Blackwood v. Police Officers at White Plains et al
OPINION & ORDER re: 43 MOTION to Amend/Correct to dismiss the second amended complaint. filed by Jose Ravina. Based on the foregoing, Defendant Ravina's motion to dismiss is GRANTED and Plaintiff's SAC is dismissed with prejudice, as Plaintiff has had ample opportunity to allege cognizable claims. The Clerk of the Court is respectfully requested to terminate the motion at ECF No. 43 and to terminate the action as against Defendant Ravina. This constitutes the Court's Opinion and Order. SO ORDERED. (Signed by Judge Nelson Stephen Roman on 2/8/2018) Copies Mailed By Chambers. (rj)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
F!LED: 2-I tf f'2o1 fr
-againstOFFICER ANTHONY OMORVAN, OFFICER
HINCKLEY, and JOSE RAVINA,
OPINION & ORDER
NELSONS. ROMAN, United States District Judge
Plaintiff Phillip Blackwood ("Plaintiff' or "Blackwood") commenced this action, pursuant
to 42 U.S.C. § I 983, against Defendants, White Plains Police Depmtment officers Anthony
Omorvan ("Omorvan") and Tyler Hinckley ("Hinckley") and White Plains Hospital ("WPH")
Security Officer Jose Ravina ("Ravina"). Now before the Court is Defendant Ravina's motion to
dismiss the Second Amended Complaint ("SAC") pursuant to Fed. R. Civ. P. 12(b)(6) as against
him. For the following reasons, Defendant Ravina's motion is GRANTED.
Plaintiff commenced this action on or about January 28, 2016 by filing the Initial
Complaint. (ECF No. 2.) The Initial Complaint asse1ted claims against White Plains ("WP")
Police Officers, Westchester County, Judge Barbara Zambelli, and the DA (presumably the
Westchester District Attorney). Plaintiffs claims involved an incident which purportedly occurred
on or about June 7, 2014 at the White Plains Hospital ("WPH"). On April 25, 2016, Plaintiff filed
an Amended Complaint wherein he asse1ted similar claims against the WP Police Officers and
asserted new claims against the WP Legal Aid Society. (ECF No. 7.) Neither iteration of the
complaint identified Defendant Ravina as a defendant directly or indirectly by use of the place
Chambers ofNclson S. Roman, U.S.D.J.
holder “John Doe Security Guard.” On August 24, 2016, Plaintiff filed the SAC wherein he
asserted new claims against Defendant Ravina, formerly a security officer at the WPH, and WP
Police Officers Omorvan and Hinckley. (ECF No. 9, “SAC”.) The SAC is deemed the operative
In the SAC, Plaintiff alleges that on June 7, 2014, while located in the WPH, Defendant
Ravina, a security officer, approached Plaintiff and directed or ordered him into “the room.” (See
SAC at 4.) Immediately thereafter, Defendant Ravina shoved him in the chest, provoking him.
(Id.) Plaintiff asserts he then encountered two WP Police Officers. (Id.) After describing his
interaction with the police, he additionally describes Defendant Ravina as the security guard who
“put his hands on” Plaintiff. (Id.) No other acts are attributed to Defendant Ravina. (See generally
id.) In the pleading, Plaintiff again suggested that following the incident, he was arrested,
prosecuted, and convicted of a felony. 1 (Id. at 5.)
Motion to Dismiss Legal Standard
On a motion to dismiss under Fed. R. Civ. P. 12(b)(6), dismissal is proper unless the
complaint “contain[s] 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)). When there are well-pleaded factual allegations in the
complaint, “a court should assume their veracity and then determine whether they plausibly give
rise to an entitlement to relief.” Id. at 679. “Although for the purposes of a motion to dismiss [a
court] must take all of the factual allegations in the complaint as true, [it is] ‘not bound to accept
as true a legal conclusion couched as a factual allegation.’” Id. (quoting Twombly, 550 U.S. at
Plaintiff alleges “[m]y life is ruined, I will not be able to get a job with another felony.” This suggests to the Court
that he was arrested, prosecuted, and convicted as a result of the incident.
555). It is not necessary for the complaint to assert “detailed factual allegations,” but it must allege
“more than labels and conclusions.” Twombly, 550 U.S at 555. The facts in the complaint “must
be enough to raise a right to relief above the speculative level on the assumption that all the
allegations in the complaint are true.” Id.
“Pro se complaints are held to less stringent standards than those drafted by lawyers, even
following Twombly and Iqbal.” Thomas v. Westchester, No. 12CV6718(CS), 2013 WL 3357171,
at *2 (S.D.N.Y. July 3, 2013). The court should read pro se complaints “‘to raise the strongest
arguments that they suggest.’” Kevilly v. New York, 410 F. App’x 371, 374 (2d Cir. 2010)
(summary order) (quoting Brownell v. Krom, 446 F.3d 305, 310 (2d Cir. 2006)); see also Harris
v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (“[E]ven after Twombly, though, we remain obligated to
construe a pro se complaint liberally.”). “However, even pro se plaintiffs asserting civil rights
claims cannot withstand a motion to dismiss unless their pleadings contain factual allegations
sufficient to raise a right to relief above the speculative level.” Jackson v. N.Y.S. Dep’t of Labor,
709 F. Supp. 2d 218, 224 (S.D.N.Y. 2010) (quoting Twombly, 550 U.S. at 555) (internal quotation
marks omitted). Dismissal is justified, therefore, where “the complaint lacks an allegation
regarding an element necessary to obtain relief,” and therefore, the “duty to liberally construe a
plaintiff’s complaint [is not] the equivalent of a duty to re-write it.” Geldzahler v. New York
Medical College, 663 F. Supp. 2d 379, 387 (S.D.N.Y. 2009) (internal citations and alterations
“To recover under § 1983 [Plaintiff] must prove two separate and independent elements:
first, that [Defendant] subjected her to the deprivation of a right ‘secured by the Constitution and
laws’; and, second, that while doing so [Defendant] acted under color of a statute, ordinance,
regulation, custom, or usage of the [state].” Adickes v. S.H. Kress & Co, 398 U.S. 144, 188-89
(1970). Reading the Complaint liberally, as the Court is required to do, it cannot be said that
Defendant Ravina was acting under color of law. A private security officer’s detention of an
alleged perpetrator of a crime which results in the perpetrator’s arrest has been deemed a situation
in which a security guard is not “acting as an agent or instrument of the government,” and thus not
acting under color of law. See United States v. Abney, No. 03CR60(JGK), 2003 WL 22047842, at
*5 (S.D.N.Y. Aug. 29, 2003), aff'd 109 F. App'x 472 (2d Cir. 2004).
“For a private individual or entity to be deemed to have been acting under color of state
law the allegedly unconstitutional conduct of which plaintiff complains must be ‘fairly attributable
to the state.’” Bishop v. Toys “R” Us–NY LLC, 414 F. Supp. 2d 385, 396 (S.D.N.Y. 2006) (quoting
Tancredi v. Metro. Life Ins. Co., 316 F.3d 308, 312 (2d Cir. 2003)) (internal quotations omitted),
cert. denied 539 U.S. 942 (2003). The only conduct Defendant Ravina is alleged to have
committed is shoving Plaintiff. (See SAC at 4.) The SAC is devoid of any allegation wherein the
government participated in Defendant Ravina’s conduct or that the government was controlling
Defendant Ravina’s conduct. Accordingly, Plaintiff fails to assert a plausible Section 1983 claim
To the extent Plaintiff asserts causes of action for false arrest, malicious prosecution,
assault and battery, the complaint also fails.
A. False Arrest
“The existence of probable cause to arrest constitutes justification and ‘is a complete
defense to an action for false arrest,’ whether that action is brought under state law or under §
1983.” Jenkins v. City of New York, 478 F.3d 76, 84 (2d Cir. 2007) (quoting Weyant v. Okst, 101
F.3d 845, 852 (2d Cir. 1996)). Here, Plaintiff’s SAC indicates that he was arrested, prosecuted
and convicted. Therefore, there was probable cause to effectuate the arrest.
B. Malicious Prosecution
“In order to prevail on a § 1983 claim against a state actor for malicious prosecution, a
plaintiff must show a violation of his rights under the Fourth Amendment . . . and establish the
elements of a malicious prosecution claim under state law.” Fulton v. Robinson, 289 F.3d 188,
195 (2d Cir. 2002) (internal citations omitted). “To state a claim under New York law for the tort
of malicious prosecution, a plaintiff must show: (1) that the defendant commenced or continued a
criminal proceeding against him; (2) that the proceeding was terminated in the plaintiff's favor; (3)
that there was no probable cause for the proceeding; and (4) that the proceeding was instituted
with malice.” Kinzer v. Jackson, 316 F.3d 139, 143 (2d Cir. 2003). “Probable cause is an absolute
defense to a malicious prosecution claim under New York law.” Kilburn v. Village of Saranac
Lake, 413 F. App’x 362, 364 (2d Cir. 2011). Having previously determined the existence of
probable cause, the claim must be dismissed.
C. Assault and Battery
An assault is defined as “an intentional placing of another person in fear of imminent
harmful or offensive contact. United Nat. Ins. Co. v. Waterfront New York Realty Corp., 994 F.2d
105, 108 (2d Cir. 1993). A battery is defined as “an intentional wrongful physical contact with
another person without consent.” United Nat. Ins. Co. v. Waterfront New York Realty Corp., 994
F.2d 105, 108 (2d Cir. 1993) (citing Hernandez v. Lattimore, 612 F.2d 61, 67 (2d Cir. 1979))
(internal citations omitted). In New York, the statute of limitations for assault and battery is one
year. 2 See C.P.L.R. § 215(3). Plaintiff’s allegations of misconduct occurred on June 7, 2014. The
Initial Complaint was filed on January 28, 2016 and the SAC was filed on August 24, 2016. It is
The statute of limitations for malicious prosecution is also one year. See C.P.L.R. § 215(3).
in the SAC that Plaintiff, for the first time, asserts claims against Defendant Ravina. (Compare
ECF Nos. 2,7 with SAC.) Since more than one year lapsed from the date of the incident to the
filing of the Initial Complaint, alone, (and even longer until the filing of the SAC), the claims for
assault and battery must be dismissed as time barred.
This Court need not consider whether the relation-back doctrine applies, since, to the extent
Plaintiff asserted state law claims for assault and battery in the Initial Complaint, they were
asse1ted well outside of the prescribed statute oflimitations period, approximately 18 months after
the alleged illegal conduct occurred. (See ECF No. 2.) Further, Defendant Ravina was not even
identified as a Defendant, even as a John Doe, until the SAC was filed on August 24, 2016, over
two years after the alleged illegal conduct occurred.
Based on the foregoing, Defendant Ravina's motion to dismiss is GRANTED and
Plaintiffs SAC is dismissed with prejudice, as Plaintiff has had ample opp01tunity to allege
cognizable claims. The Clerk of the Court is respectfully requested to terminate the motion at ECF
No. 43 and to terminate the action as against Defendant Ravina. This constitutes the Comt's
Opinion and Order.
Dated: Februaryi, 2018
White Plains, New York
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?