Hardy v. Daly et al, No. 1:2016cv08443 - Document 53 (S.D.N.Y. 2017)
Court Description: MEMORANDUM AND OPINION re: 46 LETTER MOTION to Compel Plaintiff to Respond to Interrogatories and Document Requests addressed to Judge Robert W. Sweet from Debra March dated 7/26/2017. filed by Jorge Grullon, Daly, 29 MO TION to Dismiss . The motion to dismiss, ECF No. 29, is hereby granted, and the Amended Complaint filed by Hardy is dismissed with prejudice. The pending motion to compel, ECF No. 46, is therefore denied as moot. (Signed by Judge Robert W. Sweet on 9/5/2017) (js)
Hardy v. Daly et al Doc. 53 UN ITE D STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ----------------------------------------x RI CHARD HARDY, Plaintiff , 16 Civ . 8443 - against - (RWS) 0 P I N I 0 N POLICE OFFICER DALY and POLICE OFFICER GRULLON , Defendants. ----------------------------------------x USDCSDNY DOCUMENT ELECTRONTC·\f 1 y ffLED DOC #: ; t- I -DATE FlLED:-Sj_( ·:·-r-l-7 . A P P E A RA N C E S : Pro Se Plaintiff RICHARD HARDY 421 West 162 nd Street , Apt . J New York , NY 10032 Attorne y for Defendants NEW YORK CIT Y LAW DEPARTMENT 100 Church Street New York , NY 1000 0 7 By : Debra M. March , Esq. Dockets.Justia.com Sweet, D.J. Defendants Police Officer Patrick Daly ("Officer Daly") and Police Officer Jorge Gru l lon ("Grullon") (collectively , the "Defendants " ) have moved pursuant to Rule 12(b) (6) of the Federal Rules of Civil Procedure to dismiss the Amended Complaint of pro se plaintiff Richard Hardy ("Hardy " or the "Plaintiff"). Based upon the facts and conclusions set forth below , the motion is granted and the Amended Complaint is dismissed with prejudice . I. Prior Proceedings Hardy initiated the instant action on October 28 , 2016 , bringing claims of sexual assault and intentional infliction of emotional distress against Officer Daly . He amended his complaint on February 7 , 2017 to add Officer Grullon as a named defendant (the "Amended Complaint " ). The Defendants ' motion to dismiss the Amended Complaint was filed on May 17 , 2017 and marked fully submitted on July 5 , 2017 . 1 II. The Facts The facts as set for t h below are drawn from the Plaintiff ' s Amended Comp l aint . They are taken as true f or purposes of the motion to dismi ss . On July 30 , 2015 , Pla intiff ' s wife , Leslie Meil l eur Hardy, made a 9 11 domestic violence call , to wh i ch Police Officers Daly and Grull on responded. See Plaintiff's Amended Complaint ( " Arn. Comp l. " ) , ECF No . 13 , pp . 2 - 4 . Once the off ice rs arrived , the Amended Comp l aint alleges, Officer Daly had sexual intercourse with Hardy 's wife while Officer Gru ll on forced Hardy "down [the hallway] into another room." Id. at 2 . Plaintiff al l eges that initially he stood outside the bedroom door and heard a sexual act being performed on Officer Daly, but that Officer Grullon observed this and moved Plaintiff away from the door as Plaintiff attempted to enter the bedroom . Id. at 3 . Plaint iff alleges that, after he emerged from the bedroom , Officer Daly confessed to Officer Grul l on that he had sex with Pl aintiff ' s wife . Id. at 2 - 3. Plaintiff claims that Officer Daly began threatening him , telling him "[i]f you ever 2 try t o have sex with her again I wil l kill you ," and "i f you file suit against me I will kill yo u." Id . at 3 . Plaintiff sta t es that he repor t ed th i s i ncident to police officers on duty at a TD Bank i n Manhattan , filed a report with a po l ice sergeant , and was i n terviewed by the Interna l Affa i rs department before fi l ing su i t . Id . He c l aims that hi s wife suffers f r om me nt a l i llness and was " tricked " to engage i n t h e sexua l acts descr i bed . Id . III. The Applicable Standards The Ru l e 12(b) (6) standard requi res that a comp l aint plead suf f icient facts to s t ate a cla i m upon which rel i ef can be granted . Ashcroft v . Iqbal , 556 U.S. 662 , 677 - 78 Atl . Corp . v . Twombly , 550 U. S . 544 , 570 (2009) ; Bell (2007) . On a mot i on to dismi ss under Fed . R . Civ . P 1 2(b) (6) , a ll fact u al al l egations in the compla i nt are accepted as true , and a l l reasonable i nfere n ces are drawn in t he p l ainti ff ' s f avor . Littlejohn v. City of N . Y ., 795 F . 3d 297 , 306 (2d Ci r . 20 1 5) ; Mills v . Polar Mo l ecular Corp ., 1 2 F . 3d 11 70 , 1 1 74 (2d Cir . 1993) . However , " a plaintiff ' s obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions ." Twombly , 3 550 U.S. at 555 (quotation marks omitted) . A complaint must contain "sufficient factual matter , accepted as true, to ' state a claim to relief that is plausible on its face.'" Iqbal, 556 U.S. at 663 (quoting Twombly , 550 U.S. at 570). A claim is facially plausible when "the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (quoting Twombly, 550 U. S. at 556) . In other words , the factual allegations must "possess enough heft to show that the pleader is entitled to relief." Twombly, U.S. at 557 550 (internal quotation marks omitted) . Additionally , while "a plaintiff may plead facts alleged upon information and belief ' where the belief is based on factual inf o rmation that makes the inference of culpab ili ty plausible,' su ch allegations must be ' accompanied by a statement of the facts upon which the belief is founded.'" Munoz-Nagel v . Guess, Inc., No . 12-1312, 2013 WL 1809772, at *3 (S.D.N.Y . Apr . 30 , 2013) (quot ing Arista Records, LLC v. Doe 3 , 604 F. 3d 11 0 , 120 (2d Cir. 2010)) and Prince v. Madison Square Garden , 427 F. Supp . 2d 372 , 384 (S.D . N.Y . 2006); see also Williams v . Calderoni , No. 11 - 3020, 20 12 WL 69 1 832 , *7 4 (S .D.N.Y. Mar. 1, 2012) . The pleadings, however, "must contain something more than . a statement of facts that merely creates a suspicion [of] a legally cognizab le right of action ." Twombly , 550 U. S. at 555 (quoting 5 CHARLES ALAN W RIGHT PROCEDURE IV. § & ARTHUR R . MILLER , FE DERAL PRACTICE AND 1216 (3d ed. 2004)). The Motions to Dismiss the Amended Complaint is Granted Section 1983 rights are "personal to those purportedly injured ." Nnebe v . Daus , 644 F.3d 147 , 156 (2d Cir . 2011) (internal quotation marks and citations omitted). "A party may not assert a civil rights claim on behalf of another ; each party must establish that he or she was personally deprived of rights or privileges secured by the Constitution. " Mccloud v . Delaney, 677 F. Supp . 230 , 232 (S.D . N.Y. 1988). Only when the plaintiff can demonstrate , " ( 1 ) injury to the p l aintiff, ( 2) a close relationship between the plaintiff and the third party that would cause plaintiff to be an effective advocate for the third party's rights, and (3) some hindrance to the third party ' s ability to protect his or her own interests," can the plaintiff bring a constitutional claim . Huth v . Haslun, (2d Cir. 2010) . 5 598 F.3d 70, 75 Plaintiff has failed to demonstrate that he has standing to bring the sexual assault claim on behalf of his wife. A husband generally does not have standing to bring a constitutional claim or New York state law claim on beha lf of his wife . Burton v. City of N .Y., No. 97 CV 0202 , 1997 U. S . Dist. LEXIS 19946, at *6-7 (E . D.N. Y. Nov. 28 , 1997) (granting motion to dismiss where husband did not have standing to bring § 1983 claim or New York state claim on behalf of his wife regarding her arrest and treatment). Other than his assertion that his wife is mentally ill, Plaintiff has not articulated why his wife is unable to protect her own interests. Arn. Compl. , p. 2 .; see Munoz v. City of N.Y., 2008 U.S. Dist. LEXIS 1 2305 , at *8 (S .D.N. Y. Feb. 16, 2008) bring § (noting that wife has no standing to 1983 suit on behalf of deceased husband since husband was not a party to the action and she was not the administratrix of his estate) . As Plaintiff does not have standing to bring claims on behalf of his wife related to her alleged sexual assault, the cla im is to be dismissed. See Mccloud , 677 F. Supp. at 232 (finding that plaintiffs "failed to establish that they were deprived of any rights or privileges under the law, their claim being that they suffered emotional distress due to [another individual's] alleged deprivation of his eighth amendment rights") . 6 Plaintiff ' s other purported federal claim relates to the alleged threats by Officer Daly . Howe ver , words alone do not amount to a constitutional injury. See Malki v. Hayes , No. 11 CV- 5909 (SLT) (LB) , 2012 U.S . Dist . LEXIS 1000 , at *14 (E .D.N.Y. Jan . 4 , 2012) (noting that "[i]t is well - settled that verbal harassment and threats alone do not constit ute a cognizable v i o lati on of an individual's constitutional rights") Purcell v . Coughlin , 790 F . 2d 263 , 265 (citing (2d . Cir . 1986)). Plaintiff ' s allegat i ons that Officer Daly threatened him by stating "[i]f you ever try to have sex with her again I will kill you" and "if you file suit against me I will kill you " do not amount to a constitutional vio lati on . Therefore , this claim , too , is dismissed. To the extent Plaintiff alleges a failure to intervene or failure to prevent c l aim against Officer Grullon, these cla ims cannot stand. Plaintiff has alleged no constitutional violations , as set forth above, thus there are no bases on which to sustain any claims that Officer Grullon failed to intervene. See Feinbers v . City of N.Y ., No . 99 Civ. 121 27 , 2004 U.S . Dist. LEXIS 1 6098 , at *12 (S . D. N. Y. Aug . 1 2 , 2004) ("If the Court determines that the off i cer ' s conduct did not vio late a 7 constitutional right, however, the analysis ends.") Saucier v. Katz, 533 U.S. 194, 201 (citing (2001)). Plaintiff's claim of intentional infliction of emotional distress 1 must also be dismissed because Plaintiff failed to comply with New York General Municipal Law §§ 50e (1) (a) & 50-i ( 1 ) . In order to bring any state law claim, such as intentional infliction of emotional distress, a plaintiff must comp ly with New York's General Municipal Law, which states that "[n]o action. the city. . shall be prosecuted or maintained against . or any employee . . unless a notice of claim shall have been made and served upon the city." N.Y. Gen. Mun. Law § 50-i. A notice of claim against a public corporation in New York must be served "within ninety days after the claim arises." N.Y. Gen . Mun. Law§ 50-e(l) (a); see also N.Y. Gen. Mun. Law § 50-i (requir ing a plaintiff to plead in the complaint that: ( 1) he has served the notice o f claim; ( 2) at least thirty days have elapsed since the notice was filed (and before the complaint was filed); and (3) 1 in that time the defendant has Plaintiff also references "tortious interference with marital relations" as a claim. However, this type of action, a state law claim also called "alienation of affections," was abolished by statute in New York many decades ago. See, e.g., Hanfgarn v . Mark, 274 N.Y. 22 , 24, 8 N.E.2d 47, 47 (1937) (holding constitutional c hapter 263 of the Laws of 1935 (Civi l Practice Act, §§ 61-a to 61-i), which abolished civil actions to recover damages for, inter alia, alienation of affections) . 8 neglected to or refused to adjust or to satisfy the claim) . Finally, New York ' s Genera l Municipal Law requires that a claim against New York City o r its employees must be "commenced within one year and n inety days after the happen in g o f the event upon which the claim is based. " N.Y. Gen . Mun . L. § 50 -i (l) . Courts in this district recognize that a plaintiff al l eg in g a pendent state tort claim must comp l y wi th New York ' s n ot ic e of claim rules . See Fincher v. County of Westchester , 979 F. Supp . 989 , 1002 (S . D.N.Y. 1997) ("notice of claim requirements apply equa ll y to state tort claims brought as pendent claims in a federal civil rights action"). "I t is well settled that the failure to file a not i ce of claim bars state cla ims against individual defendants sued in their official capacities." Brooks v . City of Nassau , 54 F. Supp. 3d 254 , 258 (E . D. N. Y. 20 14 ) ; Ong v . Park Manor (Middletown Park) Rehab . & Healthcare Ctr ., No . 1 2 -Cv-974 (KMK) , 2015 U.S. Dist. LEXIS 1 33304 , at *73 2 (S .D.N.Y. Sep. 30 , 2015) (d ismissing plaintiffs state law claims against the indi vidua l defendants sued in their officia l capacities because p l aintiff failed to comply with the not i ce of claim requirements) ; Vassilev v . City of New York , No . 13-CV-5 385 , 2014 U. S . Dist . LEXIS 7 11 722 , at *3 (S . D.N . Y. Aug . 12 , 2014) (dismissing plaintiff ' s state law cla i ms because the 9 plaintiff failed to file a timely notice of claim , and as a result , p l aintiff ' s state l aw claims were time barred) . In the instant matter , Pl ainti f f alleges the state law claim of i ntentional infliction of emotiona l distress , however , Plaintiff has failed to allege the filing of a Notice of Claim or a f il ing within n i nety days of the al l eged i ncident giving rise to this action as i s required by the General Municipal Law . See N.Y . Gen . Mun . L . §§ 50 - e(l) (a) & 50 - i(l). Therefore , as Pla i ntiff has failed to comply with the Notice of Claim requirements , any state l aw claims must be dismissed . See Hardy v . New York City Health & Hasps . Corp ., 164 F . 3d 789 , 793-94 (2d Cir . 1999) . V. Conclusion The motion to dismiss , ECF No . 29 , is hereby granted , and the Amended Complaint filed by Hardy is dismissed with prejudice. The pending motion to compe l, ECF No . 46 , is therefore denied as moot . 10 I I t• I It is so ordered . New York, September N ...-y j ' 2017 v 11 ROBERT W. SWEET U.S.D.J.