Sherman v. City of N.Y.
| Decision Date | 16 May 2019 |
| Docket Number | 18-cv-5359 (ARR) (SJB) |
| Parties | AVROHAM SHERMAN, Plaintiff, v. THE CITY OF NEW YORK, et al., Defendants. |
| Court | U.S. District Court — Eastern District of New York |
NOT FOR ELECTRONIC OR PRINT PUBLICATION
Plaintiff, Avroham Sherman, brings this civil-rights action under 42 U.S.C. § 1983 and New York state law against the City of New York ("the City"), Officer Antonio Hernandez, Officer Nyaca Stewart, Officer Carlyle Jean Joseph, several unnamed employees of the New York City Police Department ("NYPD"), and Joshua Eilenberg.1 Plaintiff's claims arise out of his October 2017 arrest and prosecution for grand larceny, petit larceny, and criminal possession of stolen property. This opinion and order resolves two motions: (1) pro se defendant Joshua Eilenberg's 12(b)(6) motion to dismiss, and (2) the City defendants' 12(c) motion for judgment on the pleadings, which I have chosen to review as a 12(b)(6) motion for failure to state a claim. For the following reasons, both motions are granted in part and denied in part.
On October 5, 2017, plaintiff agreed to loan some money to a recent acquaintance, Joshua Eilenberg. Am. Compl. ¶ 24, ECF No. 14. The two men arranged for plaintiff to give Eilenberg $160, and, in exchange, Eilenberg agreed to let plaintiff keep his iPhone 7 as collateral until theloan was repaid. Id. ¶¶ 24-25. The details of this transaction were negotiated over the course of several phone calls, which plaintiff recorded on his own cell phone. Id. ¶ 25.
Not long after the deal was consummated, Eilenberg started to regret it. Id. ¶ 26. Though he was not able to repay the loan, he "began to demand that Mr. Sherman return his iPhone 7." Id. Plaintiff offered to let Eilenberg use his iPhone to conduct any urgent business, and he suggested alternative forms of collateral that Eilenberg could provide in exchange for the loan. Id. ¶ 27. None of these proposals satisfied Eilenberg, however, and Eilenberg "began to threaten Mr. Sherman," warning him that it would get "very ugly" for plaintiff if he continued to refuse to give the phone back. Id. ¶ 28 (emphasis omitted). Eilenberg told plaintiff that he would use his "connections" to have plaintiff arrested, id. ¶¶ 28-29, and he warned plaintiff that he would soon be "sitting in jail, in central booking," id. ¶ 29. Plaintiff "dismissed [these] threat[s] as implausible, confid[e]nt that even if Eilenberg followed through, [the police] would . . . see that Eilenberg's account was neither reliable nor truthful." Id. ¶ 30.
On the evening of October 6, 2017, plaintiff received a call while he was attending a friend's engagement party. Id. ¶ 31. The caller, Officer Antonio Hernandez, informed plaintiff that he was an officer with the 66th police precinct and that he was standing beside "Joshua," who "had just alleged that Sherman had stolen his i[P]hone 7." Id. ¶ 31; see also Jaffe Decl. Ex. E, 00:00-00:25, ECF No. 34-5. Plaintiff recorded this call on his cell phone.2 Am. Compl. ¶ 31. Officer Hernandez told plaintiff that he would be arrested if he did not report to the precinct. Id. ¶¶ 32-33, 36 (quoting Officer Hernandez as stating, "If I have to do this police report that you stole this cellphone, detectives will becoming out to your house."); see also Jaffe Decl. Ex. E, 2:05-13. Plaintiff admitted that he was in possession of Eilenberg's cell phone, but he explained that he had the phone only because of the loan agreement he had made with Eilenberg. Am. Compl. ¶ 34; see also Jaffe Decl. Ex. E, 00:31-50. He told Officer Hernandez that he had recordings of the loan agreement conversations and he offered to provide them to the police department to prove that he had not stolen the phone. Am Compl. ¶ 34. Officer Hernandez declined to receive the recordings by email or text, however, and continued to demand that plaintiff "leave the engagement party immediately and deliver the phone to the precinct."3 Id. ¶ 35; see also Jaffe Decl. Ex. E, 2:15-31. When plaintiff "asked how he was supposed to recover the money he had loaned [Eilenberg] if he simply returned the phone to Eilenberg without repayment," Officer Hernandez told plaintiff that he could pursue this claim in "civil court." Am. Compl. ¶ 35; Jaffe Decl. Ex. E, 1:40-46. Plaintiff continued to object to Officer Hernandez's demands that he appear at the station that night. Am. Compl. ¶ 36. Hernandez grew increasingly frustrated, eventually telling plaintiff, Id.; see also Jaffe Decl. Ex. E, 2:25-45.
Plaintiff did not leave the engagement party on the night of October 6 to report to the police station, and it does not seem that he heard anything more from the officers or Eilenberg that night. The next day, on October 7, plaintiff was still "shaken by the Hernandez call," so he decided to call the police himself "to report what had happened." Am. Compl. ¶ 37. At approximately 6:45 P.M., two officers visited plaintiff at his home: Officer Carlyle Jean Joseph and Officer Nyaca Stewart. Id. ¶ 38. Plaintiff explained that Eilenberg was seeking to avoid the terms of the loanagreement and that Officer Hernandez had called him the day before to report Eilenberg's false accusation of theft. Id. ¶¶ 39-40. "When the officers heard the name 'Hernandez,' [their] interest abruptly intensified." Id. ¶ 39. They proceeded to call Officer Hernandez and Eilenberg to learn more about the allegations. Id. ¶ 40. During their call with Eilenberg, Officer Jean Joseph and Officer Stewart repeatedly asked him to confirm that he was telling the truth about plaintiff's theft, and they warned him that he could get in trouble if he lied. Id. After they finished the phone calls, the officers placed plaintiff under arrest. Id. ¶ 41. As he had during his phone call with Officer Hernandez, plaintiff implored Officers Stewart and Jean Joseph to listen to the audio recordings that memorialized his loan agreement with Eilenberg. Id. The officers refused, even as plaintiff explained that the recordings were "readily accessible[] and on his person." Id. Later, at the police precinct, plaintiff "continued to ask any officer he saw to listen to . . . [the] demonstrable, readily available, recorded proof that Eilenberg had offered his iPhone 7 as collateral for a loan." Id. ¶ 44. All of the officers he encountered refused to listen to the recordings, telling him that he "should save [his pleas of innocence] for the judge." Id.
Plaintiff was taken to central booking and kept overnight. Id. ¶ 45. He "suffered severe emotional distress," experiencing sleep deprivation and physical threats. Id. He was charged with grand larceny in the fourth degree, petit larceny, and criminal possession of stolen property in the fifth degree. Id. ¶ 47. Plaintiff was released on his own recognizance, and all charges against him were dismissed soon thereafter. Id.
Plaintiff filed suit on September 24, 2018, see Compl., ECF No. 1, and he later amended his complaint on November 29, 2018, see Am. Compl. His amended complaint asserts fifteen causes of action against the defendants. See id. ¶¶ 51-164. The bulk of his claims are federal causes of action brought pursuant to 42 U.S.C. § 1983: false arrest, malicious prosecution, denial of theright to a fair trial, malicious abuse of process, First Amendment retaliation, conspiracy, failure to intervene, and Monell liability against the City. See id. ¶¶ 51-116. Plaintiff's complaint also asserts several New York state-law claims, including false arrest and malicious prosecution against all of the defendants, see id. ¶¶ 122-136, defamation, intentional infliction of emotional distress, and negligent infliction of emotional distress against Eilenberg, see id. ¶¶ 137-152, and negligence and negligent hiring, retention, and supervision against the City defendants, id. ¶¶ 153-164.4
On November 16, 2018, Eilenberg moved to dismiss all claims against him. See First Eilenberg Br., ECF No. 12. He later renewed his motion to dismiss after plaintiff amended his complaint. See Second Eilenberg Br., ECF No. 18. The City defendants answered plaintiff's amended complaint on December 13, 2018 and January 2, 2019.5 On February 21, 2019, the City defendants filed a letter requesting a pre-motion conference. See Letter, ECF No. 28. They informed the court that they wished to file a motion for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). Id. I provided the parties with a briefing schedule and informed them that I would rule on both motions at the same time. See Order, Mar. 4, 2019. Both motions have now been fully-briefed since April 26, 2019. See City Defs.' Reply, ECF No. 39.
As stated above, there are two motions currently before the court: Eilenberg's 12(b)(6) motion for failure to state a claim, and the City defendants' 12(c) motion for judgment on the pleadings. The City defendants answered plaintiff's amended complaint before they filed the instant motion, and, therefore, their motion was filed as a 12(c) motion for judgment on thepleadings. However, they acknowledge that this procedural basis for dismissal of the claims against them is technically premature. See City Defs.' Br. 3, ECF No. 35. Indeed, because Eilenberg has not yet answered plaintiff's amended complaint and his motion to dismiss was still pending at the time that the City defendants filed their motion, the pleadings are not yet "closed"—a prerequisite for the filing of a 12(c) motion. See, e.g., Johnson v. Myers, No. 10-CV-1964 (JS)(WDW), 2011 WL 709481, at *1 (E.D.N.Y. Feb. 18, 2011) (). At the same time, a 12(b)(6) motion is also technically untimely because a 12(b)(6) motion must be brought "before pleading if a responsive pleading is allowed." Id. at *1 (citing Fed. R. Civ. P. 12(b)).
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