The opinion of the court was delivered by: Glasser, District Judge:
This is a civil rights action brought under 42 U.S.C.
Sections 1981, 1983, and 1988 by Eddie Roundtree against the
City of New York, the City of New York Police Department (the
"Police Department"), Lee Brown (both individually and as
Commissioner of the Police Department), Diana Nix (an officer
of the Police Department), and unnamed individual police
officers of the Police Department. The plaintiff alleges that
the defendants "illegally arrested, illegally searched,
illegally detained and illegally assaulted" him and that the
defendants thereby violated his civil rights under the Fourth,
the Fifth, and the Fourteenth Amendments to the federal
Constitution. Complaint ¶¶ 35-36. Defendants have moved to
dismiss the complaint under Federal Rule of Civil Procedure
12(b)(6). For the reasons stated below, the motion of the
defendants is granted in part and denied in part.
The defendants concede — as concede they must for the
purposes of this motion — the truth of the facts as alleged by
the plaintiff in his complaints. The plaintiff, Mr. Roundtree,
is a black male. At the time of the events that gave rise to
his complaint, he was employed as a chauffeur. On July 10,
1990, Mr. Roundtree was driving a large sedan through Queens,
New York; he was wearing a coat, a tie, and dark sunglasses.
While stopped at an intersection in Queens, the plaintiff gave
a match to a passerby. Soon thereafter, he was detained by
police officers who searched, arrested, and handcuffed the
plaintiff; they told him that he was under arrest for
possession of cocaine. Then, the police officers "physically
and with undue force, pushed plaintiff into one of . . . two
unmarked [police] cars. . . ." Complaint ¶ 17.
The police took the plaintiff to the 103rd police precinct at
about 7:30 p.m. Mr. Roundtree was detained there for several
hours during which time he was denied use of a lavatory; he was
then subjected to a strip search, and he was photographed and
fingerprinted. At about midnight, he was taken to the 110th
precinct where he spent the night. During this time, he was not
allowed to make a telephone call or to consult with an
Mr. Roundtree was not provided with food until 10:00 a.m. on
the morning of July 11, 1991. At that time, he was given a
"stale bologna and cheese sandwich and sour milk." Complaint
¶ 20. At about 2:30 p.m. that day, plaintiff was transported to
court in Kew Gardens, New York; there, he was subjected to a
"pat down". Complaint ¶ 22. Finally, Mr. Roundtree, who
contends that he had no cocaine in his possession at the time
of his arrest, pleaded guilty to disorderly conduct and paid a
$100 fine. He alleges that his plea was entered on the advice
of counsel that such a plea was the "most expeditious way for
him to be released from custody and to return to his job."
Complaint ¶ 24.
Plaintiff then filed this civil rights action in which he
alleges that the municipal defendants engage in "a custom and
practice of routinely conducting drug sweep roundups by
targeting certain areas known for excessive illegal drug
activity, and rounding up persons walking or driving on
particular blocks within these known drug areas." Complaint
¶ 29. Mr. Roundtree alleges that his arrest and detention were
executed pursuant to "these tactics". Complaint ¶ 30. Plaintiff
further contends that the police officer defendants violated
his constitutional rights "by the unlawful and wrongful seizing
of plaintiff's person without probable cause, by causing him to
be unlawfully detained and incarcerated on serious charges that
they knew or should have known were false, by the unlawful
seizing of plaintiff's person in clear violation of due
process, and by the knowing and wrongful submission of false
data regarding the transaction that led to plaintiff's arrest."
Complaint ¶ 36. Plaintiff appears also to allege
unconstitutional search of his person, Complaint ¶ 35;
excessive use of force in his arrest, Complaint ¶¶ 17, 35;
punishment without due process of law, Complaint ¶ 37; invasion
of his privacy, Complaint ¶ 32; and failure by the defendants
"to protect [his] personal rights" while he was detained,
Complaint ¶ 32.
Mr. Roundtree states that "due [sic] solely to the acts of
the defendants . . . plaintiff was denied his fundamental
rights, was deprived of his liberty and forced to answer
criminal charges. He was forced to undergo the mental anguish
and strain of these proceedings; and will bear lasting and
permanent mental scars of the ordeal." Complaint ¶ 38. Finally,
he maintains that "[a]s a proximate result of defendants'
actions, plaintiff was greatly humiliated, injured in his
reputation and suffered great pain and mental anguish, all to
plaintiff's damage in the sum of $1,000,000.00 for emotional
pain and suffering." Complaint ¶ 40. He therefore seeks
compensatory and punitive damages in that amount.
Federal Rule of Civil Procedure 12(b)(6) provides that a
complaint may be dismissed upon motion for "failure to state a
claim upon which relief can be granted." This provision of Rule
12(b)(6) is "a lineal descendant of the common law general
demurrer." Wright & Miller, Federal Practice and Procedure:
Civil 2d § 1355. As such, "the complaint is construed in the
light most favorable to the plaintiff and its allegations are
taken to be true." Id. at § 1357. Thus, "in ruling on a
12(b)(6) motion, a court is required to accept the material
facts alleged in the complaint as true. . . ." Easton v.
Sundram, 947 F.2d 1011, 1014-15 (2d Cir. 1991) (citing Cooper
v. Pate, 378 U.S. 546, 84 S.Ct. 1733, 12 L.Ed.2d 1030 (1964)
That is, a motion under Rule 12(b)(6) cannot present any
question of fact; rather, such a motion presents only the
question of whether or not the complaint has set forth a
legally cognizable claim. For this reason, as stated in
Easton, at 1014-15:
[The court may not dismiss an action under Rule
12(b)(6)] "unless it appears beyond doubt that the
plaintiff can prove no set of facts in support of
his claim which would entitle him to relief,"
Conley v. Gibson, 355 U.S. 41, 45-46 [78 S.Ct. 99,
101-02, 2 L.Ed.2d 80] (1957); see also Branum v.
Clark, 927 F.2d 698, 705 (2d Cir. 1991).
This admonition not to dismiss under Rule 12(b)(6) has been
construed as all the more applicable if the complaint alleges
a violation of civil rights. Easton, at 1015.
Here, plaintiff alleges first a violation of 42 U.S.C.
Section 1981. That section provides:
All persons within the jurisdiction of the United
States shall have the same right in every State
and Territory to make and enforce contracts, to
sue, be parties, give evidence, and to the full
and equal benefit of all laws and proceedings for
the security of persons and property as is enjoyed
by white citizens, and shall be subject to like
punishment, pains, penalties, taxes, licenses, and
exactions of every kind, and no other.
As is clear from the text of this statute, "[t]he sine qua non
of a complaint under section 1981 is a showing of racial
discrimination." Smith v. Dallas County Board of Education,
480 F. Supp. 1324, 1337 (S.D.Ala. 1979) (citing Jones v. Alfred H.
Mayer Co., 392 U.S. 409, 88 S.Ct. 2186, 20 L.Ed.2d 1189
(1968)). The plaintiff here has made no allegation of racial
discrimination; as such, his Section 1981 claim must be
Third, as to his Section 1983 claim, the plaintiff alleges
that the defendants denied him the rights secured to him under
the Fourth, the Fifth, and the Fourteenth Amendments to the
Constitution. Complaint ¶ 36. However, the plaintiff
inexplicably contends in his opposition papers that he does not
intend to state a claim for "false arrest" or for "illegal
search" or for "assault or excessive force". Plaintiff's
Memorandum of Law at 1-2. He states: "It is not by the
individual acts (i.e., search, arrest and detention) that
plaintiff was deprived of his constitutional rights. It is by
the totality of the circumstances visited upon him by
defendants' implementation of their policy." Id. at 11. And yet
plaintiff refers the court to paragraphs 31, 37, and 38 of his
complaint as the source of his allegations that his rights
under "the Fourth, Fifth and Fourteenth Amendments to the
Constitution were violated." Id. at 10. Elsewhere in his papers
he alleges that he suffered:
[A] deprivation of liberty, a search incident to
arrest, an invasion of privacy, an assault
following the arrest, and a failure to protect his
personal rights while under arrest . . . in
violation of 42 U.S.C. § 1981, 1983, and 1988. . . .
Although the plaintiff appears somewhat confused as to
whether or not his constitutional rights were violated, he
cannot escape the requirement that, in order to maintain an
action under 42 U.S.C. § 1983, he must allege a violation
of at least one of his federal rights. See Baker v. McCollan,
443 U.S. 137, 140, 99 S.Ct. 2689, 2692, 61 L.Ed.2d 433 (1979)
("The first inquiry in any § 1983 suit . . . is whether the
plaintiff has been deprived of a right `secured by the
Constitution and laws.'"). It is not enough for the plaintiff
to allege that there were constitutional violations "`in the
air, so to speak. . . .'" Cf. Palsgraf v. Long Island Railroad
Co., 248 N.Y. 339, 341, 162 N.E. 99 (1928) (Cardozo, C.J.,
quoting Pollock, Torts 455 (11th ed.)). Hence, despite the
opaque and inconsistent submissions of the ...