Boadi v. City of New York et al
Filing
13
MEMORANDUM DECISION AND ORDER, Pltff's claims for malicious prosecution; false arrest; First Amendment retaliation; and cruel and unusual punishment are dismissed under 28 USC sec. 1915(3)(2(B). Pltff's Due Process Clause claim against the individual defts - Detective William Greer, Shield #17751; James M. Williams and Larry A. Olinsky of Command 0580; and Detectives Ryan and Moy of the 66th Pct. - is the only claim that may proceed. The Court certifies pursuant to 28 USC sec. 1915(a)(3) that any appeal from this Order would not be taken in good faith and therefore in forma pauperis status is denied for purpose of an appeal. (Ordered by Judge Brian M. Cogan on 7/24/2012) c/m by chambers. (Galeano, Sonia)
'&~
"'
~1\'fFILEO
UNITED STATES DISTRICT COURT
liS of~~lEAK'S OFFICE
ICTCOUATEDNY.
~~~-~~~-~!~~~~~-?-~-~~~-~~~---------- ¥.*
JUL 2 6 2012
*
BROOKLYN OFFICE
ERIC BOADI,
Plaintiff,
MEMORANDUM
DECISION AND ORDER
-against-
12 Civ. 2456 (BMC)
CITY OF NEW YORK; NEW YORK CITY
POLICE DEPARTMENT; DET. WILLIAM
GREER; JAMES M. WILLIAMS; LARRY
OLINSKY, DET. RYAN; DET. MOY; ADA
KAMI GORDON-SOMMERS,
Defendants.
-----------------------------------------------------------
)(
COGAN, District Judge.
Plaintiff Eric Boadi filed this prose action pursuant to 42 U.S.C. § 1983 alleging false
arrest and malicious prosecution. By Memorandum Decision and Order dated May 29,2012,
this Court dismissed plaintiffs claims against New York City, New York City Police
Department ("NYPD"), and Assistant District Attorney Kami Gordon-Somrners. The Court held
that plaintiff's false arrest claim could proceed against defendants Detective William Greer,
James M. Williams, Larry A. Olinsky, Detective Ryan, and Detective Moy. The Court also
granted plaintiff leave to amend his complaint to correct certain deficiencies in his malicious
prosecution claim. On July 23, 2012, plaintiff filed an amended complaint that fleshed out his
prior claims and added new claims. For the reasons set forth below, all of plaintiffs claims are
dismissed except his deliberate indifference claim under the Due Process Clause ofthe
Fourteenth Amendment.
BACKGROUND
Plaintiff's initial complaint included only one short paragraph of facts. In this paragraph,
plaintiff explained that he was indicted by a Kings County grand jury for a robbery that occurred
on August 18, 2007, in Brooklyn; that he was acquitted at trial in June, 2009; and that the
defendants prosecuted him despite being cognizant of exculpatory evidence such as a toll bridge
receipt and cellphone records which allegedly proved that plaintiff was not in Brooklyn on the
date ofthe robbery.
By Memorandum Decision and Order dated May 29, 2012, the Court dismissed
plaintiffs claims against New York City, the New York City Police Department ("NYPD"), and
Assistant District Attorney Kami Gordon-Sommers under 28 U.S. C.§ 1915 (e)(2)(B). The
Court also explained that plaintiff's malicious prosecution claim was deficient for two reasons.
First, plaintiff had alleged that he was indicted by a Kings County grand jury. This allegation
created a presumption of probable cause for plaintiffs arrest which appeared to preclude his
malicious prosecution claim. Second, plaintiff failed to allege that defendants acted maliciously,
since a more logical reading of the complaint was that defendants simply disagreed with plaintiff
over the meaning of the allegedly exculpatory evidence. The Court warned plaintiff that failure
to correct these deficiencies would result in dismissal of the malicious prosecution claim under
28 U.S.C. § 1915 (e)(2)(B).
In his amended complaint, plaintiff explained that he was arrested for the robbery
pursuant to a warrant. He was transported to the precinct on that same day, where he was
handcuffed to a wall for more than eighteen hours. During those eighteen hours, he was
deprived of food, water, and use of a toilet. At some point, plaintiff was transferred to an
interrogation room and was accused of having robbed a Western Union at gun point. Plaintiff
2
alleges that he was interrogated for more than twelve hours and that the interrogating detectives
"psychologically tortured" him by depriving him of food, water, sleep, and use of the toilet. He
alleges that the detectives attempted to coerce plaintiff into writing a statement in violation of his
Miranda rights and lied to plaintiff by falsely informing him that they had the power to make
prosecutors reduce his sentence in exchange for a guilty plea
Plaintiff was arraigned the next day and was unable to make bail at that time. Although it
is unclear whether plaintiff was incarcerated for the entire pre-trial period (from August 21,
2007, until June, 2009), he alleges that he was in jail for the January 30,2008, birth of his
daughter.
Plaintifflists a variety of allegedly exculpatory evidence and claims that the defendants
prosecuted him despite having knowledge of this evidence. For example, cell phone records and
information regarding a toll bridge crossing in Bayonne, New Jersey, allegedly demonstrated that
plaintiff was not in Brooklyn on the date of the crime. Plaintiff also provided the detectives with
the names and telephone numbers of individuals with whom he was celebrating his birthday on
the date of the crime. Plaintiff also alleges that he clearly did not meet the description of the
robbery suspect, since the suspect was reported to be four inches taller than plaintiff and the
suspect was reported to have no visible tattoos, whereas plaintiff has several visible arm tattoos.
Plaintiffs amended complaint restated his false arrest, malicious prosecution, and Monell
claims. In addition, the amended complaint listed three new claims: first amendment retaliation;
violation of due process; and cruel and unusual punishment.
DISCUSSION
As explained in this Court's Memorandum Decision and Order dated May 29, 2012, a
district court shall dismiss an in forma pauperis action where it is satisfied that the action is "(i)
3
frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks
monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915
(e)(2)(B). As always, this Court construes a prose litigant's pleadings liberally, see Chavis v.
Chappius, 618 F.3d 162, 171 (2d Cir. 2010), especially when those pleadings allege civil rights
violations. See Erickson v. Pardus, 551 U.S. 89, 94, 127 S. Ct. 2197 (2007); Sealed Plaintiffv.
Sealed Defendant #1, 537 F.3d 185, 191-93 (2d Cir. 2008).
Although courts must read pro se complaints with "special solicitude" and interpret them
to raise the "strongest arguments that they suggest," Triestman v. Fed. Bureau of Prisons, 470
F.3d 471, 474-76 (2d Cir. 2006) (internal quotation marks omitted), a complaint must plead
enough facts to state a claim to relief that is "plausible on its face." Bell At!. Com. v. Twombly,
550 U.S. 544, 570, 127 S. Ct. 1955 (2007). "A claim has facial plausability when the plaintiff
pleads factual content that allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged." Ashcroft v. Iqbal,- U.S.-, 129 S. Ct. 1937, 1949 (2009)
(citation omitted).
A.
Malicious Prosecution
Plaintiff has failed to correct the deficiencies in his malicious prosecution claim that the
Court noted in its May 29, 2012, Order. As the Court noted, plaintiff's indictment by the grand
jury created a "presumption of probable cause" for his prosecution which "may only be rebutted
by evidence that the indictment was procured by 'fraud, peljury, the suppression of evidence or
other police conduct undertaken in bad faith."' Savino v. City of New York, 331 F.3d 63, 72 (2d
Cir. 2003); (quoting Colon v. Citv ofNew York, 60 N.Y.2d 78, 83, 468 N.Y.S.2d 453, 456,455
N.E.2d 1248 (1994)). The existence of probable cause is a complete defense to a claim of
malicious prosecution. Savino, 331 F.3d at 72. Plaintiff has listed no facts that would rebut this
4
presumption of probable cause, and in fact he has listed several facts which bolster the inference
that probable cause existed for his prosecution, such as the fact that his photograph was selected
in a photo array and that an eye witness identified plaintiff as the robber during the trial.
Plaintiff states that "despite the fact defendants ... were cognizant of the fact that
Bayonne and V errazano toll bridges are equip[ped] with surveillance cameras which was an
exculpatory evidence ... they decided to suppress these evidences [sic]." Although a finding
that the indictment was procured via suppression of evidence could rebut the presumption of
probable cause, see id., this allegation is implausible. Plaintiff does not allege that defendants
were in possession of footage from these surveillance cameras or that they prevented plaintiffs
criminal defense attorney from accessing this footage; instead, plaintiff simply appears to accuse
defendants of failing to pursue this potential source of exculpatory evidence on plaintiffs behalf.
Since the detectives could reasonably have believed that this surveillance footage would not be
probative as to plaintiffs guilt or innocence - plaintiff could have loaned his car to a friend that
day, for example- their failure to scout out this evidence does not constitute the kind of "police
conduct undertaken in bad faith" to which the Savino Court referred when it held that the
suppression of evidence could rebut a finding of probable cause.
For the same reasons, plaintiff has failed to allege "actual malice"; a necessary element of
a malicious prosecution claim. Rothstein v. Carriere, 373 F.3d 275, 282 (2d Cir. 2004). Plaintiff
has provided no malicious motive that would have caused these detectives to prosecute him for
any reason other than a belief that he could be guilty; the conflicting evidence facing these
detectives, including a positive identification by an eye witness, demonstrates a reasonable basis
for their belief that plaintiff was guilty.
5
B.
False Arrest
To state a claim for false arrest under§ 1983, a "plaintiff must show: (I) the defendant
intended to confine the plaintiff, (2) the plaintiff was conscious of the confinement, (3) the
plaintiff did not consent to the confinement and (4) the confinement was not otherwise
privileged." Bernard v. United States, 25 F.3d 98, 102 (2d Cir. 1994). If the defendant had
probable cause to arrest the plaintiff, the confinement is considered to have been "privileged"
and the false arrest claim fails. Jocks v. Tavernier, 316 F.3d 128, 135 (2d Cir. 2003). Moreover,
where an individual's arrest is effectuated pursuant to a warrant, it is well-established that there
can be no claim for false arrest. See Williams v. Young, 769 F. Supp. 2d 594, 602 (S.D.N.Y.
2011) (citing Singer v. Fulton County Sheriff, 63 F.3d 110, 118-19 (2d Cir. 1995)). Plaintiffs
amended complaint makes clear that he was arrested "pursuant to a warrant." His false arrest
claim must therefore be dismissed.
C.
First Amendment Retaliation
In the context of prisons, a retaliation claim under the First Amendment is adequately
pled if the plaintiff alleges facts tending to establish "(I) that the speech or conduct at issue was
protected, (2) that the defendant took adverse action against the plaintiff, and (3) that there was a
causal connection between the protected speech and the adverse action." Dawes v. Walker, 239
F.3d 489, 492 (2d Cir. 2001). Plaintiff does not allege facts in support of any of these factors.
He does not explain what "speech or conduct" is at issue here, let alone how he was punished for
this speech. Under his "FIRST AMENDMENT RETALIATION" heading, plaintiff states that
"despite the fact he has a long misdemeanor arrest record and the 66th precinct or the New York
City Police department failed several times to take him off the streets, he was engaged in a
Constitutionally protected 5th Amendment due process and 14th Amendment Equal Protection
6
Right to enjoyment or Pursuit of Liberty, he was subjected to adverse action that would likely
chill a person of ordinary firmness .... " This sentence is incomprehensible. Furthermore, the
facts alleged in the complaint - which are set forth in plain English- shed no light on plaintiff's
grounds for bringing a First Amendment claim. This claim is therefore dismissed.
D.
Due Process and Cruel and Unusual Punishment
Although plaintiff brings claims under the headings "DUE PROCESS" and "CRUEL
AND UNUSUAL PUNISHMENT," a pre-trial detainee such as plaintiff is not entitled to the
Eighth Amendment's protection against cruel and unusual punishment, since "as a pre-trial
detainee the plaintiff is not being 'punished."' Caiozzo v. Koreman, 581 F.3d 63,69 (2d Cir.
2009) (citing Cuoco v. Moritsugl,l, 222 F. 3d 99, 106 (2d Cir. 2000)). Instead, pre-trial detainees
in state custody are protected against mistreatment at the hands of prison officials by the Due
Process Clause of the Fourteenth Amendment. ld.
Allegations that defendants have denied a detainee access to basic human needs such as
food or water are evaluated under the deliberate indifference standard, see Benjamin v. Fraser,
343 F.3d 35, 50 (2d Cir. 2003), which requires a plaintiff to establish both that his conditions fell
below the "minimal civilized measure of life's necessities," and that defendants knew of and
disregarded an excessive risk to the detainees health or safety. Trammel v. Keane, 338 F.3d 155,
161 (2d Cir. 2002); Caiozzo, 581 F.3d at 72.
Reading plaintiffs pro se complaint in a light most favorable to him, he has alleged that
he was shackled to a wall for 18 hours, during which time he was denied food, water, and the
chance to use the toilet. While the denial of access to a bathroom for several hours likely does
not amount to a serious deprivation of human needs,
see,~.
Jones v. Marshall, No. 08 Civ.
0562,2010 U.S. Dist. LEXIS 3608, at *9-10 (S.D.N.Y. Jan. 19, 2010), plaintiffs allegation that
7
he was unable to eat, drink, or use the bathroom for 18 consecutive hours is sufficient to avoid
dismissal for failure to state a claim under 28 U.S. C.§ 1915 (e)(2)(B). See Trammel v. Keane,
338 F.3d 155, 165 (2d Cir. 2002) (noting that deprivation oftoiletries can rise to unconstitutional
conditions, and citing a Third Circuit decision denying summary judgment based in part on
denial of a urinal for twenty-nine hours) (citing Young v. Quinlan, 960 F.2d 351, 365 (3d Cir.
1992)); Deblasio v. Rock, No. 9:09-CV-1077, 2010 U.S. Dist. LEXIS 143794, at *48-49
(N.D.N.Y. Sep. 26, 2010) (alleged denial of bathroom access for five hours despite plaintiffs
complaints sufficient to survive summary judgment). This claim may therefore proceed.
E.
Monell
As this Court explained in its Memorandum Decision and Order dated May 29,2012,
plaintiff may not sustain a § 1983 claim against the City of New York unless he alleges facts
tending to show that an officially adopted policy or custom caused the deprivation of a
constitutional right. Bd. of County Comm'rs of Bryan County, Okl. v. Brown, 520 U.S. 397,
403, 117 S. Ct. 1382 (1997) (citing Monell v. NYC Dep't of Soc. Servs., 436 U.S. 658,98 S. Ct.
2018 (1978)). Plaintiff has not cured the deficiencies in his Monell claim noted by this Court in
the May, 2012, Order. In his amended complaint, plaintiff vaguely alleges that the City of New
York is racist and xenophobic, and that New York City police officers utilize racial profiling and
are not trained regarding diversity. These generalized allegations are not supported by facts
sufficient to make plaintiff's Monell claim plausible. The City of New York, which was
dismissed from this case in the Court's May, 2012, Order, therefore will not be reinstated as a
defendant in this action despite being listed in the caption of plaintiff's amended complaint.
8
CONCLUSION
Plaintiffs claims for malicious prosecution; false arrest; First Amendment retaliation;
and cruel and unusual punishment are dismissed under 28 U.S.C. §§ 1915(e)(2)(B). Plaintiffs
Due Process Clause claim against the individual defendants- Detective William Greer, Shield#
17751; James M. Williams and Larry A. Olinsky of Command 0580; and Detectives Ryan and
Moy of the 66th Precinct - is the only claim that may proceed. The Court certifies pursuant to 28
U.S.C. § 1915(a)(3) that any appeal from this Order would not be taken in good faith and
therefore in forma pauperis status is denied for purpose of an appeal. Coppedge v. United
States, 369 U.S. 438,444-45, 82 S. Ct. 917 (1962).
SO ORDERED.
Dated; Brooklyn, New York
July 24, 2012
9
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?