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IOULDACHEVA v. CITY OF NEW YORK

May 11, 2004.

Moukaddas Iouldacheva and Masouda Iouldacheva Plaintiffs, -against- THE CITY OF NEW YORK, THE NEW YORK CITY POLICE DEPARTMENT, THE PATROLMEN'S BENEVOLENT ASSOCIATION, OFFICER CONNOLLY, OFFICER BRENNAN, OFFICER BOYIAN, OFFICER KHALIF, OFFICER RICCA, JOHN DOES, RICHARD ROES, and WILLIAM WOES, Defendants


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.

BACKGROUND*fn1

  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.

  DISCUSSION

  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 ...


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