United States District Court, S.D. 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.
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. ¶
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).
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.
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
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
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
The motion of the Patrolman's Benevolent Association to dismiss the
Complaint (docket no. 5) is granted.