United States District Court, S.D. New York
the plaintiff: Alexander M. Dudelson.
the defendants: Eviana Englert New York City Law Department.
OPINION & ORDER
COTE United States District Judge.
Philip Anderson ("Anderson") brings this 42 U.S.C.
§ 1983 action against the City of New York
("City") and New York Police Department
("NYPD") officers Peter Marter
("Marter"), Sinan Cagirici ("Cagirici"),
and Tamara Pinkney ("Pinkney"), asserting claims
arising from his arrest on November 3, 2013. The defendants
have moved to dismiss the amended complaint ("FAC")
under Rule 12(b)(6), Fed.R.Civ.P. For the following reasons,
the motion is granted.
facts are taken from the FAC. Anderson works in the business
of getting customers admission into high-end nightclubs in
New York City and driving them to these clubs. On November 3,
2013, at approximately 1:25 a.m., Anderson met P.H. on the
corner of 17th Street and 10th Avenue and agreed to help P.H.
get into the nightclub 1Oak for $200.
Cagirici and Pinkney, who were officers in the 10th
precinct's Cabaret Unit, were working in an unmarked
police vehicle that looked like a New York City Taxi cab.
They observed P.H. at an ATM machine and then hand money to
Anderson. Cagirici and Pinkney got out of the cab and
approached Anderson and P.H.. Cagirici stopped P.H., searched
his pockets, and removed two ziplock bags containing less
than one-half a gram of cocaine. Cagirici then handcuffed
Anderson and patted him down for safety.
five minutes after Cagirici arrested Anderson and P.H.,
defendant Marter appeared at the scene. According to the FAC,
Marter, Cagirici, and Pinkney agreed that Marter would take
credit for the arrests even though he had not made any of the
observations that led to the arrests.
approximately 1:40 a.m., another NYPD officer transported
Anderson to the 10th precinct. Cagirici searched Anderson at
the 10th precinct and recovered $206.00, but no drugs.
Anderson was strip searched. Anderson was arraigned in New
York County Criminal Court on the same day of his arrest and
was released on his own recognizance.
wrote up the arrest paperwork, stating that he observed a
drug sale and that he apprehended Anderson and P.H. after
they attempted to flee. Marter also told the New York County
District Attorney's Office ("DA") that: he
observed Anderson and P.H. talking, Anderson show P.H.
something, P.H. pull out money, Anderson give P.H. two bags
of cocaine, and P.H. put the bags of cocaine in his pocket.
Marter explained that he and his partner stopped Anderson and
P.H. and he recovered two bags of cocaine from P.H.'s
pocket. Marter also testified in the grand jury that he had
observed a drug transaction involving Anderson and P.H.. On
February 10, 2014, the grand jury indicted Anderson on one
count of criminal sale of a controlled substance in the third
degree in violation of New York Penal Law ("NYPL")
§ 220.39 (1) .
trial was held on May 14 and May 15, 2015. Defendant Cagirici
testified that he and Marter were working together on the
date of Anderson's arrest. Marter testified that he was
in the "cab" with Cagirici. The prosecution did not
call Pinkney or P.H. as witnesses at trial. The FAC asserts,
without explanation, that Marter's trial testimony of his
observations was "wholly inconsistent" with his
grand jury testimony. The jury returned a verdict of not
filed the instant action on August 23, 2016. He filed the FAC
on January 5, 2017, asserting claims under § 1983 for
unreasonable search and seizure in violation of the Fourth
Amendment, false arrest and imprisonment, malicious
prosecution, failure to intervene, conspiracy to violate
Anderson's civil rights, and municipal liability.
February 14, 2017, the defendants filed a motion to dismiss
the FAC under Rule 12(b)(6), Fed.R.Civ.P. The motion became
fully submitted on March 23, 2017.
deciding a motion to dismiss under Rule 12(b)(6), a court
must accept all factual allegations in the complaint as true
and draw all reasonable inferences in the non-moving
party's favor. Loginovskaya v. Batratchenko, 764
F.3d 266, 269-70 (2d Cir. 2014). "To survive a motion to
dismiss under Rule 12(b)(6), a complaint must allege
sufficient facts which, taken as true, state a plausible
claim for relief." Keiler v. Harlequin Enters.
Ltd., 751 F.3d 64, 68 (2d Cir. 2014). A claim has facial
plausibility when the factual content of the complaint
"allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged."
Tongue v. Sanofi, 816 F.3d 199, 209 (2d Cir. 2016)
(citation omitted). ...