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.
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.
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
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
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.
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
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.
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.
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.
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