Ocasio v. City of Canandaigua

DECISION AND ORDER On October 4, 2017, Sandy Guardiola (“Guardiola”) was shot three times as she slept in her bed in Canandaigua, New York, by Canandaigua Police Sergeant Scott Kadien (“Kadien”). Guardiola, a long-time parole officer with the New York State Department of Corrections (“DOCCS”), was at home on medical leave, recovering from a motor vehicle accident that had occurred a month previously. Guardiola did not survive the shooting; she died shortly after arriving at the hospital. Kadien had entered Guardiola’s home in response to a 9-1-1 call requesting a “welfare check” because Guardiola had been absent from work. Kadien, who apparently knew that Guardiola was a law enforcement officer, gained entry to the home, entered Guardiola’s bedroom and within seconds fired the three fatal shots. Plaintiffs are the heirs and administratrix of Guardiola. They have commenced this action in Federal Court against several defendants, including Sergeant Kadien, the City of Canandaigua, its police chief, employees of DOCCS, as well as the owner and property manager of the apartment complex where Guardiola resided, Grand Atlas Property Management (“Grand Atlas”). Now pending before the Court are motions to dismiss, pursuant to Fed. R. Civ. P. 12(c) by Sergeant Kadien (Dkt. #44), as well as a similar motion by defendant City of Canandaigua and its police chief (Dkt. #45).¹ For the reasons that follow, the motions by Kadien and the City defendants are granted in part and denied in part. FACTUAL BACKGROUND According to the complaint (Dkt. #1), Guardiola was a parole officer employed by DOCCS. She had been assigned to the Rochester Office. She was on medical leave from September 4, 2017 through October 3, 2017 following a motor vehicle accident, during which time she was granted a voluntary transfer to the Binghamton DOCCS office. On the morning of October 4, 2017, Guardiola called the Binghamton DOCCS office to see if she was expected to report for work that day. Having determined that she was not expected at work, she went to bed. The complaint notes that Guardiola habitually wore earplugs when she slept, and had been prescribed medication to help her sleep. For reasons unknown,² around 4:30pm, Thomas O’Connor, a Senior Parole Officer in the Rochester DOCCS office from which Guardiola had been transferred, called 9-1-1 and requested a welfare check on Guardiola, allegedly on the basis that she had been “missing” from work for three weeks. Sergeant Kadien was dispatched to Guardiola’s apartment along with emergency services, including an ambulance which positioned itself across the street. At Kadien’s request, building management staff escorted him to Guardiola’s apartment and used their keys to unlock it. Kadien walked through the apartment past the kitchen and bathroom, and opened the closed door to Guardiola’s bedroom, where she was sleeping. The complaint avers that as Kadien entered Guardiola’s bedroom, Guardiola, who was lying on her stomach, awoke and reached in the direction of a pillow where she kept her service revolver which she typically kept there for protection, after receiving threats from parolees with serious mental issues. The complaint contends that Kadien did not attempt to retreat or to announce that he was a police officer, but instead, shot Guardiola in the right arm, with the bullet passing through her arm and into her right ear and head. Guardiola’s firearm then discharged in the opposite direction from Kadien and into a wall, whereupon Kadien shot Guardiola twice more, in the head and abdomen. The time that elapsed between Kadien’s entry into the apartment and his fatal shooting of Guardiola is alleged to have been mere seconds. When emergency responders arrived approximately ten minutes after the shooting, Guardiola was lying supine on her bed, handcuffed and bleeding profusely, but still breathing. She was transported to the hospital, where she was pronounced dead at 5:30pm after resuscitation attempts proved futile. This action followed. The complaint asserts several causes of action including unlawful search and seizure, excessive force, conspiracy to violate constitutional rights, interference with family relationships, assault and battery, premises liability, negligent infliction of emotional distress, negligent hiring, training and discipline, conscious pain and suffering, and wrongful death. (Dkt. #1). 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. II. First Cause of Action: Violation of the Fourth and Fourteenth Amendments against Kadien and the DOCCS Defendants (42 U.S.C. §1983) A. Unlawful Entry 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 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)). The touchstone is urgency. Kadien argues that any reasonable, experienced officer who received a similar welfare check request (that is, a request based on a 9-1-1 call from an individual’s employer, stating that they had been absent from work for three weeks), would have probable cause to believe that there was an urgent need to render aid or take action. Therefore, he argues, the exigent circumstances exception so clearly applies that the Court may decide it as a matter of law on the instant motion to dismiss. The Court disagrees. First, it is well-settled that a 9-1-1 call or a welfare check request does not, by itself, establish exigent circumstances: entitlement to the exception requires convincing “indicia of distress.” Pennington v. City of Rochester, 2018 U.S. Dist. LEXIS 101499 at *10 (W.D.N.Y. 2018). Such indicia may include, for example, a witness’s or victim’s report of a serious injury or medical emergency, or an inability to locate a missing and vulnerable individual to confirm their well-being despite a reasonable investigation and other attempts to reach them. Courts have found the exception applicable in matters where, for example, a weak-sounding person called 9-1-1 and reported having just been shot, or where a missing elderly couple did not respond after officers knocked on their front and back doors for 20 minutes, and searched in vain for them around their neighborhood and at the community center they frequented. See Warren v. Ewanciw, 2019 U.S. Dist. LEXIS 23841 (S.D.N.Y. 2019); Soller v. Boudreaux, 2015 U.S. Dist. LEXIS 14084 (E.D.N.Y. 2015). Resort to the exigent circumstances exception has been denied, however, where a 9-1-1 call or a welfare request check was unaccompanied by indications that help was urgently needed, such as when an officer conducting a welfare check made a warrantless entry into a private residence after briefly knocking on a door and window, without any knowledge of why the welfare check had been requested or any factual basis to believe that the subject was in danger. See Pennington, 2018 U.S. Dist. LEXIS 101499. Accord DeSantis v. Town of Cheektowaga, 2020 U.S. Dist. LEXIS 56086 at *18-*19 (W.D.N.Y. 2020)(declining to find defendant officer is entitled to summary judgment with respect to the exigent circumstances exception, where a jury could conclude that the officer’s knowledge about a resident — that he had a “history” of drinking and was not responding to attempts by someone else to contact him — did not furnish a reasonable basis to believe that the resident required any immediate assistance). Here, the information alleged to have been known by Kadien at the time he entered Guardiola’s residence is insufficient at this stage, on a motion to dismiss, to find as a matter of law that Kadien’s actions were objectively reasonable. Construing the facts in plaintiffs’ favor, as the Court must on a motion to dismiss, neither the nature of the underlying 9-1-1 call (coming from an alleged employer, rather than a neighbor or family member with personal knowledge of Guardiola’s habits and schedule), nor the three-week period Guardiola was alleged to have been absent from work,³ would have persuaded a reasonable officer that Guardiola was in such urgent danger that an immediate entry into her apartment — without obtaining a warrant, conducting any inquiries of neighbors or family members, or attempting to reach Guardiola in a less intrusive manner (e.g., knocking on doors and windows) — was necessary. Accordingly, the Court declines to dismiss plaintiffs’ Fourth Amendment claims related to the warrantless entry of Guardiola’s apartment. B. Excessive Force 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 the Court’s consideration: (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). As to the third factor, “[t]he fact that a person whom a police officer attempts to arrest resists, threatens, or assaults the officer no doubt justifies the officer’s use of some degree of force, but it does not give the officer license to use force without limit. The force used by the officer must be reasonably related to the nature of the resistance and the force used, threatened, or reasonably perceived to be threatened, against the officer.” Sullivan v. Gagnier, 225 F.3d 161, 165-66 (2d Cir. 2000). Here, the complaint alleges that Kadien entered a sleeping woman’s locked apartment, made his way to her bedroom, opened the bedroom door, walked into the room unannounced, and shot her three times in her own bed as she reached toward a place she kept a gun to defend herself. Whether that use of force was justified under the circumstances — for example, whether and to what extent Guardiola ever posed a threat to Kadien’s safety, and whether Kadien’s response was proportionate to that threat — requires a detailed and fact-specific inquiry, and would be inappropriate for this Court to decide at the motion to dismiss stage. See Oakley v. Dolan, 2020 U.S. App. LEXIS 35957 at *11 (2d Cir. 2020)(“[b]ecause of its intensely factual nature, the question of whether the use of force was justified under the circumstances is generally best left for a jury to decide…[t]hese principles apply with even greater force at the motion to dismiss stage, where a court must assume the truth of the plaintiff’s allegations and avoid resolving factual disputes“)(emphasis added)(internal quotations and citation omitted). See also Oliphant v. Villano, 2012 U.S. Dist. LEXIS 115612 at *25 (D.Conn.2012) (reasonableness of a police officer’s actions is a question of fact for the jury to resolve). Kadien’s motion to dismiss plaintiffs’ excessive force claims is accordingly denied. C. Fourteenth Amendment Excessive Force Considering plaintiffs’ excessive force claims as alternatively pled under the Fourteenth Amendment, “the substantive due process guarantee of the Fourteenth Amendment protects individuals from ‘conscience-shocking’ exercises of power by government actors,” such as “malicious and sadistic abuses of government power that are intended only to oppress or to cause injury and serve no legitimate government purpose.” Johnson v. Newburgh Enlarged Sch. Dist., 239 F.3d 246, 252 (2d Cir. 2001). In Edrei v. Maguire, 892 F.3d 525 (2d Cir. 2018), the Second Circuit specified that the “objectively unreasonable degree of force” analysis outlined by the Supreme Court in Kingsley v. Hendrickson, 135 S. Ct. 2466 (2015), is applicable to all Fourteenth Amendment excessive force claims because “purposeful, knowing or (perhaps) reckless action that uses an objectively unreasonable degree of force is conscience shocking.” Edrei, 892 F.3d 525 at 536 (emphasis in original). Relevant factors include whether force was necessary in light of the threat reasonably perceived by the officer, whether the person against whom force was used was actively resisting, the relationship between the need and the degree of force used, the extent of the resulting injuries, and the officer’s efforts to temper or limit the force used. See Kinglsey, 135 S.Ct. 2466 at 2473; Edrei, 892 F.3d 525 at 536. Again, plaintiffs have alleged that Kadien made a warrantless entry into a law enforcement officer’s apartment in the middle of the afternoon, fatally shot her in her own bed when she attempted to defend herself without making any effort to deescalate the situation, and then callously failed to immediately summon or render medical aid as she lay dying. Indeed, the complaint alleges that rather than call the ambulance that was waiting across the street to assist the wounded Guardiola, Kadien first called for law enforcement backup to respond and protect him, despite the fact that Guardiola had been incapacitated by her injuries and was observed to be lying on her bed, bleeding profusely and handcuffed at the time medical help was finally called to the scene at least 10 minutes later. (Dkt. #1 at

91-103). For purposes of the instant motion, these allegations, construed in plaintiffs’ favor as they must be on a motion to dismiss, describe a use of force that is sufficiently unreasonable and conscience-shocking to state a Fourteenth Amendment excessive force claim. See e.g., Abujayyab v. City of New York, 2018 U.S. Dist. LEXIS 140914 at *14 (S.D.N.Y. 2018)(plaintiff stated a claim for excessive force under the Fourteenth Amendment, where he alleged that the defendant officer punched plaintiff in the face while plaintiff’s arms were pinned behind his back during a peaceful protest). Kadien’s motion to dismiss this claim is denied. D. Qualified Immunity Kadien also requests that even if the Court finds that plaintiffs have sufficiently stated their Constitutional claims, he is entitled to qualified immunity for his conduct. For the reasons discussed above, the Court cannot conclude at this juncture that Kadien is entitled to qualified immunity. In general, public officials are entitled to qualified immunity if (1) their conduct does not violate clearly established constitutional rights; or (2) it was objectively reasonable for them to believe their acts did not violate those rights. See Weyant v. Okst, 101 F.3d 845, 857-858 (2d Cir. 1996). The availability of the defense depends on whether “a reasonable officer could have believed” his or her actions to be lawful, in light of clearly established law and the information he or she possessed. Hunter v. Bryant, 502 U.S. 224, 228 (1991). As the Second Circuit recently observed, “[t]o be sure, qualified immunity should be resolved ‘at the earliest possible stage in litigation.’” Chamberlain, 960 F.3d 100 at 110 (quoting Pearson v. Callahan, 555 U.S. 223, 232 (2009)(internal quotation marks omitted)). “But there is an obvious, if rarely expressed, corollary to that principle: The immunity question cannot be resolved before the ‘earliest possible stage,’…i.e., prior to ascertainment of the truth of the plausible factual allegations on which a finding of qualified immunity is premised. And since qualified immunity is an affirmative defense that is typically asserted in an answer, as a general rule, the defense of qualified immunity cannot support the grant of a…motion [to dismiss on the pleadings].” Chamberlain, 960 F.3d 100 at 110 (internal citations and quotation marks omitted)(quoting Green v. Maraio, 722 F.2d 1013, 1018 (2d Cir. 1983)). This “general rule” certainly applies here. Thus, where introduced as part of a motion to dismiss on the pleadings, a qualified immunity defense “faces a formidable hurdle…and is usually not successful.” Field Day, LLC v. County of Suffolk, 463 F.3d 167, 191-92 (2d Cir. 2006)(internal quotation marks omitted). Here, the facts alleged do not establish that a reasonable officer would have believed that Kadien’s actions, in light of what he knew at the time, were in conformity with clearly established laws. Kadien’s motion seeking dismissal of plaintiffs’ claims on grounds of qualified immunity is accordingly denied. III. Second Cause of Action: Conspiracy to Violate the Fourth and Fourteenth Amendments against Kadien and the DOCCS Defendants 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 several “overt acts” allegedly committed by Kadien and/or the DOCCS defendants in furtherance of a conspiracy to deprive Ms. Guardiola of her constitutional rights. However, the bulk of these acts describe conduct that took place independently, by one actor or the other (e.g., Kadien’s entry into Guardiola’s apartment, the DOCCS defendants’ origination of the 9-1-1 call), without any factual or logical connection to other actors. The only acts attributed to both Kadien and the DOCCS defendants consist of “jointly” devising a false, exculpatory version of the events surrounding Guardiola’s death, and thereafter submitting false reports and testimony to promote it. (Dkt. #1 at