The opinion of the court was delivered by: SCHEINDLIN
SHIRA A. SCHEINDLIN, U.S.D.J.:
Plaintiff Robert Grandal brings this action pursuant to 42 U.S.C. § 1983, claiming that his constitutional rights were violated when a photograph taken of him in connection with a prior arrest was used to identify him in a subsequent criminal investigation in violation of state law.
Defendants the City of New York, the Commissioner of the New York City Police Department, Howard Safir, in his official capacity, and the former Commissioner of the New York City Police Department, William Bratton, in his official capacity (collectively "the defendants") move to dismiss the complaint on the ground that plaintiff has failed to state a claim upon which relief may be granted pursuant to Fed. R. Civ. P. 12(b)(6).
For the following reasons, the defendants' motion is granted.
The undisputed facts are as follow.
On March 17, 1988, plaintiff was arrested and taken to the police station where he was photographed and fingerprinted. On October 30, 1988, the resulting indictment was dismissed and sealed, and plaintiff was released from custody. Pursuant to New York Criminal Procedure Law ("CPL") § 160.50 the police department was ordered to return plaintiff's arrest photos to his lawyer.
Plaintiff's photograph was not returned. See Complaint ("Compl.") PP 11-18.
On June 22, 1994, as part of a robbery investigation, the police showed a book of photos to the victim. Plaintiff's March 17, 1988 arrest photograph was in the book. The robbery victim stated that plaintiff looked like the man who had robbed him. Based on this information, plaintiff was arrested and charged with armed robbery. On March 17, 1995, plaintiff was acquitted on all charges relating to the robbery. Plaintiff now claims that defendants' violation of CPL § 160.50 deprived him of his constitutional rights. See id. PP 19-20.
In deciding a Rule 12(b)(6) motion to dismiss, the Court must accept as true material facts alleged in the complaint and draw all reasonable inferences in the non-movant's favor. See Kaluczky v. City of White Plains, 57 F.3d 202, 206 (2d Cir. 1995). Such a motion cannot be granted simply because recovery appears remote or unlikely on the face of a complaint, because "the issue is not whether a plaintiff will ultimately prevail." Bernheim v. Litt, 79 F.3d 318, 321 (2d Cir. 1996) (internal quotations marks and citations omitted). Rather, dismissal can only be granted if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Scheuer v. Rhodes, 416 U.S. 232, 236, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974). See also Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994).
To state a cognizable claim under § 1983,
"a plaintiff must allege a violation of rights secured by the Constitution or laws of the United States, and that such violation was committed by a person acting under color of state law." Kern v. City of Rochester, 93 F.3d 38, 43 (2d Cir. 1996) (citing Greenwich Citizens Comm., Inc. v. Counties of Warren and Washington Indus. Dev. Agency, 77 F.3d 26, 29-30 (2d Cir. 1996)). Plaintiff claims that his rights under the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment were violated by defendants' failure to comply with CPL § 160.50. See Compl. P 28.
There is no question that the NYPD violated CPL § 160.50. Yet as an initial matter it should be noted that "the Constitution does not guarantee that only the guilty will be arrested." Baker v. McCollan, 443 U.S. 137, 145, 61 L. Ed. 2d 433, 99 S. Ct. 2689 (1979). Moreover, "there is no constitutional right not to be identified as a suspect." Griffin v. Kelly, 1994 U.S. Dist. LEXIS 153, No. 92-8623, 1994 WL 9670, at *4 (S.D.N.Y. Jan. 11, 1994). The issue in this case, therefore, is whether plaintiff has stated a cause of action under § 1983. Specifically: (1) was plaintiff deprived of his right to liberty and property without due process of law when the photograph was used in violation of CPL § 160.50; and (2) was plaintiff deprived of equal protection under the law when the photograph was used in violation of CPL § 160.50.
To formulate a claim under the Due Process Clause a plaintiff must demonstrate that he "possesses a constitutionally protected interest in liberty, life, or property, and that state action has deprived him  of that interest." Valmonte v. Bane, 18 F.3d 992, 998 (2d Cir. 1994). See also Board of Regents v. Roth, 408 U.S. 564, 33 L. Ed. 2d 548, 92 S. Ct. 2701 (1972). Generally speaking, "a state rule of criminal procedure . . . does not create a liberty interest that is entitled to protection under the federal Constitution." Watson v. City of New York, 92 F.3d 31, 37-38 (2d Cir. 1996). Rather, in order to merit constitutional protection, a procedure must protect a ...