Lorenz, a New York
City Police Detective arrested plaintiff and charged her with possession
of marijuana. (Complt. ¶ 9.) After her arrest, plaintiff was
separated from other arrestees and transported to various locations
around the city for several hours by NYPD officers. (Id.) During that
time she was rear-handcuffed and seated in the back of a police car.
According to plaintiff, no safety device was used to protect her from
possible injury. (Id.) At some point during her detention, plaintiff's
shirt began to slip off her shoulder. She informed the officers of her
situation and requested assistance to avoid humiliation and
embarrassment. Plaintiff maintains that although acknowledging her
situation and aware that because she was rear-handcuffed she could not
help herself, the officers deliberately failed and refused to assist
her. (Id.) Shortly thereafter, plaintiff's shirt fell off her shoulder,
leaving her breast fully exposed. Plaintiff was forced to remain in this
state for approximately seven minutes in full public view before she was
I. Standard of Review
On a motion to dismiss under Rule 12(b)(6), the issue is "whether the
claimant is entitled to offer evidence to support the claims." Scheuer,
416 U.S. at 236. A complaint should not be dismissed for failure to state
a claim "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."
Padavan v. United States, 82 F.3d 23, 26 (2d Cir. 1996) (quoting Hughes
v. Rowe, 449 U.S. 5, 10 (1980)).
Generally, "[c]onclusory allegations or legal conclusions masquerading
as factual conclusions will not suffice to prevent a motion to dismiss."
2 JAMES WM. MOORE ET AL., MOORE'S FEDERAL PRACTICE § 12.34[b] (3d
ed. 1997); see also Hirsch v. Arthur Andersen & Co., 72 F.3d 1085,
1088 (2d Cir. 1995). Allegations that are so conclusory that they fail to
give notice of the basic events and circumstances of which the plaintiff
complains are insufficient as a matter of law. See Martin v. New York
State Dep't of Mental Hygiene, 588 F.2d 371, 372 (2d Cir. 1978). Under
the relaxed federal pleading requirements, it is enough that the pleading
"contain `a short and plain statement of the claim' sufficient to put the
[adverse party] on notice of the grounds for which the [claimant] seeks
relief." Reuben H. Donnelley Corp. v. Mark I Mktg. Corp., 893 F. Supp. 285,
291 (S.D.N.Y. 1995) (Conner, J.) (quoting FED. R. Civ. P. 8(a)(2)).
"[T]he principal function of pleadings under the Federal Rules is to give
the adverse party fair notice. . . so as to enable [that party] to answer
and prepare for trial." Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir.
1988) (dismissal under Rule 8 "is usually reserved for those cases in
which the complaint is so confused, ambiguous, vague or otherwise
unintelligible that its true substance, if any, is well disguised").
Although the pleading requirements are construed liberally, "[l]iberal
construction has its limits, for the pleading must at least set forth
sufficient information for the court to determine whether some recognized
legal theory exists upon which relief could be accorded the pleader. If
it fails to do so, a motion under Rule 12(b)(6) will be granted."
2 MOORE's FEDERAL PRACTICE § 12.34[b] at 12-60 (3d ed.).
II. Section 1983 Claims
To state a cognizable claim under 42 U.S.C. § 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). It is undisputed that defendant Lorenz clearly acted
under color of state law because the actions about which plaintiff
complains were committed, in part, by defendant Lorenz as a detective in
the course of duty. See West v. Atkins, 487 U.S. 42, 49-50 (1988).
Defendants argue however, that plaintiff cannot maintain a claim under
§ 1983 because she has failed to demonstrate that she was deprived of
any constitutional right. (Defs. Mem. Supp. Mot. Dismiss at 3.) Plaintiff
maintains that she has properly asserted a § 1983 claim for a
violation of her rights under the Fourth Amendment. (Pl. Mem. Opp. Mot.
Dismiss at 4.) The Fourth Amendment states:
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.
U.S. CONST. amend. IV.
Our first inquiry, whether Detective Lorenz's actions constituted a
seizure under the Fourth Amendment, requires the Court to determine
whether a reasonable person in plaintiff's position would not have felt
free to leave the officers' custody. Tankleff v. Senkowski, 135 F.3d 235,
244 (2d Cir. 1998). According to the Complaint, plaintiff was
rear-handcuffed and held in the back of a police car for several hours.
(Complt. ¶ 9.) The officers' action in this case would certainly
convey to a reasonable person that he or she was not free to go about
their business. See California v. Hodari D., 499 U.S. 621, 628 (1991);
see also United States v. Moreno, 897 F.2d 26, 30 (2d Cir. 1990)
("When. . , an officer even briefly detains an individual and restrains
that person's right to walk away, he has effected a seizure and the
limitations of the fourth amendment become applicable."). Having
established that plaintiff's detention constituted a seizure under the
Fourth Amendment, our inquiry proceeds to the question of whether that
seizure was reasonable under the circumstances. See Whren v. United
States,517 U.S. 806, 810 (1996).
The "Fourth Amendment shields arrestees from police conduct that
unreasonably aggravates the intrusion on privacy properly occasioned by
the initial seizure." Lauro v. Charles, 219 F.3d 202, 212 (2d Cir.
2000). The courts have recognized that the constitutional right to
privacy also includes a right to bodily privacy. See, e.g., Hayes v.
Marriott, 70 F.3d 1144, 1146 (10th Cir. 1995); Fortner v. Thomas,
983 F.2d 1024, 1030 (11th Cir. 1993); Covino v. Patrissi, 967 F.2d 73, 78
(2d Cir. 1992). Plaintiff contends that the conditions of the seizure
were unreasonable in that the police officers, through their intentional
inaction after handcuffing and incapacitating plaintiff, violated her
right to privacy with respect to her unclothed body. (Pl. Mem. Opp. Mot.
Dismiss at 5.) Specifically, plaintiff alleges that Detective Lorenz and
other officers were aware that because she was rear-handcuffed, plaintiff
could not cover her exposed breast, but deliberately failed and refused
to assist her. (Complt. ¶ 9.) In Franklin v. Foxworth, 31 F.3d 873,
876 (9th Cir. 1994), the
court stated that "[a] detention conducted in
connection with a search may be unreasonable if it is unnecessarily
painful, degrading, or prolonged, or if it involves an undue invasion of
privacy." The fact that the police in Franklin did not initially clothe or
cover the plaintiff was one of the factors relied upon by the court that
led it to conclude that the officers' actions were unreasonable. In the
instant case, not only did the officers fail to clothe or cover plaintiff
but they also allegedly forced plaintiff to remain in this degrading
state for several minutes in full public view. Accepting as true these
factual allegations in plaintiff's Complaint, as we must in reviewing a
motion to dismiss, we believe plaintiff has sufficiently plead a
violation of her Fourth Amendment rights in support of her § 1983
III. Claims Against the NYPD
Defendants argue that all claims against the NYPD should be dismissed
as the NYPD is not a suable entity. We note at the outset that plaintiff
does not address these claims in its opposition papers, enabling the
Court to conclude that it has abandoned them. Singleton v. City of
Newburgh, 1 F. Supp.2d 306, 312 (S.D.N.Y. 1998) (Conner, J.) (plaintiff's
claim deemed "abandoned" and defendants' summary judgment granted where
claim was alleged in the complaint but "not raised elsewhere in the
record"); Anti-Monopoly, Inc., v. Hasbro, Inc., 958 F. Supp. 895, 907
(S.D.N.Y. 1997) ("[T]he failure to provide argument on a point at issue
constitutes abandonment of the issue."), aff'd, 130 F.3d 1101 (2d Cir.
1997). In any event, defendants are correct. See Connell v. City of New
York, 230 F. Supp.2d 432 (S.D.N.Y. 2002). Because the NYPD is not a
suable entity, plaintiff's claims can proceed only against Detective
Lorenz and the City of New York.
IV. Qualified Immunity
A defendant is entitled to qualified immunity if his conduct does not
violate "clearly established statutory or constitutional rights of which
a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800,
818 (1982). It is well settled that arrestees do not lose their
constitutional rights when they are in the custody of police officers. As
discussed, supra, in Part II., the Second Circuit has held that "When. .
an officer even briefly detains an individual. . , he has effected a
seizure and the limitations of the fourth amendment become applicable."
Moreno, 897 F.2d at 30. The issue at this stage of the analysis is the
more specific, "objective inquiry" of whether a reasonable officer could
have believed that handcuffing a female arrestee and placing her in the
back of a police car, knowing that her shirt was slipping off her
shoulder, thereby exposing her breast; and aware that because the
arrestee was rear-handcuffed, she could not help herself, yet
deliberately failing and refusing to assist her "was lawful, in light of
clearly established law and the information [the officer] possessed."
Wilson v. Layne, 526 U.S. 603, 609 (1999). In light of the facts
alleged, we believe the officers' conduct to be so clearly unreasonable
that no reasonable police officer should have believed that he was acting
in accordance with established law and procedure concerning the
detainment of arrestees. Consequently, Detective Lorenz is not entitled
to a defense of qualified immunity.
For the reasons stated above, defendants' motion to dismiss is granted
as to defendant, the New York City Police Department and denied as to all
claims asserted against defendants, the City of New
York and Detective
Lorenz. The Complaint is hereby dismissed as to defendant, the New York
City Police Department.