Williams v. The City of New York et al
MEMORANDUM AND ORDER. The motion to dismiss (ECF No. 7) is granted in part and denied in part, with the following claims dismissed: All claims sounding in malicious prosecution are dismissed for failure to plead initiation or lack of probable cause. All federal constitutional claims against the City are dismissed for failure to plead a policy or custom. All claims against Kelly in his individual capacity are dismissed for failure to plead Kelly's personal involvement. All claims against Kel ly in his official capacity are dismissed because Kelly was not the Police Commissioner on the date of the Complaint, because plaintiff does not seek injunctive relief, and because any official claim against the current Commissioner would be redundan t of a similar claim against the City. All claims against the NYPD are dismissed because the NYPD is not a suable entity, and as further set forth in this Memorandum and Order. Granting in part and denying in part 7 Motion to Dismiss. (Signed by Judge Naomi Reice Buchwald on 7/21/2015) Copies Mailed By Chambers. (rjm)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
MEMORANDUM AND ORDER
- against -
THE CITY OF NEW YORK, NEW YORK CITY
POLICE DEPARTMENT, CITY POLICE
COMMISSIONER RAYMOND KELLY, in his
individual and official capacities,
and JOHN DOES ## 1–20, in their
NAOMI REICE BUCHWALD
UNITED STATES DISTRICT JUDGE
Plaintiff was arrested on February 27, 2012, and indicted for
attempted robbery, assault, and related charges.
later, all charges were dismissed.
Over a year
In this section 1983 action,
plaintiff alleges that officers of the New York City Police
Department (NYPD) arrested him without probable cause, arrested
him based on his race, used excessive force in effecting his
arrest, and prosecuted him maliciously.
Plaintiff alleges as well
that each of these wrongs resulted from a policy or custom of the
The City of New York (the “City”), the NYPD, and former NYPD
Commissioner Raymond Kelly (“Kelly”)1 move to dismiss plaintiff’s
complaint on the grounds that plaintiff has failed to plead a
municipal policy or custom, that plaintiff has failed to plead
Kelly’s personal participation in any such policy or custom, and
that plaintiff has failed to plead certain elements of his claims
plaintiff has failed to plead a municipal policy or custom, so
that the municipal and official defendants may not be held liable
on a federal constitutional theory.
We also agree that plaintiff
plaintiff’s prosecution, so that no defendant may be held liable
for malicious prosecution.
We conclude, however, that plaintiff
may proceed with his false arrest and excessive force claims
against individual defendants, and also against the City on the
1 As a division of the City of New York, the New York City Police Department is
not a suable entity. See, e.g., Jenkins v. City of New York, 478 F.3d 76, 93
n.19 (2d Cir. 2007); N.Y.C. Charter § 396.
Kelly is not a proper party in his official capacity because he is not
the Police Commissioner. Furthermore, Rule 25(d) of the Federal Rules of Civil
Procedure does not automatically substitute Kelly’s successor because Kelly was
not Police Commissioner when plaintiff filed his complaint. See Compl. ¶ 2,
July 9, 2014, ECF No. 1 (referring to Kelly as the “former New York City Police
Commissioner); J. David Goodman & Joseph Goldstein, Bratton Vows to Steer Police
Away From Aggressive Tactics, N.Y. Times (N.Y. ed.), Jan. 2, 2014, at A14
(reporting the inauguration of Kelly’s successor).
The complaint is therefore dismissed as to the New York City Police
Department and as to Kelly in his official capacity. Alternatively, Kelly is
dismissed in his official capacity because plaintiff does not seek injunctive
or declaratory relief that could be directed to the Police Commissioner and
because any such relief could be awarded against the City of New York.
surviving state-law causes of action on a respondeat superior
A. Documents Considered
In deciding a motion to dismiss for failure to state a claim,
incorporated into the complaint by reference, materials integral
to the complaint, and facts that are capable of judicial notice.
See DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir.
Defendants ask us to consider certain police and court records
along with the Complaint.2
Detective David Cruz’s report of
complaint and indictment, and a deposition of plaintiff. According
to defendants, these records demonstrate that NYPD officers had
unquestionably not “incorporated” into the Complaint because they
are neither attached to the Complaint nor explicitly mentioned
We may take judicial notice of the procedural history of
plaintiff’s criminal case, but not of the truth of the arresting
officers’ version of events.
2 Specifically: a “DD5” form summarizing an NYPD detective’s interview with
plaintiff’s alleged victim, an NYPD computerized record of plaintiff’s arrest,
a criminal complaint signed by the alleged victim, plaintiff’s indictment, a
temporary order of protection issued against plaintiff, and an excerpt of
In advocating these extraneous documents, defendants argue
Complaint by describing the circumstances of the arrest that is
the focus of plaintiff’s claims.
Defendants look for support to
certain cases in which courts have considered similar police
records at the pleading stage.
See Betts v. Shearman, No. 12-cv-
3195 (JPO), 2013 WL 311124, at *3, 2013 U.S. Dist. LEXIS 11139, at
*10 (S.D.N.Y. Jan. 24, 2013) (considering incident report and
accusatory instrument that “provide[d] crucial details” about the
plaintiff’s prosecution), aff’d on qualified immunity grounds, 751
F.3d 78 (2d Cir. 2014); cf. Obilo v. City Univ. of City of N.Y.,
Civil Action No. CV-01-5118 (DGT), 2003 WL 1809471, at *4, 2003
plaintiff had conceded were “implicitly” incorporated into his
The better view, adopted by a majority of courts in our
Circuit, is that these kinds of police records are not “integral”
to a false arrest complaint.
See Bejaoui v. City of New York, No.
13-CV-5667 (NGG)(RML), 2015 WL 1529633, at *4–5, 2015 U.S. Dist.
disagreement and declining to consider extrinsic police reports);
Alvarez v. Cty. of Orange, No. 13-cv-7301 (KMK), ___ F. Supp. 3d
___, ___, 2015 WL 1332347, at *8, 2015 U.S. Dist. LEXIS 37983, at
*20–23 (S.D.N.Y. Mar. 25, 2015) (collecting cases).
A document is
not “integral” simply because its contents are highly relevant to
a plaintiff’s allegations, but only when it is clear that the
plaintiff relied on the document in preparing his complaint.
Global Network Commc’ns, Inc. v. City of New York, 458 F.3d 150,
156–57 (2d Cir. 2006); Chambers v. Time Warner, Inc., 282 F.3d
147, 153 (2d Cir. 2002).
Most typically, “the incorporated
obligations upon which the plaintiff’s complaint stands or falls,
but which for some reason . . . was not attached to the complaint.”
Global Networks Commc’ns, 458 F.3d at 157.
“It must also be clear
that there exist no material disputed issues of fact regarding the
relevance of the document.”
Faulkner v. Beer, 463 F.3d 130, 134
(2d Cir. 2006).
Here, there is “no indication in the record that plaintiff
relied on these documents in drafting the complaint.”
Rockland Cty., No. 12-cv-5022 (VB), 2013 WL 4038602, at *4, 2013
U.S. Dist. LEXIS 114947, at *12–13 (S.D.N.Y. July 30, 2013), appeal
docketed, No. 15-1749 (2d Cir. May 29, 2015), ECF No. 1.
Furthermore, it is not beyond dispute that the
police report is a truthful description of the police officers’
basis to arrest plaintiff.
To accept the truth of the documents
offered by defendants at this stage would amount to a premature
determination that the arresting officers are more credible than
To make such a determination at this stage would not
be appropriate, and therefore we will not consider the facts
adduced in plaintiff’s police records.
We will, however, take
(executed by the alleged victim), the indictment, and the temporary
order of protection.
B. The Facts Alleged
1. The February 27 Incident
Plaintiff alleges that, on February 27, 2012, he was eating
lunch with friends in a Bronx park, when NYPD officers surrounded
him, drew their guns, and shouted “Where’s the gun?” Compl. ¶¶ 19–
The police officers knocked a cell phone out of plaintiff’s
hand, tackled plaintiff to the ground, and searched plaintiff and
Id. ¶ 21.
One of the officers held
plaintiff to the ground by pressing his knees against plaintiff’s
back and face.
At some point while under arrest, plaintiff
overheard on a police radio that the police were looking for a
“tall, black” person with a “blue hoody.”
E to Smith-Williams Decl., ECF No. 9.
his clothing fit this description.
Pl. Dep. 24:6–12, Ex.
Plaintiff acknowledges that
Plaintiff was then taken to two precinct houses, was held
overnight, and eventually learned that he had been arrested on
suspicion of a robbery. Compl. ¶¶ 25–26. According to a complaint
sworn to by the alleged victim, plaintiff had struck the victim
and had attempted to take the victim’s wallet from his rear pocket.
arraigned and charged with a top count of attempted robbery.
Compl. ¶ 27; Cert. of Indictment, Ex. F to Smith-Williams Decl.
Plaintiff pled not guilty, and all charges were dismissed on
December 6, 2013, over 21 months after plaintiff’s arrest.
¶¶ 27–28; Cert. of Disposition, Ex. C. to Deutsch Decl., ECF No.
2. Municipal Policy or Custom
Plaintiff’s most specific allegation of a municipal policy or
custom is as follows:
Without probable cause as required under the
Fourth Amendment, NYPD officers have been, and
are engaged in rampant and unlawful arrests
of individuals including Plaintiff.
NYPD’s widespread constitutional abuses have
flourished as a result of, and are directly
and proximately caused by, policies, practices
and/or customs devised, implemented and
enforced by the City and NYPD. The City and
NYPD have acted with deliberate indifference
to the constitutional rights of those who
would come into contact with NYPD officers by:
(a) failing to properly screen, train, and
supervise NYPD officers, (b) inadequately
monitoring NYPD officers and their arrest
discipline NYPD officers who engage in
constitutional abuses, and (d) encouraging,
sanctioning and failing to rectify the NYPD’s
Compl. ¶ 3; accord ¶¶ 2, 46. Elsewhere in the Complaint, plaintiff
repeats his allegation of “deliberate indifference on the part of
policymakers . . . to the constitutional rights of persons within
the City,” ¶ 50, and identifies policies “of unconstitutional
searches, seizures, and arrests,” “of unconstitutionally using
Plaintiff further alleges that Kelly personally “devised,
implemented, enforced, encouraged, and sanctioned” the accused
“practices and/or customs,” and that Kelly “failed to properly
train, supervise and discipline officers employed by the NYPD.”
3. Plaintiff’s Claims
theories, which intersect with three sources of law and four
theories of liability.
The four factual theories are that the
police arrested plaintiff without probable cause, that the police
officers arrested plaintiff on the basis of his race, that the
police officers used unreasonable force in effecting plaintiff’s
Plaintiff’s causes of action arise from the federal
Constitution and section 1983,3 the New York State Constitution,4
3 42 U.S.C. § 1983 (2012).
4 N.Y.S. Const. art. I, §§ 11, 12 (corresponding to the federal Constitution’s
Equal Protection Clause and Fourth Amendment).
and New York common law.
Plaintiff’s theories of liability are
(1) that the arresting officers (sued as John Doe) are individually
liable for their own conduct, (2) that the City and NYPD are liable
under the doctrine of respondeat superior, (3) that the City and
NYPD are liable under Monell5 for adopting or permitting a policy
or custom that caused plaintiff’s injuries, and (4) that thenCommissioner Kelly is liable for his participation in the NYPD’s
policy or custom.
A. General Legal Standards
1. Pleading Standards
In considering a motion to dismiss for failure to state a
claim, we accept as true all factual allegations in the Complaint
and draw all reasonable inferences in the non-moving party’s favor.
Harris v. Mills, 572 F.3d 66, 71 (2d Cir. 2009).
the “[f]actual allegations must be enough to raise a right of
relief above the speculative level.”
Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007); see also Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009).
If the plaintiff has “not nudged [his] claims
across the line from conceivable to plausible,” the claims must be
Twombly, 550 U.S. at 570.
This pleading standard
5 Monell v. Dept. of Soc. Servs. of City of N.Y., 436 U.S. 658 (1978).
applies to “all civil actions.”
Iqbal, 556 U.S. at 684 (internal
quotation marks omitted).
2. Elements of the Alleged Torts
To state a claim for false arrest, whether under section 1983
or New York common law, a plaintiff must prove that the defendants
intended to confine him, that the plaintiff was conscious of his
confinement, that the plaintiff did not consent to the confinement,
and that the confinement was not otherwise privileged.
v. Okst, 101 F.3d 845, 852 (2d Cir. 1996); Hygh v. Jacobs, 961
F.2d 359, 366 (2d Cir. 1992); Broughton v. State, 37 N.Y.2d 451,
456–57, 335 N.E.2d 310, 314 (1975).
an essential element.
Lack of probable cause is not
Broughton, 37 N.Y.2d at 457; 335 N.E.2d at
Rather, a defendant may defend by proving that an arrest was
§ 140.10(1)(b) (McKinney 2004) (providing that a police officer
may arrest a person for a crime with “reasonable cause”); Jaegly
v. Couch, 439 F.3d 149, 152 (2d Cir. 2006) (Sotomayor, J.).
To state a claim for malicious prosecution, whether under
section 1983 or New York common law, a plaintiff must prove that
the defendant initiated or continued a criminal proceeding against
the plaintiff, that the criminal proceeding terminated in the
proceeding did not exist, and that “actual malice” motivated the
Rothstein v. Carriere, 373 F.3d 275, 282 (2d
Cir. 2004); Colon v. City of New York, 60 N.Y.2d 78, 82, 455 N.E.2d
1248, 1250 (1983).
We do not discuss the elements of an excessive force or racial
plaintiff has failed to plead these claims.
B. Probable Cause
A police officer may have probable cause to arrest and charge
a suspect based on information provided by a single victim or
witness, “unless circumstances raise doubts as to the person’s
Curley v. Vill. of Suffern, 268 F.3d 65, 70 (2d Cir.
2001); see also Singer v. Fulton Cty. Sheriff, 63 F.3d 110, 119
(2d Cir. 1995); Kramer v. City of New York, 173 A.D.2d 155, 156,
569 N.Y.S.2d 67, 69 (1st Dep’t 1991).
In the context of a malicious prosecution claim, but not in
the context of a false arrest claim, probable cause is presumed if
the defendant was indicted by a grand jury.
See Broughton, 37
rebuttable only where the plaintiff establishes fraud, perjury or
the misrepresentation or falsification of evidence.” Id, 37 N.Y.2d
at 456, 335 N.E.2d at 313.
Here, plaintiff’s complaint denies that NYPD officers had any
basis to arrest plaintiff.
The defendants, of course, tell a
They assert either that the alleged robbery
victim pointed out defendant individually or that defendant fit
Defendants appear to have some evidence to support both theories,6
and may well prevail at summary judgment or at trial if plaintiff
is unable to rebut defendants’ evidence.
establishes probable cause to prosecute, and plaintiff has not
pleaded any facts that suggest fraud, perjury, misrepresentation,
or falsification on the part of the arresting officers. Therefore,
we dismiss plaintiff’s malicious prosecution claims for failure to
plead a lack of probable cause.
In the context of malicious prosecution, the plaintiff must
”play[ed] an active role in the prosecution, such as giving advice
Manganiello v. City of New York, 612 F.3d 149, 163 (2d Cir. 2010)
(quoting Rohman v. N.Y.C. Transit Auth., 215 F.3d 208, 217 (2d
6 As to the “specific identification” theory, the DD5 form, which we do not rely
upon at this stage, states that the alleged victim “flagged down uniform[ed]
patrol and directed them to the males [i.e., defendant and another arrestee].”
Ex. A to Smith-Williams Decl., ECF No. 8.
As to the “fit the description” theory, plaintiff stated in his deposition
testimony that he heard a general description of a tall, black male with a blue
hoody on the police radio, and that plaintiff fit this description. However,
plaintiff did not hear this description on the radio until after the police had
already knocked him to the ground, and so this radio communication, if it was
the first such communication, cannot establish probable cause for plaintiff’s
initial seizure, regardless of whether the description was sufficiently
particular to support his continued detention.
“One who does no more than disclose to a prosecutor
all material information within his knowledge is not deemed to be
the initiator of the proceeding,” Rohman, 215 F.3d at 217 (quoting
Present v. Avon Prods., Inc., 253 A.D.2d 183, 189, 687 N.Y.S.2d
“exercises his own independent judgment in deciding whether to
Gilman v. Marsh & McLennan Cos., 868 F. Supp. 2d 118,
128 (S.D.N.Y. 2012) (internal citations omitted).
Here, it was the alleged victim, rather than police officers,
who swore out the criminal complaint against plaintiff.7
allegation that the police did anything more than to refer a
criminal complaint to the Bronx County District Attorney, we
dismiss plaintiff’s malicious prosecution claims for failure to
plead the initiation element against any City employee.
D. Municipal and Supervisory Liability
Plaintiff advances three theories of derivative liability.
First, that the City is strictly liable for its officers’ torts
according to the doctrine of respondeat superior; second, that a
policy or custom of the City caused plaintiff’s injuries; and
third, that Commissioner Kelly is personally responsible for the
7 This complainant is not named as a defendant, and the statute of limitations
for malicious prosecution has expired. See N.Y. C.P.L.R. 215(3) (Consol. 2008).
City’s unconstitutional policy or custom.
We reject the first
theory in part, and last two theories in full.
1. Respondeat Superior
It is well settled (and plaintiff does not appear to dispute)
constitutional violation “solely because it employs a tortfeasor.”
Monell v. Dept. of Soc. Servs. of City of N.Y., 436 U.S. 658, 691
“[I]n other words, a municipality cannot be held liable
under § 1983 on a respondeat superior theory.”
The City can, however, be liable on a respondeat superior
theory with respect to claims arising from state law, including
the New York State Constitution and common law.
See Brown v.
State, 89 N.Y.2d 172, 194–95, 674 N.E.2d 1129, 1142–43 (1996)
(recognizing respondeat superior liability when a private right of
action exists under the State Constitution8); Sankar v. City of
New York, 867 F. Supp. 2d 297, 313 (E.D.N.Y. 2012); Chimurenga v.
City of New York, 45 F. Supp. 2d 337, 344 (S.D.N.Y. 1999).
Therefore, to the extent that plaintiff adequately pleads a statelaw claim against the individual arresting officers, plaintiff
also pleads a state-law claim against the City.
8 We do express no view as to whether it is appropriate to allow a private
action under the State Constitution in this case, given the possibility that
plaintiff can find an adequate remedy in section 1983 and the common law. See
Martinez v. City of Schenectady, 97 N.Y.2d 78, 83, 761 N.E.2d 560, 563–64
2. Monell Liability
a. Legal Standards
To proceed with a section 1983 claim against the City,
plaintiff must sufficiently plead that the City has a policy or
custom of falsely arresting, using excessive force against, and
maliciously prosecuting individuals.
See Monell, 436 U.S. at 694.
The accused practice “need not be contained in an explicitly
adopted rule or regulation.”
F.2d 864, 870 (2d Cir. 1992).
Sorlucco v. N.Y.C. Police Dept., 971
Plaintiff may instead allege that
a practice is “so permanent and well settled as to constitute a
custom or usage with the force of law.”
U.S. at 691).
Id. (quoting Monell, 436
The failure to train municipal employees may
constitute an actionable policy, but only when a plaintiff can
“identify a specific deficiency in the city’s training program and
establish that that deficiency is ‘closely related to the ultimate
Amnesty Am. v. Town of West Hartford, 361 F.3d 113,
129 (2d Cir. 2004) (quoting City of Canton v. Harris, 489 U.S.
378, 391 (1989)).
In support of his pleading, plaintiff points to a series of
cases sustaining conclusory Monell allegations at the pleading
Each of these cases predates one or both of Twombly and
Iqbal, and thus carries minimal precedential value.
v. City of New York, 623 F. Supp. 2d 454, 478–79 (S.D.N.Y. Mar.
31, 2009) (relying on a now-abrogated characterization of Twombly
from Iqbal v. Hasty, 490 F.3d 143, 157–58 (2d Cir. 2007), rev’d
sub nom. Ashcroft v. Iqbal); Hall v. Marshall, 479 F. Supp. 2d
304, 316 (E.D.N.Y. Mar. 6, 2007); Nesbitt v. Cty. of Nassau, No.
05 CV 5513 JG, 2006 WL 3511377, at *4, 2006 U.S. Dist. LEXIS 88262,
at *14–16 (E.D.N.Y. Dec. 6, 2006); Jean-Laurent v. Wilkerson, 438
F. Supp. 2d 318, 325 (S.D.N.Y. 2006), aff’d, 461 F. App’x 18, 20–
22 (2d Cir. 2012); Locicero v. O’Connell, 419 F. Supp. 2d 521,
525–26 (S.D.N.Y. 2006); Fox v. City of New York, No. 03-cv-2268
(FM), 2004 WL 856299, at *14, 2004 U.S. Dist. LEXIS 6844, at *44–
46 (S.D.N.Y. Apr. 20, 2004).
“It is questionable whether the boilerplate Monell claim
often included in . . . § 1983 cases . . . was ever sufficient to
state a claim upon which relief could be granted.
In light of
Ashcroft v. Iqbal and Bell Atlantic Corp. v. Twombly, it is now
clear that such boilerplate claims do not rise to the level of
plausibility.” Santiago v. City of New York, No. 09 CIV 0856(BMC),
2009 WL 2734667, at *3, 2009 U.S. Dist. LEXIS 75372, at *7
(E.D.N.Y. Aug. 18, 2009).
For this reason, district courts in
this Circuit have, since Iqbal, routinely dismissed generalized
See, e.g., Plair v. City of New York,
789 F. Supp. 2d 459, 469 (S.D.N.Y. 2011) (dismissing allegation
that City “permitted, tolerated and was deliberately indifferent
to a pattern and practice of staff brutality and retaliation by
[corrections] staff”); Harper v. City of New York, No. 09-CV-05571
(JG)(SMG), 2010 WL 4788016, 2010 U.S. Dist. LEXIS 122184 (E.D.N.Y.
Nov. 17, 2010) (dismissing Monell claim founded on allegations of
repeated conduct against plaintiff), aff’d, 424 F. App’x 36 (2d
Cir. 2011); Abreu v. City of New York, 657 F. Supp. 2d 357, 360–
61 (E.D.N.Y. 2009) (dismissing Monell claims when complaint’s
misconduct by a few non-policy level officers”);
We agree with our colleagues, who have consistently held
boilerplate allegations such as the ones in this case to be
The Complaint assures us that some policy or custom
drives officers to arrest falsely, to apply excessive force, and
specific policy or custom.
Likewise, the Complaint mentions the
ideas of deliberate indifference and failure to train, but fails
to identify any widespread pattern of conduct to which the City
blinded itself or any deficiency in the City’s oversight and
At bottom, the Complaint alleges that, at one particular place
and time, NYPD officers used excessive force in falsely arresting
one criminal suspect.
Seasoning an allegation of one-off conduct
sufficient to state a Monell claim.
Therefore, we dismiss the
section 1983 against the City.
3. Supervisory Liability
The Supreme Court has held that “each Government official,
his or her title notwithstanding, is only liable for his or her
Ashcroft v. Iqbal, 556 U.S. at 677.
liability can result from direct participation in a constitutional
violation, failing to remedy a constitutional wrong after being
informed, creation or continuation of an unconstitutional policy
or custom, gross negligence in failing to supervise subordinates,
or deliberate indifference to indications of unconstitutional
See Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995);
see also Turkmen v. Hasty, Nos. 13-981, -999, -1002, -1003, -1662,
___ F.3d ___, ___, 2015 WL 3756331, at *24, 2015 U.S. App. LEXIS
10160, at *77–78 (explaining the consistency of Colon with Iqbal).
As discussed above, plaintiff has failed to plausibly allege
the existence of an unconstitutional NYPD policy or custom.
fortiori, plaintiff has failed to plead that Kelly created or
continued any such policy.
Along the same lines, plaintiff has
failed to plead any manner in which Kelly failed to train NYPD
Accordingly, we dismiss the claims against Kelly in his
individual capacity in their entirety.9
9 The claims against Kelly in his official capacity are also dismissed.
supra at note 1.
The motion to dismiss (ECF No. 7) is granted in part and
denied in part, with the following claims dismissed:
dismissed for failure to plead initiation or lack of
All federal constitutional claims against the City are
dismissed for failure to plead a policy or custom.
All claims against Kelly in his individual capacity are
All claims against Kelly in his official capacity are
dismissed because Kelly was not the Police Commissioner
on the date of the Complaint, because plaintiff does not
seek injunctive relief, and because any official claim
against the current Commissioner would be redundant of
a similar claim against the City.
All claims against the NYPD are dismissed because the
NYPD is not a suable entity.
The surviving claims are the section 1983 claims of false
(against the individual arresting officers and the City), although
we are skeptical that the false arrest claims have merit.
fact, the complainant pointed plaintiff out individually to police
before plaintiff's arrest, then it will be difficult for plaintiff
to overcome the defense of probable cause. 10
The parties shall confer and propose a schedule for limited
discovery regarding the identities of the John Doe defendants.
no individual defendant can be identified,
then we will dismiss
jurisdiction over the New York State constitutional claims.
IT IS SO ORDERED.
New York, New York
July ,P.r , 2015
NAOMI REICE BUCHWALD
UNITED STATES DISTRICT JUDGE
No common law claim survives. The malicious prosecution claim is dismissed,
and plaintiff has not alleged the torts of false imprisonment and battery,
perhaps because the relevant statute of limitations expired in early 2013. See
N.Y. C.P.L.R. 215(3) (establishing a one-year limitations period running from
the date of accrual).
Copies of this Memorandum and Order have been mailed on this date
to the following:
Counsel for Plaintiff:
Adam E. Deutsch, Esq.
Morelli Alters Ratner LLP
777 Third Avenue, 31st Floor
New York, NY 10122
Counsel for Defendant:
Qiana Smith-Williams, Esq.
Office of the Corporation Counsel
City of New York
100 Church Street
New York, NY 10007
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