Alvarez v. The City of New York et al

Filing 44

MEMORANDUM OPINION re: 34 MOTION to Dismiss filed by Philip Terpos, Thomas M. Cozart, Michael T. Tedeschi, Douglas A. Brightman, Tiffany Jeffries, Paul M. Kerrigan, The City of New York, Daniel Hull, Raymond Kelly, Joseph Green, Robert Gibbons, Mih ael T. Tedeschi. Defendants motion to dismiss [DI 34] is granted to the extent that (1) Count I is dismissed as to (a) the claim of use of excessive force against defendant City of New York and (b) the conspiracy claims, (2) Counts II and VIII are di smissed as to all named defendants, (3) Count IV is dismissed as to (a) defendants Brightman, Kerrigan, Cozart, and Tedeschi regarding any failure to intervene in Terposs alleged use of excessive force and (b) defendants City of New York, Terpos, Gre en, Jeffries, Hull, Gibbons, and Kelly, (4) Count V is dismissed in its entirety, and (5) Count XI is dismissed on the ground that no separate cause of action lies for punitive damages 37 although, ofcourse punitive damages may be recovered in an app ropriate case where otherwise permitted by law. It is denied in all other respects. Plaintiff may file an amended complaint to the extent indicated herein and at oral argument provided it is filed no later than December 21, 2012. The previously entered stay of discovery is vacated. (Signed by Judge Lewis A. Kaplan on 12/12/2012) (cd)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-------------------------------------x
ANGEL ALVAREZ,
Plaintiff,
-against-

11 Civ. 5464 (LAK)

THE CITY OF NEW YORK, et al.,
Defendants.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

MEMORANDUM OPINION

Appearances:

Matthew J. Galluzzo
Zachary H. Johnson
GALLUZZO & JOHNSON LLP
Attorneys for Plaintiff Angel Alvarez

Katherine A. McFarlane
Ben N. Kuruvilla
Assistant Corporation Counsel
MICHAEL A. CARDOZO
CORPORATION COUNSEL
Attorneys for Defendants The City of New York,
Police Commissioner Raymond Kelly, P.O.
Douglas A. Brightman, P.O. Thomas M. Cozart,
Sgt. Paul M. Kerrigan, P.O. Michael T. Tedeschi,
P.O. Tiffany Jeffries, P.O. Joseph Green, Sgt.
Philip Terpos, Detective Daniel Hull, and
Detective Robert Gibbons

1
Lewis A. Kaplan, District Judge.
Before the Court is defendants’ partial motion to dismiss the first amended complaint
(“FAC”) in this civil rights suit. The motion is granted in part and denied in part, as provided below.

Facts
The facts alleged in the FAC need be summarized only briefly here: On August 8,
2010, plaintiff Angel Alvarez became engaged in a fistfight with one Luis Soto, who produced a
firearm and shot plaintiff with it.1 Shortly thereafter, four police officers of the New York City
Police Department (the “Shooting Officers”) opened fire on the two, killing Soto and wounding
plaintiff 27 times.2 After one of the Shooting Officers told another police officer that plaintiff had
fired a weapon at them, plaintiff was transported to Harlem Hospital.3 Plaintiff awoke in the
hospital on the morning of August 14, 2010, where he was arrested by officers of the NYPD and
charged with the attempted murder of a police officer.4 Plaintiff appeared before the Criminal Court
of the City of New York on August 16, 2010 and ultimately remained incarcerated until March 2,
2011, when a special grand jury declined to indict plaintiff in connection with the incident.5
Plaintiff brings claims inter alia for excessive use of force, false arrest, failure to

1

FAC ¶¶ 29–31.
2

Id. ¶¶ 32–35.
3

Id. ¶¶ 38, 40.
4

Id. ¶¶ 51–52.
5

Id. ¶¶ 57, 66.

2
intervene, and conspiracy under 42 U.S.C. §§ 1983, 1985 and on state law grounds, against the
Shooting Officers, six other named police officers allegedly involved with the subsequent
investigation, and a number of “John Doe” and “Richard Roe” officers.6

Discussion
I.

Excessive Force and Failure to Intervene
The FAC brings Section 1983 claims of excessive use of force against each Shooting

Officer and defendant Terpos.7 Defendants have not moved to dismiss these claims.
But it seeks recovery also from each of the Shooting Officers and from all of the
other officer defendants on the theory that each is liable for failing to intervene to prevent the
allegedly excessive use of force by others. The law permits a plaintiff to recover from an officer for
failing to intervene in the excessive force used by another if the officer “observed or has reason to
know . . . that excessive force is being used” and there was “a realistic opportunity to intervene to
prevent the harm from occurring.”8 Insofar as defendants seek dismissal of the failure to intervene
claims against the Shooting Officers for other Shooting Officers’ use of force, the motion is denied.
The FAC alleges that “plaintiff collapsed to the ground” when the shooting began and, “[a]s plaintiff
lay defenseless, [that] the [Shooting Officers] continued to fire bullets into him,” prompting plaintiff

6

Plaintiff concedes that such claims brought against the City should be dismissed. DI 39 at
2. Plaintiff brings additional claims against defendants that are not the subject of
defendants’ motion and are discussed no further here.
7

The FAC alleges that Terpos used excessive force in the course of handcuffing plaintiff
immediately after the shooting. See FAC ¶¶ 39, 72.
8

Anderson v. Branen, 17 F.3d 552, 558 (2d Cir. 1994).

3
to “squeez[e] himself into the fetal position” for protection. Moreover, “[w]hen the police shooting
finally stopped,” the officers allegedly had discharged 46 rounds and hit plaintiff 27 times.
These allegations render it plausible that each Shooting Officer observed or had
reason to know the force being used by each of the other Shooting Officers.9 Moreover, one may
infer from these allegations that the shooting took sufficient time that each Shooting Officer had a
realistic opportunity to prevent or mitigate the harm caused by the others as it was occurring.10
The situation with respect to the other officer defendants is different. The FAC does
not allege facts from which one might conclude that any of them knew or was able to prevent the
alleged use of unreasonable force against plaintiff. Accordingly, the failure to intervene claims
against them are dismissed.11

II.

False Arrest and Failure to Intervene
The FAC brings federal and state false arrest claims against all defendants and,

separately, brings federal claims against all defendants for failure to intervene in the alleged false
arrest.12
9

See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
10

To the extent defendants contend that it is inherently implausible that one of the Shooting
Officers had an opportunity to intervene because he himself was shot during the incident,
that question cannot be resolved as a matter of law at this stage.
11

Additionally, defendants’ motion is granted with respect to claims against the Shooting
Officers for failure to intervene in Terpos’s alleged use of excessive force. Nothing in the
FAC permits a plausible inference that these officers had reason to know of or a realistic
opportunity to prevent Terpos’s action.
12

There is some suggestion in our Circuit’s caselaw that a failure to intervene is more
properly construed as a means to be liable for false arrest, rather than a separate cause of

4
Defendants move to dismiss all of these claims on the ground that probable cause
existed as a matter of law, noting the FAC’s admission that plaintiff was involved in a fistfight just
before the shooting.13 The point merits little discussion. As counsel for defendants conceded at oral
argument, an officer may observe an individual engaging in a fistfight without necessarily having
probable cause to arrest the individual for a crime.14
Defendants assert also that the false arrest count does not state a legally sufficient
claim. The FAC alleges that unnamed officers arrested plaintiff on August 14 “with the cooperation
and aid” of a number of the named defendants.15 It does not allege, however, that any named
defendant was present at the arrest. Our Circuit has held that a police officer can be liable for a false
arrest that “occurs outside of his presence” only under a failure-to-intervene theory.16 Accordingly,
the false arrest claim is not sufficient as to the named defendants.
Turning then to the failure to intervene claims, the Court considers whether the FAC

action. See Escalera v. Lunn, 361 F.3d 737, 748 n.4 (2d Cir. 2004). In any event, the FAC
does not appear to allege a violation of state law regarding the failure to intervene in the
false arrest.
13

See Jaegly v. Couch, 439 F.3d 149, 153 (2d Cir. 2006) (Sotomayor, J.) (holding that “claim
for false arrest turns only on whether probable cause existed to arrest a defendant, and . . .
it is not relevant whether probable cause existed with respect to . . . any charge actually
invoked by the arresting officer at the time of arrest”); see also Ackerson v. City of White
Plains, --- F.3d ----, 2012 WL 5951836 (2d Cir. Nov. 29, 2012) (stating elements of false
arrest claim under New York law and observing that elements are substantially similar to
those under Section 1983).
14

Moreover, the FAC does not even allege that the officers in fact did observe the fistfight.
See FAC ¶¶ 31–32.
15

In his briefing and at oral argument, plaintiff has clarified that his false arrest claim is
predicated solely upon his arrest on August 14, not the events of August 8.
16

See Escalera, 361 F.3d at 748 n.4.

5
adequately alleges that any of the named defendants had “reason to know” that plaintiff would be
arrested unjustifiably and a “realistic opportunity” to prevent the arrest.17
Insofar as it asserts this claim against the Shooting Officers, the FAC is sufficient in
this respect. They are alleged to have been present during the shooting. The FAC permits an
inference that they were aware that plaintiff had not fired a weapon. Thus, they had reason to know
that the charges against plaintiff were unfounded. It therefore may be inferred that they had a
realistic opportunity to prevent the arrest from occurring almost a week later.
The FAC is insufficient in this respect with regard to all other named defendants. As
plaintiff’s counsel conceded at oral argument, the FAC fails to allege facts indicating that these other
defendants had reason to know, prior to August 14, that plaintiff had not in fact shot at the police.

III.

Conspiracy
The FAC appears to allege two conspiracy theories. First, in the Section 1983 count

regarding excessive force, the FAC alleges that the defendants conspired to “cover up” the events
of the shooting and that this conspiracy operated to deprive plaintiff of his rights to be free of
unreasonable force.18 Second, the FAC alleges as an independent claim that defendants conspired
to deprive plaintiff of his constitutional rights in violation of 42 U.S.C. § 1985(3). Defendants move
to dismiss all of the conspiracy claims as barred by the intracorporate conspiracy doctrine, which
generally provides that “officers, agents and employees of a single corporate entity are legally

17

Anderson, 17 F.3d at 558.
18

FAC ¶ 74.

6
incapable of conspiring together.”19
The Second Circuit has applied the intracorporate conspiracy doctrine to Section
1985 claims.20 But it has not considered its applicability to conspiracy claims brought under Section
1983.21 In any case, courts have recognized an exception to this doctrine when the defendants “were
motivated by [an] independent personal stake in achieving the corporation’s objective.”22 Plaintiff
contends that this personal stake is alleged adequately because the complaint states that the
defendants conspired falsely to accuse plaintiff of attempted murder “to shield themselves from
liability, embarrassment, and charges of misconduct.”23
The Court agrees that the intracorporate conspiracy does not apply here. As another
district court in this Circuit has concluded in a very similar case, “plaintiff clearly alleges that [the
Shooting Officers] acted in [their] own personal interest, not in the interest of the police department

19

Hartline v. Gallo, 546 F.3d 95, 99 n.1 (2d Cir. 2008) (internal quotation marks omitted).
20

See id.(barring Section 1985 claim based on police department’s strip-search of plaintiff);
Herrmann v. Moore, 576 F.2d 453, 459 (2d Cir. 1978) (barring Section 1985 claim based
on law school’s discharge of professor); Girard v. 94th and Fifth Avenue Corp., 530 F.2d
66 (2d Cir. 1976) (barring Section 1985 claim based on cooperative board’s policy
preventing plaintiff from assuming lease).
21

See Appel v. Spiridon, No. 06 Civ. 1177, 2011 WL 3651353, *19 (D. Conn. Aug. 18, 2011)
(recognizing that Second Circuit has not addressed issue in Section 1983 context); cf.
Pangburn v. Culbertson, 200 F.3d 65, 72 (2d Cir. 1999) (setting out elements of conspiracy
claim under Section 1983).
22

Girard, 530 F.2d at 71–72; see Hartline v. Gallo, 2006 WL 2850609, *9 (E.D.N.Y.

2006) reasoning adopted by 546 F.3d at 99 n.1.
23

FAC ¶ 55.

7
or the city, by conspiring with others to cover-up [their] alleged use of excessive force.”24 This
conclusion accords with other decisions finding the doctrine inapplicable where law enforcement
allegedly exercises official duties in unconstitutional ways in order to secure personal benefit.25
No different conclusion is warranted based on the FAC’s allegations that defendants
“acted within the scope of their employment and under color of state law.” Although some district
courts have relied on similar allegations to conclude that the personal stake exception is not
applicable,26 it is important to distinguish the personal stake inquiry from whether a defendant has
acted “under color of law” for purposes of Section 1983. The color-of-law question principally
concerns “pretense of law”—whether the defendant was “clothed with the authority of state law.”27
The intracorporate conspiracy doctrine, however, concerns whether the allegedly unlawful conduct
actually was just implementation of a single corporate policy by officers serving the corporate
entity—whether “the conspiratorial conduct challenged is essentially a single act by a single

24

Hill v. City of New York, No. 03 Civ. 1283, 2005 WL 3591719, *6 (E.D.N.Y. 2005).
25

See Yeadon v. New York City Transit Auth., 719 F. Supp. 204, 207, 212 (S.D.N.Y.1989)
(holding that officers who allegedly engaged in race-based false arrests to “improve their
arrest records in order to secure promotions and other benefits” had “independent,
conspiratorial purpose”); Medina v. Hunt, No. 05 Civ. 1460, 2008 WL 4426748, *7–9
(N.D.N.Y. Sept. 25, 2008) (identifying factual dispute in whether officers acted pursuant
to personal interests in allegedly assaulting prisoner in retaliation for participating in federal
lawsuit).
26

See Anemone v. Met. Transp. Auth., 419 F. Supp. 2d 602, 604 (S.D.N.Y. 2006) (concluding
that personal stake exception did not apply because complaint alleged that government
employees acted within scope of employment); see also Mendoza v. Cnty. of Nassau, No.
11 Civ. 2487, 2012 WL 4490539, *8 (E.D.N.Y. Sept. 27, 2012).
27

U.S. v. Giordano, 442 F.3d 30, 42 (2d Cir. 2006) (Sotomayor, J.) (internal quotation marks
and alterations omitted).

8
corporation.”28 Where, as here, a group of defendants allegedly maintained the pretense of serving
the state while in fact pursuing their own ends to avoid liability, it is entirely consistent to conclude
that they acted both under color of state law and with an independent personal stake barring
application of the intracorporate conspiracy doctrine. This alleged conduct presents precisely the
“‘group danger at which conspiracy liability is aimed.’”29 For these reasons, the Court denies
defendants’ motion to dismiss plaintiff’s conspiracy claims based on the intracorporate conspiracy
doctrine.30 Nevertheless, there are glaring defects in the FAC’s pleadings that necessitate dismissal
of these claims.31
First, the FAC fails to plead a Section 1985 conspiracy because it does not allege

28

Herrman, 576 F.2d at 459.
29

Brever v. Rockwell Int’l Corp., 40 F.3d 1119, 1127 (10th Cir. 1994) (quoting Dussouy v.
Gulf Coast Inv. Corp., 660 F.2d 594, 603 (5th Cir. 1981)). Cf. Ricciuti v. New York City
Trans. Auth., 124 F.3d 123, 129–31 (2d Cir. 1997) (holding that conspiracy between
officers to prosecute plaintiff through false affidavits presented triable issues of fact).
30

The Court reaches this conclusion even though it finds the personal stake adequately alleged
only as to the Shooting Officers. Some district courts have assumed that the personal stake
must be held by “each and every” alleged co-conspirator. Tardd v. Brookhaven Nat.
Laboratory, 407 F. Supp. 2d 404, 414 (E.D.N.Y. 2006); see Watrous v. Town of Preston,
No. 10 Civ. 597, 2012 WL 4512534, *23 (D. Conn. Sept. 29, 2012). The Court respectfully
disagrees. The reason the intracorporate conspiracy bars claims is that a conspiracy requires
multiple actors; a single corporation cannot conspire with itself. See generally Girard, 530
F. 2d at 70. Where, as here, four of the alleged co-conspirators are acting in their own
interests, the requisite multiplicity is established and the doctrine does not apply to the
alleged conspiracy at all. Cf. Tavolini v. Mt. Sinai Medical Ctr., 984 F. Supp. 196, 206
(S.D.N.Y. 1997) (stating that doctrine applies only if “none of the members” of alleged
conspiracy has independent personal stake).
31

See 5B CHARLES A. WRIGHT , ARTHUR R. MILLER , ET AL ., FEDERAL PRACTICE &
PROCEDURE , § 1357 (3d ed. 2004) (“[T]he district judge on his or her own initiative may
note the inadequacy of the complaint and dismiss it for failure to state a claim as long as the
procedure employed is fair to the parties.”); Wachtler v. Cnty. of Herkimer, 35 F.3d 77, 82
(2d Cir. 1994).

9
facts even remotely suggesting a “‘racial, or perhaps otherwise class-based, invidiously
discriminatory animus behind the conspirators’ actions,’” the existence of which is essential to
liability.32 To the contrary, the FAC alleges that the defendants acted “to shield themselves from
liability, embarrassment, and charges of misconduct.”33
Second, the Section 1983 conspiracy claim simply makes no sense. In the count
regarding excessive use of force, the FAC alleges that defendants conspired to “cover up” the
incident and that this conspiracy deprived plaintiff of his right to be free of unreasonable force.34
The FAC, however, does not allege an agreement between or among any defendants to engage in
the use of excessive force. To the extent the defendants may have conspired after the fact to conceal
what had occurred, that conspiracy, if any, would have injured plaintiff only by causing his arrest
or further incarceration. But plaintiff’s Section 1983 false arrest count does not rely on any theory
of conspiratorial liability.35
In light of these significant deficiencies, dismissal of all of plaintiff’s conspiracy
claims is appropriate. Because defendants failed to move to dismiss on these grounds, however, the
Court will grant plaintiff leave to amend his conspiracy allegations if he thinks he has a basis for

32

Reynolds v. Barrett, 685 F.3d 193, 201–02 (2d Cir. 2012) (quoting Griffin v. Breckenridge,
403 U.S. 88, 102 (1971)).
33

FAC ¶ 55.
34

Id. ¶ 74.
35

See id. ¶¶ 82–89. Nor will this Court read such a theory into the FAC’s stray note in the
allegations regarding the excessive use of force claim that the conspiracy deprived plaintiff
of his right to be free from unreasonable search or seizure. Id. ¶ 74.

10
doing so, notwithstanding his election at oral argument to stand on his complaint as to these counts.36

IV.

Conclusion
Defendants’ motion to dismiss [DI 34] is granted to the extent that (1) Count I is

dismissed as to (a) the claim of use of excessive force against defendant City of New York and (b)
the conspiracy claims, (2) Counts II and VIII are dismissed as to all named defendants, (3) Count
IV is dismissed as to (a) defendants Brightman, Kerrigan, Cozart, and Tedeschi regarding any failure
to intervene in Terpos’s alleged use of excessive force and (b) defendants City of New York, Terpos,
Green, Jeffries, Hull, Gibbons, and Kelly, (4) Count V is dismissed in its entirety, and (5) Count XI
is dismissed on the ground that no separate cause of action lies for punitive damages37 although, of
course punitive damages may be recovered in an appropriate case where otherwise permitted by law.
It is denied in all other respects. Plaintiff may file an amended complaint to the extent indicated
herein and at oral argument provided it is filed no later than December 21, 2012. The previously
entered stay of discovery is vacated.
SO ORDERED.
Dated: December 12, 2012
___________

36

Plaintiff of course is free also to seek reconsideration of this order if he thinks it warranted.
37

E.g., Paisley v. Coin Device Corp., 5 A.D.3d 748, 750, 773 N.Y.S.2d 582, 583 (2d Dep’t
2004).