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CAMPBELL v. CITY OF NEW YORK

United States District Court, S.D. New York


April 29, 2004.

BERNEL CAMPBELL, Plaintiff, V. THE CITY OF NEW YORK, POLICE OFFICER WILLIAM BUCKLEY, DETECTIVE GONZALEZ, POLICE OFFICER ORTIZ, DOES 1-3 of the NEW YORK POLICE DEPARTMENT, DENISE RICHARDS, SHADRACH RICHARDS, RASHIMA RICHARDS, Defendants

The opinion of the court was delivered by: BARBARA JONES, District Judge

Opinion & Order

Plaintiff Bernel Campbell brings this action against Defendants the City of New York, Police Officer William Buckley, Detective Gonzalez, Police Officer Ortiz, John Does 1-3 of the New York City Police Department, Denise Richards, Shadrach Richards and Rashima Richards, alleging claims of malicious prosecution under State law, conspiracy, failure to supervise and retaliation under 42 U.S.C. § 1983 and conspiracy under 42 U.S.C. § 1985. Defendants move to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) on the grounds that the claims are barred by res judicata and that Plaintiff has failed to state legally valid claims. In the alternative, Defendants move to dismiss pursuant to Fed.R.Civ.P. 56(b). I. Facts

The following facts are either undisputed or as alleged by Plaintiff. On May 17, 1997, Plaintiff telephoned the New York City Police Department ("NYPD") to complain that he had been assaulted by Shadrach Richards ("Shadrach"), son of Plaintiff's ex-wife Denise Richards ("Denise"). Police Officer William Buckley (Buckley"), along with other unidentified officers, responded but did not arrest Shadrach.

  On December 28, 1997, Plaintiff called the police for assistance in enforcing a New York Supreme Court Visitation Order granting Plaintiff visitation rights to his natural children, who were in Denise's custody. Buckley again responded to the call, along with John Doe 1. Upon arriving at Plaintiff's home, in which Denise and her children were living, Buckley asked Denise whether she had an order of protection ("OOP"). After Denise responded that she did have an OOP, Buckley and John Doe 1 arrested Plaintiff ("Arrest #1").

  Plaintiff alleges that the OOP was only for Denise's daughter, Rashima Richards ("Rashima"), and that he was only in proximity to Denise and only pursuant to the visitation order allowing him to visit his own natural born children, who also lived with Denise. Plaintiff was imprisoned for seven days and released after paying bail of approximately $5,000 dollars. The charges against Plaintiff were later dismissed on the merits at trial on August 31, 1999.

  Following these incidents, Plaintiff filed a complaint with the Civilian Complaint Review Board ("CCRB") regarding Arrest #1. On October 11, 1998, Detective Gonzalez ("Gonzalez"), John Doe 2 and John Doe 3 arrived at Plaintiff's home, claiming to investigate Plaintiff's CCRB complaint. Instead of investigating the complaint, Gonzalez informed Plaintiff that Denise had telephoned the NYPD, alleging that Plaintiff had threatened to kill her. Gonzalez, Doe 2 and Doe 3 proceeded to arrest Plaintiff ("Arrest #2") for violating an OOP that had been issued on October 6, 1998, which barred Plaintiff from contacting or visiting the home of Denise, Rashima and Shadrach.

  Plaintiff contends that Denise made no allegation of a death threat by Plaintiff to Gonzalez prior to Plaintiff's arrest by Gonzalez, Doe 2 and Doe 3 on October 11, 1998. Instead, Plaintiff asserts, Gonzalez later had Denise sign an affidavit in order to justify the arrest post hoc. The charges against Plaintiff stemming from the October 11, 1998 arrest were dismissed on the merits on February 28, 2000.

  The OOPs were initially issued to Denise, Shadrach and Rashima because Plaintiff had been charged with raping Rashima on January 10, 1997. Plaintiff was acquitted of the rape charges at trial. Subsequent to the acquittal, Plaintiff unsuccessfully brought suit against Denise and certain members of the NYPD in civil court for conspiracy, false arrest and malicious prosecution arising out of the false rape charges.

  Plaintiff, here, asserts six separate claims relating to the events outlined above. Count I, arising under 42 U.S.C. § 1983, alleges a policy of conspiracy and cover-up that caused a deprivation of Plaintiff's rights as secured by the Fourth and Fourteenth Amendments to the Constitution. Count II is a malicious prosecution claim relating to the alleged violation by Plaintiff of an OOP on December 28, 1997. Count III is a malicious prosecution claim relating to the alleged violation by Plaintiff of an OOP on October 11, 1998. Count IV is a § 1983 claim for violation of Plaintiff's Fourth and Fourteenth Amendment rights, which resulted from the City's failure to supervise or discipline the NYPD officers and the employees of the Office of the District Attorney ("Monell claim"). Count V alleges a § 1983 violation by Defendants of Plaintiff's Fourth and Fourteenth Amendment rights in retaliation against Plaintiff for filing a CCRB complaint. Finally, Count VI, arising under 42 U.S.C. § 1985, alleges a conspiracy among Defendants to deprive Plaintiff of the equal protection of the law.

 II. Discussion

  Under Fed.R.Civ.P. 12(b)(6), a court may "dismiss a claim on the basis of a dispositive issue of law," Neitzke v. Williams, 490 U.S. 319, 326 (1989), by examining the legal sufficiency of the claim as opposed to the evidence underlying the factual issues. De Jesus v. Sears, Roebuck & Co., 87 F.3d 65, 69 (2d Cir. 1996). However, a "complaint may be dismissed only 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.'" Paulemon v. Tobin, 30 F.3d 307, 309 (2d Cir. 1994) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). Accordingly, a court must accept all allegations made in a complaint as true when deciding a motion to dismiss. Barnett v. Int'l Bus. Machines, 885 F. Supp. 581, 585 (S.D.N.Y. 1995).

 A. Res Judicata Does Not Bar Any Of Plaintiff's Claims

  Defendants move to dismiss Counts I-IV and VI based upon the theory that they are barred by res judicata. Under the doctrine of res judicata, "a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action." St. Pierre v. Dyer, 208 F.3d 394, 399 (2d Cir. 2000). For a suit to be barred by res judicata, the second suit must involve the same nucleus of operative facts as the first suit. See Waldman v. Village of Kiryas Joel, 207 F.3d 105, 108 (2d Cir. 2000).

  Defendants assert that Plaintiff's claims relating to Arrest #1 and Arrest #2 either were or should have been raised in Berne1 Campbell v. City of New York, No. 99 Civ. 5129, 2003 U.S. Dist. LEXIS 2793 (February 27, 2003) (Swain, J.), Plaintiff's previous lawsuit against the City. Plaintiff contends that because the trial judge in the previous lawsuit ruled that she would not hear evidence or try claims based on these arrests, they cannot be barred by res judicata.

  The claims in Plaintiff's first lawsuit related only to the prosecution of the rape charge against him. In the first lawsuit, Plaintiff asserted no claims associated with the prosecution of his alleged violations of the two OOPS at issue here. Because Plaintiff has not yet asserted any claims based upon the facts asserted here, Plaintiff's claims cannot be barred by res judicata.

  Nevertheless, Defendants argue that res judicata bars Plaintiff's claims because the facts supporting the claims arose prior to the date Plaintiff filed his first action. See Gonzalez v. New York City Police Department, et al., 00 Civ. 7069 (SAS), 2000 U.S. Dist. LEXIS 16959 (S.D.N.Y. November 20, 2000) (holding that plaintiff's second complaint was barred by res judicata because the facts essential to the second suit occurred prior to the date Plaintiff filed his first action).

  Defendant's reliance on Gonzalez is unpersuasive. In Gonzalez, the court found that the plaintiff's claims in both suits all stemmed from the same incident. Here, in contrast, Plaintiff's claims stem from three separate incidents — 1) the arrest and prosecution of Plaintiff for rape; 2) the arrest and prosecution of plaintiff for violating the OOP on December 28, 1997; and 3) the arrest and prosecution of Plaintiff for violating the OOP on October 11, 1998. Even though the facts that support the present suit occurred prior to Plaintiff's filing of the first suit, they did not involve the same nucleus of operative fact. Therefore, res judicata does not apply.

  Defendants also argue that Plaintiff's claims should be barred because his Complaint in Bernel Campbell v. City of New York, No. 99 Civ. 5129, included an allegation about the December 1997 arrest. While it is true that allegations regarding this arrest were included in this prior complaint, the complaint did not include a cause of action based on the arrest. It is unclear on the record currently before the Court whether the trial judge in the prior action refused to permit Plaintiff leave to amend his complaint to include a cause of action or whether the court's ruling merely prevented Plaintiff from introducing the arrest as evidence. In any event, it is clear that the trial court in Mr. Campbell's previous action did not permit him to litigate this arrest in the prior action, at least in part, because the arrest arises out of a separate set of facts than his arrest and prosecution for rape. Thus, res judicata will not bar this claim here. Cf. NLRB v. United Technologies Corp., 706 F.2d 1254, 1260 (2d Cir. 1983) (finding that res judicata does not apply where the claim at issue could not have been adjudicated on the basis of events, facts, or evidence involved in a previous suit).

 B. Malicious Prosecution Claims

  Defendants further argue that Plaintiff's claims of malicious prosecution must be dismissed because probable cause existed for the arrests. In order to state a claim for malicious prosecution under New York law, the plaintiff must demonstrate, among other things, lack of probable cause to commence the proceeding. Murphy v. Lynn, 118 F.3d 938, 947 (2d Cir. 1997), cert. denied, 522 U.S. 1115, 140 L.Ed.2d 114, 118 S.Ct. 1051 (1998). 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 v. Okst, 101 F.3d 845, 852 (2d Cir. 1996).

  1. Count II Of Plaintiff's Claim Is Dismissed Because Probable Cause Existed For Arrest #1

  Defendants argue that Plaintiff fails to allege lack of probable cause for Arrest #1 because he admits that the arresting officers acted upon an OOP that had been issued against Plaintiff. However, Plaintiff bases his assertion that there was lack of probable cause for Arrest #1 on the fact that he possessed a valid visitation order permitting him to visit his natural-born children. However, the fact that Plaintiff had a valid visitation order is irrelevant to the probable cause inquiry, because the arresting officer was justified in relying upon the order of protection to make the arrest. See Family Court Act § 168(1)(McKinney 1983) ("The presentation of a copy of an order of protection . . . to any . . . police officer shall constitute authority for him to arrest a person charged with violating the terms of such order . . . "); see also Otero v. Jennings, 698 F. Supp. 42, 45 (S.D.N.Y. 1988) ("New York equates an order of protection with a showing of probable cause."). Thus, Count II of Plaintiff's claim is dismissed.

  2. Count III Is Sufficient to Withstand Motion To Dismiss Because No Probable Cause Existed For Arrest #2

  Plaintiff contends that probable cause was lacking for Arrest #2 because it was based upon a fabricated report that the arresting officer asked Denise to file post hoc in order to justify the arrest. Accepting Plaintiff's allegations as true, Count III of Plaintiff's claim cannot be dismissed pursuant to Fed.R.Civ.P. 12(b)(6) because Plaintiff adequately alleges that the arresting officers did not have sufficient knowledge or reasonably trustworthy information to believe that Plaintiff had committed a crime. In addition, Defendants' motion for summary judgment on Count III is premature as discovery has not yet been conducted. C. Monell Claims — Counts IV and V — Are Sufficient To Withstand Motion To Dismiss

  A plaintiff who seeks to impose liability on a municipality under § 1983 must identify a custom or policy that deprived him of his constitutional rights. Monell v. Department of Social Services, 436 U.S. 658, 694 (1978). "There must be a direct causal link between a municipal action and the deprivation of federal rights." Board of County Commissioners of Bryan County v. Brown, 520 U.S. 397, 404 (1997).

  Plaintiff's Amended Complaint alleges that:

The City failed to adequately supervise or discipline the NYPD officers and the employees of the Office of the District Attorney . . . and, by inaction, allowed the formation of a custom, practice and policy to the detriment of Plaintiff which encouraged the absence of, or inadequate investigation and remedying of, instances of misconduct on the part of police officers and members of the District Attorney's Office, including those involved in the events herein.
The City of New York and officers Buckley and Gonzalez engaged in a custom, practice and policy to the detriment of Plaintiff which encouraged police officers to retaliate against citizens who file CCRB complaints against them . . .
(Compl. ¶¶ 44, 48). These allegations are sufficient to withstand a motion to dismiss. See Leather-man v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 113 So. Ct. 1160, 122 L.Ed.2d 517 (1993); see also Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002). Because discovery has not yet been conducted, Defendants' motion for summary judgment with respect to Counts IV and V is denied. Defendants are free to renew this motion at the close of discovery.

 D. Conspiracy Claims

  Defendants also move to dismiss Plaintiff's conspiracy claims, which arise under §§ 1983 and 1985.

  I. Plaintiff's § 1983 Conspiracy Claim — Count I — Is Sufficient To Withstand Motion To Dismiss

  Count I in Plaintiff's Amended Complaint alleges a conspiracy claim under § 1983 against Defendants Buckley, Gonzalez, John Does 1-3 and other city officials. Specifically, Plaintiff alleges that "Defendants . . . were acting . . . under color of the laws . . . of the City and State of New York in a policy of conspiracy and cover-up . . . thereby causing deprivation of [Plaintiff's] constitutional rights." (Amended Complaint, Exhibit A at ¶ 31). Plaintiff's allegations are sufficient to state a claim under § 1983. He has alleged a direct link between the actions of the Defendants, who, under color of state law, deprived Plaintiff of his constitutional rights. Since Plaintiff has alleged a sufficient claim under § 1983, Defendants' motion to dismiss Count I is denied. Also, Plaintiff must be allowed an opportunity to conduct discovery in order to demonstrate specific facts that show that there is a genuine issue for trial. Accordingly, Defendants' motion for summary judgment is denied at this time.

  2. Plaintiff's § 1985 Conspiracy Claim — Count VI — Is Dismissed For Failure To State A Claim

  Defendants also argue that Plaintiff's § 1985 conspiracy claim must be dismissed for failure to state a claim. To state a § 1985 conspiracy claim, a plaintiff must allege that actions of the alleged conspirators were motivated by racial or class-based discriminatory animus. Griffin v. Breckenridge, 403 U.S. 88, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971); Mian v. Donaldson, Lufkin & Jenrette Sec. Corp., 7 F.3d 1085, 1088 (2d Cir. 1993); Srubar v. Rudd, Rosenberg, Mitofsky & Hollender, 875 F. Supp. 155 (S.D.N.Y. 1994).

  Here, Plaintiff has failed to allege that the actions of the alleged conspirators were motivated by racial or class-based discriminatory animus. Accordingly, Count VI is dismissed.

 E. Plaintiffs Claims Against Defendant Ortiz Are Dismissed

  Finally, Defendants move to dismiss Plaintiff's claims against Defendant Ortiz because Plaintiff does not plead specific facts that Ortiz was personally involved in the deprivation of his constitutional rights. Plaintiff's Amended Complaint does not allege that Ortiz was present for either of the two arrests or that he was in any way involved in the alleged conspiracies. In fact, Ortiz is not mentioned at all in the factual allegations portion of Plaintiff's Amended Complaint. Thus, Plaintiff's claims against Oritz are dismissed.

 III. Conclusion

  For the reasons stated above, Defendants' motion to dismiss is granted with respect to Counts II and VI. Defendants' motion to dismiss Counts I, III, IV and V is denied. Defendants' motion to dismiss Plaintiff's claims against Defendant Ortiz is granted. Finally, Defendants' motion for summary judgment with respect to the claims not dismissed under Rule 12(b)(6) — Counts I, III, IV and V — is denied so that Plaintiff is afforded the opportunity to conduct discovery.

  The parties are directed to advise the Court, in writing, of the status of this, action no later than 30 days from the date of this Opinion.

  SO ORDERED

20040429

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