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United States District Court, S.D. New York

May 11, 2004.


The opinion of the court was delivered by: LORETTA PRESKA, District Judge

Opinion and Order

Plaitiffs Moukaddas Iouldacheva and Masouda Iouldasheva bring this action against defendants City of New York (the "City"), New York City Police Department ("NYPD"), Patrolmen's Benevolent Association of the City of New York ("PBA" or "defendant", and various individual NYPD officers (the "Officers") for violations of 42 U.S.C. § 1983, 1985, 1988, and the First, Fourth, Fifth, Eighth, and Fourteenth Amendments to the Consutituion of the United States. The PBA moves to dismiss pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure for lack of subject matter jurisdiction and 12(b)(6) for failure to state a claim upon which relief can be granted. The PBA also asks that plaintiffs' request to amend their complaint further be denied as futile.


  Plaintiffs allege that on or about January 6, 2002 at 10:00 p.m., they were in apartment 3A at 143 West 75th Street, (Compl. ¶ 15), with Irene Lapchina (Compl. ¶ 16). The Officers knocked on the door and, when they demanded that the door be opened, Ms. Lapchina asked to see the Officers' badge numbers., Compl. ¶ 16.) The Officers left without giving their badge numbers but allegedly returned shortly thereafter with a battering ram with which they broke down the apartment door. (Compl. ¶ 17.)

  Upon entering, the Officers arrested Ms. Lapchina, who was in the midst of calling 911. (Compl. ¶ 18., Plaintiffs allege that Ms. Lapchina wrote the log number of the 911 call on One back of her attorney's business card, (Compl. ¶ 17), and that when Moukaddas Iouldacheva wrote the Officers' badge numbers on the back of the same business card, the Officers threatened plaintiffs with eviction and deportation, (Compl. ¶ 20.) The officers are said to have ignored plaintiffs' attempts to explain in English that they lawfully resided in the apartment. (Compl. ¶ 20.) The Officers then allegedly grabbed Moukadas Iouldacheva twisted her arms behind her back and threw her onto the ground to handcuff and arrest her. (Compl. ¶ 21.) They are said to have then repeatedly hit her head and face into a coffee table until she lost consciousness. (Compl. ¶ 22.)

  According to the complaint, Masouda Iouldacheva received similar treatment when the Officers allegedly hit her in the chest and threw her out of the apartment and onto the railing of a staircase before throwing her onto the trunk of their patrol car. (Compl. ¶¶ 23-24.) As the Officers were taking Moukaddas Iouldacheva to the patrol car, one of them allegedly searched through her pockets and removed and ripped up the business card on which the Officers' badge information and the 911 log number were written. (Compl. ¶ 25.)

  Upon reaching the precinct, the Officers are said to have handcuffed and locked Moukaddas Iouldacheva in a cell and refused her water or medical attention even after she vomited in her cell. (Compl. ¶¶ 26-27.) The Officers allegedly harassed Moukaddas Iouldacheva by drinking water in front of her. (Compl. ¶ 23.) One of the Officers is alleged to have stated at the precinct that, "It's three Russians against one of ours." (Compl. ¶ 29.)

  Nowhere in the complaint do plaintiffs allege that any PBA representative or official was present during any of the events leading up to the arrest, during the arrest itself, or during any of the post-arrest events alleged to have occurred at the precinct station house. Nor does the Complaint allege that a PBA representative or official met with, provided advice to, or otherwise had contact of any kind with any of the Officers an any time whatsoever.


  When deciding a motion to dismiss under Rule 12(b)(6), I must, accept as true all well-pleaded factual allegations of the complaint and draw all inferences in favor of the plaintiffs. In order to avoid dismissal, plaintiff must do more than plead mere "[c]onclusory allegations or legal conclusions masqueraning as factual conclusions." Gebhardt v. Allspect, Inc., 96 F. Supp.2d 331, 333 (S.D.N.Y. 2000) (quoting 2 James Wm. Moore, Moore's Federal Practice ¶ 12.34[a][b] (3d ed. 1997)). Dismissal is proper only when "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957), accord Cohen v. Koenig, 25 F.3d 1168, 1172 (2d Cir. 1994).

 I. Standing

  In order to establish standing under Article III of the Constitution of the United States, a plaintiff must have suffered in "injury in fact." The Supreme Court has defined an "injury in fact" as an injury that is "(a) concrete and particularized and by actual or imminent, not conjectural or hypothetical." Friends of the Earth, Inc. v. Laidlaw Fnvironmental Services (TOC), Inc., 528 U.S. 167, 180 (1999). Furthermore, the injury must be "fairly traceable to the challenged action of the defendant; and [it must be] likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision." Id.; see also Jaghory v. New York State Department of Education, et al., 131 F.3d 326, 329 (2d Cir. 1997).

  In a § 1983 action, "[l]ability may not be imposed where the causal connection between [defendant's] conduct and the constitutional injury is remote rather than direct." Trivedi v. Thayer, 97 Civ. 1377, 1998 WL 799181, *15 (S.D.N.Y. Nov. 16, 1998), aff'd, 182 F.3d 901 (2d Cir. 1999), cert. denied, 528 U.S. 965, 1999 quoting Taylor v. Brentwood Union Free School District, l-?3 F.3d 679, 686 (2d Cir. 1998)). A plaintiff must prove chat the defendant caused a violation or deprivation of the plaintiff's rights. Taylor, 143 F.3d at 685. Furthermore, the Court of Appeals has consistently held that a plaintiff must state an injury that is "both concrete in nature and particularized" to the plaintiff. In re U.S. Catholic Conference, 385 F.2d 1020, 1023-24 (2d Cir. 1989).

  Here, plaintiffs each bring two constitutional claims against the PBA. The first is Count XI on behalf of Moukaddas and XI on behalf of Masouda, referred to as the "systemic claim."


that prior to January 6, 2002, THE CITY, acting at the behest of and in close conjunction with the PBA, had developed and maintained policies and customs exhibiting deliberate indifference to the Constitutional rights of its citizens, which caused the violations of the rights of MOUKADDAS IOUDACHEVA. These same policies and practices caused the now infamous, vicious abuse of Abner Louima in 1997.
(Compl. ¶ 79; see also Compl. ¶ 162.) The second claim, Count XII on behalf of Moukaddas and VI on behalf of Masouda, alleges a conspiracy between the PBA and the City. It states:
Acting jointly over a period of many years, THE CITY and the PBA together established policies and customs that allow even the most brazenly brutal officers to believe that they can use excessive force with impunity.
The conspiracy between THE CITY and the PBA is ultimately responsible for and the proximate and direct cause of the violations of the rights of MOUKADDAS IOULDACHEVA and of the substantial damages sustained by MOUKADDAS IOULDACHEVA.
(Compl. ¶¶ 107-08; see also Compl. ¶¶ 90-91.)

  Plaintiffs' amended complaint fails to meet the applicable standards. Here, plaintiffs assert in conclusory terms that the PBA's behavior toward police misconduct "direct[ly] and proximate[ly]" resulted in the violation of plaintiffs' rights to be free from violence and injury by the state's own agents. (Compl. ¶ 105.) However, plaintiffs do not allege that any representatives or officials of the PBA were present or otherwise participated in the incident of January 6, 2002. Similarly, they do not allege that the PBA was involved in any advice to the officers or any "cover-up" relating to the incident of January 6, 2002. Plaintiffs also do not allege that the PBA had any control of the hiring or training of the Officers. Rather, plaintiffs cite to two unrelated cases of police brutality (e.g., Compl. ¶¶ 101 (Abner Louima), 102 (Anthony Baez)) to support their conclusory allegation of a culture of silence and dishonesty within the PBA and the NYPD. The details of those other cases do not assist these plaintiffs in illustrating their allegation of concrete and particularized injury. Accordingly, these details are insufficient to confer. standing against the PBA.

  Plaintiffs also cite to several years-old statements about the PBA contained in various reports, such as the 1994 Mollen Commission report, (e.g. Compl. ¶¶ 82, 99*fn2). These temporally distant reports, unrelated to the facts of the present case, are insufficient to meet the legal standard. Accordingly, plaintiffs' claims fail to meet the standard of concrete and particularized injury, as well as the standard requiring an adequate showing of a causal connection between the defendant's action and the plaintiffs' constitutional injuries, and, thus, plaintiffs lack standing to sue the PBA in this matter. II. State Actor

  "To state a claim for relief under § 1983, a plaintiff must allege both a violation of a right secured by the Constitution or by federal law, and that the alleged deprivation was committed by a person acting under color of state law." West v. Atkins, 487 U.S. 42, 48 (1988); see also Leeds v. Meltz, 85 F.3d 51 (2d Cir. 1996). Here, plaintiffs argue that, although the PBA is a private actor, courts have held that a private defendant may be liable under § 1983 if it participated in joint activity with a state actor. While this is, of course, true, the Court of Appeals has held that "to survive a motion to dismiss on [a] § 1983 conspiracy claim, [a plaintiff] must allege (1) an agreement between a state actor and a private party; (2) to act in concert to inflict an unconstitutional injury; and (3) an overt act done in furtherance of that goal causing damages." Ciambriello v. County of Nassau, 292 F.3d 307, 324 (2d Cir. 2002).

  The amended complaint fails to meet this standard. It contains only broad allegations of a conspiracy without specifying an agreement or overt act as required by Ciambriello or otherwise specifying the details of steps or actions taken by the PBA to further the supposed conspiracy with the City against these plaintiffs. Plaintiffs repeatedly refer to policies and customs in a conclusory manner out do not allege facts demonstrating a goal to injure these plaintiffs or demonstrating that the PBA acted in concert with the City to commit an unconstitutional act. Thus, because plaintiffs have not met the requirements of Ciambriello or otherwise sufficiently pled a nexus between the PBA and the City, the PBA may not be considered a state actor and may not be sued under § 1983. Accordingly, the plaintiffs' § 1983 claims against the PBA are dismissed.

 III. Leave to Amend Complaint

  Plaintiffs have requested leave to amend their complaint yet again. The Court of Appeals has held that denial of such leave is appropriate "[w]here it appears that granting leave to amend is unlikely to be productive." Lucente v. IBM, 310 F.3d 243, 253 (2d Cir. 2002).

  Here, plaintiffs have had several opportunities no investigate the facts in order to articulate a claim against the PBA. Plaintiffs spoke at length with the Civilian Complaint Review Board during its investigation of the January 6, 2002 incident. That investigation included interviews with the Officers and other witnesses. Additionally, plaintiffs filed a notice of claim against the City, and on August 22, 2002, attended a 50-H hearing pursuant to General Municipal Law Section 50-e. (I note that these proceedings do not suggest that the PBA played any role in the incident at issue.) Also, as discussed during oral argument, plaintiffs filed their original fifty-page complaint in December of 2002 and their amended complaint in April of 2003. Apparently, the PBA's motion crossed in the mail with the amended complaint.*fn3 Oral argument was held on the motion on February 20, 2004. Thus, plaintiffs and their counsel have had the opportunity to review the PBA's motion to dismiss for almost a year. As should be apparent from the above, it has been clear that during that time that the amended complaint does not sufficiently plead a § 1983 claim against the PBA. Counsel thus had more than adequate time to undertake and complete additional investigation in order no plead the necessary factors.

  At oral argument, many pages and a good deal of time were consumed discussing with plaintiffs' counsel what additional facts, if any, he could allege subject to Rule 11 with respect to any action whatsoever by the PBA regarding this incident. It is clear to me from this interchange that counsel cannot, after all of the investigations mentioned and the passage of a good deal of time (approximately 17 months), allege any facts subject to Rule 11 that implicate the PBA in any manner with respect to this incident. Accordingly, I conclude that granting leave to amend is unlikely to be productive and instead would result in the expenditure of more time and money to no end. The request to amend, yet again, the federal claims in the complaint against the PBA is denied.

 IV. Common Law claims

  Plaintiffs also assert various common law claims against the PBA, including negligence, false arrest, and false imprisonment. The sole basis for subject matter jurisdiction over the state law claims is, of course, the presence of the federal claims under Section 1983, which have now been dismissed. I decline to exercise jurisdiction over those state law claims and, accordingly, dismiss the pendent state law claims without prejudice.


  The motion of the Patrolman's Benevolent Association to dismiss the Complaint (docket no. 5) is granted.


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