Smith v. The City of New York et al
Filing
30
OPINION AND ORDER. Defendants' motion to dismiss is GRANTED. The Clerk of Court is directed to terminate Docket Entry 24 and close the case. Re: 24 FIRST MOTION to Dismiss pursuant to FRCP 12(b)(6) filed by The City of New York, Jorge Pujols. (Signed by Judge Katherine Polk Failla on 11/25/2013) Copies Mailed By Chambers. (rjm)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
MARK SMITH,
:
:
Plaintiff,
:
:
-v.:
:
THE CITY OF NEW YORK and JORGE PUJOLS, :
:
Defendants.
:
:
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USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
DATE FILED:______________
11/25/2013
12 Civ. 4572 (KPF)
OPINION AND ORDER
KATHERINE POLK FAILLA, District Judge:
On June 11, 2012, Plaintiff Mark Smith, appearing pro se, initiated this
action under 42 U.S.C. § 1983 to allege violations of his Fourth, Eighth, and
Fourteenth Amendment rights by Defendants Officer Jorge Pujols and the City
of New York in connection with Plaintiff’s June 2010 arrest and subsequent
prosecution. Defendants now move to dismiss the action for failure to state a
claim. For the reasons set forth in the remainder of this Opinion, the motion is
granted.
BACKGROUND
In considering this motion, the Court is limited to the facts stated in the
Complaint and the documents incorporated by reference therein. Int’l
Audiotext Network, Inc. v. Am. Tel. & Tel. Co., 62 F.3d 69, 72 (2d Cir. 1995) (per
curiam) (“[T]he complaint is deemed to include any [ ] documents incorporated
in it by reference.” (quoting Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42,
47 (2d Cir. 1991))). The Court may also consider matters of which judicial
notice may be taken under Fed. R. Evid. 201, including public records such as
arrest reports, indictments, and criminal disposition data. Kramer v. Time
Warner Inc., 937 F.2d 767, 773-75 (2d Cir. 1991) (holding that the Court may
consider matters of which judicial notice may be taken under Fed. R. Evid.
201); see also Awelewa v. New York City, No. 11 Civ. 778 (NRB), 2012 WL
601119, at *2 (S.D.N.Y. Feb. 23, 2012) (judicial notice may be taken of arrest
reports, criminal complaints, indictments, and criminal disposition data) (citing
Wims v. New York City Police Dep’t, No. 10 Civ. 6128 (PKC), 2011 WL 2946369,
at *2 (S.D.N.Y. July 20, 2011)). Where the Court takes judicial notice, it does
so “in order to determine what statements [the public records] contained ... not
for the truth of the matters asserted.” Roth v. Jennings, 489 F.3d 499, 509 (2d
Cir. 2007) (internal quotation marks and emphases omitted) (quoting Kramer,
937 F.3d at 774).
The following facts are taken from Plaintiff’s Complaint (“Compl.”),
Plaintiff’s Amended Complaint (“Am. Compl.”), and matters of public record of
which the Court may permissibly take judicial notice, including the June 23,
2010 arrest report (“Arrest Report,” attached as Exhibit B to the Declaration of
Rosemari Y. Nam); and the Certificate of Disposition issued by the New York
County Criminal Court for Docket Number 2010NY047415 (“Certificate of
Disposition,” attached as Exhibit C to the Declaration of Rosemari Y. Nam).
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A.
The June 23, 2010 Arrest
Plaintiff alleges that on June 23, 2010, Officer Jorge Pujols “unlawfully
seized and arrested” Plaintiff for “allegedly violating [the] Tax Code.” (Am.
Compl. 3). 1 In contrast, the Arrest Report states that Officer Pujols arrested
Plaintiff for tampering with physical evidence, resisting arrest, and criminal
possession of marijuana in the fifth degree. (Arrest Report 1). In particular,
the Arrest Report states that Smith “was observed in possession of marijuana
in a public place. While being stopped by police, Def[endant] did intentionally
destroy evidence. Def[endant] did resist arrest by flailing his arms and legs.”
(Id.).
B.
The Disposition of the Criminal Case
Plaintiff alleges that “the charges stemming from this unlawful arrest
were subsequently dismissed.” (Am. Compl. 3). Here, too, Plaintiff’s
allegations are contradicted by the contemporaneous records. The Certificate
of Disposition states that Plaintiff pled guilty on June 25, 2010, to the charge
of tampering with physical evidence, in violation of New York Penal Law § 110215.40. The case was assigned Docket No. 2010NY047415, and Plaintiff was
sentenced to five days in prison. (Certificate of Disposition).
1
Plaintiff brought a remarkably similar action under 42 U.S.C. § 1983 nine days after
bringing the instant action, also alleging claims arising out of an arrest for violations of
the Tax Code. Both cases were reassigned, by chance, to the undersigned. The Court
dismissed the claims brought in the other action by Opinion and Order dated November
6, 2013. See Smith v. City of New York, No. 12 Civ. 4891 (KPF), 2013 WL 5942224 (Nov.
6, 2013).
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C.
The Instant Litigation
On June 11, 2012, Plaintiff initiated this action, alleging false arrest by
Officer John Doe in connection with an arrest “on or about” June 2009. (Dkt.
#2). Plaintiff alleged that the criminal complaint against him was dismissed
and sealed. (Compl. 3). On November 16, 2012, Plaintiff filed an amended
complaint, alleging false arrest by Officer Jorge Pujols in connection with an
arrest on June 23, 2010, for “allegedly violating [the] Tax Code.” (Am. Compl.
3; Dkt. #13). 2
Defendants moved to dismiss on September 27, 2013 (Dkt. #24), and
filed a “Notice to Pro Se Litigant” in accordance with Local Rule 12.1 (Dkt. #25).
Plaintiff did not file a response. Pursuant to Defendants’ request (Dkt. #28),
the Court deemed the motion fully briefed on November 12, 2013 (Dkt. #29).
DISCUSSION
A.
The Standard of Review
When considering a motion under Rule 12(b)(6), the Court should “draw
all reasonable inferences in Plaintiff’s favor, assume all well-pleaded factual
allegations to be true, and determine whether they plausibly give rise to an
entitlement to relief.” Fed. R. Civ. P. 12(b)(6); Faber v. Metropolitan Life, 648
F.3d 98, 104 (2d Cir. 2011) (internal quotation marks omitted) (quoting Selevan
2
Defendants assert that Plaintiff brings claims of false arrest, false imprisonment, and
malicious prosecution. (Def. Br. 4). Plaintiff only specifically alleges claims of false
arrest, in addition to alleging violations of his Fourth, Eighth, and Fourteenth
Amendment rights. (Compl. 2, 3; Am. Compl. 2, 3). In the interest of broadly
construing pro se Plaintiff’s claims, for the purposes of this Opinion, the Court assumes
that Plaintiff brings claims for false arrest, false imprisonment, and malicious
prosecution. However, for the reasons discussed throughout this Opinion, Plaintiff’s
claims are barred by his guilty plea, and he has thus failed to allege a claim.
4
v. N.Y. Thruway Auth., 548 F.3d 82, 88 (2d Cir. 2009)). A plaintiff is entitled to
relief if he alleges “enough facts to state a claim to relief that is plausible on its
face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007); see also In re
Elevator Antitrust Litig., 502 F.3d 47, 50 (2d Cir. 2007) (“[W]hile Twombly does
not require heightened fact pleading of specifics, it does require enough facts to
nudge [plaintiff’s] claims across the line from conceivable to plausible.”
(internal quotation marks omitted) (citing Twombly, 550 U.S. at 570)).
“[C]ourts must construe pro se pleadings broadly, and interpret them to raise
the strongest arguments that they suggest.” Cruz v. Gomez, 202 F.3d 593, 597
(2d Cir. 2000) (internal quotation marks omitted) (citing Graham v. Henderson,
89 F.3d 75, 79 (2d Cir. 1996)).
The Court is not, however, bound to accept “conclusory allegations or
legal conclusions masquerading as factual conclusions.” Rolon v. Hennenman,
517 F.3d 140, 149 (2d Cir. 2008) (quoting Smith v. Local 819 I.B.T. Pension
Plan, 291 F.3d 236, 240 (2d Cir. 2002)); see also Harris v. Mills, 572 F.3d 66,
72 (2d Cir. 2009) (“[A]lthough a court must accept as true all of the allegations
contained in a complaint, that tenet is inapplicable to legal conclusions, and
threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” (internal quotation marks omitted)
(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009))).
B.
Application
Section 1983 establishes liability for deprivation, under the color of state
law, “of any rights, privileges, or immunities secured by the Constitution.” 42
5
U.S.C. § 1983. Plaintiff here alleges violations of his Fourth, Eighth, and
Fourteenth Amendment rights, and brings claims for false arrest, false
imprisonment, and malicious prosecution in connection with his June 23,
2010 arrest and subsequent prosecution.
A claim for false arrest or false imprisonment, under Section 1983 or
New York State law, requires a plaintiff to show “that the defendant
intentionally confined him without his consent and without justification.”
Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996). A claim for malicious
prosecution, by contrast, requires a showing that: (i) the defendant initiated a
criminal proceeding; (ii) that was terminated favorably to the plaintiff; (iii) there
was no probable cause for the criminal charge; and (iv) the defendant acted
maliciously. See Rothstein v. Carriere, 373 F.3d 275, 282 (2d Cir. 2004) (citing
Savino v. City of New York, 331 F.3d 63, 72 (2d Cir. 2003)); accord Bernard v.
United States, 25 F.3d 98, 104 (2d Cir. 1994). If, after arrest, a plaintiff is
convicted of any of the charges against him, that conviction is ‘“conclusive
evidence of probable cause,’” even if “the conviction is the result of a guilty plea
to a lesser charge than that for which plaintiff was arrested.” Weyant, 101
F.3d at 852 (quoting Broughton v. State, 37 N.Y.2d 451, 458 (1975)).
Since probable cause is a complete defense to claims of both false arrest
and malicious prosecution, the Court considers whether there was probable
cause to arrest Plaintiff on June 23, 2010. See Weyant, 101 F.3d at 852 (false
arrest); Manganiello v. City of New York, 612 F.3d 149, 161–62 (2d Cir. 2010)
(malicious prosecution).
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Plaintiff was arrested on June 23, 2010, for tampering with evidence,
resisting arrest, and possession of marijuana. (Arrest Report). Plaintiff
subsequently pled guilty to tampering with evidence, in satisfaction of all
charges. (Certificate of Disposition). Thus, there was probable cause for
Plaintiff’s arrest, and he cannot sustain claims for false arrest or malicious
prosecution. See Timmins v. Toto, 91 F. App’x 165, 166 (2d Cir. 2004) (“[In]
actions asserting false arrest, false imprisonment, or malicious prosecution, …
the plaintiff can under no circumstances recover if he was convicted of the
offense for which he was arrested.” (citing Cameron v. Fogarty, 806 F.2d 380,
387 (2d Cir. 1986))) (summary order); Rivera v. City of Yonkers, 470 F. Supp.
2d 402, 408 (S.D.N.Y. 2007) (“Because Plaintiff pled guilty to one of the crimes
for which he was arrested … Defendants have a complete defense to Plaintiff’s
claim for false arrest. In addition, as this guilty plea represents a termination
of the case that was not in favor of the accused, Plaintiff cannot maintain his
claim for malicious prosecution.”).
Plaintiff is also barred from recovery because he has not shown that his
conviction “has been reversed on direct appeal, expunged by executive order,
declared invalid by a state tribunal authorized to make such determination, or
called into question by a federal court’s issuance of a writ of habeas corpus.”
Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). A Section 1983 plaintiff
cannot recover if an award would imply the invalidity of plaintiff’s conviction.
See Younger v. City of New York, 480 F. Supp. 2d 723, 730 (S.D.N.Y. 2007)
(dismissing plaintiff’s claims for false arrest, false imprisonment and malicious
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ALISON J. NATHAN, District Judge:
On May 31, 2013, counsel for plaintiff Theresa Grant moved to withdraw. (Dkt. # 17)
Counsel’s moving papers were served on Ms. Grant on the same day. (Dkt. # 18) To date, Ms.
prosecution because, if successful, they would render plaintiff’s conviction
Grant has not opposed counsel’s motion. Accordingly, the motion to withdraw is GRANTED.
invalid). Plaintiff has failed to state a claim, and as such, his claims will be
It is hereby ORDERED that on or before July 5, 2013, Ms. Grant either obtain new
dismissed. 3
counsel to represent her in this matter or enter the necessary appearance to proceed on her own
CONCLUSION
behalf. Ms. Grant may obtain information about proceeding without an attorney by contacting
Defendants’ motion to dismiss is 200, New York, New York 10007. The
the Office of Pro Se Litigation, 500 Pearl Street, Room GRANTED. The Clerk of Court is
directed to terminate Docket Entry 24 and close the case.
Office of Pro Se Litigation may also be reached via telephone at (212) 805-0175. Failure to
SO ORDERED.
either obtain counsel or enter the necessary pro se appearance by July 5, 2013 may result in
Dated: action for failure to prosecute.
dismissal of thisNovember 25, 2013
New York, New York
Dated: June 14, 2013
New York, New York
__________________________________
KATHERINE POLK FAILLA
__________________________________
United NATHAN
ALISON J.States District Judge
United States District Judge
A copy of this order was mailed by Chambers to:
Mark A. Smith
223 Ten Eyck Walk, Apt. 1A
Brooklyn, NY 11206
3
Municipalities may be sued directly for constitutional violations pursuant to 42 U.S.C.
§ 1983, Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690 (1978), but cannot be held
liable for the acts of their employees under the doctrine of respondeat superior.
Pembaur v. City of Cincinnati, 475 U.S. 469, 478 (1986). Having failed to allege an
underlying constitutional violation, Plaintiff’s claims against the City of New York
similarly cannot stand. See Bobolakis v. DiPietrantonio, 523 F. App’x 85, 87 (2d Cir.
2013) (affirming dismissal of Monell claims where plaintiff “suffered no violation of his
constitutional rights [and as such] there is no basis for imposition of liability on the
Town” (citing Segal v. City of New York, 459 F.3d 207, 219 (2d Cir. 2006))) (summary
order).
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