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Prophete v. City of New York

September 9, 2008


The opinion of the court was delivered by: Gershon, United States District Judge


Pro se plaintiff Gerald Prophete brings this action against defendant City of New York (the "City") pursuant to 42 U.S.C. § 1983, alleging violations of his constitutional rights under the United States Constitution. Defendant now moves to dismiss plaintiff's Amended Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.


On or about July 24, 2007, plaintiff filed his complaint in this action, naming the New York Police Department ("NYPD") as the defendant. On August 3, 2007, the court issued an order granting plaintiff leave to amend his complaint in accordance with Rule 8 of the Federal Rules of Civil Procedure. Finding plaintiff's complaint to be "vague and unintelligible," the court directed plaintiff to "set forth the legal basis and factual allegations to support his claims against each defendant, and the relief he is seeking with respect thereto." The court further found that plaintiff's complaint lacked a proper defendant*fn1 and directed plaintiff to "identify, as best he can, the individual defendant(s) who were personally involved in the events that he claims violated his rights," and, in those instances where he did not know the true identity of a defendant, to refer to him or her as John or Jane Doe. Plaintiff was to name all of the defendants in the caption of his amended complaint. On August 14, 2007, plaintiff filed his Amended Complaint, naming only the City of New York as a defendant in the caption.


The following facts as alleged in the Amended Complaint are taken as true for purposes of this motion.*fn2

Over a period of approximately eleven years, from July 1994 to October 2005, plaintiff encountered nine separate run-ins with the police. In his Amended Complaint, plaintiff describes the circumstances surrounding each of the incidents.

I. July 8, 1994

On or about July 8, 1994, plaintiff was arrested for attempted assault in the first degree, menacing in the second degree, and reckless endangerment in the first degree, in violation of New York Penal Law §§ 110-120.10, 120.14, and 120.25, respectively. The arrest report states that plaintiff threatened to shoot Officer Kevin Spencer and displayed what appeared to be a gun while Officer Spencer was "seated in the front driver's seat of his car on a city street that was heavy in pedestrian and vehicular traffic."

Plaintiff, on the other hand, alleges that Officer Spencer, Officer Figueredo, and another officer, John Doe, walked toward a group of individuals and pulled out their weapons. One of the officers then asked Officer Spencer, "Which one of them?" and after a moment of confusion over who to pick out of the group, Officer Spencer randomly chose plaintiff and a young boy. Both plaintiff and the young boy were placed under arrest and brought into the police station for processing. After a few hours of lock-up in a small cell, the parents of the young boy came to pick up their son, while plaintiff "was not so lucky." He was fingerprinted and served almost three days for offenses he claims he did not commit. Plaintiff was eventually arraigned at the Criminal Court of the City of New York, Kings County, but his case was adjourned on January 30, 1995 and dismissed on July 28, 1995.

II. November 4, 1994

On November 4, 1994, plaintiff, then a student at John Adams High School, was arrested for harassment in the second degree in violation of N.Y. Penal Law § 240.26. The day prior to his arrest, plaintiff had refused school safety officer Jane Doe's request that he hand over his personal pager to her. When Officer Doe attempted to forcefully remove his pager from him, plaintiff "shoved her hand to the side and ran to the nearest exit door way." The next morning, Officer Doe removed plaintiff from his class and took him to the dean's office, where he was handcuffed and made "ready for escort" to the Queens criminal court for processing. Officer Doe fingerprinted plaintiff and "locked [him] up for 48 hours." The case was adjourned on April 4, 1997 and dismissed on October 8, 1997.

III. August 29, 1997

On August 29, 1997, Officer Paul Valdini arrested plaintiff for disorderly conduct in violation of N.Y. Penal Law ยง 240.20-5. The arrest report indicates that Office Valdini observed plaintiff "standing on the street with other individuals obstructing the regular flow of vehicular traffic and when [plaintiff] was instructed to disperse, [he] refused to comply thereby causing public inconvenience and alarm." Plaintiff, however, claims that he and several other individuals were stopped by a large group of police officers in "uniformed and riot gear" near the Brooklyn Bridge as they were heading back to a "peaceful march for the Abner Louima incident that took place on August 9, 1997." The police officers, believing that the crowd was not peaceful, placed plaintiff and other individuals under arrest and transported all ...

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