Abdul-Rahman v. The City of New York et al, No. 1:2010cv02778 - Document 40 (E.D.N.Y. 2012)
Court Description: ORDER granting 31 Motion for Judgment on the Pleadings. Ordered by Senior Judge I. Leo Glasser on 3/27/2012. (Green, Dana)
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Abdul-Rahman v. The City of New York et al Doc. 40 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ------------------------------------------------------x LUQMAN ABDUL-RAHMAN, Plaintiff, Mem orandum an d Order 10 Civ. 2778 - against THE CITY OF NEW YORK, et al. Defendants. ------------------------------------------------------x GLASSER, United States District J udge: Plaintiff Luqm an Abdul-Rahm an (“plaintiff” or “Rahm an”) brought this action against Police Officer Christopher Goodwin, Captain J am es Fulton, Sergeant Ronald Sm ith, Detective Gary Gillespie, Police Officer Richard Baez, Detective J erem y DeMarco, Police Officer Ariel Ortiz, Police Officer Alexander Melandez (“the individual defendants”), and the City of New York (collectively, “defendants”), pursuant to the Civil Rights Act of 1866, 42 U.S.C. §§ 1983 & 1985(3), and New York State law, alleging false arrest, excessive force, illegal search and seizure, retaliation, m alicious prosecution, denial of fair trial, conspiracy, negligen ce, and intentional and negligent infliction of em otional distress. Before the Court is defendants’ m otion for judgm ent on the pleadings, pursuant to Federal Rule of Civil Procedure 12(c). For the following reasons, defendants’ m otion should be GRANTED. BACKGROU N D The following facts are undisputed and drawn from the com plaint an d docum ents of which the Court m ay take judicial notice. On the m orning of May 20 , 20 0 8, m em bers of the Brooklyn South Narcotics Division, in cluding Police Officer Christopher Goodwin 1 Dockets.Justia.com (“Officer Goodwin”), went to a United Parcel Service (“UPS”) station in Brooklyn, New York with a canine unit to search for a package alleged to contain narcotics. Am . Com pl. ¶ 17. The canin e positively identified a cardboard box addressed to J ason Hilton, 1745 President Street, Apartm ent 6D, Brooklyn, New York (“Apartm ent 6D”). Officers seized the package and brought it to the 71st Precinct where it was exam ined and found to contain between ten and fifteen pounds of m arihuana. Id. ¶ 18. At 12:15 p.m . on May 20 , 20 0 8, Officer Goodwin appeared before the Suprem e Court of the State of New York to obtain a search warrant for Apartm ent 6D. Am . Com pl. ¶ 19; Declaration of J ohn S. Schowengerdt dated August 12, 20 11 (“Schowengerdt Decl.”), Ex. G . A warrant was subsequently issued, authorizing the search of Apartm ent 6D and of any persons entering or exiting the prem ises during the warrant execution. Schowengerdt Decl. Ex. H. At 12:32 p.m ., Captain J am es Fulton (“Capt. Fulton”), dressed as a UPS worker, delivered the package containing m arihuana to Apartm ent 6D on the sixth floor. An occupant of the apartm ent, J effrey Francois (“Francois”), opened the door, identified him self as the addressee, J ason Hilton, and accepted the package. Am . Com pl. ¶ 21; Schowengerdt Decl. Ex. L at 250 . Rahm an was inside Apartm ent 6D at the tim e of the delivery. Id. at 249-50 . Approxim ately three m inutes after Capt. Fulton m ade the delivery, a m an nam ed Castillo exited a nearby apartm ent an d entered Apartm ent 6D. Schowengerdt Decl. Ex. L at 249. Shortly after Castillo entered the apartm ent, Rahm an left the apartm ent carrying the box of m arihuana, ran up to the seventh floor landing near the roof, dropped the box, and then returned to the sixth floor. Id. at 250 , 262. Police did not see 2 Rahm an carrying the box up the stairs but a security cam era, later obtained and viewed by police, recorded that event. Id. 261-262; Schowengerdt Decl. Ex. I (Crim inal Com plaint for docket # 20 0 8KN0 37814). Police did, however, see Rahm an return to the apartm ent and Mr. Castillo then exited the apartm ent. The two m en were intercepted by Detective Gary Gillespie (“Det. Gillespie’) com ing up the staircase from the fifth floor. Schowengerdt Decl. Ex. L at 250 -51, 261. With firearm drawn, Det. Gillespie arrested Rahm an and ordered him to lie down on the ground. Am . Com pl. ¶ 22; Schowengerdt Decl. Ex. L at 251, 261-63. Tight handcuffs were placed on Rahm an, causing “num bness and m arks to his wrists.” Id. ¶¶ 30 , 32. Det. Gillespie and other officers entered the apartm ent, where they encountered a num ber of occupants who they placed under arrest. Am . Com pl. ¶ 26. They searched the entire apartm ent, seizing drug paraphernalia. Id. ¶ 28. The package of m arihuana was later recovered where Rahm an left it. Schowengerdt Decl. Ex I. At approxim ately 1:30 p.m ., Officer Goodwin arrived at the apartm ent with the search warrant. Am . Com pl. ¶ 29. Rahm an was brought to the 71st Precinct, where he was processed, and then taken to Brooklyn Central Booking where he was charged with crim inal possession of m arihuana in the first, second, third, fourth, and fifth degrees, and unlawful possession of m arihuana. Id. ¶¶ 35-38; Schowengerdt Decl. Ex I. A grand jury indicted Rahm an on J uly 19, 20 0 8. Am . Com pl. ¶ 39; Schowengerdt Decl. Ex. K (Grand J ury Indictm ent No. 5111/ 20 0 8). Rahm an was tried in the state court and acquitted on J une 30 , 20 0 9. Am . Com pl. ¶ 45; see People of the State of New York v. Rahm an Lugm an, No. 5111-20 0 8 (N.Y. J une 29, 20 0 9). 3 D ISCU SSION I. Sta n d ard o f Re vie w Before it can determ in e the appropriate standard of review to be applied to the defendants’ m otion, the Court m ust decide whether to treat it as on e for judgm ent on the pleadings pursuant to Rule 12(c) or a m otion for sum m ary judgm ent pursuant to Rule 56 of the Federal Rules of Civil Procedure. If, on a m otion for judgm ent on the pleadings, “m atters outside the pleadings are presented to and not excluded by the court, the m otion m ust be treated as one for sum m ary judgm ent under Rule 56.” Fed.R. Civ. P. 12(d). As indicated by the word ‘m ust,’ “the conversion of a Rule [12(c)] m otion into one for sum m ary judgm ent under Rule 56 when the court considers m atters outside the pleadings is ‘strictly enforce[d]’ and ‘m andatory.’” Global Network Com m c’ns, Inc. v. City of New York, 458 F.3d 150 , 155 (2d Cir. 20 0 6) (quoting Am aker v. Weiner, 179 F.3d 48 , 50 (2d Cir. 1999); Goldm an v. Belden, 754 F.2d 10 59, 10 66 (2d Cir. 1985)). Plaintiff, taking note of the fact that the docum ents attached in support of defendants’ m otion are not attached as exhibits to the Am ended Com plaint, argues they “have erroneously subm itted a m otion for sum m ary judgm ent in the guise of a m otion to dism iss on the pleadings.” Pl.’s Mem . at 10 . Plaintiff urges the Court to deny the m otion as prem ature because he has not yet had an opportunity to com plete discovery. Defendants assert that he is wrong. In deciding a m otion for judgm ent on the pleadings, the court considers “the com plaint, the answer, any written docum ents attached to them , an d any m atter of which the court can take judicial notice for the factual background of the case.” Roberts v. Babkiewicz, 582 F.3d 418, 419 (2d Cir. 20 0 9). “A com plaint is deem ed to include any 4 written instrum ent attached to it as an exhibit, m aterials incorporated in it by referen ce, and docum ents that, although not incorporated by referen ce, are ‘integral’ to the com plaint.” Sira v. Morton, 38 0 F.3d 57, 67 (2d Cir. 20 0 4) (citations om itted) (quoting Cham bers v. Tim e Warner, Inc., 282 F.3d 147, 153 (2d Cir. 20 0 2)). The court m ay also look to public records for lim ited purposes. Roth v. J ennings, 489 F.3d 499, 50 9 (2d Cir. 20 0 7) (“If the court takes judicial notice, it does so in order to determ ine what statem ents they contained . . . not for the truth of the m atters asserted.”). In this case, the Court need not convert the defendants’ m otion to one for sum m ary judgm ent. All the facts recounted previously or set forth below that are not alleged in the Am ended Com plaint are undisputed and drawn from m aterials of which both parties had notice. See Cham bers, 282 F.3d at 153 (“[G]enerally, the harm to the plaintiff when a court considers m aterial extraneous to a com plaint is the lack of notice that the m aterial m ay be considered.”). Defendants have subm itted a num ber of public records from plaintiff’s crim in al file as exhibits. See Schowengerdt Decl. Ex. G, H, I, J , & K. The search warrant, crim inal com plaint, and indictm ent are clearly appropriate for consideration in deciding a Rule 12(c) m otion because plaintiff had possession of these docum ents, incorporated them by referen ce in the Com plaint, and their authenticity is not in question. See Am . Com pl. ¶¶ 19, 29 (Warrant); ¶ 38 (Crim inal Com plaint); ¶ 39 (Indictm ent). Defendants also subm itted transcripts from plaintiff’s trial, consisting of the sworn testim ony of Capt. Fulton and plaintiff, who testified in his own defense. See Schowengerdt Decl. Ex. F & L. Am ong other things, plaintiff’s testim ony provided an account of his actions between the tim e that the police delivered m arihuana to the 5 apartm ent and the tim e police arrested him . For the reasons discussed below, this testim ony leads inescapably to the conclusion that police had probable cause to arrest, search, an d cause plain tiff to be indicted. This testim ony is directly relevant to the Com plaint’s allegations and plaintiff was plainly aware of his prior testim ony when drafting the Am ended Com plaint. Notably, plaintiff has not disavowed his prior testim ony nor has he offered a contradictory set of facts. Plaintiff argues that this testim ony m ay not be considered without converting the m otion into one for sum m ary judgm ent. He is wrong. His testim ony is adm issible as party adm issions m ade in public records whose authenticity is not in dispute. See, e.g., Munno v. Town of Orangetown, 391 F. Supp. 2d 263, 269 (S.D.N.Y. 20 0 5) (taking judicial notice, without converting m otion to one for summ ary judgm ent, of plaintiff’s affidavits and pleadings in a related state court action where the docum ents contradicted the factual allegations contained in the com plaint); Harris v. New York State Dep’t of Health, 20 2 F. Supp. 2d 143, 173 (S.D.N.Y. 20 0 2) (“[T]he Court m ay take judicial notice of adm issions in pleadings and other docum ents in the public record filed by a party in other judicial proceedings that contradict the party’s factual assertions in a subsequent action.”); 5-Star Mgm t., Inc. v. Rogers, 940 F. Supp. 512, 518 (E.D.N.Y. 1996) (taking judicial notice, without converting m otion to one for sum m ary judgm ent, of plaintiff’s adm ission during testim ony in another proceeding). The plain purpose of the exception is to “prevent[ ] plaintiffs from generating com plaints invulnerable to Rule 12(b)(6) sim ply by clever drafting.” Global Network Com m ’ns, Inc. v. City of New York, 458 F.3d 150 , 157 (2d Cir. 20 0 6); see also Cortec Indus., Inc. v. Sum Holding, L.P., 949 F. 2d 42, 44 (2d Cir. 1991). 6 In 5-Star Managem ent, the court observed that judicial notice generally does not extend to the truth of the m atter asserted in public records. 940 F. Supp. at 519. However, the court found exceptional circum stances perm itted it to consider the plaintiff’s prior testim ony in state court for its truth because the plain tiff m ade a critical adm ission that bore substantially upon the legal sufficiency of the com plaint and the plaintiff, despite an opportunity to respond, had not contested the defendants’ factual characterization of those adm issions. That observation is plainly applicable here an d the Court m ay consider plaintiff’s testim ony in the prior state court proceedings in deciding this m otion. However, the testim on y of Capt. Fulton does not fall within that narrow exception and, along with the report prepared by Detective Charles Fico, Schowengerdt Decl. Ex. D, and the m em o book prepared by Officer Goodwin, id. Ex. E, it is excluded as inappropriate for consideration on a 12(c) m otion. A. Rule 12(c) Federal Rule of Civil Procedure 12(c) provides, in pertinent part, that “[a]fter the pleadings are closed—but early enough not to delay trial—a party m ay m ove for judgm ent on the pleadings.” Fed. R. Civ. P. 12(c). “The standard for granting a Rule 12(c) m otion for judgment on the pleadings is identical to that of a Rule 12(b)(6) m otion for failure to state a claim .” Patel v. Contem porary Classics of Beverly Hills, 259 F.3d 123, 126 (2d Cir. 20 0 1). At the outset, it m ust be noted that a com plaint m ust allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twom bly, 550 U.S. 544, 570 (20 0 7). “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 m isconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S. 7 Ct. 1937, 1949, 173 L. Ed. 2d 868 (20 0 9). “While a com plaint . . . does not need detailed factual allegations, a plaintiff’s obligation to provide the grounds of his entitlem ent to relief requires m ore than labels and conclusions, and a form ulaic recitation of the elem ents of a cause of action will not do.” Twom bly, 550 U.S. at 555 (alteration, citations, and internal quotation m arks om itted). Instead, “[f]actual allegations m ust be enough to raise a right to relief above the speculative level.” Id. “[W]here the wellpleaded facts do not perm it the court to infer m ore than the m ere possibility of m isconduct, the com plaint has alleged—but it has not ‘show[n]’—‘that the pleader is entitled to relief.’” Iqbal, 129 S. Ct. at 1950 (200 9) (second alteration in original) (quoting Fed. R. Civ. P. 8 (a)(2)). The Court accepts as true all factual allegations contained in the Am ended Com plaint and draws all reasonable inferen ces in the plaintiff’s favor. Ziem ba v. Wezner, 366 F.3d 161, 163 (2d Cir. 20 0 4). J udgm ent on the pleadin gs “is appropriate where m aterial facts are undisputed and where a judgm ent on the m erits is possible m erely by considering the contents of the pleadings.” Sellers v. M.C. Floor Crafters Inc., 8 42 F.2d 639, 642 (2d Cir. 1988). II. Th e Civil Righ ts Act Section 1983 governs civil rights actions against a person acting under color of state law who “subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or im m unities secured by the Constitution and laws of the United States.” See Patterson v. Cnty. of Oneida, 375 F.3d 20 6, 225 (2d Cir. 20 0 4). “The statute itself is not a source of substantive rights but m erely provides ‘a m ethod for vindicating federal rights 8 elsewhere conferred.’” Fowlkes v. Rodriguez, 584 F. Supp. 2d 561, 572 (E.D.N.Y. 20 0 8) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3, 99 S. Ct. 2689, 61 L. Ed. 2d 433 (1979)). Here, plaintiff claim s a violation of his First, Fourth, Fifth, Sixth, and Fourteenth Am endm ent rights. New York law provides the elem ents of the relevant causes of action. See, e.g., Singer v. Fulton Cnty. Sheriff, 63 F.3d 110 , 118 (2d Cir. 1995) (false arrest); Cook v. Sheldon, 41 F.3d 73, 8 0 (2d Cir. 1994) (m alicious prosecution); Hum phrey v. Landers, 344 F. App’x 686, 688 (2d Cir. 20 0 9) (excessive force). A. Firs t Claim : Fals e Arre s t an d U n law fu l Se arch 1. False Arrest Plaintiff alleges that the individual defendants violated his Fourth Am endm ent rights because they arrested him without probable cause. Under New York law, the elem ents of a false arrest claim are “(1) the defendant intended to confine [the plaintiff], (2) the plaintiff was conscious of the confinem ent, (3) the plaintiff did not consent to the confinem ent and (4) the confinem ent was not otherwise privileged.” Singer, 63 F.3d at 118. Only the fourth elem ent, which em braces probable cause, is in dispute. The existence of probable cause to arrest “‘is a com plete defense to an action for false arrest,’ whether that action is brought under state law or under Section 1983.” Weyant v. Okst, 10 1 F.3d 845, 852 (2d Cir. 1996) (citing Broughton v. State, 37 N.Y.2d 451, 458 , 373 N.Y.S.2d 87, 335 N.E.2d 310 (1975). Probable cause is “a fluid concept . . . not readily, or even usefully, reduced to a neat set of legal rules.” Illinois v. Gates, 462 U.S. 213, 232, 10 3 S. Ct. 2317 (1983). It exists, “when the officers have knowledge of, or reasonably trustworthy inform ation as to, facts and circum stances that are sufficient to warrant a person of reasonable caution in the belief that an offense has been or is being 9 com m itted by the person to be arrested.” Manganiello v. City of New York, 612 F.3d 149, 161 (2d Cir. 20 10 ). What is required is a “probability or substantial chance of crim in al activity, not an actual showing of such activity.” United States v. Valentine, 539 F.3d 8 8 , 94 (2d cir. 20 0 8) (citation om itted). In weighing whether officers had probable cause, the Court considers the totality of the circum stances, Gates, 462 U.S. at 233, and m akes an objective rather than subjective inquiry as to “the reasonable conclusion to be drawn from the facts known to the arresting officer at the tim e of arrest.” Devenpeck v. Alford, 543 U.S. 146, 152-53, 125 S. Ct. 588, 160 L. Ed. 2d 537 (20 0 4). Where there is m ore than one officer cooperating in the investigation, the knowledge of each officer is presum ed to be shared by all. See Celestin v. City of New York, 581 F. Supp. 2d 420 ,430 (E.D.N.Y. 20 0 8 ). The fact that the officers are later shown to be m istaken, or that the defendant is ultim ately acquitted, does not alter the analysis. DeFillippo, 443 U.S. at 35 (“The validity of the arrest does not depend on whether the suspect actually com m itted a crim e; the m ere fact that the suspect is later acquitted of the offense for which he is arrested is irrelevant to the validity of the arrest.”) Probable cause m ay be determ in able as a m atter of law if there is no dispute as to the pertinent events and the knowledge of the officers. Walczyk v. Rio, 496 F.3d 139, 157 (2d Cir. 20 0 7); Weyant, 10 1 F.3d at 852. Taking all of these factors into account, the Court finds that the officers had probable cause to arrest plaintiff. Plaintiff alleges he was arrested as soon as the defendant police officers entered the apartm ent. See Am . Com pl. ¶ 25 (“Once the individual defendants entered the apartm ent, plaintiff was not free to disregard their questions, or walk way [sic] or leave the scene.”). It is undisputed that at the tim e of the 10 arrest, officers knew that ten to fifteen pounds of m arihuana had been shipped from Arizona to the apartm ent. The quantity of drugs was consistent with distribution, not personal use, an d it was reasonable for officers to believe that the occupants of the apartm ent were engaged in illegal drug trafficking. It was also reasonable to believe that anyone entering or exiting the prem ises after the drugs were delivered would be engaged in drug activity and that, following delivery, the drugs m ight be m oved out of the apartm ent. The reasonableness of this conclusion is evidenced by the issuance of a warrant to search the apartm ent for evidence of drug trafficking and “any other person found in [Apartm ent 6D] or seen exiting, entering, or attem pting to enter or exit the above prem ises.” Schowengerdt Decl. Ex. H. 1 Capt. Fulton delivered the drugs to the apartm ent where a m an identified him self as the addressee, signed for the package, and took it into the apartm ent. From this, officers could properly conclude that the address was not an error and the occupants of the apartm ent were engaged in drug trafficking. Alm ost im m ediately after the delivery of the drugs, police witnessed plaintiff entering the apartm ent as Mr. Castillo was exiting. For the above reasons, based on the undisputed facts an d drawing all inferences in favor of the plaintiff, the Court finds that plaintiff’s arrest was supported by probable cause and his false arrest claim therefore m ust be dism issed. 2. Illegal Search & Seizure Plaintiff alleges that officers also violated his Fourth Am endm ent rights by engaging in an illegal search. See Am . Com pl. ¶¶ 64-65. The Am ended Com plaint does 1 Police applied for a search warrant at 12:15, but the parties dispute whether the search warrant had been issued at the tim e police officers arrested plaintiff and entered the apartm ent. See Am . Com pl. ¶ 27. The Court notes the issuance of the arrest warrant only to show that a n eutral m agistrate found probable cause existed to search individuals in or enterin g the apartm ent, based solely on the evidence of large quantities of m arihuana in a package addressed to Apartm ent 6D. 11 not specify whether plaintiff challenges the search of his person or the search of Apartm ent 6D but, in either case, plaintiff’s claim fails as a m atter of law. Police were perm itted to search plaintiff following his arrest. Under the Fourth and Fourteenth Am endm ents, an arresting officer m ay, without a warrant, search a person validly arrested. United States v. Robinson, 414 U.S. 218, 94 S. Ct. 467, 38 L. Ed. 2d 427 (1973); Gustafson v. Florida, 414 U.S. 260 , 94 S. Ct. 488, 38 L. Ed. 2d 456 (1973). The constitutionality of a search in cident to an arrest does not depend on whether there is any indication that the person arrested possesses weapons or evidence. The fact of a lawful arrest, standing alone, authorizes a search. Robinson, 414 U.S. at 235. Because the Court finds officers had probable cause to arrest him , the search of plaintiff was also lawful. Regarding officers’ search of the prem ises, plaintiff lacks standing to challenge this search. The Fourth Am endm ent protects only those people who have a “legitim ate expectation of privacy in the invaded space.” Rakas v. Illinois, 439 U.S. 128, 142, 99 S. Ct. 421, 58 L. Ed. 2d 387 (1978). Plaintiff was “a guest invited to stay at the apartm ent by the tenants” and “not a resident in the apartm ent.” Am . Com pl. ¶¶ 23-24. Although guests can have legitim ate expectations of privacy under certain circum stances, plaintiff has not pled any facts that would validate such expectations. See United States v. Cody, 434 F. Supp. 2d 157, 165 (S.D.N.Y. 20 0 6) (reviewing the Suprem e Court’s decisions regarding guests’ legitim ate expectations of privacy and concluding, “Overnight guests in a person’s hom e share in their hosts’ expectation of privacy. Mere invitees do not.”). Consequently, plaintiff fails to state a claim for unlawful search an d seizure an d this claim m ust be dism issed. 12 B. Se co n d Claim : Exce s s ive Fo rce Plaintiff alleges “[d]uring the arrest of plaintiff, the individual defen dants used excessive force against him , by m aliciously, gratuitously, and unnecessarily pointing a firearm at him , grabbing plaintiff, and placin g excessively tight handcuffs on plaintiff’s wrists.” Com pl. ¶ 30 . Plaintiff alleges he “was physically injured as a result of the excessive use of force, and suffered num bness and m arks to his wrists.” Com pl. ¶ 33. “Where, as here, the excessive force claim arises in the context of an arrest or investigatory stop of a free citizen, it is m ost properly characterized as one invoking the protections of the Fourth Am endm ent, which guarantees citizens the right ‘to be secure in their persons . . . against unreasonable . . . seizures’ of the person.” Graham v. Connor, 490 U.S. 386, 394, 10 9 S. Ct. 1865, 10 4 L. Ed. 2d 443 (1989). The Fourth Am endm ent standard is purely objective: “the question is whether the officers’ actions are ‘objectively reasonable’ in light of the facts and circum stances confronting them , without regard to their underlying intent or m otivation.” Id. at 397. This standard “requires careful attention to the facts and circum stances of each particular case, including the severity of the crim e at issue, whether the suspect poses an im m ediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attem pting to evade arrest by flight.” Id. at 396. Because the standard is objective reasonablen ess, “[n]ot every push or shove, even if it m ay later seem unnecessary in the peace of a judge’s cham bers violates the Fourth Am endm ent,” id. at 396 (quoting J ohnson v. Glick, 481 F.2d 10 28, 10 33 (2d Cir. 1973)), and “[n]ot every infliction of pain reaches the infliction of a constitutional violation,” Esm ont v. City of New York, 371 F. Supp. 2d 20 2, 214 (E.D.N.Y. 20 0 5). 13 It is well established that the right to m ake an arrest accom panies with it the right to use som e degree of physical coercion. Graham , 490 U.S. at 396. This frequently involves handcuffing the suspect and “to be effective, handcuffs m ust be tight enough to prevent the arestee’s hands from slipping out.” Esm ont, 371 F. Supp. 2d at 214. Therefore, “[t]here is a consensus am ong courts in this circuit that tight handcuffing does not constitute excessive force unless it causes som e injury beyond tem porary discom fort.” Lynch ex rel. Lynch v. City of Mount Vernon, 567 F. Supp. 2d 459, 468 (S.D.N.Y. 20 0 8) (citing cases); accord Schy v. Verm ont, 2 F. App’x 10 1, 10 1– 0 2 (2d Cir. 20 0 1) (painful handcuffing for two-hour period does not violate Constitution); Arnold v. Westchester Cnty, No. 0 9 Civ. 3727 (J SR) (GWG), 20 12 WL 336129, at *9 (S.D.N.Y. Feb. 3, 20 12) (dism issing prisoner’s claim where officer twisted plaintiff’s handcuffs and pulled him down a hallway, causing tem porary pain and num bness); Wang v. Vahldieck, No. 0 9 Civ. 378 3 (ARR) (VVP), 20 12 WL 92423, at *7 (E.D.N.Y. J an. 9, 20 12) (dism issing excessive force claim of a plaintiff who was “shrieking in pain” from tight handcuffs but where there was “no evidence that the tight handcuffing caused any actual physical injury”); Davis v. Fischer, No. 0 9 Civ. 60 84 (CJ S), 20 12 WL 17740 0 , at *10 (W.D.N.Y. J an. 20 , 20 12) (dism issing excessive force claim that tight handcuffing caused num bness to the plaintiff’s hands); Bender v. City of New York, No. 0 9 Civ. 328 6 (BSJ ), 20 11 WL 434420 3, at *6 (S.D.N.Y. Sept. 14, 20 11) (“extrem ely tight” handcuffing for alm ost fourteen hours that left indentations in the plaintiff's forearm s for m ore than six hours after rem oval is not excessive force); Barratt v. J oie, No. 96 Civ. 0 324 (LTS), 20 0 2 WL 3350 14, at *7-8 (S.D.N.Y. Mar. 4, 20 0 2) (dism issing plaintiff’s excessive force claim s that included allegations of num bness and bruising to his wrists from tight handcuffs). 14 The injuries suffered by plaintiff are not com parable to those suffered in any of the cases cited by plaintiff in support of his claim . See Robinson v. Via, 8 21 F. 2d 913 (2d Cir. 1987) (officers allegedly threw plaintiff against a car, causing bruising lasting several weeks); Maxwell v. City of New York, 380 F. 3d 10 6 (2d Cir. 20 0 4) (officers allegedly threw plaintiff head-first into a car, striking her head against a solid partition and causing concussion sym ptom s); Davis v. City of New York, No. 0 4 Civ. 3299, 20 0 7 WL 755190 , at *2 (E.D.N.Y. Feb. 15, 20 0 7) (officers allegedly kicked plaintiff, a teenage girl, while she was handcuffed and lying on the floor); Breen v. Garrison, 169 F.3d 152 (2d Cir. 1999) (officer allegedly jum ped on plaintiff, yanked his head, pushed his face into a table, intentionally tightened handcuffs and spat in plaintiff’s face); Golio v. City of White Plains, 459 F. Supp. 2d 259 (S.D.N.Y. 20 0 6) (officer tightly handcuffed plaintiff for two hours until his hands were visibly swollen and red, allegedly causing perm anent nerve dam age to surgeon’s hand). In com parison, plaintiff’s alleged injuries are de m inim us and, without m ore, the use of tight-fitting handcuffs, alone, does not constitute excessive force. It is also reasonable for officers to draw their weapons when enterin g a residen ce they reasonably believe to be used for drug trafficking and reasonable for officers “to som etim es aim that weapon at an individual until an assessm ent can be m ade as to whether the individual poses a threat.” Anderson v. United States, 10 7 F. Supp. 2d 191, 199 (E.D.N.Y. 20 0 0 ); see also United States v. Gaskin, 364 F.3d 438 , 457 (2d Cir. 20 0 4) (“[T]his court has frequently observed [that] guns are tools of the narcotics trade, frequently carried by dealers”); Bolden v. Vill. of Monticello, 344 F. Supp. 2d 40 7, 419 (S.D.N.Y 20 0 4) (“[In] executing a search warrant for drugs . . . it is reasonable for police 15 officers to enter a residence with guns draw to secure the area and prevent harm to them selves or others.” (citing Speights v. City of New York, No. 98 Civ. 4635 (NG), 20 0 1 WL 79798 2 (E.D.N.Y. J une 18, 20 0 1))); Lynch, 567 F. Supp. 2d at 468 (“[O]fficers’ decision to draw their weapons while searching the Residence for guns, drugs and a drug dealer was objectively reasonable.” (citing Rincon v. City of New York, No. 0 3 Civ. 8 276 (LAP), 20 0 5 WL 6460 80 , at *5 (S.D.N.Y. Mar. 21, 20 0 5))). C. Th ird Claim : Firs t Am e n d m e n t Re taliatio n Plaintiff alleges defendants violated his first am endm ent rights. Plaintiff alleges he “exercised free speech during the incident by, am ong other things, peacefully telling the individual defendants that he had not com m itted a crim e, and that the officers were m istreating plaintiff.” Am . Com pl. ¶ 70 . This speech “was a m otivating factor in defendants’ decision to arrest, use force upon, and prosecute him .” Id. ¶ 71. In order to survive a m otion to dism iss, a claim of retaliation under Section 1983 “m ust be ‘supported by specific an d detailed factual allegations,’ not stated ‘in wholly conclusory term s.’” Friedl v. City of New York, 210 F.3d 79, 8 5-86 (2d Cir. 20 0 0 ) (quoting Flaherty v. Coughlin, 713 F.2d 10 , 13 (2d Cir. 1983)); accord Eberling v. Town of Tuxedo, No. 0 5 Civ. 2951 (CLB), 20 0 6 WL 278246, at *2 (S.D.N.Y. Feb. 3, 20 0 6). Plaintiff’s claim is entirely specious and there is nothing in the record to indicate plaintiff’s speech was a m otivating factor in his arrest an d prosecution. Plaintiff’s allegation is not only speculative but without m erit. As has been found, the officers had probable cause to arrest him . Where an officer had probable cause, the Court “will not exam ine the officer’s underlying m otive in arresting and charging the plaintiff.” Singer v. Fulton Co. Sheriff, 63 F.3d 110 , 120 (2d Cir. 1995) (citing Mozzochi v. Borden, 959 16 F.2d 1174, 1179 (2d Cir. 1992)); accord Curley, 268 F.3d at 73. For the above reasons, plaintiff’s third claim m ust also be dism issed. D . Malicio u s Pro s e cu tio n As a prelim inary m atter, defendants argue plaintiff has abandoned any claim for m alicious prosecution. Plaintiff’s original Com plaint specifically alleged claim s for m alicious prosecution pursuant to state and federal law. See Com plaint dated J une 17, 20 10 , ¶¶ 63-67 (“Fourth Claim : Malicious Prosecution Under Federal Law”); ¶¶ 68-71 (“Fifth Claim : Malicious Prosecution Under State Law”). Defendants argue plaintiff has abandon ed these claim s because the Am ended Com plaint “does not contain the sam e enum erated claim s for m alicious prosecution found in the original com plaint.” Defs.’ Mem . at 20 . Although not num erically labeled along with the rest of plaintiff’s claim s, it is apparent from the factual allegations in the Am ended Com plaint that plaintiff has not abandon ed these claim s. See Am . Com pl. ¶ 1 (“[Defendants] subjected plaintiff to . . . m alicious prosecution . . . .”); ¶¶ 41-44 (pleading the four elem ents of a claim for m alicious prosecution). Nevertheless, plaintiff’s claim m ust be dism issed for the reasons stated below. To prevail on federal or state claim s of m alicious prosecution, the plaintiff m ust show: (1) the defendant initiated or continued a crim inal proceeding; (2) the proceeding term inated favorably to the plaintiff; (3) there was no probable cause for the crim inal charge; an d (4) the defendant acted m aliciously. Rothstein v. Carriere, 373 F.3d 275, 282 (2d Cir. 20 0 4); Savino v. City of New York, 331 F.3d 63, 72 (2d Cir. 20 0 3). Here, plaintiff fails to show there was no probable cause for the crim in al charge. In a m alicious prosecution case, “the relevant probable cause determ ination is whether there 17 was probable cause to believe the crim inal proceeding could succeed and, hence, should be com m en ced.” Davis v. City of New York, 373 F. Supp. 2d 322, 333 (S.D.N.Y. 20 0 5) (em phasis added) (internal quotation om itted); Murphy v. Lynn, 118 F.3d 938 (2d Cir. 1997) (noting that relevant probable cause for m alicious prosecution claim is probable cause “for com m en cin g the proceedings”). Plaintiff was indicted by a Grand J ury on J uly 19, 20 0 8. Am . Com pl. ¶ 39; Schowengerdt Decl. Ex. K. Prior to his crim inal trial, the State Suprem e Court conducted an in cam era review of the Grand J ury m inutes and, by a Mem orandum an d Order dated Decem ber 3, 20 0 8 , determ ined the evidence presented to the Grand J ury “legally sufficient to establish the offenses charged.” Schowengerdt Decl. Ex. J . The parties do not dispute that the indictm ent creates a presum ption of probable cause. Manganiello, 612 F.3d at 161; Colon, 60 N.Y.2d at 8 2 (“Once a suspect has been indicted . . . the law holds that the Grand J ury action creates a presum ption of probable cause.”); see also Costello v. United States, 350 U.S. 359, 363 (U.S. 1956) (“An indictm ent returned by a legally constituted and unbiased grand jury, like an inform ation drawn by the prosecutor, if valid on its face, is enough to call for trial of the charge on the m erits. The Fifth Am endm ent requires nothing m ore.”). That presum ption can only have been fortified by the Suprem e Court’s in cam era review. Where, as here, a m alicious prosecution claim is com m enced after a grand jury indictm ent, plaintiff can only overcom e that presum ption by showing “the indictm ent was procured by fraud, perjury, the suppression of evidence or other police conduct undertaken in bad faith.” Manganiello, 612 F.3d at 162; see also Colon, 60 N.Y.2d at 8 2-83. 18 Plaintiff alleges the defendant officers “pursuant to a conspiracy, falsely and m aliciously told the Kings County District Attorney’s Office that plaintiff has com m itted various crim es.” Am . Com pl. ¶ 38. Plaintiff also alleges that Officer Goodwin provided false testim ony before the Grand J ury. Am . Com pl. ¶ 39. Plaintiff does not specify in his Am en ded Com plaint what those false statem ents were or even that he was not guilty of the crim es for which he was prosecuted. These conclusory an d generalized allegations are insufficient to overcom e the presum ption of probable cause created by the indictm ent. In addition, plaintiff’s own sworn testim ony dem onstrates his claim is without m erit. Plaintiff testified that after officers delivered the package of m arihuana, he exited Apartm ent 6D carrying the package, carried it up to the seventh floor, and threw it onto the landing by the roof. Plaintiff also testified that a surveillance video installed in the hallway accurately recorded his actions. See Schowengerdt Ex. L at 250 , 261-263. This is precisely the set of facts that Officer Goodwin provided in the Crim inal Com plaint that initiated plaintiff’s prosecution: Deponent [Officer Goodwin] observed, on video surveillance, defendant Rahm an exit the location with said package and that defendant Rahm an placed said package down on the ground in the staircase im m ediately next to the above m entioned apartm ent. The deponent further states that the deponent recovered said package from the stair case [sic] where deponent observed defendant Rahm an place said package and that said package contained a quantity of Marihuana that was in excess of ten pounds. Showengerdt Ex. I. “[I]t has long been recognized that, where there is no dispute as to what facts were relied on to dem onstrate probable cause, the existence of probable cause is a question of law for the court.” Walczyk , 496 F.3d at 157; see Weyant, 10 1 F.3d at 19 8 52 (2d Cir. 1996) (“The question of whether or not probable cause existed m ay be determ inable as a m atter of law if there is no dispute as to the pertinent events and the knowledge of the officers.”). Based on the undisputed facts, police and prosecutors had am ple reason to believe that plaintiff had com m itted the crim es with which he was charged and that the crim inal proceeding could succeed. Consequently, plaintiff does not allege “enough facts to state a claim to relief that is plausible on its face,” Twom bly, 550 U.S. at 547, an d defendants’ m otion is granted as to plaintiff’s m alicious prosecution claim . E. Fo u rth Claim : Failu re to Su p e rvis e Plaintiff alleges the supervisor defen dants are liable to plaintiff because “they supervised subordinate individual defen dants concerning above-m entioned unlawful acts against plaintiff, and approved their unlawful acts.” Am . Com pl. ¶ 73. Because the Court has dism issed plaintiff’s prior claim s against the individual defendants, finding no unlawful acts were com m itted, plaintiff’s claim for failure to supervise m ust also be dism issed. F. Fifth Claim : D e n ial o f Righ t to Fair Tria l Plaintiff alleges defendants “created false inform ation likely to influence a jury’s decision and forwarded that inform ation to prosecutors, violating plaintiff’s constitutional right to a fair trial.” Am . Com pl. ¶ 75. “When a police officer creates false inform ation likely to influence a jury’s decision and forwards that inform ation to prosecutors, he violates the accused’s constitutional right to a fair trial, and the harm occasioned by such an unconscionable action is redressable in an action for dam ages under 42 U.S.C. § 1983.” Ricciuti v. New York City Transit Auth., 124 F. 3d 123, 130 (2d 20 Cir. 1997) (citations om itted); see also J ocks v. Tavernier, 316 F.3d 128, 138 (2d Cir. 20 0 3) (holding that fabrication of evidence by police is actionable under § 1983). Defendants argue the claim m ust be dism issed because “even if a plaintiff is able to show that the false inform ation . . . was likely to influence the jury, where a plaintiff has been acquitted of the crim inal charges . . . there can be no constitutional violation of a right to a fair trial.” Defs.’ Mem . at 28-29. The cases cited by defendants in support of this argum ent have either been acknowledged as erroneously decided, see Morse v. Spitzer, No. 7 Civ. 4793 (CBA) (RML), 20 11 WL 4625996 (E.D.N.Y. Sept. 30 , 20 11) (noting the m agistrate judge erred and plaintiff’s acquittal did not defeat his fair trial claim under Second Circuit law), are from other circuits and not controlling, see Morgan v. Gertz, 116 F.3d 130 7, 1310 (10 th Cir. 1999), or did not dism iss the claim on the basis of the acquittal alone, see Coakley v. 42nd Pct. Case 458, No. 0 8 Civ. 620 6 (J SR), 20 0 9 WL 30 95529 (S.D.N.Y. Aug. 21, 20 0 9). The Court’s own review of the issue indicates that an acquittal does not extinguish a fair trial claim grounded on allegations police or prosecutors knowingly presented false statem ents or false evidence. See Morse, 20 11 WL 4625996, at *2 (Acquittal does not defeat a fair trial claim where police officers allegedly fabricated eviden ce); J ohnson v. City of New York, No. 0 6 Civ. 630 (KAM) (ALC), 20 10 WL 27718 34, at*11 (E.D.N.Y. J uly 13, 20 10 ) (Acquittal does not extinguish a fair trial claim where police officers allegedly gave false testim ony); Zahrey v. City of New York, No. 98 Civ. 4546 (DCP) (J CF), 20 0 9 WL 10 24261, at *8 n.15 (S.D.N.Y. Apr. 15, 20 0 9) (“In this Circuit, such a Section 1983 action for violation of the right to ‘fair trial’ [grounded on false eviden ce] would apparently lie even if a crim inal defendant’s charges were 21 dism issed prior to trial.” (citation om itted)); Douglas v. City of New York, 595 F. Supp. 333, 346 n.6 (S.D.N.Y. 20 0 9) (“Nor is a conviction required to bring a § 1983 claim for violation of the right to a fair trial.”); Baez v. J etBlue Airways, No. 0 9 Civ. 596 (CPS) (SMG), 20 0 9 WL 2447990 , at *8 (E.D.N.Y. Aug. 3, 20 0 9) (“A plaintiff need not show that she was convicted or that a trial took place” in order to bring a § 1983 claim for violation of the right to a fair trial.); Henry v. City of New York, No. 0 2 Civ. 48 24 (J SM), 20 0 3 WL 220 77469, at *4 (S.D.N.Y. Sept. 5, 20 0 3) (rejecting defendants’ argum ent that acquittal extinguished plaintiff’s violation of fair trial claim grounded on officers’ fabrication of evidence). 2 Nevertheless, the Court dism isses plaintiff’s claim because he has presented only the m ost conclusory an d generalized allegations, failing to specify in what way the statem ents, inform ation, or testim ony were false or even in what m aterial respect the charges against him were false. See, e.g., Am . Com pl. ¶ 38 (Officers “falsely and m aliciously told the Kings County District Attorney’s Office that plaintiff had com m itted various crim es.”); ¶ 39 (Officer Goodwin “falsely and m aliciously told the grand jury that plaintiff had com m itted various crim es.”); ¶ 40 (Officers “provided false statem ents and inform ation to cause plaintiff to be prosecuted.”). His Am ended Com plaint sim ply recites the elem ents of the claim and is the sam e ipse dixit. See, e.g., Ricciuti, 124 F. 3d at 130 (the right to a fair trial is violated when an officer “creates false inform ation likely to influence a jury’s decision and forwards that inform ation to prosecutors.”). As the Suprem e Court m ade clear in Twom bly, “a plaintiff’s obligation to provide the grounds 2 The Court notes that acquittal m ay extinguish a fair trial claim grounded on other form s of m isconduct. See Am brose v. City of New York, 623 F. Supp. 2d 454, 470 (S.D.N.Y. 20 0 9) (Acquittal extinguishes fair trial claim based on failure to disclose exculpatory Brady m aterial.); Schiavone Const. Co. v. Merola, 679 F. Supp. 64, 66 (S.D.N.Y. 198 8) (Acquittal extin guishes fair trial claim based on prejudicial pretrial publicity because acquittal dem onstrates jurors were im partial). 22 of his entitlem ent to relief requires m ore than labels and conclusions, and a form ulaic recitation of the elem ents of a cause of action will not do.” Twom bly, 550 U.S. at 555 (alteration, citations, and internal quotation m arks om itted). For the above reasons, plaintiff’s fifth claim m ust also be dism issed. G. Co n s p iracy an d Mu n icip al Liability Plaintiff alleges defendants engaged in a conspiracy to violate his constitutional rights, pursuant to 42 U.S.C. § 1983 and 42 U.S.C. § 1985. See Am . Com pl. ¶¶ 77, 79. Plaintiff also seeks to hold the City of New York liable for the conduct of its em ployees, pursuant to Monell v. Departm ent of Social Services of the City of New York, 436 U.S. 658 , 691, 98 S. Ct. 20 18, 56 L. Ed. 2d 611 (1978). See Am . Com pl. ¶ 81. These rem aining federal claim s are predicated on the individual defendants’ violation of plaintiff’s constitutional rights. See, e.g., Pangburn v. Culbertson, 20 0 F.3d 65, 72 (2d Cir. 1999) (An action for conspiracy requires a plaintiff to show, am ong other things, an overt act taken to inflict an unconstitutional injury); Nagle v. Marron, 663 F.3d 10 0 , 116 (2d Cir. 20 11) (Monell violation requires there was a violation of plaintiff’s rights). Because plaintiff has failed to establish any violation of his constitutional rights, these claim s also fail and defendants’ m otion is granted as to plaintiff’s sixth, seventh, and eighth claim . H . Sta te Law Claim s The Court m ay decline to exercise supplem ental jurisdiction over any and all state law claim s of a com plaint if the Court has “dism issed all claim s over which it has original jurisdiction.” 28 U.S.C. § 1367(c). “It is well settled that where, as here, the federal claim s are elim inated in the early stages of litigation, courts should generally 23 declin e to exercise pen dent jurisdiction over rem ain ing state law claim s.” Klein & Co. Futures, Inc. v. Bd. of Trade, 464 F.3d 255, 262 (2d Cir. 20 0 6). Plaintiff’s state law claim s are therefore dism issed without prejudice in order to allow plaintiff to pursue his state law claim s in state court if he so chooses. See Cave v. East Meadow Union Free Sch. Dist., 514 F.3d 240 , 250 (2d Cir. 20 0 8). CON CLU SION For the foregoing reasons, Plaintiff has failed to state a claim as a m atter of law and defendants’ m otion for judgm ent on the pleadings is granted. Plaintiff’s federal claim s are dism issed with prejudice and the Court declines to exercise supplem ental jurisdiction over the state law claim s. The Clerk of Court is respectfully directed to close this case. SO ORD ERED . Dated: Brooklyn, New York March 27, 20 12 _ _ / s/ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ I. Leo Glasser United States District J udge 24
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