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April 7, 2003


The opinion of the court was delivered by: David G. Trager, United States District Judge


Plaintiff Henry Obilo brings this civil rights action against defendants City University of New York ("CUNY"), the College of Staten Island ("CSI"),*fn1 "Police Officer/Detective" Burgess ("Burgess"), "Public Safety Officer/Director" Gene Martinez ("Martinez"), "Public Safety Officer/Asst. Director" Robert Yurman ("Yurman"),*fn2 Vice President of CSI Carol Jackson ("Jackson"), and Police Officer "John Doe 1" thru "John Doe 5", alleging that plaintiff's arrest and subsequent prosecution for an alleged sexual assault violated various of his constitutional rights. In both his initial and amended complaint, plaintiff sued Burgess, Martinez and Yurman in their official capacity and Jackson in both her official and individual capacity. See Compl. ¶¶ 8-9, 11-12; Am. Compl. ¶ 7-8, 10-11.*fn3

Plaintiff's four count initial complaint is not the most artful pled. In Count I, plaintiff appears to allege claims against defendants CUNY, CSI, Martinez, Yurman and Jackson (collectively, "state defendants") under 42 U.S.C. § 1981 and § 1983, arguing that his detention by Martinez and Yurman, and their subsequent call to the NYPD, violated his rights under the Fourth Amendment to the Constitution. See Compl. ¶ 36.*fn4 Plaintiff also alleges that "the Board of Trustees of [CUNY], nor the Executive Department of [CSI] nor the Executive Department of the City of New York nor the [NYPD] caused an investigation to be made to ascertain the conduct of the defendant Polices Officers." Id. ¶ 34. In Count II, plaintiff seems to assert another § 1983 claim against Burgess and the state defendants, alleging that his arrest and prosecution violated his Fourth Amendment rights.*fn5 See id. ¶¶ 37-39. In Count IV, plaintiff asserts against Burgess pendent state law claims under New York law for false arrest and malicious prosecution. See id. ¶¶ 49-51. In addition, it appears that Count IV contains allegations of, inter alia, assault and intentional and negligent infliction of emotional distress against the unnamed police officers for failure to intervene and stop "the abuse" they were witnessing. Id. ¶ 50. As relief, plaintiff seeks $1 million in compensatory damages for each of Counts I and II, $500,000 in compensatory damages for Count IV, and $1 million in punitive damages for each of Counts I and IV.

Burgess moves to dismiss plaintiff's original complaint pursuant to Rule 12(b)(6) for failure to state a claim, arguing that (1) probable cause existed for plaintiff's arrest and subsequent criminal prosecution; (2) Burgess is entitled to qualified immunity; and (3) with regard to plaintiff's pendent state law claims, except malicious prosecution, plaintiff failed to comply with conditions precedent to suit. In a separate motion, state defendants move to dismiss the original complaint pursuant to Rules 12(b)(1) and 12(b)(6), claiming that (1) Eleventh Amendment immunity bars the § 1981 and § 1983 claims for money damages; (2) state defendants do not constitute "persons" subject to suit within the meaning of § 1981 and § 1983; and (3) the complaint fails to allege a viable claim against defendant Jackson.


Plaintiff, a black male student matriculating at CSI, alleges that on October 6, 1999,*fn6 he was escorted from class by campus security officers Martinez and Yurman and accused of criminal activity — sexually assaulting Kathleen Tomey ("Tomey"),*fn7 a white female college student who plaintiff alleges was his girlfriend. See Compl. ¶¶ 3, 16-18. At CSI, Plaintiff was "fully interrogated" by defendants Martinez and Yurman. Id. ¶ 20. During the interrogation, plaintiff "attempt[ed] to plead his innocence regarding the criminal allegations." Id. Nonetheless, Martinez and Yurman contacted the 122nd Precinct of the NYPD, and plaintiff was subsequently arrested and transported to the precinct. See id. ¶¶ 21-22. While in police custody, plaintiff spoke to Burgess and others, "pleading his innocence and informing them that he was not involved in the alleged criminal activity." Id. ¶ 22. Plaintiff was charged, arraigned and subsequently prosecuted by the District Attorney under Indictment No. 301/99 encaptioned People of the State of New York v. Henry Obilo. See id. ¶¶ 23-24. Plaintiff was acquitted of all charges on or about May 2, 2000, after a jury trial in the Supreme Court of the State of New York, County of Richmond. See id. ¶ 25.

On July 17, 2000,*fn8 plaintiff filed a Notice of Claim with the Comptroller of the City of New York. See id. ¶ 26. In the Notice of Claim, plaintiff indicated that the nature of his claim against the City of New York and CUNY was false arrest, unlawful detention, and malicious prosecution in that New York City police officers "fail[ed] to observe proper standards of investigation" when arresting him and, in concert with the District Attorney's office, "wrongfully prosecute[d] him." Notice of Claim ¶ 2. Plaintiff also stated that these alleged crimes were at the "urging" of CUNY and CSI officials.*fn9 Id. In addition, plaintiff indicated that his claim arose on or about May 3, 2000 when he was acquitted by a jury. See id. ¶ 3. According to plaintiff, a 50-h hearing was conducted on April 18, 2001, see Compl. ¶ 26, during which plaintiff was orally examined under oath about the occurrence and extent of the injuries presented in his Notice of Claim. See Notice of 50-h hearing, attached to Notice of Claim.

Plaintiff filed a timely complaint against all defendants on August 1, 2001. At a February 5, 2002 pre-motion conference, it was ordered that in lieu of permitting Burgess and the state defendants to proceed on their respective motions to dismiss, plaintiff was to file an amended complaint by March 8, 2002. See Tr. at 12-13, Attached to Decl. of Bruce McHale. When plaintiff failed to submit an amended complaint by early May 2002, a briefing schedule was approved for motions directed to the original complaint.

Plaintiff attached an amended complaint to his opposition memorandum dated June 13, 2002. The amended complaint seeks to sue Burgess, Martinez and Yurman in their individual as well as official capacity. Compare Am. Compl. ¶¶ 8, 10-11 with Compl. ¶¶ 9, 11-12. In addition, the amended complaint contains allegations that Jackson "coerced and forced and threatened the plaintiff and in effect disbarred and unlawfully removed the plaintiff as a student of [CSI], even though the plaintiff was duly qualified to be in attendance at [CSI]" in violation of unspecified constitutional rights. Am. Compl. ¶ 37. Count III of the amended complaint appears to assert a claim against Jackson for inadequate training and supervision of campus security officers. See id. ¶¶ 41-47. In all other respects, plaintiff's amended complaint is virtually identical to his original complaint.

To the extent that plaintiff seeks to belatedly introduce the amended complaint, state defendants argue that this request should be denied as futile because the amended complaint is subject to dismissal on the basis that (1) Martinez and Yurman had probable cause to detain plaintiff and/or (2) Martinez and Yurman are entitled to qualified immunity. State defendants do not, however, address the new claims asserted against Jackson. Burgess asserts that the amended complaint should be dismissed for the same reasons he argues with regard to the original complaint. For purposes of the current motions to dismiss, plaintiff's request will be entertained for the limited purpose of analyzing Burgess and state defendants' arguments on their respective motions with respect to the amended complaint to determine whether the amendment is futile.


Standard of Review

A complaint cannot be dismissed under Rule 12(b)(6) unless "it appears beyond reasonable doubt that the plaintiff can prove no set of facts in support of his claim which entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102 (1957). However, a complaint should be dismissed if an affirmative defense, or other defense barring relief, is apparent from the face of the complaint. See Pani v. Empire Blue Cross Blue Shield, 152 F.3d 67, 74-75 (2d Cir. 1998) (citations omitted). When determining the sufficiency of a plaintiff's claim, "consideration is limited to the factual allegations in [the] complaint, which are accepted as true, to documents attached to the complaint as an exhibit or incorporated in it by reference, to matters of which judicial notice may be taken, or to documents either in [plaintiff's] possession or of which plaintiff[] had knowledge and relied on in bring suit." Brass, 987 F.2d at 150 (citing Cortec, 949 F.2d at 47-48).

With Burgess' Notice of Motion, he attached a declaration from his lawyer, Conception A. Montaya, to which seven lettered exhibits were attached. These exhibits are as follows: (A) a copy of plaintiff's summons and original complaint; (B) a copy of the incident report filed by Tomey with CSI on October 2, 1999 ("incident report"); (C) a copy of the complaint filed by Tomey with the 122nd Precinct on October 2, 1999 ("police complaint"); (D) a copy of Burgess' complaint follow-up report (commonly referred to as a "DD5") dated October 3, 1999, which contains details about a conversation with Tomey ("October 3, 1999 DD5"); (E) a copy of Burgess' DD5 dated October 6, 1999, which contains details about a conversation with plaintiff ("October 6, 1999 DD5"); (F) a copy of plaintiff's handwritten statement to Burgess dated October 6, 1999 ("plaintiff's statement"); and (G) a copy of plaintiff's Notice of Claim filed with the Comptroller on July 17, 2000.*fn10 Plaintiff's complaint can obviously be considered as can plaintiff's Notice of Claim because, as indicated above, it was specifically referenced in his original and amended complaint. See Compl. ¶ 26.

Other exhibits may also properly be considered because they too were referenced (albeit implicitly) in plaintiff's complaint and/or are central to plaintiff's allegations.*fn11 First, plaintiff asserts that the allegations against him were of a "conspiratorial nature" and that he was therefore arrested and prosecuted without probable cause. Compl. ¶ 23-24; see also Compl. ¶ 35 (alleging actions were done "without any probable cause"). This is an implicit reference to the incident report and police complaint filed by Tomey, and the October 3, 1999 DD5, all of which set forth her allegations against plaintiff. Accordingly, these exhibits may be considered because they are incorporated by reference in the complaint.

Moreover, these documents are "central" to plaintiff's claims. See Adipar Ltd. v. PLD Int'l Co., CV-01-0765, 2002 WL 31740622, at * 4 & n. 1 (S.D.N.Y. Dec. 6, 2002) (citing Brass, 987 F.2d at 150); see also Cortec, 949 F.2d at 48 (determining that documents not publicly filed, attached to complaint nor incorporated by reference to it could be considered on 12(b)(6) motion because plaintiff did not lack notice of the documents and the documents were integral to its complaint); 5 C. Wright & A. Miller, Federal Practice & Procedure § 1327, at 489 & n. 15 (stating that when "plaintiff fails to introduce a pertinent document as part of his pleading, defendant may introduce the exhibit as part of his motion attacking the pleading"). Indeed, the Second Circuit has indicated that notice to the pleader is the critical element in determining whether extrinsic documents may properly be considered on a motion to dismiss. See Cortec, 949 F.2d at 48. If assertions in plaintiff's complaint are based on allegations of sexual assault by Tomey, it should come as no surprise to plaintiff if the documents that initiated those allegations are considered when determining whether to dismiss plaintiff's claims. Alternatively, at the very least, judicial notice can be taken of the fact that Tomey filed an incident report with CSI and a complaint with the NYPD, both on October 2, 1999, and that Burgess interviewed Tomey on October 3, 1999.

Second, plaintiff asserts that after being accused of sexual assault, he repeatedly proclaimed his innocence and that, while in police custody, he spoke to Burgess and informed the police that he was not involved in the alleged criminal activity. See Compl. ¶¶ 20, 22. Plaintiff also makes vague and generalized allegations about "clear and unequivocal evidence" of the conspiratorial nature of the allegations against him, id. ¶ 23, and "evidence tending to clearly exonerate" him. Id. ¶ 24. It appears that the "evidence" that plaintiff claims exonerates him is, or includes, the report from his conversation with Burgess and his written statement to the police.*fn12 If so, plaintiff's malicious prosecution claim is based on plaintiff's assertion that certain of the defendants and the state prosecutors rejected this evidence when determining whether to prosecute him. Accordingly, the October 6, 1999 DD5 and plaintiff's handwritten notes can properly be considered. As with consideration of the incident report and police complaint, consideration of these documents should not surprise plaintiff in light on the allegations of his repeated pronouncements of innocence to Martinez, Yurman, Burgess and others.

Lastly, Burgess also submitted an affidavit in support of his motion to dismiss in which he attests that he testified at neither the grand jury proceedings nor the trial proceedings in the criminal matter underlying plaintiff's lawsuit. See Burgess Aff. ¶¶ 3, 4. However, plaintiff's complaint does not reference his grand jury proceedings, although he does allege that he was indicted (presumably by the grand jury). Accordingly, it appears to be improper to consider Burgess' affidavit.*fn13

In sum, at the very least the contents of the Notice of Claim can be considered and judicial notice can be taken of the incident report, police complaint and two DD5s completed by Burgess. There is a strong argument that the contents of the incident report, police complaint, the two DD5s and plaintiff's handwritten statement can properly be considered as integral to plaintiff's complaint.

Defendant Burgess


Individual Capacity Claims

An individual capacity suit seeks to impose personal liability on an official for actions taken under color of state law. In his amended complaint, plaintiff seeks to assert a § 1983 claim for false arrest and malicious prosecution against Burgess, alleged to be an NYPD officer, in his official capacity. To assert a § 1983 claim, plaintiff must allege that Burgess "acting under color of state law, caused the deprivation of a federal right." Hafer v. Melo, 502 U.S. 21, 25, 112 S.Ct. 358, 362 (1991) (citing Graham, 473 U.S. at 166, 105 S.Ct. at 3105). In his complaint, plaintiff alleges that Burgess was acting under color of state law. See Compl. ¶ 15. Therefore, the critical issue is whether plaintiff adequately alleges a claim for false arrest or malicious prosecution against Burgess.

False Arrest

Probable cause to arrest is a complete defense to an action for false arrest, whether the action is brought under state law or § 1983. See Singer, 63 F.3d at 188 (citing Bernard v. United States, 25 F.3d 98, 102 (2d Cir. 1994)); Broughton v. State, 37 N.Y.2d 451, 458, 335 N.E.2d 310, 315, 373 N.Y.S.2d 87, 95 (1975). Burgess maintains that he had probable cause to arrest plaintiff because he relied on (1) Tomey's complaint and her identification of plaintiff, (2) his own observations, which corroborated Tomey's allegations that she was accosted by plaintiff, and (3) information provided by Martinez and Yurman, who were investigating the same complaint.*fn14 In response, plaintiff argues that Burgess' "exclusive reliance" on Tomey's statements as a basis for probable cause is without merit.

Plaintiff also incorrectly asserts that the "critical element of the tort [sic] of false arrest and malicious prosecution is not whether there was probable cause to effectuate the arrest, but rather whether there was a `reckless disregard'" by defendants for plaintiff's constitutional rights. Pl.'s Opp'n, Point II. Plaintiff then asserts that "malice can be inferred from the fact that the defendant may have acted with reckless disregard for the rights of another party." Id. In support of this position, plaintiff cites two cases from the State of Mississippi. Plaintiff appears to have confused the tort of false arrest with that of malicious prosecution and to have introduced a subjective determination into the analysis of probable cause in the false arrest context.

Actual malice is not an essential element of an action for false arrest; it is, however, an essential element of an action for malicious prosecution. Broughton, 37 N.Y.2d at 456-57, 373 N.Y.S.2d at 93-94, 335 N.E.2d at 314. Moreover, "[p]robable cause consists of such facts and circumstances as would lead a reasonably prudent person in like circumstances to believe the plaintiff guilty," clearly an objective standard. Colon v. City of New York, 60 N.Y.2d 78,82, 455 N.E.2d 1248, 1250, 468 N.Y.S.2d 453, 455 (1983); see also Maryland v. Macon, 472 U.S. 463, 470-71, 105 S.Ct. 2778, 2782-83 (1985); Lee v. Sandberg, 136 F.3d 94, 103, n. 5 (2d Cir. 1997); 1 LaFave and Israel, Criminal Procedure § 3.3, at 188 (stating the probable cause test is "an objective one"). Thus, the crucial issue is whether the facts in Burgess' possession at the time he arrested plaintiff were sufficient to establish probable case for the arrest and not whether he acted in "reckless disregard" given the facts at hand. Burgess contends that probable cause is established by the allegations in plaintiff's complaint and the supporting documents.

"In general, probable cause exists when the officers have knowledge or reasonably trustworthy information of facts and circumstances that are sufficient to warrant a person of reasonable caution in the belief that the person to be arrested has committed or is committing a crime." Weyant, 101 F.3d at 852. Moreover, "a finding of probable cause can be made based on the `totality of the circumstances.'" Bernard, 25 F.3d at 102 (quoting Ill. v. Gates, 462 U.S. 213, 230, 103 S.Ct. 2317, 2328 (1982)). In evaluating probable cause to arrest, the court should consider the information available to the arresting officer at the time of arrest. See Peterson v. County of Nassau, 995 F. Supp. 305, 313 (E.D.N.Y. 1998) (citing Anderson v. Creighton, 483 U.S. 635, 641, 107 S.Ct. 3034, 3040 (1987)).

In this case, Burgess relied on several factors in reaching probable cause to arrest plaintiff. First, Burgess relied on information provided by the security officers at CSI, including Martinez and Yurman, who were investigating the same complaint filed by Tomey in a CSI incident report. Plaintiff's complaint establishes that, as part of Martinez and Yurman's investigation, they "fully interrogated" plaintiff before contacting the NYPD. To establish probable cause to effect an arrest, officers are allowed to rely on information provided to them by fellow officers. See Bernard, 25 F.3d at 102-03; see also Martinez v. Simonetti, 202 F.3d 625, 634 (2d Cir. 2000) (citing Bernard, 25 F.3d at 102-03). Even if the information relied upon turns out to be false, there is still probable cause to arrest if the arresting officer acted reasonably and in good faith in relying on the information. See Bernard, 25 F.3d at 102-03 (citing Colon, 60 N.Y.2d at 82, 455 N.E.2d at 1250, 468 N.Y.S.2d at 455). Here, Burgess investigated Tomey's complaint after she filed an incident report at CSI and after CSI investigated the same complaint. Plaintiff's complaint asserts no viable challenge to Martinez and Yurman's investigation. Thus, Burgess had every right to rely on the CSI investigation in establishing probable cause to arrest plaintiff.

Second, Burgess interviewed the complainant, Tomey, one day after she filed her police complaint.*fn15 See October 3, 1999 DD5. It is well-established law in the Second Circuit that "[a]n arresting officer advised of a crime by a person who claims to be the victim, and who has signed a complaint . . . charging someone with the crime, has probable cause to effect an arrest absent circumstances that raise doubts as to the victim's veracity." Singer, 63 F.3d at 199; accord Mistretta v. Prokesch, 5 F. Supp.2d 128, 133 (E.D.N.Y. 1998); Miloslavsky v. AES Eng'g Soc'y, Inc., 808 F. Supp. 351, 355 (S.D.N.Y. 1992), aff'd without opinion, 993 F.2d 1534 (2d Cir. 2003). In addition, "the veracity of citizen complaints who are the victims of the very crimes they report to the police is assumed." Lee, 136 F.3d at 103 (quoting Miloslavsky, 808 F. Supp. at 355)); see also 2 Wayne LaFave, Search and Seizure, § 3.4(a), at 205 (noting that the Supreme Court has "proceeded as if veracity may be assumed when information comes from the victim of . . . criminal activity"). In this case, the veracity of Tomey's complaint was bolstered when, during Burgess' interview of Tomey, he observed bruises on her left and right arms that were consistent with her allegations that plaintiff physically accosted her. See October 3, 1999 DD5. Moreover, Tomey identified plaintiff in person as her assailant. See October 6, 1999 DD5.

While plaintiff alleges that Tomey was his girlfriend, his complaint is devoid of any allegations that Tomey was an incredible complainant. C.f. Mistretta, 5 F. Supp.2d at 133 ("The most common situation in which [doubts as to veracity] arise is when there exists a prior relationship between the victim and the accused that gives rise to a motive for a false accusation."). In fact, all plaintiff appears to assert is that he was arrested despite his repeated protestations of innocence. See Compl. ¶¶ 20 (alleging Martinez and Yurman contacted police despite plaintiff's proclamations of innocence), 22 (alleging Burgess detained, charged and arraigned plaintiff despite his pronouncements of innocence). In his opposition papers, plaintiff also asserts that all defendants in this case failed to investigate further the allegations of sexual abuse before arresting plaintiff.*fn16 See Pl.'s Opp'n, Point II. However, the Second Circuit has rejected the argument that conflicting accounts from an alleged victim and an arrestee should have prompted a more thorough investigation by police. Indeed, a finding of probable cause is not foreclosed where a police officer is presented with different stories from an alleged victim and an arrestee. See Curley v. Village of Suffern, 268 F.3d 65, 70 (2d Cir. 2001) (citing Singer, 63 F.3d at 113, 119); Ricciuti v. New York City Transit Auth., 124 F.3d 123, 128 (2d Cir. 1997). In any event, despite plaintiff's assertion, Burgess did not merely rely on Tomey's complaint and identification of plaintiff; he also relied on CSI's investigation and his own observations which corroborated Tomey's allegations.

Moreover, "[o]nce a police officer has a reasonable basis for believing there is probable cause, he is not required to explore and eliminate every theoretically plausible claim of innocence before making an arrest." Ricciuti, 124 F.3d at 128 (finding probable cause even though police officer chose to believe claimed victim's version of a fight based on visible injuries, notwithstanding the alleged assailants cries of innocence); see also Curley, 268 F.3d at 70 ("Although it would have been better procedure for the arresting officers to investigate plaintiff's version of events more completely, the arresting officer does not have to prove plaintiff's version wrong before arresting him.") (citing Krause v. Bennett, 887 F.2d 363, 373 (2d Cir. 1989)); Mistretta, 5 F. ...

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