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CAMPBELL v. CITY OF 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 ...


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