The opinion
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_______________________________________________
ALYSA OCASIO, ANDREW OCASIO and
JAHAIRA HOLDER, as Administratrix of the Estate
of Sandy Guardiola,
DECISION AND ORDER
Plaintiffs,
18-CV-6712DGL
v.
CITY OF CANANDAIGUA, a municipal entity;
Canandaigua Police Chief STEPHEN HEDWORTH,
in his individual and official capacities; Canandaigua
Police Sergeant SCOTT KADIEN, in his individual
capacity; DOCCS Regional Director GRANT SCRIVEN,
in his individual capacity; DOCCS Parole Chief DAWN
ANDERSON, in her individual capacity; DOCCS Senior
Parole Officer THOMAS O’CONNOR, in his individual
capacity; and DOCCS Senior Parole Officer BETH
HART-BADER, in her individual capacity,
Defendants.
________________________________________________
Plaintiffs commenced this action against defendants, the City of Canandaigua, its police
chief, a police sergeant, and several employees of the Department of the New York State
Department of Corrections and Community Supervision (“DOCCS”).1
1 The four DOCCS defendants (moving defendants Anderson, Hart-Bader, and O’Connor, and non-moving defendant
Scriven, who previously filed a separate motion to dismiss the claims against him, which was denied at Dkt. #227)
are the only defendants presently remaining in the case. Plaintiffs’ original complaint also asserted claims against the
owner, management company, and two staff members of the decedent’s apartment complex (collectively “Grand Atlas
defendants”), and the City of Canandaigua, its police chief, and a sergeant (collectively “Canandaigua Police
defendants). On September 15, 2020, the Court was notified that all claims against the Grand Atlas defendants had
been settled through mediation. (Dkt. #71). On September 11, 2023, the Court was notified that the Canandaigua
Police defendants had made an offer of judgment of $1,500,000 pursuant to Fed. R. Civ. Proc. 68, which plaintiffs
had accepted. (Dkt #231). Judgment was accordingly entered against the Canandaigua Police defendants in that
amount, and that judgment has now been fully satisfied. (Dkt. #235, 238).
Defendants Dawn Anderson (“Anderson”), Thomas O’Connor (“O’Connor”), and Beth
Hart-Bader (“Hart-Bader”) (collectively, “DOCCS Defendants”) now move to dismiss the Second
Amended Complaint for failure to state a claim pursuant to Fed. R. Civ. Proc. 12(b)(6). (Dkt.
#183). For the reasons that follow, that motion is granted in part, and denied in part.
FACTUAL BACKGROUND
Plaintiffs Alysia Ocasio and Andrew Ocasio are the heirs, and plaintiff Jahaira Holder is
both heir and administratrix, of the estate of decedent Sandy Guardiola (“Guardiola”), who was
shot to death in her apartment by City of Canandaigua Police Sergeant Scott Kadien (“Kadien”)
on the afternoon of October 4, 2017.
According to the Second Amended Complaint (Dkt. #167), Guardiola was a parole officer
who had initially been employed by the Rochester DOCCS office, and had complained of
race-based harassment from colleagues in that office, which Rochester DOCCS Senior Parole
Officer O’Connor, and DOCCS Regional Director Scriven, allegedly allowed to persist. (Dkt.
#167 at ¶43). Dissatisfied with the continued harassment, Guardiola eventually requested a
voluntary transfer to another office, which was granted, and Guardiola was reassigned to the
Binghamton DOCCS office. Just before Guardiola was to start work there, she was involved in a
motor vehicle accident, and was home on medical leave from September 4, 2017 through October
3, 2017.
On the afternoon of October 3, 2017, Guardiola spoke on the phone with the Bureau Chief
of the Binghamton DOCCS office,2 and informed him that she was recovering well and waiting
for a doctor’s note to clear her to return to work.
2 The Binghamton Bureau Chief’s name is Patrick O’Connor. To avoid confusion between him and individual
defendant (and Rochester Bureau Parole Supervisor) Thomas O’Connor, the Court will refer to Patrick O’Connor by
his job title.
The following day, the Binghamton Bureau Chief allegedly tried to call Ms. Guardiola and
got no answer. He informed Scriven of this. Scriven then contacted O’Connor in Rochester, and
directed him to perform a “wellness” check on Guardiola. Plaintiffs allege that during this
conversation, the two men conspired to concoct a false story that there was an emergency requiring
a wellness check, because Guardiola had not been heard from for three weeks.
Later on the afternoon of October 4, 2017, O’Connor went to Guardiola’s apartment
complex in Canandaigua, and met with an employee of the complex’s management company.
After they were unable to determine whether Guardiola was home, O’Connor called 9-1-1 and
requested a welfare check on Guardiola, stating that she had been “missing” from work for three
weeks.
Canandaigua Police Sergeant Kadien was dispatched to Guardiola’s apartment, and met
with O’Connor. The Second Amended Complaint alleges that upon information and belief,
O’Connor and Kadien discussed the allegations of employment discrimination that Guardiola had
made when she worked at the DOCCS office in Rochester, and other matters related to Guardiola’s
transfer to the DOCCS office in Binghamton. They ultimately agreed that only Kadien would enter
Guardiola’s apartment, due to this “issue” between Guardiola and O’Connor’s office. (Dkt. #167
at ¶9).
At Kadien’s request, building management staff escorted him to Guardiola’s apartment and
unlocked it for him. Kadien entered the apartment, opened the closed door to Guardiola’s bedroom,
and shot Guardiola in the right arm, head, and abdomen. Thereafter, Kadien called for backup.
After other law enforcement personnel arrived, plaintiffs alleged that the police officers conspired
to “cover up Kadien’s actions” for approximately 10 minutes, before calling emergency
responders. (Dkt. #167 at ¶11). Guardiola succumbed to her injuries a short time later.
This action followed. The Second Amended Complaint asserts several causes of action
against the DOCCS defendants, including unlawful search and seizure, excessive force, conspiracy
to violate constitutional rights, wrongful death, and conscious pain and suffering. (Dkt. #167).
DISCUSSION
I. Relevant Standard
On a motion to dismiss under Rule 12 (c), courts “employ the same standard applicable to
Rule 12(b)(6) motions to dismiss.” Montgomery v. NBC TV, 2020 U.S. App. LEXIS 35731 at *2
(2d Cir. 2020)(unpublished opinion)(quoting Vega v. Hempstead Union Free Sch. Dist., 801 F.3d
72, 78 (2d Cir. 2015)(internal quotation marks and alterations omitted)).
The Court’s task is thus to determine whether, “accept[ing] the allegations contained in the
complaint as true, and draw[ing] all reasonable inferences in favor of the non-movant,” plaintiffs
have stated a facially valid claim. Sheppard v. Beerman, 18 F.3d 147, 150 (2d Cir. 1994). In order
to be found sufficient, a pleading must set forth sufficient facts to suggest that a cause of action is
legally plausible. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). Ultimately, where a
plaintiff has not “nudged their claim[] across the line from conceivable to plausible, their complaint
must be dismissed.” Id.
Further, the “Court has discretion to dismiss claims sua sponte pursuant to Rule 12(b)(6),
particularly where it is clear that a plaintiff could not have prevailed on the facts as alleged.” Bailon
v. Presents, 2023 U.S. Dist. LEXIS 16915 at *27 (S.D.N.Y. 2023).
II. First Cause of Action: Violation of the Fourth and Fourteenth Amendments (42
U.S.C. §1983)
A. Unlawful Entry - Standard
The Fourth Amendment protects against “unreasonable searches and seizures.” U.S. Const.
amend IV. “It is axiomatic that the physical entry of the home is the chief evil against which the
wording of the Fourth Amendment is directed.” Welsh v. Wisconsin, 466 U.S. 740, 748 (1984)
(internal quotation marks omitted). It is thus a “basic principle of Fourth Amendment law[] that
searches and seizures inside a home without a warrant are presumptively unreasonable.” Id. at 749.
In order to overcome this presumption, the warrantless entry of a home must fall under a
relevant exception, such as the “exigent circumstances” or “emergency aid” doctrine, which
excuses a warrantless entry “if law enforcement has probable cause to believe that a person is
‘seriously injured or threatened with such injury.’” Chamberlain v. City of White Plains, 960 F.3d
100, 105 (2d Cir. 2020)(quoting Brigham City v. Stuart, 547 U.S. 398, 403 (2006)). Police officers
seeking to apply the doctrine bear a heavy burden to demonstrate that “the facts, as they appeared
at the moment of entry, would lead a reasonable, experienced officer, to believe that there was an
urgent need to render aid or take action.” Chamberlain, 960 F.3d 100 at 106 (quoting United States
v. Klump, 536 F.3d 113, 117-18 (2d Cir. 2008)).
B. Excessive Force – Standard
The standard for assessing a claim of excessive force under the Fourth Amendment is one
of “objective reasonableness,” which “requires balancing the nature and quality of the intrusion on
the plaintiff’s Fourth Amendment interests against the countervailing governmental interests at
stake.” Tracy v. Freshwater, 623 F.3d 90, 96 (2d Cir. 2010).
Three primary considerations guide consideration of an excessive force claim: (1) the
nature and severity of the action that precipitated the use of force (e.g., in circumstances involving
an arrest, this generally refers to the nature and severity of the crime precipitating the arrest);
(2) whether the individual against whom force was used posed an immediate threat to the safety
of the officer or others; and (3) whether the individual was actively resisting arrest or attempting
to flee. See Brown v. City of New York, 798 F.3d 94, 100 (2d Cir. 2015).
C. Plaintiffs’ Specific Section 1983 Claims Against the DOCCS Defendants
Initially, the DOCCS defendants argue that plaintiffs have failed to state Fourth
Amendment claims for excessive force, unlawful entry, or unreasonable search and seizure against
the DOCCS defendants, because it was Kadien – and not any of the DOCCS defendants – who
initially entered Guardiola’s apartment, and used force against her.
With respect to Anderson and Hart-Bader, the Court agrees. Although plaintiffs allege that
Anderson and Hart-Bader “instigated” the wellness check on Guardiola in an unspecified way,
plaintiffs allege no facts plausibly connecting Anderson or Hart-Bader to it: only Scriven and
O’Connor are alleged to have communicated with one another concerning O’Connor’s visit to
Guardiola’s apartment and his 9-1-1 call requesting the welfare check. As such, plaintiffs’ Section
1983 constitutional claims against Anderson and Hart-Bader, however characterized,3 must be
dismissed in their entirety.
For the same reasons, the Court dismisses, sua sponte, plaintiffs’ constitutional claims
against Scriven. While plaintiffs contend that Scriven instructed O’Connor to go to Guardiola’s
apartment and check on her, they do not plausibly allege that Scriven was personally involved,
3 The Second Amended Complaint alleges multiple violations of the Fourth and Fourteenth Amendments: violation
of the right to privacy, the right to be free from unreasonable search and seizure, the right to be free from excessive
force, the right to due process, and the right of free association. (Dkt. #167 at ¶146). The DOCCS’ defendants’
arguments only appear to attack the legal sufficiency of plaintiffs’ Fourth Amendment claims of unreasonable search
and seizure, unlawful entry, and excessive force: however, the Court finds that plaintiffs’ allegations are insufficient
to state plausible constitutional claims against Scriven, Anderson and/or Hart-Bader under any theory.
either directly or indirectly, in any of the alleged constitutional violations by Kadien. Plaintiffs’
Fourth and Fourteenth constitutional claims against Scriven are accordingly dismissed.
With respect to O’Connor, the moving defendants argue that O’Connor cannot be held
liable for unlawful entry into Guardiola’s apartment, unreasonable search and seizure, or excessive
force, because even though O’Connor went to Guardiola’s apartment complex and summoned
Kadien to enter it, O’Connor did not personally enter the apartment himself until after Guardiola
was shot. Defendants also suggest that O’Connor was not acting under “color of law” in his
capacity as a Senior Parole Officer at the time he requested the welfare check, but was simply
“acting as a co-worker.” (Dkt. #183-2 at 10.)
Initially, I find that plaintiffs have plausibly alleged that O’Connor was acting under color
of law at or around the time he requested the welfare check. Even though O’Connor had not been
an office “coworker” of Guardiola’s for weeks, he traveled to Guardiola’s apartment during the
workday, at his superior’s behest, and identified himself as a parole officer to Kadien, and the
apartment complex staff. Plaintiffs’ allegations that Kadien and O’Connor discussed whether
O’Connor should enter the apartment to assist Kadien with the welfare check, rather than remain
outside (which they eventually decided O’Connor should do, in deference to the “issue” between
Guardiola and O’Connor’s office, and not because of any concern that O’Connor lacked the legal
right to enter Guardiola’s apartment), further suggests that O’Connor was not acting or being
treated as a private citizen, but as a fellow member of law enforcement, possessed of equal
authority to enter Guardiola’s home. (Dkt. #167 at ¶9). O’Connor also alleged, as an affirmative
defense to the plaintiffs’ initial pleading, that he was at all relevant times acting in the lawful
exercise of his discretion as a parole officer. (Dkt. #26 at 3-4). I therefore conclude that plaintiffs
have plausibly alleged that O’Connor was acting under color of law with respect to the conduct
set forth in the Amended Complaint.
Concerning O’Connor’s role in the alleged unlawful entry and unreasonable search and
seizure, “[i]t is well settled in this Circuit that ‘personal involvement of defendants in alleged
constitutional deprivations is a prerequisite to an award of damages under §1983.’” Wright v.
Smith, 21 F.3d 496, 501 (2d Cir. 1994) (quoting Moffitt v. Town of Brookfield, 950 F.2d 880, 885
(2d Cir. 1991)). The Second Circuit has interpreted personal involvement to include “personal
participation by one who has knowledge of the facts that rendered the conduct illegal.” Provost v.
City of Newburgh, 262 F.3d 146, 155 (2d Cir. 2001); accord Gronowski v. Spencer, 424 F.3d 285,
293 (2d Cir. 2005). Moreover, liability may be found against “a person who, with knowledge of
the illegality, participates in bringing about a violation of the victim’s rights but does so in a
manner that might be said to be ‘indirect’ – such as [by] ordering or helping others to do the
unlawful acts.” Provost, 252 F.3d 146 at 155 (emphasis added).
In order for liability to attach under an “indirect involvement” theory based on, e.g., the
knowing transmission of false information by or between law enforcement, a defendant’s “indirect
role in bringing about the [constitutional violation] violate[s] the [Constitution] only if, at the time
[the defendant] transmitted the information, [the defendant] knew that their conduct was depriving
Plaintiff of his [or her] rights under the [Constitution], or causing those rights to be deprived.”
Gothberg v. Town of Plainville, 148 F. Supp. 3d 168, 177 (D. Conn. 2015).
The Court remains mindful of its obligation, on a motion to dismiss, to accept the
allegations contained in the Second Amended Complaint as true and draw all reasonable inferences
in favor of plaintiffs. Here, plaintiffs plausibly allege that O’Connor had actual knowledge that the
situation at Guardiola’s apartment was not urgent, and was aware that he had not made all
reasonable efforts to check on Guardiola (e.g., he had not attempted to call her emergency
contacts), at the time he called 9-1-1 to request a welfare check by police. They claim that
O’Connor nonetheless did so, for the purpose of using that unconstitutional intrusion as a tool of
harassment. Plaintiffs thus claim that O’Connor had not only the actual knowledge, but the specific
intent, to direct and cause a violation of Guardiola’s constitutional rights against unlawful entry
and unreasonable search and seizure. See e.g., Duncan v. City of New York, 2016 U.S. Dist. LEXIS
136340 at *23 (E.D.N.Y. 2016)(an officer may be held liable for an unlawful seizure even if he
“t[ook] part in less direct ways” than directly seizing the individual). I therefore find that plaintiffs
have plausibly alleged that O’Connor, acting under color of state law, “directly and intentionally
applie[d] the means by which another [wa]s seized in violation of the Fourth Amendment,” and
decline to dismiss plaintiffs’ claims of unreasonable search and seizure, or unlawful entry, against
him. Berg v. County of Allegheny, 219 F.3d 261, 272 (3d Cir. 1999).
I reach a different conclusion with respect to plaintiffs’ claims of excessive force against
O’Connor. While O’Connor’s “reckless” communication of “inflammatory and inaccurate
information” may have heightened the chance that Kadien’s entry into Guardiola’s apartment
could result in an excessive use of force, plaintiffs have not plausibly alleged that O’Connor had
actual knowledge that it would, or that he otherwise directed or assisted Kadien to use force against
Guardiola. Gothberg, 148 F. Supp. 3d 168 at 177)(dismissing Fourth Amendment claims against
Southington police officers who “reckless[ly] communicat[ed] inflammatory and inaccurate
information” about the plaintiff to Plainville police, who then engaged in excessive force against
the plaintiff, because “[w]hile [the Southington] officers may have suspected” that the false
information would increase the likelihood that excessive force would be used by the Plainville
police, the “fact that the alleged transmission of that information occurred before [the] excessive
force precludes the conclusion that the [Southington officers] had actual knowledge that their
conduct was violating Plaintiff’s [Constitutional] rights”). Plaintiffs’ excessive force claims
against O’Connor are accordingly dismissed.
III. Second Cause of Action: Conspiracy to Violate the Fourth and Fourteenth
Amendments, As Asserted Against Anderson, O’Connor, Hart-Bader, and Scriven
In order to state a claim for conspiracy under Section 1983, a plaintiff must allege: (1) an
agreement between two or more actors (at least one a state actor); (2) to act in concert to cause an
unconstitutional injury; and (3) an overt act done in furtherance of that agreement, causing
damages. Ciambriello v. County of Nassau; 292 F.3d 307, 324-25 (2d Cir. 2002). In setting forth
the claim, a plaintiff must make an “effort to provide some details of time and place and the alleged
effects of the conspiracy…” Ivery v. Baldauf, 284 F.Supp.3d 426, 439 (W.D.N.Y. 2018).
Here, plaintiffs allege that Scriven, Anderson, Hart-Bader, O’Connor, and ultimately
Kadien, conspired and agreed to bring about the welfare check on Guardiola, to harass and punish
her for having complained about harassment in the DOCCS Rochester office, and/or for having
obtained a transfer elsewhere. Finding that there was no plausible allegation of a “communication,
meeting of the minds or cooperative effort” between Kadien and any other defendant, this Court
previously dismissed plaintiffs’ conspiracy claims against Kadien. (Dkt. #82 at 12).
With respect to Anderson and Hart-Bader, plaintiffs do not allege any specific meeting of
the minds, or explain exactly what they allegedly agreed to do in order to bring about the welfare
check on Guardiola. Indeed, Anderson and Hart-Bader are not alleged to have undertaken any
particular actions whatsoever with respect to the welfare check. Plaintiffs’ conspiracy claims
against them are therefore insufficiently stated, and must be dismissed.
As for O’Connor and Scriven, plaintiffs allege that: (1) Scriven “directed . . . O’Connor to
conduct the wellness check” at Guardiola’s apartment, and in the course of that conversation, the
two concocted a false story that Guardiola “had not been heard from for three weeks to induce the
local authorities to conduct the welfare check” (Dkt. #167 at ¶82); (2) about 20 minutes after
arriving at Guardiola’s apartment complex, and without attempting to call either of Guardiola’s
emergency contacts, O’Connor called 9-1-1 and requested that law enforcement conduct a welfare
check, falsely indicating that Guardiola had been unaccounted-for for three weeks; and
(3) although O’Connor’s and Scriven’s motive for such a conspiracy is “not fully known at this
time,” it may have been an extension of the “pattern of harassment” against Guardiola by
O’Connor’s office, which had been the basis for her transfer request. (Dkt. #167 at ¶¶85-87).
The Court has already determined that plaintiffs plausibly alleged that O’Connor was
acting under color of law – and thus, was a state actor for purposes of their conspiracy claim.
Nonetheless, taken as true, plaintiffs’ allegations do not plausibly state that O’Connor and Scriven
conspired together to violate Guardiola’s constitutional rights. Specifically, plaintiffs’ allegation
that Scriven’s instruction to O’Connor – to conduct a welfare check himself on a false pretense –
was simultaneously intended “to induce the local authorities” to engage in an unconstitutional
intrusion, while not “logically inconsistent with the possibility of such a conspiracy,” is
unsupported by any factual allegations that raise it to the level of plausibility. Perez v. New York
City Dep’t of Corr., 2012 U.S. Dist. LEXIS 121440 at *16 (E.D.N.Y. 2012)(dismissing conspiracy
claim based on conclusory and speculative allegations)(quoting Tolliver v. Ercole, 2010 U.S. Dist.
LEXIS 29683 at *12 (S.D.N.Y. 2010)(dismissing conspiracy claim based on allegations that a
physical meeting between two defendants just prior to an allegedly unconstitutional hearing delay
indicated a meeting of the minds)). Similarly implausible is plaintiffs’ contention that it is
“reasonable” to infer that Guardiola’s complaints about O’Connor’s office would have motivated
not just O’Connor, but Scriven, to partake in an explicit plot to violate her constitutional rights.
(Dkt. #166 at ¶87). In short, plaintiffs’ allegations that Scriven’s intent in sending O’Connor to
Guardiola’s apartment went beyond causing Guardiola annoyance, and extended to a conspiracy
with O’Connor to punish Guardiola for her complaints about O’Connor’s office and violate her
constitutional rights through manipulation of the “local authorities,” are too conclusory and
speculative to nudge them from conceivable to plausible. Whatever O’Connor’s individual plan or
motivation might have been, plaintiffs have not plausibly alleged that Scriven shared it, or that the
two otherwise engaged in a meeting of the minds.
Plaintiffs’ conspiracy claims against O’Connor (and by logical extension, non-moving
defendant Scriven, as he is the only remaining defendant against whom the claim is alleged) are
insufficiently stated, and are therefore dismissed.
IV. Sixth Cause of Action: Wrongful Death as Asserted Against Anderson, O’Connor,
Hart-Bader, and Scriven
To state a claim for wrongful death in New York, a plaintiff must allege: “(1) the death of
a 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.” Schmelzinger v. City
of Buffalo, 2024 U.S. Dist. LEXIS 42026 at *13-*14 (W.D.N.Y. 2024)(quoting Matthias v. United
States, 475 F. Supp. 3d 125, 143 (E.D.N.Y. 2020)).
“In determining causation in wrongful death actions, New York courts look to whether the
alleged [act or omission] proximately caused the death.” Mellin v. Nerai LLC, 2024 U.S. Dist.
LEXIS 43471 at *9 (S.D.N.Y. 2024). “A defendant’s [wrongful act, negligence, or default]
qualifies as a proximate cause where it is a substantial cause of the events which produced the
injury.” Id. (quoting Mazella v. Beals, 27 N.Y.3d 694, 706 (N.Y. Ct. App. 2016). As such, “the
most significant inquiry in the proximate cause analysis is often that of foreseeability.” Mellin,
2024 U.S. Dist. LEXIS 43471 at *9 (quoting Hain v. Jamison, 28 N.Y.3d 524, 530 (N.Y. Ct. App.
2016)). Where there is an intervening act by a third person between the defendant’s conduct and
the decedent’s injury “the causal connection is not automatically severed,” and “liability turns on
whether the intervening act is a normal or foreseeable consequence of the situation created by the
defendant’s [conduct].” Mazella, 27 N.Y.3d 694 at 706 (quoting Derdiarian v. Felix Contr. Corp.,
51 N.Y.2d 308, 315 (N.Y. Ct. App. 1980)).
The DOCCS defendants implicitly concede that plaintiffs have alleged Guardiola’s death,
the survival of her distributees, and the appointment of a representative. However, they argue that
plaintiffs have not alleged any facts sufficient to suggest any of the moving defendants’ liability
for Guardiola’s death.
As to Anderson and Hart-Bader, plaintiffs have once again not plausibly alleged that
Anderson or Hart-Bader planned, knew about, condoned, or otherwise took any action whatsoever
with respect to the welfare check on Guardiola that resulted in her death. As such, plaintiffs’
wrongful death claims against them are dismissed.
Plaintiffs’ wrongful death claims against Scriven are likewise dismissed, sua sponte.
Plaintiffs allege only that Scriven dispatched O’Connor to Guardiola’s apartment, with the alleged
intent of harassing her through a prospective welfare check by “local authorities”: he is not alleged
to have undertaken any actions that directly or proximately caused Guardiola’s death, and as such,
plaintiffs have not plausibly stated a wrongful death claim against him.
With respect to O’Connor, plaintiffs allege that O’Connor called 9-1-1 to request a welfare
check on Guardiola, even though he knew there was no emergency, and was aware that he had not
exhausted other reasonable efforts to check on her welfare. Plaintiff’s further allege that when
Officer Kadien responded, O’Connor informed him that Guardiola was a parole officer who had
been involved in a dispute with the Parole office, falsely stated that she had not been heard from
in three weeks, and informed Kadien that there was a preexisting interpersonal “issue” between
Guardiola and O’Connor’s office, which was of such significance that it would be “best” if
O’Connor did not enter her apartment to assist Kadien with the welfare check.
While each of these statements by O’Connor foreseeably escalated Kadien’s perception of
the immediacy of the need to enter Guardiola’s apartment, as well as Kadien’s assessment of the
threat level associated with that entry, plaintiffs have not plausibly alleged that Kadien’s use of
deadly force was a “normal or foreseeable” consequence of O’Connor’s actions. Indeed, plaintiffs
allege that O’Connor’s motivation for instigating the welfare check was simply to “harass”
Guardiola for her complaints about discrimination in the Rochester DOCCS office: plaintiffs do
not allege that O’Connor intended for Kadien and Guardiola to be placed in mortal danger, or that
Guardiola’s tragic death was otherwise a foreseeable consequence of O’Connor’s actions. (Dkt.
#167 at ¶87). Plaintiffs’ wrongful death claim against O’Connor must therefore be dismissed.
V. Seventh Cause of Action: Conscious Pain and Suffering, as Asserted Against
Anderson, O’Connor, Hart-Bader, and Scriven
Under New York Law, “conscious pain and suffering” is recognized as a separate cause of
action that often accompanies a wrongful death claim. It refers to the decedent’s injuries, pain and
suffering prior to death, and can be brought by the estate. See e.g., Dershowitz v. United States,
2015 U.S. Dist. LEXIS 46269 at *104-*105 (S.D.N.Y. 2015). To state a claim for conscious pain
and suffering, plaintiffs must allege that the injured party “was conscious for some period of time
following the [injury],” Phillips v. City of Middletown, 2018 U.S. Dist. LEXIS 163308 at *29-*30
(S.D.N.Y. 2018), or otherwise had “some level of cognitive awareness.” Williams v City of New
York, 71 A.D.3d 1135, 1137 (N.Y. App. Div. 2d Dept. 2010).
Because, as discussed above, plaintiffs have failed to state a cognizable wrongful death
claim against Anderson, Hart-Bader, O’Connor, or Scriven, plaintiffs’ conscious pain and
suffering claims against them must likewise be dismissed.
CONCLUSION
For the reasons stated above, the moving DOCCS defendants’ motion to dismiss (Dkt.
#183) is granted in part, and denied in part. All of plaintiffs’ claims against Anderson and
Hart-Bader are dismissed in their entirety.
Exercising its discretion to dismiss insufficiently stated claims sua sponte, the Court
likewise dismisses plaintiffs’ claims against Scriven in their entirety. Plaintiffs’ federal and state
constitutional claims of excessive force, wrongful death, and conscious pain and suffering against
O’Connor are also dismissed. Plaintiffs’ 4" Amendment claims based on alleged unlawful entry
and/or unreasonable search and seizure against O’Connor remain.
IT IS SO ORDERED.
Sarina
DAVID G. LARIMER
United States District Judge
Dated: Rochester, New York
March 27, 2024.
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