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Graham v. People of the City of New York

June 2, 2009


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



Tremain Graham brings this pro se action under 42 U.S.C. § 1983 alleging violations of his civil rights stemming from his arrest in February 2007 and a search of an apartment in a building he owned in April 2007. The defendants have moved to dismiss Graham's complaint pursuant to Fed. R. Civ. P. 12(b)(6). For the reasons stated below, defendants' motion is granted in part and denied in part.


Graham alleges that on February 6, 2007, the police received a report from Jessica Roman, who lived on the second floor of 754 Bushwick Avenue in Brooklyn, that Graham was "illegally in a neighboring apartment." Compl. at 2. Graham's mother, Trellis Horton, lived on the first floor of 754 Bushwick Avenue. Graham also "live[d] and reside[d]" in Apartment 1 at all times "mentioned" in the complaint. Id. at 1. Defendant Officer Juana Ortiz and an "unidentif[i]ed officer who was wearing a false name plate and badge" arrived at 754 Bushwick, searched and questioned Graham and Horton, and took Graham into custody on assault and menacing charges stemming from Roman's complaint. Id at 2. Graham's complaint suggests that he was then subjected to an order of protection preventing his return to the premises even though he was apparently the holder of a mortgage secured by the property. Id. at 3. ("Mr. Graham was unable to return to the property he took a loan for due to the neglig[e]nce of the police officer Juana Ortiz and her unreliable decisions.") Graham asserts that the authorities failed to present any evidence of assault or menacing in court, and that he was therefore falsely arrested and detained for a crime he did not commit.

Graham also alleges that, on the evening of April 9, 2007, "Detective Mike t Henry"*fn1 illegally entered Apartment 1 and conducted "several illegal searches" without presenting a warrant. Compl. at 4. He further alleges that Horton, who was present when the search occurred, unsuccessfully requested that an "NYPD supervisor" oversee the search and was told that she would be detained if she "refused a search." Id. Graham seeks $1 million in damages for these alleged violations of his rights.

On October 31, 2008, defendants filed the instant motion to dismiss. They assert that Graham was actually arrested twice during the period in question, once on February 5 and again on February 7. They contend that both arrests were supported by probable cause as a matter of law, and that Graham waived his right to challenge the February 7 arrest when he accepted an adjournment in contemplation of dismissal ("ACD").*fn2 They also claim that Graham lacks standing to challenge the legality of the April 9 search. Finally, they allege that the individual officers named by Graham have qualified immunity from Graham's suit and that Graham has failed to state a claim against the City of New York and the 83rd Precinct.


A. Motion to Dismiss

Motions to dismiss pursuant to Rule 12(b)(6) test the legal, not the factual, sufficiency of a complaint. See, e.g., Sims v. Artuz, 230 F.3d 14, 20 (2d Cir. 2000) ("At the Rule 12(b)(6) stage, '[t]he issue is not whether a plaintiff is likely to prevail ultimately, but whether the claimant is entitled to offer evidence to support the claims.'" (quoting Chance v. Armstrong, 143 F.3d 698, 701 (2d Cir. 1998))). Accordingly, I must accept the factual allegations in the complaint as true. Erickson v. Pardus, 127 S.Ct. 2197, 2200 (2007). However, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Ashcroft v. Iqbal, ___ U.S. ____, 129 S.Ct. 1937, 1949 (2009). Generally, "[s]pecific facts are not necessary" to state a claim so long as the statement gives the defendant "fair notice of what the . . . claim is and the grounds on which it rests." Erickson, 127 S.Ct. at 2200 (internal quotation marks omitted).

B. Construction of Graham's Complaint

As the Second Circuit has frequently advised, the filings of pro se litigants should be construed "liberally" and read "to raise the strongest arguments they suggest." Ferran v. Town of Nassau, 471 F.3d 363 (2d Cir. 2006). Graham contends that he was falsely arrested for assault on February 6, 2007. However, the documents submitted by defendants demonstrate, and Graham's response to their motion apparently concedes, see Pl.'s Response at 3 (referring to "the infamous February 5, 2007"), that Graham was actually arrested twice during the relevant time period: on February 5 in response to Roman's complaint, and on February 7 because he failed to obey the protective order barring him from the premises of 754 Bushwick Avenue. This chronology is also consistent with the fact that Graham names Sonya Yi as a defendant, as she was only involved in the February 7 arrest. Accordingly, I consider whether Graham has stated a claim as to either of these arrests or the April 9 search conducted by Detective Henry.

C. The Individual Defendants

The defendants allege that qualified immunity protects Officers Ortiz and Yi and Detective Henry from Graham's claims. Because qualified immunity is "an immunity from suit rather than the mere defense to liability," Mitchell v. Forsyth, 472 U.S. 511, 526 (1985), qualified immunity questions should be resolved at "the earliest possible stage in litigation." Saucier v. Katz, 533 U.S. 194, 201 (2001) (internal quotation marks omitted). A qualified immunity defense is established if (1) the defendant's action did not violate clearly established law, or (2) it was objectively reasonable for the defendant to believe that his action did not violate such law. See, e.g., Anderson v. Creighton, 483 U.S. 635, 638-39 (1987); Harlow v. Fitzgerald, 457 U.S. 800, 818-19 (1982). Where the evaluation of probable ...

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