Anderson v. City Of New York et al

Filing 35

ORDER granting 27 Motion to Dismiss. The defendants February 14, 2017 motion to dismiss is granted. The Clerk of Court is directed to enter judgment for the defendants. (Signed by Judge Denise Cote on 06/23/2017)(sm)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-------------------------------------- X
:
PHILIP ANDERSON,
:
:
Plaintiff,
:
:
-v:
:
THE CITY OF NEW YORK, POLICE OFFICER
:
PETER MARTER, POLICE OFFICER SINAN
:
CAGIRICI, and POLICE OFFICER TAMARA
:
PINKNEY,
:
:
Defendants.
:
:
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16cv6629(DLC)
OPINION & ORDER

APPEARANCES:
For the plaintiff:
Alexander M. Dudelson
26 Court Street, Suite 2306
Brooklyn, NY 11242
For the defendants:
Eviana Englert
New York City Law Department
100 Church Street
New York, New York 10007
DENISE COTE, District Judge:
Plaintiff Philip Anderson (“Anderson”) brings this 42
U.S.C. § 1983 action against the City of New York (“City”) and
New York Police Department (“NYPD”) officers Peter Marter
(“Marter”), Sinan Cagirici (“Cagirici”), and Tamara Pinkney
(“Pinkney”), asserting claims arising from his arrest on
November 3, 2013.

The defendants have moved to dismiss the

amended complaint (“FAC”) under Rule 12(b)(6), Fed. R. Civ. P.
For the following reasons, the motion is granted.
BACKGROUND
These facts are taken from the FAC.

Anderson works in the

business of getting customers admission into high-end nightclubs
in New York City and driving them to these clubs.

On November

3, 2013, at approximately 1:25 a.m., Anderson met P.H. on the
corner of 17th Street and 10th Avenue and agreed to help P.H.
get into the nightclub 1Oak for $200.
Defendants Cagirici and Pinkney, who were officers in the
10th precinct’s Cabaret Unit, were working in an unmarked police
vehicle that looked like a New York City Taxi cab.

They

observed P.H. at an ATM machine and then hand money to Anderson.
Cagirici and Pinkney got out of the cab and approached Anderson
and P.H..

Cagirici stopped P.H., searched his pockets, and

removed two ziplock bags containing less than one-half a gram of
cocaine.

Cagirici then handcuffed Anderson and patted him down

for safety.
Approximately five minutes after Cagirici arrested Anderson
and P.H., defendant Marter appeared at the scene.

According to

the FAC, Marter, Cagirici, and Pinkney agreed that Marter would
take credit for the arrests even though he had not made any of
the observations that led to the arrests.
2

At approximately 1:40 a.m., another NYPD officer
transported Anderson to the 10th precinct.

Cagirici searched

Anderson at the 10th precinct and recovered $206.00, but no
drugs.

Anderson was strip searched.

Anderson was arraigned in

New York County Criminal Court on the same day of his arrest and
was released on his own recognizance.
Marter wrote up the arrest paperwork, stating that he
observed a drug sale and that he apprehended Anderson and P.H.
after they attempted to flee.

Marter also told the New York

County District Attorney’s Office (“DA”) that: he observed
Anderson and P.H. talking, Anderson show P.H. something, P.H.
pull out money, Anderson give P.H. two bags of cocaine, and P.H.
put the bags of cocaine in his pocket.

Marter explained that he

and his partner stopped Anderson and P.H. and he recovered two
bags of cocaine from P.H.’s pocket.

Marter also testified in

the grand jury that he had observed a drug transaction involving
Anderson and P.H..

On February 10, 2014, the grand jury

indicted Anderson on one count of criminal sale of a controlled
substance in the third degree in violation of New York Penal Law
(“NYPL”) § 220.39(1).
A jury trial was held on May 14 and May 15, 2015.
Defendant Cagirici testified that he and Marter were working
together on the date of Anderson’s arrest.
that he was in the “cab” with Cagirici.
3

Marter testified

The prosecution did not

call Pinkney or P.H. as witnesses at trial.

The FAC asserts,

without explanation, that Marter’s trial testimony of his
observations was “wholly inconsistent” with his grand jury
testimony.

The jury returned a verdict of not guilty.

Anderson filed the instant action on August 23, 2016.

He

filed the FAC on January 5, 2017, asserting claims under § 1983
for unreasonable search and seizure in violation of the Fourth
Amendment, false arrest and imprisonment, malicious prosecution,
failure to intervene, conspiracy to violate Anderson’s civil
rights, and municipal liability.
On February 14, 2017, the defendants filed a motion to
dismiss the FAC under Rule 12(b)(6), Fed. R. Civ. P.

The motion

became fully submitted on March 23, 2017.
DISCUSSION
When deciding a motion to dismiss under Rule 12(b)(6), a
court must accept all factual allegations in the complaint as
true and draw all reasonable inferences in the non-moving
party’s favor.

Loginovskaya v. Batratchenko, 764 F.3d 266, 269–

70 (2d Cir. 2014).

“To survive a motion to dismiss under Rule

12(b)(6), a complaint must allege sufficient facts which, taken
as true, state a plausible claim for relief.”

Keiler v.

Harlequin Enters. Ltd., 751 F.3d 64, 68 (2d Cir. 2014).
has facial plausibility when the factual content of the
4

A claim

complaint “allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.”
Tongue v. Sanofi, 816 F.3d 199, 209 (2d Cir. 2016) (citation
omitted).

A complaint must do more, however, than offer “naked

assertions devoid of further factual enhancement.”

Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009) (citation omitted).
I. Section 1983 Claim for Unlawful Stop
Anderson alleges that he was stopped and interrogated in
violation of his Fourth Amendment rights. 1

The Fourth Amendment

to the United States Constitution protects the right to be
secure “against unreasonable searches and seizures.”

U.S.

Const. amend. IV.
Under the Fourth Amendment, an officer may conduct a “brief
investigatory detention” -- commonly known as a Terry stop -- as
long as the officer has “reasonable suspicion that the person to
be detained is committing or has committed a criminal offense.”
United States v. Compton, 830 F.3d 55, 61 (2d Cir. 2016)
(citation omitted).

Reasonable suspicion requires more than an

“inchoate suspicion or mere hunch.”

Dancy v. McGinley, 843 F.3d

93, 106 (2d Cir. 2016) (citation omitted).

It requires

Anderson also alleges that he was searched in violation of his
rights under the Fourth Amendment. Anderson’s claim that he was
unreasonably searched is dependent on his false arrest claim,
and he does not contend in opposition to this motion that it
should be separately analyzed.
1

5

“specific and articulable facts which, taken together with
rational inferences from those facts, provide detaining officers
with a particularized and objective basis for suspecting legal
wrongdoing.”

Id. (citation omitted).

The standard is “not

high,” and simply requires “facts sufficient to give rise to a
reasonable suspicion that criminal activity may be afoot.”

Id.

(citation omitted).
Courts consider the “totality of the circumstances
supporting the investigatory stop” in assessing a reasonable
suspicion determination, and “evaluate those circumstances
through the eyes of a reasonable and cautious police officer on
the scene, guided by his experience and training.”
(citation omitted).

Id.

A court’s assessment is properly informed

by “commonsense judgments and inferences about human behavior.”
Id. (citation omitted).

“Conduct that is as consistent with

innocence as with guilt may form the basis for an investigative
stop where there is some indication of possible illicit
activity.”

Id. at 107 (citation omitted).

A valid Terry stop

must be “justified at its inception, and reasonably related in
scope to the circumstances which justified the interference in
the first place.”

Id. (citation omitted).

Reasonable suspicion supported Anderson’s stop and
interrogation.

Anderson and P.H. were not stopped at random --

they were stopped on the basis of their suspicious behavior.
6

At

approximately 1:30 in the morning, P.H. was observed at an ATM
machine and then handing money to Anderson.

Given the time,

location, and circumstances, officers in the Cabaret Unit had
reasonable suspicion as a matter of law to believe that a drug
deal or other illegal activity was underway.
Anderson argues that the mere observation of P.H. handing
Anderson money cannot give rise to a reasonable suspicion of
criminal activity.

This argument fails.

Although P.H.’s hand-

to-hand transfer of money may have reflected innocent activity,
it was also consistent with a drug deal.

Considering the

circumstances of the hand-to-hand transfer, reasonable suspicion
supported the investigatory Terry stop.

Anderson’s Fourth

Amendment claim as it relates to his stop and search is
dismissed.
II.

False Arrest and Imprisonment

A false arrest claim under either federal or New York law
requires a plaintiff to prove 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.”

Liranzo v. United States, 690 F.3d 78, 95 (2d Cir.

2012) (citation omitted).

“To avoid liability for a claim of

false arrest, an arresting officer may demonstrate that either
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(1) he had probable cause for the arrest, or (2) he is protected
from liability because he has qualified immunity.”

Simpson v.

City of New York, 793 F.3d 259, 265 (2d Cir. 2015). 2
Probable cause “is a complete defense to an action for
false arrest brought under New York law or § 1983.”

Ackerson v.

City of White Plains, 702 F.3d 15, 19 (2d Cir. 2012) (citation
omitted).

The probable cause defense to a false arrest claim

requires only that there was probable cause for an arrest; it
does not require that the officer had probable cause to arrest
for each specific offense charged.

Marcavage v. City of New

York, 689 F.3d 98, 109 (2d Cir. 2012).

Accordingly, the defense

prevails if there was probable cause to arrest for any single
offense.

Id. at 109-10.

The arresting officer is “not required

to explore and eliminate every theoretically plausible claim of
innocence before making an arrest.”

Garcia v. Does, 779 F.3d

84, 93 (2d Cir. 2015) (citation omitted).
The requirement of probable cause does not create a high
bar for law enforcement.

An officer has probable cause to

arrest “when he or she has knowledge or reasonably trustworthy
information of facts and circumstances that are sufficient to
warrant a person of reasonable caution in the belief that the
Anderson’s false arrest and false imprisonment allegations are
addressed together. Singer v. Fulton County Sheriff, 63 F.3d
110, 118 (2d Cir. 1995).
2

8

person to be arrested has committed or is committing a crime.”
Id. at 92 (citation omitted).

“Probable cause is determined on

the basis of facts known to the arresting officer at the time of
the arrest.”

Shamir v. City of New York, 804 F.3d 553, 557 (2d

Cir. 2015) (citation omitted).

An arresting officer may rely on

the collective knowledge of the officers involved in an
investigation.
2007).

Zellner v. Summerlin, 494 F.3d 344, 369 (2d Cir.

Given the “practical restraints” on police in the field,

officers are given “correspondingly great” latitude when
ascertaining an individual’s intent for probable cause purposes.
Zalaski v. City of Hartford, 723 F.3d 382, 393 (2d Cir. 2013)
(citation omitted).
Anderson was charged with criminal sale of a controlled
substance in the third degree in violation of NYPL § 220.39(1).
A person is guilty of criminal sale of a controlled substance in
the third degree when he “knowingly and unlawfully” sells “a
narcotic drug.”

N.Y.P.L. § 220.39(1).

Probable cause supported Anderson’s arrest under NYPL §
220.39(1).

It is undisputed that officers observed a hand-to-

hand transfer of money.

After Anderson and P.H. were stopped,

two ziplock bags containing cocaine were removed from P.H.’s
pockets.

Taken together, these facts provided reasonable

grounds to believe that Anderson had sold cocaine to P.H..

9

Because probable cause is a complete defense, Anderson’s false
arrest and false imprisonment claims are dismissed.
III. Malicious Prosecution
To prevail on a claim for malicious prosecution under both
§ 1983 and New York law, a plaintiff must demonstrate “(i) the
commencement or continuation of a criminal proceeding against
her; (ii) the termination of the proceeding in her favor; (iii)
that there was no probable cause for the proceeding; and (iv)
that the proceeding was instituted with malice.”

Mitchell v.

City of New York, 841 F.3d 72, 79 (2d Cir. 2016) (citation
omitted).

“[T]o be actionable under section 1983 there must be

a post-arraignment seizure, the claim being grounded ultimately
on the Fourth Amendment’s prohibition of unreasonable seizures.”
Swartz v. Insogna, 704 F.3d 105, 112 (2d Cir. 2013).
The existence of probable cause is a complete defense to a
malicious prosecution claim.
94–95 (2d Cir. 2013).

Stansbury v. Wertman, 721 F.3d 84,

The probable cause standard in the

malicious prosecution context, however, is “slightly higher”
than the probable cause standard in false arrest cases.
95.

Id. at

Probable cause in the context of a malicious prosecution

claim has been described as “such facts and circumstances as
would lead a reasonably prudent person to believe the plaintiff
guilty.”

Id. (citation omitted).
10

Once probable cause to arrest

has been established, claims of malicious prosecution survive
only if, between the time of the arrest and the initiation of
the prosecution, “the groundless nature of the charges” is made
apparent by the discovery of some “intervening fact.”

Lowth v.

Town of Cheektowaga, 82 F.3d 563, 571 (2d Cir. 1996) (New York
law).

Under New York law, an indictment by a grand jury

“creates a presumption of probable cause that may only be
rebutted by evidence that the indictment was procured by fraud,
perjury, the suppression of evidence or other police conduct
undertaken in bad faith.”

Savino v. City of New York, 331 F.3d

63, 72 (2d Cir. 2003) (citation omitted).
“A § 1983 action, like its state tort analogs, employs the
principle of proximate causation.”
176 F.3d 138, 146 (2d Cir. 1999).

Townes v. City of New York,
When evaluating causation

under § 1983, courts consider the “foreseeability or the scope
of the risk created by the predicate conduct,” and must conclude
that there was “some direct relation between the injury asserted
and the injurious conduct alleged.”

County of Los Angeles v.

Mendez, 137 S.Ct. 1539, 1548-49 (2017).

For this reason, each

alleged constitutional violation must be “analyzed separately.”
Id. at 1547.
Probable cause existed to charge Anderson with violating
NYPL § 220.39(1) and to continue proceedings against him.
Anderson was lawfully arrested after officers observed a hand11

to-hand transfer of money from P.H. to Anderson and cocaine was
recovered from P.H..

On these facts, there was probable cause

to believe that Anderson had sold cocaine to P.H. in violation
of NYPL § 220.39(1) and to commence a prosecution against him.
Anderson’s malicious prosecution claim rests on his
assertion that it was Cagirici and Pinkney -- and not Marter -who made the observations leading to Anderson’s arrest. 3
Anderson alleges that Marter falsely asserted that he had made
the observations that led to Anderson’s prosecution.

Anderson’s

allegations concerning Marter’s testimony do not eliminate the
fact that officers observed a hand-to-hand transfer of money
from P.H. to Anderson and subsequently recovered cocaine from
P.H..

Nor do they otherwise demonstrate the groundless nature

of the charges brought against him.

These allegations against

Marter, while serious, do not themselves describe a violation of
Anderson’s constitutional rights that is directly related to the
injury he asserts in his FAC and are therefore insufficient to
state a malicious prosecution claim.

Since the existence of

probable cause is a complete defense to a claim of malicious
prosecution, Anderson’s malicious prosecution claim is
dismissed.
The FAC states “Defendants Defendant DETECTIVE CARL MCLAUGHLIN
commenced the criminal proceeding against the Plaintiff with
malice.” Because McLaughlin is not mentioned elsewhere in the
FAC or the parties’ briefs, the reference to McLaughlin is
disregarded.
3

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IV.

Failure to Intervene

Anderson next alleges that Pinkney failed to intervene to
prevent Anderson’s unlawful stop, search, arrest, and
prosecution.

“[A]ll law enforcement officials have an

affirmative duty to intervene to protect the constitutional
rights of citizens from infringement by other law enforcement
officers in their presence.”

Terebesi v. Torreso, 764 F.3d 217,

243 (2d Cir. 2014) (citation omitted).

As described above, the

FAC fails to plausibly allege a violation of Anderson’s rights
by other officers.

Accordingly, Anderson’s failure to intervene

claim is dismissed.
V. Conspiracy to Violate Civil Rights
Anderson alleges that Marter, Cagirici, and Pinkney
conspired to deprive him of his constitutional rights by
agreeing that Marter would take credit for Anderson’s arrest. 4
To survive a motion to dismiss on a § 1983 conspiracy claim, a
plaintiff must allege (1) an agreement between two or more state
actors, or “a state actor and a private party; (2) to act in
concert to inflict an unconstitutional injury; and (3) an overt
act done in furtherance of that goal causing damages.”
Pages 16 and 17 of the FAC asserts that Marter, Cagirici, and
Pinkney conspired with each other to deny Anderson his
constitutional rights, including the right to be free from
excessive force. The FAC does not describe when or how Anderson
was subjected to the use of excessive force. This assertion is
therefore disregarded.
4

13

Ciambriello v. County of Nassau, 292 F.3d 307, 324–25 (2d Cir.
2002) (citing Pangburn v. Culbertson, 200 F.3d 65, 72 (2d Cir.
1999) (a conspiracy between two or more state actors)).

A §

1983 conspiracy claim “will stand only insofar as the plaintiff
can prove the sine qua non of a § 1983 action: the violation of
a federal right.”

Singer, 63 F.3d at 119.

Anderson fails to state a § 1983 conspiracy claim because
he has failed to allege a violation of his rights.

The § 1983

conspiracy claim is dismissed.
VI.

Municipal Liability

Municipalities cannot be held liable under § 1983 unless
the plaintiff can prove that the unconstitutional action was
taken pursuant to
a policy statement, ordinance, regulation, or decision
officially adopted and promulgated by that body’s
officers, or pursuant to governmental “custom” even
though such a custom has not received formal approval
through the body’s official decisionmaking channels.
Jeffes v. Barnes, 208 F.3d 49, 57 (2d Cir. 2000) (citation
omitted).

As a result, to state a claim against a city for the

unconstitutional actions of its employees, a plaintiff is
required to plead three elements: “(1) an official policy or
custom that (2) causes the plaintiff to be subjected to (3) a
denial of a constitutional right.”

Wray v. City of New York,

490 F.3d 189, 195 (2d Cir. 2007) (citation omitted).
14

An

“official policy or custom” may be established through the
official acts of city lawmakers or “those whose edicts or acts
may fairly be said to represent official policy,” Monell v.
Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 694
(1978), or by a pattern of misconduct that is “sufficiently
persistent or widespread as to acquire the force of law.”
Reynolds v. Giuliani, 506 F.3d 183, 192 (2d Cir. 2007).
For the reasons set forth above, Anderson’s municipal
liability claim is dismissed to the extent that it is premised
on his unlawful stop, false arrest, malicious prosecution,
failure to intervene, and conspiracy claims.

To the extent that

Anderson alleges a separate municipal liability claim premised
on Marter’s allegedly false testimony, Anderson fails to
plausibly allege that Marter’s actions were taken pursuant to an
official policy or custom or to identify any injury he sustained
from the alleged violation of his rights by the City.
Anderson’s municipal liability claim is dismissed.

15

CONCLUSION
The defendants’ February 14, 2017 motion to dismiss is
granted.

The Clerk of Court is directed to enter judgment for

the defendants.
Dated:

New York, New York
June 23, 2017
__________________________________
DENISE COTE
United States District Judge

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