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United States District Court, S.D. New York

May 6, 2004.

THEOPHELUS HILL, Plaintiff, -v.- PHILIP MORRIS USA, THE PROMOTION NETWORK, and MARK SANNA, Chief of Security, Philip Morris, USA, Defendants

The opinion of the court was delivered by: GERARD E. LYNCH, District Judge


Theophelus Hill brought this action against his former employer, The Promotion Network ("TPN"), TPN's client, Philip Morris USA ("PMUSA"), and Mark Sanna, a security employee of PMUSA, alleging various federal civil rights violations and pendent intentional-tort claims under New York law. Defendants move to dismiss pursuant to Fed.R.Civ.P. 12(b)(6).*fn1 On April 2, 2004, the Court held oral argument and thereafter invited limited additional briefing. For the reasons that follow, defendants' motions will be granted. BACKGROUND

  The facts set forth below are drawn from the complaint and must be accepted as true for purposes of this motion to dismiss. See Bolt Elec., Inc. v. City of New York 53 F.3d 465, 469 (2d Cir. 1995). TPN, which provides advertising and promotional services, employed Hill, an African-American male, from 1998 until April 30, 2001. (Compl. ¶¶ 3, 9, 16, 26.) In September 1999, Hill relocated to TPN's New York office, located at 120 Park Avenue in Manhattan, to work on various matters for TPN's client PMUSA, which has an office in the same building. (Id. ¶¶ 9-10.)

  On August 30, 2000, Sven Bergman, an employee of PMUSA, reported his wallet stolen. (Id. ¶ 11.) Later that morning, someone made purchases at various retail establishments near 120 Park Avenue using both personal and PMUSA business credit cards from Bergman's wallet. (Id. ¶¶ 11-13.) Sanna, on behalf of PMUSA, filed a complaint report with the New York City Police Department ("NYPD"), and thereafter, PMUSA security personnel, "acting in cooperation with and at the direction of the [NYPD]," investigated the theft and subsequent use of the credit cards. (Id. ¶ 14.) Based on security videotapes recorded at two of the retail establishments where cards from Bergman's wallet were used, PMUSA identified the perpetrator of the theft as a black male with a shaved or bald head, a description that fits Hill. (Id. ¶¶ 15-16.) According to Hill, "Philip Morris security personnel conducted their investigation under the supervision and at the direction of [the NYPD]." (Id. ¶ 35.)

  PMUSA security personnel showed Hill's photograph, and only that photograph, to clerks at two of the retail establishments, and the clerks identified Hill as the suspect. (Id. ¶¶ 17-19.) On September 6, 2000, Sanna and other PMUSA employees told TPN officials that they thought Hill stole Bergman's wallet, and the TPN officials, allegedly "acting at the direction of Philip Morris security," subsequently informed Hill that he was considered a suspect. (Id. ¶¶ 20-21.) The next day, again acting "at the direction of PMUSA," TPN placed Hill on paid leave and ordered him to stay away from its office and not contact anyone at PMUSA or TPN. (Id. ¶ 22.)

  On September 13, 2000, NYPD Detective Anthony Castiglia arrested Hill, charged him with forgery, larceny, and criminal possession of stolen property, and took him into custody. (Id. ¶ 23.) Hill posted bail and was released after two and one-half days. (Id. ¶ 24.) On October 17, 2000, Hill learned that a New York grand jury had indicted him, but on April 5, 2001, a judge dismissed the indictment because Hill had not been afforded the opportunity to testify before the grand jury. (Id. ¶ 25.) On April 17, 2001, TPN told Hill that it would terminate his paid leave and discharge him as of April 30, 2001. (Id. ¶ 26.) On July 9, a new grand jury indicted Hill for burglary, grand and petit larceny, criminal possession of stolen property, and attempt. (Id. ¶ 28.) On January 9, 2002, a judge dismissed the attempt and petit larceny charges, and on October 22, after receiving exculpatory evidence from Hill's counsel, the New York County District Attorney notified Hill that it would move to dismiss the other charges. On November 12, all remaining charges were dismissed, and on December 12, the records of the proceedings against him sealed. (Id. ¶¶ 29-32.)


 I. Standard on a Motion to Dismiss

  On a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), the Court must accept as true all well-pleaded factual allegations in the complaint and view them in the light most favorable to the plaintiff, drawing all reasonable inferences in his favor. Leeds v. Meltz, 85 F.3d 51, 53 (2d Cir. 1996). The Court will not dismiss a complaint 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 that would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). But "[w]hile the pleading standard is a liberal one, bald assertions and conclusions of law will not suffice." Leeds, 85 F.3d at 53; see also De Jesus v. Sears, Roebuck & Co., 87 F.3d 65, 70 (2d Cir. 1996) ("A complaint which consists of conclusory allegations unsupported by factual assertions fails even the liberal standard of Rule 12(b)(6).") (internal quotation marks omitted.)

 II. 42 U.S.C. § 1983

  Hill brings three claims against PMUSA under 42 U.S.C. § 1983, which provides a right of action to persons deprived of constitutional rights under color of state law. "To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law." West v. Atkins, 487 U.S. 42, 48 (1988). Hill alleges that by conducting only a cursory investigation of the theft of Bergman's wallet, and by showing only his picture during that investigation, PMUSA, "acting under the direction of the [NYPD]," caused him to be arrested falsely and prosecuted maliciously, on the basis of his race, in violation of the Fourth, Fifth, and Fourteenth Amendments to the Constitution. (Compl. ¶¶ 36-41.)

  Hill's § 1983 claims fail because the complaint does not adequately allege state action. It contains no allegations showing concerted action by PMUSA and the NYPD. In Ciambriello v. County of Nassau, 292 F.3d 307 (2d Cir. 2002), the Second Circuit emphasized that "[a] merely conclusory allegation that a private entity acted in concert with a state actor does not suffice to state a § 1983 claim against the private entity." Id. at 324. Here, except for the oft-repeated, but entirely conclusory, allegation that PMUSA's security personnel acted at or under "the direction of the NYPD (Compl. ¶¶ 14, 35, 37, 39, 41), the complaint is completely devoid of allegations suggesting PMUSA's complicity "in joint activity with the State or its agents" to violate Hill's rights. Spear v. Town of West Hartford, 954 F.2d 63, 68 (2d Cir. 1992) (internal quotation marks omitted).*fn2 Hill alleges no concrete act or statement whatsoever of any NYPD member or anyone else that permits a factual inference that a state officer directed either employment decisions relative to Hill or the investigation undertaken by PMUSA's security employees.

  Hill's citation to this Court's decision in Lucas v. Novogratz, No. 01 Civ. 5445, 2002 WL 31844913 (S.D.N.Y. Dec. 18, 2002), is unavailing. (P. Br. 7.) In Lucas, the plaintiff "presented supporting operative facts tending to show agreement and concerted action between the private party and the state actors." Id. at * 4 (internal quotation marks and alterations omitted). Indeed, the plaintiff in Lucas alleged six specific statements or acts of the defendants that, "if proved, might support an inference of joint action or agreement between [the private defendants] and [a defendant police officer]." Id. at *5.*fn3 Here, none of the factual averments in Hill's complaint (as opposed to the wholly conclusory claim that PMUSA's security personnel worked at or under "the direction of the NYPD), even if proved, would permit an inference of joint action between PMUSA and the NYPD.

  At oral argument, the Court invited Hill to submit authority for the proposition that for a § 1983 plaintiff to plead state action, it suffices for him to allege, without any supporting factual averments, that the defendants "worked with the cops" (Tr. 9.) In Niemann v. Whalen, 911 F. Supp. 656 (S.D.N.Y. 1996), the sole case cited by Hill in response to this request, the court held that the plaintiff introduced sufficient circumstantial evidence of a conspiracy between a police officer and a bank security employee, both of whom she named as defendants, to survive summary judgment. Id. at 664-65. The plaintiff introduced evidence that, if credited, would have amply supported an inference that the bank's security officer had conspired with the investigating police officer to interrogate her in a manner that violated her constitutional rights. See id. at 662. To the extent that Niemann, a summary judgment decision, provides guidance here, it does not support Hill's position. Unlike Niemann, Hill has not named any state official as a defendant and alleges no facts that, if proved, would support an inference that Sanna or another PMUSA employee conspired with the NYPD to violate his rights. Accordingly, Hill's complaint fails to state a claim under 42 U.S.C. § 1983. See Studifin v. N.Y. City Police Dep't. 728 F. Supp. 990, 993 (S.D.N.Y. 1990) ("Even a pro se plaintiff must allege some factual basis to substantiate his conclusion that defendants [a private party and a police officer] conspired together," and thus, "[p]laintiff's one-sentence allegation of conspiracy, without supporting facts or specification of time, place, persons, and dates pertaining to the alleged conspiracy, fails to charge a conspiracy with sufficient particularity to make out a section 1983 claim against th[e] private party.") (footnote omitted); see also Johnson ex rel. Johnson v. Columbia Univ., No. 99 Civ. 3415, 2003 WL 22743675, at *4 (S.D.N.Y. Nov. 19, 2003). III 42 U.S.C. SS 1981 and 1985(3)

  Hill also alleges violations of 42 U.S.C. § 1981 and 1985(3), which do not require state action. His fourth and fifth claims allege that by "causing [Hill] to be falsely arrested and maliciously prosecuted based on a cursory investigation and on the basis of race," PMUSA and TPN denied him the rights to make and enforce contracts and to the "equal benefit of law and proceedings for security of persons and property." (Id. ¶¶ 43, 45.) His eleventh claim alleges that "[PMUSA] and TPN intentionally conspired to deprive plaintiff of equal protection of laws by terminating his employment, based on his race, in violation of 42 U.S.C. § 1985(3)." (Id. ¶ 57.) These claims fail for lack of factual allegations sufficient to give rise to an inference of discriminatory intent.

  To state a claim under § 1981, the plaintiff must allege: "(1) the plaintiff is a member of a racial minority; (2) an intent to discriminate on the basis of race by the defendant; and (3) the discrimination concerned one or more of the activities enumerated in the statute (i.e., make and enforce contracts, sue and be sued, give evidence, etc.)." Mian v. Donaldson, Lufkin & Jenrette Sec. Corp., 7 F.3d 1085, 1087 (2d Cir. 1993). To state a claim under § 1985(3), the plaintiff "must allege, inter alia, that the defendants who allegedly conspired sought, with discriminatory intent, to deprive the plaintiff of a right covered by the Constitution or other laws." Spencer v. Casavilla, 903 F.2d 171, 174 (2d Cir. 1990) (emphasis added); see also Mian, 7 F.3d at 1087.

  Hill must therefore allege facts from which discriminatory intent can be inferred. Albert v. Carovano, 851 F.2d 561, 571-72 (2d Cir. 1988) ("Essential to an action under Section 1981 are allegations that the defendants' acts were purposefully discriminatory."); Jenkins v. Arcade Bldg. Maint., 44 F. Supp.2d 524, 528 (S.D.N.Y. 1999) (emphasizing that for a § 1981 complaint "to survive a motion to dismiss, the events of the intentional and purposeful discrimination, as well as the racial animus constituting the motivating factor for the defendant's actions must be specifically pleaded") (internal quotation marks omitted); see also Martin v. N.Y. State Dep't of Mental Hygiene, 588 F.2d 371, 372 (2d Cir. 1978) (conclusory allegations fail to state a claim under the Civil Rights Acts). While racial bias, both intentional and subconscious, doubtless continues to affect many areas of life in the United States, §§ 1981 and 1985(3) make actionable only purposeful discrimination. Gen. Bldg. Contractors Ass'n, Inc. v. Pennsylvania, 458 U.S. 375, 390 (1982): Griffin v. Breckenridge, 403 U.S. 88, 102 (1971); see also Bray v. Alexandria Women's Health Clinic, 506 U.S. 263, 268-69 (1993); De Jesus-Keolamphu v. Vill. of Pelham Manor, 999 F. Supp. 556, 564-65 (S.D.N.Y. 1998); Bailey v. City of New York, No. 98 Civ. 1812, 2003 WL 21031972, at *7 (S.D.N.Y. May 2, 2003). Mere "intent as volition or intent as awareness of consequences" does not establish a discriminatory purpose; the actor must have "selected or reaffirmed a particular course of action at least in part `because of,' not merely `in spite of/ its adverse effects upon an identifiable group." Personnel Adm'r of Mass, v. Feeney, 442 U.S. 256, 279(1979).

  Hill's complaint does not plead purposeful racial discrimination. That PMUSA security officers showed only Hill's picture to the store clerks who identified him as the suspect does not give rise to an inference of racial animus on the part of PMUSA. Hill does not allege that PMUSA security officers engaged in racial profiling or assumed that the perpetrator of the theft must be black. Rather, by Hill's own allegations, he was identified as the suspect because the store videotapes showed an African-American man with a shaved or bald head using Bergman's purloined credit cards. That is how Hill describes himself, and he worked in the same building as Bergman. It hardly seems surprising that PMUSA's suspicions focused on Hill, and he alleges only in conclusory terms, devoid of any factual allegations, that "had the alleged perpetrator been Caucasian, Philip Morris security personnel would have shown an array of photographs to the salesclerks, not only one." (Id. ¶ 34.) The complaint provides no factual allegations to support that assertion. It does not allege, for example, that in cases involving Caucasians suspected of theft, PMUSA's security personnel have proceeded differently.

  The Court recognizes that standard and proper police practice would have been to show Hill's photograph as part of an array of photographs of men who similarly fit the description of the thief. By failing to follow that procedure, PMUSA's security employees gave the witnesses no alternatives to consider, implicitly suggested that they already knew the thief s identity, and thereby increased the risk of an incorrect identification. Still, PMUSA's employees violated no law by performing a sloppy investigation of the incident, and their failure to exercise due care does not, without more, give rise to an inference of racial animus. The complaint simply fails to allege any facts supporting the claim that PMUSA would have behaved more professionally had a white employee been similarly identified as the suspect.

  In Boomer v. Bruno, 134 F. Supp.2d 262 (N.D.N.Y. 2001), the court dismissed a § 1981 complaint based on factual allegations strikingly similar to those presented here. The plaintiff in Boomer alleged that the defendant police officers caused his arrest and indictment based on a single still photograph taken during an undercover narcotics investigation, even though one of the defendants, before testifying to the grand jury, became "aware of the possible existence of a photograph . . . on file which could be used either to confirm that Plaintiff was the suspect or to exonerate him." Id. at 265. Based on that defendant's testimony, a grand jury voted to indict, and as the plaintiff could not afford bail, he remained in jail for six weeks. Id. Subsequently, as here (Compl. ¶¶ 30-31; Tr. 5), a more careful analysis and comparison of the photograph with the plaintiff made it "obvious that the `wrong person' was in custody" Id. After being exonerated, the plaintiff brought suit, claiming, inter alia, a violation of § 1981, based on the allegation "that the proper identification procedures were not followed `because both the suspect and plaintiff were African-American males.'" Id. at 269 (quoting the complaint).

  The court found the plaintiff's allegation insufficient to sustain a § 1981 claim because he did not plead specific facts permitting an inference of discriminatory intent, "[i]n particular, . . . that any similarly situated non-African Americans were treated differently by Defendants." Id. Furthermore, the court specifically found unavailing the plaintiff's argument, identical to the one Hill urges here, "that a reasonable inference should be drawn . . . that, if a young white male had been indicted and incarcerated under similar circumstances, Defendants would have made additional efforts to verify his identity." Id. Finally, even if that inference could be drawn, the court made clear that to state a claim, the plaintiff would be required to plead "that similarly situated individuals have been treated differently, not that they would be treated differently." Id. (emphasis added).

  The reasoning in Boomer applies equally to Hill's complaint. Its sole specific factual allegation — that PMUSA conducted a sloppy investigation by showing only Hill's photograph to the store witnesses — does not permit an inference of purposeful discriminatory intent in the absence of an allegation that PMUSA has treated similarly-situated Caucasians differently. See id. (emphasizing that "[c]omplaints must `specifically allege the events claimed to constitute intentional discrimination as well as circumstances giving rise to a plausible inference of racially discriminatory intent'"), quoting Yusuf v. Vassar College, 35 F.3d 709, 713 (2d Cir. 1994); see also Albert, 851 F.2d at 572 (finding the allegation that a college selectively enforced its rules against the plaintiffs on the basis of their race "too conclusory to survive a motion to dismiss"); Davidson v. Citvcorp/Citibank, N.A., No. 90 Civ. 941, 1990 WL 96991, at *4 (S.D.N.Y. July 2, 1990) (allegation that defendant bank denied plaintiff's application for credit despite "plaintiffs' superior credentials and assets, which equal or exceed the majority of white applicants," held insufficient to establish discriminatory intent absent allegation that bank granted the applications for credit of such white applicants).*fn4

  Finally, even assuming the truth of Hill's allegation that PMUSA would have investigated a suspected Caucasian thief more carefully — by showing an array of photographs of similarly-featured Caucasians rather than only the photograph of the suspect — Hill would still be unable to state a claim under §§ 1981 or 1985(3). The factual allegations must permit an inference that PMUSA treated Hill differently not only "in spite of the potential for such treatment adversely to affect African-Americans, but "at least in part `because of" that effect. See Feeney, 442 U.S. at 279; see also Eagleston v. Guido, 41 F.3d 865, 878 (2d Cir. 1994). None of Hill's allegations supports that inference. To the contrary, under the very circumstances pled by Hill, the natural inference is that PMUSA suspected Hill because his description matched that provided by the store videotape recordings and because he worked in the same building as Bergman.

  The Court is not unsympathetic to Hill's situation. Assuming the truth of the allegations, Hill, through no fault of his own, lost his job and suffered severe damage to his reputation as a consequence of what appears to have been a case of mistaken identity. But the law does not and cannot provide redress for every wrong. Given the sad history of race in this country, it may well be inevitable that a person of color in Hill's position would believe that he has been a victim of discrimination. Indeed, given that history, it is certainly possible that white investigators might have been more solicitous of a white suspect. But as a matter of law, a legal remedy only exists for intentional racial discrimination. This is not a case in which the investigators chose a suspect in a way that could have been influenced by racial bias. Hill does not allege that he became a suspect because of racial prejudice. Rather, he alleges that, having become a suspect for logical, objectively appropriate reasons, he fell victim to a sloppy investigation, conducted with negligent techniques and a lack of due care. But carelessness knows no color and does not, without more, evince racial animus. Absent an allegation of a track record of better performance with white suspects, intentional discrimination cannot be inferred simply from the race of a victim of less than optimal investigative procedures.

  Accordingly, Hill's §§ 1981 and 1985(3) claims are dismissed for lack of an adequate allegation of purposeful discriminatory animus.

 IV. Pendent Claims

  Hill seeks to bring pendent claims under New York State law for false arrest, malicious prosecution, tortious interference with contract, intentional infliction of emotional distress, wrongful termination, and violations of the New York State Human Rights Law and the New York City Human Rights Law. Because no federal claims remain, however, the Court declines to exercise supplemental jurisdiction over these state-law claims. See Giordano v. City of New York, 274 F.3d 740, 754 (2d Cir. 2001) (noting that, as a general matter, where all federal claims have been dismissed before trial, pendent state claims should be dismissed without prejudice and left for resolution to the state courts; collecting cases).

 V. Leave to Replead

  Finally, Hill seeks leave to replead should the Court grant defendants' motions. (P. Br. 1, 15.) In general, leave to replead should be "freely given when justice so requires." Fed.R.Civ.P. 15(a). But leave to replead may be denied if repleading would be fufile. Acito v. IMCERA Group, Inc., 47 F.3d 47, 55 (2d Cir. 1995). Hill's complaint sets forth the narrative basis for his claims. He explains how PMUSA, TPN, and indeed the New York State authorities, came to suspect him of the theft of Bergman's wallet, and the consequences of that suspicion: his arrest and prosecution, and his ultimate discharge by TPN. But for the reasons set forth above, none of the factual allegations give rise to an inference of state action or purposeful racial discrimination, prerequisites to the various claims made. To give Hill leave to replead would be to invite him to offer a new narrative, not to furnish details that could salvage the original one, for such details, if they exist, would have been included in the first instance. Hill filed this complaint on September 9, 2003, about eighteen months after the last allegedly unlawful act by the defendants, TPN's discharge of Hill on April 30, 2001. It strains credulity that Hill, represented by counsel, failed to include factual details that could further buttress the causes of action asserted on the basis of the narrative described in the complaint.

  Indeed, Hill does not offer any additional facts that he could or would add to an amended complaint. He admits that he would only be able to allege facts explaining how TPN, PMUSA, and the NYPD cooperated with one another, as well as "when or where such cooperation took place," after discovery. (P. Br. 8.) But it is not sufficient to say that appropriate allegations to plead a sufficient cause of action will be made after pre-trial discovery. Conley v. Gibson [ 355 U.S. 41, 45-46 (1957)], . . . does not authorize parties to use an insufficient complaint with a conclusory allegation as a hunting license to discover whether in fact a viable claim may be alleged. The discovery rules are designed to support a properly pleaded cause of action and to prepare defenses to charges made[,] not to discover whether a claim exists.

 Am. Communications Ass'n, Local 10, 1.B.T. v. Ret. Plan for Employees of RCA Corp. and Subsidiary Cos., 488 F. Supp. 479, 484 (S.D.N.Y. 1980) (Weinfeld, J.); see also Lucente v. Int'l Bus. Mach. Corp., 310 F.3d 243, 258 (2d Cir. 2002) ("Where it appears that granting leave to — amend is unlikely to be productive, . . . it is not an abuse of discretion to deny leave to amend.") (internal quotation marks omitted). Accordingly, leave to replead will be denied.


  For the reasons stated, defendants' motions are granted, and this action is dismissed.


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