Harvey v. City of New York et al
MEMORANDUM AND ORDER: For the reasons set forth above, the City defendants' motion to dismiss (Doc. No. 25 ) is granted. Harvey's false arrest claims and claims against the NYPD are dismissed with prejudice. As to his remaining state law a nd municipal liability claims, Harvey is granted thirty days leave to amend. Ordered by Judge Roslynn R. Mauskopf on 10/26/2017. The Clerk of Court is directed to send Harvey a copy of this Memorandum and Order at the address listed on the docket, and note the mailing on the docket. (Taronji, Robert)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
MEMORANDUM AND ORDER
l 6-CV-0090 1 (RRM) (LB)
- against CITY OF NEW YORK; NEW YORK CITY
POLI CE DEPARTMENT; OFFICER SCOTT
MUNRO; and OFFICER TIMOTHY KESSLER,
ROSL YNN R. MAUSKOPF, United States District Judge.
On February 29, 20 16, pro se plaintiff Dwayne Harvey commenced this action pursuant
to 42 U.S.C. § 1983, all eging violations of hi s constitutional ri ghts and various state law claims
against defendants the City of New York (the "City"), the New York City Police Department
(the "NYPD"), Officer Scott Mumo, and Officer Timothy Kessler (collecti vely the "City
defendants"). (See generally Compl. (Doc. No. I); Am. Compl. (Doc. No . 6).) On March 6,
2017, the City defendants moved to dismiss Harvey' s am ended complaint pursuant to Federal
Rule of Civil Procedure ("Rule") 12(b)(6) fo r fai lure to state a cl aim. (See Mot. (Doc. No. 27).)
Despite proper service, Harvey did not file any opposition to the motion. (See Deel. Serv. (Doc.
Nos. 23 , 29).) For the reasons set forth herein, the City defendants' moti on to dismiss is granted,
and the case is di smi ssed w ith leave to amend in accordance with the instructions set fo rth
The fo llowing facts are considered true for purposes of thi s motion to dismiss. On
August 4, 20 15, Harvey was taken into custody by Officer Munro after fa iling a series of field
sobriety tests. (Am . Campi. at ii 5.) Thereafter, Harvey was transported to the 11 2 111 Precinct
where Officer Kessler admini stered a breath alcohol test using an Intoxilyzer 5000EN device
(the "breathalyzer"). (Id.) After several attempts at administering the test, Harvey blew .082%
blood alcohol concentration ("BAC"). (Id.) Harvey alleges that a physical disability and
Chronic Pulmonary Obstruction Disease (" C.O.P.O.") prevented him from properl y taking the
field sobriety and breathal yzer tests. (Id.) As a result of the breathalyzer test, Harvey was
arrested and charged with operating a vehicle whi le under the influence. (Id.) The criminal
charges resulting from the arrest ultimately were dismissed. (Am. Compl. at ii 6.)
ST AND ARD OF REVIEW
Pursuant to Rule 12(b)(6), a party may move to dismi ss a cause of action that "fail[s] to
state a claim upon which relief can be granted." Fed. R. C iv. P. 12(b)(6). To withstand a motion
to dismiss, a complaint "must contain suffic ient factua l matter, accepted as true, to 'state a claim
to relief that is pl ausible on its face."' Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)); Hayden v. Paterson, 594 F.3d 150, 161
(2d Cir. 2010). A claim is plausible " when the plaintiff pleads factual content that allows the
cour t to draw the reaso nable inference that the defendant is liable for the misconduct alleged. "
Matson v. Ed. of Educ., 63 1 F.3d57, 63 (2d Cir. 20 11 ) (quoting Iqbal, 556 U.S. at 678). The
Court ,assumes the truth of the facts alleged, and draws all reasonable inferences in the
nonmovant' s favor. See Harris v. Mills, 572 F.3d 66, 7 1 (2d Cir. 2009). Although all factual
allegations contained in the complaint are assumed to be true, this tenet is " inapplicable to legal
conclusions." Iqbal, 556 U.S. at 678.
Wh en a plaintiff proceeds prose, the plaintiffs pleadings should be he ld "to less
stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 55 1 U.S. 89,
94 (2007) (per curiam ) (quoting Estelle v. Gamble, 429 U.S. 97, I 04- 05 (1976)); see Harris, 572
F.3 d 66 at 72 (no ting that even after Twombly , the court " remain[s] obligated to construe a prose
complaint liberally"). Notwithstanding the liberal pleading standards granted to a prose
plaintiff, the Court " need no t argue a prose litigant' s case nor create a case for the prose w hich
does not ex ist." Molina v. Nevv York, 956 F. Supp. 257, 260 (E.D.N .Y. 1995). W here a prose
plaintiff has altogether fa il ed to satisfy a pleading requirement and the allegati ons in the
complaint do not raise a plausible claim to relief, dismi ssal is warranted. See Twombly, 550 U.S.
at 558; see also Rodriguez v. Weprin , 11 6 F.3d 62, 65 (2d C ir. 1997) (citation o mitted).
§ 1983 Claims 1
Harvey alleges § 1983 fa lse arrest claims against Officer M unro and Offi cer Kess ler. "A
§ 1983 claim fo r fa lse arrest is substantially the same as a fa lse arrest claim under New York
law." Diop v. City ofNew York, 50 F.Supp.3 d 411 , 4 18 (S.D .N .Y. 2014) (citing Weyant v. Okst,
I 01 F.3 d 845, 852 (2d Cir. 1996)). Under New York law, the elements of a fa lse arrest claim are
"(l) the defendant intended to confine [the plaintiff] , (2) the plaintiff was consc ious of the
confinement, (3) the plaintiff did not consent to the confinement and (4) the confi nement was not
Harvey alleges claims aga inst the City and the NYPD. To estab lish municipal liab ility under § 1983 , a plaintiff
must establish that the violation of his constitutional rights resulted from a mun icipal custom, policy, or practice.
See Vann v. City of New York, 72 F.3d I 040, I 049 (2d Cir. 1995) (co llecting cases). Here, Harvey has not set fo1
any facts that suggest the alleged police misconduct was the result of a municipal policy, custom, or practice.
Accordingly, all claims against the City are dism issed, with leave to amend in compliance with Rule 12(b)(6).
In addition, the NYPD is a non-suable entity, and therefore, Harvey's claims against the NYPD are dismissed with
prejudice. See J enkins v. City of New York, 478 F.3d 76, 93 n. 19 (2d Cir. 2007) ("[t] he New York City Police
Department is an organizational subdivision of the City of New York, lacking independent legal existence and as
such is not a suable enti ty.")
otherw ise privileged." Id. (quoting Singer v. Fulton County Sheriff, 63 F.3d 11 0, 118 (2d Cir.
1995). Only the fo urth element, which alludes to probable cause, is in dispute.
The existence of probable cause to arrest " is a complete defense to an acti on for false
arrest, whether that action is brought under state law or under Section 1983 ." Weyant, 101 F.3d
at 852 (internal citation omitted). Pro bable cause exists, "when the officers have kJ1owledge of,
o r reasonably trustworthy information as to, facts a nd circumstances that are sufficient to warrant
a person of reaso nable caution in the belief that an offense has been or is bei ng committed by the
person to be arrested." Manganiello v. City ofNew York, 6 12 F .3d 149, 16 1 (2d C ir. 20 10). The
law does not require police officers to explore and eliminate every theoretically plausible claim
of innocence before making an arrest. See Cerrone v. Brown, 246 F.3d 194, 203 (2d Cir. 2001).
What is required is a " probability or substantial chance of criminal activity, not a n actual
showing of such activity. " United States v. Valentine, 539 F .3d 88, 94 (2d C ir. 2008) (citation
Here, it is undisputed that the result of a breathalyzer test showed Harvey had a BAC of
.082%. (Am. Comp!.) See N.Y. Yeh. & Traf. Law§ 1192(2) ("No person shall operate a mo tor
vehicle w hile such person has .08 of one per centum o r mo re by weight of alco ho l in the person's
blood . .."). Harvey argues that his physical disa bilities, which allegedly necessi ta ted multiple
a tte mpts to produce a result from the breathalyzer test, re ndered the test insufficie nt to provide
probable cause. However, "probable cause does not requ ire that the police rule out innocent
explanations for the suspect's activities." Peterec v. Hilliard, No. 12-CV-3944 (CS), 2014 WL
6972475, a t *5 (S.D.N.Y. Dec. 8, 20 14) (citing Carthew v. Cnty. ofSuffolk, 709 F.Supp.2d 188,
199 (E.D. . Y. 20 10)). Whether or not the officers were awaJe of Harvey's al leged disabilities at
the time of arrest, the results of the breathalyzer test provided probable cause to believe that he
was driving under the influence of alcohol. See Costello v. Milano , No. 12- CV-7216 (CS), 2014
WL 1794886, at * 11 (S.D.N.Y. May 6, 20 14). Accordingly, Harvey 's§ 1983 claims for false
arrest and false imprisonment are dismissed.
State Law Claims
Harvey 's New York state law claims against City employees for actions undertaken
within the scope of their employment are dismissed for failure to state a cl aim. In order to
survive a motion to dismiss for failure to state a claim, a 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 (internal citation omitted). Here, Harvey has not alleged any facts in support of his
state law claims. As such, the claims are dismissed.
In add ition, a "notice of claim is a cond ition precedent to the fi ling of an action against an
employee of the City of New York. " Jean-Laurent v. Wilkerson , 461 Fed. App 'x 18, 24 n.3 (2d
Cir. 2012). Pursuant to N.Y. Gen. Mun. Law § 50-e( 1)(a), a notice of claim must be filed within
90 days after the claim arises. Id Additionally,
pursuant to Section 50-i, a plaintiff must plead in the complaint that: (1) the notice
of claim was served; (2) at least thirty days has elapsed since the notice of claim
was fi led and before the complaint was fi led; and (3) in that time the defendant
has neglected to or refused to adjust or to satisfy the claim.
Canzoneri v. Inc. Viii. of Rockville Ctr., 986 F. Supp. 2d 194, 206 (E.D.N.Y. 20 13). "The
plaintiff1] bear[s] the burden of demonstrating compliance with the notice of claim requirement."
Id Harvey has not met this burden, and therefore, his state law claims against City employees
Leave to Amend
In li ght of Harvey's prose status, Harvey is granted thirty (30) days leave to amend to
plead hi s claims in satisfaction of Ru le 12(b)(6).2 Should Harvey seek to avai l himself of this
opportunity, he shal l fi le a proposed second amended complaint, so captioned and bearing the
same docket number, and shal l plead suffic ien t facts to support any such claims. To bring his
state law claims Harvey must meet alI New York pl ead ing requi rements and plead sufficient
fac ts, accepted as true, to state a claim to relief that is plausible on its face. To bring claims
again st the City, Harvey must plead facts sufficient to al lege a relevant municipal pol icy, custom
or practice. Harvey also shall fi le a brief memorandum of law as to why such an amendment
raises a proper claim and is not futile. In the event Harvey seeks to amend, the City defendants
will be given an opportunity to address whether the proposed motion meets the pleading
requirements of Rul e l2(b)(6).
For the reasons set fo rth above, the City defendants' moti on to dismi ss (Doc. No. 25) is
granted. Harvey's fal se arrest claims and claims against the NYPD are dism issed with prejudice.
As to his remaining state law and municipal liability claims, Harvey is granted thirty days leave
The Clerk of Court is directed to send Harvey a copy of this Memorandum and Order at
the address listed on the docket, and note the mailing on the docket.
Harvey's false arrest claim and clai ms against the NYPD are dismissed with prejudice.
Dated: Brooklyn, New York
s/Roslynn R. Mauskopf
ROSL YNN R. MAUSKOPF
United States District Judge
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