Skeene v. The City of New York et al
MEMORANDUM AND ORDER, For the foregoing reasons, defts' 11 Motion to Dismiss for Failure to State a Claim is granted. The complaint is dismissed in its entirety. The Clerk of Court is directed to enter judgment accordingly and to close this case.(Ordered by Judge Eric N. Vitaliano on 2/29/16) c/m Fwd. for Judgment. (Galeano, Sonia)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-againstl 4-cv-6054 (ENV) (CLP)
CITY OF NEW YORK, NEW YORK CITY POLICE:
DEPARTMENT P.O. NICHOLAS BEKAS, and
JOHN DOE #1 believed to be a member of the New
York City Police Department, in their official and
On October 15, 2014, John Skeene initiated this action against City of New York ("the
City"), Police Officer Nicholas Bekas of the New York City Police Department ("NYPD"), and a
John Doe also believed to be an NYPD officer, pursuant to 42 U.S.C. § 1983, for alleged
violations of his constitutional rights arising out of his arrest on March 19, 2012. Defendants
now move to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(6). For the
reasons stated below, defendants' motion is granted in its entirety.
On March 19, 2012, at approximately 1:45pm, Skeene arrived on the platform of the
Metropolitan Transit Authority's Jamaica Center/Parsons-Archer subway station in Queens.
Compl. ~~ 25-26. A J train was sitting stationary alongside the platform, and was excessively
crowded. Id. at ~ 26. Many passengers, including Skeene, walked between the train cars seeking
All facts are taken from the complaint and deemed true solely for purposes of this Order.
a car with more room. Id.
Officer Bekas observed Skeene walking between train cars and ordered him to exit the
train. Id. at ii 27. Skeene complied. Id at , 28. Bekas then requested identification, which
Skeene provided. Id. at ii, 28-29. Bekas radioed for support, bringing a John Doe officer to the
scene. Id. at, 30. Skeene's name was also radioed to communications to check for outstanding
warrants. Id. at, 31. After about 10 minutes, Doe searched Skeene's backpack, which revealed
no weapon or contraband. Id at~, 32-33. Skeene admitted that he was on parole, at which
point the officers arrested him and transported him to the local precinct. Id at ii 35. He was held
there before being transported to Queens Central Booking. Id at ~~ 35, 40-41.
Skeene was detained without access to his medication, causing him, he says, to suffer a
panic attack. Id.
The contents of his backpack, present at the time of his arrest, were
subsequently lost or destroyed. Id. at~ 44. Following booking and arraignment, Skeene was
released approximately 24 hours after his arrest. Id. at ~ 41. All charges against him were
ultimately dismissed. Id. at ~ 42. Skeene alleges that he has suffered mental anguish,
humiliation, shame, and other emotional injuries as a result of this encounter with the NYPD. Id.
Skeene charges defendants with false arrest; malicious prosecution; failure to intervene;
municipal liability; negligent hiring, retention, training, and supervision of employees; and
intentional infliction of emotional distress. Defendants argue that Skeene has failed to state a
claim, because 1) he concedes that probable cause existed for his arrest; 2) he failed to plausibly
allege municipal liability; and 3) his state law claims are untimely.
Standard of Review
Federal Rule of Civil Procedure 8(a)(2) requires a "short and plain statement of the claim
showing that the pleader is entitled to relief." A litigant need not supply "detailed factual
allegations" in support of his claims, Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.
Ct. 1955, 167 L. Ed. 2d 929 (2007), but he must provide more "than an unadorned, thedefendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct.
1937, 173 L. Ed. 2d 868 (2009). "A pleading that offers 'labels and conclusions' ... will not
do." Id. (quoting Twombly, 550 U.S. at 555). "Nor does a complaint suffice if it tenders 'naked
assertion[s]' devoid of 'further factual enhancement."' Id. at 678 (quoting Twombly, 550 U.S. at
To survive a Rule 12(b) motion, the complaint "must contain sufficient factual matter,
accepted as true, to 'state a claim to relief that is plausible on its face."' Iqbal, 556 U.S. at 678
(quoting Twombly, 550 U.S. at 570). This "plausibility standard is not akin to a probability
requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully."
Id. (quotations omitted). On a Rule 12(b)(6) motion, the trial court must accept as true all factual
statements alleged in the complaint and draw all reasonable inferences in favor of the nonmoving
party. Vietnam Ass 'n for Victims ofAgent Orange v. Dow Chem. Co., 517 F.3d 104, 115 (2d Cir.
2008) (quotation omitted). In addition, the district court "may consider any written instrument
attached to the complaint, statements or documents incorporated into the complaint by reference
... and documents possessed by or known to the plaintiff and upon which [he] relied in bringing
the suit." ATS/ Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007) (citation
A. False Arrest
A claim for false arrest requires that (1) 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. Singer v. Fulton Cty.
Sheriff, 63 F.3d 110, 118 (2d Cir. 1995) (pointing to New York law, which is "substantially the
same" as the elements essential to a§ 1983 claim). Where probable cause supports the arrest, it
acts as a complete defense. Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996) (citing Bernard v.
United States, 25 F.3d 98, 102 (2d Cir. 1994)). "Probable cause is established where the
arresting officer has 'knowledge or reasonably trustworthy information sufficient to warrant a
person of reasonable caution in the belief that an offense has been committed by the person to be
arrested."' Singer, 63 F.3d at 119 (quoting O'Neill v. Town of Babylon, 986 F.2d 646, 650 (2d
Cir. 1993)). Probable cause need only support a criminal charge that could have been invoked; it
need not support "any charge actually invoked by the arresting officer at the time of arrest."
Jaegly v. Couch, 439 F.3d 149, 154 (2d Cir. 2006) (citing Devenpeck v. Alford, 543 U.S. 146
In this case, there can be no legitimate dispute that probable cause supported Skeene's
arrest-it is pleaded in the complaint. Skeene acknowledges that he was seen walking between
subway cars while the train was being held at the station. Compl. ~~ 26-27. A person is guilty of
violating 21 New York Codes, Rules, and Regulations ("N.Y.C.R.R.") § 1050.9(d) if they "use
the end doors of a subway car to pass from one subway car to another except in an emergency or
when directed to do so by an authority conductor or a New York City police officer." Violators
are subject to criminal prosecution, and may be fined or be sentenced to serve up to ten days in
jail. 21 N.Y.C.R.R. § 1050.lO(a); see also United States v. Miles, 748 F.3d 485, 490 (2d Cir.
2014 (affirming that violation of the ordinance is an arrestable offense). Skeene's counsel
agreed in its opposition:
The city ordinance referenced by Defendants ... clearly
demonstrates that there was probable cause to stop and arrest
Plaintiff Skeene when he was observed passing through one
subway car to another through the end door. Plaintiff concedes
that Police Officer Nicholas Bekas had probable cause to stop
Plaintiff Skeene and had authority to arrest and frisk Skeene ....
Plaintiff's Opposition to the Motion to Dismiss, June 18, 2015 ("Pl. Opp.") at 2.
With probable cause for Skeene's arrest firmly established, any false arrest claim ensuing
from it must fail.
B. Malicious Prosecution
To maintain a malicious prosecution claim in New York, the claimant must show: "(l)
that the defendant initiated a prosecution against [him], (2) that the defendant lacked probable
cause to believe the proceeding could succeed, (3) that the defendant acted with malice, and (4)
that the prosecution was terminated in the [claimant's] favor." Posr v. Court Officer Shield#
207, 180 F.3d 409, 417 (2d Cir. 1999). For a§ 1983 claim, a plaintiff must additionally submit
evidence that there was a sufficient post-arraignment deprivation of liberty. Rotherman v. N. Y.C.
Transit Auth., 215 F.3d 208, 215 (2d Cir. 2000).
As with false arrest, the existence of probable cause is a complete defense to malicious
prosecution. Manganiello v. City o/New York, 612 F.3d 149, 161-62 (2d Cir. 2010). If probable
cause exists at the time of the arrest, "it continues to exist at the time of the prosecution unless
undermined by the discovery of some intervening fact." Johnson v. Constantellis, 221 F. App'x
48, 50 (2d Cir. 2007) (internal quotations omitted).
No such intervening facts are alleged or exist here. Probable cause supported Skeene's
arrest, and it supported his prosecution, notwithstanding the ultimate, and favorable, dismissal of
charges. Skeene's malicious prosecution claim is likewise dismissed.
C. Failure to Intervene and Municipal Liability
A law enforcement officer "has an affirmative duty to intercede on behalf of a citizen
whose constitutional rights are being violated in his presence by other officers." 0 'Neill v.
Krzeminski, 839 F.2d 9, 11 (2d Cir. 1988). But there can be no failure to intervene when there is
no constitutional violation. Feinberg v. City ofNew York, No. 99-CV-12127, 2004 WL
1824373, at *4 (S.D.N.Y. Aug. 12, 2004). Because no constitutional rights having been violated
by Skeene's arrest, this claim on this ground against the officer defendants is dismissed.
With no federal causes of action remaining or available and, in any event, with no
allegation of fact implicating any official municipal policy or custom, the cause claiming
municipal liability must also be dismissed.
D. State Law Claims
Skeene's federal causes of action having been dismissed, the Court exercises
supplemental jurisdiction over his pendent state law claims of negligent hiring, retention,
training, and supervision, and intentional infliction of emotional distress. These claims are, on
their face, time-barred. New York's statute of limitations on these claims is one year and ninety
days. See N.Y. Gen. Mun. Law§ 50-i(l) (McKinney 2013). Skeene's arrest took place on
March 19, 2012. The complaint was not filed until October 15, 2014-nearly two years and
seven months later. The state law claims are, too, dismissed.
For the foregoing reasons, defendants' motion to dismiss is granted. The complaint is
dismissed in its entirety.
The Clerk of Court is directed to enter judgment accordingly and to close this case.
Dated: Brooklyn, New York
February 29, 2016
United States District Judge
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