Herman v. City of New York et al

Filing 26

ORDER granting 18 Motion to Dismiss for Failure to State a Claim: For the reasons stated in the attached Memorandum and Order, the private defendants' motion to dismiss is granted. Ordered by Judge John Gleeson on 3/9/2016. (Fallon, Ethan)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

FOR ONLINE PUBLICATION

JOEL HERMAN,
Plaintiff,
- versus THE CITY OF NEW YORK, et al.,
ROCHEL HERMAN, DAVID KLEIN,
ARON GREENBERG, ARON MANDEL,
JOEL TEITELBAUM, LEON EISNER,
JOEL NAIM YACOOB,
Defendants.

A P P E A R A N C E S:
THE SCHWARZ FIRM PLLC
954 Lexington Ave., No. 261
New York, NY 10021-5013
By:
Simon Schwarz
Attorney for Plaintiff
JOSHUA E. ABRAHAM, ESQ.
230 Park Ave., Ste. 850
New York, NY 10169
By:
Joshua E. Abraham
Attorney for Defendants Rochel
Herman, David Klein, Aron
Greenberg, Aron Mandel, and Joel
Naim Yacoob
BAUMAN & KUNKIS, P.C.
14 Penn Plaza
225 West 34th St.
New York, NY 10122
By:
Martha H. Kunkis
Attorney for Defendant Leon Eisner

MEMORANDUM
AND ORDER
15-cv-3059 (JG)

JOHN GLEESON, United States District Judge:
Plaintiff Joel Herman brings this action against defendants pursuant to 42 U.S.C.
§ 1983, claiming false arrest, malicious prosecution, and unreasonable search and seizure.
Herman also alleges a violation of 42 U.S.C. § 1985(2) for conspiracy to deprive him of
constitutional rights, as well as state law claims for malicious prosecution, civil conspiracy, and
unlawful search and seizure.
Defendants Rochel Herman, David Klein, Leon Eisner, Aron Greenberg, Aron
Mandel, and Joel Naim Yaccob (collectively, the “Private Defendants”) move to dismiss the case
pursuant to Federal Rule of Civil Procedure 12(b)(6), arguing that plaintiff fails to allege a
legally cognizable cause of action against them. For the reasons stated below, I agree, and the
motion is granted.
BACKGROUND
Herman’s amended complaint alleges the following facts, which I assume to be
true for purposes of this motion. See, e.g., Freidus v. Barclays Bank PLC, 734 F.3d 132, 135
(2d Cir. 2013) (“On a motion to dismiss for failure to state a claim on which relief can be
granted, we assume the truth of the facts alleged.”).1
Plaintiff Joel Herman and defendant Rochel Herman (“Rochel”) are married but
have been separated since February 2010. Am. Compl. ¶ 33. They have three children together

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Additionally, in considering a motion to dismiss, a court may take judicial notice of documents
attached to, integral to, or referred to in the complaint, as well as documents filed in other courts and other public
records. See, e.g., Global Network Commc’ns, Inc. v. City of New York, 458 F.3d 150, 157 (2d Cir. 2006); Subaru
Distribs. Corp. v. Subaru of Am., Inc., 425 F.3d 119, 122 (2d Cir. 2005). The Court is also permitted to consider
“documents either in plaintiff[’s] possession or of which plaintiff[] had knowledge and relied on in bringing suit.”
Brass v. Am. Film Techs., Inc., 987 F.2d 142, 150 (2d Cir. 1993). The Court takes notice of three documents
attached to defendant’s motion to dismiss: (1) a notarized audio transcript of a 911 call placed by the plaintiff on
April 22, 2014; a criminal accusatory instrument attested to by defendant Weiber; and (3) an order to show cause
signed by a state court on March 30, 2014. Plaintiff rightly assumes -- or admits to citing -- that the three exhibits
meet the legal criteria for the Court to consider them. See Pl’s Opp. to Mot. to Dismiss at 31.

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and are engaged in a long-standing and highly contentious divorce proceeding. Am. Compl. ¶
21, 33.
On April 22, 2014, two of their three children were brought from Rochel’s home
to Herman for visitation. Id. at ¶ 35. At that time, the two children stated to him that the third
child, Aron, was “injured in a playground fall earlier that day,” but they could not provide any
additional details. Id. Herman walked to the local ODA Medical Center, a medical facility
where his children frequent, to inquire if Aron had been treated there. Id. at ¶ 36. After learning
that Aron was not treated at the medical center, Herman concluded that his third son was
missing. Id. Herman asserts that he could not commence a search for his son until “late evening
due to religious observances.” Id. At approximately 10:15 p.m., Herman called the 90th police
precinct to report his child missing. Id. He was instructed to call 911 and file a missing person
report, which he did. Id. Police Officers Anthony D’Alto and Daniel Marussich responded to
the call and came to Herman’s residence to search for the child. Id. at ¶ 37; Abraham Decl., Ex.
2. Plaintiff continued to inform the police officers that his child was missing and that he was not
aware of his wife’s home address. Abraham Decl., Ex. 2. The son was later found sleeping at
Rochel’s home. Id.
Plaintiff was arrested on May 26, 2014 and alleges that he was “rearrested” on
May 27, 2014 while still in custody from that initial arrest. Am. Compl. ¶ 52, 53. Plaintiff was
first arrested for calling 911 and filing a false missing-person report. Id.; Abraham Decl., Ex. 2.
After that initial arrest, he was found to be possessing stolen credits, which was the basis for his
second arrest or “re-arrest.” Id.; Abraham Decl., Ex. 2. Plaintiff was arrested a third time on
May 30, 2014 for violating an order of protection issued by the state court judge presiding over
his divorce proceedings. Am. Compl. at ¶ 76-87; see also Ex. 3.

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DISCUSSION
On a motion to dismiss pursuant to Rule 12(b)(6), a court must “accept all
allegations in the complaint as true and draw all inferences in the non-moving party’s favor.”
LaFaro v. N.Y. Cardiothoracic Grp., PLLC, 570 F.3d 471, 475 (2d Cir. 2009) (internal quotation
marks omitted). To survive such a motion, a complaint must plead “enough facts to state a claim
to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (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, 678 (2009). “Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 662 (citing
Twombly, 550 U.S. at 555). A plaintiff’s complaint “must at a minimum assert nonconclusory
factual matter sufficient to nudge its claims across the line from conceivable to plausible to
proceed.” EEOC v. Port Auth. of N.Y. & N.J., 768 F.3d 247, 254 (2d Cir. 2014) (quoting Iqbal,
556 U.S. at 680) (internal quotation marks omitted).
A.

Section 1983
Section 1983 provides “‘a method for vindicating federal rights elsewhere

conferred,’ including under the Constitution.” Cornejo v. Bell, 592 F.3d 121, 127 (2d Cir. 2010)
(quoting Baker v. McCollan, 443 U.S. 137, 144 n. 3 (1979)). To make out a claim under § 1983,
a plaintiff must demonstrate that the challenged conduct was “committed by a person acting
under color of state law,” and that the conduct “deprived [the plaintiff] of rights, privileges, or
immunities secured by the Constitution or laws of the United States.” Id. (internal quotation
marks omitted). “[T]he under-color-of-state-law element of § 1983 excludes from its reach
‘merely private conduct, no matter how discriminatory or wrongful.’” Am. Mfrs. Mut. Ins. Co. v.

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Sullivan, 526 U.S. 40, 50 (1999) (quoting Blum v. Yaretsky, 457 U.S. 991, 1002 (1982)). The
under-color-of-state-law requirement can be satisfied by actions taken by private individuals
only in certain limited circumstances, such as where the private actor exercises powers
“traditionally exclusively reserved to the State,” Jackson v. Metro. Edison Co., 419 U.S. 345,
352 (1974), or performs conduct that is “fairly attributable to the state.” Am. Mfrs. Mut. Ins. Co.,
526 U.S. at 50. “To state a claim against a private entity on a section 1983 conspiracy theory,
the complaint must allege facts demonstrating that the private entity acted in concert with the
state actor to commit an unconstitutional act.” Spear v. Town of West Hartford, 954 F.2d 63, 68
(2d Cir. 1992). The private actor must be shown to be “a willful participant in joint activity with
the State or its agents.” Adickes v. S.H. Kress & Co., 398 U.S. 144, 152 (1970).
I conclude that Herman’s § 1983 claims against the Private Defendants are based
on conclusory allegations that are insufficient to support a claim. See Spear, 954 F.2d at 68
(conclusory allegations that a private entity acted in concert with a state actor do not suffice to
state a § 1983 claim against the private entity). Plaintiff asserts his claims in generic, broad
strokes: “a careful reading of the Amended Complaint itself, shows an abundance of wellpleaded, clear and specific factual allegations of extensive involvement and entwinement
between the Private Defendants and police detective WIEBER and the other NYPD officers and
detectives, including high ranking supervisors, employed in the 90th police precincts . . . with
each of the Private Defendants playing a distinct role in a prearranged plan, understanding and
meeting of the minds . . . .” Pl’s Opp. to Mot. to Dismiss at 2. Yet plaintiff fails to state or point
to actionable facts in the amended complaint that are legally sufficient for a § 1983 claim. In
particular, the plaintiff alleges no specific facts that defendants Rochel, Klein, Eisner, and
Mandel were involved in any significant way to arrest or prosecute him, or to deprive him of his

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rights. Without more, the claims fail as a matter of law. See Segal v. Gordon, 467 F.2d 602, 608
(2d Cir. 1972) (“A complaint cannot escape the charge that it is entirely conclusory in nature
merely by quoting such words from the statutes as artifices, schemes, and devices to defraud and
scheme and conspiracy. (internal quotation marks omitted)).
With respect to defendant Greenberg, the plaintiff alleges only that he provided a
statement to a police officer and that the offer relied, in part, on his statement when deciding to
arrest plaintiff with respect to Herman’s first arrest.2 Providing information to law enforcement
-- even if that information is false or results in police action -- is insufficient to constitute “joint
action” within the meaning of § 1983. Young v. Suffolk Cnty., 705 F.Supp.2d 183, 196
(E.D.N.Y.2010) (“The provision of information to or summoning of police officers, even if that
information is false or results in the officers taking affirmative action, is not sufficient to
constitute joint action with state actors for purposes of § 1983.” (citing Ginsberg v. Healey Car
& Truck Leasing, Inc., 189 F.3d 268, 271 (2d Cir. 1999)); Valez v. City of New York, 2008 WL
5329974, at *1, *3 (S.D.N.Y. Dec. 16, 2008) (holding that plaintiff failed to state a § 1983 claim
based on allegations that the defendants gave the police false information “out of malice and in
an effort to get [the plaintiff] ejected from the home he was renting” where plaintiff failed to
“allege facts suggesting that defendants and the police had any meeting of the minds or intent to
conspire”); see also Del Col v. Rice, 2012 WL 6589839, at *8 (E.D.N.Y. Dec. 18, 2012) (“[T]o
satisfy the joint activity requirement, there needs to be something more than an allegation that
the private party supplied information, even false information, to the police.” (citing Stewart v.
Victoria's Secret Stores, LLC, 851 F.Supp.2d 442, 446 (E.D.N.Y.2012) (“A private party

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Plaintiff does not allege that defendant Greenberg was involved with the second or third arrests,
which were based on allegations of stolen credit cards and a judicial order directing local authorities to assist in the
return of Rochel and Herman’s son.

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supplying information or seeking police assistance ‘does not become a state actor . . . unless the
police officers were improperly influenced or controlled by the private party.’” (citations
omitted))).
With respect to defendant Yacoob, plaintiff alleges only that he appeared in state
court where he lobbied for his prosecution; charges that were eventually dropped. See Am.
Compl. at ¶ 85, 86. Assuming this allegation as true, it does not rise to the level of liability
under § 1983. “A person who tells law enforcement authorities that he or she thinks that a crime
has been committed and does no more, does not thereby put him- or herself at risk of liability for
malicious prosecution should the arrest or prosecution later be abandoned or result in an
acquittal.” Rohman v. New York City Transit Auth. (NYCTA), 215 F.3d 208, 217 (2d Cir. 2000);
see also Kash v. Honey, 38 F. App'x 73, 76 (2d Cir. 2002); Sankar v. City of New York, 867 F.
Supp. 2d 297, 310 (E.D.N.Y. 2012).
I also note that if police officer actions are based on the officer’s own
independent judgment, rather than the directive of the private party, the private party will not be
deemed a state actor. See Shapiro v. City of Glen Cove, 236 F. App’x 645, 647 (2d Cir. 2007)
(“No evidence supports [Plaintiff]’s contention that [the private defendant] acted jointly with the
[municipal] defendants to deprive her of her constitutional rights, and ample evidence shows that
the [municipal] officials who searched her house exercised independent judgment rather than
acting at [the individual defendant’s] direction.”)); Fisk v. Letterman, 401 F.Supp.2d 362, 377
(S.D.N.Y.2005) (“[A] private party who calls the police for assistance does not become a state
actor unless the police were influenced in their choice of procedure or were under the control of
the private party.”); Serbalik v. Gray, 27 F.Supp.2d 127, 131–32 (N.D.N.Y .1998) (“[A] private

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party does not act under color of state law when she merely elicits but does not join in an
exercise of official state authority.” (citations omitted)).
Accordingly, Herman’s allegations of joint action are insufficient to state a § 1983
claim against the private defendants, and I therefore dismiss these claims.
B.

Section 1985
Section 1985(2) contains two separate clauses. The first makes it unlawful for

“two or more persons . . . [to] conspire to deter, by force, intimidation, or threat, any party . . . in
any court of the United States from attending such court.” 42 U.S.C. § 1985(2). The second
clause makes it unlawful for “two or more persons [to] conspire for the purpose of impeding,
hindering, obstructing, or defeating, in any manner, the due course of justice in any State . . .
with intent to deny to any citizen the equal protection of the laws . . . .” Id. The first clause
expressly involves conspiracies to obstruct justice in federal courts, while the second clause
involves conspiracies to obstruct justice in state courts. Unlike the first clause, which “outlaws
all interference with any person’s attempt to attend federal court,” Keating v. Carey, 706 F.2d
377, 385 (2d Cir. 1983), the second clause explicitly requires that conspirators’ actions “be
motivated by an intent to deprive their victims of equal protection of the laws.” This
requirement has been interpreted to mean that plaintiff must allege discriminatory “racial, ethnic,
or class-based animus” motivating the conspirators’ action. Zemsky v. City of New York, 821
F.2d 148, 151 & n. 4 (2d Cir. 1987) (citing Kush v. Rutledge, 460 U.S. 719, 722-24 (1983)).
Here, there is no allegation that the alleged conspirators had any connection to
pending proceedings in federal court. Further, there are no allegations that the purported
conspirators were motivated by racial or other animus in any state court proceedings to deprive

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Herman equal protection of the laws. Accordingly, Herman’s conspiracy claims under § 1985
also fail.
C.

State Law Claims
Because Herman’s federal claims against the Private Defendants are dismissed, I

decline to exercise supplemental jurisdiction over the state law claims he asserts against them.  
CONCLUSION
For the reasons stated above, the motion to dismiss the claims against the private
defendants is granted.
So ordered.
John Gleeson, U.S.D.J.
Dated: March 9, 2016
Brooklyn, New York

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