Ahearn v. Brachowicz et al
OPINION AND ORDER re: 22 AMENDED MOTION to Dismiss filed by Maria Brachowicz, 30 MOTION to Dismiss filed by The New York City Police Department, Police Officers's John Does #1-10, The City Of New York,Jarret Brown. For the rea sons set forth above, the federal claims against Detective Brown are DISMISSED with prejudice. Because there are no remaining federal claims, I decline to exercise supplemental jurisdiction over Ahearn's remaining state law claims against the Ci ty Defendants and Brachowicz. Furthermore, because I am dismissing the federal claims against Detective Brown and the Doe defendants based on the failure to state a claim, all of the remaining claims against the City Defendants are DISMISSED. The Clerk of the Court is ordered to close these motions [Docket Nos. 22, 30] and this case. (Signed by Judge Shira A. Scheindlin on 7/10/2014) (lmb)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
OPINION AND ORDER
- against 13-cv-8007 (SAS)
MARIA BRACHOWICZ, THE CITY OF
NEW YORK, THE NEW YORK CITY
POLICE DEPARTMENT, DETECTIVE
JARRET BROWN, individually and in
his official capacity, and POLICE
OFFICERS JOHN DOES #1-10,
individually and in their official capacity,
SHIRA A. SCHEINDLIN, U.S.D.J.:
Sean Ahearn brings this suit against Maria Brachowicz under New
York state law for false arrest, malicious prosecution, defamation, and intentional
infliction of emotional distress. 1 Ahearn also brings claims against Detective Jarret
Brown, the City of New York, and John Does # 1-10 ("the City Defendants") under
Section 1983 of Title 42 of the United States Code ("Section 1983") raising both
See First Amended Complaint ("Am. Compl.") ,-i,-i 85-116.
federal and pendant state law claims.2 Ahearn alleges that the City of New York is
liable for all claims against Detective Brown because Detective Brown was acting
“pursuant to the customs, usages, practices, procedures, and the rules of the City of
New York and New York City Police Department.”3 Maria Brachowicz and the
City Defendants both move to dismiss the Complaint pursuant to Federal Rule of
Civil Procedure 12(b)(6). Furthermore, because Ahearn only brings state law
claims against Maria Brachowicz, Brachowicz argues that she was improperly
joined under Federal Rule of Civil Procedure 20 and that the Court should not
exercise supplemental jurisdiction under 28 U.S.C. § 1367 for the pendant state
law claims.4 For the reasons set forth below, the City Defendants’ motion to
dismiss the federal claims against them is granted. The state claims against
Brachowicz and the City Defendants are remanded to state court.
See id. ¶¶ 44-78. Ahearn also names the New York City Police
Department as a defendant in his suit. But, “[s]ection 396 of the New York City
Charter  clearly indicates that the NYPD is a non-suable entity. ‘All actions and
proceedings for the recovery of penalties . . . shall be brought in the name of the
City of New York and not that of any agency, except where otherwise provided by
law.’” Neishlos v. City of New York, No. 00 Civ. 914, 2003 WL 22480043, at *1,
n.1 (S.D.N.Y. Nov. 3, 2003) (quoting 17 N.Y. City Charter § 396). Therefore, the
claims against the New York City Police Department are dismissed.
See Am. Compl. ¶ 49.
See Maria Brachowicz’s Memorandum of Law in Support of Motion
to Dismiss at 11.
Sean Ahearn is a twenty-seven year old U.S. citizen, who is a resident
of Suffolk County, New York.5 Defendant, Maria Brachowicz is a Columbia
University dental student, who was born in Brazil, and is a resident of New York
City.6 Defendant, the City of New York, is a municipal corporation which exists
under the laws of the State of New York.7 Jarret Brown and “John Does” #1-10
are police officers who act under the supervision of the New York City Police
The Incident Leading to Ahearn’s Arrest
Ahearn met Brachowicz on an online dating website in early March
2013.9 On March, 26, 2013, Ahearn and Brachowicz met in person and went out
for dinner on the Upper West Side of Manhattan.10 During their time together on
March 26, 2013, Ahearn and Brachowicz engaged in consensual sexual
See Am. Compl. ¶¶ 6, 14.
See id. ¶¶ 7, 15.
See id. ¶ 8.
See id. ¶ 10.
See id. ¶ 15.
See id. ¶ 16.
intercourse.11 On March 29, 2013, Brachowicz visited Ahearn at his home in Long
Island.12 While Brachowicz had originally intended to return to Manhattan that
weekend, she instead stayed with Ahearn until Monday, April 1, 2013.13 During
this weekend, Ahearn and Brachowicz engaged in consensual sexual intercourse
and recreational drug use.14
Between April 1, 2013 and April 7, 2013, Ahearn and Brachowicz
exchanged frequent text messages.15 In these text messages, Ahearn and
Brachowicz discussed their feelings towards each other and their sexual experience
over the weekend.16 At the same time, Brachowicz also texted Ahearn that she was
deciding whether to date Ahearn or another person who she referred to as a
previous boyfriend.17 During this week, Ahearn informed Brachowicz that he had
contacted her previous boyfriend on social media to insult him and to tell him that
See id. ¶ 17.
See id. ¶ 18.
See id.¶ 19.
See id. ¶ 20.
he was currently in a relationship with Brachowicz.18
On April 7, 2013, Ahearn and Brachowicz agreed to meet each other
at the Ritz-Carlton Hotel in Lower Manhattan.19 During their time at the hotel,
Ahearn and Brachowicz had sex and took pictures on Ahearn’s cell phone.20
Ahearn also admits that during their time at the hotel, both he and Brachowicz took
Ecstasy.21 On April 8, 2013, Ahearn and Brachowicz ate breakfast at the hotel and
then shared a taxi to Pennsylvania Station where they went their separate ways.22
In the evening of April, 8, 2013, Brachowicz told Ahearn that she needed to focus
on school and wanted to end their relationship.23
About a week later, Brachowicz called Ahearn and asked if he would
be willing to meet her at a restaurant on the Upper West Side on April 26, 2013.24
At around the same time, Brachowicz contacted the New York City Police
See id. ¶ 21.
See id. ¶ 22.
See id. ¶ 23.
See Transcript of ADA Interview (“Tr. ADA”), Ex. C to Declaration
of Assistant Corporation Counsel Suzanna Publicker Mettham, at 26:17-29:4.
See Am. Compl. ¶ 24.
See id. ¶ 25.
See id. ¶ 26.
Department claiming that on April 7, 2013, she engaged in sexual intercourse with
Ahearn against her will at the Ritz-Carlton Hotel.25 Ahearn contends that
Brachowicz falsely made those statements to the New York City Police
Department so she would not have to reveal to her former boyfriend that she
engaged in consensual sex and voluntary drug use with Ahearn. 26
On April 26, 2013, Brachowicz lured Ahearn to a restaurant on the
Upper West Side under the false pretenses of a dinner date.27 Instead of having
dinner, Ahearn was arrested and taken into custody by two members of the New
York City Police Department.28 Ahearn was informed at the precinct that
Brachowicz had accused him of giving her illicit drugs and having sexual
intercourse with her against her will.29 Ahearn told the officers that the sexual
intercourse was consensual and that Brachowicz did nothing involuntarily. 30
Ahearn further alleges that he voluntarily handed over his cell phone to the
See id. ¶ 27.
See id. ¶ 28.
See id. ¶ 32.
See id. ¶ 33.
See id. ¶ 34.
officers.31 The cell phone contained the text messages exchanged between Ahearn
and Brachowicz, and the pictures taken of Ahearn and Brachowicz during their
stay at the Ritz-Carlton Hotel on April 7-8, 2013.32 Ahearn asked the police
officers to look at the cell phone, believing that the evidence on the phone was
exculpatory.33 The police officers refused to look at the cell phone and took
Ahearn to Manhattan Central Booking to continue processing his arrest. 34
Arraignment and Dismissal
On April 28, 2013, Ahearn was arraigned on the felony offense of
Facilitating a Sex Offense with a Controlled Substance (P.L. §130.90 (1) and (2))
and Rape in the Third Degree (P.L. § 130.25 (1)).35 Bail was set and Ahearn was
held in custody until he made bail on April 29, 2013.36 Ahearn alleges that during
his three days in custody he was threatened numerous times and told that he would
be “jumped” by other inmates.37 On June 14, 2013, after the District Attorney had
See id. ¶ 36.
See id. ¶ 38.
See id. ¶ 39.
reviewed the contents of Ahearn’s cell phone, the allegations against Ahearn were
dismissed upon motion of the District Attorney.38
Publication of the Incident
Report of Ahearn’s arrest and the accusations against him were
published in several news outlets.39 On April 30, 2013, the New York Daily News
published an article in print and online titled “Man charged with raping Columbia
University student.”40 The article stated that Ahearn had drugged Brachowicz and
then had sexual intercourse with her while she was passed out.41 The New York
Post also published an article titled “Columbia Student Allegedly Raped at Ritz
Carlton by Man She Met Online” which stated that Ahearn had drugged and raped
Brachowicz.42 Another article regarding the allegations appeared online at the
Daily Mail, which included pictures of Ahearn.43
See id. ¶ 40.
See id. ¶ 41.
See id. ¶ 42.
Rule 12(b)(6) Motion to Dismiss
In deciding a motion to dismiss under 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.”44 The court evaluates the complaint under the
“two-pronged approach” set forth in Ashcroft v. Iqbal.45 First, a court may
“identify pleadings that, because they are no more than conclusions, are not
entitled to the assumption of truth.”46 “‘Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do not suffice”’ to
withstand a motion to dismiss.47 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.”’48
To survive a Rule 12(b)(6) motion to dismiss, the allegations in a
Freidus v. Barclays Bank PLC, 734 F.3d 132, 137 (2d Cir. 2013)
(citing Gorman v. Consolidated Edison Corp., 488 F.3d 586, 591-92 (2d Cir.
556 U.S. 662, 679 (2009).
Bigio v. Coca-Cola Co., 675 F.3d 163, 173 (2d Cir. 2012) (citing
Iqbal, 556 U.S. at 678).
Id. (quoting Iqbal, 556 U.S. at 678).
Taveras v. UBS AG, 513 Fed. App’x 19, 22 (2d Cir. 2013) (quoting
Iqbal, 556 U.S. at 679).
complaint must meet a standard of “plausibility.”49 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.”50
Plausibility “is not akin to a probability requirement,” rather, plausibility requires
“more than a sheer possibility that a defendant has acted unlawfully.”51
In considering a motion to dismiss for failure to state a claim pursuant
to Rule 12(b)(6), a district court may consider “only the complaint, . . . any
documents attached thereto or incorporated by reference and documents upon
which the complaint relies heavily.”52 Allegations in the complaint that are
“contradicted by more specific allegations or documentary evidence” are not
entitled to a presumption of truthfulness.53
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 564 (2007).
Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556).
Id. (quotation marks and citation omitted).
Building Indus. Elec. Contractors Ass’n v. City of New York, 678 F.3d
184, 187 (2d Cir. 2012) (citing In re Citigroup ERISA Litig., 662 F.3d 128, 135 (2d
Cir. 2011) (quotation marks omitted)).
Kirkendall v. Halliburton, Inc., 707 F.3d 173, 175 n.1 (2d Cir. 2013)
(citing L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419, 422 (2d Cir. 2011)).
Section 1983 states, in relevant part, that
[e]very person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or the
District of Columbia, subjects, or causes to be subjected, any
citizen of the United States or other person within the jurisdiction
thereof to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the party
injured in an action at law, suit in equity, or other proper
proceeding for redress . . . .
Section 1983 “does not create a federal right or benefit; it simply provides a
mechanism for enforcing a right or benefit established elsewhere.”54 “The purpose
of [section] 1983 is to deter state actors from using the badge of their authority to
deprive individuals of their federally guaranteed rights and to provide relief to
victims if such deterrence fails.”55 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.” 56 Any form of liability
under section 1983 requires direct involvement by the defendant in causing the
Morris–Hayes v. Board of Educ. of Chester Union Free Sch. Dist.,
423 F.3d 153, 158-59 (2d Cir. 2005) (citing Oklahoma City v. Tuttle, 471 U.S. 808,
816 (1985)). Accord Gonzaga Univ. v. Doe, 536 U.S. 273, 285 (2002) (“‘[O]ne
cannot go into court and claim a violation of § 1983-for § 1983 by itself does not
protect anyone against anything.’”) (quoting Chapman v. Houston Welfare Rights
Org., 441 U.S. 600, 617 (1979)).
Wyatt v. Cole, 504 U.S. 158, 161 (1992).
Cash v. County of Erie, 654 F.3d 324, 333 (2d Cir. 2011) (quoting
Connick v. Thompson, 131 S. Ct. 1350, 1359 (2011)).
plaintiff’s damages.57 “Because vicarious liability is inapplicable to . . . [section]
1983 suits, a plaintiff must [prove] that each Government-official defendant,
through the official’s own individual actions, has violated the Constitution.” 58
A section 1983 claim for false arrest arises under the Fourth
Amendment right to be free from unreasonable seizure and is identical to a claim
for false arrest under New York law.59 To establish a claim for false arrest, a
plaintiff must show that “‘(1) the defendant intended to confine [the plaintiff], (2)
the plaintiff was conscious of the confinement, (3) the plaintiff did not consent to
the confinement[,] and (4) the confinement was not otherwise privileged.’”60
The existence of probable cause to arrest is a complete defense to a
false arrest claim.61 ‘“Probable cause exists when one has knowledge of, or
reasonably trustworthy information as to, facts and circumstances that are
See Iqbal, 556 U.S. at 676.
Id. (citations omitted).
See Jaegly v. Couch, 439 F.3d 149, 151 (2d Cir. 2006); see also
Jenkins v. City of New York, 478 F.3d 76, 84–85 (2d Cir. 2007).
Ackerson v. City of White Plains, 702 F.3d 15, 19 (2d Cir. 2012)
(quoting Broughton v. State of New York, 37 N.Y.2d 451, 456 (1975)).
See Dickerson v. Napolitano, 604 F.3d 732, 751 (2d Cir. 2010)
(“probable cause is a complete defense to any action for false arrest or malicious
prosecution in New York”).
sufficient to warrant a person of reasonable caution in the belief that an offense has
been or is being committed by the person to be arrested.”’62 It is well-established
that probable cause exists when information regarding an alleged crime is received
from “‘a putative victim or eyewitness . . . unless the circumstances raise doubt as
to the person’s veracity.”’63 “The evidence required to establish probable cause to
arrest ‘need not reach the level of evidence necessary to support a conviction . . .
but it must constitute more than rumor, suspicion, or even a strong reason to
Further, “probable cause can exist even where it is based on mistaken
information, so long as the arresting officer acted reasonably and in good faith in
relying on that information.”65 Moreover, “‘the fact that an innocent explanation
Betts v. Shearman, 751 F.3d 78, 82 (2d Cir. 2014) (quoting Williams
v. Town of Greenburgh, 535 F.3d 71, 79 (2d Cir. 2008)). Accord Atwater v. City of
Lago Vista, 532 U.S. 318, 354 (2001) (“If an officer has probable cause to believe
than an individual has committed even a very minor criminal offense . . . he may,
without violating the Fourth Amendment, arrest the offender.”).
Betts, 751 F.3d at 82 (quoting Panetta v. Crowley, 460 F.3d 388, 395
(2d Cir. 2006)). Accord Curley v. Village of Suffern, 268 F.3d 65, 70 (2d Cir.
2001) (citations omitted).
Rheingold v. Harrison Town Police Dept., 568 F. Supp. 2d 384, 389
(S.D.N.Y. 2008) (quoting United States v. Fisher, 702 F.2d 372, 375 (2d Cir.
Bernard v. United States, 25 F.3d 98, 102 (2d Cir. 1994) (citing Colon
v. City of New York, 60 N.Y.2d 78 (1983)).
may be consistent with the facts alleged . . . does not negate probable cause,’ and
an officer’s failure to investigate an arrestee’s protestations of innocence generally
does not vitiate probable cause.”66 Thus, the relevant inquiry is whether probable
cause existed at the time of arrest.
In order to establish a claim for malicious prosecution under section
1983, a plaintiff must allege the elements of malicious prosecution under state
law.67 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.68
Probable cause defeats a claim of malicious prosecution.69 Probable cause, in the
context of malicious prosecution, has been described as “facts and circumstances
as would lead a reasonably prudent person to believe the plaintiff guilty.” 70
“In malicious prosecution cases brought against police officers,
Panetta, 460 F.3d at 395-96 (quoting United States v. Fama, 758 F.2d
834, 838 (2d Cir. 1985)).
See Fulton v. Robinson, 289 F.3d 188, 195 (2d Cir. 2002).
See Swartz v. Insogna, 704 F.3d 105, 111–12 (2d Cir. 2013).
See Dickerson, 604 F.3d at 751.
Boyd v. City of New York, 336 F.3d 72, 76 (2d Cir. 2003).
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.”71 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
influence a jury’s decision and forwards that information to prosecutors.’”72
For a proceeding to be favorably terminated, it need not result in an
acquittal, although that is obviously sufficient. 73 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.”74 Finally,
malice “does not have to be actual spite or hatred, but means only ‘that the
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).
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)).
See Jovanovic v. City of New York, No. 04 Civ. 8437, 2006 WL
2411541, at *10 (S.D.N.Y. Aug. 17, 2006).
Janetka v. Dabe, 892 F.2d 187, 189 (2d Cir. 1989).
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.’”75 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.”76
“[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.”77 “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.”78 “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
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)).
Id. (quotation marks omitted). Accord Ricciuti v. New York City
Transit. Auth., 124 F.3d 123, 131 (2d Cir. 1997).
Harlow v. Fitzgerald, 457 U.S. 800, 806 (1982). Accord Cornejo v.
Bell, 592 F.3d 121, 124 (2d Cir. 2010).
Cornejo, 592 F.3d at 124.
and objective good faith.”79
“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.”80 “Qualified immunity is a defense available only to
individuals sued in their individual capacity. ‘[M]unicipalities have no immunity
from damages for liability flowing from their constitutional violations.”’81 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.”82 A discretionary function “involves an element of
Id. (quoting Harlow, 457 U.S. at 807).
Amore v. Novarro, 624 F.3d 522, 529 (2d Cir. 2010) (quotation
marks, citation, and alterations omitted). Accord Jenkins, 478 F.3d at 87 n.9
(“[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 v. Forsyth, 472 U.S. 511, 526 (1985)
(emphasis in original))).
Askins v. Doe No. 1, 727 F.3d 248, 254 (2d Cir. 2013) (quoting Lore
v. City of Syracuse, 670 F.3d 127, 164 (2d Cir. 2012), in turn quoting Owen v. City
of Independence, Mo., 445 U.S. 622, 657 (1980)).
Harlow, 457 U.S. at 818.
judgment or choice,” such that the activity at issue does not have a predetermined
outcome.83 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.84
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
a plaintiff has alleged make out a violation of a constitutional right.”85 Second,
“the court must decide whether the right at issue was clearly established at the time
of the defendant’s alleged misconduct.”86 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.”87
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
Berkovitz by Berkovitz v. United States, 486 U.S. 531, 536 (1988).
Pearson v. Callahan, 555 U.S. 223, 232 (2009).
Id. (citation omitted).
Id. (quotation marks and citation omitted). Pearson recognized,
however, that the traditional sequence “is often appropriate.” Id. at 236.
reasonable defendant would have understood from the existing law that his conduct
was unlawful.”88 “‘Unless the plaintiff’s allegations state a claim of violation of
clearly established law, a defendant pleading qualified immunity is entitled to
In the Second Circuit, an officer needs to show only “arguable”
probable cause to demonstrate that he is entitled to qualified immunity.90
“Arguable probable cause exists ‘if either (a) it was objectively reasonable for the
officer to believe that probable cause existed, or (b) officers of reasonable
competence could disagree on whether the probable cause test was met.’”91 The
Second Circuit has noted that
[t]he result of the distinction between reasonableness as a
component of a Fourth Amendment violation and reasonableness
as a component of an immunity defense is that an officer is
protected in some circumstances even when he ‘mistakenly
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.”).
Scott v. Fischer, 616 F.3d 100, 110 (2d Cir. 2010) (quoting Mitchell,
472 U.S. at 526).
Escalera v. Lunn, 361 F.3d 737, 743 (2d Cir. 2004).
Id. (quoting Golino v. City of New Haven, 950 F.2d 864, 870 (2d Cir.
concludes that probable cause is present,’ when he reasonably
believes that a reasonably prudent police officer would have acted
even though a reasonably prudent police officer would not have
Furthermore, in Betts v. Shearman, the Second Circuit stated that the “[p]laintiff’s
false arrest, false imprisonment, and malicious prosecution claims  turn on
whether the defendant officers’ probable cause determination was objectively
reasonable—that is, whether there was ‘arguable’ probable cause to arrest.”93
A “stigma-plus” claim is a subset of procedural due process. It is
“brought for injury to one’s reputation (the stigma) coupled with the deprivation of
some ‘tangible interest’ or property right (the plus), without adequate process.” 94
A stigma-plus claim has three elements, statements (1) by the government that call
into question plaintiff’s “good name, reputation, honor, or integrity” or “denigrate
Oliveira v. Mayer, 23 F.3d 642, 649 (2d Cir. 1994) (quoting Anderson
v. Creighton, 483 U.S. 635, 639 (1987)).
751 F.3d at 83 (quoting Jenkins, 478 F.3d at 87).
DiBlasio v. Novello, 344 F.3d 292, 302 (2d Cir. 2003) (citations
omitted). Accord S & D Maintenance Co., v. Goldin, 844 F.2d 962, 970 (2d Cir.
1988) (“A government employee’s liberty interest is implicated where the
government dismisses him based on charges that might seriously damage his
standing and associations in his community or that might impose on him a stigma
or other disability that forecloses his freedom to take advantage of other
employment opportunities.”) (quotation marks and alterations omitted).
[his] competence as a professional and impugn [his] professional reputation in such
a fashion as to effectively put a significant roadblock on [his] continued ability to
practice [his] profession;” (2) that were public; and (3) that “were made
concurrently in time to [his] dismissal from government employment.”95 The
Second Circuit has “concluded in Neu [v. Corcoran] that Paul v. Davis ‘strongly
suggests’ that defamation is not by itself a deprivation of a liberty interest unless
coupled with the termination of government employment ‘or deprivation of some
other legal right or status.’”96
False Arrest and Malicious Prosecution
As a defense to Ahearn’s false arrest and malicious prosecution
claims, the City Defendants argue that because Detective Brown had probable
Patterson v. City of Utica, 370 F.3d 322, 330 (2d Cir. 2004)
(quotation marks omitted). With regard to the publication requirement, “[t]he
defamatory statement must be sufficiently public to create or threaten a stigma;
hence, a statement made only to the plaintiff, and only in private, ordinarily does
not implicate a liberty interest.” Velez v. Levy, 401 F.3d 75, 87 (2d Cir. 2005).
Valmonte v. Bane, 18 F.3d 992, 1000 (2d Cir. 1994) (quoting Neu v.
Corcoran, 869 F.2d 662, 667 (2d Cir. 1989) (citing Paul v. Davis, 424 U.S. 693,
cause to arrest Ahearn, he is entitled to qualified immunity.97 Probable cause is a
complete defense to a claim of false arrest and “continuing probable cause is a
complete defense to a constitutional claim of malicious prosecution.”98
Brachowicz told Detective Brown that Ahearn provided her with illicit
drugs and that she engaged in sexual intercourse with Ahearn against her will. 99
Ahearn corroborated parts of the victim’s story by informing the officers that he
had sexual intercourse with Brachowicz and that he had given her Ecstasy during
their night together at the Ritz-Carlton Hotel.100 While Ahearn alleges that
Brachowicz’s claims were false, “so long as [Detective Brown] acted reasonably
and in good faith in relying on that information[,]” then probable cause exists.101
Moreover, even if it is later discovered that “the informant erred, or even lied, in
See City Defendants’ Memorandum of Law in Support of Motion to
Dismiss at 5, 10, 12.
Betts, 751 F.3d at 82 (citing Kinzer v. Jackson, 316 F.3d 139, 143–44
(2d Cir. 2003)).
See Am. Compl. ¶ 33; see also Curley, 268 F.3d at 70.
See Tr. ADA at 26:17-29:4. See also Fernandez v. City of New York,
No. 02 Civ. 8195, 2003 WL 21756140, at *8 (S.D.N.Y. July 29, 2003).
Bernard, 25 F.3d at 102 (citing Colon, 60 N.Y.2d at 78). See also
Am. Compl. ¶ 27 (alleging that Brachowicz “knowingly and intentionally
contacted the New York City Police Department and made false statements to the
[her] description of events[,]” such a discovery will not defeat probable cause.102
Next, Ahearn alleges that it was unreasonable for Detective Brown to
refuse to look through Ahearn’s cell phone because the contents on his cell phone
were allegedly exculpatory.103 However, “an officer’s failure to investigate an
arrestee’s protestations of innocence generally does not vitiate probable cause.”104
Given the totality of the information available at the time of the arrest, there was no
reason for Detective Brown to doubt the victim’s account of the incident,
especially considering that Ahearn himself corroborated part of Brachowicz’s
story.105 Probable cause exists when information is received from a ‘“putative
victim”’ unless there is reason for the officer to doubt the victim’s claims.106
Because there was no reason for Detective Brown to doubt Brachowicz’s claims, it
United States v. Canfield, 212 F.3d 713, 720 (2d Cir. 2000) (citations
See Am. Compl. ¶ 40.
Panetta, 460 F.3d at 395-96. Moreover, while the cell phone contains
past text messages and pictures taken the morning after the night in question it
does not necessarily demonstrate that the sexual intercourse that night was
See Fernandez, 2003 WL 21756140, at *8 (holding that there was no
reason for the officers to doubt the witness, especially because there was evidence
to corroborate the witness’s account of the events).
Betts, 751 F.3d at 82 (quoting Panetta, 460 F.3d at 395).
was reasonable for him to arrest Ahearn. Thus, Ahearn’s malicious prosecution
and false arrest claims fail because the officers had probable cause for the arrest.107
Furthermore, even if probable cause to arrest did not exist, Detective
Brown would be entitled to qualified immunity because at the very least “arguable
probable cause” existed.108 It was at least objectively reasonable for Detective
Brown to believe that probable cause existed, given that he was told by the victim
that she engaged in sexual intercourse with Ahearn against her will and Ahearn
independently corroborated parts of the victim’s account of the night.109 Therefore,
at a minimum, Detective Brown is entitled to qualified immunity for the false
arrest and malicious prosecution claims against him.
Ahearn also alleges that Detective Brown’s failure to look at Ahearn’s
See Bernard, 25 F.3d at 102 (citing Colon, 60 N.Y.2d at 78).
Betts, 751 F.3d at 82-83 (quoting Jenkins, 478 F.3d at 87) (stating that
“even in the absence of probable cause, a police officer is entitled to qualified
immunity where ‘(1) [her] conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known, or (2) it was
‘objectively reasonable’ for [her] to believe that [her] actions were lawful at the
time of the challenged act”’).
See Tr. ADA at 26:17-29:4.
cell phone deprived him of a “constitutionally protected liberty interest” because it
led to the dissemination of “stigmatizing information about him knowing it would
appear on the internet in perpetuity.”110 As established in Valmonte v. Bane,
however, “defamation is not by itself a deprivation of a liberty interest unless
coupled with the termination of government employment ‘or deprivation of some
other legal right or status.’”111 Ahearn argues that he has alleged the “plus” aspect
of the “stigma-plus” test because publication of the allegations against him
“significantly damages plaintiff Ahearn’s chances to gain employment.”112 In
Valmonte, however, the Second Circuit emphasized that the
deleterious effects which flow directly from a sullied reputation
would normally also be insufficient [to satisfy the plus]. These
would normally include the impact that defamation might have on
job prospects, or, for that matter, romantic aspirations, friendships,
self-esteem, or any other typical consequence of a bad
Ahearn was not terminated from Government employment, nor has he been
Am. Compl. ¶ 57.
Valmonte, 18 F.3d at 1000 (quoting Neu, 869 F.2d at 667).
Plaintiff’s Opposition to the City Defendants’ Motion to Dismiss at
18 F.3d at 1001.
deprived of “some other legal right or status.”114 Therefore, Ahearn has failed to
establish that he has been deprived of a constitutionally protected liberty interest in
For the reasons set forth above, the federal claims against Detective
Brown are DISMISSED with prejudice. Because there are no remaining federal
claims, I decline to exercise supplemental jurisdiction over Ahearn’s remaining
state law claims against the City Defendants and Brachowicz.115 Furthermore,
because I am dismissing the federal claims against Detective Brown and the Doe
defendants based on the failure to state a claim, all of the remaining claims against
the City Defendants are DISMISSED. The Clerk of the Court is ordered to close
these motions [Docket Nos. 22, 30] and this case.
Id. at 1000 (quoting Neu, 869 F.2d at 667).
See Pitchell v. Callan, 13 F.3d 545, 549 (2d Cir. 1994) (stating that “it
is axiomatic that a court should decline to exercise jurisdiction over state-law
claims when it dismisses the federal claims prior to trial”).
New York, New York
July 10, 2014
Robert Wallace Georges, Esq.
The Law Office of Robert W. Georges, Esq.
233 Broadway, Suite 1800
New York, NY 10007
Ira S. Newman, Esq.
Law Off. I.S. Newman
98 Cutter Mill Road, Suite 441-South
Great Neck, NY 11021
Anthony Patrick Consiglio, Esq.
Law Office of Michael G. O’Neill
30 Vesey Street
New York, NY 10007
Robert S. Powers, Esq.
Law Office of Robert S. Powers
1540 August Road
North Babylon, NY 11703
Sonia Haejin Lee, Esq.
Drinker Biddle & Reath, LLP
1177 Avenue of the Americas
New York, NY 10036
Suzanna Publicker Mettham
Assistant Corporation Counsel
NYC Law Department
100 Church Street, RM3-200
New York, NY 10007
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