The opinion of the court was delivered by: John G. Koeltl, United States District Judge.
Plaintiffs Stanley and Jo Ann Bollard ("Mr. and Mrs. Bullard") bring
this action pursuant to 42 U.S.C. § 1983, 1988 against defendants the
City of New York and the New York City Police Department ("NYPD"), as
well as New York City police officers Detective William Keenan
("Keenan"), Officer Haldane Grice
("Grice"), Officer Nicholas Mazzilli
("Mazzilli"), Detective Brian Cody ("Cody"), Officer John Bermudez
("Bermudez"), Detective Sergeant Christopher Robinson ("Robinson") and
five New York City police officers whose identities are unknown ("Unknown
Officers 1-5") (persons collectively known as the "Individual
Defendants"). The plaintiffs have sued the Individual Defendants in their
personal and professional capacities. The plaintiffs allege that the
defendants violated Mr. Bullard's constitutional rights under the First,
Fourth, Fifth, Sixth and Fourteenth Amendments to the United States
Constitution in violation of 42 U.S.C. § 1983. The plaintiffs claim
that three fellow tenants of their apartment building, Jill Freshman
Cohen ("Cohen"), Jael-Lynn Meadow ("Meadow"), and Michael Brooks
("Brooks") conspired with the Individual Defendants to 1) abuse the
process of the Bronx Criminal Court; 2) falsely arrest and maliciously
prosecute plaintiff Stanley Bullard on four separate occasions between May
1999 and November 2000; 3) punish Stanley Bullard for speaking out
against his arrests, prosecution, and treatment by the defendants and
their co-conspirators; and 4) abuse the criminal justice system to
destroy Mr. Bullard's reputation, inflict pain, suffering, and emotional
distress on the plaintiffs, and to drive the plaintiffs from their
apartment building and neighborhood. In addition, the plaintiffs claim
that the NYPD and the City of New York breached their duty of care to
Mr. Bullard by negligently hiring and failing to supervise the Individual
Defendants in violation of 42 U.S.C. § 1983. Finally, the plaintiffs
bring state law claims against the defendants for false arrest, false
imprisonment, intentional infliction of emotional distress, malicious
prosecution, abuse of process, violations of Stanley Bullard's rights
under the New York State Constitution, negligence, negligent hiring and
supervision, and loss of consortium for Jo Ann Bullard.
The defendants now move to dismiss the case pursuant to Fed. P. Civ.
P. 12(b)(6) for failure to state a claim upon which relief can be granted
and pursuant to Fed.R.Civ.P. 12(b)(1) for lack of subject matter
On a motion to dismiss, the allegations in the Second Amended Complaint
("Complaint") are accepted as true. Grandon v. Merrill Lynch & Co.,
147 F.3d 184, 188 (2d Cir. 1998). In deciding a motion to dismiss, all
reasonable inferences must be drawn in the plaintiffs' favor. Gant v.
Wallingford Bd. of Educ., 69 F.3d 669, 673 (2d Cir. 1995); Cosmas v.
Bassett, 886 F.2d 8, 11 (2d Cir. 1989). The Court's function on a motion
to dismiss is "not to weigh the evidence that might be presented at trial
but merely to determine whether the complaint itself is legally
sufficient." Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir. 1985).
Therefore, the defendants' present motion should only be granted if it
appears that the plaintiffs can prove no set of facts in support of their
claims that would entitle them to relief. See Swierkiewicz v. Sorema,
N.A., 534 U.S. 506 (2002); Conley v. Gibson, 355 U.S. 41, 45-46 (1957);
Grandon, 147 F.3d at 188; Goldman, 754 F.2d at 1065. The Court applies
this standard "with particular strictness" in view of the plaintiffs'
allegations of civil rights violations. Brodeur v. City of New York, 99
Civ. 651, 2002 WL 424688, at *2 (S.D.N.Y. Mar. 18, 2002) (quoting Branum
v. Clark, 927 F.2d 698, 705 (2d Cir. 1991)).
In deciding a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), the
Court may consider documents that are referenced in the Complaint,
documents that the
plaintiffs relied on in bringing suit and that are
either in the plaintiffs' possession or that the plaintiffs knew of when
bringing suit, or matters of which judicial notice may be taken. Chambers
v. Time Warner, Inc. 282 F.3d 147, 153 (2d Cir. 2002); see also Brass v.
Am. Film Techs., Inc., 987 F.2d 142, 150 (2d Cir. 1993); Cortec Indus.,
Inc. v. Sum Holding L.P., 949 F.2d 42, 47-48 (2d Cir. 1991); I. Meyer
Pincus & Assoc., P.C. v. Oppenheimer & Co., Inc., 936 F.2d 759,
762 (2d Cir. 1991); Skeete v. IVF, Inc., 972 F. Supp. 206, 208 (S.D.N.Y.
1997); Vtech Holdings Ltd. v. Lucent Techs., Inc., 172 F. Supp.2d 435,
437 (S.D.N.Y. 2001). The Court can consider additional materials on a
motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1). See Phifer v. City
of New York, 289 F.3d 49, 55 (2d Cir. 2002); Antares Aircraft v. Federal
Republic of Nigeria, 948 F.2d 90, 96 (2d Cir. 1991), aff'd on remand,
999 F.2d 33 (2d Cir. 1993); Kamen v. American Tel. & Tel. Co.,
791 F.2d 1006, 1011 (2d Cir. 1986); John Street Leasehold, LLC v. Capital
Mgmt. Res., L.P., 154 F. Supp.2d 527, 533-34 (S.D.N.Y. 2001), aff'd,
283 F.3d 73 (2d Cir. 2002).
For the purposes of this motion, the following facts are accepted as
Stanley and Jo Ann Bullard reside at 2728 Henry Hudson Parkway,
Apartment 45C, Bronx, New York. (Compl. ¶ 7.) Cohen, Meadow, and
Brooks, none of whom are defendants in this action, lived in the same
apartment building. (Id. at ¶ 18.) At all relevant times, the
Individual Defendants were employees off the New York City Police
Department and the City of New York. (Id. at ¶ 16.)
On or about May 26, 1999, defendants Keenan, Mazzilli, and Unknown
Officers 1-3 went to the plaintiffs' apartment to investigate Brooks'
allegations that Stanley Bullard had slashed three of his car tires.
(Id. at ¶ 21.) In reporting the alleged crime, Brooks fraudulently
misrepresented himself as a psychiatrist and negotiator for the United
States Marshal Service although he held neither position. (Id. at ¶
22.) Moreover, Brooks did not immediately report the crime but allowed a
day to pass after the alleged slashing before calling the police. (Id. at
When the defendants questioned Stanley Bullard about Brooks'
complaint, the plaintiff denied the allegations and presented
"sufficient" evidence "to place in substantial doubt the credibility of
[the] complainant . . . ." (Id. at ¶ 23.) Nonetheless, defendant
Keenan arrested Mr. Bullard for criminal mischief in the fourth degree
(N.Y. Penal L. § 145.00), placed him in handcuffs, and escorted him
into a police car in full view of the Bullards' neighbors. (Id.) The
defendants did not investigate Brooks' lack of credibility at that time.
(Id.) Not until Bullard was locked in a holding cell did defendants
Robinson and Keenan review Brooks' rap sheet. (Id. at ¶ 24.)
Information on the rap sheet showed that Brooks was neither a
psychiatrist nor an employee of the United States Marshal Service and
supported the plaintiff's argument that Brooks' allegations were false.
(Id. at ¶ 24.) Nevertheless, Mr. Bullard remained in the cell for
eight hours before his release; he was ultimately arraigned on the charge
of criminal mischief on June 28, 1999 in the Bronx Criminal Court. (Id.
at ¶¶ 25-26.)
Upon approval by defendant Cody, defendants Bermudez and Mazzilli
arrested Mr. Bullard on January 10, 2000. (Id. ¶ 77.) The arrest was
the result of an allegation by Jill Freshman Cohen that the plaintiff had
slashed four of her tires roughly six weeks earlier, on November 21 or
22, 1999, as witnessed by Jael-Lynn Meadow. (Id.) Cohen also alleged that
the plaintiff telephoned her on November 22, 1999 to threaten Cohen and
her daughter, and that on December 17, 1999 the
threatened the two and blocked them from the elevator in their apartment
building. (Id.) Mr. Bullard and his attorney tried to stop the arrest by
telling defendant Bermudez that the charges were false. (Id. at ¶
28.) But despite their efforts and the allegedly suspicious lengthy delay
in Cohen's complaint, the defendants completed the arrest and brought
charges against the plaintiff for menacing in the second degree (N.Y.
Penal L. § 120.14); endangering the welfare of a child (N.Y. Penal
L. § 260.10); harassment in the first degree (N.Y. Penal L. §
240.25); and harassment in the second degree (N.Y. Penal L. §
240.26). (Id.) Mr. Bullard subsequently spent five hours handcuffed in a
holding cell. (Id.) At approximately 9:00 p.m. that night Mr. Bullard
witnessed Cohen walk by his cell, pump her fist in a sign of victory, and
kiss defendant Bermudez on the lips as an apparent reward for Bullard's
arrest. (Id. at ¶¶ 29, 41.) The Complaint also alleges that the other
Individual Defendants' actions were motivated, in part, by a desire to
further the relationship between Cohen and Bermudez. (Id. at ¶ 41.)
After being arrested, booked, and placed in jail, Mr. Bullard was
arraigned the next day in Bronx Criminal Court and released after fifteen
hours in custody. (Id. at ¶¶ 30-31.)
On April 19, 2000 Bullard voluntarily went to the NYPD 50th Precinct
in response to a phone call from defendant Grice. (Id. at 32.) Jael-Lynn
Meadow had told the police that Mr. Bullard violated an Order of
Protection on April 8, 2000 when he confronted her at their apartment
building, approached her in the mail room, and prevented her from
leaving. (Id.) Bullard denied the allegations and the Complaint points
out that there was a substantial delay in lodging the complaint with the
NYPD. (Id.) Defendants Grice and Unknown Officer 4 arrested Bullard and
he was charged with criminal contempt in the first degree (N.Y. Penal L.
§ 215.51), and criminal contempt in the second degree (N.Y. Penal L.
§ 215.50). (Id.) While Bullard was in custody, defendants Grice and
Unknown Officer 4 admitted that they did not believe the complainant.
(Id.) After spending roughly fourteen hours in jail in highly unsanitary
conditions, Mr. Bullard was released after he was arraigned in Bronx
Criminal Court on the previously cited charges. (Id. at ¶¶ 33-34.)
Stanley Bullard's fourth and final relevant arrest occurred on November
15, 2000. (Id. at ¶ 35.) The arrest came in response to an allegedly
false complaint filed by Jill Freshman Cohen two weeks earlier in which
she claimed that Mr. Bullard grabbed her by the throat and crotch and
threatened her. (Id. at ¶¶ 35-36.) Defendant Mazzilli notified
defendant Grice of the complaint and arrested Mr. Bullard with Unknown
Officer 5 at the Bronx Criminal Courthouse. (Id. at ¶ 36.) The
defendants eventually took Mr. Bullard to Central Booking where he was
placed in a crowded cell and sexually assaulted by two cellmates. (Id. at
¶¶ 36-37.) Although Mr. Bullard called for help, the officer guarding
the cell failed to intervene and asked Bullard, "Can't you fight?" (Id.
at ¶ 37.) Mr. Bullard obtained a transfer to another cell and was
arraigned in Bronx Criminal Court on charges of sexual abuse in the third
degree (N.Y. Penal L. § 130.55); criminal contempt in the second
degree (N.Y. Penal L. § 215.50); and harassment in the second degree
(N.Y. Penal L. § 240.46) before being released after thirteen hours
in custody. (Id. at ¶¶ 37-38.)
Judge Michael Sonberg of Bronx County Criminal Court presided over a
non-jury trial on or about December 14, 2000 on each of the charges
against Mr. Bullard. (Id. at ¶ 39.) The court ...