Guerrero v. The City of New York et al, No. 1:2012cv02916 - Document 13 (S.D.N.Y. 2013)
Court Description: OPINION: re: 6 MOTION to Dismiss. filed by The City of New York. Based upon the conclusions set forth above, the City's motion to dismiss is granted and the AC is dismissed with leave to replead within twenty days. (Signed by Judge Robert W. Sweet on 2/21/2013) (djc)
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK -x RICHARD GUERRERO, Plaintiff, 12 Civ. 2916 OPINION -against CITY OF NEW YORK and DOES 1 10, Defendants. ----------x A P PEA RAN C E S: LAW OFFICE OF JOHN M. LAMBROS The Trump Building 40 Wall Street, Suite 2809 New York, NY 10005 By: John M. Lambros, Esq. Attorneys for Defendant MICHAEL A. CARDOZO CORPORATION COUNSEL OF THE CITY OF NEW YORK 100 Church Street New York, NY 10007 By: Uriel Abt, Esq. Sweet, D.J. The defendant City of New York ("City" or "Defendant") has moved to dismiss the Amended Complaint ("AC") of plaintiff Richard Guerrero ("Guerrero" or "Plaintiff") pursuant to Fed. R. Civ. P. 12 (b) (6) below, ("12 (b) (6)") City's motion is Upon the conclusions set forth ed and the AC is dismissed with leave granted to replead within twenty days. Prior Proceedings On April 4, 2012, Guerrero filed instant lawsuit against the City of New York alleging various state and federal claims 2010. sing out of an arrest that occurred on December 10, On July 23, 2012, Guerrero filed As alleged AC. the AC, on December 10, 2010, Guerrero was involved in an altercation at a night club. AC ~ 9. The other individuals involved in the altercation threatened to call police, and subsequently did so. and arrested Guerrero (referred to rd. The police arrived inafter as the" rst Arrest") . rd. After about a year, the criminal charges against Guerrero stemming from the First Arrest were dismissed. rd. On July 25, 2011, Guerrero was arrested by two plainclothes police officers as he was leaving Queens Court, where he had appeared in an unrelated matter (referred to hereinafter as the "Second Arrest" and, collectively with the First Arrest, the "Arrests"). rd. ~ 11. One of the arresting officers informed Guerrero that his arrest was due to a complaint made by an N.Y.P.D. traffic agent, who accused Guerrero and two other individuals of assaulting him or her at 5:30 A.M. on July 22, 2011. in the hospital at that time. rd. Guerrero contends that he was rd. The criminal charges against Guerrero stemming from the Second Arrest were eventually dismissed. rd. The Rule 12(b) (6) Standard On a motion to dismiss pursuant to Rule 12 (b) (6), all factual allegations in the complaint are accepted as true, and all inferences are drawn in favor of the pleader. Polar Molecular Corp., 12 F.3d 1170, 1174 Mills v. (2d Cir. 1993). "The issue is not whether a plaintiff will ultimately prevail but 2 whether the claimant is entitled to the claims." fer evidence to support County of Suffolk, New York v. First Am. Real Estate Solutions, 261 F.3d 179, 187 (2d Cir. 2001) ViI Inc. v. Town (quoting Darien, 56 F.3d 375, 378 (2d Cir. ----~~------~------------------------- 1995), cert. denied, 519 U.S. 808 (1996)). To survive a motion to dismiss pursuant to Rule 12(b) (6), "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. , 556 U.S. 662 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2009) (2007)). s is not intended to be an onerous burden, as plaintiffs need allege facts suffic order to "nudge[] their claims across the line from conceivable to plausible." Twombly, 550 U.S. at 570. Guerrero's § 1983 Claim Is Dismissed Guerrero asserts a claim under 42 U.S.C. § 1983 1983") against ("§ City based upon alleged constitutional violations committed by the police officers who were involved with the Arrests. However, Guerrero has failed to allege a 3 the City's liability under § 1983, and has viable basis likewise failed to allege any underlying constitutional violations. against the Accordingly, Guerrero fails to state a § 1983 claim ty. A. Guerrero Fails to Allege Facts Providing a Monell Li lity e Basis for A municipality can only be held liable under 42 U.S.C. § 1983 Servs" manner set It of Soc. in Monell v. 436 U.S. 658 (1978), and its progeny, and may not be held liable under § 1983 on a theory of t superior. v. Marron, 663 F.3d 100, 116 (2d Cir. 2011). In order to muni ity, a plaintiff must show that caused the alleged const v. est I on a § 1983 claim against a municipality it ional deprivation. s, 489 U.S. 378, 385 (1989). Ci f of Canton --~~---------- Guerrero must there ish that an identified municipal policy or practice was the "moving force [behind] the constitutional violation." Monell, 436 U.S. at 694. Monell claim, Accordingly, order to state a "[t]he plaintiff must first prove the a municipal policy or custom in order to show that the municipality took some action that caused his injuries 4 stence of Second, 'aff plaintiff must establish a casual connection-an ive link'-between the policy and deprivation of his constitutional rights." Vippolis v. Village of Haverstraw, 768 F.2d 40, 44 (2d Cir. 1985), cert. denied 480 U.S. 916 (1987) Oklahoma City v. Tuttle, 471 U.S. 808, 824 n.8 A municipal policy or custom for purposes (1985)). Monell liability can be established by alleging: (1) a formal policy officially by the municipality; (2) actions taken by government officials responsible establishing the municipal policies that caused the particular deprivation question; (3) a practice so consistent and widespread that it constitutes a custom or usage sufficient to impute constructive knowledge of the practice to icymaking officials; or (4) a failure by policymakers to train or supervise subordinates to such an extent that it amounts to deliberate indifference to the rights those who come into contact with the munic 1 employees. Bennerson v. City of New York, No. 03 Civ. 10182, 2004 WL 902166 7241, at *4 (S.D.N.Y. Apr. 28, 2004) omitted) . 5 (internal citations At the pleading stage, the "the mere assertion . that a municipality has such a custom or policy is insufficient in the absence of allegations of tending to support, at least circumstantially, such an inference." Southold, 48 F.2d 674, 685 (2d Cir. 1995) Ci i Zahra v. Town of see also Brodeur v. New York, No. 99 Civ. 651 (WHP) , 2002 WL 424688, at *6 (S.D.N.Y. Mar. 18, 2002) (dismissing complaint against City that "flatly asserts" the existence of a policy but contains no "factual allegations sufficient to establish that a munic 1 policy or custom cased [plaintiff] 's alleged ury"). while "[i]t is questionable whether the boil ate Monell claim often included in many § 1983 cases state a claim upon which reI Indeed, . was ever sufficient to could be granted [,] [i] n light of [Iqbal and --------"'- , supra], it is now clear that such boilerplate claims do not rise to the level plausibility" required to state a viable Monell claim. New York, No. 09 Civ. 0856 (BMC) f 2009 WL 2734667, at *3 (E.D.N.Y. Aug. 25, 2009). The AC contains only boilerplate assertions of a municipal pol or custom, see AC " 14 15, 17-18, alleging that "Plaintiff was injured by defendants because their acts were perpetrated based on custom, usage, patterns, and policies 6 instituted by the municipal policymakers and resulting in violations of Pl iff's civil rights," id. , 15, without offering any accompanying factual support. such conclusory As set forth above, legations are insufficient to state a claim for Monell liability. Moreover, the two Arrests of which Guerrero complains do not, in and of themselves, suffice to state a municipal policy or custom. Giaccio, 502 F. Supp.2d at 389. Each arrest is factually distinct from the other, and Guerrero fails to establish common causal between the two support a theory of Monell liability. what munic and has Guerrero has not alleged policy or custom he believes led to his arrests, led to set forth which of the four theories of Monell liability is the basis for City's liability. Accordingly, the AC does not allege suffic would to make out Monell claim against the s that ty of New York under any theory of liability.l In an apparent effort to state a Monell claim under the -to-train prong set forth in Canton v. Harris, 489 U.S. 378 (1989), the AC refers to a newspaper article (the "Article") that suggests that NYPD does not keep statistics on lawsuits in which it is a defendant. AC at , 17. However, no inference can be drawn from the Article with respect NYPD training policies, and the Article certainly does not establish 7 1 B. Guerrero Fails to Allege an Underlying Vi ation "Monell does not provide a separate cause of action for the lure by the government to train its employeesi it extends liability to a municipal organizat organization's failure to t , or the polic where that s or customs that it has sanctioned, led to an independent constitutional violation." Cir. 2006). viable § of New York, 459 F.3d 207, 219 (2d Accordingly, in order for Guerrero to state a 1983 claim, he must allege an underlying violation that "deprived [him] of rights, privileges or immunities secured by the Constitution or laws of the United States." Pritchell v. Callan, 13 F.3d 545, 547 (2d Cir. 1994). To satis all this pleading rement, Guerrero s violation of his Fourth Amendment rights due to arrest and use of excessive force. AC ~~ 9-11, 19-20. se However, the requisite "affirmative link" between the issues it discusses and the circumstances of Plaintiff's arrests. See Tuttle, 471 U.S. at 823 ("At the very least there must be an affirmative between the icy and the particular constitut 1 violation alleged. ") . Accordingly, to the extent that Guerrero to assert a ilure-to-train Monell claim based upon the e, such a aim is unavailing. 8 Guerrero fails to adequately plead any type of Fourth Amendment violation. 1 Guerrero Is to State a Claim for False Arrest The elements for a § 1983 claim premised on a false arrest claim are substantially similar to the elements necessary to state a aim for false arrest under New York law. Okst{ 101 F.3d 845{ 852 omitted). (2d . 1996) (internal citations Thus { in order to state a § 1983 claim premised upon a false arrest, a plaintiff must allege that: intended to confine the plaintiff; conscious of the confinement; to the confinementi and (4) privi (3) (1) the defendant (2) the plaintiff was the plaintiff did not consent the confinement was not otherwise Weyant, 101 F.3d at 853 {quoting State, 37 N.Y.2d 451, 456 (1975). i cause is a complete de to an action state law or F.3d 117{ 122 § 1983. v. An arrest pursuant to probable cause is privil e Weyant v. thus, the existence of probable Covington v. City Ise arrest under New York, 171 (2d Cir. 1999). In addition, when a victim complains to the police a crime has been committed, probable cause to arrest an 9 identified perpetrator exists absent a reason to doubt the complaining victim. S v. Fulton Sheriff, 63 F.3d ~~~------------------~~~------ 110, 119 (2d Cir. 1995). In cases where a plaintiff attempts to plead false arrest despite the existence of a complaining victim or witness, the plaintiff must, at the least, allege facts tending to show that the victim's veracity should have been questioned. See, e.g., Khaja-Moinuddin v. City of New York, No. 09 Civ. 646 (CBA) , 2010 WL 3861003, at *5-6 ( Moreover, . 28, 2010). "[o]nce a police ficer has a reasonable basis for believing there is probab cause, he is not required to explore and eliminate every ically plausible claim of innocence before making an arrest." cciuti, 124 F.3d at 128. This is because, "[i]t is up to the finder to determine whether a defendant's story holds water, not the arresting ficer." Krause v. Bennett, 887 F.2d 362, 372 Thus, (2d Cir. 1989) "probable cause exists even where it is based upon mistaken information, so long as the arrest reasonable in relying on that information." States, 25 F.3d 98, 103 (2d Cir. 1994). 10 officer was v. United Here, Guerrero has alleged he was arrested due to the complaints of victims or witnesses. With regard to the First Arrest, Guerrero contends that the police were called by either the individuals with whom had an altercation or by ~ witnesses to that altercation. See AC 9; Plaintiff's Memorandum of Law in Opposit to Defendant/s Motion to Dismiss the First Amended Complaint Under Federal Rule of Civil Procedure 12(b) (6) Second Arrest l ("PI. Mem. Opp.") at 2-3. Guerrero all With regard to the that he was arrested based on the accusations of the traffic agent who was purportedly victim of the assault. AC allegation-with regard to ~ 11. Moreover, Guerrero has made no ther arrest-that the arresting officers had reason to doubt the complaints leading to Arrests. 2 Accordingly, even if Guerrero's allegations are Though Guerrero contends the AC that he could not have committed the assault that precipitated the Second Arrest because he was hospital at the time of the I assault, Guerrero does not allege that he made such a contention to the arresting f See AC ~ 11. Accordingly, there is no allegation officers who were respons the Second Arrest had reason to doubt the criminal complaint that had been made aga Guerrero. It should be noted even if Guerrero had luded such an allegation in complaint, it would not neces mean that the arresting ficers did not have probable cause, but rather the inclusion an allegation would have simply necessitated an is as to whether it was reasonable for the officers to arrest Guerrero despite his claim of being hospitalized at the time of the complained assault on the traffic officer. However t since Guerrero made no such allegation in the ACt the stence of 2 11 accepted as true and all inferences are drawn in his favor, it is evident that the officers responsible for both of the Arrests had probable cause to arrest Guerrero, and therefore Guerrero se arrest. 3 fails to state a viable claim for ii Guerrero Fails to State a Guerrero has also for excessive force. aim for Excessive Force led to adequately lege a claim "Not every push or shove amounts to a Fourth Amendment violation. Indeed, a de minimus use will rarely suffice to state a Constitutional claim. P excess force Further, a iff must allege that he sustained an injury to maintain an force claim." Acosta v. Ci of New York, No. 11 Civ. ~------------~-------------- 856 (KEF), 2012 WL 1506954, at *10 (S.D.N.Y. Apr. 26, 2012) (quotations and citations omitted) (dismissing excessive force claim where plaintiff alleged that he was punched in the chest and thrown on the ground but did not allege any injury) . probable cause can be assumed without delving into such an analysis. 3 In addition, to the extent that Guerrero is basing his § 1983 claim on an legedly unreasonable search, see AC ~ 9, this c fails as well, because a search incident to a lawful arrest is per se reasonable. Arizona v. Gant, 556 U.S. 332, 338 (2009) . 12 With respect to the First Arrest, Guerrero alleged that his handcuffs were too tight. AC ~ 9. Such an allegation alone does not state a claim for excessive force. See, e.g., Wims v. New York City Police Dept., No. 10 Civ. 6128 (PKC), 2011 WL 2946369 at *5 ("Merely placing tight handcuffs on a suspect is not enough for an excessive force claim."); Wilder v. Village of Amityville, 288 F. Supp. 2d 341, 344 (E.D.N.Y. 2003) (allegation of tight handcuffs resulting in twenty-four hours of wrist inflammation and soreness does not rise to the level of excessive force) . With respect to the Second Arrest, Guerrero alleged that he was "physically abused," that the officers "threw him around like a toy," and that he was thrown into the back of a police vehicle. AC ~ 11. However, Guerrero alleged no injury stemming from these acts other than claiming to have "suffered mental and emotional harm." AC ~ 32. Such a conclusory assertion, unaccompanied by allegations of a specific or identifiable mental injury, is an insufficient basis for an excessive force claim. Wims, 2011 WL 2943639, at *5. 13 Guerrero's state Law Claims Are Dismissed New York General Municipal Law 50 i(l) mandates that [n]o action or special proceeding shall be prosecuted or maintained against a city . . unless, (a) a notice of claim shall have been made and served upon the city . compliance with section fifty-e of this chapter, (b) it shall appear by and as an allegation in the complaint or moving papers that at least thirty days have elapsed since the service of such notice and that adjustment or payment thereof has been neglected or refused, and (c) the action or special proceeding shall be commenced within one year and ninety days after the happening of the event upon which the claim is based . N.Y. Gen. Mun. L. 50-i(l) ("Rule 50-i(1)f1). In addition, the required notice of claim must be filed within ninety days after the claim arises. N.Y. Gen. Mun. L. 50 e(l) (a). "The burden is on the plaintiff to demonstrate compliance with the Notice of Claim requirement." (S.D.N.Y. 2006). Horvath v. Daniel, 423 F. Supp. 2d 421, 423 In addition, "[t]he appropriate remedy for failure by the plaintiff to comply with [the] [sic] statutory notice of claim requirement is dismissal of the action, even if the c 1 aim is me r itor i ous . " _F_a_r,-,u. :c:k-=..l_'_v............:..--'=-:=-"-"---=-'=-............:...::......:............:.:...::...::.;;..;::., No. 1 0 Civ. 9614 (LAP), 2012 WL 1085533, at *10 (S.D.N.Y. Mar. 30, 2012) (quotation and citation omitted) 14 Guerrero's state law from several alleged ims against the City suffer al procedural de s. First, Guerrero has not a notice of claim was filed with respect to either Arrest as required by Rule 50-i(1) (a), and moreover to make the legation required by Rule 50-i (1) (b) days have el since the service of failed "thirty [a notice of claim] and that adjustment or payment thereof has been neglected or refused." , it does not appear that a notice of claim was ever filed with respect to the First Arrest, so Guerrero is barred from asserting state law claims premised upon events that occurred in connection to that event. at *10. Faruki, 2012 WL 1085533, In addition, even if a notice of claim had been fil with respect to Guerrero's state law claims arising from the rst Arrest, such claims would nonetheless be time-barred since they were first as on April 4, 2012, which will over one and ninety days after the date of is December 10, 2010. rst Arrest, which See Rule 50-i (1) (c) With respect to the Second Arrest, Guerrero does to have filed a notice of claim with the ty, see Declaration of Uriel B. Abt in Support of Defendant's Motion to 15 Dismiss Pursuant to Rule 12(b) (6), Ex. B,4 but the filing, which was made on March 2, 2012, came long after the expiration of the 90 day deadline mandated by N.Y. Gen. Mun. L. 50-e(1) (a). Accordingly, Guerrero's state law claims arising from the Second Arrest are also time-barred pursuant to N.Y. Gen. Mun. L. 50-e. Guerrero has contended that the notice of claim filed with respect to the Second Arrest was not untimely because it was filed within 90 days of the dismissal stemming from the Second Arrest. the criminal action Pl. Mem. Opp. at 10. However, the operative date for calculating the 90 day deadline is not the date upon which the charge was dismissed, but rather the date upon which Guerrero was released from custody. v. Ci See Bennett of New York, 204 A.D.2d 587, 587 (N.Y. App. Div. 1994). Guerrero was released from custody on or about July 25, 2011, AC , II, so the 90 day deadline for submitting a notice claim premised upon the Second Arrest expired at the end of October 4 Although Guerrero did not attach this document to his pleading, notice may nonetheless be taken of it because it is a document neither in plaintiff's possession or of which plaintiffs had knowledge and relied on bringing suit." Gray v. Ci of New York, No. 10 Civ. 3039 (SLT) (CLP), 2012 WL 947802, at *10 (E.D.N.Y. Mar. 20, 2012) 16 2011, more than four months prior to Guerrero's filing of the notice. s Since Guerrero's state law claims against the City arising from the First and Second Arrests are procedurally defect and untimely, dismissal of those claims is warranted on that basis alone. Faruki, 2012 WL 108553, at *10. To the extent that Guerrero attempts to plead an assault and battery claim stemming from the Second Arrest, that claim is similarly time-barred. An assault and battery aim sing from the Second Arrest would have accrued on or about July 25, 2011, which was Guerrero's final day in custody, see Lettis v. U.S. Postal Serv., 39 F. Supp. 2d 181, 204-05 (E.D.N.Y. 1998), meaning that the 90-day period for filing a notice of assault and battery claims stemming from Second Arrest elapsed in late October 2011. 17 5 Conclusion Based upon the conclusions set forth above, the City's motion to dismiss is grant and the AC is dismi to replead within twenty days. It is so ordered. New York, NY February ~( I 2013 18 with leave
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