Bejaoui v. City of New York et al
MEMORANDUM & ORDER: The court finds that Plaintiff's federal and state false arrest claims are barred by the statute of limitations; and each of Plaintiff's other claims fail on substantive grounds to state a claim up on which relief can be granted. See Fed. R. Civ. P. 12(b)(6). As a result, Defendants' 7 motion to dismiss is GRANTED, and each of Plaintiff's claims against the City and the unnamed officers is DISMISSED WITH PREJUDICE. In addition, Plaintiff is hereby ORDERED TO SHOW CAUSE by Friday, May 1, 2015, as to why his claims against the civilian defendants should not be dismissed for failure to serve. See Fed. R. Civ. P. 4(m). If Plain tiff fails to respond in writing by May 1, 2015, the court will dismiss with prejudice Plaintiffs claims against the civilian defendants, and will direct the clerk of court to close this case. So Ordered by Judge Nicholas G. Garaufis on 3/31/2015. (Lee, Tiffeny)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
MEMORANDUM & ORDER
-against13-CV-5667 (NGG) (RML)
THE CITY OF NEW YORK, Police Officers "JOHN
and JANE DOE" 1through10 of the NYPD's 60th,
62nd, and 68th Precincts, KA WSAR MANSY,
SARA MANSY, MOHAMMED MANSY, and
NICHOLAS G. GARAUFIS, United States District Judge.
PlaintiffMondher Bejaoui ("Plaintiff' or "Bejaoui") brings this action pursuant to 42
U.S.C. § 1983 against the City ofNew York (the "City"), several unknown officers of the New
York City Police Department ("NYPD"), and civilians Kawsar Mansy, Sara Mansy, Mohammed
Mansy, and Sabeena Mandi. 1 (See Comp!. (Dkt. 1) ~ I.) Plaintiff seeks compensation for the
alleged violation of his constitutional rights, arising out of several arrests and his prosecution in
New York State court between December 2006 and October 2010. (See
24.) The City of
New York filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b) on both
substantive and procedural grounds, both on its behalf and on behalf of the unknown officers
(collectively, the "Defendants"). (See Mot. to Dismiss ("Mot.") (Dkt. 7) at 2.) For the reasons
set forth below, Defendants' motion is GRANTED in its entirety, and Plaintiffs claims are
DISMISSED WITH PREJUDICE.
As of the date of this Memorandum and Order, the docket in this action reflects that the civilian defendants have
not been served with process. See infra Part III.
Facts Alleged in the Complaint
The following facts are alleged in Plaintiff's Complaint. Sometime in late Fall 2006,
Plaintiff, who ran an accounting business based in Brooklyn, New York, fired one of his
employees, Kawsar Mansy, for allegedly stealing money from the business. (Comp!.
On December 4, 2006, Plaintiff received a call from the NYPD's 62nd Precinct requesting that
he come to the police station. (Id.
When Plaintiff arrived at the station, he was
immediately arrested and charged with (I) harassment in the second degree, and (2) aggravated
harassment in the second degree for making phone calls to his former employee, requesting that
she return the money. (Id.) After Plaintiff had been processed, on December 5, 2006, he was
brought before a Kings County Criminal Court Judge, who released Plaintiff on his own
On June 7, 2007, Plaintiff made an appearance in Kings County Criminal Court in
connection with the December 4, 2006, arrest and charges. (Id.
While he was in the
courthouse, Plaintiff was arrested by an NYPD officer, who handcuffed him and brought him to
the 60th Precinct. (Id.) There, Plaintiff was charged with two additional counts of aggravated
harassment in the second degree for violating an order of protection2 by placing phone calls to
Sara Mansy, his former employee's sister, requesting that she tell her sister to drop the charges
against him. (Id.) Plaintiff was processed and released on his own recognizance that same day.
On July 3, 2007, officers from the NYPD's 68th Precinct came to Plaintiff's home and
arrested him again for violating the order of protection by calling Mohammed Mansy, his former
employee's father. (!_d, if 12.) Plaintiff was taken to the 68th Precinct and charged with: (I) two
This order was presumably issued in connection with the earlier charges.
counts of criminal contempt in the first degree; (2) two counts of criminal contempt in the second
degree; (3) tampering with a witness in the third degree; and (4) harassment in the second
degree. (Id.) Plaintiff was then taken to Kings County Central Booking, where he was
remanded on a bail package set at $25,000. (Id.) Unable to make bail, Plaintiff was detained at
Riker's Island Correctional Facility. (Id.) On or about July 10, 2007, Plaintiff was taken to
Kings County Criminal Court, where bail was dropped, and Plaintiff was released from custody.
if 13.) Nonetheless, these charges were subsequently consolidated with the prior charges into
a single indictment, which issued against Plaintiff on August 1, 2007. (Id.
On May 15, 2008, Plaintiff appeared in Kings County Supreme Court in connection with
the August 1, 2007, indictment. (Id.
if 16.) At that appearance, Plaintiff was remanded into
custody on allegations that he had again contacted Kawsar Mansy, in violation of the order of
protection. (Id.) Unable to make bail, which was set at $50,000, Plaintiff was again remanded to
custody at Riker's Island, where he was held for over two years. (Id.
On July 29, 2010, Plaintiff was taken into custody by the Federal Bureau of Investigation
and transferred to the Metropolitan Correctional Center ("MCC") in Manhattan in connection
with mail fraud charges based on unrelated conduct. (Id.
ifif 20-21.) His transfer
notwithstanding, Plaintiff continued to make appearances in Kings County Supreme Court,
during which he alleges the prosecution repeatedly announced it was not ready for trial,
indicating on one occasion that the complaining witness was getting married, and on another,
that the complaining witness was sick. (Id.
ifif 17, 22.) Plaintiff's state law charges were
ultimately dismissed on October 12, 2010, but Plaintiff remained in federal custody until
September 19, 2013. 3 (Id.
ifif 17, 20-22.)
Plaintiff is not seeking to recover damages stemming from his federal arrest and detention. (!!l ~ 22.)
Plaintiff contends that while he was incarcerated, he developed a nerve problem that was
never treated, which resulted in the loss of the use of his legs and confined him to a wheelchair. 4
(Id.~ 18.) Plaintiff also alleges that as a consequence of his multiple arrests and lengthy
imprisonment, he suffered and continues to suffer serious physical and emotional injuries. (Id.
24-27.) Beyond these physical and emotional injuries, Plaintiff further maintains that while
he was detained at MCC, he was ruled to be mentally incompetent to stand trial with respect to
his federal charges "from December 2010 to September of2012." (Id.~ 23.) According to
Plaintiff, "this information goes to toll plaintiff['s] time to file the within action, as well as the
fact that he was ultimately released from incarceration on September 19, 2013."
Additional Facts Offered by Defendants
Defendants attach to the motion certain additional documents that Plaintiff did not
explicitly include in the Complaint, but which Defendants contend supplement the relevant facts
alleged by Plaintiff. 5 (See Mot. at 3-4.) Of particular relevance here is the additional
information about Plaintiffs federal criminal prosecution, United States v. Bejaoui, No. 10-CR553 (SHS) (S.D.N. Y.), before U.S. District Judge Sidney H. Stein in the Southern District of
In the Complaint, Plaintiff does not indicate when this problem developed, or when he was confined to a
'Specifically, Defendants provide NYPD records indicating that Plaintiff was arrested on December 4, 2006, as a
result ofKawsar Mansy's complaint that Plaintiff"has been calling her numerous times," and stated, "Ifl can't have
you I'll shoot you." (Dec. I, 2006, Complaint Report; Dec. 4, 2006, Arrest Report (Deel. of Matthew J. Modafferi
("Modafferi Deel."), Ex. C (Dkt. 8-3)).) Another set ofNYPD records demonstrate that Plaintiff was arrested on
June 7, 2007, in connection with a complaint by Sara Mansy that Plaintiff called her and threatened her sister in
violation of a valid order of protection. (See June 4, 2007, Complaint Report; June 6, 2007, Complaint Follow-up
Report; June 7, 2007, Arrest Report (Modafferi Deel., Ex. D (Dkt. 8-4)).) NYPD records further indicate that
Plaintiff was arrested on July 3, 2007, as a result of Mohamed Mansy's complaint that Plaintiff told him, "I know
your daughters filed complaints against me and I need to hurt them," which violated two orders of protection against
Plaintiff. (June 28, 2007, Complaint Report; July 3, 2007, Arrest Report (Modafferi Deel., Ex. E (Dkt. 8-5)).)
Defendants also attach documents related to Plaintiff's obligation to file a notice of claim. According to
Defendants' submission, on March 2, 201 I, the New York City Comptroller's Office received Plaintiff's Notice of
Claim, which was dated February 22, 2011. (Personal Injury Claim Forrn (Modafferi Deel., Ex. H (Dkt. 8-7)
at 1-2).) On April 7, 2011, the Comptroller's Office responded, notifying Plaintiff that his claim had been
disallowed as a result of his failure to file within 90 days from the date ofoccurrence as required by the New York
City General Municipal Law section 50-e. (Apr. 7, 201 I, Ltr. from Verna Baptiste to Mondher Bejaoui (Modafferi
Deel., Ex. Hat 3).)
New York. On October 6, 2011-while Plaintiff was apparently in federal custody in Devens,
Massachusetts-Judge Stein found that Plaintiff was mentally incompetent to stand trial in that
case, and committed Plaintiff to hospitalization or treatment in a medical facility. (See
Oct. 7, 2011, Order, Bejaoui, No. 10-CR-553 (Modafferi Deel., Ex. F (Dkt. 8-6)).) Plaintiff was
subsequently transferred to a federal medical center in Butner, North Carolina, for the purpose of
determining whether he was likely to be restored to competency. (Oct. 3, 2012, Hr'g Tr.
at 3:14-17, Bejaoui, No. 10-CR-553 (Modafferi Deel., Ex. G (Dkt. 8-7)).) But in March 2012,
two forensic psychiatrists examined Plaintiff and determined that he was in fact competent to
stand trial, and that he had been "malingering, that is, intentionally displaying or exaggerating
symptoms of mental illness." (Id. at 3:17-22.) On August 13 and 14, 2012, after Plaintiff had
been examined by his own psychiatric expert, Judge Stein conducted a hearing pursuant to 18
U.S.C. § 4247(d) to determine Plaintiffs competency to stand trial. (Id. at 4:8-12.) On
October 3, 2012, Judge Stein found by a preponderance of the evidence that Plaintiff was
competent to stand trial, could understand the nature and consequences of the proceedings
against him, and had the ability to assist properly in his defense. 6 (Id. at 2:16-19, 16:6-9.)
On October 15, 2013, Plaintiff filed the instant Complaint against Defendants alleging
that these arrests and his detention in state custody violated his rights under the federal
In reaching this conclusion, Judge Stein emphasized "the apparent disconnect between the symptoms of psychosis,
paranoia, and dementia at times demonstrated by [Plaintiff] in the presence of his physicians and his attorneys on the
one hand and, on the other hand, what both sides concede is a markedly improved mental capacity when he speaks
with his wife or friend by telephone on the other hand." (Id. at 6: 11-17; see also id. at 8:24-9:5 ("Bejaoui expressed
strikingly disorganized thoughts to his examiners, but when he wanted something from the medical personnel ... he
became intelligible to such a degree that he dealt directly with a notary, told him where to sign the document ... and
even pointed out to her [sic] that the power of attorney granted the power solely over his financial affairs."); 10:5-14
(noting Plaintiffs phone calls with a friend, which were recorded, "reveal[ed] that he is able to digest complex
issues"); 13:9-14:12 (noting Plaintiffs phone calls with his wife established that Plaintiff"ha[d] a significant ability
to strategize in protecting and advancing his own interests even in a legal context and, when motivated, can
effectively communicate his thinking and directions to others").) Judge Stein ultimately determined that Plaintiff
"consider[ ed] his noncooperative behavior to be a method of influencing his attorneys." (Id. at 15:21-23.)
Constitution and New York State common law. (See generally Comp!.) Pursuant to 42 U.S.C.
§§ 1983 and 1985, Plaintiff asserts federal causes of action for false arrest (see id. iii! 30-32 (First
Cause of Action)), malicious prosecution (id.
iii! 36-38 (Third Cause of Action)), violation of his
Sixth Amendment speedy trial right fuh iii! 39-41 (Fourth Cause of Action)), and municipal
liability (id. iii! 45-47 (Sixth Cause of Action)). Plaintiff also alleges state law claims of false
iii! 33-35 (Second Cause of Action)), malicious prosecution (id. iii! 42-44 (Fifth Cause
of Action)), and negligence (id.
iii! 48-50 (Seventh Cause of Action)).
On April 30, 2014, Defendants moved to dismiss Plaintiffs Complaint under Federal
Rule of Civil Procedure 12(b)(6). (Mot. at 2.) It their motion, Defendants argue that each of
Plaintiffs claims is barred on statute oflimitations grounds, and that Plaintiffs state law claims
are further barred as a result of Plaintiffs failure to comply with state law notice-of-claim
requirements. (Id. at 2, 13-14.) Defendants further contend that Plaintiffs federal and state
claims against the unnamed officers as well as the municipality must be dismissed on substantive
grounds insofar as they fail to state a claim upon which relief may be granted. (Id. at 2.) As the
court noted above, Defendants also attach certain documents to the motion that Plaintiff did not
include in his Complaint. 7 Defendants contend that the court may consider these in deciding
their motion to dismiss. (Id. at 5-7.) In the alternative, Defendants ask that the court convert the
motion to dismiss into a Rule 56 motion for summary judgment pursuant to Rule 12(d). (Id.
Plaintiff responded in opposition to the motion on June 26, 2014. (Mem. in Opp'n to
Mot. ("Opp'n") (Dkt. I 0).) In response to Defendants' claims on statute of limitations grounds,
Plaintiff argues, among other things, that he is entitled to statutory tolling for some of his claims
In addition, both Plaintiff and the City attach to their moving papers separate copies of Plaintiff's indictment in
People v. Bejaoui, No. 6397/2007 (N.Y. Sup. Ct.). (Deel. ofChidi Eze, Ex. 2 (Dkt. I 1-2); Modafferi Deel., Ex. B
on the basis of his mental incapacity (see id. at 9-10), and-generously construed-equitable
tolling for other claims on the basis of his incarceration (see id. at 7, 10, 11). Defendants
submitted a reply on July 11, 2014. (Reply in Supp. of Mot. ("Reply") (Dkt. 12).)
"An argument that the statute of limitations bars a claim is properly raised in a motion to
dismiss under Rule 12(b)(6)." Vasconcellos v. Citv ofN.Y., No. 12-CV-8445 (CM), 2014
WL 4961441, at *2 (S.D.N.Y. Oct. 2, 2014) (citing Adams v. Crystal City Marriott Hotel,
No. 02-CV-10258 (PKL), 2004 WL 744489, at *2-3 (S.D.N.Y. Apr. 6, 2004); Harriman v.
IRS, 233 F. Supp. 2d 451, 455 (E.D.N.Y. 2002)); see also Bastien v. Samuels, No. 14-CV-1561
(JFB) (AKT), 2014 WL 5306016, at *3 (E.D.N.Y. Oct. 15, 2014) ("Although the statute of
limitations is an affirmative defense, it 'may be raised by a pre-answer motion to dismiss under
Rule 12(b)(6) without resort to summary judgment procedure, ifthe defense appears on the face
of the complaint." (quoting Pani v. Empire Blue Cross Blue Shield, 152 F.3d 67, 74 (2d
Cir. I 998))), appeal filed, No. 14-4326 (2d Cir. Nov. 12, 2014). This principle is significant
"because the [c]ourt may only consider the complaint and documents attached thereto or
incorporated by reference when deciding a motion to dismiss pursuant to Rule 12(b)(6)."
Harriman, 233 F. Supp. 2d at 455. Thus, the court begins by outlining the appropriate standard
used in evaluating a Rule 12(b)(6) motion before proceeding to analyze the types of documents it
may consider when conducting that evaluation.
Motion to Dismiss
The purpose of a motion to dismiss for failure to state a claim under Rule 12(b)(6) is to
test the legal sufficiency of a plaintiffs claims for relief. See Patane v. Clark, 508 F.3d I 06, 112
(2d Cir. 2007). In reviewing a complaint, the court must accept as true all allegations of fact, and
draw all reasonable inferences from these allegations in favor of the plaintiff. ATS! Commc'ns.
Inc. v. Shaar Fund. Ltd., 493 F.3d 87, 98 (2d Cir. 2007).
A complaint will survive a motion to dismiss if it contains "sufficient factual matter
accepted as true, to 'state a claim to relief that is plausible on its face."' Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell At!. Coro. v. Twombly, 550 U.S. 544, 570 (2007)).
Plausibility "is not akin to a 'probability requirement,"' but requires "more than a sheer
possibility that a defendant has acted unlawfully." Id. at 678 (quoting Twombly, 550 U.S.
at 556). "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 misconduct alleged."
Id. "(M]ere 'labels and conclusions' or 'formulaic recitation[s] of the elements ofa cause of
action will not do'; rather, the complaint's '[f!actual allegations must be enough to raise a right
to relief above the speculative level.'" Arista Records. LLC v. Doe 3, 604 F.3d I IO, 120 (2d
Cir. 2010) (emphasis in original) (quoting Twombly, 550 U.S. at 555). A complaint does not
suffice "if it tenders 'naked assertion[ s]' devoid of 'further factual enhancement."' Iqbal, 556
U.S. at 678 (quoting Twombly, 550 U.S. at 557).
Extrinsic Documents Considered
Rule 12 also provides as follows:
If, on a motion under Rule 12(b)(6) or 12(c), matters outside the
pleadings are presented to and not excluded by the court, the
motion must be treated as one for summary judgment under Rule
56. All parties must be given a reasonable opportunity to present
all the material that is pertinent to the motion.
Fed. R. Civ. P. 12(d). Thus, as a general rule, courts "do not consider matters outside the
pleadings in deciding a motion to dismiss for failure to state a claim." Nakahata v. N.Y.Presbyterian Healthcare Sys., Inc., 723 F.3d 192, 202 (2d Cir. 2013) (citing Global Network
Commc'ns, Inc. v. City ofN.Y., 458 F.3d 150, 154-55 (2d Cir. 2006)). "As indicated by the
word '[must],' the conversion ofa Rule 12(b)(6) motion into one for summary judgment under
Rule 56 when the court considers matters outside the pleadings is strictly enforced and
mandatory." Id. (citing Global Network, 458 F.3d at 155).
This conversion requirement notwithstanding, in certain circumstances a court "may
permissibly consider documents other than the complaint in ruling on a motion under
Rule 12(b)(6)." Roth v. Jennings, 489 F.3d 499, 509 (2d Cir. 2007). "Documents that are
attached to the complaint or incorporated in it by reference are deemed part of the pleading and
may be considered." Id. In addition, "even if not attached or incorporated by reference," id.,
extrinsic materials may be considered by the court if they are "integral to the complaint" or
appropriate subjects for judicial notice. See Global Network, 458 F.3d at 156 (citing Cortec
Indus. v. Sum Holding L.P., 949 F.2d 42, 48 (2d Cir. 1991) (integral to the complaint); Kramer
v. Time Warner Inc., 937 F.2d 767, 773-74 (2d Cir. 1991) Gudicial notice)).
For a document to be considered integral to a complaint, a plaintiff must "!:rlW on the
terms and effect of [the] document in drafting the complaint ... ; mere notice or possession is
not enough." Id. (alterations and emphasis in original) (quoting Chambers v. Time Warner,
Inc., 282 F.3d 147, 153 (2d Cir. 2002) (courts may consider an extrinsic document when the
complaint "relies heavily upon its terms and effect")). "Where plaintiff has actual notice of all
the information in the movant's papers and has relied upon these documents in framing the
complaint," however, "the necessity of translating a Rule 12(b)(6) motion into one under Rule 56
is largely dissipated." Chambers, 282 F.3d at 153. The purpose of this exception is to "prevent
plaintiffs from generating complaints invulnerable to Rule 12(b)(6) simply by clever drafting."
Global Network, 458 F.3d at 157.
Extrinsic materials may also be considered-without converting the motion into one for
summary judgment-if they constitute "facts of which judicial notice may properly be taken
under Rule 201 of the Federal Rules of Evidence." Weiss v. Inc. Viii. of Sag Harbor, 762 F.
Supp. 2d 560, 567 (E.D.N.Y. 2011) (internal quotation marks omitted). Under Rule 201, a court
may take judicial notice of "a fact that is not subject to reasonable dispute because it ... can be
accurately and readily determined from sources whose accuracy cannot reasonably be
questioned." Fed. R. Evid. 201. Thus, "[c]ourt records and other public records are facts of
which a court may properly take judicial notice pursuant to Rule 201." Konrad v. Epley, No. 12CV-4021 (JFB) (ETB), 2013 WL 6200009, at *8 n.5 (E.D.N.Y. Nov. 25, 2013) (order adopting
report and recommendation), aff'd, 586 F. App'x 72 (2d Cir. 2014) (summary order); see also
Global Network, 458 F.3d at 157 ("A court may take judicial notice of a document filed in
another court not for the truth of the matters asserted in the other litigation, but rather to establish
the fact of such litigation and related filings." (quoting Int'l Star Class Yacht Racing Assn'n v.
Tommy Hilfiger U.S.A., Inc., 146 F.3d 66, 70 (2d Cir. 1998))).
While Defendants argue that the complaint reports and arrest reports are integral to the
Complaint, citing Obilo v. City University ofCitv ofNew York, No. 01-CV-5118 (DGT), 2003
WL 1809471, at *3-5 (E.D.N.Y. Apr. 7, 2003) (noting "strong argument" that contents of
incident report, police complaint, and complaint follow-up report were integral or "central" to
plaintiffs false arrest claim), it is hardly clear that Plaintiff in this case heavily relied on the
terms and effects of those documents. See, e.g., Chambers, 282 F.3d at 153; see also Global
Network, 458 F.3d at 157 ("In most instances where this exception is recognized, the
incorporated material is a contract or other legal document containing obligations upon which
the plaintiffs complaint stands or falls, but which for some reason-usually because the
document, read in its entirety, would undermine the legitimacy of the plaintiffs claim-was not
attached to the complaint."); Alvarez v. Cnty. of Orange, N.Y., No. 13-CV-7301(KMK),2015
WL 1332347, at *9 (S.D.N.Y. Mar. 25, 2015) (noting disagreement among district courts in the
Second Circuit as to whether incident reports, arrest reports, and police complaints may be
considered in resolving 12(b)(6) motions with respect to false arrest claims because the
documents are integral to such claims (collecting cases)).
Although it appears that Plaintiff was aware of his dates of arrest, dates of release, and
the charges that were filed against him on each date, it is far from obvious that Plaintiff
actually-let alone, heavily-relied on the complaint reports and arrest reports in drafting his
Complaint, particularly in light of the discrepancy between the content of the reports and what he
alleges with respect to the underlying complaints. Compare supra note 5, with supra Part I.A.
Where, as here, Plaintiff does not mention these documents and does not appear to rely on them,
the court cannot deem such extrinsic materials to be integral to the Complaint in considering
a 12(b)(6) motion to dismiss. See, e.g., Weaver v. City ofN.Y., No. 13-CV-20 (CBA)
(SMG), 2014 WL 950041, at *3 (E.D.N.Y. Mar. 11, 2014) ("[Plaintiff]'s complaint contains no
reference to the arrest report and this Court does not find that the report is 'integral' to
[Plaintiff]'s allegations within the meaning of that exception."); Martin v. Cnty. of Nassau, 692
F. Supp. 2d 282, 289 (E.D.N.Y. 2010) ("[I]n framing his complaint the plaintiff did not rely upon
the documents the defendants are asking the court to consider.").
There is also disagreement among district courts in the Second Circuit as to whether these
types of documents, including notice-of-claim documents, constitute public records of which
courts may take judicial notice. See Alvarez, 2015 WL 1332347, at *10 (collecting cases); see
also Peterec v. Hilliard, No. 12-CV-3944 (CS), 2013 WL 5178328, at *3 (S.D.N.Y.
Sept. 16, 2013) ("It is not proper ... for me to consider either the incident report or Plaintiffs
Notice of Claim in resolving a motion to dismiss where, as here, they were not attached,
incorporated by reference, or integral to the [complaint]." (citing cases)). Defendants cite Harris
v. Howard, No. 08-CV-4837 (CM), 2009 WL 3682537, at *2 (S.D.N.Y. Oct. 30, 2009), for the
proposition that it is "well established" that a district court can rely on arrest reports, among
other materials, as public records in deciding a motion to dismiss. (See Mot. at 6.) But where
many courts disagree-including courts in this district-and the Second Circuit has not explicitly
held as much, this court hesitates to make such a finding. See Alvarez, 2015 WL 1332347,
at * 11 ("[C]aution must be used in determining that a fact is beyond controversy under
Rule 201(b)." (quoting Int'! Star, 146 F.3d at 70)).
Moreover, whether the court takes these documents into account has no effect on the
ultimate decision on Defendants' motion to dismiss in this case. As the following analysis
shows, Plaintiffs claims fail on procedural and substantive grounds regardless of the content of
the extrinsic materials. See infra Part Il.B.2-3. In drawing this conclusion, the court only need
consider Plaintiffs state court indictment, and Judge Stein's orders in Plaintiffs federal case,
which are both clearly public records 8 upon which this court can rely-not for the truth of the
matters asserted, but to establish their existence and legal effect. See Roth, 489 F.3d at 509 ("If
the court takes judicial notice, it does so in order 'to determine what statements [they]
contained'-but 'again not for the truth of the matters asserted."' (emphasis in original) (quoting
It does not appear that the indictment is incorporated by reference into Plaintiffs Complaint. Cf.. e.g., Sira v.
Morton. 380 F.3d 57, 67 (2d Cir. 2004) ("Limited quotation ti-om or reference to documents that may constitute
relevant evidence in a case is not enough to incorporate those documents, wholesale into the complaint."); Cosmas
v. Hassett, 886 F.2d 8, 13 (2d Cir. 1989) (documents not incorporated by reference where complaint "merely
discussed these documents and presented short quotations ti-om them").
Kramer, 937 F.2d at 774); see also Rothman v. Gregor, 220 F.3d 81, 92 (2d Cir. 2000) (citing 5Star Mgmt.. Inc. v. Rogers, 940 F. Supp. 512, 518 (E.D.N.Y. 1996) (taking judicial notice of
pleadings in other lawsuits)); Crews v. Cnty. of Nassau, No. 06-CV-2610 (JFB) (WDW), 2007
WL 316568, at *2 n.2 (E.D.N.Y. Jan. 30, 2007) ("Courts routinely take judicial notice of
documents filed in other courts ... not for the truth of the matters asserted in other litigation, but
rather to establish the fact of such litigation and related filings." (alteration in original) (quoting
Kramer, 937 F.2d at 774 (internal quotation marks omitted); citing Weizmann Inst. of Sci. v.
Neschis, 229 F. Supp. 2d 234, 247 n.20 (S.D.N.Y. 2002) (taking judicial notice of transcript of
hearing in considering Rule l 2(b)( 6) motion to dismiss)). Thus the court need not, and does not,
decide what effect, if any, the complaint reports, arrest reports, and notice of claim documents
have in deciding the present l 2(b )( 6) motion to dismiss.
Where, as in New York, state law provides multiple statutes of limitations for personal
injury actions, "courts considering § 1983 claims should borrow the general or residual statute
for personal injury actions." Owens v. Okure, 488 U.S. 235, 250 (1989). In New York, the
statute of limitations governing general personal injury actions is three years. 9 Id. at 251; Hogan
v. Fischer, 738 F.3d 509, 517 (2d Cir. 2013) (citing Pearl v. City of Long Beach, 296 F.3d 76, 79
(2d Cir. 2002)); N.Y. C.P.L.R. 214(5) (McKinney 2015)); see also Paige v. Police Dep't of City
of Schenectady, 264 F.3d 197, 199 n.2 (2d Cir. 2001) (applying New York's three-year statute of
limitations to both section 1983 and 1985 claims). While state law governs the statute of
limitations period, federal law determines when a section 1983 claim accrues. Wallace v. Kato,
549 U.S. 384, 388 (2007). Under federal law, "it is the standard rule that [accrual occurs] when
the plaintiff has a complete and present cause of action, that is, when the plaintiff can file suit
The parties do not appear to dispute that New York law governs this action.
and obtain relief." l!L. (alteration in original) (internal quotation marks and citations omitted);
see also Singh v. Wells, 445 F. App'x 373, 376 (2d Cir. 2011) (summary order) ("Under the
federal 'discovery' rule, a cause of action accrues 'when the plaintiff knows or has reason to
know of the injury which is the basis of his action."' (quoting Pearl, 296 F .3d at 80)).
"Although federal law determines when a section 1983 claim accrues, state tolling rules
determine whether the limitations period has been tolled, unless state tolling rules would 'defeat
the goals' of section 1983." Abbas v. Dixon, 480 F.3d 636, 641 (2d Cir. 2007) (quoting
Pearl, 296 F.3d at 80); but see Bd. of Regents of Univ. of State ofN.Y. v. Tomanio, 446
U.S. 478, 484 (1980) ("In § 1983 actions, however, a state statute of limitations and the
coordinate tolling rules are more than a technical obstacle to be circumvented if possible. In
most cases, they are binding rules oflaw."). New York law provides for statutory tolling of
certain actions as a result of a plaintiffs insanity. Specifically, the New York Civil Practice Law
and Rules provide:
If a person entitled to commence an action is under a
disability because of ... insanity at the time the cause of action
accrues, and the time otherwise limited for commencing the action
is three years or more and expires no later than three years after the
disability ceases ... the time within which the action must be
commenced shall be extended to three years after the disability
ceases ... ; if the time otherwise limited is less than three years,
the time shall be extended by the period of disability.
N.Y. C.P.L.R. 208 (McKinney 2015) (emphasis added). 10 "The New York Court of Appeals has
stated that the insanity toll applies to 'individuals who are unable to protect their legal rights
because of an over-all inability to function in society."' Carmichael v. Hobbs, 371 F.
App'x 155, 157 (2d Cir. 2010) (summary order) (quoting McCarthy v. Volkswagen of Am.,
Significantly, "while New York has codified a number of statutory tolling provisions, imprisonment does not
itself act as a toll for prisoners bringing§ 1983 claims." Bastien v. Samuels, No. 14-CV-1561 (JFB) (AKT), 2014
WL 5306016, at *4 (E.D.N.Y. Oct. 15, 2014) (internal quotation marks omitted) (citing cases), appeal filed,
No. 14-4326 (2d Cir. Nov. 12, 2014).
Inc., 435 N.E.2d 1072, 1075 (N.Y. 1982) (holding the insanity toll did not apply "to an
individual claiming mere post traumatic neurosis")); see also Joseph S. v. Hogan, 561 F.
Supp. 2d 280, 315 (E.D.N.Y. 2008) ("The Court of Appeals has stated that New York's insanity
toll should be 'narrowly interpreted' based on its legislative history, which indicates that efforts
to substitute the phrase 'mental illness' for 'insanity' were rejected." (quoting McCarthy. 435
N.E.2d at 1074)).
"Once the defendant demonstrates that the claim facially falls outside the limitations
period, the plaintiff, not the defendant, bears the burden of proof to show that § 208 is applicable
and tolling is appropriate." Washington v. Doe, No. 08-CV-4399 (NGO) (RML), 2011
WL 679919, at *2 (E.D.N.Y. Feb. 16, 2011) (citing Doe v. Holy See (State of Vatican City), 793
N.Y.S.2d 565, 567 (App. Div. 2005)). "Difficulty in functioning is not sufficient to establish
insanity for purposes of§ 208; rather, the plaintiff must be totally unable to function as a result
ofa severe and incapacitating disability." Eng v. Reichardt, No. 14-CV-1502 (ENV) (LB), 2014
WL 2600321, at *3 (E.D.N.Y. June 9, 2014) (quoting Washington, 2011 WL 679919, at *2).
"To qualify for tolling under C.P.L.R. 208, the plaintiff must also satisfy the 'continuous
disability' requirement, which requires a showing that 'the disability of insanity was continuous
during the relevant period."' Basher v. Madonna Realty. No. Ol-CV-5116 (DLI) (VVP), 2007
WL 174130, at *3 (E.D.N.Y. Jan. 19, 2007) (order adopting report and recommendation)
(quoting Libertelli v. Hoffman-La Roche. Inc., 565 F. Supp. 234, 236 (S.D.N.Y. 1983); Carter v.
Doe, No. 05-CV-8432, 2006 WL 2109461, at *3 (S.D.N.Y. July 26, 2006)). "Therefore, 'if the
plaintiff had a lucid interval of significant duration, preceded and followed by a period of
insanity, the toll is lost and not resurrected when a plaintiff relapses into insanity."' Id. (quoting
Carter, 2006 WL 2109461, at *3).
Still, the Second Circuit has also applied so-called "equitable tolling" in section 1983
cases "in 'rare and exceptional circumstances,' where [it] found that 'extraordinary
circumstances' prevented a party from timely performing a required act, and that the party 'acted
with reasonable diligence throughout the period he [sought] to toll."' Walker v. Jastremski, 430
F.3d 560, 564 (2d Cir. 2005) (quoting Doe v. Menefee, 391F.3d147, 159 (2d Cir. 2004)); see
also Smaldone v. Senkowski, 273 F.3d 133, 138 (2d Cir. 2001) (per curiam) (holding that the
"exceptional circumstances" necessary for a plaintiff to establish tolling must be "beyond his
control"). Thus, a court may-as a matter of its discretion--equitably toll a statute of limitations
"where a plaintiffs medical condition or mental impairment prevented her from proceeding in a
timely fashion." See Zerilli-Edelglass v. N.Y. City Transit Aut., 333 F.3d 74, 80, 81 (2d
Cir. 2003) (citing Brown v. Parkchester S. Condos., 287 F.3d 58, 60 (2d Cir. 2002) (Sotomayor,
J.)). "The burden of demonstrating the appropriateness of equitable tolling, however, lies with
the plaintiff." Boos v. Runyon, 201 F.3d 178, 185 (2d Cir. 2000) ("While mental illnesses are as
varied as physical illnesses, which is why [the Second] Circuit adheres to a case-specific
approach, [Plaintiff]'s conclusory and vague claim, without a particularized description of how
her condition adversely affected her capacity to function generally or in relationship to the
pursuit of her rights, is manifestly insufficient to justify any further inquiry into tolling."); see
also Jennings v. Municipality of Suffolk Cnty., No. l l-CV-911 (JFB) (ARL), 2013 WL 587892,
at *5 (noting equitable tolling doctrine is "to be applied sparingly" (citing Nat'! R.R. Passenger
Com. v. Morgan, 536 U.S. IOI, 113 (2002))).
a. False Arrest
"[T]he statute of limitations upon a § 1983 claim seeking damages for a false arrest in
violation of the Fourth Amendment, where the arrest is followed by criminal proceedings, begins
to run at the time the claimant becomes detained pursuant to legal process." Wallace, 549 U.S.
at 397. A claimant is detained pursuant to legal process when, "'for example, he is bound over
by a magistrate or arraigned on charges."' Lvnch v. Suffolk Cnty. Police Dep 't, Inc., 348 F.
App'x 672, 675 (2d Cir. 2009) (summary order) (quoting Wallace, 549 U.S. at 388-89).
Plaintiffs Complaint alleges that he was falsely arrested on three separate occasions:
first, when he was arrested on December 4, 2006, and arraigned on December 5, 2006 (Comp!.
ii 9); second, when he was arrested on June 7, 2007, and arraigned that same day (id. iJ 11); and
third, when he was arrested on July 3, 2007, and arraigned sometime thereafter-no later than
July 4, 200i 1 (i!l iii! 12-13). 12 As a result, the limitations period for each of Plaintiffs false
arrest claims expired on December 7, 2009; June 7, 201 O; and July 5, 2010, respectively. 13
Because Plaintiff filed his Complaint on October 15, 2013, Plaintiffs federal false arrest claims
Although Plaintiff argues that his time to file these claims was tolled as a result of his
continuous incarceration from May 15, 2008, to September 19, 2013 (Opp'n at 11-12), Plaintiff
cites no authority for this proposition, which is plainly contradictory to governing law. See. e.g.,
Venticinque v. Brown, No. 09-CV-2861 (DLI) (MDG), 2010 WL 1486449, at *2 (E.D.N.Y.
Apr. 14, 2010) ("While New York has codified a number of statutory tolling provisions,
imprisonment does not itself act as a toll for prisoners bringing § 1983 claims." (citing Pinaud v.
Plaintiff does not allege the exact day he was remanded to Rikers Island after his July 3, 2007, arrest. (See
Comp!. ii 12.) Plaintiff does allege, however, that he was taken from Rikers Island to Kings County Criminal Court
on or about July IO, 2007, and that this was six or seven days after he arrived at Rikers. (Id. ii 13.)
Plaintiff also appears to allege that he was falsely arrested on May 15, 2008, when he was remanded by a judge on
$50,000 bail. (See Opp'n at I 0.) The court need not address whether this claim is timely filed, as Plaintiff is unable
to plead proximate causation on the part of Defendant officers or the City. See Townes v. City ofN.Y., 176
F.3d 138, 146 (2d Cir. 1999) (tort concept of proximate cause applies in section 1983 actions); see also Wray v. City
ofN.Y., 490 F.3d 189, 193 (2d Cir. 2007) (unless officer misled or pressured the prosecution or trial judge, court
cannot conclude that the officer's conduct caused the violation of plaintiffs constitutional rights). Even if it had
considered this claim, it would also be dismissed with prejudice as untimely. See supra Part 11.B.2.a.
"[W]hen a statute of limitations is measured in years, the last day for instituting the action is the anniversary date
of the start of the limitations period." Mickens v. United States, 148 F.3d 145, 148 (2d Cir. 1998) (citing Fed. R.
Civ. P. 6(a)). If, however, the last day is a Saturday, Sunday, or legal holiday, "the period continues to run until the
end of the next day that is not a Saturday, Sunday, or legal holiday." Fed. R. Civ. P. 6(a)(l)(C).
Cnty. of Suffolk, 798 F. Supp. 913, 922 (E.D.N.Y. 1992)); Coleman v. City ofN.Y., No. 08CV-5276 (JG) (LB), 2009 WL 3381541, at *3 (E.D.N.Y. Oct. 20, 2009) (noting that
incarceration does not entitle plaintiff to equitable tolling because it is not an extraordinary
circumstance within the meaning of Walker, 430 F.3d at 564). Since Plaintiffs federal false
arrest claims are therefore barred on statute of limitations grounds, this failure would not be
cured by further amendment of the pleadings. 14 See. e.g., Harrison v. N.Y., No. 14-CV-1296
(JFB) (AKT), 2015 WL 1413359, at *4 (E.D.N.Y. Mar. 20, 2015); In re Merrill Lynch &
Co., 273 F. Supp. 2d 351, 393 (S.D.N.Y. 2003) ("Any attempt to amend claims barred by the
statute of limitations is futile."). As a result, this claim is DISMISSED WITH PREJUDICE.
b. Malicious Prosecution
A cause of action for malicious prosecution pursuant to section 1983 does not accrue
"until the criminal proceedings have terminated in the plaintiffs favor." Heck v. Humphrey, 512
U.S. 477, 489 (1994); see also Walters v. City Dep't of Corr., 517 F. App'x 41, 42 (2d Cir. 2013)
(summary order) ("The statute of limitations on a malicious prosecution claim begins to run
'when the underlying criminal action is conclusively terminated."' (quoting Murohy v. Lynn, 53
F.3d 547, 548 (2d Cir. 1995))).
In connection with Plaintiffs contention that the statute of limitations with respect to his malicious prosecution
claim is tolled as a result of his mental incompetence from December 2010 to September 2012 (see Opp'n at 9-10),
the court notes Plaintiff has not argued that this toll applies to his false arrest claims. This is not surprising, given
that the latest any such claim expired was July 5, 2010 (see supra Part 11.B.2.a), and even by Plaintiffs own
23). Even if, however, Plaintiff could
allegations, he was not mentally incompetent until December 2010 (Comp
maintain a claim for false arrest based on his May 15, 2008, remand, which he cannot, see supra note 12-----or if
Plaintiff had alleged that his mental incompetency began earlier, the court could take judicial notice of the fact that
Plaintiff was not ruled mentally incompetent until October 6, 2011. (See Oct. 3, 2012, Hr'g Tr. at 2:22 (noting
defense counsel requested psychiatric evaluation on January 24, 2011).) As a result, Plaintiff would still not be
entitled to either statutory or equitable tolling of the statute oflimitations OQ insanity grounds. See N.Y.
C.P.L.R. 208 (requiring insanity at the time the cause of action accrues); Basher v. Madonna Realty. No. 01CV-51I6 (DLI) (VVP), 2007 WL 174130, at *3 (E.D.N.Y. Jan. 19, 2007) (order adopting report and
recommendation) (noting incapacity must be continuous throughout the period to be tolled (quoting Libertelli v.
Hoffman-La Roche Inc., 565 F. Supp. 234, 236 (S.D.N.Y. 1983))); Walker v. Jastremski, 430 F.3d 560, 564 (2d
Cir. 2005) (to obtain equitable tolling, the plaintiff must have acted with "reasonable diligence throughout the
period" he sought to toll (emphasis added)).
Here, Plaintiff alleges that he was indicted on August 1, 2007, but that these charges were
not dismissed until October 12, 2010. (Comp!. iii! 15, 17, 20.) Therefore, the statute of
limitations on his claim for malicious prosecution would have otherwise expired on
October 12, 2013. Mickens v. United States, 148 F.3d 145, 148 (2d Cir. 1998) ("[W]hen a
statute of limitations is measured in years, the last day for instituting the action is the anniversary
date of the start of the limitations period." (citing Fed. R. Civ. P. 6(a)). But, as the City
Reply at 8 n.4), because October 12, 2013, fell on a Saturday, and the following
Monday was a "legal holiday," within the meaning of Federal Rule of Civil Procedure 6(a),
Plaintiffs malicious prosecution claim was timely, since it was filed on October 15, 2013-the
next day that was not a Saturday, Sunday, or legal holiday. 15 See Fed. R. Civ. P. 6(a)(l)(C); see
also Commadari v. Long Island Univ., 89 F. Supp. 2d 353, 379-80 (E.D.N.Y. 2000) (taking
judicial notice of the date of the Thanksgiving holiday in 1998).
Its timeliness notwithstanding, Plaintiffs malicious prosecution claim fails on substantive
grounds. To state a claim for malicious prosecution, a plaintiff is required to establish: "(l) the
initiation or continuation of a criminal proceeding; (2) termination of the criminal proceeding in
plaintiffs favor; (3) lack of probable cause for commencing the proceeding; and (4) actual
malice as a motivation for defendant's actions." Jocks v. Tavernier, 316 F.3d 128, 136 (2d
Cir. 2003); see also Boyd v. City ofN.Y., 336 F.3d 72, 75 (2d Cir. 2003) ("The elements of false
arrest and malicious prosecution under§ 1983 are 'substantially the same' as the elements under
New York law."' (quoting Hygh v. Jacobs, 961F.2d359, 366 (2d Cir. 1992))). "Probable cause,
in the context of malicious prosecution, has ... been described as such facts and circumstances
as would lead a reasonably prudent person to believe the plaintiff guilty." Boyd v. City of
Thus, the court need not consider Plaintiffs tolling argument based on his alleged mental incapacity. (See Comp!.
23; Opp'n at 9-10.)
N.Y., 336 F.3d 72, 76 (2d Cir. 2003). "[T]he existence of probable cause is a complete defense
to a claim of malicious prosecution in New York." Savino v. City of New York, 331 F.3d 63, 72
(2d Cir. 2003).
An indictment by a grand jury creates a presumption that a prosecution was supported by
probable cause. Id. In order to rebut that presumption, a plaintiff must establish that the
indictment was obtained by fraud, perjury, the suppression of evidence, or other police conduct
undertaken in bad faith. Manganiello v. City ofN.Y., 612 F.3d 149, 162 (2d Cir. 2010);
Boyd, 336 F.3d at 76; Savino, 331 F.3d at 72 ("The District Court also correctly recognized that,
under New York law, indictment by a grand jury creates a presumption of probable cause that
may only be rebutted by evidence that the indictment was procured by fraud, perjury, the
suppression of evidence or other police conduct undertaken in bad faith." (emphasis in original)
(internal quotation marks omitted)). "The burden of rebutting the presumption of probable cause
requires the plaintiff to establish what occurred in the grand jury, and to further establish that
those circumstances warrant a finding of misconduct sufficient to erode the 'premise that the
Grand Jury acts judicially."' Rothstein v. Carriere, 373 F.3d 275, 284 (2d Cir. 2004) (quoting
Colon v. City ofN.Y., 455 N.E.2d 1248, 1250 (N.Y. 1983)).
Plaintiff's malicious prosecution claim fails because Plaintiff has not pleaded facts to
plausibly suggest that his grand jury indictment was procured by fraud, perjury, the suppression
of evidence, or other bad faith police conduct. See Savino, 331 F.3d at 73. In fact, insofar as
Plaintiff alleges that he "was not given notice of any Grand Jury proceeding, and was never
called to testify before a Grand Jury" (Comp!. iJ 15), Plaintiff essentially acknowledges that he is
unable to rebut the presumption of probable cause that results from his indictment. See
Rothstein, 373 F.3d at 284 ("[I]n arguing below that the grand jury proceedings were irrelevant,
[appellantJ's counsel conceded that he had no idea what happened before the grand jury. His
belated argument that [the witness] must have testified falsely to the grand jury amounts to rank
speculation."). Moreover, Plaintiff asserts nothing more than the bare and conclusory allegation
that "Defendants maliciously prosecuted plaintiff without probable cause to believe that he
committed the charged offenses." (Comp!. '1] 37.) As a result, not only has Plaintiff failed to
state a claim for malicious prosecution, but the court discerns no basis upon which this failure
may be cured by amended pleadings. See Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000)
("The problem with [Plaintiff]'s causes of action is substantive; better pleading will not cure it.
Repleading would thus be futile. Such a futile request to replead should be denied."). As a
result, Plaintiffs federal malicious prosecution claim is DISMISSED WITH PREJUDICE.
c. Sixth Amendment Violation
Although Defendants argue that Plaintiffs Sixth Amendment claim is barred by the
statute of limitations, Defendants offers no explanation for this contention. (See Mot. at 9.)
Alternatively, however, Defendants argue that to the extent Plaintiff alleges this claim against the
John Doe police officers, Plaintiff cannot satisfy the element of causation with respect to his
speedy trial claim. (Id. at 20.) The court agrees. The Sixth Amendment guarantees that "[i]n all
criminal prosecutions, the accused shall enjoy the right to a speedy and public trial." U.S. Const.
amend. VI. However, a section I 983 action, "like its state tort analogs, employs the principle of
proximate causation." Townes v. City ofN.Y., I 76 F.3d 138, 146 (2d Cir. 1999); see also
Higazy v. Templeton, 505 F.3d 161, 181 (2d Cir. 2007) (Jacobs, C.J., concurring) ("Our cases
affirm that traditional tort law principles apply equally to a Section 1983 plaintiff and require
him to show the causal link from the original police misconduct up to the point of injury in order
to proceed on his claim.").
Thus, "[i]t is well settled that the chain of causation between a police officer's unlawful
arrest and a subsequent conviction and incarceration is broken by the intervening exercise of
independent judgment." Townes, 176 F.3d at 147; see also Wray v. City ofN.Y., 490
F.3d 189, 195 (2d Cir. 2007) (finding no violation of federal constitutional right enforceable
under section 1983 in the absence of evidence that police officer misled or pressured the
prosecution or trial judge); Lundt v. City ofN.Y., No. l 2-CV-1737 (DLC), 2013 WL 5298458,
at *4 (S.D.N.Y. Sept. 20, 2013) ("That independent judgment must be untainted by 'evidence
that the police officer misled or pressured the official who could be expected to exercise
independent judgment."' (quoting Townes, 176 F.3d at 147)). While Townes involved a Fourth
Amendment claim, "there is no reason to read Townes as so limited." Wray, 490 F.3d at 194;
see also id. ("The holding in Townes rests on the broad principles that [i] 'the goal of the Court's
§ 1983 jurisprudence has been to tailor liability to fit the interests protected by the particular
constitutional right in question,' and [ii] '§ 1983 damages should be made available only for
risks that are constitutionally relevant."' (quoting Townes, 176 F.3d at 148)). Therefore, the
court finds no difficulty in applying the Second Circuit's proximate cause requirement to
Plaintiffs Sixth Amendment claim in this case.
Here, Plaintiffs Complaint is silent regarding how the unnamed officers' misled or
pressured the prosecutors or supervising judge, who could be expected to exercise independent
judgment, with respect to the length of Plaintiffs criminal case in state court. See Townes, 176
F .3d at 14 7. Instead, Plaintiff alleges only that it was nearly four years from when he was first
arrested until the dismissal of his charges (see Comp!.
ii 24), and that the prosecution never
announced that it was ready for trial, explaining that the complaining witness was getting
married, or was sick (id.
ii 17). While Plaintiff claims these facts establish that Defendants
violated Plaintiffs Sixth Amendment right to a speedy trial (id. 'i]'i] 19, 40), this is nothing more
than a "naked assertion," utterly "devoid of further factual enhancement," which hardly suggests
a sheer possibility, let alone plausibility, that the unnamed officers proximately caused the delay
of Plaintiffs trial by procuring the unavailability of the complaining witness. See Iqbal, 556
U.S. at 678 (internal quotation marks omitted); see also Wray, 490 F.3d at 195; Lundt, 2013
WL 5298458, at *5 ("It was, of course, the responsibility of prosecutors to make the decision
whether to seek an indictment, to address the court during court appearances ... and to provide
defense counsel with discovery materials.").
As a result, Plaintiff has failed to state a claim upon which any relief could be granted,
and thus, his Sixth Amendment claim is DISMISSED WITH PREJUDICE. See Cuoco, 222 F.3d
at 112 (noting courts should dismiss a claim with prejudice where the complaint, even "liberally
read," does not suggest that "the plaintiff has a claim that she has inadequately or inartfully
pleaded and that she should therefore be given a chance to reframe").
d. Municipal Liability
A municipality cannot be held liable pursuant to 42 U.S. C. § 1983 under a theory of
respondeat superior. Monell v. Dep't of Social Servs., 436 U.S. 658, 692 (1978). To the
contrary, a municipality may only be held liable for the constitutional violations of its employees
when such violations result from the municipality's official policy. Id. at 693. Such a policy
may be (I) an express policy; (2) "a widespread practice that, although not authorized by written
law or express municipal policy, is 'so permanent and well settled as to constitute a "custom or
usage" with the force of law,"' City of St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988)
(quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 167-68 (1970)), for example, a failure to
train or supervise the municipality's employees that amounts to "deliberate indifference to the
rights of persons with whom the police come into contact" such that this shortcoming may "be
properly thought of as a city 'policy or custom' that is actionable under§ 1983," see City of
Canton, Ohio v. Harris, 489 U.S. 378, 388, 389 (1989); Jenkins v. City ofN.Y., 478 F.3d 76, 94
(2d Cir. 2007); or (3) a decision by a person with "final policymaking authority," see Praprotnik,
485 U.S. at 123; Pembaurv. City of Cincinnati, 475 U.S. 469 (1986).
While Plaintiff might purport to allege the existence of(!) an express policy, or (2) a
custom or practice, including a failure to train or supervise amounting to a deliberate
indifference, (see Comp!. iii! 29 (deliberate indifference), 46 (policies, customs, and practices)),
Plaintiffs pleadings are clearly insufficient to survive a motion to dismiss pursuant to
Rule 12(b)(6). First, Plaintiff fails to oppose Defendants' motion with respect to the substance of
this claim in his moving papers (see Opp'n at 11); as a result, this claim appears to have been
abandoned. (See Reply at 3.) Second, as Defendants point out (see Mot. at 15-17), Plaintiffs
claim-regardless of which theory it is based on-is supported by nothing more than conclusory,
boilerplate statements, which fail to allege any facts from which the court might infer the
existence of a practice or policy that has caused an unconstitutional violation. See, e.g., Cuevas
v. City of New York, at *4 (S.D.N.Y. Dec. 7, 2009) ("Baldly asserting that Plaintiffs injuries are
the result of the City's policies does not show this Court what the policy is or how that policy
subjected Plaintiff to suffer the denial of a constitutional right. After stripping away the bare
legal conclusions, the Complaint is devoid of any 'well-pleaded factual allegations ... plausibly
[giving] rise to an entitlement to relief."' (citing Iqbal, 556 U.S. at 679)).
Third, and most significantly, "Monell does not provide a separate cause of action for the
failure by the government to train[, supervise, or discipline] its employees; it extends liability to
a municipal organization where that organization's failure to train, or the policies or customs that
it has sanctioned, led to an independent constitutional violation." Segal v. City ofN.Y., 459
F.3d 207, 219 (2d Cir. 2006). Accordingly, as the court has found that Plaintiffs underlying
section 1983 claims must be dismissed, it need not even decide the question of whether Plaintiff
has adequately pleaded a Monell claim. See id. ("Because the district court properly found no
underlying constitutional violation, its decision not to. address the municipal defendants' liability
under Monell was entirely correct."); see also Johnson v. City ofN.Y., 551 F. App'x 14 (2d
Cir. 2014) (summary order) ("Because [plaintiff] has not alleged a valid underlying
constitutional deprivation, his claim against New York City pursuant to Monell ... must also
fail." (citing City of L.A. v. Heller, 475 U.S. 796, 799 (1986))); Fotopolous v. Bd. of Fire
Comm'rs of Hicksville Fire Dist., 11 F. Supp. 3d 348, 373 (E.D.N.Y. 2014) ("The dismissal of
Plaintiffs underlying claim for First Amendment retaliation requires dismissal of Plaintiffs
municipal liability claim, as Defendants cannot be liable where there is no underlying
constitutional violation."). Accordingly, all claims against the City are DISMISSED WITH
State Law Claims
F a/se Arrest
As Defendants point out, a plaintiff must commence an action against a municipality
within one year and ninety days of the date the cause of action accrues. N.Y. Gen. Mun. Law
Defendants also contend that Plaintiff's claim with respect to municipal liability is barred by the statute of
limitations. (See Mot. at 9; Reply at 3 n.l (citing Lawson v. Rochester Citv Sch. Dist., 446 F. App'x 327, 329 (2d
Cir. 2011) (summary order) ("We have previously held that a§ 1983 cause of action accrues when the plaintiff
becomes aware that [he] is suffering from a wrong for which damages may be recovered in a civil action. We
decline to eviscerate that rule by holding that the limitations period for a cause of action against a municipality runs
anew upon the future discovery of facts tangentially related to [this] claim." (internal citation and quotation marks
omitted)). While it is clear that Plaintiff's section 1983 false arrest claim expired-at the latest-by July 7, 2010,
see supra Part 11.B.2.a, to the extent municipal liability is premised on Plaintiffs section 1983 malicious prosecution
claim, this claim may not have accrued before October 15, 2013. See supra Part ll.B.2.b. As the foregoing section
demonstrates, however, the court need not decide whether the statute of limitations bars Plaintiffs municipal
liability claim, as it fails on substantive grounds. See supra Part Il.B.2.d.
§ 50-i(l )( c). 17 "The accrual of pendant state law tort claims, such as false arrest, in federal court
actions is governed by state law." Mitchell v. Home, 377 F. Supp. 2d 361, 377 (S.D.N.Y. 2005)
(citing Walker v. Armco Steel Coro., 446 U.S. 740, 750-51 (1980)). In New York, a state claim
for false arrest accrues when a plaintiff is released from pre-arraignment custody. Id. at 378
(citing Molyneaux v. Cnty. ofNassau, 209 N.E.2d 286, 286 (N.Y. 1965) (limitations period
began to run when plaintiff was released on own recognizance upon arraignment); Salman v.
Econo Lodge, 755 N.Y.S.2d 678, 678-79 (App. Div. 2003) (same)).
Thus, Plaintiff's claims for false arrest accrued when Plaintiff was released from custody
on each occasion. See T ADCO Const. Com. v. Dormitory Auth. of State ofN. Y., 700 F.
Supp. 2d 253, 272-73 (E.D.N.Y. 2010) (citing Roche v. Viii. of Tarrytown, 766 N.Y.S.2d 46, 47
(App. Div. 2003)). As the court noted above, Plaintiff was released from custody after alleged
false arrests on December 5, 2006; June 7, 2007; and July 3 or July 4, 2007. See supra
Part II.B.2.a. Plaintiff's claims therefore expired on March 4, 2008; September 5, 2008; and, at
the latest, October 2, 2008, respectively. Since Plaintiff did not file this action until
October 15, 2013, his state law false arrest claim is clearly time-barred. See N.Y. Gen. Mun.
Plaintiff appears to argue, however, that-at least with respect to his claims that expired
after May 15, 2008-the statute of limitations was tolled when he was remanded on
May 15, 2008, and continuously held in custody until September 19, 2013. (See Opp'n at I 0.)
As the court noted above with respect to his federal claim for false arrest, this argument has no
basis under New York or federal Jaw. See, e.g., Venticinque, 2010 WL 1486449, at *2 ("While
New York has codified a number of statutory tolling provisions, imprisonment does not itself act
By contrast, plaintiffs have one year to bring a false arrest claims against an individual. See. e.g., TADCO Const.
Coro. v. Dormitory Auth. of State ofN.Y., 700 F. Supp. 2d 253, 272-73 (E.D.N.Y. 2010) (citing N.Y.
as a toll for prisoners bringing§ 1983 claims."); Coleman, 2009 WL 3381541, at *3
(incarceration does not entitle plaintiff to equitable tolling because it is not an extraordinary
circumstance within the meaning of Walker, 430 F.3d at 564). As Plaintiff's state law false
arrest claim is barred on statute of limitations grounds, this failure would not be cured by further
amendment of the pleadings. See Merrill Lynch, 273 F. Supp. 2d at 393. As a result, this claim
is DISMISSED WITH PREJUDICE.
b. Malicious Prosecution
A claim for malicious prosecution pursuant to section 1983 is "substantially the same" as
a claim for malicious prosecution under state law. Jocks, 316 F.3d at 134 (citing Conway v. Vill.
of Mount Kisco, 750 F.2d 205, 214 (2d Cir. 1984)). Since the court has already determined that
Plaintiff's federal law claim for malicious prosecution fails on substantive grounds to state a
claim upon which relief may be granted, see Fed. R. Civ. P. l 2(b)( 6), Plaintiff's state law
malicious prosecution claim is also DISMISSED WITH PREJUDICE. See supra Part 11.B.2.b.
Defendants construe Plaintiff's seventh cause of action as a state law negligence claim
at 21), which Plaintiff does not appear to dispute (see generally Opp'n). As
Defendants point out, however, New York law does not recognize a negligence claim in the
context of an arrest or the initiation of a prosecution. See, e.g., Bernard v. United States, 25
F.3d 98, 102 (2d Cir. 1994) (citing Boose v. City of Rochester, 421N.Y.S.2d740, 743 (App.
Div. 1979)); see also Burbar v. Inc. Viii. of Garden City. 961 F. Supp. 2d 462, 474
(E.D.N.Y. 2013) (quoting Boose, 421 N.Y.S.2d at 744 ("Plaintiff may not recover under broad
general principles of negligence, however, but must proceed by way of the traditional remedies
of false arrest and imprisonment and malicious prosecution.")). As a result, Plaintiff's seventh
cause of action fails to state a claim on which relief can be granted, and is hereby DISMISSED
WITH PREJUDICE. See Cuoco, 222 F.3d at 112.
For the reasons set forth above, the court finds that Plaintiffs federal and state false arrest
claims are barred by the statute of limitations; and each of Plaintiffs other claims fail on
substantive grounds to state a claim upon which relief can be granted. See Fed. R. Civ.
P. 12(b)(6). As a result, Defendants' motion to dismiss is GRANTED, and each of Plaintiffs
claims against the City and the unnamed officers is DISMISSED WITH PREJUDICE."
In addition, Plaintiff is hereby ORDERED TO SHOW CAUSE by Friday, May 1, 2015,
as to why his claims against the civilian defendants should not be dismissed for failure to serve.
See Fed. R. Civ. P. 4(m). If Plaintiff fails to respond in writing by May 1, 2015, the court will
dismiss with prejudice Plaintiffs claims against the civilian defendants, and will direct the clerk
of court to close this case.
s/Nicholas G. Garaufis
NICHOLAS G. GARAUFlg'
United States District Judge
Dated: Brooklyn, New York
March 31, 2015
Because it has dismissed each of Plaintiffs claims with prejudice, the court need not address Defendants'
alternative argument that the unnamed officers would be entitled to qualified immunity. (See Reply at 7.)
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