Forte v. McNellis et al
Filing
114
OPINION & ORDER re: 101 MOTION to Dismiss the Second Amended Complaint filed by Timothy Gentz, Sgt. McLoughlin, Steven Nieves, Michael McCready, John Tierny, 96 MOTION to Dismiss filed by Officer Cunningham, T he City of White Plains, Officer Tallevi. For the reasons stated herein, the WP Defendants' motion to dismiss, (Doc. 96), is GRANTED IN PART and DENIED IN PART. Specifically, the WP Defendants' motion to dismiss is granted with respect to (1) Plaintiff's claims against the City of White Plains, (2) Plaintiff's claims against Defendants Tallevi and Cunningham in their official capacities, and (3) Plaintiff's false arrest claims against Tallevi and Cunningham in their personal capacities. The WP Defendants' motion to dismiss is denied with respect to (1) Plaintiff's § 1983 conspiracy claim against Defendants Tallevi and Cunningham in their personal capacities, and (2) Pla intiff's malicious prosecution claims against Defendants Tallevi and Cunningham in their personal capacities. The Moving NYC Defendants' motion to dismiss, (Doc. 101), is GRANTED. The Clerk of Court is respectfully directed to termina te the open motions at Docs. 96 and 101. The WP Defendants shall file their Answer to the Second Amended Complaint within twenty-one (21) days of the issuance of this Opinion & Order. (Signed by Judge Vernon S. Broderick on 9/28/2018) (mro) Transmission to Orders and Judgments Clerk for processing.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
DANIEL FORTE,
:
:
Plaintiff,
:
:
- against :
:
:
THE CITY OF NEW YORK, et al.
:
:
Defendants. :
:
--------------------------------------------------------- X
9/28/2018
16-CV-560 (VSB)
OPINION & ORDER
Appearances:
Daniel Forte
Stormville, New York
Pro se Plaintiff
Daniel L. Passeser
Nicholas D. Manningham
Ben N. Kurivilla
Fayola N. Alibey
New York City Law Department
New York, New York
Counsel for NYC Defendants
John J. Walsh, II
Paul E. Svensson
Hodges Walsh & Messemer, LLP
White Plains, New York
Counsel for White Plains Defendants
VERNON S. BRODERICK, United States District Judge:
Pro se Plaintiff Daniel Forte brings this action against Defendants City of New York,
City of White Plains, Detectives Brian McNellis, Edward Garrity, Steven Nieves, Michael
McCready, Timothy Gentz, Sergeants Thomas McLoughlin, John Tierney, Police Officers
Kenneth Tallevi, Cunningham, and John Doe (collectively, “Defendants”) alleging violations of
42 U.S.C. § 1983 for unlawful search and seizure, malicious prosecution, false arrest, deprivation
of the right to a fair trial, fabrication of evidence, and conspiracy to violate civil rights. Before
me are the motions to dismiss of Defendants City of White Plains, Police Officer Tallevi, and
Police Officer Cunningham (collectively, the “WP Defendants”) and Defendants Detectives
Nieves, McCready, McLaughlin, Gentz, and Sergeant Tierney (the “Moving NYC Defendants”).
For the reasons stated below, the WP Defendants’ motion to dismiss is GRANTED IN PART
and DENIED IN PART and the Moving NYC Defendants’ motion to dismiss is GRANTED.
Background1
At approximately 6:00 p.m. on April 24, 2013,2 Plaintiff was at his mother’s house in
White Plains with his mother and several other individuals. (SAC ¶ 12.)3 Plaintiff was sitting on
the couch watching television with a friend when his mother received a phone call from a friend
saying that there were several police officers in the stairwell near her apartment. (Id. ¶¶ 13–14.)
Plaintiff’s mother went out to investigate. (Id. ¶ 14.)
A few moments later, Plaintiff heard the doorbell ring. (Id. ¶ 15.) He asked who was
there, but no one answered, so he looked through the peephole and saw only his mother. (Id.)
She yelled to him “it[’]s me mommy,” so Plaintiff opened the door. (Id. ¶¶ 15–16.) When
Plaintiff opened the door, approximately eight New York City Police Department (“NYPD”)
detectives, named as Defendants here, emerged from blind spots. (Id. ¶ 16.)
1
The following factual summary is drawn from the allegations of the Second Amended Complaint, (Doc. 86),
unless otherwise indicated, which I assume to be true for purposes of this motion. See Kassner v. 2nd Ave.
Delicatessen Inc., 496 F.3d 229, 237 (2d Cir. 2007). My references to these allegations and exhibits should not be
construed as a finding as to their veracity, and I make no such findings.
2
The Second Amended Complaint states that the relevant events occurred on April 24, 2017. (SAC ¶ 12.)
However, since the allegations in the prior complaints all assert the events occurred on April 24, 2013, and
Plaintiff’s representations in his opposition also reference that date, I understand this to be a typographical error and
will refer to April 24, 2013 throughout this Opinion & Order.
3
“SAC” refers to the Second Amended Complaint, filed August 9, 2017. (Doc. 86.)
2
Defendants McNellis and Garrity were in front of the other detectives standing in the
doorway of the apartment. (Id. ¶ 17.) McNellis and Garrity—while standing in the doorway of
the apartment—asked Plaintiff if he was Daniel, and Plaintiff said yes. (Id.) Plaintiff’s mother
then walked into the apartment and said that the detectives wanted to speak to him about a
phone, and that he was not in any trouble. (Id.) McNellis then asked Plaintiff if he owned a cell
phone. (Id. ¶ 18.) Plaintiff answered yes, showed McNellis his cell phone, McNellis took
Plaintiff’s cell phone, placed it in his pocket, and asked Plaintiff if he would come with them
because they “needed to talk” to him. (Id.) Plaintiff asked “about what,” and McNellis
responded “nothing serious, just about the phone.” (Id. ¶ 19.) Plaintiff told McNellis that he
could not have police contact because he was on parole, and that they could discuss whatever
they needed to discuss where they all stood. (Id. ¶¶ 19–20.) McNellis insisted they speak in
private, but Plaintiff refused, and “backed up out of arms reach.” (Id. ¶ 20.) McNellis, Garrity,
and McLoughlin then walked into the apartment without Plaintiff’s consent and were followed
by other unidentified NYPD detectives. (Id.)
Once he was inside, McNellis asked Plaintiff again to step outside. (Id. ¶ 21.) Plaintiff
asked if he was under arrest, and McNellis answered that he was not. (Id.) McNellis told
Plaintiff that he just needed to talk to Plaintiff in private, and Plaintiff said he was not
comfortable with stepping outside to talk in private. (Id.) One of the detectives then began to
search the apartment. (Id. ¶ 22.) As the detective walked back to the bedroom area, Plaintiff’s
mother yelled that she never gave him permission to search, after which the detective returned to
the front of the apartment. (Id.) The remaining NYPD Defendants then walked into the
apartment. (Id. ¶ 23.)
Plaintiff became nervous and sat on the couch next to his friend. (Id.) McNellis again
3
asked Plaintiff to step outside and assured Plaintiff that he was not in trouble. (Id.) Plaintiff
refused to step outside, and McNellis responded that “we can do this hard way or the easy way.”
(Id.) Plaintiff interpreted that as a threat and said “ok,” but he needed to use the bathroom first.
(Id. ¶ 24.) McNellis said that was fine. (Id.) While Plaintiff was in the bathroom, McNellis
entered the bathroom, grabbed Plaintiff by the arm, told him he could use the bathroom when
they get to where they are going, and pulled him out of the bathroom. (Id.) Once McNellis and
Plaintiff entered the hallway outside of the apartment, Garrity placed Plaintiff under arrest. (Id.
¶ 25.) Garrity searched Plaintiff and discovered narcotics on his person, which Garrity placed in
his pocket. (Id.)
McNellis and Garrity then drove Plaintiff to the Manhattan Robbery Squad of the NYPD.
(Id. ¶ 26.) At approximately 8:00 p.m., McNellis and Garrity took Plaintiff to a secured
interview room, where Plaintiff was handcuffed to a pole, read his Miranda rights, and
questioned for the next five to six hours by McNellis and Garrity about his cell phone and how
he obtained it. (Id.) Plaintiff asked what had happened, and McNellis informed him that there
was a home invasion and robbery during which someone was shot, and that Plaintiff’s cell phone
was one of the items taken from the home. (Id. ¶ 27.) Plaintiff told McNellis that he did not
know the cell phone was stolen and that he had nothing to do with the crime. (Id. ¶ 28.) He
stated his willingness to give fingerprints, DNA, and/or participate in a line up. (Id.) McNellis
asked Plaintiff how he obtained the cell phone, and Plaintiff told him how he got the cell phone.
(Id.)
While Garrity was questioning Plaintiff, McNellis left the room on several occasions to
talk to someone on the phone. (Id. ¶ 29.) After a few calls, McNellis informed Plaintiff that “the
D.A. does not want to press any charges.” (Id.) McNellis stated that Plaintiff was not the person
4
they were looking for and that they would take Plaintiff back to his mother’s apartment in White
Plains. (Id.) After McNellis spoke to someone on the phone again, he informed Plaintiff that the
White Plains Police wanted to speak to Plaintiff. (Id. ¶ 31.) Plaintiff alleges upon information
and belief that the person McNellis spoke to was Lieutenant Doherty of the White Plains Police
Department. (Id.) McNellis told Plaintiff that he did not know what the White Plains Police
wanted to speak to Plaintiff about, but that he was going to take Plaintiff to the White Plains
Police Department. (Id. ¶ 32.) Plaintiff stated he did not want to go. (Id.) After McNellis
contacted White Plains to ask if they could meet Plaintiff at his house, McNellis told Plaintiff
that they had to go to the police department. (Id. ¶¶ 32–33.) Plaintiff asked again if he was
under arrest, and McNellis responded that he was not. (Id. ¶ 33.) Plaintiff then told McNellis
that he did not want to talk to the White Plains police and that he would find his own way home.
(Id.).
After McNellis told Plaintiff that Plaintiff did not have a choice, he and Garrity placed
Plaintiff in handcuffs and ankle shackles and took Plaintiff to the White Plains Police
Department. (Id. ¶¶ 33–34.) When they arrived, Defendants Tallevi and Cunningham took a
sworn statement from McNellis, and took Plaintiff’s cell phone. (Id. ¶ 34.) Tallevi,
Cunningham, and other White Plains police officers then took pictures and data out of Plaintiff’s
cell phone without his consent. (Id.)
Tallevi and Cunningham then commenced and processed Plaintiff’s arrest, charging him
with criminal possession of a controlled substance in the fifth degree and criminal possession of
stolen property in the fifth degree—the same charges that the Manhattan District Attorney
refused to bring against Plaintiff. (Id. ¶ 35.) On November 18, 2013—after Plaintiff was
confined for six months—all charges were dismissed. (Id.)
5
Procedural History
Plaintiff filed his initial Complaint on January 25, 2016 against Defendants McNellis,
Garrity, and the NYPD. (Doc. 2.) On February 24, 2016, I entered an order replacing the NYPD
with the City of New York as a defendant, since an agency of the City of New York is not an
entity that can be sued. (Doc. 7.) I also entered an order of service with respect to the City of
New York, McNellis, and Garrity. (Id.)
On August 12, 2016, I entered an order granting Plaintiff’s request to amend the
Complaint to add certain defendants and to include further details in his allegations. (Doc. 22.)
Plaintiff filed his amended complaint on September 30, 2016, (“First Amended Complaint”),
adding the City of White Plains, Nieves, McCready, Tallevi, Cunningham, McLoughlin, and two
John Doe NYPD Technical Assistance Response Unit (“T.A.R.U.”) officers as Defendants.
(Doc. 25.)
Defendant City of White Plains filed a motion to dismiss the First Amended Complaint
on February 22, 2017. (Docs. 46–50.) Because my Individual Rules at the time required parties
to attend a pre-motion conference prior to filing dispositive motions, I held the motion to dismiss
in abeyance until the parties appeared for a pre-motion conference. (See Doc. 51.) Before the
pre-motion conference, Defendants McCready, Nieves, and McLaughlin requested pre-motion
conferences in anticipation of filing their own motion to dismiss. (Docs. 52, 60.) After the
conference, I entered an order setting a briefing schedule for the motions to dismiss. (Doc. 62.)
On May 15, 2017, Defendants McCready, Nieves, and McLoughlin filed their motion to dismiss
and supporting materials. (Docs. 68–70.)
On June 9, 2017, Plaintiff requested to amend the First Amended Complaint to add
certain allegations against the Defendants. (Doc. 71.) After Plaintiff submitted his Second
6
Amended Complaint for my review on August 9, 2017, (Doc. 86), I accepted the Second
Amended Complaint, denied as moot the Defendants’ motions to dismiss without prejudice, and
granted leave to re-file, (Doc. 89). Defendants City of New York, McNellis, and Garrity filed an
Answer to the Second Amended Complaint on August 23, 217. (Doc. 94.)
On September 7, 2017, the WP Defendants filed their motion to dismiss the Second
Amended Complaint and supporting materials. (Docs. 96–100.) The Moving NYC Defendants
filed their motion to dismiss the Second Amended Complaint and supporting materials on
September 8, 2017. (Docs. 101–03.) Plaintiff filed his opposition on December 5, 2017. (Doc.
109.) The WP Defendants filed their reply on December 7, 2017, (Doc. 110), and the Moving
NYC Defendants filed their reply on December 19, 2017, (Doc. 112).
Legal Standards
To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), “a
complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). A claim will have “facial plausibility 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. This standard demands “more than a sheer possibility
that a defendant has acted unlawfully.” Id. “Plausibility . . . depends on a host of considerations:
the full factual picture presented by the complaint, the particular cause of action and its elements,
and the existence of alternative explanations so obvious that they render plaintiff’s inferences
unreasonable.” L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419, 430 (2d Cir. 2011).
In considering a motion to dismiss, a court must accept as true all well-pleaded facts
alleged in the complaint and must draw all reasonable inferences in the plaintiff’s favor. Kassner
7
v. 2nd Ave. Delicatessen Inc., 496 F.3d 229, 237 (2d Cir. 2007). A complaint need not make
“detailed factual allegations,” but it must contain more than mere “labels and conclusions” or “a
formulaic recitation of the elements of a cause of action.” Iqbal, 556 U.S. at 678 (internal
quotation marks omitted). Finally, although all allegations contained in the complaint are
assumed to be true, this tenet is “inapplicable to legal conclusions.” Id. A complaint is “deemed
to include any written instrument attached to it as an exhibit or any statements or documents
incorporated in it by reference.” Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir.
2002) (quoting Int’l Audiotext Network, Inc. v. Am. Tel. & Tel. Co., 62 F.3d 69, 72 (2d Cir.
1995)).
Even after Twombly and Iqbal, a “document filed pro se is to be liberally construed and a
pro se complaint, however inartfully pleaded, must be held to less stringent standards than
formal pleadings drafted by lawyers.” Boykin v. KeyCorp, 521 F.3d 202, 214 (2d Cir. 2008)
(quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007)). Further, pleadings of a pro se party should
be read “to raise the strongest arguments that they suggest.” Brownell v. Krom, 446 F.3d 305,
310 (2d Cir. 2006) (quoting Jorgensen v. Epic/Sony Records, 351 F.3d 46, 50 (2d Cir. 2003)).
Nevertheless, dismissal of a pro se complaint is appropriate where a plaintiff fails to state a
plausible claim supported by more than conclusory factual allegations. See Walker v. Schult, 717
F.3d 119, 124 (2d Cir. 2013). In other words, “the duty to liberally construe a plaintiff’s
complaint is not the equivalent of a duty to re-write it.” Geldzahler v. N.Y. Med. Coll., 663 F.
Supp. 2d 379, 387 (S.D.N.Y. 2009) (internal quotation marks omitted).
8
Discussion
A.
Statute of Limitations
The WP Defendants and Moving NYC Defendants move to dismiss the claims in the
Second Amended Complaint against them because they are barred by the statute of limitations.
1. Applicable Law
Since § 1983 does not provide a specific statute of limitations, “courts apply the statute of
limitations for personal injury actions under state law.” Hogan v. Fischer, 738 F.3d 509, 517 (2d
Cir. 2013). “Section 1983 actions filed in New York are therefore subject to a three-year statute
of limitations.” Id.; see also N.Y. C.P.L.R. § 214. The accrual date for a § 1983 action,
however, is “a question of federal law that is not resolved by reference to state law.” Wallace v.
Kato, 549 U.S. 384, 388 (2007). Instead, it is governed by “federal rules conforming in general
to common-law tort principles.” Id. Under those principles, “the standard rule [is] that accrual
occurs when the plaintiff has a complete and present cause of action, that is, when the plaintiff
can file suit and obtain relief.” Id. (citations and internal quotation marks omitted).
a. Relation Back Under Rule 15(c)(1)(C)
Even if the statute of limitations has expired as to claims against a defendant, a court may
entertain those claims if they “relate back” to the original pleading or if equitable tolling applies.
Federal Rule of Civil Procedure 15(c)(1)(C) “provides the federal standard for relation back.”
Hogan, 738 F.3d at 517. For a claim against a defendant to relate back under Rule 15(c)(1)(C),
the following requirements must be met:
(1) the claim must have arisen out of conduct set out in the original pleading; (2)
the party to be brought in must have received such notice that it will not be
prejudiced in maintaining its defense; (3) that party should have known that, but for
a mistake of identity, the original action would have been brought against it; and
. . . [4] the second and third criteria are fulfilled within 120 days of the filing of the
original complaint, and . . . the original complaint [was] filed within the limitations
9
period.
Id. (alteration in original) (quoting Barrow v. Wethersfield Police Dep’t, 66 F.3d 466, 468–69
(2d Cir. 1995)).
However, the “failure to identify individual defendants when the plaintiff knows that
such defendants must be named cannot be characterized as a mistake.” Id. at 518 (quoting
Barrow, 66 F.3d at 470). Therefore, where a plaintiff fails to amend and identify John Doe
defendants in a § 1983 action within the statute of limitations period because the plaintiff is
unaware of the defendants’ identities, any amended complaint naming those individuals after the
expiration of the statute of limitations cannot be said to relate back under Rule 15(c)(1)(C). See
Hogan, 738 F.3d at 518 (“This Court’s interpretation of Rule 15(c)(1)(C) makes clear that lack
of knowledge of a John Doe defendant’s name does not constitute a mistake of identity.”
(internal quotation marks omitted)).
b. Relation Back Under Rule 15(c)(1)(A)
In addition to relation back under Rule 15(c)(1)(C), “Rule 15(c)(1)(A) permits an
amended pleading to relate back when ‘the law that provides the applicable statute of limitations
allows relation back.’” Id. at 518 (internal quotation marks omitted). In other words, an
amended complaint “relates back if New York law, which provides the applicable statute of
limitations [for § 1983 claims in New York], authorizes relation back.” Vasconcellos v. City of
New York, No. 12 Civ. 8445(CM), 2014 WL 4961441, at *7 (S.D.N.Y. Oct. 2, 2014). Under
New York law, a party seeking relation back for a previously unknown defendant may utilize
New York Civil Practice Law and Rules (“C.P.L.R.”) § 203 (New York’s general relation back
statute) or C.P.L.R. § 1024 (New York’s John Doe procedural rule). See Strada v. City of New
York, No. 11-CV-5735 (MKB), 2014 WL 3490306, at *6–8 (E.D.N.Y. July 11, 2014).
10
Section 203 of the C.P.L.R. provides that claims against a new defendant relate back to
timely-filed pleadings when:
(1) the new claim arose out of the same conduct, transaction or occurrence as the
original allegations; (2) the new party is united in interest with the original
defendant, and by reason of that relationship can be charged with such notice of the
institution of the action that he will not be prejudiced in maintaining his defense on
the merits; and (3) the new party knew or should have known that, but for a mistake
as to the identity of the proper parties, the action would have been brought against
him as well.
Id. (citation omitted). “New York courts have held, however, that a plaintiff may not add a new
defendant under [C.P.L.R. § 203] unless ‘the new party knew or should have known that, but for
an excusable mistake by plaintiff as to the identity of the proper parties, the action would have
been brought against him as well.’” Vasconcellos, 2014 WL 4961441, at *8 (quoting Malament
v. Vasap Constr. Corp., 728 N.Y.S.2d 381, 381 (2d Dep’t 2001) and collecting cases). “This
requirement closely tracks the federal relation-back requirement of Rule 15(c)(1)(C).” Id.
Section 1024 of the C.P.L.R. provides:
A party who is ignorant, in whole or in part, of the name or identity of a person who
may properly be made a party, may proceed against such person as an unknown
party by designating so much of his name and identity as is known. If the name or
remainder of the name becomes known all subsequent proceedings shall be taken
under the true name and all prior proceedings shall be deemed amended
accordingly.
N.Y. C.P.L.R. § 1024. “New York courts have interpreted this section to permit John Doe
substitutions nunc pro tunc.” Hogan, 738 F.3d at 518–19 (collecting cases). A plaintiff must
meet two initial requirements: “First, the party must ‘exercise due diligence, prior to the running
of the statute of limitations, to identify the defendant by name.’” Id. at 519 (quoting Bumpus v.
N.Y.C. Transit Auth., 883 N.Y.S.2d 99, 104 (2d Dep’t 2009)). “Second, the party must describe
the John Doe party ‘in such form as will fairly apprise the party that he is the intended
defendant.’” Id. (quoting Bumpus, 883 N.Y.S.2d at 104). To satisfy the due diligence
11
requirement, the plaintiff must “show that he or she made timely efforts to identify the correct
party before the statute of limitations expired,” such as “serving discovery demands on any
known parties or seeking disclosures pursuant to a Freedom of Information Law (‘FOIL’)
request.” Cotto v. City of New York, Nos. 15 Civ. 9123 (RWS), 16 Civ. 226 (RWS), 2017 WL
3476045, at *5 (S.D.N.Y. Aug. 11, 2017) (internal quotation marks omitted).
2. Application
Plaintiff did not name the WP Defendants or the Moving NYC Defendants in his original
Complaint. (Compl.)4 The first time he named the WP Defendants and Defendants Nieves,
McCready, and McLoughlin was in the First Amended Complaint, filed on September 30, 2016.
(FAC.)5 Plaintiff did not name Defendants Gentz and Tierney until he filed the Second
Amended Complaint on August 9, 2017. (See generally SAC.)
As an initial matter, Plaintiff’s malicious prosecution claims against the Defendants
named in the First Amended Complaint are timely. A cause of action for malicious prosecution
accrues “when the underlying criminal action is conclusively terminated.” Murphy v. Lynn, 53
F.3d 547, 548 (2d Cir. 1995). Plaintiff’s malicious prosecution claims did not accrue until
November 18, 2013, when all charges against him were dismissed, (SAC ¶ 35), and the statute of
limitations therefore expired on November 18, 2016. Since the First Amended Complaint was
filed on September 30, 2016, Plaintiff’s malicious prosecution claims against the WP Defendants
and Defendants Nieves, McCready, and McLoughlin were filed less than three years after his
malicious prosecution claims accrued. (FAC 3.) The Second Amended Complaint alleges the
same claims. (SAC ¶¶ 36–46.) Therefore, Plaintiff’s malicious prosecution claims are timely as
4
“Compl.” refers to the Complaint. (Doc. 2.)
5
“FAC” refers to the First Amended Complaint. (Doc. 25.)
12
to the WP Defendants and Defendants Nieves, McCready, and McLoughlin.
However, Plaintiff’s malicious prosecution claims against the Defendants named for the
first time in the Second Amended Complaint—Gentz and Tierney—were filed after the
expiration of the statute of limitations. For those claims to be timely, Plaintiff’s claims must
relate back to the First Amended Complaint.
Similarly, Plaintiff’s remaining claims against the WP Defendants and the Moving City
Defendants were filed after the expiration of the relevant statute of limitations. With the
exception of Plaintiff’s malicious prosecution claims, all of Plaintiff’s other claims accrued on
April 24, 2013, the date of his arrest, and the statute of limitations for those claims expired on
April 24, 2016, approximately five months before Plaintiff filed the First Amended Complaint
and over a year before Plaintiff filed the Second Amended Complaint. Those claims, therefore,
must relate back to the Complaint, since that was the last pleading in which those claims were
timely filed.
The WP Defendants and the Moving NYC Defendants argue that Plaintiff’s claims do not
relate back under either the federal or state relation-back standards. Plaintiff’s opposition
contends that his claims relate back under both standards as to the WP Defendants; however, the
opposition does not address the arguments made by the Moving NYC Defendants. (See
generally Pl.’s Opp.)6 Therefore, with the exception of the malicious prosecution claims against
Defendants Nieves, McCready, and McLoughlin, Plaintiff’s claims against the Moving NYC
Defendants are dismissed as untimely. See AT&T Corp. v. Syniverse Techs., Inc., No. 12 Civ.
1812(NRB), 2014 WL 4412392, at *7 (S.D.N.Y. Sept. 8, 2014) (concluding that plaintiff’s
6
“Pl.’s Opp.” refers to the Memorandum of Law Submitted on behalf of the Plaintiff Daniel Forte Pro Se in Support
of Opposition to Motion to Dismiss, filed December 5, 2017. (Doc. 109.)
13
“silence [in its opposition] concedes the point”). Next, I analyze Plaintiff’s relation back
arguments under Rule 15(c)(1)(C).
As described above with regard to relation back under Rule 15(c)(1)(C), there are four
requirements a plaintiff must meet in order to establish that his untimely claims relate back to a
timely Complaint. See Hogan, 738 F.3d at 517 (quoting Barrow, 66 F.3d at 468–69).
With respect to the first requirement, Plaintiff’s claims against the WP Defendants in the
Second Amended Complaint arose out of conduct, transactions, and occurrences that were
alleged in the original Complaint. The Second Amended Complaint alleges that McNellis
transported Plaintiff against his will to the White Plains Police Department, (SAC ¶¶ 33–34),
where Tallevi and Cunningham processed him on charges that the Manhattan District Attorney
chose not to pursue, (id. ¶ 35). After being incarcerated for six months, the charges against
Plaintiff were dismissed. (Id.) The original Complaint alleges essentially identical facts. It
alleges that after McNellis talked to someone on the phone, he informed Plaintiff that the White
Plains police wanted to speak with Plaintiff. (Compl. 9.) McNellis then transported Plaintiff
against his consent to the White Plains Police Department, where White Plains police officers
arrested Plaintiff on charges the NYPD refused to bring. (Id.) The charges against Plaintiff were
dismissed six months later. (Id.) There is no question that the allegations in the Second
Amended Complaint relate to the same conduct, transactions, and occurrences alleged in the
Complaint. The fact that the Complaint does not specifically name the WP Defendants or bring
claims against them does not mean that Plaintiff cannot meet the first requirement. See In re
Mission Const. Litig., No. 10 CIV. 4262 LTS HBP, 2013 WL 4710377, at *6 (S.D.N.Y. Aug. 30,
2013) (permitting relation-back of claims against a newly added party where the claims arose
from the same transaction alleged in the original complaint).
14
Second, Plaintiff has adequately established, at this stage, that the WP Defendants
received notice of the action such that they would not be prejudiced in maintaining a defense.
Plaintiff contends that the WP Defendants received notice in March 2016, when counsel for the
NYC Defendants contacted the City of White Plains informing it of Plaintiff’s action, that the
action was related to Plaintiff’s criminal case in White Plains, and that he required access to
certain records associated with Plaintiff’s criminal case. (Pl.’s Opp. 3–4.) Upon learning that he
needed Plaintiff’s consent to access those records, counsel for the NYC Defendants requested
Plaintiff’s consent on April 1, 2016, (id. Ex. H), which he granted on April 18, 2016, (id. at 3–4).
WP Defendants do not contest that this occurred, but rather argue that the notion that a request
for records could provide notice to the WP Defendants is “specious.” (WP Defs.’ Reply 5.)7
Courts have held that notice may be sufficient “where a party who has some reason to expect his
potential involvement as a defendant hears of the commencement of litigation through some
informal means.” In re Integrated Res. Real Estate Ltd. Partnerships Sec. Litig., 815 F. Supp.
620, 647 (S.D.N.Y. 1993) (internal quotation marks omitted). Given that the WP Defendants
effectively failed to address in substance Plaintiff’s argument that they received notice through
counsel’s request for records, I decline to dismiss Plaintiff’s claims at this stage of the litigation.
Plaintiff has also met the third requirement of the federal relation-back standard. The WP
Defendants contend that relation back is not permitted where the Plaintiff failed to timely name
defendants because he was unaware of their identities. (WP Defs.’ Mem. 4.)8 Although this is a
correct statement of the law, see Barrow, 66 F.3d at 470, Plaintiff does not contend that he was
unaware of the WP Defendants’ identities when he filed the Complaint. Instead, Plaintiff
7
“WP Defs.’ Reply” refers to the Reply Memorandum of Law of the WP Defendants. (Doc. 110.)
8
“WP Defs.’ Mem.” refers to the Memorandum of Law of the WP Defendants. (Doc. 99.)
15
contends that “he was not aware of the liability in the role [the WP Defendants] played.” (Pl.’s
Opp. 5.) As the Supreme Court has explained, the federal relation-back standard is concerned
not with the plaintiff’s knowledge, but rather, “whether [the defendant] knew or should have
known that it would have been named as a defendant but for an error.” Krupski v. Costa
Crociere S. p. A., 560 U.S. 538, 548 (2010). The Supreme Court further explained that:
Information in the plaintiff’s possession is relevant only if it bears on the
defendant’s understanding of whether the plaintiff made a mistake regarding the
proper party’s identity. For purposes of that inquiry, it would be error to conflate
knowledge of a party’s existence with the absence of mistake. . . . That a plaintiff
knows of a party’s existence does not preclude her from making a mistake with
respect to that party’s identity. A plaintiff may know that a prospective
defendant—call him party A—exists, while erroneously believing him to have the
status of party B. Similarly, a plaintiff may know generally what party A does
while misunderstanding the roles that party A and party B played in the conduct,
transaction, or occurrence giving rise to her claim.
Id. at 548–49 (internal quotation marks omitted). The Court noted, however, that “making a
deliberate choice to sue one party instead of another while fully understanding the factual and
legal differences between the two parties is the antithesis of making a mistake concerning the
proper party’s identity.” Id. at 549.
Plaintiff contends that even though he knew the identities of the WP Defendants, he only
discovered, after receiving legal assistance and reviewing full transcripts and records, that the
WP Defendants may be legally liable for their conduct. (Pl.’s Opp. 5.) In other words, he claims
that he did not include the WP Defendants in the original Complaint because he misunderstood
the legal significance of the role they played in the conduct, transactions, and occurrences that
gave rise to his claims. Plaintiff’s initial request to amend the Complaint states that, after
conducting legal research, he concluded that he needed to amend the Complaint to “expound on
what factually occurred and all who is responsible for the wrong(s) alluded to in [his] initial
Complaint.” (Doc. 20.) This supports Plaintiff’s contention that although he was aware of the
16
identities of the WP Defendants, he was mistaken as to their role in the misconduct and the
resulting liability they faced. Courts have found that the third requirement of the federal
relation-back standard is met in analogous circumstances. See, e.g., In re Mission Const. Litig.,
No. 10 Civ. 4262(LTS)(HBP), 2013 WL 4710377, at *8 (S.D.N.Y. Aug. 30, 2013) (permitting
relation back where plaintiff “was not aware of [the newly added defendant’s] role and potential
liability until discovery began” and citing similar cases); Trustees of Nat. Ret. Fund v. Wildwood
Corp., No. 11-CV-06287 NSR LMS, 2014 WL 1918080, at *3 (S.D.N.Y. May 12, 2014)
(permitting relation back where plaintiff misunderstood “the role that [the newly added
defendants] played in the conduct giving rise to the ‘evade or avoid’ claim”); see also Abdell v.
City of New York, 759 F. Supp. 2d 450, 457 (S.D.N.Y. 2010) (“After Krupski, it is clear that a
mistake ‘concerning the proper party’s identity’ under Rule 15(c) includes a lack of knowledge
regarding the conduct or liability of that party.”). Here, given that Plaintiff omitted the WP
Defendants from the original Complaint—despite bringing claims against other law enforcement
defendants based on allegations regarding their conduct with respect to Plaintiff’s arrest and
prosecution—the WP Defendants knew or should have known that it was not a deliberate choice
by Plaintiff not to name them, but rather the result of a mistake or misunderstanding with respect
to their role and associated liability. See Abdell, 759 F. Supp. 2d at 457 (holding that, where the
newly added defendant was not named in an initial complaint, but another officer who
participated in the same arrest decision was named, “[t]he most logical explanation for
[plaintiffs’] failure to name [the newly added defendant] in the original Complaint is that
[p]laintiffs misunderstood his role in the arrest decision giving rise to their claim”).
Finally, Plaintiff has established, for purposes of this motion, that the second and third
prongs were fulfilled within 120 days of filing the Complaint, which was filed within the
17
limitations period. Plaintiff filed the Complaint on January 25, 2016, which was within the
three-year limitations period for Plaintiff’s claims. (See Compl.) The WP Defendants received
notice of Plaintiff’s action less than 120 days later in March 2016, when counsel for the NYC
Defendants contacted the City of White Plains informing it of Plaintiff’s action. Therefore, the
fourth prong of the federal relation-back standard is fulfilled. Plaintiff’s claims against the WP
Defendants thus relate back to the Complaint and are timely.
B.
Claims Against the WP Defendants
1. Municipal Liability
A municipality or local government is liable under § 1983 “if the governmental body
itself subjects a person to a deprivation of rights or causes a person to be subjected to such
deprivation.” Connick v. Thompson, 563 U.S. 51, 60 (2011) (internal quotation marks omitted).
Local governments are not vicariously liable under Section 1983, and instead are responsible
only for their own illegal acts. Id. “A municipality may, however, be liable under § 1983 when
the alleged deprivation of constitutional rights is the result of action pursuant to an official
municipal policy, or the municipality exhibits deliberate indifference to the possibility of such a
constitutional violation.” Williams v. City of New York, 690 F. Supp. 2d 338, 343 (S.D.N.Y.
2010) (citing Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690–91 (1978); Vann v. City of New
York, 72 F.3d 1040, 1049 (2d Cir. 1995)). In addition, “the deprivation of the plaintiff’s rights
[must be] caused by a governmental custom, policy, or usage of the municipality.” Jones v.
Town of E. Haven, 691 F.3d 72, 80 (2d Cir. 2012).
A defendant’s failure to train or supervise its employees may constitute an official policy
or custom “if the failure amounts to ‘deliberate indifference’ to the rights of those with whom the
. . . employees interact.” Wray v. City of New York., 490 F.3d 189, 195 (2d Cir. 2007) (quoting
18
City of Canton v. Harris, 489 U.S. 378, 388 (1989)). In such cases, a plaintiff must show that a
policymaking official had notice “of a potentially serious problem of unconstitutional conduct,
such that the need for corrective action or supervision was obvious, and the policymaker’s failure
to investigate or rectify the situation evidences deliberate indifference.” Amnesty Am. v. Town of
W. Hartford, 361 F.3d 113, 128 (2d Cir. 2004) (internal citation and quotation marks omitted).
A “policy of inaction in light of notice” that an entity’s training or supervision program will
cause constitutional violations “is the functional equivalent of a decision by the [entity] to violate
the Constitution.” Connick v. Thompson, 563 U.S. 51, 61–62 (2011) (internal quotation marks
omitted).
Courts in this circuit have adopted three requirements a plaintiff must meet to establish
§ 1983 liability for an entity’s failure to train or supervise:
First, the plaintiff must show that a policymaker knows to a moral certainty that her
employees will confront a given situation . . . . Second, the plaintiff must show that
the situation either presents the employee with a difficult choice of the sort that
training or supervision will make less difficult or that there is a history of employees
mishandling the situation . . . . Finally, the plaintiff must show that the wrong choice
by the city employee will frequently cause the deprivation of a citizen’s
constitutional rights.
Walker v. City of New York, 974 F.2d 293, 297–98 (2d Cir. 1992) (internal quotation marks
omitted). A plaintiff who has established all three elements has established “the circumstances
under which a supervisor’s failure to act triggers liability under § 1983.” Reynolds v. Giuliani,
506 F.3d 183, 192 (2d Cir. 2007).
The Supreme Court has made clear that “deliberate indifference is a stringent standard of
fault, requiring proof that a[n entity] disregarded a known or obvious consequence of [its]
action.” Connick, 563 U.S. at 61 (internal quotation marks omitted). An entity’s culpability “is
at its most tenuous where a claim turns on a failure to train.” Id. The “stringent causation and
19
culpability requirements” in the failure to train context “have been applied to a broad range of
supervisory liability claims, including claims for failure to supervise and failure to discipline.”
Tieman v. City of Newburgh, No. 13-CV-4178 (KMK), 2015 WL 1379652, at *19 (S.D.N.Y.
Mar. 26, 2015) (quoting Reynolds, 506 F.3d at 192).
The only allegations in the Second Amended Complaint regarding any policy, practice, or
custom on behalf of the City of White Plains are that the City has “a history of an undefined
custom of failing to train its officers in the correct and legal nature of probable cause, which
leads to [u]nlawful [a]rrest [and] malicious prosecution.” (SAC ¶ 44.) The City has allegedly
“permitted, tolerated and been deliberately indifferent to a pattern and practice of staff violating
citizens’ constitutional rights. This widespread tolerance of police officers abusing their
authority constitutes a municipal policy or custom that led to the deprivation of plaintiff’s
rights.” (Id.; see also ¶ 10.) These allegations are vague and conclusory. Moreover, there are no
specific allegations that Defendants Tallevi and Cunningham were acting pursuant to a policy or
custom of the City of White Plains, or that some specific deficiency in the training program of
the White Plains Police Department caused Plaintiff’s alleged injuries. Plaintiff’s “formulaic
recitation of the elements of a cause of action” for municipal liability plainly fails to meet the
relevant pleading requirements. Iqbal, 556 U.S. at 678.
Plaintiff attempts to salvage his municipal liability claim against the City of White Plains
by listing several cases in his opposition purportedly demonstrating a policy or custom.
Notwithstanding the requirement that a court must consider only the sufficiency of a plaintiff’s
pleadings on a motion to dismiss, and the Second Amended Complaint contains no such
allegations, even if Plaintiff had included the list of cases in the Second Amended Complaint, the
list does not provide allegations sufficient to plausibly allege a claim for municipal liability.
20
Specifically, Plaintiff lists five cases that span at least the past twenty years and involve
claims of false arrest and malicious prosecution against the City of White Plains. (Pl.’s Opp. 13–
15.) Two of the cases involve denials of summary judgment.9 (Id. at 13 (citing Sassower v. City
of White Plains, 992 F. Supp. 652 (S.D.N.Y. 1998)).) One of the cases involves a claim for
attorneys’ fees after the City of White Plains settled a plaintiff’s § 1983 claims. (Id. at 13–14
(citing Barbour v. City of White Plains, 788 F. Supp. 2d 216 (S.D.N.Y. 2011), aff’d, 700 F.3d
631 (2d Cir. 2012)).) Another case involved the Second Circuit’s reversal of a district court’s
grant of summary judgment to White Plains police officer defendants, finding those defendants
liable for false arrest and malicious prosecution, but affirming the district court’s grant of
summary judgment to the City of White Plains on the plaintiff’s Monell claim. (Pl.’s Opp. 14–
15 (citing Ackerson v. City of White Plains, 702 F.3d 15 (2d Cir. 2012), as amended (Dec. 4,
2012)).) The final case involves a motion to dismiss the plaintiff’s § 1983 claims against White
Plains police officers and the City of White Plains, which the court converted into a motion for
summary judgment and provided the plaintiff additional time to respond. (Pl.’s Opp. 15 (citing
Gomez v. City of White Plains, No. 13-cv-7750 (NSR), 2014 WL 2210646, at *1 (S.D.N.Y. May
23, 2014)).) Only one of these cases involved an adjudication of liability against a White Plains
police officer. See Ackerson, 702 F.3d at 22. The remaining cases either settled, without any
reference to whether there was an admission of liability by the defendants, or evidence the nondispositive resolution to a motion. This is not enough to plausibly allege a widespread and
persistent practice sufficient to infer a policy or custom for Monell liability. See Walker v. City
of New York, No. 14-CV-808 (ER), 2015 WL 4254026, at *9 (S.D.N.Y. July 14, 2015) (finding
9
Plaintiff incorrectly cites several cases. I was able to locate each of them except for the case listed as “Livingston
v. City of White Plains, 2011 WL 7010234 at 5 (2011).” (Pl.’s Opp. 13.) For that case, I accept as true Plaintiff’s
representation of its outcome.
21
that allegations of thirty-six lawsuits involving allegedly false arrests, none of which resulted in
an adjudication or finding of liability, over the span thirteen years, were “insufficient to plausibly
support an inference of a widespread custom”); Tieman, 2015 WL 1379652, at *17 (finding that
“allegations of thirteen instances of excessive force during arrests over four years (none of which
involved findings or admissions of culpability) . . . do[] not plausibly demonstrate that the use of
excessive force during arrest was so frequent and pervasive to constitute a custom”); Walker v.
City of New York, No. 12 Civ. 5902(PAC), 2014 WL 1259618, at *3 (S.D.N.Y. Mar. 18, 2014)
(finding that plaintiff’s reliance on ten complaints, “none resulting in an adjudication of
liability,” over the span of a decade, “hardly suggests the frequency or pervasiveness of the
purported custom that is required to state a Monell claim”). Therefore, Plaintiff’s municipal
liability claims against Defendant City of White Plains are dismissed.10
2. § 1983 Conspiracy11
To establish a claim for conspiracy to violate § 1983, a plaintiff must show: “(1) an
agreement between two or more state actors or between a state actor and a private entity; (2) to
act in concert to inflict an unconstitutional injury; and (3) an overt act done in furtherance of that
goal causing damages.” Pangburn v. Culbertson, 200 F.3d 65, 72 (2d Cir. 1999). “It is well
settled that claims of conspiracy containing only conclusory, vague, or general allegations of
10
Similarly, Plaintiff’s claims against Defendants Tallevi and Cunningham in their official capacities are dismissed,
as “[o]fficial-capacity suits . . . ‘generally represent only another way of pleading an action against an entity of
which an officer is an agent.’” Kentucky v. Graham, 473 U.S. 159, 165 (1985) (quoting Monell, 436 U.S. at 690
n.55).
11
Plaintiff styles his claim as a § 1983 conspiracy, but I note that the Second Circuit has, on occasion, construed
such claims as brought under § 1985. See Webb v. Goord, 340 F.3d 105, 110 (2d Cir. 2003). Nevertheless, because
the Second Circuit has also recognized conspiracy claims under § 1983, see Corsini v. Brodsky, 731 F. App’x 15, 19
(2d Cir. 2018) (summary order) (citing Cimabriello v. Cty. of Nassau, 292 F.3d 307, 324–25 (2d Cir. 2002))), and
because Plaintiff styles his claim as a § 1983 conspiracy claim, I construe the claim as brought under § 1983.
22
conspiracy to deprive a person of constitutional rights cannot withstand a motion to dismiss.”
Gallop v. Cheney, 642 F.3d 364, 369 (2d Cir. 2011) (quoting Leon v. Murphy, 988 F.2d 303, 311
(2d Cir. 1992)). The plaintiff must allege such facts to support the conclusion that a meeting of
the minds to achieve some unlawful end occurred. Webb v. Goord, 340 F.3d 105, 110 (2d Cir.
2003).
The WP Defendants argue that Plaintiff has alleged only in a conclusory fashion that
Tallevi and Cunningham entered into a conspiracy with McNellis to falsely arrest Plaintiff and
initiate a malicious prosecution against him. (WP Defs.’ Mem. 6.) Plaintiff alleges that
McNellis engaged in several phone calls while Plaintiff was being interrogated. (SAC ¶ 29.)
Plaintiff alleges upon information and belief that the last phone call McNellis had was with a
Lieutenant Doherty at the White Plains Police Department, after which McNellis told Plaintiff
that the White Plains police wanted to speak with him. (SAC ¶ 31.) The WP Defendants argue
that because Plaintiff does not allege the content of these calls, and because he believes the final
phone call was with Doherty, this establishes that McNellis did not enter into a conspiracy with
Tallevi or Cunningham. (WP Defs.’ Mem. 6.) However, it is unsurprising that Plaintiff does not
allege the content of the calls, as they occurred outside the interrogation room. (See SAC ¶ 29.)
It is a plausible inference that at least one of the calls was with Tallevi or Cunningham and
involved an agreement, express or tacit, to bring Plaintiff to White Plains to arrest him. Absent
discovery, it would be impossible for Plaintiff to allege the content of calls that occurred outside
of earshot. Taking into account the allegations that McNellis gave a sworn statement to Tallevi
and Cunningham and handed Plaintiff’s cell phone to them upon arrival at the White Plains
Police Department, there is a plausible inference that McNellis agreed with Tallevi, expressly or
tacitly, to violate Plaintiff’s constitutional rights.
23
The WP Defendants further argue that Plaintiff fails to allege an overt act done in
furtherance of the conspiracy. (WP Defs.’ Mem. 6–7.) However, the Second Amended
Complaint alleges that Tallevi and Cunningham took a sworn statement from McNellis, took
Plaintiff’s phone from McNellis, took pictures and data out of Plaintiff’s phone without his
consent, and commenced and processed Plaintiff’s arrest. (SAC ¶¶ 34–35.) This conduct clearly
involves acts that qualify as overt acts done in furtherance of the alleged conspiracy. Plaintiff
adequately alleges a § 1983 conspiracy.
3. False Arrest and Malicious Prosecution
The WP Defendants argue that Tallevi and Cunningham are not liable for false arrest or
malicious prosecution because they are entitled to qualified immunity. (WP Defs.’ Mem. 10–
14.) The existence of probable cause is a complete defense to claims for false arrest and
malicious prosecution. Savino v. City of New York, 331 F.3d 63, 72 (2d Cir. 2003); Weyant v.
Okst, 101 F.3d 845, 852 (2d Cir. 1996). “Probable cause exists when an officer has knowledge
or reasonably trustworthy information sufficient to warrant a person of reasonable caution in the
belief that an offense has been committed by the person to be arrested.” Savino, 331 F.3d at 76
(internal quotation marks omitted). “Probable cause may also exist where the officer has relied
on mistaken information, so long as it was reasonable for him to rely on it.” Manganiello v. City
of New York, 612 F.3d 149, 161 (2d Cir. 2010). However, where a reasonable person would
make further inquiry, the failure to do so “may be evidence of lack of probable cause.” Id.
Furthermore, “a police officer's fabrication and forwarding to prosecutors of known false
evidence” negates a finding of probable cause. Id. at 162.
The doctrine of qualified immunity protects a police officer from liability if: “(1) his
conduct does not violate clearly established statutory or constitutional rights of which a
24
reasonable person would have known, or (2) it was objectively reasonable for him to believe that
his actions were lawful at the time of the challenged act.” Cerrone v. Brown, 246 F.3d 194, 199
(2d Cir. 2001) (internal citation and quotation marks omitted). A police officer is entitled to
qualified immunity if he possessed “arguable probable cause” to arrest and/or prosecute a
plaintiff. Id. at 202. “Arguable probable cause exists when a reasonable police officer in the
same circumstances and possessing the same knowledge as the officer in question could have
reasonably believed that probable cause existed in the light of well established law.” Id. at 202–
03 (internal quotation marks omitted).
A defendant who raises the defense of qualified immunity on a motion to dismiss “must
demonstrate that facts establishing arguable probable cause are clear from the face of the
[complaint].” Lumpkin v. Brehm, 230 F. Supp. 3d 178, 184 (S.D.N.Y. 2017) (internal quotation
marks omitted). The Second Circuit has held that a defendant asserting such a defense “faces a
formidable hurdle.” McKenna v. Wright, 386 F.3d 432, 434 (2d Cir. 2004). “[T]he plaintiff is
entitled to all reasonable inferences from the facts alleged, not only those that support his claim,
but also those that defeat the immunity defense.” Id. at 436.
The WP Defendants argue that Tallevi and Cunningham are entitled to qualified
immunity because they had at least arguable probable cause to arrest Plaintiff and initiate a
prosecution against him. I agree that Tallevi and Cunningham had at least arguable probable
cause to arrest Plaintiff, but I do not agree that they had arguable probable cause to initiate a
prosecution against him as to the charge for criminal possession of stolen property.12
12
Plaintiff was charged for criminal possession of a controlled substance in the fifth degree, (SAC ¶ 35), based upon
the erroneous finding that more than 500 milligrams of cocaine was found on Plaintiff’s person, (see Doc. 97-4;
Doc. 97-5). It appears that the appropriate charge should have been criminal possession of a controlled substance in
the seventh degree, see N.Y. Penal Law § 220.03, because Plaintiff had less than 500 milligrams of cocaine, (see
Doc. 97-5). Criminal possession of a controlled substance in the fifth degree is a felony, N.Y. Penal Law § 220.06,
25
With respect to Plaintiff’s false arrest claim, Plaintiff alleges in the Second Amended
Complaint that Garrity placed Plaintiff under arrest, searched him in the hallway outside his
mother’s apartment, and found narcotics “on his person.” (SAC ¶ 25.) Plaintiff does not dispute
that he was found in possession of narcotics at the time of his arrest. (Id.) Plaintiff does not
allege that McNellis or Garrity provided any false information to Tallevi or Cunningham with
regard to the narcotics recovered from Plaintiff. Plaintiff also does not allege that Tallevi or
Cunningham arrested him without knowledge that he had narcotics on his person. Although
Plaintiff contends that the search that led to the discovery of the narcotics by McNellis and
Garrity was improper, that does not undermine the probable cause on which Tallevi and
Cunningham effectuated the arrest of Plaintiff at the White Plains Police Department. Because
the probable cause inquiry in the context of a false arrest claim focuses on “whether probable
cause existed to arrest a defendant, and . . . not . . . whether probable cause existed with respect
to each individual charge,” Jaegly v. Couch, 439 F.3d 149, 154 (2d Cir. 2006), Plaintiff’s false
arrest claims against Tallevi and Cunningham are dismissed.
However, “a finding of probable cause to arrest as to one charge does not necessarily
defeat a claim of malicious prosecution as to other criminal charges that were resolved in the
plaintiff’s favor.” D’Angelo v. Kirschner, 288 F. App’x 724, 726-27 (2d Cir. 2008) (summary
order). Here, Plaintiff argues that Tallevi and Cunningham lacked probable cause to prosecute
him on the charge of criminal possession of stolen property in the fifth degree. To prove
criminal possession of stolen property in the fifth degree, the government must show that the
while criminal possession of a controlled substance in the seventh degree is a misdemeanor, id. § 220.03. I do not
address, at this stage, Plaintiff’s malicious prosecution claim as to the charge for criminal possession of a controlled
substance in the fifth degree because neither party has provided case law indicating whether a malicious prosecution
claim can survive where probable cause may exist as to a charge for the crime in one degree, but not for the crime in
a higher degree, and the plaintiff was charged for the crime in the higher degree.
26
individual “knowingly possesses stolen property, with intent to benefit himself or a person other
than an owner thereof or to impede the recovery by an owner thereof.” N.Y. Penal Law
§ 165.40. Plaintiff argues that Tallevi and Cunningham lacked probable cause as to whether
Plaintiff “knowingly possesse[d] stolen property” and as to whether he “inten[ded] to benefit
himself or a person other than [the] owner” of the cell phone.
The WP Defendants argue that Tallevi and Cunningham relied on the sworn statement of
McNellis as their basis for probable cause, and that they were entitled to do so pursuant to the
“fellow officer rule.”13 That rule provides that “[t]he existence of probable cause need not be
assessed on the basis of the knowledge of a single officer.” Zellner v. Summerlin, 494 F.3d 344,
369 (2d Cir. 2007). Rather, an officer is entitled to reasonably rely on information received from
other officers as the basis for a probable cause determination. See Hines v. City of Yonkers, No.
08 Civ. 3126(CM), 2011 WL 3055369, at *6 (S.D.N.Y. July 20, 2011) (dismissing malicious
prosecution claim because officer “was entitled to rely on the information he received from the
other officers”). The WP Defendants contend that Tallevi’s and Cunningham’s reliance on
McNellis’s sworn statement entitles them to the protection of qualified immunity.
As an initial matter, McNellis’s sworn statement says nothing about whether or not
Plaintiff knew the cell phone was stolen. The sworn statement states that: (1) a cell phone was
stolen from an apartment; (2) the service provider responded to a subpoena with information that
the cell phone had been reactivated with a number registered to a Michael W. Williams; (3)
NYPD computer checks revealed that the number came back to Plaintiff; (4) the NYPD
T.A.R.U. was able to use cell towers to determine the location of the cell phone, which matched
13
The fellow officer rule is also sometimes referred to as the “collective knowledge doctrine.”
27
an address listed on Plaintiff’s driver’s license; and (5) NYPD officers arrested Plaintiff at that
address while he possessed the phone. (Pl.’s Opp. Ex. C).14 None of this information indicates
that Plaintiff knew that the cell phone was stolen, nor does it demonstrate that Plaintiff intended
to benefit himself or someone other than the owner of the cell phone. The WP Defendants do
not cite any cases where the facts similar to those alleged in McNellis’s sworn statement was
found to be sufficient to establish probable cause.
Moreover, the sworn statement omits information McNellis knew that undermines an
inference that Plaintiff knew the cell phone was stolen. As alleged in the Second Amended
Complaint, before they took Plaintiff to the White Plains Police Department, McNellis and
Garrity interrogated him for five to six hours about the cell phone and how he obtained it. (SAC
¶ 26.) Plaintiff asked the officers what had happened, and they informed him that the cell phone
was one of the items stolen during a home invasion, suggesting that Plaintiff did not know that
the cell phone was stolen. (Id. ¶ 27.) Plaintiff further informed McNellis that he had nothing to
do with the crime and did not know the cell phone was stolen. (Id. ¶ 28.) Plaintiff also offered
to provide fingerprints, DNA, and/or participate in a line up. (Id.) Finally, Plaintiff told the
officers how he obtained the cell phone and provided a written statement indicating where he
bought it, from whom he bought it, the type of car that person drove, and the name of a witness
who accompanied Plaintiff when he bought the cell phone. (Id.; Pl.’s Opp. Ex. B-2.)15 McNellis
also told Plaintiff that “the D.A. does not want to press any charges,” and then McNellis stated
that “Plaintiff was not the person who [McNellis] believed he was looking for.” (SAC ¶ 29.) In
14
Although Plaintiff attaches McNellis’s sworn statement to his opposition, I find that it was incorporated by
reference into the Second Amended Complaint based on the allegation that McNellis provided a sworn statement to
Tallevi and Cunningham. (SAC ¶ 34.) See Chambers, 282 F.3d at 152.
15
Like McNellis’s sworn statement, I find that Plaintiff’s written statement was incorporated by reference into the
Second Amended Complaint based on the allegation that Plaintiff informed McNellis how he obtained the cell
phone. (SAC ¶ 28.) See Chambers, 282 F.3d at 152.
28
other words, McNellis told Plaintiff he was not the person who McNellis believed had stolen the
cell phone.
Although Tallevi and Cunningham could argue that McNellis failed to inform them of
any of this information, I find that the Second Amended Complaint contains allegations that at
least create an inference that they were aware of it. As discussed above, Plaintiff alleges that
McNellis engaged in several phone calls while Plaintiff was being interrogated and that the final
phone call was with the White Plains Police Department. (SAC ¶¶ 29, 31.) Although Plaintiff
does not allege the content of the calls because they occurred outside the interrogation room, (id.
¶ 29), it is plausible that McNellis informed Tallevi, Cunningham, or another officer at the White
Plains Police Department during one of the phone calls of Plaintiff’s statements to McNellis.
Without discovery, it would be impossible for Plaintiff to allege the precise content of the phone
calls. Assuming the facts in the Second Amended Complaint to be true, drawing all inferences in
Plaintiff’s favor, liberally construing the allegations in the Second Amended Complaint, Boykin,
521 F.3d at 214, and reading the Second Amended Complaint to raise the strongest arguments it
suggests, Brownell, 446 F.3d at 310, I find that Plaintiff has plausibly alleged a malicious
prosecution claim against Tallevi and Cunningham.16
16
Although the WP Defendants do not make this argument, one might take the position that even if Tallevi and
Cunningham knew all of the information McNellis knew, they would still have arguable probable cause to initiate a
prosecution against Plaintiff for criminal possession of stolen property in the fifth degree. However, “the failure to
make a further inquiry when a reasonable person would have done so may be evidence of lack of probable cause.”
Manganiello, 612 F.3d at 161 (quoting Colon v. City of New York, 455 N.E.2d 1248, 1250 (N.Y. 1983)). Given
Plaintiff’s written and oral statements to officers, I find that a reasonable person would have at least made a further
inquiry as to his knowledge before initiating a prosecution against him.
29
C.
Claims Against the Moving NYC Defendants
The Moving NYC Defendants argue that Plaintiff’s false arrest and malicious prosecution
claims against them should be dismissed because Plaintiff failed to plead their personal
involvement in any of the alleged misconduct. As discussed above, only Plaintiff’s malicious
prosecution claims against Defendants Nieves, McCready, and McLoughlin are within the statute
of limitations. Even if the other claims also survived, Plaintiff does not address the Moving
NYC Defendants’ arguments that they were not personally involved in Plaintiff’s arrest or
prosecution. (See generally Pl.’s Opp.) As such, those claims are dismissed as abandoned. See
Lipton v. Cty. of Orange, NY, 315 F. Supp. 2d 434, 446 (S.D.N.Y. 2004) (holding that a court
“may, and generally will, deem a claim abandoned when a plaintiff fails to respond to a
defendant’s arguments that the claim should be dismissed”). In any event, the Second Amended
Complaint contains no allegations of any personal involvement by any of the Moving NYC
Defendants in connection with Plaintiff’s arrest and prosecution. Therefore, even if the false
arrest and malicious prosecution claims were timely, those claims would be dismissed for failure
to state a claim. See Grullon v. City of New Haven, 720 F.3d 133, 138 (2d Cir. 2013) (“It is well
settled that, in order to establish a defendant’s individual liability in a suit brought under § 1983,
a plaintiff must show . . . the defendant’s personal involvement in the alleged constitutional
deprivation.”).
Conclusion
For the reasons stated herein, the WP Defendants’ motion to dismiss, (Doc. 96), is
GRANTED IN PART and DENIED IN PART. Specifically, the WP Defendants’ motion to
dismiss is granted with respect to (1) Plaintiff’s claims against the City of White Plains, (2)
Plaintiff’s claims against Defendants Tallevi and Cunningham in their official capacities, and (3)
30
Plaintiff’s false arrest claims against Tallevi and Cunningham in their personal capacities. The
WP Defendants’ motion to dismiss is denied with respect to (1) Plaintiff’s § 1983 conspiracy
claim against Defendants Tallevi and Cunningham in their personal capacities, and (2) Plaintiff’s
malicious prosecution claims against Defendants Tallevi and Cunningham in their personal
capacities. The Moving NYC Defendants’ motion to dismiss, (Doc. 101), is GRANTED.
The Clerk of Court is respectfully directed to terminate the open motions at Docs. 96 and
101. The WP Defendants shall file their Answer to the Second Amended Complaint within
twenty-one (21) days of the issuance of this Opinion & Order.
SO ORDERED.
Dated: September 28, 2018
New York, New York
______________________
Vernon S. Broderick
United States District Judge
31
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