Udechukwu v. City of N.Y.

• Decision Date: 20 September 2018
• Docket Number: 17-CV-2261 (WFK) (RLM)
• Citation: 333 F.Supp.3d 161
• Parties: Anselm UDECHUKWU, Plaintiff, v. The CITY OF NEW YORK, Gamestop Corp., Brittany Long, Police Officer Delsano, and Police Officer Christopher Doll, Defendants.
• Court: U.S. District Court — Eastern District of New York

333 F.Supp.3d 161

Anselm UDECHUKWU, Plaintiff,

v.The CITY OF NEW YORK, Gamestop Corp., Brittany Long, Police Officer Delsano, and Police Officer Christopher Doll, Defendants.

17-CV-2261 (WFK) (RLM)

United States District Court, E.D. New York.

Signed September 20, 2018

Filed September 21, 2018

Anthony C. Ofodile, Brooklyn, NY, for Plaintiff.

Mark S. Mulholland, Ross J. Kartez, Ruskin Moscou Faltischek, P.C., Uniondale, NY, Nana Kwame Sarpong, Ariel Shaun Lichterman, New York City Law Department, New York, NY, for Defendants.

DECISION & ORDER

WILLIAM F. KUNTZ, II, United States District Judge:

Anselem Udechukwu ("Plaintiff") brings this action pursuant to 42 U.S.C. § 1983 and New York law against the City of New York (the "City") and New York City Police Department ("NYPD") Officers Delsano and Christopher Doll (together, the "City Defendants"), and Gamestop Corp. and Brittany Long (together, the "Gamestop Defendants"). Plaintiff seeks damages for alleged violations of his constitutional rights guaranteed by the First, Fourth, and Fourteenth Amendments of the United States Constitution, specifically iterated as claims for: (1) false arrest and false imprisonment,¹ (2) malicious prosecution, (3) retaliation for exercising his right to free speech, (4) conspiracy, and (5) failure to intervene. Plaintiff also alleges a claim for defamation under New York common law against defendant Long. Plaintiff alleges defendants the City and Gamestop are liable for their employees' actions under the common law doctrine of respondeat superior . The City Defendants and the Gamestop Defendants now, move to dismiss the action under Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons stated below, the City Defendants' motion to dismiss is GRANTED, and the Gamestop Defendants' motion to dismiss is GRANTED.

BACKGROUND

Plaintiff alleges on April 15, 2016, he went to the video game and computer electronics store, Gamestop, located at 1459 Rockaway Parkway, in Brooklyn, New York, and purchased a game card. Compl. ¶¶ 12-13, ECF No. 1. When Plaintiff arrived at home with the game card, his son told him that he got the wrong card. Id. ¶ 13. Plaintiff returned to Gamestop the following day to exchange the game card, but defendant Brittany Long, the store manager of the Gamestop, id. ¶ 9, refused to let Plaintiff exchange or return the card. Id. ¶ 14. Gamestop purportedly has a policy allowing customers to return merchandise within 30 days of purchase. Id. Plaintiff demanded to speak to the store manager, and Long informed Plaintiff she was the store manager. Id. ¶ 15. Plaintiff then demanded to speak to Long's supervisor, and Long responded that she was the supervisor. Id. ¶ 16. Plaintiff, unsure of what to do next, called his girlfriend for advice. Id. ¶ 18. Long overheard Plaintiff's girlfriend advising Plaintiff to call the police, and Long called the police first. Id. ¶ 19.

When NYPD Officers Doll and Delsano arrived, they asked Plaintiff to leave the store and Plaintiff began to comply. Id. ¶ 20. On his way out, Plaintiff told the officers and Long that "it was a fraud to take a customer's money without refund or exchange of the item," and further stated: " ‘Mark my face, I will call the FBI on this store.’ " Id. ¶¶ 21-22. After this statement, Officer Doll restrained Plaintiff's movement by placing his hands behind his back, and asked Long, "Is your life threatened?" Id. ¶ 23. Long responded "yes," and confirmed she would be pressing charges. Id. ¶¶ 23-24. Officer Doll then placed handcuffs on Plaintiff. Id. ¶ 24. Based on the information provided by Long, Plaintiff was arrested and charged with menacing in the third degree, trespass, and harassment in the second degree. Id. ¶¶ 26-27. The charges against Plaintiff were dismissed on July 27, 2016. Id. ¶ 28.

Plaintiff commenced this action on April 14, 2017. The City Defendants and the Gamestop Defendants are now moving to dismiss the Complaint in its entirety for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure.²

LEGAL STANDARD

To survive a motion to dismiss under Rule 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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). "A claim has 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. A complaint must be dismissed where, as a matter of law, "the allegations in [the] complaint, however true, could not raise a claim of entitlement to relief." Twombly , 550 U.S. at 558, 127 S.Ct. 1955. Accordingly, in deciding this motion, this Court must "assess the legal feasibility of the complaint, not ... assay the weight of the evidence which might be offered in support thereof." DiFolco v. MSNBC Cable LLC. , 622 F.3d 104, 113 (2d Cir. 2010) (internal citation and quotation marks omitted). In so doing, the Court must "accept[ ] all factual allegations in the complaint as true, and draw[ ] all reasonable inferences in the plaintiffs favor," Chambers v. Time Warner, Inc. , 282 F.3d 147, 152 (2d Cir. 2002), but is "not bound to accept as true a legal conclusion couched as a factual allegation," Pension Ben. Guar. Corp. ex rel. St. Vincent Catholic Med. Centers Ret. Plan v. Morgan Stanley Inv. Mgmt. Inc. , 712 F.3d 705, 717 (2d Cir. 2013) (citation and internal quotation marks omitted).

DISCUSSION

I. Claims Against City Defendants

Plaintiff alleges the following claims against Officers Doll and Delsano: (1) false arrest and false imprisonment, (2) malicious prosecution, (3) retaliation for exercising his First Amendment right to free speech, (4) conspiracy, and (5) failure to intervene (only against Officer Delsano). Compl. ¶¶ 31-45, 50-52. Plaintiff also alleges the City is vicariously liable for the actions of Officers Doll and Delsano under the theory of respondeat superior. Id. ¶¶ 48-49. For the reasons that follow, the City Defendants' motion to dismiss is granted in its entirety.

A. False Arrest/Imprisonment, Malicious Prosecution, and Failure to Intervene

It is well-settled that in an action under 42 U.S.C. § 1983, where probable cause is shown to have existed for a challenged arrest, a law officer cannot be found to have violated the arrestee's constitutional rights as a consequence of that arrest. See Pierson v. Ray , 386 U.S. 547, 557, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967). This conclusion follows from the fact that, under New York law, "probable cause serves as a complete defense to the charges of false arrest and malicious prosecution."³ Graebe v. Falcetta , 726 F.Supp. 36, 38 (E.D.N.Y. 1989) (Wexler, J.) (citations omitted); see Zanghi v. Incorporated Village of Old Brookville , 752 F.2d 42, 45 (2d Cir. 1985) ("It is abundantly clear that a finding of probable cause will defeat state tort claims for false arrest, false imprisonment and malicious prosecution." (citing Feinberg v. Saks & Co. , 83 A.D.2d 952, 443 N.Y.S.2d 26, 27 (2d Dep't 1981), modified on other grounds , 56 N.Y.2d 206, 451 N.Y.S.2d 677, 436 N.E.2d 1279 (1982) ) ).

"In general, probable cause to arrest exists when the 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." Weyant v. Okst , 101 F.3d 845, 852 (2d. Cir. 1996) (citations omitted); United States v. Fisher , 702 F.2d 372, 375 (2d Cir. 1983) (citations omitted). "Whether probable cause exists depends upon the reasonable conclusion to be drawn from the facts known to the arresting officer at the time of the arrest." Devenpeck v. Alford , 543 U.S. 146, 152, 125 S.Ct. 588, 160 L.Ed.2d 537 (2004) (citing Maryland v. Pringle , 540 U.S. 366, 371, 124 S.Ct. 795, 157 L.Ed.2d 769 (2003) ). The arresting officer "need only possess enough information to convince a reasonable person that the arrestee committed an offense, and if he does, then he is immune from a subsequent claim of false arrest" Brown v. City of New York , 201 F.Supp.3d 328, 331 (E.D.N.Y. 2016) (Glasser, J.) (citations omitted).

Generally, "[a]n arresting officer advised of a crime by a person who claims to be the victim ... has probable cause to effect an arrest absent circumstances that raise doubts as to the victim's veracity." Singer v. Fulton Cty. Sheriff , 63 F.3d 110, 119 (2d Cir. 1995). Further, "[t]he veracity of citizen complaints who are the victims of the very crime they report to the police is assumed." Miloslavsky v. AES Eng'ring Soc'y , 808 F.Supp. 351, 355 (S.D.N.Y. 1992) (Sweet, J), aff'd , 993 F.2d 1534 (2d Cir. 1993) (citation omitted).

Plaintiff was arrested and charged with menacing in the third degree, trespass, and harassment in the second degree. Compl. ¶¶ 26-27. N.Y. Penal Law § 120.15 provides, "[a] person is guilty of menacing in the third degree when, by physical menace, he or she intentionally places or attempts to place another person in fear of death, imminent serious physical injury or physical injury." Under New York law, "[a] person is guilty of trespass when he knowingly enters or remains unlawfully in or upon premises." N.Y. Penal Law § 140.05. "A person is guilty of Harassment in the Second Degree when, with intent to harass, annoy or alarm another person: 1. He or she strikes, shoves, kicks or otherwise subjects such other person to physical contact, or attempts or threatens to do the same; or 2. He or she follows a person in or about a public place or places; or 3. He or she engages in a course of conduct or repeatedly commits acts which alarm or seriously annoy such other person and which serve no legitimate purpose." N.Y. Penal Law § 240.26.

In making the...