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November 20, 1991


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 attorney.

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) (per curiam)).

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 dismissed.

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. . . .

Id. at 4.

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 ยง 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 ...

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