Gounden v. City of New York et al

Filing 27

MEMORANDUM DECISION & ORDER dated 10/2/15 City's 19 Motion to Dismiss for Failure to State a Claim is granted in part and denied in part. The City of New Yorks 19 motion to dismiss is granted to the extent set forth above. Plaintiffs claims against defendant Statland are dismissed sua sponte pursuant to Rule 4(m) and the Courts discretion to decline to exercise supplemental jurisdiction. Plaintiffs claims against Brown are dismissed, sua sponte, pursuant to Rule 12(b)(6), except for t he claim for selective enforcement, that claim to continue subject to plaintiff effecting valid service on Brown within 30 days. The case is returned to Magistrate Judge Bloom for such pretrial proceedings as she deems appropriate. ( Ordered by Judge Brian M. Cogan on 10/2/2015 ) c/m (Guzzi, Roseann)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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:
KRIS GOUNDEN,
:
:
Plaintiff,
: MEMORANDUM DECISION &
: ORDER
- against :
: 14 Civ. 7411 (BMC)
The CITY of NEW YORK, et al.,
:
:
Defendants.
:
:
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C/M

COGAN, District Judge.
Plaintiff pro se brought this action alleging, among other things, false arrest, malicious
prosecution, and selective enforcement pursuant to 42 U.S.C. § 1983 and state law. The
defendants are the City of New York, one police officer, and one private citizen. Before me is
the City’s motion to dismiss the Complaint for failure to state a claim. For the reasons that
follow, the motion is granted in part and denied in part.
BACKGROUND
This case, which is not plaintiff’s first action before me, has its roots in a long-running
property dispute between plaintiff, some of his neighbors, and defendant the City of New York
involving a section of plaintiff’s property in Howard Beach, Queens County to which the City
claims an easement. The following facts are taken from the Complaint, and are assumed to be
true for the purpose of deciding the instant motion. Defendant Statland is plaintiff’s neighbor
and apparently a beneficiary of the City’s purported easement. Since 2006, plaintiff “has had
numerous contacts with police officers from the 106th precinct regarding neighbors’ trespasses
and plaintiff’s attempt to express control and dominion over” the disputed section of property.

On June 12, 2012, plaintiff was seated in his car at a stop sign, accompanied by his fiveyear-old son, a few blocks from his property. Defendant Statland recognized him and
approached the car. Presumably because he anticipated a confrontation, Statland began filming
plaintiff with a cell-phone camera as he approached the car. Words were exchanged, and
plaintiff apparently exited his car at some point, because he alleges that “as plaintiff was
retreating into plaintiff’s vehicle, defendant Statland slam[med] plaintiff’s car door into
plaintiff’s chest and legs preventing plaintiff from entering plaintiff’s vehicle” and that Statland
“repeatedly slammed a car door into plaintiff’s chest and legs.”
After that, further words were exchanged, some directed at plaintiff’s young son.
Plaintiff emerged from his vehicle (presumably for the second time), and Statland “order[ed]”
plaintiff to “hit me” and “go ahead and hit me.” The Complaint is somewhat ambiguous on what
happened immediately thereafter, but it is the City’s contention that plaintiff punched Statland in
the face, and plaintiff has not unambiguously denied it, perhaps suggesting that any punch was
justified and therefore lawful.
Plaintiff returned to his home and called 911 “to report defendant Statland’s assault,” and
a police van responded. Plaintiff offered the responding officers his own video of the incident,
but they “refused” to view it. The officers knocked on Statland’s door, but he did not answer.
The police conducted no further investigation of his accusation against Statland.
Later the same day, Statland also reported the incident to police. Statland “falsely
asserted that plaintiff unlawfully punched defendant Statland in the face and . . . falsely asserted
that plaintiff unlawfully pushed defendant Statland.” Defendant Brown, a detective, at some
point reviewed Statland’s own video of the incident which “clearly showed defendant Statland’s
assault on plaintiff . . . .”

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Six days later, on June 18th, Brown called plaintiff and asked him to come to the precinct
in connection with a criminal investigation. Plaintiff did so. Plaintiff “related the events of 2012
Ju[ne] 12 to defendant Det. Brown.” He told Brown that he had called 911 on the day of the
incident, but Brown informed him that the call “was not in the system” and that he was unaware
of the call or any resulting investigation. Brown placed plaintiff under arrest, and charged him
with assault.
Plaintiff was arrested again, by another member of the 106th precinct, on July 17, 2012,
for being in contempt of an order of protection by telling defendant Statland that “[t]his is not
over m___f____.”
The criminal charges against plaintiff have since been dismissed.
DISCUSSION
Pro se complaints are held to less stringent standards than those drafted by attorneys, and
I am required to read the plaintiff’s pro se complaint liberally, interpreting it as raising the
strongest arguments it suggests. See Erickson v. Pardus, 551 U.S. 89, 127 S. Ct. 2197 (2007).
The complaint must nevertheless contain sufficient facts to “state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955 (2007).
“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.” Ashcroft
v. Iqbal, 556 U.S. 662, 663, 129 S. Ct. 1937 (2009) (citations omitted).
I.
The City’s brief in connection with the instant motion purports not to be made on behalf
of the individual defendants. Nevertheless, much of its argument relates to defendant Brown.
This is because the sufficiency of plaintiff’s allegations against the City depend in large part on

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the sufficiency of his allegations that defendant Brown’s conduct constituted an underlying
constitutional violation or common-law tort.
In addition, on a motion to dismiss, where there are issues concerning a non-moving
defendant that are “substantially the same as those concerning” the moving defendant, and where
the plaintiff has been given a full opportunity to make out his claim, sua sponte dismissal of a
cause of action under Rule 12(b)(6) is appropriate. See Hecht v. Commerce Clearing House,
Inc., 897 F.2d 21, 26 n.6 (2d Cir. 1990). I have therefore considered the parties’ arguments to
the extent that they bear on individual liability, and dismiss certain claims against the individual
defendants as set forth below.
Plaintiff styles this action largely as one for false arrest. To the extent the Complaint is
so construed, it fails to state a claim. Under both § 1983 and state law, probable cause is a
complete defense to a claim for false arrest. See Weyant v. Okst, 101 F.3d 845 (2d Cir. 1996).
Probable cause “is established when 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 v. Fulton Cnty. Sherriff, 63
F.3d 110, 119 (2d Cir. 1995). When an officer is advised of a crime by a person claiming to
have been the victim, he has probable cause to arrest. See id. Police officers “are neither
required nor allowed to sit as prosecutor, judge or jury. Their function is to apprehend those
suspected of wrongdoing, and not to finally determine guilt through a weighing of the evidence.”
Krause v. Bennett, 887 F.2d 362, 372 (2d Cir. 1989). The arresting officer has no duty “to
investigate exculpatory defenses offered by the person being arrested or to assess the credibility
of unverified claims of justification before making an arrest.” Jocks v. Tavernier, 316 F.3d 128,
135-36 (2d Cir. 2003).

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Plaintiff does not dispute – in fact, he himself alleges – that Brown arrested him after
Statland had advised Brown that plaintiff had punched him in the face. It is not entirely clear
whether plaintiff disputes this accusation or not, but that is irrelevant to probable cause, because
plaintiff does not allege facts or circumstances that would have constituted reason for Brown to
doubt its veracity. See Singer, 63 F.3d at 119. Brown therefore had probable cause to arrest
plaintiff for assault on this basis, without further inquiry into any possible justification or
defense.
For the same reasons, plaintiff fails to state a claim for false arrest in connection with his
July 17, 2012 arrest. Plaintiff does not allege or argue that that he did not confront Statland, only
that the order of protection was not a proper basis to arrest him because his earlier arrest (in
connection with which it was issued) was not based on probable cause. Because there was
probable cause for his first arrest, I need not consider whether plaintiff’s legal theory is valid.
In addition, “a malicious prosecution claim will be defeated by a finding of probable
cause to arrest, unless the plaintiff can demonstrate mitigating facts to vitiate probable cause
which were first uncovered after the arrest.” Carson v. Lewis, 35 F. Supp. 2d 250, 263
(E.D.N.Y. 1999). Plaintiff has alleged no such facts, and therefore has not stated a claim for
malicious prosecution.
II.
The conclusion that plaintiff has failed to sufficiently allege that he was arrested without
probable cause does not mean that he has not stated any claim against Brown. Therefore,
although it is appropriate to dismiss the claims against him for false arrest and malicious
prosecution sua sponte, I do not hold that he is entitled to dismissal from this case.

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Specifically, plaintiff also alleges that Brown “selectively” arrested him, i.e., that Brown
did not make an arrest in connection with plaintiff’s accusation that Statland, among other things,
assaulted him by striking him with a car door. The Complaint in this case suggests that this
difference in treatment of the two criminal complaints was “for the purpose of enforcing the City
of New York’s unconstitutional policy of seizing private land.” Distilled to its essence, what
plaintiff is really saying is that Brown deliberately singled him out for arrest, while turning a
blind eye to his neighbor’s crime against him, because Brown and others at the 106th precinct
support the City’s efforts to force plaintiff to concede the easement.
This claim arises under the Equal Protection Clause, although plaintiff has not framed it
perfectly. 1 First and foremost, it is important to note that an equal protection claim of this
variety does not serve to vitiate probable cause for the arrest. Simply put, a false arrest claim
asserts that a plaintiff was arrested, and that there was insufficient reason to believe that he had
committed a crime. An equal protection claim of this variety asserts that regardless of what
plaintiff did, someone else who should also have been arrested was not, and that there is
insufficient explanation for the difference in treatment.
A plaintiff may show an equal protection violation on a theory of selective enforcement if
he was: (1) selectively treated by law enforcement as compared with others similarly situated,
and (2) that such selective treatment was based on “impermissible considerations such as . . .
malicious or bad faith intent to injure a person.” Latrieste Restaurant & Cabaret Inc. v. Village
of Port Chester, 40 F.3d 587, 590 (2d Cir. 1994).
1

In support of his equal protection claim, in his opposition brief, plaintiff relies exclusively on Myers v. Orange
Cnty., 157 F.3d 66 (2d Cir. 1998). Plaintiff’s reliance on Myers is misplaced. That case stands for the narrow
proposition that a “first-come first-served” policy of investigating cross complaints intended to ensure the “efficient
operation of a DA’s office and the prompt resolution of investigations” bore “no rational relationship to the
legitimate governmental interest in impartial law enforcement” and therefore violated the Equal Protection Clause.
See id. at 74-76. In this case, plaintiff does not argue, and could not seriously argue, that defendant Brown acted in
accordance with any NYPD policy concerning the priority given to cross complaints, or gave preference to
defendant Statland’s complaint because it was lodged second in time.

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With respect to the first requirement:
Similarly situated does not mean identical, but rather a reasonably close
resemblance of the facts and circumstances of plaintiff’s and comparator’s cases,
to the extent that an objectively identifiable basis for comparability exists. To
satisfy this less-demanding test [than identicality] . . . plaintiffs must identify
comparators whom a prudent person would think were roughly equivalent, but
plaintiffs need not show an exact correlation between themselves and the
comparators. Exact correlation is neither likely or necessary, but the cases must
be fair congeners. In other words, apples should be compared to apples.
Best v. New York City Dep’t of Correction, 14 F. Supp. 3d 341, 352 (S.D.N.Y. 2014) (quotation
and alternations omitted).
Here, plaintiff has alleged that he was arrested for punching Statland, but that Statland
was not arrested for “repeatedly slamming” a car door into his chest and legs. In the absence of
any other explanation for the fact that one led to an arrest and the other did not, the seriousness
of these accusations are similar enough to support the conclusion that plaintiff and Statland were
treated differently under circumstances that were “roughly equivalent.”
With respect to the second requirement, plaintiff alleges that Brown treated him less
favorably because of his previous disputes with his neighbors and his prior “attempt[s] to express
control and dominion over” the disputed area of his property because Brown shares the view
held by the City and by plaintiff’s neighbors that the City is entitled to an easement. This is
sufficient, given the liberal pleading standard to which pro se parties are held, to satisfy the
requirement that plaintiff plead a “malicious or bad faith intent to injure” him.
I note, in addition, that there is no reason within the four corners of the Complaint to
surmise that plaintiff’s history of police contact is of his own making. All indications, in fact,
are that plaintiff has been at the center of disputes with his neighbors and police because he has

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enforced his valid property rights, and it appears that the City’s claim to an easement is far from
a foregone conclusion. 2
My determination that plaintiff has stated a claim for selective arrest should not be
confused with a holding that plaintiff has stated a “class of one” equal protection claim, see
Village of Willowbrook v. Olech, 528 U.S. 562, 120 S. Ct. 1073 (2000), because he alleges that
Brown did not sufficiently investigate plaintiff’s accusation against Statland, for example, by
refusing to look at plaintiff’s cell phone video. First, in order to succeed on such a claim, a
plaintiff must show an “extremely high” level of similarity between himself and his comparator.
Best, 14 F. Supp. 3d at 352. Plaintiff has not sufficiently plead such similarity. Second, the
appropriateness of a class-of-one claim in the context of a law enforcement officer’s
discretionary decision-making has been cast into significant doubt in this Circuit and others.
See, e.g., Analytical Diagnostic Labs, Inc. v. Kusel, 626 F.3d 135 (2d Cir. 2010).
Finally, and in any event, plaintiff has not alleged that the video he proffered to Brown
depicted anything exculpatory. Most courts to consider the requirements of a class-of-one claim
do not expressly articulate a requirement that the differential treatment cause harm. However, I
think – as other courts appear to have assumed – that it goes without saying. See, e.g., Intralot,
Inc. v. McCaffrey, No.11-cv-08046, 2012 WL 4361451, at *3 (N.D. Ill. Sept. 21, 2012)
(articulating elements of a class-of-one claim under Olech to include an allegation that the
plaintiff “suffered harm as a result of the state’s actions”).

2

Plaintiff alleges that the City “has instituted a lawsuit against plaintiff claiming part of lot 162 is eased upon as a
public street.” That likely refers to the proceeding recently before the Appellate Division in City of New York v.
Gounden, 131 A.D.3d 560, 15 N.Y.S.3d 206 (2nd Dep’t 2015), of which I take judicial notice. See Randolph v.
Vaugh, No. 05-cv-3108, 2006 WL 416398, at *3 n.1 (S.D.N.Y. Feb. 17, 2006) (collecting cases). If so, it appears
that the City has so far been unsuccessful in showing that plaintiff is not entitled to exercise control over this section
of his property.

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III.
Because plaintiff has not stated a claim against Brown for common-law false arrest or
malicious prosecution, he also cannot state a claim against the City on a theory of respondeat
superior based on those common law claims. With respect to his federal claims, including his
equal protection claim, which does not have a common-law analogue, plaintiff has failed to make
any nonconclusory factual allegation of a municipal policy or custom that would support a claim
against it under § 1983 pursuant to Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 98 S. Ct. 2018
(1978). 3 He has therefore failed to state a claim against the City of New York, and it is
dismissed from this action.
IV.
The City, in a footnote, asks me to quash service as to Statland and Brown and to dismiss
the claims against them pursuant to Fed. R. Civ. P. 4(m) – presumably meaning that I should do
so sua sponte, as is the City’s practice to request, because the City does not purport to appear on
their behalf. With respect to Brown, the City asserts in its footnote “upon information and
belief” that Brown had retired from the NYPD by the time that plaintiff served process on the
106th precinct. There is no proof offered as to this and I disregard it.
Statland and Brown are in different positions both with respect to service and the
remaining claims against them. The docket entry line shows service on the City, Statland, and
Brown, but the affidavits themselves do not. Although Statland’s name is listed on the affidavit
3

Plaintiff appears to suggest, in his opposition, that his equal protection claim arises under the New York State
Constitution as well as under the United States Constitution. It is a common view among District Courts in this
Circuit, however, that there is no right of action under the New York State Constitution for claims that can be
brought under § 1983. See, e.g., Flores v. City of Mount Vernon, 41 F. Supp. 2d 439 (S.D.N.Y. 1999) (citing
Brown v. State, 89 N.Y.2d 172, 652 N.Y.S.2d 223 (1996)). Even if I am not bound by the cases so holding to
dismiss any state equal protection claim that plaintiff may have, they provide ample justification for declining to
exercise supplemental jurisdiction over it.

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that purports to show service on Brown, there is no other indication at all that any attempt was
made to serve him. Service on Brown was purportedly effected by leaving the summons and
complaint and with another police officer at the precinct where Brown worked (or from which he
had retired, according to the City’s “information and belief”).
The claims against Statland are dismissed for two reasons. First, I see no effort by
plaintiff to effect service on Statland and the time to do so under Federal Rule of Civil Procedure
4(m) has passed. Second, since Statland is not a state actor, there are no valid federal claims
against him, and the only way I could hear common law claims against him is pursuant to my
supplemental jurisdiction. I decline to exercise it. The nature of the dispute between plaintiff
and Statland is who did what to whom. Their ongoing feud would overshadow or at least
compete with the very separate inquiry of whether Brown acted with an improper purpose in
choosing Statland’s story over plaintiff’s story, in which the actual fixing of fault between them
would not matter. The separate claims and elements would make the trial confusing and I
therefore decline supplemental jurisdiction as a matter of discretion under 28 U.S.C. § 1367.
With regard to Brown, plaintiff contends, consistent with the affidavit of service that he
filed on March 24, 2015, that the NYPD accepted service on his behalf. By this, he appears to
mean that another police officer, “P.O. Jiminez,” as identified in the affidavit of service,
acknowledged receipt of the summons and complaint. The fact that Jimenez did not put up his
hands and refuse to take the papers – indeed, even if he signed for the papers or went even
further and said “I accept these on behalf of Detective Brown” – does not constitute valid service
absent specific authorization from the individual being served.
Under Federal Rule of Civil Procedure 4(e), since plaintiff did not serve Brown at his
home (Fed. R. Civ. P. 4(e)(2)(B)), and Jimenez was not appointed by law to accept service (Fed.

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R. Civ. P. 4(e)(2)(C)), the only way that service might be valid was if it was made pursuant to
state law (Fed. R. Civ. P. 4(e)(1)). The only state law provision that might apply is N.Y.
C.P.L.R. § 308. But that provision has several additional requirements for substitute service
which plaintiff has not met.
Having balanced the applicable considerations under Rule 4(m), I am not inclined to
accept the City’s invitation to dismiss the claims against Brown under Rule 4(m) sua sponte in a
pro se case where plaintiff’s remaining claim may rise or fall depending on whether service can
be effected. Plaintiff is given 30 days to effect valid service of a summons and complaint on
Brown, failing which this case shall be dismissed.
CONCLUSION
The City of New York’s [19] motion to dismiss is granted to the extent set forth above.
Plaintiff’s claims against defendant Statland are dismissed sua sponte pursuant to Rule 4(m) and
the Court’s discretion to decline to exercise supplemental jurisdiction. Plaintiff’s claims against
Brown are dismissed, sua sponte, pursuant to Rule 12(b)(6), except for the claim for selective
enforcement, that claim to continue subject to plaintiff effecting valid service on Brown within
30 days. The case is returned to Magistrate Judge Bloom for such pretrial proceedings as she
deems appropriate.
SO ORDERED.

Digitally signed by Brian
M. Cogan
______________________________________
U.S.D.J.

Dated: Brooklyn, New York
October 2, 2015

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