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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 ...

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