Browne et al v. New York City Police Department et al
ORDER granting 15 Motion to Dismiss for Failure to State a Claim. Ordered by Judge I. Leo Glasser on 7/25/2017. (McBride, Katherine)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
BERTRAM BROWNE, et al.
MEMORANDUM AND ORDER
- against NEW YORK CITY POLICE DEPARTMENT,
JOHN AND JANE DOES
GLASSER, Senior United States District Judge:
Bertram, Esther, Krystana, and Crystal Browne, and Steve Alexander (collectively,
“Plaintiffs”) commenced this action pursuant to 42 U.S.C. § 1983, alleging that the New York
City Policy Department (“NYPD”) and unidentified “Doe” officers (“Defendants”) violated the
rights afforded them by the Fourth, Fifth, and Fourteenth Amendments to the United States
Constitution. Pending now before the Court is Defendants’ motion to dismiss pursuant to Rule
12(b)(6), Fed. R. Civ. P. ECF 15, 16, 17. Following Plaintiffs’ failure to timely respond to that
motion, the Court issued an Order to Show Cause as to why the motion should not be considered
fully briefed and unopposed. ECF 19. Received from the Plaintiff in response was a letter
explaining that “plaintiffs oppose the dismissal of this matter; however, are unable to provide the
Court with additional briefing of the issue at this time.” ECF 20. With this remarkable response,
the Court considers the Defendants’ motion to be fully briefed and unopposed. For the reasons
that follow, the motion is GRANTED.
The following facts are drawn from the Complaint, ECF 1 (hereinafter “Compl.”), unless
otherwise noted. On or about April 5, 2013, plaintiffs Bertram, Esther, Krystana, and Crystal
Browne were inside their home at 1556 Saint Marks Avenue in Brooklyn. Id. ¶ 11. At
approximately 6:00am, NYPD officers “broke into” the house and “accosted and seized the
plaintiffs” including restraining them “at gunpoint,” and “ransack[ing]” their home prior to
arresting and transporting them to an unspecified precinct. Id. ¶ 12. During the arrests, Steve
Alexander arrived at the residence, was “accosted and seized” and transported to the precinct.
Alexander was released from custody that same night, and the Brownes were released the
following day, April 6, 2013. Id. ¶ 18. On April 10, 2013, Plaintiffs were informed that the cases
against them were to be dismissed. Id. ¶ 19. On April 8, 2016, Plaintiffs filed their Complaint in
this action. DE 1.
In deciding a Fed. R. Civ. P. 12(b)(6) motion to dismiss, and accepting the facts pleaded
to be true, Plaintiffs must state a claim that is plausible on its face from which the Court can
draw the reasonable inference that the claim has merit. “Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (citation omitted). When, as in this case, a motion to dismiss is unopposed,
the failure to oppose does not, by itself, justify dismissal. McCall v. Pataki, 232 F.3d 321, 322–
23 (2d Cir.2000). “[T]he sufficiency of a complaint is a matter of law that the court is capable of
determining based on its own reading of the pleading and knowledge of the law.” Goldberg v.
Danaher, 599 F.3d 181, 84 (2d Cir.2010) (citation omitted).
Although named as a Defendant, the NYPD is a non-suable agency of the City of New
York. See Jenkins v. City of New York, 478 F.3d 76, 93 n. 19 (2d Cir. 2007). Plaintiffs’ claims
against that agency are DISMISSED, and the Court considers the remaining claims only as
against the Doe Defendants.
Plaintiffs do not identify any specific cause of action in their Complaint, but broadly
allege violations of their constitutional rights pursuant to § 1983, which does not provide a
statute of limitations. As such, courts apply the relevant statute of limitations for personal injury
actions under state law in § 1983 actions. Hogan v. Fischer, 738 F.3d 509, 517 (2d Cir. 2013).
New York’s three-year statute of limitations for unspecified personal injury actions applies to the
claims herein. Pearl v. City of Long Beach, 296 F.3d 76, 79 (2d Cir. 2002). Accrual of § 1983
claim occurs at “that point in time when the plaintiff knows or has reason to know of the injury
which is the basis of his action.” Singleton v. City of N.Y., 632 F.2d 185, 191 (2d Cir. 1980).
While Plaintiffs fail to name any specific causes of action, any claims stemming from the arrests
and releases on April 5-6, 2013—such as, for example, false arrest or unlawful search— were
not timely filed. A claim of malicious prosecution stemming from the events of April 10, 2013 is
not available. A pre-requisite for that cause of action is the commencement of a judicial
proceeding. Manganiello v. City of New York, 612 F.3d 149, 161 (2d Cir. 2010). There is no
indication that the judicial process was set in motion beyond the Plaintiffs’ arrest. As such,
Plaintiffs’ Complaint fails to state a claim.
For the foregoing reasons, Defendants’ motion to dismiss is GRANTED.
Brooklyn, New York
July 25, 2017
I. Leo Glasser
Senior United States District Judge
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