Moffett v. Town of Poughkeepsie et al

Filing 28

OPINION AND ORDER: Defendants' motion to dismiss Plaintiffs third and fourth causes of action is GRANTED. As Plaintiff has voluntarily dismissed his first cause of action, the only claim that remains in this case is Plaintiffs second cause of ac tion. No claims remain as to Defendants Town of Poughkeepsie or Town of Poughkeepsie Police Department, and they are hereby dismissed from this action. The remaining Defendants are directed to file an answer by September 14, 2012. The patties are directed to appear before the Court for an initial conference on Wednesday, October 17, 2012 at 11:00am. The Clerk of the Court is respectfully directed to terminate the motion (Doc.# 17.) (Signed by Judge Edgardo Ramos on 8/29/2012) (lnl)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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BRIAN MOFFETT,
Plaintiff,
- against TOWN OF POUGHKEEPSIE, TOWN OF POUGHKEEPSIE
POLICE DEPARTMENT, POLICE OFFICER DOUGLAS
HAUSEMAN in his individual and official capacity, POLICE
OFFICER RAYMOND MARINO, in his individual and
official capacity, POLICE OFFICER LASZLO TOTH, in his
individual and official capacity, POLICE OFFICER JOHN
WEIGARD, in his individual and official capacity, POLICE
OFFICER GARY HULBERT, in his individual and official
capacity, POLICE OFFICER JOSEPH LOMBARDI, in his
individual and official capacity, POLICE OFFICER BRIAN
WALSH, in his individual and official capacity, POLICE
OFFICER ROBERT BURGER, in his individual and official
capacity, POLICE OFFICER MELCHIORRE BRUSCHETTI,
in his individual and official capacity, POLICE OFFICER
THOMAS KEITH, in his individual and official capacity,
POLICE OFFICER DAVID MULLEN, in his individual and
official capacity, and POLICE OFFICERS JOHN DOES 1-10,
Defendants.
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Appearances:
Neil VanderWoude
Carmel, New York
Attorney for Plaintiff
David L. Posner
McCabe & Mack LLP
Poughkeepsie, New York
Attorney for Defendants

OPINION AND ORDER
11-CV-6243 (ER)

Ramos, D.J.:
Plaintiff Brian Moffett (“Plaintiff” or “Moffett”) brings this civil rights suit pursuant to
42 U.S.C. §§ 1981, 1983 and 1985, alleging violations of the Fifth and Fourteenth Amendments
to the U.S. Constitution against Defendants Town of Poughkeepsie (the “Town”), Town of
Poughkeepsie Police Department (the “Police Department”) 1, and various named and unnamed
Poughkeepsie Police Department Officers in their individual and official capacities (the
“Officers,” and collectively “Defendants”). Defendants have now moved to dismiss all claims in
the Complaint—except for Plaintiff’s § 1983 excessive force claim—pursuant to Federal Rule of
Civil Procedure 12(b)(6) on the ground that Plaintiff has failed to state any plausible claims of
entitlement to relief.

For the reasons discussed below, Defendants’ motion to dismiss is

GRANTED.
I. Factual Background
On September 13, 2008, Plaintiff had an argument with his girlfriend, Lydia Bachman
(“Bachman”), at her Cornwall, New York residence, which prompted her to call 911. (Compl.
¶¶ 18-19.) Officer Gebert (“Gebert”) of the Town of Cornwall Police Department responded to
her apartment, but when he arrived, Plaintiff was no longer present. (Id. ¶ 22.) Bachman
reported to Gebert that she and the Plaintiff had a domestic dispute. (Affidavit of David Posner
(“Posner Aff.”), Ex. B-2.) While Gebert was present in Bachman’s apartment, Plaintiff initiated
a phone call to Bachman’s mobile phone. (Compl. ¶ 20.) He hung up immediately when he
learned that police were present in her apartment, then sent her a text message and called her
house phone. (Id.) While Bachman spoke to Plaintiff on her house phone, Gebert picked up
1

Under New York law, the Town of Poughkeepsie Police Department is an administrative arm of a municipality and
does not have a separate legal identity. Fanelli v. Town of Harrison, 46 F. Supp. 2d 254, 257 (S.D.N.Y. 1999).
Therefore, a police department is not a suable entity. Here, as Plaintiff has brought suit against both the Town and
the Police Department, all allegations against the Police Department will be construed as against the Town.

2

Bachman’s mobile phone to read the text message she had received from Plaintiff. (Id. ¶ 21.)
Bachman informed Gebert that she did not wish to press charges against Plaintiff, and only
wanted him to stay away from her until he calmed down from their argument. (Id.)
After their phone call, Plaintiff and Bachman did not speak to or see one another for the
rest of that day. (Compl. ¶ 22.) Plaintiff drove to his mother’s house in Poughkeepsie, New
York, to spend the night there. (Id. ¶ 23.) Gebert, after leaving Bachman’s home, contacted the
Poughkeepsie Police Department to inform them of the dispute and that Plaintiff might be on his
way to his mother’s home in Poughkeepsie. (Id. ¶¶ 24, 26.) Gebert stated in his report to the
Poughkeepsie Police Department that Plaintiff made threats in a text message to Bachman to do
“suicide by cop,” and that the police would not have enough firepower to stop him. (Id. ¶ 25;
Posner Aff., Ex. B-2.)
Later that evening, Officers Raymond Marino, Laszlo Toth and John Weigard, of the
Poughkeepsie Police Department, spoke to Plaintiff’s mother, Nancy Fritz (“Fritz”) at her home.
(Compl. ¶ 28.) Officer Marino, a high-school classmate and longtime friend of Plaintiff’s, spoke
to him briefly on the phone, and reported that Plaintiff stated he would not be returning to his
mother’s home, but if the police came after him he would “take them out.” (Id. ¶¶ 28, 30; Posner
Aff., Ex. B-2.) Marino did not inform Plaintiff at that time that he was making a mental health
assessment.

(Compl. ¶ 29.)

He also never directly observed Plaintiff.

(Id.)

Plaintiff

“vehemently” denies that he threatened to “take out” the police in his conversation with Marino.
(Id. ¶ 30.) Poughkeepsie Police Department records reflect that Plaintiff had no known weapons
in his possession. (Posner Aff., Ex. B-2.)
In the early morning hours of September 14, 2008, a police car drove by Fritz’s house
and reported that Plaintiff’s car was in the driveway, but made no mention of any activity or

3

other signs of emergency in the house. (Compl. ¶¶ 32-33.) Several hours later, an armed SWAT
team surrounded the home and awakened Plaintiff and Fritz in an attempt to force Plaintiff to
undergo a psychiatric evaluation. (Id. ¶¶ 34, 42-43.) Plaintiff negotiated with the officers to
have his mother drive him to St. Francis Hospital for the evaluation, but upon leaving the house
and walking to his car, Plaintiff was apprehended by several armed officers. (Id. ¶¶ 35, 38.) He
alleges that he was slammed into the side of the home and the he was subsequently shot in the
chest with TASER darts multiple times. (Id. ¶¶ 39, 40.) He was then handcuffed and transported
to St. Francis Hospital, where he was evaluated and released after the medical staff determined
that he was not a danger to himself or to others. (Id. ¶¶ 42, 43.) Plaintiff alleges that he sustained
several open wounds as a result of the Officers’ conduct and that he suffered from these
traumatic injuries for days after the incident. (Id. ¶¶ 41, 46.)
Approximately two weeks later, on October 1, 2008, Plaintiff received a warrant for
resisting arrest, for which he voluntarily surrendered. (Id. ¶ 44.) He was convicted at trial of
resisting arrest, assessed a fine, and sentenced to three years of probation. (Id. ¶ 45.) Plaintiff
has appealed his conviction. (Id.)
In the instant action, Plaintiff has sued the Defendants as a result of the aforementioned
incident pursuant to 42 U.S.C. §§ 1981, 1983 and 1985. Plaintiff has, however, voluntarily
dismissed his § 1981 claim, and Defendant has moved to dismiss all claims except for Plaintiff’s
§ 1983 excessive force claim. The Court will thus address Plaintiff’s only remaining claims that
are subject to Defendant’s motion to dismiss—the § 1983 municipal liability and false arrest
claims, and the § 1985 conspiracy claim.

4

II. Legal Standard for a Motion to Dismiss
On a motion to dismiss pursuant to Rule 12(b)(6), district courts are required to accept as
true all factual allegations in the complaint and to draw all reasonable inferences in the plaintiff’s
favor. Famous Horse Inc. v. 5th Ave. Photo Inc., 624 F.3d 106, 108 (2d Cir. 2010). However,
this requirement does not apply to legal conclusions, bare assertions or conclusory allegations.
Ashcroft v. Iqbal, 556 U.S. 662, 678, 681 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007)). In order to satisfy the pleading standard set forth in Rule 8 of the Federal
Rules of Civil Procedure, a complaint must contain sufficient factual matter to state a claim to
relief that is plausible on its face. Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 570).
“Threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Id. Accordingly, a plaintiff is required to support its claims with
sufficient factual allegations to show “more than a sheer possibility that a defendant has acted
unlawfully.” Id. “Where a complaint pleads facts that are merely consistent with a defendant’s
liability, it stops short of the line between possibility and plausibility of entitlement to relief.” Id.
(quoting Twombly, 550 U.S. at 557) (internal quotation marks omitted).
In deciding a motion to dismiss, a court may consider facts alleged in documents attached
to the complaint as exhibits or incorporated in the complaint by reference. 2 Falso v. Ablest
Staffing Servs., 328 F. App'x 54, at *1 (2d Cir. 2009) (citing Newman & Schwartz v. Asplundh
Tree Expert Co., 102 F.3d 660, 662 (2d Cir.1996)). Though a plaintiff may plead facts alleged
upon information and belief, “where the belief is based on factual information that makes the
inference of culpability plausible,” Arista Records, LLC v. Doe 3, 604 F.3d 110, 120 (2d Cir.
2

In the instant matter, the Court determines that one of the proffered documents is incorporated in the complaint by
reference: the Town of Poughkeepsie Police Department Blotter Record, which includes the information transmitted
from Officer Gebert to the Poughkeepsie Police Department (Compl. ¶¶ 24-26) and the information Officer Marino
reported after speaking with Plaintiff over the phone (Compl. ¶¶ 28-30), attached to the Affidavit of David Posner as
Exhibit B-2.

5

2010), such allegations must be “‘accompanied by a statement of the facts upon which the belief
is founded.’” Prince v. Madison Square Garden, 427 F. Supp. 2d 372, 385 (S.D.N.Y. 2006); see
also Williams v. Calderoni, No. 11 Civ. 3020(CM), 2012 WL 691832, at *7-8 (S.D.N.Y. Mar. 1,
2012) (finding pleadings on information and belief insufficient where plaintiff pointed to no
information that would render his statements anything more than speculative claims or
conclusory assertions). A complaint that “tenders naked assertions devoid of further factual
enhancement” will not survive a motion to dismiss under Rule 12(b)(6). Iqbal, 556 U.S. at 678
(quoting Twombly, 550 U.S. at 557) (internal quotation marks omitted) (brackets omitted).
III. Municipal Liability Pursuant to 42 U.S.C. § 1983 (“Monell Claim”)
In order to state a claim under 42 U.S.C. § 1983, a plaintiff must allege that: (1)
defendants were state actors or were acting under color of state law at the time of the alleged
wrongful action; and (2) the action deprived plaintiff of a right secured by the Constitution or
federal law. Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999). “Section 1983 is
only a grant of a right of action; the substantive right giving rise to the action must come from
another source.” Singer v. Fulton Cnty. Sheriff, 63 F.3d 110, 119 (2d Cir. 1995) (citing Adickes
v. S.H. Kress & Co., 398 U.S. 144, 150 (1970)). Thus, a civil rights action brought under § 1983
will stand only insofar as the plaintiff can prove an actual violation of his rights under the
Constitution or federal law. Id.
A municipality cannot be held liable under § 1983 for the acts of its employees solely on
a theory of respondeat superior. Monell v. New York City Dep’t of Soc. Servs., 436 U.S. 658,
691 (1978). A § 1983 claim can only be brought against a municipality if the action that is
alleged to be unconstitutional was the result of an official policy or custom. Id. at 690-91. Thus,
a plaintiff must allege that such a municipal policy or custom is responsible for his injury. Bd. of

6

Cnty. Comm’rs of Bryan Cnty. v. Brown, 520 U.S. 397, 403 (1997); see also Connick v.
Thompson, --- U.S. ----, 131 S. Ct. 1350, 1359 (2011) (“A municipality or other local
government may be 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.”) (quoting
Monell, 436 U.S. at 692).
The Second Circuit has established a two prong test for § 1983 claims brought against a
municipality. First, the plaintiff must prove “‘the existence of a municipal policy or custom in
order to show that the municipality took some action that caused his injuries beyond merely
employing the misbehaving [official].’” Johnson v. City of New York, No. 06 CV 09426, 2011
WL 666161, at *3 (S.D.N.Y. Feb. 15, 2011) (quoting Vippolis v. Vill. of Haverstraw, 768 F.2d
40, 44 (2d Cir. 1985)). Second, the plaintiff must establish a causal connection between the
policy or custom and the alleged deprivation of his constitutional rights. Id.
To satisfy the first prong of the test on a motion to dismiss, a plaintiff must allege the
existence of:
(1) a formal policy which is officially endorsed by the municipality; (2) actions
taken or decisions made by government officials responsible for establishing
municipal policies which caused the alleged violation of the plaintiff's civil rights;
(3) a practice so persistent and widespread that it constitutes a custom or usage
and implies the constructive knowledge of policy-making officials, or (4) a failure
by official policy-makers to properly train or supervise subordinates to such an
extent that it amounts to deliberate indifference to the rights of those with whom
municipal employees will come into contact.
Moray v. City of Yonkers, 924 F. Supp. 8, 12 (S.D.N.Y. 1996) (internal citations and quotation
marks omitted); see also Brandon v. City of New York, 705 F. Supp. 2d 261, 276-77 (S.D.N.Y.
2010) (quoting Moray and updating citations to cases). Plaintiff apparently relies on the first of
these alternative bases to establish his Monell claim. Seeking to prove the existence of a policy

7

or custom that caused his constitutional injuries, Plaintiff alleges, upon information and belief,
that:
•

The Town has permitted and tolerated a policy of unjustified, unreasonable, and illegal
uses of force against civilians by Officers of the Police Department;

•

The Police Department has failed to maintain a proper system for investigation and
review of incidents of use of excessive force, such that it has become the policy of the
Town and the Police Department to tolerate improper beatings, illegal arrests, and other
wrongful action;

•

The Town maintains a policy to prepare incident reports that justify TASER use,
regardless of whether such use was, in fact, justified;

•

The Town maintains a policy to omit testimony of non-police officer witnesses and
uncritically rely on the testimony of officers involved in a TASER incident, or to omit
relevant information tending to contradict the statements of police officers involved in
TASER use investigations;

•

The Town maintains a policy for supervisors not to review TASER incident reports for
their accuracy and to allow conclusions to be drawn on the basis of clearly incorrect
information; and

•

The foregoing acts, omissions, systemic flaws, and policies of the Town deprived
Plaintiff of his constitutional rights under the Fifth and Fourteenth Amendements and was
physically harmed.

(Compl. ¶¶ 63-70 (emphasis added).) These allegations—made upon information and belief—
are not supported by factual information that makes “the inference of culpability plausible.”
Arista Records, 604 F.3d at 120. Without offering factual support for his allegations, this Court
cannot “infer more than the mere possibility of misconduct.” Iqbal, 556 U.S. at 678 (citing
Twombly, 550 U.S. at 557.)
First, the Complaint lacks sufficient allegations to show the existence of a formally
recognized policy or rule adopted by the Town. Despite Plaintiff’s repeated suggestion that the
Town maintains various policies that led to his constitutional deprivations, he does not
substantiate these allegations with sufficient facts about his or others’ experiences that, if

8

accepted as true, would indicate the existence of a formal policy.
666161, at *3.

See Johnson, 2011 WL

Indeed, Plaintiff admits that “after a reasonable opportunity for further

investigation or discovery,” the facts alleged will likely gain evidentiary support. (Compl. ¶ 66.)
This the Court cannot permit; a plaintiff will not be afforded discovery when “armed with
nothing more than conclusions.” Iqbal, 556 U.S. at 679.
Nor does Plaintiff satisfy the other possible bases of Monell liability. Plaintiff fails to
allege that any of the Officers have policymaking authority. Only municipal officials who have
“final policymaking authority” with respect to the activities that allegedly violated a plaintiff’s
constitutional rights “may by their actions subject the government to § 1983 liability.” City of St.
Louis v. Praprotnik, 485 U.S. 112, 123 (1988) (plurality opinion); see also Birmingham v.
Ogden, 70 F. Supp. 2d 353, 374 (S.D.N.Y. 1999) (“[T]he decisionmaker must be responsible for
establishing final government policy respecting the particular activity [giving rise to Plaintiff’s
claims] before the municipality can be liable.”) (citing Pembaur v. City of Cincinnati, 475 U.S.
479, 481 (1986)). Plaintiff does not allege that any of the Officers are final policymakers for the
Town nor does the Complaint contain any factual allegations from which such authority could be
inferred.
Plaintiff also fails to sufficiently allege facts that demonstrate a consistent and
widespread practice by the Town. “[A] single incident alleged in a complaint, especially if it
involved only actors below the policy-making level, does not suffice to show a municipal
policy.” DeCarlo v. Fry, 141 F.3d 56, 61 (2d Cir.1998) (quoting Ricciuti v. New York City
Transit Auth., 941 F.2d 119, 123 (2d Cir.1991)). Plaintiff argues in his memorandum that there
is another case currently pending in the Southern District of New York alleging that the Town
maintains a policy or custom that deprives individuals of their constitutional rights. (Pl.’s Mem.

9

at 11.) But nowhere in Plaintiff’s Complaint does such an allegation exist, nor any suggestion of
how the two cases may together reflect the Town’s practice of unconstitutional conduct. This is
simply not enough to give rise to § 1983 municipal liability.
Finally, Plaintiff does not allege any failure to train or supervise, let alone the deliberate
indifference to the constitutional rights of citizens that a plaintiff must show before a
municipality will be held liable on the basis of such a failure. Jenkins v. City of New York, 478
F.3d 76, 94 (2d Cir. 2007). Therefore, Plaintiff has failed to satisfy the first prong of the
municipal liability test and his § 1983 Monell claim against the Town must be dismissed.
IV. Conspiracy Claim Pursuant to 42 U.S.C. § 1985
To state a valid cause of action under § 1985(3) 3, a plaintiff must allege: (1) a conspiracy;
(2) for the purpose of depriving a person or class of persons of the equal protection of the laws,
or the equal privileges and immunities under the laws; (3) an overt act in furtherance of the
conspiracy; and (4) an injury to the plaintiff’s person or property, or a deprivation of a right or
privilege of a citizen of the United States.” Traggis v. St. Barbara’s Greek Orthodox Church,
851 F.2d 584, 586-87 (2d Cir. 1988) (citing Griffin v. Breckenridge, 403 U.S. 88, 103 (1971));
Whitehurst v. 230 Fifth, Inc., 11 Civ. 0767 CM, 2011 WL 3163495, at *5 (S.D.N.Y. July 26,
2011). No explicit agreement need be proven; rather, a plaintiff can establish a conspiracy by
demonstrating a tacit understanding to carry out the prohibited conduct at issue. Cine SK8, Inc.
3

Section 1985 provides, in relevant part, that:
If two or more persons in any State or Territory conspire . . . for the purpose of depriving, either
directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal
privileges and immunities under the laws . . . [and] if one or more persons engaged therein do, or
cause to be done, any act in furtherance of the object of such conspiracy, whereby another is
injured in his person or property, or deprived of having and exercising any right or privilege of a
citizen of the United States, the party so injured or deprived may have an action for the recovery
of damages occasioned by such injury or deprivation, against any one or more of the conspirators.

42 U.S.C. § 1985(3). Although Plaintiff does not indicate in his Complaint that he has alleged a violation pursuant
to subsection (3), it is the only portion of this statute that is conceivably applicable to the facts of this case, and the
only portion of the statute that the parties address in their briefing to the Court.

10

v. Town of Henrietta, 507 F.3d 778, 792 (2d Cir. 2007) (quoting LeBlanc-Sternberg v. Fletcher,
67 F.3d 412, 427 (2d Cir. 1995)). Furthermore, in order to prove liability pursuant to § 1985(3),
the conspirators must be motivated by some racial or otherwise class-based, invidiously
discriminatory animus. Griffin, 403 U.S. at 102; Britt v. Garcia, 457 F.3d 264, 274 (2d Cir.
2006) (quoting Thomas v. Roach, 165 F.3d 137, 146 (2d. Cir. 1999)).
The Supreme Court included the racial or class-based animus requirement in order to
prevent § 1985(3) from being interpreted to provide a broad federal remedy for “all tortious,
conspiratorial interferences with the rights of others” and to limit the statute’s reach to
conspiracies that “aim at a deprivation of the equal enjoyment of rights secured by the law to
all.” Griffin, 403 U.S. at 101-02; see also Jews for Jesus, Inc. v. Jewish Cmty. Relations Council
of New York, Inc., 968 F.2d 286, 291 (2d Cir. 1992). Though § 1985(3) does not offer its
protection to all classes of persons, United Bhd. of Carpenters & Joiners of America, Local 610
v. Scott, 463 U.S. 825, 832–33 (1983) (stating that animus based on the economic views, status,
or activities of a class were beyond the statute's scope), a § 1985 class is by no means limited to
classifications that would receive strict scrutiny under the equal protection clause. People by
Abrams v. 11 Cornwell Co., 695 F.2d 34, 42 (2d Cir.1982), vacated on other grounds, 718 F.2d
22 (2d Cir. 1983).

Accordingly, the Second Circuit has interpreted § 1985(3) to include

protection against conspiracies involving discrimination on the basis of mental illness or
disability. Mazzocchi v. Windsor Owners Corp., 11 Civ. 7913 (LBS), 2012 WL 3288240, at *6
(S.D.N.Y. Aug. 6, 2012) (citing Abrams, 695 F.2d at 43).
Here, Plaintiff has made the following allegations:
•

Defendants conspired to deprive the Plaintiff of his rights and jointly caused deprivation
of such rights by acting in concert to unlawfully assault the Plaintiff;

11

•

Upon information and belief, the Officers knowingly acted in concert with one another to
assault and injure the Plaintiff with numerous applications of a TASER model stun
weapon in the absence of any direct or indirect threat to their safety;

•

Every Officer had complicity in the physical acts perpetrated upon Plaintiff and failed to
intervene in order to prevent the escalation and continuance of the use of force upon
Plaintiff;

•

The Officers, separately and in concert, acted outside the scope of their jurisdiction,
without authorization of law, acted willfully, knowingly, and purposefully with the
specific intent to deny Plaintiff his constitutional rights, and conspired to harm Plaintiff;
and

•

By the foregoing acts, Officers denied Plaintiff due process and equal protection under
the law.

(Compl. ¶¶ 74-78 (emphasis added).) These allegations, however, fail to meet the requirements
for stating a claim under § 1985(3).
First, Plaintiff fails to set forth specific facts in support of his claim that any Defendant
engaged in a conspiracy. Although alleging an explicit agreement is not required, Plaintiff does
not allege facts that would support the inference that there was a tacit understanding to carry out
the prohibited conduct. United States v. Rubin, 844 F.2d 979, 984 (2d Cir. 1988). Plaintiff
merely alleges one communication between the Cornwall Police Department and the
Poughkeepsie Police Department—Gebert’s communication to the Poughkeepsie Police
Department reporting Plaintiff’s domestic dispute with Bachman, stating that Plaintiff threatened
to commit “suicide by cop,” and advising that Plaintiff might be on his way to Fritz’s home in
Poughkeepsie.

(Compl. ¶¶ 24-26.)

This allegation, without more, lacks a “factual basis

supporting a meeting of the minds, such that defendants entered into an agreement, express or
tacit, to achieve the unlawful end.” Webb v. Goord, 340 F.3d 105, 110 (2d Cir. 2003) (internal
citations and quotation marks omitted). Furthermore, to the extent Plaintiff attempts to allege
that various Poughkeepsie Police Department Officers conspired with one another, such a claim

12

would fail due to the “legal impossibility of pleading conspiracy by exclusive reference to
actions of employees of a single corporation.” Farbstein v. Hicksville Pub. Library, 254 F.
App'x 50, 51 (2d Cir. 2007) (citing Herrmann v. Moore, 576 F.2d 453, 459 (2d Cir. 1978)).
Plaintiff’s vague and threadbare allegations of a conspiracy do not suffice, especially in a claim
predicated upon discrimination. Schuler v. Bd. of Educ. of Cent. Islip Union Free Sch. Dist., 96CV-4702 (JG), 2000 WL 134346, at *15 (E.D.N.Y. Feb. 1, 2000).
Second, even assuming, arguendo, that Plaintiff had alleged facts sufficient to establish
the existence of a conspiracy, Plaintiff fails to allege in the Complaint that he is a member of a
protected group or a class. See Puglisi v. Underhill Park Taxpayer Ass'n, 947 F. Supp. 673, 692
(S.D.N.Y. 1996) aff'd, Puglisi v. Underhill Park Taxpayers Assoc., 125 F.3d 844 (2d Cir. 1997).
Furthermore, the Complaint is utterly devoid of any facts that Defendants acted with class-based
discriminatory animus, much less that they acted because of Plaintiff’s mental illness or
disability. See Thomas, 165 F.3d at 147. Although Plaintiff correctly argues in his responsive
papers that discrimination on the basis of mental illness or disability comes within the ambit of §
1985(3) protection, he again fails to assert in his papers that he, in fact, suffers from mental
illness or disability.

(Pl.’s Mem. at 3.)

Moreover, the suggestion that Defendants were

motivated by animus against individuals with mental illness or disability does not appear in
Plaintiff’s responsive papers, either. Setting forth a § 1985 claim that is “couched in terms of
conclusory allegations” simply will not pass muster. Temple of the Lost Sheep, Inc. v. Abrams,
930 F.2d 178, 185 (2d Cir. 1991), cert. denied, 502 U.S. 866 (1991). Having done nothing more,
Plaintiff’s § 1985 conspiracy claim must be dismissed.

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V. False Arrest Claim Pursuant to 42 U.S.C. § 1983
In an apparent overabundance of caution, Defendant has argued that to the extent Plaintiff
makes a false arrest allegation in his Complaint, such a claim must be dismissed. 4 (Def.’s Mem.
at 8.) Plaintiff responds in his opposition papers that there was no probable cause to arrest
Moffett and that his arrest was therefore unlawful. (Pl.’s Mem. at 5.) Despite Plaintiff’s
argument, nowhere in Plaintiff’s Complaint is there a proper allegation for false arrest. Rather,
Plaintiff alleges, upon information and belief, that the Police Department maintains a policy of
tolerating illegal arrests. (Compl. ¶ 65.) Such a threadbare assertion, without accompanying
factual support, does not state a plausible claim to relief and is thus entitled to no weight by this
Court. Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557); e.g. Navarra v. Marlborough
Gallery, Inc., 820 F. Supp. 2d 477, 485 (S.D.N.Y. 2011) (stating that allegations pled upon
information and belief must be accompanied with facts upon which the belief relies).
Plaintiff here is represented by counsel and so is not afforded any special consideration—
as a pro se plaintiff would be—that would allow the Court to liberally construe the allegations in
his complaint. Okoh v. Sullivan, 441 F. App'x 813, 814 (2d Cir. 2011) (“[W]hile pro se
complaints must contain sufficient factual allegations to meet the [Iqbal] plausibility standard,
we afford pro se litigants special solicitude and will interpret their submissions to raise the
strongest arguments that they suggest.”) (quoting Triestman v. Fed. Bureau of Prisons, 470 F.3d
471, 474 (2d Cir. 2006)). But even to the extent that Plaintiff’s false arrest claims could be
construed as properly alleged, dismissal would still be appropriate.

4

Defendant also makes a prophylactic argument concerning a purported abuse of process claim. (Def.’s Mem. at 8.)
To the extent Plaintiff has adequately alleged such a claim, which Defendant disputes, Defendant argues it should be
dismissed. (Id.) Plaintiff does not make any argument in his responsive papers that he, in fact, alleged an abuse of
process claim in the Complaint. The Court therefore assumes that no such claim was alleged.

14

A false arrest claim pursuant to § 1983 is “substantially the same” as a false arrest claim
under New York law, Hygh v. Jacobs, 961 F.2d 359, 366 (2d Cir. 1992), which requires a
plaintiff to demonstrate 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 privileged. Jocks v. Tavernier, 316 F.3d 128, 134-35 (2d Cir. 2003)
(quoting Broughton v. State, 37 N.Y.2d 451, 456, 373 N.Y.S.2d 87, 335 N.E.2d 310 (1975)).
Because the Fourth Amendment right of an individual to be free from unreasonable seizures—
which includes the freedom from arrest without probable cause—governs a false arrest claim
under § 1983, proof of the existence of probable cause is a complete defense. Alvarado v. City of
New York, 453 F. App'x 56, 58 (2d Cir. 2011); Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996).
Probable cause exists when the arresting officers have knowledge or reasonably trustworthy
information of facts and circumstances that are sufficient to warrant a person of reasonable
caution in the belief that the person to be arrested has committed or is committing a crime.
Dunaway v. New York, 442 U.S. 200, 208 n.9 (1979); United States v. Ceballos, 812 F.2d 42, 50
(2d Cir. 1987); Gaston v. City of New York, 11 Civ. 4750 (AJP), 2012 WL 1085804, at *5
(S.D.N.Y. Apr. 2, 2012).
The probable cause requirement extends to cases in which police officers seize a person
for a psychiatric evaluation.

Hoffman v. County of Delaware, 41 F. Supp. 2d 195, 209

(N.D.N.Y. 1999) aff'd, 205 F.3d 1323 (2d Cir. 2000). Specifically, the Fourth Amendment
requires probable cause to believe that the person to be arrested is dangerous to himself or to
others. Green v. City of New York, 465 F.3d 65, 83 (2d Cir. 2006) (citing Glass v. Mayas, 984
F.2d 55, 58 (2d Cir.1993)); accord Monday v. Oullette, 118 F.3d 1099, 1102 (6th Cir. 1997).
Probable cause is also assessed objectively when the seizure occurs for purposes of a psychiatric

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evaluation, and courts must consider the perspective of a reasonable person in the position of the
seizing official, in light of all known facts and circumstances. Estate of Heilbut ex rel. Rangel v.
City of New York, 04 Civ. 4332 (DLC), 2006 WL 2807722, at *4 (S.D.N.Y. Oct. 2, 2006)
(quoting Bryant v. City of New York, 404 F.3d 128, 136 (2d Cir. 2005)); Vallen v. Connelly, 99
Civ. 9947 (SAS), 2004 WL 555698, at *7 (S.D.N.Y. Mar. 19, 2004) aff'd, 185 F. App'x 22 (2d
Cir. 2006).
In the instant matter, accepting all factual allegations in the Complaint as true, see
Famous Horse Inc., 624 F.3d at 108, Defendants had probable cause to believe that Plaintiff was
dangerous to himself or to others. Plaintiff acknowledges that Bachman called the police after
she and Plaintiff had an argument, she reported they had had a domestic dispute, and she wanted
Plaintiff to stay away from her until he calmed down from their argument. (Compl. ¶¶ 18, 19,
21; Posner Aff., Ex. B-2.)

Further, Officer Gebert reported to the Poughkeepsie Police

Department that Plaintiff had threatened to do “suicide by cop” and that the police would not
have enough firepower to stop him. 5 (Compl. ¶ 25; Posner Aff., B-2.) Based on the totality of
the foregoing facts, Defendants had probable cause to believe that Plaintiff posed a danger to
himself or to others.
Plaintiff argues that probable cause did not exist because the Defendants never conducted
an “in-person assessment” before arresting the Plaintiff. (Pl.’s Mem. at 5-7.) Despite Plaintiff’s
arguments to the contrary, however, a seizing officer need not conduct an “in-person
assessment” in order to make a finding of probable cause. Rather, an officer must reasonably
apprehend a substantial chance of dangerous behavior in order to justify a seizure in the mental

5

Plaintiff alleges that Gebert transmitted this message to the Poughkeepsie Police Department “maliciously and
incorrectly.” (Compl. ¶ 25.) However, the information obtained by the Poughkeepsie Police Department is what
gave rise to a finding of probable cause. Even if it is true that he acted “maliciously and incorrectly,” Gebert’s
alleged state of mind is immaterial to the inquiry whether Defendants had probable cause to arrest the Plaintiff.

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