d Cir. 1999).

In this case, there is no dispute that Officers Reed and Healy pursued the Decedent

as he drove a stolen police vehicle at high rates of speed and committed an array of traffic

violations. See Plumhoff v. Rickard, 572 U.S. 765, 781 (2014) (holding “the Fourth

Amendment did not prohibit [the police officers] from using the deadly force that they

employed to terminate the dangerous car chase that [the decedent] precipitated. In the

alternative, .. . [the police officers] are entitled to qualified immunity for the conduct at

issue because they violated no clearly established law”). Nor is there any dispute that the

Decedent collided with another vehicle that had the right-of-way in an intersection, hit a

parked car in a parking lot, and backed the vehicle he was driving into the police cruiser

before finally coming to a stop. After he refused to comply with verbal commands to exit

the vehicle, the officers do not dispute that they forcibly removed Decedent from the

vehicle and forcibly handcuffed him. Plaintiff has not provided an expert medical opinion

that contradicts the medical examinet’s conclusion that the Decedent died from injuries

which occurred during the motor vehicle collisions.

Because Plaintiff has proffered no evidence of the use of excessive force, she has

failed to establish a violation of the Decedent’s constitutional rights. See Malley v.

Briggs, 475 U.S, 335, 341 (1986) (“As the qualified immunity defense has evolved, it

provides ample protection to all but the plainly incompetent or those who knowingly

violate the law.”), Qualified immunity thus shields Officers Reed and Healy from not

only liability but litigation. See Mitchell v. Forsyth, 472 U.S, 511, 526 (1985) (holding

qualified immunity is “an immunity from suit rather than a mere defense to liability; and

like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to

trial.”) (emphasis in original). The court GRANTS Defendants’ motion for summary

judgment on Plaintiff's excessive force claim.

14

LEAVE TO AMEND

Although leave to amend must be freely granted, Fed, R. Civ. P. 15, the court may

deny leave to amend where there is “undue delay, bad faith or dilatory motive on the part

of the movant, repeated failure to cure deficiencies by amendments previously allowed,

undue prejudice to the opposing party by virtue of allowance of the amendment, futility

of amendment, etc.” Foman v. Davis, 371 U.S. 178, 182 (1962), In light of Plaintiff's

failure to respond to Defendants’ motion to dismiss and for summary judgment, the court

does not grant leave to amend sua sponte. Plaintiff may nonetheless petition the court for

leave to file an Amended Complaint within twenty (20) days of the date of this Opinion

and Order pursuant to Fed. R. Civ. P. 15. In the event she fails to do so, judgment shall be

entered in Defendants’ favor and this case will be DISMISSED.

CONCLUSION

For the foregoing reasons, Defendants’ motion to dismiss and for summary

judgment is GRANTED. (Doc. 28.)

SO ORDERED. gn

Dated this day of March, 2024.

Christina Reiss, District Judge

United States District Court

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