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LANDESMAN v. CITY OF NEW YORK

October 21, 1980

Mark LANDESMAN and Barbara Landesman, Plaintiffs,
v.
CITY OF NEW YORK, Edward Koch, Robert McGuire, Milton Schwartz, Irving Levitan, Edward Roge, Joseph Gargan, George Gallagher, Salvatore Martallaro, and Paul Fried, Defendants



The opinion of the court was delivered by: NEAHER

MEMORANDUM AND ORDER

This civil rights action brought by a husband and wife under 42 U.S.C. ยงยง 1983, 1985 and 1986, as well as under a variety of State tort theories, arises out of an incident at a police precinct in Boro Park, Brooklyn, following a demonstration protesting the alleged lack of police protection after the felony murder of an area resident. Mark Landesman (hereafter "plaintiff") alleges basically that, on or about January 8, 1979, defendants in bad faith and without reasonable belief that he had committed any crime or violated any law of the State of New York caused him to be arrested and prosecuted for assaults on police officers Fried and Martallaro, named in the complaint as defendants. Plaintiffs seek damages against defendants in the amount of $ 2,200,000. The action is now before the court on motion of defendants City of New York, Edward Koch and Robert McGuire ("movants") to dismiss the complaint for lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted. *fn1" Rules 12(b)(1) and (6), F.R.Civ.P. For the following brief reasons, the motion is granted.

 As this court only recently had occasion to note in another civil rights action,

 
"the issue here is not whether plaintiffs will ultimately prevail but whether they are entitled to offer evidence in support of their claims. Scheuer v. Rhodes, 416 U.S. 232, 236 (94 S. Ct. 1683, 1686, 40 L. Ed. 2d 90) (1974); Lipsky v. Com. United Corp., 551 F.2d 887, 895 (2d Cir. 1976). Therefore, all well pleaded material allegations will be accepted as true and the complaints will be construed in favor of the complaining parties, Cruz v. Beto, 405 U.S. 319, 323 ( 92 S. Ct. 1079, 1082, 31 L. Ed. 2d 263) (1972); Jenkins v. McKeithen, 395 U.S. 411, 421-22 (89 S. Ct. 1843, 1848-1849, 23 L. Ed. 2d 404) (1969), recognizing that there cannot be a dismissal unless it appears beyond doubt that plaintiffs can prove no set of facts in support of their claims which would entitle them to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (78 S. Ct. 99, 101-102, 2 L. Ed. 2d 80) (1957). See generally Scheuer v. Rhodes, supra, 416 U.S. at 237 (94 S. Ct. at 1686)." Jones v. Kneller, 482 F. Supp. 204 (E.D.N.Y.1979), aff'd unpub'd mem. (2d Cir., May 2, 1980).

 It is equally well established, however, that a civil rights complaint must contain more than "conclusory," "vague," or "general allegations" of constitutional deprivation. Black v. United States, 534 F.2d 524 (2d Cir. 1976); Koch v. Yunich, 533 F.2d 80 (2d Cir. 1976); Fine v. City of New York, 529 F.2d 70 (2d Cir. 1975). Such allegations must be amplified by specific instances of misconduct, Ostrer v. Aronwald, 567 F.2d 551, 553 (2d Cir. 1977), or "some specific allegations of fact indicating a deprivation of civil rights, rather than state simple conclusions," Koch v. Yunich, supra, 533 F.2d at 85. See also Perrotta v. Irizarry, 430 F. Supp. 1274 (S.D.N.Y.1977), aff'd, 573 F.2d 1294 (2d Cir. 1978). These principles govern the complaint here.

 The complaint alleges that at all times relevant to the action defendants Koch and McGuire were Mayor of the City of New York and Police Commissioner respectively and were acting within the scope of their employment. Along with the other defendants, they are alleged to have caused plaintiff to be deprived of various civil rights. The basis for this conclusion is plaintiff's averment that movants, among others, "caused, directed and/or ordered said plaintiff to be arrested and prosecuted for alleged assaults" without probable cause and in bad faith (Complaint P 25).

 The complaint goes on to allege that defendants' actions in causing and directing plaintiff's arrest and prosecution were done for an ulterior motive, to serve the purposes of the defendants "so as to enable them to claim that they had made arrests and punished alleged wrong-doers in connection with the 66th precinct disturbance by using the plaintiff, MARK LANDESMAN, and others as scapegoats" (Compl. para. 27). Plaintiffs further claim that the defendants encouraged police officers to allege numerous crimes on the part of the local community and to file complaints and make allegations of wrongdoing irrespective of the truth or falsity thereof (Compl. paras. 30, 35). Finally, the complaint alleges that in response to pressure exerted by defendant Koch, defendant McGuire initiated an investigation that resulted in plaintiff's arrest out of which he suffered various indignities, such as being handcuffed, fingerprinted, strip searched, as well as having his "mug" shot placed in the "Rogues Gallery." He also claims that as a result of his arrest he has been threatened, has received hate mail and has suffered mental and physical distress and harm to his professional reputation. Plaintiff is a lawyer.

 The complaint avers further that the foregoing "was perpetrated, encouraged and allowed to continue with the knowledge and connivance of defendants or either of them, with malice, and in reckless disregard of the truth, that crimes were, in fact, not committed and that, in any event, this plaintiff, MARK LANDESMAN, had not committed any crimes" (Compl. para. 47). Plaintiffs go on to assert that defendants "in their positions as superiors and superior officers of the New York City Police Department, and the defendant, CITY OF NEW YORK, at all times relevant hereto, had knowledge that the wrongs that were done to plaintiff, MARK LANDESMAN, were about to be committed and they had the power to prevent or aid in preventing those wrongs from being committed" (Compl. para. 54).

 Viewing the pleadings in the light most favorable to the plaintiffs, yet with an eye to the factual setting from which the causes of action allegedly arose, it is this court's conclusion that plaintiffs have failed to state a claim upon which relief can be granted as to the movants herein. While the complaint alleges that plaintiff was falsely arrested without probable cause, in bad faith and for ulterior motive, these are conclusory allegations that fail to satisfy plaintiffs' burden of pleading specific facts in support of their claims. Careful examination of the complaint reveals that, with respect to defendants Koch and McGuire, it is based wholly on speculation and conjecture and is an artful attempt to satisfy the pleading requirements of the federal rules while avoiding the proscriptions of Rule 11, F.R.Civ.P.

 The complaint, taken as a whole, demonstrates that the factual basis for plaintiffs' claims against the movants arises out of the Mayor's reaction to the "assault" on the 66th precinct in Boro Park, Brooklyn. For example, at para. 29 of the complaint, plaintiffs allege that the disturbance "had been played up by the media and was given wide publicity and had, in effect, become a media event." They go on to allege

 
"31. That defendant, MAYOR KOCH, further blew this media event out of proportion by publicly denouncing the community for its demonstration which, in fact, sought more police protection in response to a robbery murder of one of the members of the community.
 
"32. That defendant, MAYOR KOCH, publicly and in the media, denounced the community as having "raped the precinct.'
 
"33. That the aforesaid added to, contributed to and caused banner headlines to be printed to the effect that "3,000 Hassidim stormed the precinct.'
 
"34. That in connection with the aforesaid, and the reaction thereto, defendant, MAYOR KOCH, publicly vowed to have the alleged community wrongdoers arrested and prosecuted ...

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