Guerrero v. The City of New York et al, No. 1:2012cv02916 - Document 23 (S.D.N.Y. 2013)
Court Description: OPINION re: 16 MOTION to Dismiss the Second Amended Complaint, filed by The City of New York. Defendant City of New York (the "City" or the "Defendant") has moved pursuant to Fed. R. Civ. P. 12(b)(6) to dismiss the Second Amended Complaint ("SAC") of plaintiff Richard Guerrero ("Guerrero" or the "Plaintiff"). Upon the conclusions set forth below, the City's motion is granted and the SAC is dismissed with prejudice.... Accordingly, P laintiff has again failed to state a plausible claim of excessive force, and the claim must be dismissed. Guerrero, 2013 WL 673872, at *4-5. The motion of the City is granted, and the SAC is dismissed with prejudice. Enter judgment on notice. (Signed by Judge Robert W. Sweet on 11/4/2013) (ja)
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK -x RICHARD GUERRERO, Plaintiff, 12 Civ. 2916 -against- OPINION CITY OF NEW YORK and DOES 1 10, Defendant. ---------------------------- A P PEA RAN C E S: Attorney for Plaintiff JOHN M. LAMBROS, ESQ. 40 Wall Street, 2809 New York, NY 10005 Attorney for Defendant MICHAEL A. CARDOZO Corporation Counsel of the City of New York 100 Church Street New York, NY 10007 By: Uriel B. Abt, Esq. --x Sweet, D.J. Defendant City of New York (the "City" or the "Defendant") has moved pursuant to Fed. R. Civ. P. 12(b) (6) to dismiss the Second Amended Complaint ("SAC") of plaintiff Richard Guerrero ("Guerrero" or the "Plaintiff"). Upon the conclusions set forth below, the City's motion is granted and the SAC is dismissed with prejudice. Prior Proceedings On April 4, 2012, the Plaintiff filed the instant lawsuit against the City alleging various state and federal claims arising out of an arrest that occurred on December 10, 2010. On July 23, 2012, Plaintiff filed an Amended Complaint ("FAC"). The FAC was similar to the original complaint except that, in addition to the December 10, 2010 arrest, it alleged an unrelated and factually distinct second arrest that occurred on July 25, 2011. The City moved to dismiss the FAC on the following grounds: (i) that the Plaintiff had not sufficiently plead a policy or custom of the City of New York for purposes of establishing liability pursuant to Monell v. Dept' of Soc. Servs., 436 U.S. 658 (1978); (ii) that the Plaintiff had not sufficiently plead any underlying constitutional violations; and (iii) that any state law claims were barred by Plaintiff's failure to timely comply with New York State's notice of claim requirements. This Court granted Defendant's motion in its entirety but granted Plaintiff leave to re-plead. Guerrero v. City of New York, 2013 WL 673872, at *6 (S.D.N.Y. Feb. 21, 2013) (the "February 21 Opinion"). On March 13, 2013, Plaintiff filed the SAC. The SAC contains a few additional allegations but is largely the same as the FAC, although it no longer asserts any state law claims. The SAC alleges that Plaintiff was involved in two discrete incidents that are violations of 42 U.S.C. § 1983. The first incident occurred on December 10, 2010, where Plaintiff was involved in an altercation in a night club. SAC ~ 8. Plaintiff alleges that as a result of the altercation, the police were called, and Plaintiff was ultimately arrested by the police (referred to hereinafter as the "First Arrest"). rd. After about a year, the criminal charges stemming from the First Arrest were dismissed. rd. The second incident occurred on July 25, 2011, where Plaintiff was arrested by two plainclothes police officers as he was leaving Queens County Court, where he appeared in an 2 unrelated matter (referred to hereinafter as the "Second Arrest" and collectively with the First Arrest, the "Arrests"). rd. ~ 10. The officers informed Plaintiff that his arrest was made in connection with a complaint made by an N.Y.P.D. traffic agent, who accused three individuals of assaulting him or her at 5:30 A.M. on July 22, 2011. rd. However, Guerrero states that he informed the officers during the Second Arrest that he was in the hospital at the time of the alleged assault. rd. The criminal charges against Guerrero stemming from the Second Arrest were eventually dismissed. rd. The SAC alleges that the City's customs, usages, patterns and policies violated Plaintiff's rights in violation of 42 U.S.C. § 1983 and Monell, the Arrests were false arrests and violated Plaintiff's constitutional rights, Plaintiff suffered from malicious prosecution and Plaintiff suffered from excessive force during the Arrests. The instant motion was marked fully submitted on July 24, 2013. The Rule 12 (b) (6) Standard 3 On a motion to dismiss pursuant to Federal Rules of Civil 12, all ctual allegations in the Complaint are accepted as true, __~______~~______~~______~~_C_o~., 687, 688 896 F.2d (2d Cir. 1990), and all inferences are drawn in of the pl r. Amidax T v. S.W.I.F.T. SCRL 671 F.3d 140, 145 (2d Cir. 2011). The issue "is not whether a plaintiff il but whet 11 ultimately entitled to of r the claimant is r evidence to support the claims." -=---------'----'----'---"'-.;:.-< G-I Ho Inc. v. Baron & Budd, 238 F. Supp. 2d 521, 534 (quoting -=-----=-----=----~-=------=----~-=-----=-----=-----=-------------=-----=-----=----~ (S.D.N.Y. 2002) , 56 F.3d 375, 378 (2d Cir. 1995)). must "conta a A accepted as true, to 'state a on its face.'" ----------~-- rement, a im to relief , 556 U.S. ent 678 (2009) sibility standard is not akin to a probability it asks for more than a sheer fendant has unlawfully. are merely consistent with a st 662, is plausible . v. Twombl , 550 U.S. 544, 570 ing Bell At (2007) ). The sufficient factual matter, short of lement to reI Plaintiffs must all line between poss f. Id. (ci tat sibility that re a complaint p facts fendant's liability, it ility and plaus s and quotations sufficient facts to "nudge[] t lity of tted) . ir claims across the line from conceivable to plausible." Twombl , 550 4 u.s. at 570. Though the court must accept the factual allegations of a complaint as true, it is "not bound to accept as true a legal conclusion couched as a factual allegation." Iqbal, 556 u.s. at 678 (quoting Twombly, 550 u.s. at 555). The Supreme Court in Iqbal set forth a "two-pronged" approach for analyzing a motion to dismiss. Id. at 679-80. First, a court should "indentify[] pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth." Id. at 679. Once the court has stripped away the conclusory allegations, it must determine whether the complaint's "well-pleaded factual allegations. . plausibly give rise to an entitlement to relief." Id. In making its evaluation, a court must undertake a "context-specific task" that requires it to draw on its judicial experience and common sense. Id. Where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint must be dismissed. Id. at 678-79 ("[O]nly a complaint that states a plausible claim for relief survives a motion to dismiss") . The Monell Claim Is Dismissed 5 The Pl ntiff has conceded that has fail against the City or any state law claims that a Monell cla would change the ermination set forth in the February 21 Opinion. Plaintiff's Memorandum of Law in Oppos reina to plead ion er "Opp.") at 4. Accordingly all claims against the e v. Marron Y of New York are dismissed. 116 (2d Cir. 2011) liable under § 663 F.3d 100, (finding that a municipality can be held 1983 only in the manner set forth in Monell and its progeny) . The False Arrest Claims Are Dismissed The Plaintiff contends, as he did in his oppos ion to the motion to dismiss the FAC, the Court must infer from t pleadings that constitutional violations occur Arrests. Opp. at 5-6. However, a iff has not pled facts that "permit the court to infer more than the mere possibility of misconduct," -----"---'- I 556 u.s. at 679, and as such has failed to plausibly plead false arrest. The false arrest claims are dismissed for the same reasons set forth in t February 21 Opinion. With respect to the Second Arrest, Plaintiff has not pled additional facts in the SAC but instead omitted allegations 6 ctim. In the FAC, Guerrero alleged relating to the complaining who was purportedly the vict traffic of an assault. arrest was false, Plaintiff now argues that just "because the City says that a traff PIa s of t accusat sed on that he was arrested 'j1 11. contending that officer identified iff, without more, cannot be accepted as true." Opp. at 6. On a motion to dismiss, Plaintiff is entitled to t presumption of truth with regard to well-pled facts and to reasonable inferences in his of New York Sept. 10, 2012). "on its j cial 10 C vor. - - - ' - - - " ' - See Schoolcraft v. . 6005, 2012 WL 3960118, at *4 In making such in rience s, the Court may rely common sense." Iqbal, 556 U.S. at 679. It is not reasonable to in r, from the all the FAC and SAC, that Plaintiff was arrested the court to in t pI ions in some reason other than the traffic agent's complaint. As clea the Supreme Court, "[WJ (S.D.N.Y. y dictat by the well-pleaded facts do not permit r more than the mere possibil complaint has alleged-but has not y of misconduct, 'show [nJ' 'that t r is entitled to relief.'" Id. Even assuming t truth of Plaintiff's allegations and drawing reasonable inferences in his , Plaintiff has alleged no more than the sheer possibility of misconduct. As such, Plaintiff has failed to plead a plausible false arrest claim. 7 out of the Ise arrest claim arisi Plaintiff's rst Arrest is no different. In t SAC, Plaintiff alleged that Plaintiff became involved in an altercation th individuals, the individuals threatened to call the police and the police were ult plaus p ly called. <![ in, 8. "[al claim has facial ility" and survives a motion to dismiss-"when the intiff pleads factual content that allows reasonable inference t misconduct alleged. alleged , de II the court to draw fendant is liable for 556 U.S. at 678. Plaintiff has ....._1--"-'--'-- ite his innocence, he was arrested when the police were called to a nightclub as a result of an altercat by either the other party in t SAC <![ altercation or a thi 8. But these allegations are not sufficient to draw "reasonable ference" that constitutional First Arrest amount to a olation. The Plaintiff also contended that t officers had a duty to investi be party. arresting h furt arresting r into altercation . Opp. at 6. In this Circuit, an officer in possession of credible information sufficient to effect an arrest is under no obli See ion to conduct further investi ____~__________-'--______________ , 268 F.3d 65, 70 2001) (" [Olnce a police officer has a reasonable basis 8 (2d ion. r. re is probable cause, he is not required to explore believing and eliminate every theoretically plausible c an arrest."); before maki (2d Cir. 1989) se v. Bennett, 887 F.2d 362, 372 ssess facts sufficient to ("Once officers establish im of innocence e cause, they are neither requi r, to sit as nor allowed judge or jury. Their function is to apprehend those suspected of wrongdoing, and not to finally determine guilt through a weighing of the v. strict Att WL 406542, at *4 of Count 93 Civ. 1647 (ILG), 1996 (E.D.N.Y. Ju y 16, 1996) requirement that investigation into ."); Eisenberg arresting of ("There is no cer embark upon a collateral credibility of the complainant. Such a requirement would place an unwa burden upon wi law. It is of the responsibility to enforce fact finder, not the arresti the complainant's sto officer, to se charged ion c whether is credible."). Police officers have "no duty to investigate an exculpatory statement of the accu Ie cause." ir refusal to do so does not de Mistretta v. Prokesch I , "[t]o hold 5 F. Supp. 2d 128, 135 (E.D.N.Y. 1998). rwise would allow suspects to avoid arrest simply by deny of New York, po ice of , and 453 Fed. cer has areas guilt." Id.; see also Alvarado v. City 56, 58 (2d Ie basis probable cause, he is not required to 9 r. 2011) r ("Once a lieving there is a lore and eliminate e claim of innocence be every theoretically plaus an arrest."); Wilson v. McMullen 1268055, at *3 (E.D.N.Y. Ma 07 Civ. 948 30, 2010) ng (SLT), 2010 WL (" [A] police officer is nate every theoretically not required to ausible claim of innocence Y of New York, 98 C v. C rna (E.D.N.Y. July 13, 1999) re making an arrest."); Mazza 2343 (I LG), 1999 WL 1289623 , at * 5 police officers to (requir investigate exculpatory statements of the accused before making an arrest "would be to allow every su , guilty or innocent, wasn't me'") to avoid arrest simply by cla (quoting 867 F .2d 259, 263 (6th Cir. 1988) and s v. City of New York, 879 F. . 335, 343 (S.D.N.Y. 1995) ) . The Plaintiff contends that his in SAC, that he made exculpatory statements to the arresting officers in both Arrests, nudge his cla plaus tional allegations from possible to e. n Puckowitz v. Cit 2010 WL 36326 ice police, act plaintiff of New York, 09 C . 6035 (PGG) , (S.D.N.Y. Sept. 16, 2010), a cab the p on iff had not paid his cab iver in reo cab driver's complaint, arres his assertion that he had paid the fare 10 despite s officers verify his story with his st t credit card though the Plaintiff was later able to obtain a confirmation presumably confirming the plaintiff's credit card payment, t s version of events, the Court dismissed Ise arrest cla that "the officers the basis of [the cab p on the pleadings, stating cause to arrest the plaintiff on ver's] complaint. They were not obligated to investigate the pla iff's claims of innocence, nor pursue his suggestions of investi ting the charge." rd. at *3. Plaintiff's new all at s re his false arrest claims are no different than those in Puckow z. With regard to the Second Arrest, Plaintiff now alleges that he informed the arresting officers that he had an al he could furnish proof. SAC ~ i 10. Ass Plaintiff's new allegation, the 0 t crime and that the truth of icers were igation to credit or investigate Pla Pla r r no iff's cla iff's additional allegation with regard to the rst Arrest, that "[t]he police made no effort to determine whether Plaintiff was telling the truth, despite the fact t reason to doubt the individuals' story," SAC at terial fai re to ~ they 8, is r the same reason: The arresting officers' aIle t Plaintiff's exculpatory statements does not 11 af the probable cause determination. Mistretta, 2d at 135 ("[Arresting off rsJ have no duty to investigate an the accu exculpatory statement 5 F. Supp. , and their re sal to do so Plaintiff's does not defeat probable cause."). Moreover, allegations with regard to both Arrests, that the officers "had reason to doubt" the compla ng ctims or witnesses' stories, are conclusory and unsupported by any facts. Aside from Plaintiff's allegation that he made exculpatory statements, probable cause determination, there which does not affect are no allegations of fact showing that should have doubted t arresting officers complaining victims or witnesses in either Arrest. - " - - 556 U.S. at 679 (/I[AJ court considering a I I, motion to dismiss can choose to begin by nti ng eadings that, because they are no more than conclusions, are not ent led to t assumption of truth."). Accordingly, the Court's previous analysis holds, and Plaintiff's false arrest claims must di ssed in accordance with t Court's February 21 Order. Malicious Prosecution Claim Is In Paragraph 12 the SAC, smissed aintiff alleges that he was "unlawfully detained, searched, maliciously prosecuted, and subjected to excess force./I SAC '][ 12. However, Plaintiff does 12 not allege that was ever searched by a law enforcement Plaintiff is asserting a claim of officer. To the extent t malicious prosecution, it must fail for the reasons set forth above. ---'---""- , Husbands ex reI. Forde v. Cit 335 Fed. Appx. 124, 128 r. 2009) (2d also bars malicious prosecut York, 879 F. Supp. 335, 342 supporting an arrest de of New York (probable cause to arrest claim); cf. Qukes v. City of New (S.D.N.Y. 1995) ("[P]robable cause ats a malicious prosecution claim unless plaintiff can demonstrate to the arrest, additional at some point subsequent s came to 1 probable cause."). Moreover, wi that negated to the Second Arrest, aintiff appears to allege t cr dismissed at his arraignment. SAC ~ 1 charges were 10. Accordingly, any malicious prosecution claim arising out of that arrest would fail for the additional reason that Amendment deprivation pursuant to 1 s not allege Fourth 1 cess. Gordon v. Cit of New York, 10 Civ. 5148 (CBA) (LB), 2012 WL 1068023, at *7 (E.D.N.Y. March 29, 2012) ("[W]here out of a warrantless arrest, he cannot br aintiff's claim arises a malic prosecution claim based only on pre arrai re have been no actions taken pursuant to j process.") . Excessive Force Claim Is Dismisse 13 events, since al ion that his ti Plaintiff's additional all handcuffs caus "swelling and contus " fails to state a claim for excessive force. Not every push or shove amounts to a Fourth Amendment violation. Indeed, a de minimus use of force fice to state a Constitutional claim. Wims v. New will rarely York Cit 10 Civ. 6128(PKC), 2011 WL 2946369, at Police ssing claim were plaintiff *4-5 (S.D.N.Y. July 20, 2011) was pulled out of his car and thrown face down alleged that on the ground identi e use it did not result in any jury) . Arrests frequently handcuffs which, in order to to an arrestee's Ive the application of effective, must force is not est tight handcuffs caused "tight enough from slipping out." Grant v. Cit of New York, 500 F. Supp.2d 211, 217 excess ific or (S.D.N.Y. 2007). A cIa ished by all nor, temporary i tions that overly ur s. Wim, 2011 WL 2946369 at *5 ("Merely placing tight handcuffs on a su not (E.D.N.Y. 2003) handcuffs resulting in twenty- inflammation and soreness does not excess ct is for an excessive force claim."); Wilder v. ViII 288 F. Supp.2d 341, 344 of t of force); tion hours of wrist se to the level of Iton v. Broomfiel 14 (all of 95 Civ. 3241 (MBM), 1998 WL 17697, at *2 (S.D.N.Y. Jan. 20, 1998) tight handcuffs resu (allegation of ing in pain does not rise to the level of v. Beneri a constitutional violation); (AKT), 2011 WL 5546237, at *4, n.4 09 C 4444 (E.D.N.Y. Nov. 9, 2011) (holding allegation of handcuffs "so tight it caused heavy swelli excess (SJF) aintiff] in both wrists" insufficient to state a claim of force). The allegation that the application of handcuffs during P intiff's First Arrest caused "swelling and contusions" does not go beyond the sort of minor, temporary juries held to be insuf excess cient to establish a claim of force in the above-ci cases. Accordingly, Plaintiff s a plausible claim of excessive force, In failed state a and t claim must be dismissed. Guerrero, 2013 WL 673872, at *4-5. Conclusion The motion of the City is granted, and the SAC is dismissed with prejudice. Enter judgment on notice. 15 It is so New York, NY November f, 0 red. 2013 16
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