United States District Court, Eastern District of New York
November 20, 1991
EDDIE ROUNDTREE, PLAINTIFF,
THE CITY OF NEW YORK, THE CITY OF NEW YORK POLICE DEPARTMENT, LEE BROWN, BOTH INDIVIDUALLY AND AS COMMISSIONER OF THE CITY OF NEW YORK POLICE DEPARTMENT, DIANA NIX, "JOHN DOE" AND "RICHARD ROE", ET AL., DEFENDANTS.
The opinion of the court was delivered by: Glasser, District Judge:
MEMORANDUM AND ORDER
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
Second, the plaintiff states in his complaint that he
proceeds as well under
42 U.S.C. § 1988. This section does not, however, provide a
cause of action; rather, it governs actions or proceedings
brought to enforce other civil rights provisions (such as
Section 1981 or Section 1983).
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 § 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 plaintiff, it is
necessary for this court to identify those rights to which
plaintiff alludes in his complaint and to determine whether he
has stated a claim as to their violation as required by Section
Among the many rights mentioned by plaintiff, those for which
he alleges a factual basis are: (1) unconstitutional seizure of
the plaintiff's person; (2) unconstitutional search of his
person; (3) unconstitutional detention; (4) use of excessive
force in his arrest; and (5) punishment without due process of
law. These five allegations are considered individually in the
paragraphs that follow.
Plaintiff also makes three other allegations: that the
defendants committed "knowing and wrongful submission of false
data regarding the transaction that led to plaintiff's arrest"
(complaint ¶ 36); that the defendants invaded his privacy
(complaint ¶ 32); and that the defendants failed to protect his
personal rights while under arrest (complaint ¶ 32). Of these,
the first does not present even a colorable claim of a
violation of a constitutional or other federal right; it must
therefore be dismissed. The second is not grounded on any
specific allegation of fact and must therefore be dismissed as
conclusory. Alfaro Motors, Inc. v. Ward, 814 F.2d 883, 887 (2d
Cir. 1987) ("Appellants' general and conclusory allegation,
without more . . . does not meet the requisite standard for
pleadings in a § 1983 action. Thus . . . the district court . .
. could have dismissed the complaint for failure to state a
claim."). And the third claim appears to be, at best, a
nebulous restatement of the other five allegations concerning
violations of the plaintiff's rights under the Fourth, the
Fifth, and the Fourteenth Amendments. Hence, none of these
three additional allegations states a claim upon which relief
can be granted. As such, all three must be dismissed.
1. Unconstitutional Seizure of the Plaintiff's Person
The Fourth Amendment to the United States Constitution
The right of the people to be secure in their
persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be
violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation,
and particularly describing the place to be
searched, and the persons or things to be seized.
This provision has been construed to require that an arrest
must be grounded in probable cause, Beck v. Ohio, 379 U.S. 89,
91, 85 S.Ct. 223, 225-26, 13 L.Ed.2d 142 (1964) ("Whether [an]
arrest was constitutionally valid depends . . . upon whether,
at the moment the arrest was made, the officers had probable
cause to make it. . . ."); hence, the arrest of an individual
without probable cause is an unconstitutional "seizure" of that
person in violation of the Fourth Amendment. Such a violation
may thus give rise to a claim under Section 1983.
However, a Section 1983 claim predicated on an arrest without
probable cause is absolutely barred if the plaintiff was
convicted of the offense for which he was arrested. The Second
Circuit so held in the leading case of Cameron v. Fogarty,
806 F.2d 380, 388 (2d Cir. 1986), cert. denied, 481 U.S. 1016, 107
S.Ct. 1894, 95 L.Ed.2d 501 (1987):
[W]e conclude that the proper accommodation
between the individual's interest in preventing
unwarranted intrusions into his liberty and
society's interest in encouraging the apprehension
of criminals requires that § 1983 doctrine be
deemed, in the absence of any indication that
Congress intended otherwise, to incorporate the
common-law principle that, where law enforcement
officers have made an arrest, the resulting
conviction is a defense to a § 1983 action
asserting the arrest was made without probable
See also Malady v. Crunk, 902 F.2d 10
, 11 (8th Cir. 1990)
(following Cameron); King v. Goldsmith, 897 F.2d 885
, 886 (7th
Cir. 1990) (Posner, J., remarking that Cameron "serv[es] the
limited function of preventing an end run around the principle
that an unlawful arrest does not bar prosecution of the
arrested person."); Walker v. Schaeffer, 854 F.2d 138
, 143 (6th
Cir. 1988) ("We . . . agree with the conclusion reached in
Cameron v. Fogarty. . . ."); Liner v. Ward, 754 F. Supp. 32
33 (S.D.N.Y. 1991) ("In view of these findings and the
conviction of the plaintiff, there is no Section 1983 action"
for false arrest); Giannini v. City of New York, 700 F. Supp. 202,
205 (S.D.N.Y. 1988) ("[A] section 1983 action based on
false arrest or false imprisonment is barred by a plaintiff's
conviction for the offense for which he was arrested.").
Although the plaintiff in Cameron had been convicted at trial
of the offense for which he was arrested, entry of a guilty
plea also operates as a defense to a Section 1983 action for
arrest without probable cause. Keyes v. City of Albany,
594 F. Supp. 1147 (N.D.N.Y. 1984) ("[A] § 1983 claim for false
arrest or false imprisonment is barred by a plea of guilty. . .
."). That is, conviction at trial or by plea "`conclusively
establishes the existence of probable cause, unless the
conviction was obtained by fraud, perjury, or other corrupt
means.'" Cameron, 806 F.2d at 387 (quoting Restatement (Second)
of Torts § 667(1)); Unger v. Cohen, 718 F. Supp. 185, 187
(S.D.N.Y. 1989) ("[C]onviction is viewed as establishing the
existence of probable cause. . . . [But] an invalid judgment of
conviction would not support the defense."). Finally, a plea of
guilty to a charge lesser than that for which plaintiff was
arrested also bars a Section 1983 action for arrest without
probable cause. Keyes, 594 F. Supp. at 1152, 1155 (Section 1983
action for arrest without probable cause barred for plaintiff
who had been arrested for assault but had pleaded guilty to
The application of Cameron to this case could not be more
straightforward: Plaintiff was arrested for possession of
cocaine, and he pleaded guilty to disorderly conduct. He now
contends that the arrest
was without probable cause and was therefore in violation of
the Fourth Amendment to the United States Constitution. He does
not claim that his conviction was "obtained by fraud, perjury,
or other corrupt means." On these facts as alleged by the
plaintiff, his plea of guilty is a complete defense to his
claim of unconstitutional seizure of his person. Thus, insofar
as plaintiff asserts a claim of arrest without probable cause,
that claim must be dismissed.
2. Unconstitutional Search of the Plaintiff's Person
Just as the Fourth Amendment prohibits seizures of persons
effected without probable cause, so too a search must generally
be conducted pursuant to a warrant. Marshall v. Barlow's Inc.,
436 U.S. 307, 312, 98 S.Ct. 1816, 1820, 56 L.Ed.2d 305 (1978)
("This Court has already held that warrantless searches are
generally unreasonable. . . ."). However, it is a
well-established exception to this principle that an individual
validly arrested may be searched without a warrant as an
incident to the arrest. United States v. Robinson,
414 U.S. 218, 235, 94 S.Ct. 467, 477, 38 L.Ed.2d 427 (1973) (lawful
custodial arrest authorizes "a full search of the person"
Under Robinson, the arrest must be "lawful" in order to
justify any search incident to that arrest; but such lawfulness
is readily apparent in this case: It would be incongruous to
maintain that the ultimate conviction of the plaintiff
establishes probable cause for the arrest itself but that the
validity of the arrest nonetheless remains open as to any
searches incident to that arrest. Under Cameron, the guilty
plea of a plaintiff demonstrates not merely the probable cause
for the arrest but the lawfulness of it; hence, insofar as the
constitutionality of a search incident to an arrest derives
from the validity of the arrest itself, Cameron compels the
conclusion that a guilty plea provides a defense to any Section
1983 claim brought for the search of an arrested person that is
conducted as an incident to that arrest.
For this reason, the first two searches to which the
plaintiff was subjected — the initial "frisk" and the strip
search at the police station — cannot be the genesis of a
claim by the plaintiff that his rights under the Fourth
Amendment were violated: His guilty plea provides a complete
defense to the claim that these searches incident to arrest
were unconstitutional — just as his guilty plea provides a
complete defense to the claim that the arrest itself was
unconstitutional.*fn1 Thus, insofar as he asserts a Section
1983 claim of unconstitutional search, it must be dismissed.
3. Unconstitutional Detention of Plaintiff
Plaintiff further alleges that he was "illegally detained" by
the defendants. Complaint ¶ 35. As with his other allegations
that concern the legitimacy of his arrest, this contention
fails to state a claim upon which relief can be granted. Under
Cameron, plaintiff's subsequent conviction establishes probable
cause for his arrest; thus, it also establishes the legitimacy
of his arrest. In that plaintiff contends that he was detained
as a consequence of his arrest, then, this claim fails as
a matter of law.
Even if plaintiff seeks to establish that the length of his
detention constituted a violation of his rights under the
Fourth Amendment, he cannot establish a valid claim. In County
of Riverside v. McLaughlin, ___ U.S. ___, 111 S.Ct. 1661, 114
L.Ed.2d 49 (1991), the Supreme Court held that detention of an
individual for 48 hours prior to a hearing to determine
probable cause for his arrest does not violate the Fourth
Amendment. Here, a fortiori, detention of the plaintiff for 24
hours prior to arraignment — after an arrest for which
probable cause is subsequently established — cannot constitute
a constitutional violation. Hence, insofar as the plaintiff
makes out a claim that either the fact of his detention or the
length of his detention denied him his constitutional rights
under the Fourth Amendment, the claim must be dismissed.
4. Use of Excessive Force
Plaintiff claims in his complaint that he was "illegally
assaulted" by the arresting police officers, Complaint ¶ 35; he
alleges that the officers "physically and with undue force,
pushed plaintiff into one of the two unmarked [police] cars. .
. ." However, plaintiff alleges no physical injury by reason of
this "undue force"; rather, he claims to have suffered
"emotional pain and suffering." Complaint ¶ 40.
In Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104
L.Ed.2d 443 (1989), the Supreme Court made clear that a Section
1983 action that alleges use of excessive force is to be
analyzed with reference to "the specific constitutional right
allegedly infringed by the challenged application of force."
Graham, 109 S.Ct. at 1870. The Court noted that "[i]n most
instances, that will be either the Fourth Amendment's
prohibition against unreasonable seizures of the person, or the
Eighth Amendment's ban on cruel and unusual punishments. . . ."
Id. As in Graham, it is clear that the claim of the plaintiff
here must be analyzed under the Fourth Amendment as a challenge
to the reasonableness of the seizure of the plaintiff during
his arrest. Id. at 1871 ("Where, as here, the excessive force
claim arises in the context of an arrest . . . of a free
citizen, it is most properly characterized as one invoking the
protections of the Fourth Amendment. . . .").
Thus, the inquiry necessary to consider whether the plaintiff
here has stated a claim of excessive force must proceed along
the objective lines of reasonableness:
The "reasonableness" of a particular use of force
case is an objective one: the question is whether
the officers' actions are "objectively reasonable"
in light of the facts and circumstances
confronting them, without regard to their
underlying intent or motivation.
Id. at 1872. A court must therefore adopt the "perspective of a
reasonable officer on the scene [of the arrest]," and it must
understand that "`[n]ot every push or shove, even if it may
later seem unnecessary in the peace of a judge's chambers . .
.' violates the Fourth Amendment." Id. (quoting Johnson v.
Glick, 481 F.2d 1028, 1033 (2d Cir.), cert. denied,
414 U.S. 1033, 94 S.Ct. 462, 38 L.Ed.2d 324 (1973)).
Graham, then, clearly establishes that a claim of excessive
force in an arrest is to be evaluated on a "reasonableness"
standard; it necessarily follows that such a claim may be
subject to dismissal under Rule 12(b)(6). For example, if the
plaintiff does not allege an unreasonably excessive use of
force, he has failed to state a claim upon which relief can be
granted. Still, the standard for dismissal under Rule 12(b)(6)
is high: It must appear "beyond doubt that the plaintiff can
prove no set of facts in support of his claim which would
entitle him to relief." Conley, supra, 355 U.S. at 45-46, 78
S.Ct. at 102. Here, then, dismissal of the plaintiff's claim of
excessive force is appropriate only if it is absolutely certain
that he can establish no facts to show that he was subjected to
an unreasonable use of force by the arresting officers.
Thus, the question of whether the plaintiff here has stated
a claim is a question of law; as such, it is a question that
the court, in the first instance, must endeavor to answer:
When a case arises in which the standard of
conduct, pure and simple is submitted to the jury,
the explanation is plain. It is that the court,
not entertaining any clear views of public policy
applicable to the matter, derives the rule to be
applied from daily experience, as it has been
agreed that the great body of the law of tort has
been derived. But the court further feels that it
is not itself possessed of sufficient practical
experience to lay down the rule intelligently. It
conceives that twelve men taken from the practical
part of the community can aid its judgment.
Therefore it aids its
conscience by taking the opinion of the jury.
O.W. Holmes, The Common Law 98 (Mark DeWolfe Howe, ed. 1963).
That is, the question whether or not particular conduct falls
below the applicable standard required by the law — such as
the reasonableness of the use of force in this case — is
submitted to the jury only when the court finds itself unable
to discern a clear answer. The necessary corollary, then, is
that "[a] judge who has long sat at nisi prius ought gradually
to acquire a fund of experience which enables him to represent
the common sense of the community in ordinary instances far
better than an average jury." Id. at 99.
However, a particular case may also present facts as to which
the application of the proper legal standard is so clear that
no useful purpose would ever be served by permitting a jury to
decide the question. Such cases stake out the poles between
which lie the more difficult applications that are reserved for
the jury. Id. at 101. As Holmes illustrates this point:
If the whole evidence in the case was that a
party, in full command of his senses and
intellect, stood on a railway track, looking at an
approaching engine until it ran him down, no judge
would leave it to the jury to say whether the
conduct was prudent. If the whole of the evidence
was that he attempted to cross a level track,
which was visible for half a mile each way, and on
which no engine was in sight, no court would allow
a jury to find negligence. Between these extremes
are cases which would go to the jury.
Id. at 102. The counsel of Holmes is as prudent as his analysis
is accurate: When the plaintiff presents a case the facts of
which indicate that he stands very near one of the two poles,
the court should dispose of his claim as a judgment of law.
Here, this court must consider as true all the facts alleged
by the plaintiff, and it must further determine whether there
is any set of facts that he could prove to support his claim.
Nonetheless, despite these benefits of doubt afforded him by
the case law under Rule 12(b)(6), this court must conclude that
the plaintiff has failed to state a claim of excessive use of
force. To allege that he was "with undue force, pushed . . .
into one of the . . . cars" and that his injuries from this
push were "emotional pain and suffering" is not to state a
claim that the use of force was "unreasonable". Indeed, to
conclude that a "push" that does not cause the slightest of
physical injuries to the plaintiff is nonetheless an actionable
use of excessive force would be to hold that any physical
contact by an arresting officer with the arrested person is
actionable. This would transform the constitutional wrong of
excessive force in arrest into the common law tort of battery;
and it would reduce the holding in Graham into an empty
proposition against which no use of force is reasonable as a
matter of law. With deference to Holmes, a judge need not have
"long sat at nisi prius" to conclude that the plaintiff here
does not state a claim of use of excessive force. Accord:
Foster v. Metropolitan Airports Commission, 914 F.2d 1076, 1082
(8th Cir. 1990) ("[T]he officer's use of force in pulling
[plaintiff] from the car and handcuffing him was reasonable
under the circumstances, and no juror could reasonably find
otherwise."). Compare: Simpson v. Saroff, 741 F. Supp. 1073,
1078 (S.D.N.Y. 1990) (allegations by plaintiff of "punched
stomach, swollen and bleeding wrists from the tight handcuffs,
as well as a faintly detectable scar on her left wrist" states
claim of use of excessive force under Section 1983). What the
court remarked in Mark v. Caldwell, 754 F.2d 1260, 1261 (5th
Cir.), cert. denied, 474 U.S. 945, 106 S.Ct. 310, 88 L.Ed.2d
287 (1985), in affirming dismissal of a Section 1983 claim for
use of excessive force is true here as well:
At the hearing, [the plaintiff] testified that at
the time of his arrest one of the officers slapped
him several times with his open hand. He further
testified that he was not injured by the slaps and
that they caused no bleeding, required no medical
attention, and were too weak to knock him down.
Thus, on his own evidence, they amounted to more
of an affront than an injury. Assuming the
truth of his account, and however reprehensible
such conduct by a policeman may be, it does not
rise to such a level that redress may be had for
it under 42 U.S.C. § 1983.
In the present case, whether or not this "push . . . seem[s]
unnecessary in the peace of a judge's chambers," it is manifest
that the push was not unreasonable; it is thus manifest that
this case does not fall in the realm of the jury. Thus, even
the most generous construction of the plaintiff's complaint
leaves no doubt that "the plaintiff can prove no set of facts"
to support his claim of use of excessive force. This claim must
therefore be dismissed.
5. Punishment without Due Process of Law
Finally, plaintiff alleges that the defendants deprived him
of his right "to be free from punishment without due process"
of law. In Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60
L.Ed.2d 447 (1979), the Supreme Court recognized that
conditions of pretrial detention may constitute a violation of
In evaluating the constitutionality of conditions
or restrictions of pretrial detention that
implicate only the protection against deprivation
of liberty without due process of law, we think
that the proper inquiry is whether those
conditions amount to punishment of the detainee.
For under the Due Process Clause, a detainee may
not be punished prior to an adjudication of guilt
in accordance with due process of law.
Bell, 441 U.S. at 535, 99 S.Ct. at 1872 (footnotes omitted).
Thus, the conditions under which an arrested person is detained
before trial will violate due process if they constitute
"punishment" rather than regulatory restraints.
The Court noted there that it "is all but impossible to
compress the distinction [between punitive measures and
regulatory restraints] into a sentence or a paragraph. . . ."
Id. at 537, 99 S.Ct. at 1873. It did hold, however, that
"[a]bsent a showing of an expressed intent to punish on the
part of detention facility officials . . ." certain
presumptions must be relied upon. Id. at 538-39, 99 S.Ct. at
Thus, if a particular condition or restriction of
pretrial detention is reasonably related to a
legitimate governmental objective, it does not,
without more, amount to "punishment." Conversely,
if a restriction or condition is not reasonably
related to a legitimate goal — if it is arbitrary
or purposeless — a court permissibly may infer
that the purpose of the governmental action is
punishment that may not constitutionally be
inflicted upon detainees qua detainees.
Id. at 539, 99 S.Ct. at 1874 (footnote omitted).
Here, the plaintiff alleges that, while he was detained by
the defendants, he was denied the use of lavatory facilities
for several hours, that he was not permitted to use a telephone
to contact an attorney, and that the only food he was given
during his detention was barely edible. On these allegations,
it does not appear "beyond doubt that the plaintiff can prove
no set of facts in support of his claim which would entitle him
to relief." Rather, it is not difficult to conclude that denial
of access to a lavatory or to a telephone after arrest, as well
as providing food poorly suited for human consumption, might
well be "arbitrary or purposeless" and "a restriction or
condition . . . not reasonably related to a legitimate
[governmental] goal" such that, accordingly, an intent to
punish may be inferred. That is, these allegations clearly
state a claim that the plaintiff was subjected to conditions of
punishment without due process of law. See, e.g., Green v.
Ferrell, 801 F.2d 765, 771 (5th Cir. 1986) ("Jails must provide
`reasonably adequate' sanitation."); Duran v. Elrod,
542 F.2d 998, 1000 (7th Cir. 1976) (allegations about "lack of
sufficient telephones" for pretrial detainees state claim of
punishment without due process).
As an additional matter, the claims of the plaintiff against
the municipal defendants must be dismissed. Under Monell v.
Department of Social Services, 436 U.S. 658, 694, 98 S.Ct.
2018, 2037, 56 L.Ed.2d 611 (1978), a city may be liable on a
1983 claim only "when execution of a government's policy or
custom . . . inflicts the injury. . . ." The Second Circuit has
construed Monell to require that the plaintiff "plead and
prove" three elements:
(1) an official policy or custom that (2) causes
the plaintiff to be subjected to (3) a denial of a
Batista v. Rodriguez, 702 F.2d 393, 397 (2d Cir. 1983).
Furthermore, the court there stated that "[a]bsent a showing of
a causal link between an official policy or custom and the
plaintiff's injury, Monell prohibits a finding of liability
against the City." Id.
Here, the plaintiff has alleged that the municipal
defendants, as an "official policy or custom", conduct "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. However, the plaintiff fails to allege the
requisite "causal link" between this "policy or custom" and the
one denial of his constitutional rights about which he has
stated a claim. That is, the "policy or custom" that he does
allege — "drug sweep roundups" — is unrelated to the
constitutional harm of punishment without due process of law.
As such, the Monell claims against the municipal defendants
must be dismissed.*fn2
Finally, the plaintiff — apparently aware that his papers
thus far have not been artfully drafted — has requested that
the court, rather than dismiss for failure to state a claim,
grant the plaintiff leave to amend his pleadings in order "to
remedy the defect." Plaintiff's memorandum of law at 14. He
cites Deck v. Shanman, 227 F. Supp. 26, 29-30 (S.D.N.Y. 1964)
and Bishop v. Commodity Exchange, Inc., 564 F. Supp. 1557, 1562
(S.D.N.Y. 1983) for the proposition that leave to amend a
complaint may be granted if the court determines that the
complaint is so unclear that a motion under Rule 12(b)(6)
cannot be decided adequately.
These cases are inapposite to the present case: Here, the
plaintiff pleads at least eight violations of his rights, and
five of these are at least colorable constitutional claims. Of
those five, three are barred by the plaintiff's plea of guilty,
one fails to allege facts that cross the relevant threshold of
reasonableness, and the last allegation does in fact state a
claim upon which relief can be granted. Thus, although the
complaint is poorly crafted, it is not impossible for this
court to discern from it how the defendants' motion under Rule
12(b)(6) should be decided. Further, the same unsteady hand
that requests leave to amend from the court also drafted the
remainder of the plaintiff's memorandum of law — a memorandum
that simply compounds the ambiguities of the complaint. The
papers of the plaintiff show that he has failed to state a
claim as to every allegation except that of punishment without
due process; and the facts alleged by the plaintiff show that
there is no other claim that he could properly state. An
amended complaint — one that promises to be of no higher
quality than the first — is unnecessary for the disposition of
The court grants in part and denies in part the motion of the
defendants to dismiss the complaint under Rule 12(b)(6) for
failure to state a claim; all claims — including the Monell
claim — are dismissed with the exception of the plaintiff's
claim that he was subjected to punishment without due process
of law; as to that claim, the motion of the defendants to
dismiss is denied.