The opinion of the court was delivered by: Sifton, Senior Judge.
MEMORANDUM OPINION AND ORDER
Plaintiff Henrietta Henry ("Henry") commenced this action against defendants City of New York ("City"), New York City Police Department ("NYPD"), and Police Officers John Doe # 1-5 ("Officers"), alleging false arrest and imprisonment and malicious prosecution in violation of 42 U.S.C. § 1983*fn1 and the New York State Constitution, as well as intentional infliction of emotional distress. Presently before this Court is defendants' motion to dismiss and plaintiff's motion for leave to amend her complaint. Defendants argue that the instant action should be dismissed because plaintiff failed to substitute the names of the John Doe Officers before the statute of limitations expired and that she is now time barred from doing so. Defendants also argue that the City should be dismissed from this action for failure to state a Section 1983 claim. For the reasons stated below, defendants' motion to dismiss is granted. Plaintiff's motion for leave to amend her complaint is granted in part and denied in part.
The following facts are taken from plaintiff's complaint and the parties' papers submitted in connection with this motion. The facts alleged in the complaint are presumed to be true for the purposes of the motion to dismiss.
Plaintiff Henry resides at 880 Colgate Avenue, Bronx, New York. Complaint ¶ 8.
Plaintiff states that on September 23, 2004, at approximately 8:40 pm, defendant officers attempted to force their way into Henry's residence without a warrant. Id. ¶¶ 8-9. Plaintiff refused access to her residence. Id. ¶ 10. Shortly thereafter, she walked out of her apartment in order to leave the building. Id. She states that she was assaulted, threatened, menaced and handcuffed by defendant officers. Henry states that she was then taken to a police station where she was interrogated, harassed, and threatened. Id. ¶¶ 13-14. She was charged with disorderly conduct and resisting arrest. Id. ¶ 10. The summons was issued by Officer John Ferrara. Plaintiff's Memorandum of Law, p. 3. Her photograph and fingerprints were taken. Complaint ¶ 14.
Plaintiff subsequently filed a complaint with the Civilian Complaint Review Board (CCRB). The complaint was closed on February 4, 2005, after plaintiff was found to be uncooperative with the investigation. Defendants' Exhibit A.
The criminal charges were dismissed on October 11, 2005 by the Criminal Court of the City of New York, Bronx County. Plaintiff's Memorandum of Law, p. 2.
Plaintiff commenced the instant action on September 21, 2007.
In considering a motion pursuant to Rule 12(b)(6), a court should construe the complaint liberally, "drawing all reasonable inferences in the plaintiff's favor," Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002) (citing Gregory v. Daly, 243 F.3d 687, 691 (2d Cir. 2001)), although "mere conclusions of law or unwarranted deductions" need not be accepted. First Nationwide Bank v. Helt Funding Corp., 27 F.3d 763, 771 (2d Cir. 1994). Indeed, conclusory allegations "will not suffice to prevent a motion to dismiss." Smith v. Local 819 I.B.T. Pension Plan, 291 F.3d 236, 240 (2d Cir. 2002). On a motion to dismiss, "[t]he issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Villager Pond, Inc. v. Town of Darien, 56 F.3d 375, 378 (2d Cir. 1995).
Nevertheless, to survive a 12(b)(6) motion to dismiss, the allegations in the complaint must meet the standard of "plausibility." See Bell Atl. Corp. v. Twombly, 127 S.Ct. 1955, 1970 (2007). Although the complaint need not provide "detailed factual allegations," id. at 1964; see also ATSI Commc'ns v. Shaar Fund, Ltd., 493 F.3d 87, 98 n. 2 (2d Cir. 2007)(applying the standard of plausibility outside Twombly's anti-trust context), it must "amplify a claim with some factual allegations . . . to render the claim plausible." Iqbal v. Hasty, 490 F.3d 143, 157-158 (2d Cir. 2007) (emphasis in original) (holding that the plaintiff's complaint adequately alleged the personal involvement of the Attorney General because it was plausible that officials of the Department of Justice would be aware of policies concerning individuals arrested after 9/11). The test is no longer whether there is "no set of facts" that plaintiff could prove "which would entitle him to relief." Bell Atlantic, 127 S.Ct. at 1969 (quoting Conley v. Gibson, 355 U.S. 45-46 (1957)) ("[t]he phrase is best forgotten as an incomplete, negative gloss on an ...