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Chodkowski v. City of New York

United States District Court, Southern District of New York

September 11, 2007


The opinion of the court was delivered by: Sand, J.


Before the Court are three motions to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) filed by the various defendants in this suit for compensatory and punitive damages. The underlying facts of this suit stem from an alleged rape which occurred in a night club in Manhattan. The resulting police investigation is alleged to have entailed a civil rights violation under 42 U.S.C. § 1983 and 42 U.S.C. § 1985 as well as various state law negligence claims. The Court grants the motions to dismiss with respect to the federal claims, and dismisses the remaining state claims.


On July 16, 2004, plaintiffs Corso and Chodkowski went to the BLVD/Crash Mansion night club, which is owned by defendant 199 Bowery Restaurant Group, LLC ("199 Bowery"). At the club, the plaintiffs met a waitress, Emmy Kirkley, with whom they began drinking and flirting. Ms. Kirkley consumed alcohol with the plaintiffs and placed a marijuana cigarette down her blouse which she then asked the plaintiffs to retrieve. Eventually, Ms. Kirkley invited the plaintiffs to a room in the club with a plaque on its door named the "Screw Room."

Plaintiffs allege that this behavior by Ms. Kirkley, drinking with patrons and acting in a sexually suggestive manner, though contrary to state law and written club policy, was encouraged by club management.

In the Screw Room, Ms. Kirkley smoked marijuana, engaged in some sexual behavior with plaintiff Corso, and eventually became ill. Plaintiffs attempted to seek help for Ms. Kirkley, but she and her co-worker, defendant Roberto Suarez, discouraged plaintiffs from doing so. Suarez tended to Ms. Kirkley with the door to the Screw Room closed. Eventually another BLVD/Crash Mansion employee, Joseph Osorio, made his way into the Screw Room after being barred from entering by defendant Suarez, and was told by Suarez that everything was fine.

Some five to ten minutes later, Mr. Osorio told defendant Brendan Spiro, BLVD/Crash Mansion's manager, what he observed in the Screw Room. Defendant Spiro went to the Screw Room and after seeing Ms. Kirkley in her inebriated state called the police and asked the club's bouncers to keep plaintiff Chodkowski there. Spiro told the police that "something bad" had happened. Plaintiff Corso fled the club, fearing that any incident would result in his losing his job.

Defendant Steven Bobbett, a New York Police Department detective, arrived at the club shortly after defendant Spiro placed the 911 call. Mr. Osorio told defendant Bobbett that he had seen defendant Suarez in the Screw Room with plaintiffs and that defendant Suarez told him everything was okay. Mr. Osorio informed defendant Bobbett that he had not seen anything of a sexual nature when he was in the Screw Room and had seen defendant Suarez while he was there.

Defendant Bobbett spoke to defendant Suarez, who stated that he had initially been barred from entering the Screw Room by plaintiff Chodkowski. When defendant Suarez was able to enter the Screw Room, he reported that he had interrupted the rape of Ms. Kirkley.*fn2

Plaintiff Chodkowski told defendant Bobbett that he had been ministering to Ms. Kirkley and that no rape had occurred. Defendant Bobbett arrested Chodkowski at the club and brought him to the police stationhouse.

Upon police arrival Ms. Kirkley initially stated that she did not know what happened to her. She then told the police that she became unconscious after one drink. Then she reported that she became paralyzed and was unable to resist plaintiffs' advances. Finally she reported that she had consumed three drinks and could recall certain details of the evening, including being groped and fondled. Medical personnel dispatched to the scene to treat Ms. Kirkley found her to be alert and oriented. Later examination that same night at Beth Israel Hospital found no evidence of rape or any forced sexual assault. The next day (after plaintiff Chodkowski had been arrested), Ms. Kirkley informed the police that plaintiff Chodkowski was not involved in any sexual assault, but that her one drink had incapacitated her.

Defendant detectives Jose Rodriguez and Andrew Oliver conducted further investigation at BLVD/Crash Mansion. These two defendants interviewed a second club manager, Edward Parilla, who told the defendants that he saw Ms. Kirkley drinking with the plaintiffs and that she appeared comfortable with them, and smoked marijuana with plaintiffs.

Defendant detective Michael Rama of the Special Victims Unit spoke to other members of plaintiffs' party the night of the incident. Richard DeLorenzo and Charles Collins informed defendant Rama that Ms. Kirkley had indeed been drinking and flirting with the plaintiffs, and had smoked marijuana.

Defendant Rama arrested plaintiff Corso on July 17, 2004, after speaking to Corso at the stationhouse and after Corso signed a statement which was consistent with, albeit much more detailed than, plaintiff Chodkowski's recollection of events. Plaintiff Corso's statement included a description of the groping that he and Ms. Kirkley engaged in, which stopped immediately once Ms. Kirkley became ill.

Defendant Kerry Chicon, an Assistant District Attorney in New York County, prosecuted plaintiffs in their criminal trial.

Plaintiffs were initially charged with one count each of Rape in the First Degree and Sexual Abuse in the First Degree. The criminal complaints were subscribed to by defendant Rama. The Grand Jury returned an indictment on December 6, 2004, charging each plaintiff with two counts of Rape in the First Degree and 8 counts of Sexual Abuse in the First Degree. On April 25, 2005, the rape charges were reduced to Attempted Rape in the First Degree. ( See Chicon's Br. at p. 11.) Plaintiffs later filed a motion to suppress evidence in the case, including their written statements to the police. This motion was denied. After a three week trial by jury, on September 27, 2005, the plaintiffs were acquitted of all charges against them. Plaintiffs allege that they accrued over $200,000 in legal fees and expenses, lost income, suffered damage to their reputation, and suffered unspecified other damages.

Plaintiffs allege that during the police investigation, unidentified police officers learned that BLVD/Crash Mansion had security cameras in the main bar area where Ms. Kirkley and plaintiffs began drinking and flirting. Plaintiffs believe the video, never obtained by either party to the criminal trial and never viewed by either party, would confirm their version of events as related to activities prior to entering the Screw Room (where there are no security cameras). Plaintiffs contend that had the police looked at the security tapes the night of the incident, they would have known Ms. Kirkley was lying about the events that preceded her drunken illness, and therefore not believed her version of events.

Plaintiffs argue that in spite of the potentially exculpatory evidence available on the surveillance video, the defendants continued to detain plaintiff Chodkowski and arrested plaintiff Corso. Later efforts to obtain the video tapes by plaintiffs during their criminal trial proved unsuccessful. Plaintiffs contend that the denial resulted from efforts of defendant Chicon in furtherance of the alleged conspiracy to deprive plaintiffs of their civil rights as the videos contained exculpatory footage.*fn3

The defendants can be grouped into three categories: (1) The "municipal defendants" (defendant Chicon, the City of New York, Bobbett, Rama, Rodriguez, and Oliver); (2) the "private defendants" (Spiro, Suarez, 199 Bowery); and (3) Edward Brady, a former manager and co-owner of BLVD/Crash Mansion.

Plaintiffs allege that defendant Chicon falsely arrested them and also engaged in a conspiracy with the other defendants to falsely arrest and imprison the plaintiffs in violation of their constitutional rights. ( See Mot. to Dismiss Hr'g Tr. 3.) The municipal defendants also allegedly falsely arrested plaintiffs, as well as maliciously prosecuted them, and conspired to do the same. Plaintiffs further contend that the City of New York engaged in a pattern and practice of violating the rights of people like plaintiffs (the "Monell" claim). As to the private party defendants, plaintiffs contend that defendants Spiro, Brady, and Suarez falsely arrested them, and also conspired to do so. Defendants Spiro and Suarez are alleged to have maliciously prosecuted plaintiffs, and also conspired to do the same.*fn4 Defendant 199 Bowery is the subject of a suit under New York State tort law. Plaintiffs allege that 199 Bowery and its managers (Spiro and Brady) along with defendant Suarez, negligently maintained a policy which encouraged the waitresses at BLVD/Crash Mansion to drink and flirt with customers. This policy, coupled with back rooms with sexually suggestive names, made it foreseeable that false allegations of rape would occur at the club. 199 Bowery and defendants Spiro and Brady are also alleged to have negligently hired, supervised, and trained their employees pursuant to New York law.

Defendant Chicon argues that she is either absolutely immune from suit, or has qualified immunity which bars any finding of liability against her for any of plaintiffs' claims. The municipal defendants argue that they have qualified immunity from suit and that plaintiffs are unable to show that they were maliciously prosecuted. The private defendants argue that, since they are not state actors, they cannot be liable for any constitutional violation, and that state law claims should be dismissed because the necessary elements to support a tort law claim under federal law are not present.

For the reasons set forth below, all claims against defendant Chicon and the municipal defendants are dismissed. The federal claims against all private defendants are dismissed. The state law claims are therefore dismissed for lack of federal jurisdiction.


A court reviewing a complaint under Fed.R.Civ.P. 12(b)(6) will consider all material factual allegations as true and draw all reasonable inferences in favor of the plaintiff. Lee v. Bankers Trust Co., 166 F.3d 540, 543 (2d Cir.1999). The complaint will be dismissed "only where it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Thomas v. City of New York, 143 F.3d 31, 36-37 (2d Cir.1998). The court is not limited to the four corners of the complaint; it may also consider "documents attached to the complaint as an exhibit or incorporated in it by reference, ... matters of which judicial notice may be taken, or ... documents either in plaintiffs' possession or of which plaintiffs had knowledge and relied on in bringing suit." Brass v. American Film Technologies, Inc., 987 F.2d 142, 150 (2d Cir.1993).



Both defendant Chicon and the municipal defendants correctly argue that they are entitled to qualified immunity from suit on the allegations of false imprisonment of plaintiffs. Furthermore, the Court finds that there was probable cause to arrest, which nullifies any claim for false arrest.

Plaintiffs' claim for false arrest and imprisonment under 42 U.S.C. § 1983 is predicated on the "Fourth Amendment right of an individual to be free from unreasonable seizures, including arrest without probable cause." Weyant v. Okst, 101 F.3d 845, 852 (2d Cir.1996). Plaintiffs alleging false arrest must show that "the defendant[s] intentionally confined [them] without [ ] consent and without justification." Id. A warrantless arrest supported by probable cause is permissible under the Fourth Amendment. Probable cause to arrest is therefore a complete defense to the charge of false arrest. Id. ("The existence of probable cause to arrest constitutes justification and is a complete defense to an action for false arrest, whether that action is brought under state law or under § 1983.") (internal citations omitted). Plaintiffs also must show the personal involvement of an individual defendant for there to be a damages award for a constitutional violation under § 1983. See Provost v. City of Newburgh, 262 F.3d 146, 154 (2d Cir.2001).

"Probable cause is not a particularly demanding standard." United States v. Solomonyan, 452 F.Supp.2d 334, 343 (S.D.N.Y.2006). Probable cause merely "requires an officer to have knowledge or reasonably trustworthy information sufficient to warrant a person of reasonable caution in the belief that an offense has been committed by the person to be arrested." Panetta v. Crowley, 460 F.3d 388, 395 (2d Cir.2006) (internal citations omitted). Probable cause is determined by looking at what facts the officer had available at the time of, and immediately prior to, arrest. ( See Caldarola v. Calabrese, 298 F.3d 156, 162 (2d Cir.2002) ("when determining whether probable cause exists courts must consider those facts available to the officer at the time of the arrest and immediately before it.") Probable cause determinations look to the totality of the circumstances. Id. "When making a probable cause determination, police officers are entitled to rely on the allegations of fellow police officers." Id. (internal citations omitted). If one investigating officer has probable cause for arrest, this collective knowledge is shared with the others.

Additionally, information obtained from informants or witnesses to the event in question can be enough to support a finding of probable cause. "It is well-established that a law enforcement official has probable cause to arrest if he received his information from some person, normally the putative victim or eyewitness," Martinez v. Simonetti, 202 F.3d 625, 634 (2d Cir.2000), unless the circumstances raise doubt as to the person's veracity. Singer v. Fulton County Sheriff, 63 F.3d 110, 119 (2d Cir.1995).

Even if there is no probable cause, an officer may still be shielded from a suit for damages by qualified immunity. To satisfy the requirements of qualified immunity the officer need only show arguable probable cause to arrest. "Arguable probable cause exists if either (a) it was objectively reasonable for the officer to believe that probable cause existed, or (b) officers of reasonable competence could disagree on whether the probable cause test was met." Escalera v. Lunn, 361 F.3d 737, 743 (2d Cir.2004).

To avoid the bar of qualified immunity, plaintiffs must first show that there has been a violation of their constitutional rights. A court must ask whether "taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer's conduct violated a constitutional right?" Saucier v. Katz, 533 U.S. 194, 201 (2001). "If no constitutional right would have been violated were the allegations established, there is no necessity for further inquiries concerning qualified immunity." Id.

In a motion to dismiss the standard for granting qualified immunity is that the "allegations of the complaint fail to state a claim that [defendants'] conduct violated clearly established statutory or constitutional rights of which a reasonable person would have known." Charles W. v. Maul, 214 F.3d 350, 357 (2d Cir.2000) (internal citations omitted).

An individual's right to be shielded from false arrest is a well settled constitutional right that was clearly established at the time of the incident in question. Defendants do not argue otherwise. Plaintiffs allege they were arrested and detained without probable cause, which is a clear violation of the Fourth Amendment (and would overcome the bar of qualified immunity if true).


There was probable cause, and certainly arguable probable cause, for the arrest of plaintiff Chodkowski when looking at the facts as pled at the time the arrest was made, even in the light most favorable to the plaintiffs and drawing all inferences in their favor.*fn6 When defendant Bobbett arrived at the scene, he was presented with Ms. Kirkley, who professed not to know what had happened to her and had been seen by witnesses passed out in the Screw Room. Ms. Kirkley was unable to settle on a consistent story, but that is not inconsistent behavior from someone claiming to have either been raped, drugged, or both. Although Mr. Osorio did not see any sexual assault on Ms. Kirkley, defendant Suarez, whom Bobbett had no reason to doubt at the time, claimed to have interrupted a rape and to have been barred from entering the Screw Room by plaintiff Chodkowski. Mr. Osorio and Suarez never claimed to have been together the entire evening such that what one man witnessed would cover the same time frame for both. Further, although plaintiff Chodkowski professed his innocence, this is not a rare response in a case where rape is alleged. It cannot be that a protestation to the contrary by the accused invalidates all probable cause to arrest when there are witnesses who appear credible at the time. Under the collective knowledge doctrine, the other investigating officers, defendants Rodriguez and Oliver, have at minimum arguable probable cause as well, and are likewise entitled to qualified immunity. The same holds true for defendant Chicon.*fn7


Defendant Rama spearheaded the arrest of plaintiff Corso, which occurred the day after the incident at BLVD/Crash Mansion. With probable cause, arguable or not, for the arrest of plaintiff Corso, the other municipal defendants are shielded from liability as well. Defendant Chicon is entitled to rely on the knowledge of defendant Rama as well. Illinois v. Andreas, 463 U.S. 765, 772, n. 5 (1983).

Most of the information relied upon by Rama was the same as that relied upon by defendant Bobbett in his investigation, such as the allegation of a rape interrupted by defendant Suarez, the veracity of which was not yet in doubt. During Bobbett's investigation plaintiff Chodkowski admitted to being in the Screw Room while there was "fooling around" prior to Corso's arrest. Further, plaintiff Corso himself signed a statement in which he explained that there was consensual sexual contact between himself and Ms. Kirkley prior to his arrest. Even assuming that Ms. Kirkley was lying about the rape itself, she may not have wanted matters to go as far as plaintiffs allege they did, in which case this would constitute a sexual assault hinging on the extent, if any, of consent, and arguable probable cause to arrest still would have existed. Thus, even reading the facts as alleged in the light most favorable to plaintiffs there is still probable cause for the arrest of plaintiff Corso based on witness testimony and the inherent "he said, she said" nature unfortunately present in many cases of sexual assault.


A claim for malicious prosecution requires the plaintiff to establish four elements: "(1) the defendant initiated a prosecution against plaintiff[s], (2) without probable cause to believe the proceeding can succeed, (3) the proceeding was begun with malice and, (4) the matter terminated in [plaintiffs'] favor." Ricciuti v. N.Y.C. Transit Auth., 124 F.3d 123, 130 (2d Cir.1997). While the matter terminated in plaintiffs' favor, plaintiffs acquittal, and the plaintiffs allege that the prosecution was begun with some sort of malicious desire on the part of the defendant officers to cover their tracks,*fn10 plaintiffs are unable to meet the second requirement of the standard, that there was no probable cause to believe the proceeding could succeed.*fn11

Indictment by the grand jury creates a presumption of probable cause for a malicious prosecution claim. Rothstein v. Carriere, 373 F.3d 275, 282-83 (2d Cir.2004). "In order for a plaintiff to succeed in a malicious prosecution claim after having been indicted he must establish that the indictment was produced by fraud, perjury, the suppression of evidence or other police conduct undertaken in bad faith." Id. at 283 (internal citations omitted). To rebut the presumption afforded by the grand jury indictment, plaintiffs must show that there was misconduct so profound as to "erode the premise that the grand jury acts judicially." Id. at 284. The complaint read in the light most favorable to plaintiffs does not meet this standard.

Even if the complaint did allege such misbehavior before the grand jury, it would still fail to support a claim for malicious prosecution because even without the grand jury indictment there was probable cause to arrest plaintiffs. Supra. Between arrest and the indictment by the grand jury there were no intervening facts discovered that would have shown that probable cause should not have accrued. "In order for probable cause to dissipate, the groundless nature of the charges must be made apparent by the discovery of some intervening fact." Loweth v. Town of Cheektowaga, 82 F.3d 563, 571 (2d Cir.1996). Although the rape kits came back negative before trial, this does not prove that no unconsensual sexual conduct occurred. See People v. Shelton, 307 A.D.2d 370, 371 (2d Dept.2003) (upholding rape and sexual abuse convictions even though "there was no medical evidence that [the victim] suffered any physical injuries.")


Plaintiffs' conspiracy claims under 42 U.S.C. § 1983 against defendant Chicon and the municipal defendants fail on various grounds.*fn12 Plaintiffs are unable to show any deprivation of their constitutional rights, supra, without which "there can be no civil rights conspiracy to deprive that right." Young v. County of Fulton, 160 F.3d 899, 904 (2d Cir.1998). Furthermore, insofar as defendants are shielded by qualified immunity on the charges of false arrest, this further shields them on the conspiracy charge. See Deters v. Lafuente, 368 F.2d 185, 187 n. 2 (2d Cir.2004).


Plaintiffs allege that the City of New York maintained a pattern and practice of violation of constitutional rights and is therefore liable for the alleged constitutional violations inflicted upon plaintiffs by the City's employees. In order to prove this, plaintiffs must first prove that their own constitutional rights were violated, which, as established above, they are unable to do, as probable cause existed for their arrest. See Curley v. Village of Suffern, 268 F.3d 65, 71 (2d Cir.2001) ("a municipality cannot be liable for inadequate training or supervision when the officers involved in making an arrest did not violate the plaintiff's constitutional rights.")

All claims against defendant Chicon and the municipal defendants are therefore dismissed. The Court now turns to the claims brought against the private defendants.


Plaintiffs allege various claims against the private party defendants, 199 Bowery Restaurant Group LLC, Edward Brady, Brendan Spiro, and Roberto Suarez. Those claims are a 42 U.S.C. § 1983 claim against all four private party defendants for false arrest and malicious prosecution (save for defendant Brady), conspiracy to engage in the false arrest and malicious prosecution, and state law negligence claims for negligent hiring, training, and supervision of the employees of BLVD/Crash Mansion.


At the outset, the Court notes that defendant Brady must be dismissed from both the false arrest and the conspiracy charges, as the complaint does not allege any instance of his personal involvement with plaintiffs, or make any allegation of engaging in a conspiracy to do the same. See, e.g., supra, Provost, 262 F.3d at 154.


The first inquiry that must be made in determining whether plaintiffs' claims survive is whether plaintiffs have adequately pled facts that would support liability for any of the private party defendants under § 1983. The Court finds that plaintiffs have not.

In order to state a claim under § 1983 against a private party, plaintiffs must show that they were injured by the private party acting "under color of state law." Ciambriello v. County of Nassau, 292 F.3d 307, 323 (2d Cir.2002). To act under color of state law, a private party's allegedly unconstitutional conduct must by "fairly attributable to the state." Bishop v. Toys "R" Us-NY LLC, 414 F.Supp.2d 385, 396 (S.D.N.Y.2006). Private conduct "can be fairly attributed to the state only if there is such a close nexus between the State and the challenged action that seemingly private behavior may be fairly treated as that of the State itself." Tancredi v. Metro Life Ins. Co., 316 F.3d 308, 312 (2d Cir.2003) (internal citations omitted). State action can be found "where the private actor operates as a willful participant in joint activity with the State or its agents, is controlled by an agency of the State, has been delegated a public function by the state, or is entwined with governmental policies." Id.

Plaintiffs argue that there was joint activity between the state and the private party defendants.*fn13 Plaintiffs and defendants agree that "mere furnishing of information to police officers does not constitute joint action under color of state law which renders a private citizen liable under § 1983." Ginsberg v. Healy Car & Truck Leasing, Inc., 189 F.3d 268, 272 (2d Cir.1999) (internal citations omitted). This holds true when the request to arrest is made in good faith. Here, plaintiffs allege that all of the private party defendants acted with malice, but have not pled facts adequate to support this contention.

Plaintiffs argue that defendant Saurez is liable under the "joint engagement" theory of liability articulated in Weintraub v. Board of Educ. of City of New York, 423 F.Supp.2d 38, 57 (E.D .N.Y.2006). In Weintraub, the court held that "[a] claim of false arrest or false imprisonment may lie where a plaintiff can show that defendants instigated his arrest, thereby making the police agents in accomplishing their intent to confine the plaintiff ." Id. at 56. But plaintiffs' reliance on Weintraub is misplaced. In Weintraub, the defendant was a civilian who allegedly falsely reported to the police that plaintiff stabbed her. However, in that case, the plaintiff also alleged a long history involving numerous incidents where the defendants had submitted baseless accusations of misconduct against the plaintiff, culminating in the accusation of assault that led to plaintiff's arrest. Here, there is no allegation of any prior relationship between any of the defendants and the plaintiffs, unlike the cases on which plaintiffs rely to support allowing a § 1983 claim to proceed against private individuals. See, e.g., Weintraub, at 42-47; Friedman v. New York City Administration for Children's Services, 2005 WL 2436219 (E.D.N.Y. Sept. 30, 2005) (unreported).

In this case, plaintiffs allege that Suarez lied to the police when he told them he had interrupted the rape of Ms. Kirkley. However, providing false information to the police does not make a private individual under a state actor and liable under § 1983. See Johns v. Home Depot U.S.A., Inc., 221 F.R.D. 400, 405 (S.D.N.Y.2004) ("Moreover, even assuming [the defendant] had supplied the police with false information, plaintiff would still fail to state a claim."); Kahermanes v. Marchese, 361 F.Supp. 168, 171 (E.D.Pa.1973) ("The deliberate giving of false information by an individual to a police officer to cause the arrest of another does not give rise to a cause of action under the Civil Rights Acts."). Rather, to support a claim against a private actor under § 1983, plaintiffs must plead bad faith on the part of the defendant.

In Weintraub, the plaintiff alleged prior incidents that demonstrated a long-standing vendetta against the plaintiff, which allowed the court to infer potential bad faith. Here, plaintiffs have vaguely alleged that all the defendants acted with malice, (Compl.¶ 131), but have failed to allege facts sufficient to support their statement. "Bald assertions and conclusions of law will not suffice" to defeat a motion to dismiss. Leeds v. Meltz, 85 F.3d 51, 53 (2d Cir.1996). See also Bepko v. St. Paul Fire and Marine Ins. Co., No. 3:04 CV 01996(PCD), 2005 U.S. Dist. LEXIS 39066 *1, *3-4 (D.Conn. Nov. 10, 2005) (granting a motion to dismiss because plaintiff alleged bad faith "in a wholly conclusory fashion" without specific factual allegations); Stratton Faxon v. Nat'l Mut. Ins. Co., No. 3:06cv743 (MRK), 2006 U.S. Dist. LEXIS 55273 *1, *4 (D.Conn. July 26, 2006) (requiring plaintiffs to amend their complaint because it was "devoid of any facts that would support a bad faith ... claim") (emphasis in original). Here, plaintiffs have simply alleged that Saurez gave false information to the police, which will not suffice to convert a private party into a state actor under § 1983. Plaintiffs' conclusory statement that all the defendants acted with malice does not cure this defect. Even viewing the allegations in the light most favorable to the plaintiffs, defendant Saurez cannot be liable under the joint engagement theory for a § 1983 violation.

With respect to defendant Spiro, the club manager who initially telephoned the police, the motion to dismiss is also granted. Plaintiffs have pled no facts which would allow a jury to infer that Spiro's act of telephoning the police was done in bad faith. Further, Spiro's act is precisely the type of furnishing of information to the police that the law protects. See supra, Ginsberg, 189 F.3d at 272; Rizzo v. Host Services of New York, 545 F.Supp. 1193, 1195 (E.D.N.Y.1982) ("the mere response of a police officer to a citizen's call for assistance is not enough to transmogrify the citizen's action into that of the state."). Spiro called the police and "speculated that Ms. Kirkley had been drugged and that something bad had happened to her." (Compl.¶ 51.) Spiro did this after Mr. Osorio told him to check out what was occurring in the Screw Room. (Compl.¶ 47.) Spiro saw the scene in the back room and determined that "something bad" had happened. Again, even if the information Spiro provided to the police was false, he cannot be liable as a private actor under § 1983 without specific fact pleadings to establish that he acted in bad faith.

Defendant 199 Bowery must also be dismissed here. It is well settled that as to an employer " § 1983 will not support a claim based on a respondeat superior theory of liability." Polk County v. Dobson, 454 U.S. 312, 325 (1981). For the employer to be found liable under § 1983 there must be a conspiracy alleged in the complaint between "the private employer and its employees who are acting under color of state law." Temple v. Albert, 719 F.Supp. 265, 268 (S.D.N.Y.1989). The complaint fails in this regard because none of the employees were acting under color of state law.


The Court now turns to the conspiracy claims. The Court finds that plaintiffs have failed to make allegations that would support liability under a traditional conspiracy theory to qualify as a state actor under § 1983.

To state a conspiracy claim under § 1983, a complaint "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, 324-25 (2d Cir.2002). The pleadings must "present facts tending to show agreement and concerted action." Bacquie v. City of New York, 2000 U.S. Dist. LEXIS 10606, No. 99 Civ. 10951, at *1-2 (S.D.N.Y. July 31, 2000). "Without a meeting of the minds, the independent acts of two or more wrongdoers do not amount to a conspiracy." Fisk v. Letterman, 401 F.Supp.2d 362, 376 (S.D.N.Y.2005) (quoting Sales v. Murray, 862 F.Supp. 1511, 1516-17 (W.D.Va.1994)). "Naked assertions are insufficient to plead a conspiracy to violate a person's constitutional rights." Bacquie, 2000 U.S. Dist. LEXIS 10606, at *1. Rather, "[t]he pleadings must present specific facts tending to show an agreement and concerted action." Id.

Here, plaintiffs have alleged nothing to demonstrate that a "meeting of the minds" occurred between defendant Saurez and the police officers. Plaintiffs' lone attempt to meet this standard is to allege that the defendants acted "pursuant to their conspiratorial agreement" in causing plaintiffs to be confined and falsely arrested. (Compl.¶ 124, 128). This conclusory and vague allegation cannot satisfy the heightened pleading standard for alleging conspiracy. Thus, Plaintiffs' claim against Saurez fails on this ground as well.

Defendant Spiro simply telephoned the police. As discussed, this was not a violation of plaintiffs' constitutional rights and the bare allegation of a conspiracy here, even taking the complaint as true, does not suffice.

Because there was no conspiracy between the state and the employees of 199 Bowery, there can be no § 1983 conspiracy between 199 Bowery and the state either.


Plaintiffs must show the same four elements as against the private parties that they were unable to show for the municipal defendants, supra. A claim for malicious prosecution requires the plaintiff to establish four elements: "(1) the defendant[s] initiated a prosecution against plaintiff[s], (2) without probable cause to believe the proceeding can succeed, (3) the proceeding was begun with malice and, (4) the matter terminated in [plaintiffs'] favor." Ricciuti, 124 F.3d at 130. Under state and federal law, the elements of the tort of malicious prosecution are identical. See Bonide Products v. Cahill, 223 F.3d 141, 145 (2d Cir.2000).

As with the claim for malicious prosecution by the municipal defendants, there is a presumption that probable cause exists upon indictment by the grand jury which suffices to refute a claim for malicious prosecution. Rothstein, 373 F.3d at 282-83. For the same reasons stated above, the claims for malicious prosecution must be dismissed here, as plaintiffs' complaint when read in its most favorable light does not allege facts that would "erode the premise that the grand jury acts judicially." Id. at 284.


The Court notes that all federal claims have now been dismissed from the case. The plaintiff has raised several state claims that may survive a motion to dismiss, but the Court declines to exercise supplemental jurisdiction pursuant to 28 U.S.C. § 1367 in order to consider them. See United Mine Workers of America v. Gibbs, 383 U.S. 715, 726 (1966) ("If the federal claims are dismissed before trial, even though not insubstantial in a jurisdictional sense, the state claims should be dismissed as well."); Lennon v. Miller, 66 F.3d 416, 426 (2d Cir.1995) (same). "The exercise of supplemental jurisdiction is left to the discretion of the district court." Purgess v. Sharrock, 33 F.3d 134, 138 (2d Cir.1994); Bascom v. Fried, 116 Fed. Appx. 300, 302 (2d Cir.2004) (same). The plaintiffs' state claims are dismissed.


For the reasons stated above, all claims against defendant Chicon are DISMISSED. All claims against the municipal defendants are DISMISSED. All § 1983 claims and malicious prosecution claims (under state and federal law) against the private defendants are DISMISSED. All other state law claims are DISMISSED without prejudice to plaintiffs' right to pursue those claims in state court.


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