Cooper v. The City of New York et al

Filing 17

OPINION AND ORDER: For the foregoing reasons, Coopers claim against the City of New York is dismissed with leave to amend. Coopers claim against DetectiveMacDougall survives. Plaintiff may amend his Complaint within 30 days of this Opinion. SO ORDERED. (Signed by Judge Shira A. Scheindlin on 10/02/2013) (ama)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

----------------------------------------------------- )(
GARY COOPER,
Plaintiff,
OPINION AND ORDER
- against­
12 Civ. 8008 (SAS)
THE CITY OF NEW YORK and
DETECTIVE MICHAEL
MACDOUGALL,

,-.'-.

Defendants.
, _ _, '

----------------------------------------------------- )(
SHIRA A. SCHEINDLIN, U.S.D.J.:
I.

~d' ~

• •, -

1\

""'i'J/ ~II):~:;:~\
.....

<'·-v

"';,<..:;-~~'. :..--.~-'

INTRODUCTION

Plaintiff Gary Cooper has sued the City of New York (the "City") and
Detective Michael MacDougall (collectively "defendants") under 42 U.S.C. § 1983
for malicious prosecution arising out of Cooper's arrest for the felony sale of
MDMA, a controlled substance, on April 25, 2009. Cooper also brings a Monell
claim against the City alleging a policy of racial discrimination in violation of the
First, Fourth, Eighth, and Fourteenth Amendments of the U.S. Constitution.! On
October 28,2009, the criminal charges against Cooper were dismissed because the
prosecution was not ready to proceed. Defendants now move to dismiss Cooper's

See Complaint ("Compl.") ~~ 23-35, 36-44.
1

Complaint. This motion is: (1) granted with respect to the City; and (2) denied
with respect to Detective MacDougall.
II.

FACTUAL ALLEGATIONS
A.

Cooper’s Prior Experience with the Police
Cooper is a twenty-five year old African-American male who wears

urban style clothing which he designs.2 Cooper has had three prior arrests that
were either dismissed by the court or dropped by the prosecution.3 These arrests
resulted in two civil rights lawsuits against the City, both of which settled.4 These
lawsuits included claims of racial profiling.5 Additionally, Cooper’s mother, Linda
Cooper, has criticized the New York City Police Department for racially
discriminatory policies.6 Cooper claims that his prior arrests motivated his most
recent arrest, described below.7

2

See id. ¶ 18.

3

See id.

4

See id. ¶ 17.

5

See id.

6

See id. ¶ 18.

7

See id. ¶ 21.
2

B.

Cooper’s Arrest on April 25, 2009
On April 25, 2009, police officers arrested Cooper near his home on

West 84th Street in Manhattan.8 Following his arrest, Cooper observed officers
congratulating each other and discussing celebrating his arrest with a pizza party.9
Cooper asked officers why he was being arrested, to which an officer responded
that Cooper was “wearing the wrong clothing.”10 He was wearing a red t-shirt at
the time.11 After Cooper was arrested, he was escorted to his nearby home.12 On
the way there, an unnamed officer asked Cooper if he was a “[B]lood.”13
Officers searched Cooper’s home for “coke, guns, and ecstasy,”
claiming that they had a warrant.14 The purported warrant was not shown to
Cooper.15 Cooper denied having any of these items and told the officers that he

8

See id. ¶ 14.

9

See id. ¶ 18.

10

Id. ¶ 14.

11

See id.

12

See id. ¶ 15.

13

Id. ¶ 14.

14

Id. ¶ 15.

15

See id.
3

was a school teacher, to which the officers responded with laughter.16 Cooper told
the officers that he was in possession of a small amount of marijuana for personal
use.17 The search revealed only the marijuana which Cooper had identified.18
Subsequently, officers escorted Cooper to the police station where he was denied
the use of a phone.19
C.

The Questioning and Charging of Cooper
Detective MacDougall began questioning Cooper at the police

station.20 Detective MacDougall allegedly told Cooper he was aware that Cooper
“did not play a part in what was going on.”21 Yet Detective MacDougall attempted
— but failed — to get Cooper to write a confession.22 Cooper was never read his
Miranda rights.23

16

See id.

17

See id.

18

See id.

19

See id.

20

See id.

21

See id.

22

See id.

23

See id.
4

Cooper, along with co-defendant Denis Stock, was then charged with
one Count of Criminal Sale of a Controlled Substance in the Second Degree and
one count of Criminal Sale of a Controlled Substance in the Fifth Degree.24
Cooper was not charged with possession of marijuana.25 Specifically, the felony
complaint states that “[Detective MacDougall] is further informed that on April 4,
2009 at approximately 3:45 P.M. at 150 West 84th Street, defendant Cooper did
give defendant Stock a bag, which defendant Stock then gave to [an] informant in
exchange for [money].”26 That bag allegedly contained 100 pills of ecstasy, also
known as MDMA.27
Cooper was arraigned on Monday, April 27, 2009, two days after his
arrest.28 The Court set bail at $7,500.29 Cooper’s parents were ready to post bail
but the New York County District Attorney’s Office (“DAO”) asked for a surety

24

See id. ¶ 16, 19.

25

See id. ¶¶ 16.

26

Id. ¶ 19. Defendants suggest that a fellow undercover officer
informed Detective MacDougall about the alleged transaction. See Defendants’
Memorandum of Law in Support of Defendants’ Motion to Dismiss the Complaint
(“Def. Mem.”) at 10.
27

See Compl. ¶ 19.

28

See id. ¶ 20.

29

See id.
5

hearing which required Cooper’s parents to supply financial statements to verify
the source of the bail they were posting.30 As a result, Cooper was released on
May 1, 2009 instead of April 27, 2009, leading to an extra ninety-seven hours of
incarceration.31 On October 28, 2009, all charges against Cooper were dismissed
when the DAO conceded that it was not ready to proceed.32
Cooper lost income when he was suspended from his job as a paraprofessional by the New York City Department of Education, although he was
reinstated after the charges against him were dismissed.33 Cooper claims he
suffered damage to his reputation in the community and to his career.34 Cooper
filed the instant Complaint on October 26, 2012, alleging that he was maliciously
prosecuted in retaliation for filing previous lawsuits.35

30

See id.

31

See id. ¶¶ 20–21.

32

See id. ¶ 22.

33

See id. ¶¶ 22, 34.

34

See id. ¶ 34.

35

See id. ¶ 22.
6

III.

LEGAL STANDARD
In deciding a motion to dismiss pursuant to Rule 12(b)(6), the court

must “accept[ ] all factual allegations in the complaint as true, and draw[ ] all
reasonable inferences in the plaintiff’s favor.”36 The court evaluates the
sufficiency of a complaint under the “two-pronged approach” advocated by the
Supreme Court in Ashcroft v. Iqbal.37 First, a court “can choose to begin by
identifying pleadings that, because they are no more than conclusions, are not
entitled to the assumption of truth.”38 “Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements” do not suffice to
withstand a motion to dismiss.39 Second, “[w]hen there are well-pleaded factual
allegations, a court should assume their veracity and then determine whether they
plausibly give rise to an entitlement for relief.”40

36

Wilson v. Merrill Lynch & Co., 671 F.3d 120, 128 (2d Cir. 2011)
(quotation marks and citation omitted).
37

556 U.S. 662, 679 (2009).

38

Id.

39

Id. at 663.

40

Id. at 664.
7

To survive a Rule 12(b)(6) motion to dismiss, the allegations in a
complaint must meet a standard of “plausibility.”41 A claim is facially plausible
“when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.”42
Plausibility “is not akin to a probability requirement;” rather, plausibility requires
“more than a sheer possibility that a defendant has acted unlawfully.”43 For the
purposes of a 12(b)(6) motion, “a district court may consider the facts alleged in
the complaint, documents attached to the complaint as exhibits, and documents
incorporated by reference in the complaint.”44
IV.

APPLICABLE LAW
A.

Section 1983 and Monell Liability
Section 1983 of Title 42 of the United States Code (“section 1983”)

creates “‘a species of tort liability’” for, among other things, certain violations of
constitutional rights.45 As the Supreme Court established in Monell v. New York
41

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 564 (2007).

42

Iqbal, 556 U.S. at 678 (quotation marks and citation omitted).

43

Id. (quotation marks and citation omitted).

44

DiFolco v. MSNBC Cable LLC, 622 F.3d 104, 111 (2d Cir. 2010)
(citing Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002)).
45

Heck v. Humphrey, 512 U.S. 477, 483 (1994) (quoting Memphis
Cmty. Sch. Dist. v. Stachura, 477 U.S. 299, 305 (1986)).
8

City Department of Social Services,46 in order to have recourse against a
municipality under section 1983, a plaintiff “must prove that ‘action pursuant to
official municipal policy’ caused the alleged constitutional injury.”47 “In other
words, municipalities are ‘responsible only for their own illegal acts,’ and cannot
be held ‘vicariously liable under § 1983 for their employees’ actions.’”48 In
general, “[o]fficial municipal policy includes the decisions of a government’s
lawmakers, the acts of its policymaking officials, and practices so persistent and
widespread as to practically have the force of law.”49
One way to establish the existence of a municipal policy or custom is
through a showing of “deliberate indifference” by high-level officials. “‘[W]here a
policymaking official exhibits deliberate indifference to constitutional deprivations
caused by subordinates, such that the official’s inaction constitutes a deliberate
choice, that acquiescence may be properly thought of as a city policy or custom

46

436 U.S. 658, 690–91 (1978).

47

Cash v. County of Erie, 654 F.3d 324, 333 (2d Cir. 2011) (quoting
Connick v. Thompson, 131 S. Ct. 1350, 1359 (2011)).
48

Cash, 654 F.3d at 333 (quoting Connick, 131 S. Ct. at 1359)
(quotation marks and citations omitted).
49

Connick, 131 S. Ct. at 1359.
9

that is actionable under § 1983.’”50 Deliberate indifference requires “‘proof that a
municipal actor disregarded a known or obvious consequence of his action.’”51
Recognizing that deliberate indifference is “a stringent standard of fault,” the
Second Circuit requires “that the policymaker’s inaction was the result of
‘conscious choice’ and not ‘mere negligence.’”52
A municipality may incur Monell liability based on deliberate
indifference through its training and supervision practices. “[D]eliberate
indifference may be inferred where ‘the need for more or better supervision to
protect against constitutional violations was obvious,’ but the policymaker ‘fail[ed]
to make meaningful efforts to address the risk of harm to plaintiffs[.]’”53 Although
“[a] municipality’s culpability for a deprivation of rights is at its most tenuous
where a claim turns on a failure to train,”54 the Supreme Court has held that
“[w]hen city policymakers are on actual or constructive notice that a particular
50

Id. (quoting Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 126
(2d Cir. 2004)).
51

Connick, 131 S. Ct. at 1359 (quoting Board of Comm’rs of Bryan
County v. Brown, 520 U.S. 397, 410 (1997)).
52

Cash, 654 F.3d at 334 (quoting Amnesty, 361 F.3d at 128).

53

Id. (quoting Vann v. City of New York, 72 F.3d 1040, 1049 (2d Cir.
1995); Reynolds v. Giuliani, 506 F.3d 183, 192 (2d Cir. 2007)).
54

Connick, 131 S. Ct. at 1359 (citing Oklahoma City v. Tuttle, 471 U.S.
808, 822–23 (1985) (plurality opinion)).
10

omission in their training program causes city employees to violate citizens’
constitutional rights, the city may be deemed deliberately indifferent if the
policymakers choose to retain that program.”55
The Second Circuit framed the deliberate indifference inquiry in three
parts:
(1) [the] policymaker knows “to a moral certainty” that its
employees will confront a given situation; (2) either [the] situation
presents employees with [a] difficult choice that will be made less
so by training or supervision, or there is a record of employees
mishandling [the] situation; and (3) [a] wrong choice by
employees will frequently cause [the] deprivation of constitutional
rights.56
“Where the plaintiff establishes all three elements, then . . . the policymaker should
have known that inadequate training or supervision was ‘so likely to result in the
violation of constitutional rights, that the policymakers of the city can reasonably
be said to have been deliberately indifferent to the need.’”57 “A pattern of similar
constitutional violations by untrained employees is ‘ordinarily necessary’ to

55

Id. (citing Bryan Cnty., 520 U.S. at 407).

56

Cash, 654 F.3d at 334 (citing Walker v. City of New York, 974 F.2d
293, 297–98 (2d Cir. 1992)).
57

Walker, 974 F.2d at 298 (quoting City of Canton, Ohio v. Harris, 489
U.S. 378, 390 (1989)). In order to establish Monell liability based on the Walker
test, plaintiffs must also, of course, show that the training or supervision was in
fact inadequate and that this inadequacy caused plaintiff’s constitutional injuries.
See Reynolds, 506 F.3d at 193.
11

demonstrate deliberate indifference for purposes of failure to train.”58
B.

Malicious Prosecution
In order to establish a claim for malicious prosecution under section

1983, a plaintiff must allege the elements of malicious prosecution under state
law.59 The elements of a malicious prosecution claim under New York law are: (1)
the commencement or continuation of a criminal proceeding; (2) the favorable
termination of that proceeding; (3) lack of probable cause; and (4) malice.60
Probable cause defeats a claim of malicious prosecution.61 Probable cause, in the
context of malicious prosecution, has been described as “facts and circumstances
that would lead a reasonably prudent person to believe the plaintiff guilty.”62
An indictment by a grand jury creates a presumption of probable
cause that may be overcome only with “evidence that the indictment was the

58

Connick, 131 S. Ct. at 1360 (quoting Bryan Cnty., 520 U.S. at 409).
By contrast, “once a municipal policy is established, ‘it requires only one
application . . . to satisfy fully Monell’s requirement that a municipal corporation
be held liable only for constitutional violations resulting from the municipality’s
official policy.’” Pembaur v. City of Cincinnati, 475 U.S. 469, 478 n.6 (1986)
(quoting Tuttle, 471 U.S. at 822) (emphasis added).
59

See Fulton v. Robinson, 289 F.3d 188, 195 (2d Cir. 2002).

60

See Swartz v. Insogna, 704 F.3d 105, 111–12 (2d Cir. 2013).

61

See Dickerson v. Napolitano, 604 F.3d 732, 751 (2d Cir. 2010).

62

Boyd v. City of New York, 336 F.3d 72, 76 (2d Cir. 2003).
12

product of fraud, perjury, the suppression of evidence by the police, or other police
conduct taken in bad faith.”63 However, a plaintiff can no longer overcome this
presumption by alleging that a police officer committed perjury before the grand
jury as officers are entitled to absolute immunity for their testimony in that
forum.64
“In malicious prosecution cases brought against police officers,
plaintiffs have demonstrated that officers initiated criminal proceedings by having
the plaintiff arraigned, by filling out complaining and corroborating affidavits, and
by signing felony complaints.”65 Further, “[a]lthough there is a presumption that a
prosecutor exercises independent judgement in deciding whether to initiate and
continue a criminal proceeding, an arresting officer may be held liable for
malicious prosecution ‘when a police officer creates false information likely to

63

Newton v. City of New York, 640 F. Supp. 2d 426, 442 (S.D.N.Y.
2009) (citing Savino v. City of New York, 331 F.3d 63, 72 (2d Cir. 2003)).
64

See Rehberg v. Paul, 132 S. Ct. 1497, 1510 (2012); see also Brown v.
City of New York, No. 08 Civ. 5095, 2013 WL 1338785, at *4 n.3 (E.D.N.Y. Apr.
1, 2013) (“As a result of Rehberg, plaintiff cannot base his malicious prosecution
claim on the theory that [Officer] Dimitrakakis lied to the grand jury, nor can he
use Dimitrakakis’s grand jury testimony to rebut the presumption of probable
cause.”) (citations omitted).
65

Mitchell v. Victoria Home, 434 F. Supp. 2d 219, 227 (S.D.N.Y. 2006).
Accord Cox v. County of Suffolk, 827 F. Supp. 935, 938 (E.D.N.Y. 1993) (holding
that police officer initiated prosecution against defendant when he swore and
subscribed to a felony complaint).
13

influence a jury’s decision and forwards that information to prosecutors.’”66
For a proceeding to be “favorably terminated,” it need not result in an
acquittal, although that is obviously sufficient.67 When a termination is
inconclusive because it does not address the merits of the charge, the facts of the
surrounding termination must be examined to determine “whether the failure to
proceed implies a lack of reasonable grounds for the prosecution.”68 Finally,
malice “does not have to be actual spite or hatred, but means only ‘that the
defendant must have commenced the criminal proceeding due to a wrong or
improper motive, something other than a desire to see the ends of justice
served.’”69 In most cases, a lack of probable cause is not dispositive but “tends to
show that the accuser did not believe in the guilt of the accused, and malice may be
inferred from the lack of probable cause.”70

66

Mitchell, 434 F. Supp. 2d at 227 (quoting Brome v. City of New York,
No. 02 Civ. 7184, 2004 WL 502645, at *5-6 (S.D.N.Y. Mar. 15, 2004)).
67

See Jovanovic v. City of New York, No. 04 Civ. 8437, 2006 WL
2411541, at *10 (S.D.N.Y. Aug. 17, 2006).
68

Janetka v. Dabe, 892 F.2d 187, 189 (2d Cir. 1989).

69

Lowth v. Town of Cheektowaga, 82 F.3d 563, 573 (2d Cir. 1996)
(quoting Nardelli v. Stamberg, 44 N.Y.2d 500, 502-03 (1978)).
70

Id. (internal quotation marks omitted). Accord Ricciuti v. New York
City Transp. Auth., 124 F.3d 123, 131 (2d Cir. 1997).
14

C.

Qualified Immunity
“[G]overnment officials are entitled to some form of immunity from

suits for damages. As recognized at common law, public officers require this
protection to shield them from undue interference with their duties and from
potentially disabling threats of liability.”71 “In the case of legislators, judges, and
certain executive officials such as prosecutors, the protection usually takes the
form of absolute immunity from liability for damages.”72 “In the case of most
executive employees, however, the protection takes the form of ‘qualified
immunity,’ i.e., immunity from liability if the employee was acting in subjective
and objective good faith.”73
“Qualified immunity is an affirmative defense designed to protect the
defendant public official not just from liability but also from suit thereby sparing
him the necessity of defending by submitting to discovery on the merits or
undergoing a trial.”74 “Qualified immunity is a defense available only to

71

Harlow v. Fitzgerald, 457 U.S. 800, 806 (1982). Accord Cornejo v.
Bell, 592 F.3d 121, 124 (2d Cir. 2010).
72

Cornejo, 592 F.3d at 124.

73

Id.

74

Amore v. Novarro, 610 F.3d 155, 161 (2d Cir. 2010) (quotation
marks, citation, and alterations omitted). Accord Jenkins v. City of New York, 478
F.3d 76, 87 n.9 (2d Cir. 2007) (“[Qualified immunity] is ‘an immunity from suit
rather than a mere defense to liability; and like an absolute immunity, it is
effectively lost if a case is erroneously permitted to go to trial.’” (quoting Mitchell
15

individuals sued in their individual capacity. ‘[M]unicipalities have no immunity
from damages for liability flowing from their constitutional violations.’” 75 In all
cases, the qualified immunity analysis mandates a fact-specific inquiry.
“[G]overnment officials performing discretionary functions generally
are shielded from liability for civil damages insofar as their conduct does not
violate clearly established statutory or constitutional rights of which a reasonable
person would have known.”76 A discretionary function “involves an element of
judgment or choice,” such that the activity at issue does not have a predetermined
outcome.77 A government official engaged in ministerial “conduct that is not the
product of independent judgment will be unaffected by threat of liability” and is
therefore not protected by immunity doctrines.78

The inquiry as to whether an eligible government official is entitled to
qualified immunity is two-fold. First, the court “must decide whether the facts that
v. Forsyth, 472 U.S. 511, 526 (1985) (emphasis in original))).
75

Askin v. Doe No. 1, No. 12 Civ. 877, 2013 WL 4488698 at *4 (2d Cir.
Aug. 23, 2013) (quoting Lore v. City of Syracuse, 670 F.3d 127, 164 (2d Cir.
2012), in turn quoting Owen v. City of Independence, 445 U.S. 622, 657 (1980)).
76

Harlow, 457 U.S. at 818.

77

Berkovitz by Berkovitz v. United States, 486 U.S. 531, 536 (1988).

78

Id.
16

a plaintiff has alleged make out a violation of a constitutional right.”79 Second,
“the court must decide whether the right at issue was clearly established at the time
of the defendant’s alleged misconduct.”80 Courts have “discretion in deciding
which of the two prongs of the qualified immunity analysis should be addressed
first in light of the circumstances in the particular case at hand.”81
The Second Circuit has held that a right is clearly established for
qualified immunity purposes if “(1) the law is defined with reasonable clarity, (2)
the Supreme Court or the Second Circuit has recognized the right, and (3) a
reasonable defendant would have understood from the existing law that his conduct
was unlawful.”82 “‘Unless the plaintiff’s allegations state a claim of violation of
clearly established law, a defendant pleading qualified immunity is entitled to
dismissal.’”83
79

Pearson v. Callahan, 555 U.S. 223, 232 (2009).

80

Id. (citation omitted).

81

Id. (quotation marks and citation omitted). Pearson recognized,
however, that the traditional sequence “is often appropriate.” Id. at 236.
82

Anderson v. Recore, 317 F.3d 194, 197 (2d Cir. 2003) (quotation
marks and citation omitted). Accord Saucier v. Katz, 533 U.S. 194, 202 (2001)
(“The relevant, dispositive inquiry in determining whether a right is clearly
established is whether it would be clear to a reasonable officer that his conduct
was unlawful in the situation he confronted.”).
83

Scott v. Fischer, 616 F.3d 100, 110 (2d Cir. 2010) (quoting Forsyth, at

526).
17

D.

Leave to Amend
Whether to permit a plaintiff to amend a complaint is a matter

committed to a court’s “sound discretion.”84 Federal Rule of Civil Procedure 15(a)
provides that leave to amend a complaint “shall be freely given when justice so
requires.”85 “When a motion to dismiss is granted, the usual practice is to grant
leave to amend the complaint.”86 Leave to amend should be denied, however,
where the proposed amendment would be futile.87
V.

DISCUSSION
A.

Malicious Prosecution
The first requirement for a malicious prosecution claim under New

York law is that the defendant initiated or continued a criminal proceeding against
the plaintiff.88 Defendants argue that Cooper’s malicious prosecution claim against
Detective MacDougall must be dismissed because it was the prosecutor, and not

84

McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 200 (2d Cir.

2007).
85

Fed. R. Civ. P. 15(a).

86

Hayden v. County of Nassau, 180 F.3d 42, 53 (2d Cir. 1999).

87

See Dougherty v. Town of N. Hempstead Bd. of Zoning Appeals, 282
F.3d 83, 87–88 (2d Cir. 2002).
88

See Swartz, 704 F.3d at 111–12.
18

Detective MacDougall, who initiated the prosecution against Cooper.89 “New
York law imposes a presumption that a prosecutor exercises his own independent
judgment in deciding to prosecute a criminal defendant.”90 However, a plaintiff
seeking to bring a malicious prosecution claim against an officer may overcome
that presumption by demonstrating that the officer-defendant “‘played an active
role in the prosecution, such as giving advice and encouragement or importuning
the authorities to act,’”91 or that the officer-defendant “created false information
and forwarded it to prosecutors.”92
Cooper has pleaded facts — presumed to be true — that overcome the
presumption that the prosecutor, not Detective MacDougall, initiated the criminal
proceedings against Cooper. Specifically, Cooper alleges that Detective
MacDougall told him at the police station that he knew Cooper was not involved in

89

See Def. Mem. at 4–5.

90

Gilman v. Marsh & McLennan Cos., Inc., 868 F. Supp. 2d 118, 128
(S.D.N.Y. 2012).
91

Espada v. Schneider, 522 F. Supp. 2d 544, 553 (S.D.N.Y. 2007)
(quoting DeFilippo v. County of Nassau, 583 N.Y.S.2d 283, 284 (2d Dep’t 1992)).
92

Id. Accord Cameron v. City of New York, 598 F.3d 50, 63 (2d Cir.
2010) (noting that “generally in malicious prosecution actions alleging that a police
officer provided false information to a prosecutor, what prosecutors do
subsequently has no effect whatsoever on the police officer’s initial, potentially
tortious behavior”).
19

the ecstasy dealing scheme.93 Yet Detective MacDougall signed an affidavit
attesting to the drug deal and stating that Cooper sold a bag “contain[ing] 100 pills
of MDMA.”94 Drawing all reasonable inferences in Cooper’s favor, the Complaint
pleads that Detective MacDougall initiated the criminal proceeding against Cooper
by providing the prosecutor with information he knew to be false.95 Thus, Cooper
has adequately pled the first element of a malicious prosecution claim.
B.

Qualified Immunity
Defendants argue that Detective MacDougall is entitled to qualified

immunity because he reasonably relied upon information provided by an
undercover officer in signing the affidavit.96 This information was the sole factual

93

See Compl. ¶ 15.

94

Id. ¶ 19.

95

See Espada, 522 F. Supp. 2d at 553.

96

See Def. Mem. at 9-10. Defendants argue that my decision in
Annunziata v. City of New York, No. 06 Civ. 7637, 2008 WL 2229903, at *4
(S.D.N.Y. May 28, 2008), supports a finding that Detective MacDougall is entitled
to qualified immunity. The facts of Annunziata, however, are easily
distinguishable. In Annunziata, I found that the arresting officers had “no reason to
disbelieve [their fellow officer’s] statement that Annunziata was the shooter or
disobey [his] command to arrest Annunziata.” Id. at *5. In this case, by contrast,
Cooper alleges that Detective MacDougall knew that he was innocent of the felony
drug charges.
20

basis for the felony drug charges against Cooper.97 However, qualified immunity
is unavailable when an officer knows that the information relied upon is false and it
is reasonably foreseeable that the deception will result in a deprivation of liberty.98
As discussed above, Cooper has alleged that Detective MacDougall knew he was
innocent of the charges but chose to provide contrary information in order to
deceive the prosecutor. Taking these allegations as true, Detective MacDougall is
not entitled to qualified immunity.
C.

Monell Liability
Cooper alleges that the City has a policy of racial profiling that led to

his arrest and subsequent prosecution in violation of his constitutional rights.99

97

See Compl. ¶ 19.

98

See Zahrey v. Coffey, 221 F.3d 342, 357 (2d Cir. 2000) (holding that
“the right not to be deprived of liberty as a result of any government officer’s
fabrication of evidence” is clearly established, and thus that a government officer
who fabricates evidence, where it is reasonably foreseeable that use of the
fabricated evidence will result in a deprivation of liberty, is not entitled to qualified
immunity) (emphasis in original).
99

At the time Cooper was placed under arrest, he was wearing a red
shirt. See Compl. ¶ 14. Cooper asked why he was being arrested. Id. An officer
responded by chastising him for wearing the “wrong” clothing and calling him a
“[B]lood.” Id. However, merely wearing a red shirt while being AfricanAmerican, without more, does not justify an arrest even under the “reasonable
suspicion” standard. See Florida v. J.L., 591 U.S. 266, 271-72 (1968); Floyd v.
City of New York, 813 F. Supp. 2d 457, 469 (S.D.N.Y. 2011) (“Defendants cannot
establish that, as a matter of law, Floyd’s furtive movements and possession of a
21

Specifically, Cooper alleges that the City’s de facto policies include the failure to
properly train police officers, resulting in the racial profiling of AfricanAmericans. He alleges,
[u]pon information and belief, the CITY OF NEW YORK failed
to screen, hire, supervise and discipline their police officers,
including the DEFENDANT DETECTIVE MICHAEL
MacDOUGALL herein, for racial bias, particularly with respect
to the treatment of African-Americans, lack of truthfulness, and
for their failure to protect citizens from unconstitutional conduct
of other police officers, thereby permitting and allowing the
defendant DETECTIVE MICHAEL MacDOUGALL herein to be
in a position to maliciously prosecute the plaintiff and violate his
federal constitutional rights, and/or permit these actions to take
place with their knowledge and consent.100
Drawing all inferences in favor of Cooper, Cooper has failed to
properly plead a plausible Monell claim against the City. The Complaint contains
nothing more than “[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements,” which “do not suffice” to withstand
defendants’ motion to dismiss.101 Cooper has failed to allege any fact which would
give rise to an inference that the City had a constitutionally violative policy or that
a policymaking individual was deliberately indifferent to the NYPD’s alleged lack

number of keys were themselves sufficient to create reasonable suspicion.”).
100

Compl. ¶ 39.

101

Iqbal, 556 U.S. at 663 (2009).
22

training.102 Therefore, Cooper’s Monell claim against the City is dismissed with
leave to amend.
D.

Leave to Amend
Because leave to amend should be freely given “when justice so

requires,” I grant Cooper leave to amend his Monell claim against the City if he
can do so in compliance with his obligations under Federal Rule of Civil Procedure
11.
VI.

CONCLUSION
For the foregoing reasons, Cooper’s claim against the City of New

York is dismissed with leave to amend. Cooper’s claim against Detective
MacDougall survives. Plaintiff may amend his Complaint within 30 days of this
Opinion.

102

See Missel v. County of Monroe, 351 Fed. App’x 543, 546 (2d Cir.
2009) (finding that the allegation that the County was aware of prior complaints
about officer’s conduct does not provide a “plausible basis for an inference that the
County failed” to properly train employee); see also Triano v. Town of Harrison,
895 F. Supp. 2d 526, 536 (S.D.N.Y. 2012) (finding that plaintiff’s allegations of
“systematic flaws in the Town’s misconduct review process” without any facts to
substantiate these allegations were insufficient to state a plausible claim for relief);
Covington v. City of New York, 916 F. Supp. 282, 290 (S.D.N.Y. 1996) (“Since
Covington has not asserted a single concrete fact from which the Court can
conclude that District Attorney Morgenthau either had unconstitutional office
policies or failed to adequately train his ADAs, Covington’s failure to train claim is
legally insufficient and should be dismissed.”) (citations omitted).
23

V.S.DJ.
Dated:

New York, New York
October 2, 2013

24

-AppearancesFor Plaintiff:
Timothy P. Devane, Esq.
204 West 84th Street
New York, NY 10024
[phone]
For Defendants:
Carolyn K. Depoian
Assistant Corporation Counsel
City of New York
100 Church Street
New York, NY 10007
[phone]

25