Troy v. City of New York et al
Filing
53
MEMORANDUM & ORDER granting 24 Motion to Dismiss. As set forth within, Defendant's motion to dismiss is granted, and Plaintiff's Complaint is dismissed for failure to state a claim, except that her state-law claims are dismissed without prejudice. The Clerk of Court is requested to terminate the case. SO ORDERED. This resolves Dkt. No. 24. (Signed by Judge Alison J. Nathan on 9/25/2014) (ajs)
USDC SON'\'
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
Suzannah B. Troy,
Plaintiff,
13-cv-5082 (AJN)
-vCity of New York, et al.,
MEMORANDUM &
ORDER
Defendants.
ALISON J. NATHAN, District Judge:
This action arises from the investigation of a physical altercation between Plaintiff
Suzannah Troy and non-party Delita Hooks by police officers employed by the City of New
York ("City"). Plaintiff, proceeding pro se, brings this action against the City and individual
defendants Lieutenant Agnes, Lieutenant Burgos, Sergeant Chen, Detective Dwyer, IAB Chief
Campisi, Commissioner Kelly, Sergeant O'Donnell, and Deputy Inspector Winski, alleging that
Defendants violated the federal constitution, the state constitution, and state tort law. Before the
Court is Defendants' motion to dismiss the complaint pursuant to Federal Rule of Criminal
Procedure 12(b)(6). For the reasons that follow, the motion is granted.
I.
Background
The following facts are taken from the complaint and judicially noticeable documents.
See Kramer v. Time Warner Inc., 937 F.2d 767, 773 (2d Cir. 1991) (holding that a district court
may "consider matters of which judicial notice may be taken" in deciding a motion to dismiss, so
long as such extrinsic documents are not relied upon for the truth of the matters asserted therein).
But the Court does not rely on factual assertions made for the first time in Plaintiffs opposition
brief, see, e.g., Pl. Opp. 4 (asserting for the first time that Plaintiff spoke to Detective Del Pozo
about "witnessing a retired NYPD commander attempted [sic] to fix a ticket for Rudin Flunkie"),
as it is "axiomatic that the Complaint cannot be amended by briefs in opposition to a motion to
dismiss." Muniz v. Morillo, No. 06-cv-6570 (RJS), 2008 WL 4219073, at *6 (S.D.N.Y. Sept. 10,
2008) (quoting O'Brien v. Nat'! Prop. Analyst Partners, 719 F. Supp. 222, 229 (S.D.N.Y.
1989)). Indeed, Plaintiff was advised and subsequently reminded of her right to amend the
Complaint in the face of the motion to dismiss, see Dkt. Nos. 29, 33, but declined to do so,
opting instead to rely on the Complaint and oppose the motion, see Dkt. No. 40.
A. Plaintiff's History of Activism
Plaintiff Suzannah Troy defines herself as an activist who has engaged in numerous
campaigns involving her local community and the NYPD. Compl. 4. 1 For example, Plaintiff
"worked with the NYPD and Parks Dept. to return the doors" to the Tompkins Square Park
women's restrooms in August 2009, published a letter in the New York Times advocating raising
the salaries of NYPD officers in 2004, and gave free massages to NYPD officers in the lobby of
her health club following September 11. Compl. 5-7. Plaintiff has also expressed more critical
views of the NYPD, such as by filing a grievance with the Supreme Court Committee related to
"the rape trial ofNYPD PO Moreno aka the NYPD Rape Cop." Compl. 8-9.
B. Altercation with Ms. Hooks
Plaintiff is a patient of Dr. Kathleen Vine. Compl. 11. At the time of the events
underlying this litigation, Dr. Vine shared offices and a reception area with Dr. Andrew
Fagelman, who employed and continues to employ receptionist Delita Hooks. Id. On October 1,
2012, Plaintiff stopped by a water cooler in the reception area of Dr. Vine's office on her way
out the door. Id. Upon noticing that the water cooler was stocked with Styrofoam cups, Plaintiff
1
As Plaintiff's Complaint contains neither page nor paragraph numbers, the Court refers to the ECF page numbers
printed on the top of the document.
2
turned to Ms. Hooks and asked, "Would you consider using paper cups instead of Styrofoam?
It's better for the environment." Id.
While the exact sequence of the events that followed is not entirely clear from Plaintiff's
complaint, Plaintiff appears to contend that Ms. Hooks reacted to Plaintiff's request by striking
her desk, yelling at Plaintiff, getting up from her desk to approach Plaintiff in a threatening
manner, and giving Plaintiff "the finger." Compl. 11-12. Plaintiff retreated to the hallway and
began using her cell phone to record Ms. Hooks through the doorway of the office. Id. at 12
Plaintiff said to Ms. Hooks, "[W]ould you please give me the finger again, now I am filming."
Id. Instead of closing the door to block Plaintiff's view, the Complaint alleges that Ms. Hooks
continued to threaten Plaintiff, stating, "I will slap the crap out of you!" Id. According to the
Complaint, Ms. Hooks then slapped Plaintiff's cell phone out of Plaintiff's hands, threw her shoe
at Plaintiff, punched Plaintiff in the left eye, and dragged Plaintiff toward the elevator by pulling
on Plaintiff's hair. Id. at 12-13. Plaintiff attempted to defend herself by making shortjabs with
her bags and her left arm, which was weak due to a recent medical procedure (Plaintiff's right
arm was holding her cell phone, which she had apparently retrieved). Id. at 13. The attack
allegedly culminated with Ms. Hooks pressing her bare foot against Plaintiff's groin while
pulling on Plaintiff's hair so that Plaintiff was "bent over like a bridge." Id. at 13-14. Ms.
Hooks' co-workers and friends were ultimately able to put a stop to the altercation, and Ms.
Hooks returned to her desk. Id. at 14-15.
C. Investigation of Altercation
Immediately after leaving Dr. Vines' office on October 1, 2012, Plaintiff attempted to file
a complaint with the 1st Precinct of the New York Police Department by telephone. Compl. 15.
3
When nobody answered her call, she walked to their office and lodged her complaint in person.
Id.; Nam Deel. Ex. B (Omniform System Complaint Report) ("Complaint Report").
Three days later, on October 4, Detective John Vergona called Plaintiff regarding her
complaint. Comp!. 18. During their conversation, Plaintiff described the altercation, revealing
that she had told the followingjoke in the doctor's office just before being attacked: "Thank you,
I'll see you next summer, and ifl can afford injections then I'll get them to attract younger men."
Id. at 21. Plaintiff alleges that this statement caused Detective Vergona to "develop[] a
misogynistic attitude towards [her]." Id. Detective Vergona informed Plaintiff that he would
visit Dr. Vine's office on the following Monday, October 8, to investigate. Id. Despite this
assurance, Detective Vergona did not visit Dr. Vine's office. Id.
Later that same day, Plaintiff called Detective Vergona to provide additional information
regarding her case. Comp!. 21. Despite Plaintiff's multiple requests, Detective Vergona refused
to meet Plaintiff in person to examine her injuries. Id. Detective Vergona said to Plaintiff, "I
DON'T CARE IF YOU HAVE TWO BLACK EYES. STOP BABBLING." Id. at 21-22. At
some point, Detective Vergona told Plaintiff that he would not interview Dr. Fagelman or Dr.
Vine because they had not witnessed the altercation. Id. at 27. After these initial phone calls,
Plaintiff sent Detective Vergona corroborating evidence, including the video recording of the
attack, a medical report from Plaintiff's primary care physician documenting her injuries, and
photographs of her injuries. Id. at 18-19. The photographs of Plaintiff's injuries were attached
to her complaint file. See Nam Deel., Ex. C.
Three days later, on October 7, Plaintiff emailed Detective Vergona to inform him of
vulgar and threatening comments that had been left on the video of the altercation, which
4
Plaintiff had uploaded to YouTube. Compl. 23. Detective V ergona never discussed this email
with Plaintiff. Id.
On October 11, Plaintiff called the 1st Precinct and spoke with Detective Del Pozo in
order to request that charges be brought against Ms. Hooks. Compl. 29.
On October 13, Detective Vergona emailed Plaintiff to inform her that he would visit Dr.
Fagelman's office the following Monday, October 15, and requesting that she call him that
afternoon. Compl. 29. Detective Vergona did not visit Dr. Fagelman's office on October 15,
and, furthermore, refused to take Plaintiff's call that afternoon. Id. at 29-30.
On October 16, Detective Vergona called Plaintiff to inform her that Ms. Hooks had filed
a cross-complaint against her on October 2. Compl. 36. Plaintiff was surprised, as she had not
been contacted by the detectives assigned to Ms. Hooks' complaint. Id. at 21. Unlike Plaintiff,
who was never able to meet with Detective Vergona in person, Ms. Hooks "had a meeting
promptly with the NYPD" following the filing of her cross complaint. Id. at 46.
Detective Vergona further informed Plaintiff that, if Plaintiff did not drop her complaint
against Ms. Hooks, both Plaintiff and Ms. Hooks would be arrested. Compl. 37. Faced with this
choice, Plaintiff told Detective Vergona that she would rather be arrested. Id. Detective
Vergona demanded that Plaintiff turn herself in immediately. Id. Although Plaintiff initially
agreed to do so, she subsequently realized that she had a conflicting dentist appointment and
called Detective Vergona back to reschedule, offering to turn herself in that afternoon at 3 pm
instead. Id. at 37-38. Detective Vergona rejected this offer, telling Plaintiff that she should turn
herself on October 20, which was a Saturday. Id. at 38. Plaintiff objected that she was Jewish
and Saturday was the Sabbath, but Detective Vergona refused to reconsider. Id.
5
Plaintiff's impending incarceration caused her to experience mental, emotional, and
physical distress. Compl. 38. In particular, Plaintiff was concerned that she would be unable to
cope with an existing urinary condition while in prison, which was caused by a collapsed bladder
and fibroid tumors. Id. at 38. Fearing for her health, Plaintiff, acting through counsel, agreed to
withdraw her complaint against Ms. Hooks in exchange for Ms. Hooks doing the same. Id. at
38-39.
D. Concerns Regarding Investigation
Plaintiff came to suspect that she was being treated unfairly by Detective Vergona and
other officers in the 1st Precinct, and she reported these concerns to other authorities during and
after the investigation of her complaint. For example, Plaintiff contacted IAB regarding her
complaint against Ms. Hooks, such as by sending them medical records documenting her injuries
from the altercation. Compl. 19. Plaintiff also contacted IAB regarding the harassing comments
she received on the video of the attack posted to YouTube. Id. at 24. Although IAB initially told
Plaintiff that they would investigate, they subsequently refused to do so upon discovering that
the comments had not been left by police officers. Id.
On October 9, Plaintiff sent then-Commissioner Kelly a package informing him of the
NYPD's continued failure to investigate her case, and proposing a series of film festivals called
"Project Peace to the Street, Project Hope." Compl. 24-25. Commissioner Kelly never
responded. Id. at 25. Commissioner Kelly also failed to respond to Plaintiff's request for the
badge numbers of Detective Vergona and an officer identified as Sergeant Chen, as did Chief
Campisi, Deputy Edward Winski, Sergeant O'Donnell, the Civilian Complaint Review Board,
IAB, the detective squad, and the front desk of the 1st precinct. Id. Plaintiff encountered similar
difficulty ascertaining the identities of Detective Andy Dwyer and his partner, the police officers
6
assigned to investigate Ms. Hooks' cross-complaint: the CCRB, IAB, and "NYC Gov
Commission to Combat Police Corruption" all refused to identify the officers or give her their
badge numbers. Id.
Plaintiffs concerns were only exacerbated by the events surrounding her decision to drop
her complaint against Ms. Hooks, and on October 21, Plaintiff contacted IAB to complain that
she had been "coerced to drop charges by Det John Vergona." Compl. 43. IAB Sergeant Decker
told Plaintiff that everybody involved would be interviewed, and referred her to IAB Lieutenant
Agnes. Id. However, Lieutenant Agnes never returned Plaintiffs call, and Plaintiff was not
interviewed by IAB regarding Detective Vergona' s conduct. Id. Plaintiff later attempted to
report Detective Vergona to the CCRB, but they directed her to IAB against her wishes. Id.
At some point, Plaintiff "contacted the Hate Crimes Units ... regarding her allegations of
Det VERGONA delaying her unlawful arrest until Saturday, Oct. 20, 2012 and refusing to
explain why she had to wait 4 days until the Sabbath." Compl. 32-33. Detective Sanchez from
the Hate Crimes Unit directed Plaintiff to file a complaint with a local precinct, and Plaintiff
attempted to file such a complaint at the 9th Precinct. Id. at 33. She was turned away and
directed to IAB instead. Id. Plaintiff filed a complaint with IAB regarding Detective Vergona's
"anti-Semitism as well as misogyny," but again received no response. Id.
On November 18, Plaintiff contacted Deputy Winski to "inform[] him that a crime had
been committed in the First Precinct and [Ms. Hooks] had walked in and filed [a] false cross
complaint." Compl. 40-41. Two days later, on November 20, Plaintiff made similar reports to
IAB and Lieutenant Burgos. Id. at 41
Plaintiff also attempted to file a complaint regarding Ms. Hooks' allegedly false cross
complaint with the 1st Precinct. Compl. 41. Although Sergeant Chen had told Plaintiff that she
7
could do so over the telephone, he refused to speak with her when she came to the station, and
Officer Migori turned her away. Id. at 41-42. Plaintiff later tried contacting Detective Winski
regarding Ms. Hooks' false cross complaint, but she was unable to reach him by telephone, and
she was turned away by Sergeant Schwartz when she tried to meet Detective Winski at his
office. Id. at 42.
At some point, Plaintiff retained a private investigator. See Compl. 26-27. Plaintiffs
private investigator asked Dr. Fagelman, Ms. Hooks' employer, whether he had spoken to the
police. Id. at 27. Dr. Fagelman responded, "No comment." Id. Plaintiff interpreted this to
mean that Dr. Fagelman may have been interviewed in support of Ms. Hooks' cross-complaint.
Id.
E. Damages
Plaintiff "suffers many symptoms of Post Traumatic Stress" from Dr. Fagelman's refusal
to fire Ms. Hooks, Ms. Hooks' blaming Plaintiff for the attack, the attack itself, and the NYPD
and IAB officers' refusal to investigate her claims. Compl. 49. Her symptoms include insomnia,
weight gain, and anxiety. Id.
F. Complaint
Plaintiffs Complaint brings claims against the City of New York and police officers
Lieutenant Agnes, Lieutenant Burgos, Sergeant Chen, Detective Dwyer, IAB Chief Campisi,
Commissioner Kelly, Sergeant O'Donnell, and Deputy Inspector Winski, alleging violation of
the following constitutional rights, pursuant to 42 U.S.C. § 1983: (1) the right to be free from
retaliation under the First Amendment; (2) the First Amendment right to petition for redress of
grievances; (3) "freedom from the threat of lodging false charges ... by police officers in
violation of [Plaintiffs] rights to due process, under the Fifth and Fourteenth Amendments";
8
(4) "freedom from fabrication of evidence against her under the Fifth and Fourteenth
Amendments"; (5) equal protection; and (6) failure to intervene. Plaintiff further alleges that the
City is liable for these constitutional violations because they "were a direct and proximate result
of [its] wrongful de facto policies and/or well-settled and widespread customs and practices and
of refusal to accept complaints and investigate into officer misconduct and failure to properly
supervise, train and discipline police officers." Compl. 57.
Plaintiff also brings the following state law claims: (1) respondeat superior liability for
the City; (2) violation of the New York State Constitution's guarantee of "freedom from
retaliatory arrest, under the Article I, Section 8"; (3) intentional and negligent infliction of
emotional distress; (4) negligence; and ( 5) negligent hiring, screening, retention, supervision and
training by the City. Compl. 59-60.
Plaintiff requests that "she be compensated for violation of her constitutional rights, pain,
suffering, mental anguish and humiliation," and that she be awarded punitive damages and
attorneys' fees and costs. Compl. 60.
II.
Legal Standard
"To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on its face." Hogan v. Fischer, 738
F.3d 509, 514 (2d Cir. 2013) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). In this
context, a claim is 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." Id.
(quoting Iqbal, 556 U.S.at 678). While this standard "is not akin to a 'probability requirement,"'
it does demand "more than a sheer possibility that a defendant has acted unlawfully." Iqbal, 556
U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)). When applying this
9
standard to a complaint filed by a pro se litigant, the Court must construe the complaint
"liberally with 'special solicitude' and interpret[] [it] to raise the strongest claims that it
suggests." Hogan, 73 8 F .3d at 515. However, a litigant's pro se status does not relieve her of
the requirement that her complaint "state a plausible claim for relief." Id.
Ill.
Discussion
A. Failure to Investigate
It is well established that "[t]here is ... no constitutional right to an investigation by
government officials." Stone v. Dept. of Investigation of City of New York, No. 91-cv-2471
(MBM), 1992 WL 25202, at *2 (S.D.N.Y. Feb. 4, 1992); accord Harrington v. Cnty. of Suffolk,
607 F.3d 31, 35-36 (2d Cir. 2010). This is because "the duty to investigate criminal acts (or
possible criminal acts) almost always involves a significant level oflaw enforcement discretion,"
and individuals accordingly have no '"legitimate claim of entitlement' to a police investigation."
Harrington, 607 F.3d at 35 (citing Town of Castle Rock v. Gonzalez, 545 U.S. 748, 760 (2005)).
This rule requires that Plaintiffs claims be dismissed to the extent that they are based on
various defendants' failure to investigate. In Plaintiffs own words, she has brought suit against
defendants Campisi, Kelly, Winski, and Sergeant Chen because of their "failure ... to properly
investigate or intervene based on plaintiffs reports of Detective Vergona threatening her with an
unlawful arrest." Pl. Opp. 15. Likewise, Plaintiffs only allegations against Agnes, Burgos,
Dwyer, and O'Donnell's are that they failed to act in response to Plaintiffs complaints. See,
e.g., Compl. 43 (alleging that Agnes failed to contact Plaintiff regarding Defendant Vergona's
misconduct), 25 (alleging that Burgos never responded to her email), 18 (alleging that Dwyer
failed to "contact[] [Plaintiff] to interview her"), 28 (alleging that O'Donnell "was not interesting
in investigating why [Plaintiff] would drop charges"). Even Plaintifrs claims against Detective
10
Vergona are, to a significant extent, based upon his failure to adequately investigate her
complaint against Ms. Hooks. See, e.g., Compl. 17 (alleging that "Detective Vergona never went
to the medical office to interview everybody as he said he would"). Accordingly, Plaintiffs
claims against defendants Agnes, Burgos, Campisi, Chen, Dwyer, Kelly, O'Donnell, and Winski
must be dismissed for failure to state a claim, as must Plaintiffs claims against Detective
Vergona, to the extent they are predicated on his failure to investigate her complaint against Ms.
Hooks.
B. First Amendment
Plaintiff alleges that that Defendants deprived her of her First Amendment rights to be
free from retaliation and to "petition for redress of grievances." Compl. 52-53. While the
Complaint fails to identify either what has been done to Plaintiff that violates these rights, or
which defendants were responsible for that action, the Court construes Plaintiff to allege that she
engaged in conduct protected by the First Amendment by filing a police complaint against Ms.
Hooks and engaging in various forms of political activism, and that Detective Vergona
unlawfully retaliated against Plaintiff for these exercises of her First Amendment rights by
rudely telling her to "stop babbling," and by informing Plaintiff that she herself would face arrest
if she proceeded with her complaint against Ms. Hooks. See Pl. Opp. 18-19 (citing these
allegations in the complaint as the basis for her First Amendment claim). For the reasons that
follow, Plaintiffs First Amendment claims are dismissed.
1. Rude Comment
Plaintiffs opposition brief makes clear that her First Amendment claim is based, in part,
on Detective Vergona's having told her to "stop babbling" during their October 4, 2014,
telephone conversation. See Pl. Opp. 19; Compl. 21-22. However, any such claim must be
11
dismissed out of hand, as "[m]ere rudeness or inconvenience, however unpleasant," cannot give
rise to an injury cognizable under the First Amendment. Batista v. Rodriguez, 702 F.2d 393, 398
(2d Cir. 1983) (finding that administrative tribunal's rude treatment of plaintiffs did not violate
the First Amendment). To otherwise "suggest that rude and inconsiderate treatment of
complainants ... is prohibited by the First Amendment is to trivialize the significance of the
right to petition the government, making of the Constitution a font of tort law, and converting
federal courts into small-claims tribunals." Id. (quotation marks omitted omitted). Cf Schroeder
v. Dept. of Veterans Affairs, No. 08-cv-351 (MRK), 2009 WL 1531953, at *1-2 (D. Conn. June
1, 2009) (finding that plaintiffs allegation that defendant personnel had "hung up on him when
he called to check on his claim" was insufficient to state a claim for any constitutional violation).
Accordingly, Plaintiffs claim is dismissed to the extent that it is based upon Detective
V ergona' s rude comment.
2. Threat to Arrest
The Court turns to consider Plaintiffs claim that Detective Vergona retaliated against her
for her exercise of First Amendment rights-in particular, her complaint against Ms. Hooks, her
past "political activity, ... and [her] attempts to expose Defendant Vergona's unlawful threats of
false arrest," Pl. Opp. 18-192-by threatening to arrest her. In order to state a claim for
retaliation in violation of the First Amendment, a plaintiff must allege: "(l) [she] has an interest
protected by the First Amendment; (2) defendants' actions were motivated or substantially
caused by [her] exercise of that right; and (3) defendants' actions effectively chilled the exercise
of [her] First Amendment Right." Curley v. Vil!. ofSuffern, 268 F.3d 65, 73 (2d Cir. 2001).
2
In this section, Plaintiff also argues that she was subjected to selective treatment "for ... being a Jewish woman."
Pl. Opp. 18. The Court construes these claims as sounding in Equal Protection, and they are addressed separately
below. See infi'a § III.D.
12
With respect to the third prong of this standard, a plaintiff who, like Ms. Troy, proceeds in her
capacity as a private citizen (as opposed to a public employee or prisoner) must show that her
speech has actually been chilled as a result of the retaliatory conduct, or that she has suffered
some other concrete harm sufficient to confer standing. See Zherka v. Amicone, 634 F.3d 642,
645-46 (2d Cir. 2011) ("Hurt feelings or a bruised ego are not by themselves the stuff of
constitutional tort."). It is undisputed Plaintiff engaged in conduct protected by the Petition
Clause by filing a complaint against Ms. Hooks, see Estate of Morris ex rel. Morris v. Dapolito,
297 F. Supp. 2d 680, 692 (S.D.N.Y. 2004) ("[I]t is axiomatic that filing a criminal complaint
with law enforcement officials constitutes an exercise of the First Amendment right" to petition
government for the redress of grievances.") (quotation marks omitted), lodging complaints
regarding the allegedly deficient investigation of that complaint, and engaging in political
activism, see Compl. 4-11. The Court therefore focuses its attention upon the second and third
prongs of the test.
The Court finds that Plaintiff has failed to adequately plead that Detective Vergona's
threat to arrest her was motivated or substantially caused by the exercise of her First Amendment
Rights. Plaintiff alleges that, "[ o]n or about Tuesday October 16, 2012, defendant VERGONA
informed [Plaintiff] that he had just learned that Delita Hooks had filed a cross complaint against
[her]," and that Detective Vergona immediately thereafter informed "[Plaintiff] that she must
either drop her charges against Ms. Hooks, or he would arrest her." Compl. 36-37. These
allegations cannot plausibly be understood to support the inference that Detective Vergona
threatened to arrest Plaintiff in retaliation for her exercise of her right to petition-which
Plaintiff had exercised over two weeks before, on October 1. See Compl. 15. Nor can they
plausibly--or even conceivably-support the inference that Detective Vergona threatened to
13
arrest Plaintiff in retaliation for her "attempts to expose Detective Vergona' s unlawful threats of
false arrest," see Pl. Opp. 18-19, as the allegedly retaliatory threat preceded Plaintiff's efforts to
expose it. The Court further finds that Plaintiff has failed to plead any facts connecting
Detective Vergona's threat to her past activism. Rather, the only plausible inference raised by
Plaintiff's allegations is that Detective Vergona's threat was motivated by Ms. Hooks' cross
complaint, of which he had just learned. Cf Curley, 268 F.3d at 69-70, 73 (finding that arrest
based upon complaint by putative victim was not motivated or substantially caused by plaintiff's
exercise of First Amendment rights).
Also fatal to Plaintiff's claim is her failure to plead that her speech was "actually chilled"
by the threat. As Plaintiff's Complaint makes clear, Plaintiff continued to exercise her First
Amendment rights to complain of both the altercation with Ms. Hooks and the NYPD's failure to
investigate that altercation after the threat-including by filing a complaint with IAB, see
Compl. 43, 41, and contacting the Hate Crimes Unit, see Compl. 32-33. Nor has Plaintiff alleged
that she suffered any other concrete, constitutionally cognizable harm, such as the revocation of a
building permit. See Dougherty v. Town ofN. Hempstead Bd. of Zoning Appeals, 282 F.3d 83,
91 (2d Cir. 2002). The absence of any such allegation further precludes Plaintiff from stating a
claim for retaliation in violation of the First Amendment. See Zherka, 634 F.3d at 645-46
(affirming dismissal of First Amendment retaliation claim where plaintiff had failed to allege
actual chilling or "other form[] of tangible harm"). Because Plaintiff has thus failed to plead
facts sufficient to satisfy the second and third prongs of the standard for unconstitutional
retaliation in violation of the First Amendment, these claims are dismissed.
14
C. Threat to Lodge False Charges and Fabrication of Evidence
Plaintiff next alleges that Defendants violated her due process rights to "freedom from
the threat of lodging false charges ... by police officers" and "freedom from fabrication of
evidence against her under the Fifth and Fourteenth Amendments." Compl. 53. The Court
construes the Complaint to allege that Plaintiff was unconstitutionally deprived of liberty on the
basis of Ms. Hooks' allegedly false cross complaint.
"It is firmly established that a constitutional right exists not to be deprived of liberty on
the basis of false evidence fabricated by a government officer." Zahrey v. Coffey, 221F.3d342,
355 (2d Cir. 2000) (emphasis added). However, Plaintiff has failed to plead facts plausibly
stating such a claim: she alleges that the "false cross complaint" was filed by Ms. Hooks, Compl.
10, who is a receptionist for a doctor in private practice, and not a government officer. Cf
Chodkowski v. City of New York, No. 06-cv-7120 (LBS), 2007 WL 2717872, at *9 (S.D.N.Y.
Sept. 11, 2007) ("[P]roviding false information to the police does not make a private individual a
state actor and liable under § 1983. "). Nor has Plaintiff alleged that government officers caused,
pressured, or otherwise participated in the filing of the false cross complaint. Cf Blake v. Race,
487 F. Supp. 2d 187, 216-17 (E.D.N.Y. 2007) (denying summary judgment where there was "an
issue of fact as to whether the defendant [officers] participated in the alleged fabrication of
evidence" by coaching informant to give false testimony). This failure to plead that the false
cross complaint was created by a government actor requires that Plaintiffs claim be dismissed.
But even if Plaintiff had adequately pleaded that the false cross complaint was fabricated
by a government officer, her claim would fail because she has failed to plead that she was
deprived ofliberty as a result of the fabricated evidence. As the Second Circuit emphasized in
Zahrey, "[t]he manufacture of false evidence, 'in and of itself,' ... does not impair anyone's
15
liberty, and therefore does not impair anyone's constitutional right." 221 F.3d at 348. Plaintiff
does not plead that she was deprived of her liberty as a result of Ms. Hooks' false cross
complaint-to the contrary, her Complaint plainly alleges that she was not arrested. See Compl.
38. Nor has Plaintiff otherwise alleged that she was deprived of any protected interest. Cf
Rolon v. Henneman, 517 F.3d 140, 148-49 (2d Cir. 2008) (affirming dismissal of claim where
plaintiff had alleged that he had been deprived of overtime pay as a result of evidence fabricated
by government officers, where the plaintiff failed to allege that "he had a legitimate claim to
overtime" sufficient to establish a protected property interest). Thus, even accepting Plaintiff's
allegations as true and drawing reasonable inferences in her favor, she has failed to state a claim
for unconstitutional fabrication of evidence, and her claim is accordingly dismissed.
D. Equal Protection
Plaintiff further alleges that Defendants have violated her right to equal protection of the
laws. Compl. 53. The Court construes Plaintiff's Complaint to allege that Plaintiff was
subjected to unequal treatment because of her gender and religion, and that, in particular,
Detective Vergona refused to investigate Plaintiff's complaint and threatened to arrest Plaintiff
because she is a woman and because she is Jewish. See Compl. 21 (stating that "defendant
VERGONA ... develop[ed] a misogynistic attitude toward [Plaintiff]); Compl. 38 (alleging that
Detective Vergona "[ e]xercise[ed] his religious discrimination" by "refus[ing] to execute
[Plaintiff's] arrest on any day other than Saturday"). This claim too must be dismissed.
The Equal Protection Clause "is essentially a direction that all persons similarly situated
should be treated alike," City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985), and
it is violated when the government selectively denies government services to disfavored
minorities, see Deshaney v. Winnebago Cnty. Dept. ofSoc. Servs., 489 U.S. 189, 197 n.3 (1989).
16
In order to establish a denial of equal protection on the basis of selective treatment, a plaintiff
must allege: (1) "compared with others similarly situated, [she was] selectively treated," and (2)
"the selective treatment was motivated by an intention to discriminate on the basis of
impermissible considerations," such as gender or religion. Mosdos Chafetz Chaim, Inc. v. Vilt. of
Wesley Hills, 815 F. Supp. 2d 679, 692 (S.D.N.Y. 2011) (quoting Zahra v. Town of Southold, 48
F.3d 674, 683 (2d Cir. 1995)). "To establish such intentional or purposeful discrimination, it is
axiomatic that a plaintiff must allege that similarly situated persons have been treated
differently." Gagliardi v. Vilt. of Pawling, 18 F.3d 188, 193 (2d Cir. 1994) (citing Cleburne, 473
U.S. at 439).
Any equal protection claim brought on the basis of Detective Vergona's threat to arrest
Plaintiff is foreclosed by Plaintiffs failure to allege that she was treated differently than another
who was similarly situated. To the contrary, Plaintiff alleges that "Det. Vergona did state he
would arrest both [Plaintiff and Ms. Hooks]." Compl. 37. As previously discussed, "'[a]
showing that the plaintiff was treated differently compared to others similarly situated' is a
'prerequisite' and a 'threshold matter' to a selective treatment claim." Mosdos Chafetz Chaim,
815 F. Supp. 2d at 692 (quoting Church of the Am. Knights of the Ku Klux Klan v. Kerik, 356
F.3d 197, 210 (2d Cir. 2004)) (emphasis added). Plaintiffs allegation that she was treated just
like Ms. Hooks when threatened with arrest by Detective Vergona therefore precludes her from
stating a claim for violation of equal protection on that basis.
Plaintiff does, however, allege that she was subjected to selective treatment with respect
to the investigation of her complaint. 3 For example, Plaintiff alleges that "[Ms.] Hooks had a
3
While the Constitution provides individuals with no affirmative right to an investigation of their claims by the
government, it does prohibit the government from treating individuals unequally when determining which claims to
investigate. See Myers v. Cnty. of Orange, 157 F.3d 66 (2d Cir. 1998) (finding that municipal policy of
investigating only first-filed complaints and prohibiting cross-complaints violated the Equal Protection Clause).
17
meeting promptly with the NYPD yet to date [Plaintiff] has yet to be interviewed in person by
anyone from [NYPD] ... regarding" their altercation, Compl. 46, and speculates that Dr.
Fagelman was interviewed during investigation of Ms. Hooks' cross-complaint, see Compl. 27.
But even assuming that she was treated differently than Ms. Hooks with respect to the
investigation of her complaint, Plaintiff has not adequately pleaded that this differential
treatment was based upon her gender or religion.
As an initial matter, any claim that Plaintiff was treated differently on the basis of her
gender must fail as she and Ms. Hooks are both women. This conclusion is not altered by
consideration of the allegation that Plaintiff told Detective Vergona a joke about "afford[ing]
injections ... to attract younger men," which Plaintiff believes caused Detective Vergona to
"develop[] a misogynistic attitude towards [her]." Compl. 21. While mindful of its obligation to
construe Plaintiffs complaint liberally to raise the strongest arguments it suggests, see DiPetto v.
U.S. Postal Serv., 383 F. App'x 102, 103 (2d Cir. 2010), the Court must nevertheless conclude
that Plaintiffs speculation regarding the effect of her own gender related joke on another is
insufficient to "nudge[]" her claim of gender-based discrimination "across the line from
conceivable to plausible," Iqbal, 556 U.S. at 683.
Nor has Plaintiff plausibly alleged that the differences between the NYPD's treatment of
Ms. Hooks and herself are attributable to Plaintiffs religion. For one thing, Plaintiff has not
pleaded that Ms. Hooks belongs to a different religion than Plaintiff. Moreover, Plaintiff pleads
that she informed Detective Vergona that she was Jewish after the alleged unequal treatment-
i. e. the deficient investigation-had already occurred. Specifically, Plaintiff alleges that,
October 16, 2012, shortly after she was threatened with arrest and more than a week after
Detective Vergona had refused to meet her in person, Plaintiff contacted Detective Vergona to
18
reschedule her arrest for later that afternoon due to a conflicting dental appointment. Compl. 37,
21. It was during this later conversation that Plaintiff informed Detective Vergona that she was
Jewish. See Compl. 38. In other words, the allegedly discriminatory conduct occurred before
Detective Vergona learned of Plaintiffs religion. Intent to discriminate on the basis of religion
cannot plausibly be inferred from such allegations, and Plaintiffs equal protection claim must
therefore be dismissed.
E. Failure to Intervene
The Court turns to Plaintiffs claim that certain defendants "witnessed the defendants
unlawfully refuse to conform their conduct to the legal standard and threaten [her] with unlawful
arrest in deprivation of her First Amendment, Fourteenth Amendment rights and other federal,
state and common law rights." Compl. 53-54. The Court construes Plaintiff to allege that the
individual defendants other than Detective Vergona failed to intervene in order to prevent the
alleged injuries to her First and Fourteenth Amendment rights. As set forth above, this claim
essentially consists of an allegation that these other defendants failed to investigate her
complaints-conduct which is not barred by the Constitution. See supra § III.A.
Even if the Court did not construe this claim as one for failure to investigate, the claim
would fail because Plaintiff has not adequately pleaded that her constitutional rights were
violated. For while "[i]t is widely recognized that all law enforcement officials have an
affirmative duty to intervene to protect the constitutional rights of citizens from infringement by
other law enforcement officers in their presence," Anderson v. Branen, 17 F.3d 552, 557 (2d Cir.
1994), in the absence of a constitutional violation, there can be no violation of the duty to
intervene, see Curley, 268 F.3d at 72 (finding that "where ... the arresting officers committed no
infringement," there could be no liability based on the violation of the duty to intervene).
19
Because Plaintiff has not sufficiently alleged that her constitutional rights were violated, her
claim for violation of the duty to intervene must also be dismissed.
F. Monell Liability
Plaintiffs failure to adequately plead that her constitutional rights were violated also
precludes her from stating a claim for municipal liability against the City. For when "a person
has suffered no constitutional injury at the hands of the individual police officer, the fact that the
departmental regulations might have authorized the [constitutional violation] is quite beside the
point." City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986) (emphasis in original); see, e.g.,
Mitchell v. City of New York, No. 12-cv-2674 (LAK), 2014 WL 535046, at *6 (S.D.N.Y. Feb.
11, 2014) ("Having held that plaintiffs have failed to adduce facts supporting a constitutional
claim, plaintiffs' claim of municipal liability must fail under the rule announced in Monell.").
Accordingly, Plaintiffs claims against the City are dismissed as well.
But even if Plaintiff had adequately pleaded that her constitutional rights were violated,
her claim for municipal liability would fail. While no heightened pleading standard applies to
claims for municipal liability under § 1983, a plaintiff alleging municipal liability must
nevertheless plead facts sufficient to render plausible the claim that her injuries were caused by a
municipal custom or policy. See Plair v. City of New York, 789 F. Supp. 2d 459, 468-69
(S.D.N.Y. 2011). The threadbare allegations in the Complaint fail to meet this standard. For
example, Plaintiffs conclusory assertion that it was the "custom[], practice[], procedure[] and
rule[]" of the City to engage in the "abuse of authority to deprive citizens of their right to lodge
complaints about a city agency, namely the NYPD," Compl. 55, is not accompanied by any facts
giving rise to a plausible inference that such a policy or practice actually existed. There is, for
instance, "no allegation that any official policymaker or policymaking body took any action to
20
establish" such a policy, nor any other factual allegation tending to show that such a policy was
in place. Missel v. Cnty. of Monroe, 351 F. App'x 543, 545-46 (2d Cir. 2009) (citing Dwares v.
City of New York, 985 F.2d 94, 100-02 (2d Cir. 1993)). This failure to adequately plead that her
injuries were caused by a municipal custom or policy provides an additional reason to dismiss
Plaintiffs Monell claim against the City. See id.
G. State Law Claims
The Court having determined that Plaintiff has failed a claim to relief under federal law,
only her state-law claims remain. Whether to exercise supplemental jurisdiction over these
claims is a decision resting "within the sound discretion of the district court." Lundy v. Catholic
Health Sys. of Long Island Inc., 711 F.3d 106, 117 (2d Cir. 2013) (citing Carnegie-Mellon Univ.
v. Cohill, 484 U.S. 343, 349-50 (1988)). Ordinarily, when "all federal-law claims are eliminated
before trial, the balance of factors to be considered under the pendent jurisdiction doctrinejudicial economy, fairness, and comity-will point toward declining to exercise jurisdiction over
the remaining state-law claims." Carnegie-Mellon Univ., 484 U.S. at 350 n.7; see, e.g., Healy v.
City of New York Dep 't of Sanitation, 286 F. App'x 744, 746-47 (2d Cir. 2008) (concluding that
where plaintiffs federal claims were "dismissed at an early stage of the litigation," district court
should have "declin[ed] to exercise supplemental jurisdiction"). The Court concludes those
factors do indeed weigh against the exercise of supplemental jurisdiction in this case, and
Plaintiffs state-law claims are accordingly dismissed without prejudice so that she may pursue
them in state court if she wishes.
21
IV.
Conclusion
For the foregoing reasons, Defendant's motion to dismiss is granted, and Plaintiffs
Complaint is dismissed for failure to state a claim, except that her state-law claims are dismissed
without prejudice. The Clerk of Court is requested to terminate the case.
SO ORDERED.
This resolves Dkt. No. 24.
Dated:
September~~
2014
New York, New York
22
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