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Cabble v. City of New York

March 29, 2010



Plaintiff Charles Cabble ("Plaintiff") brings claims against Defendant City of New York ("Defendant") under 42 U.S.C. § 1983, alleging that he was subjected to false arrest, malicious prosecution and malicious abuse of process in violation of his rights under the Fourth and Fifth Amendments to the U.S. Constitution. Plaintiff also brings state law tort claims for false arrest, malicious prosecution, malicious abuse of process, negligence and intentional infliction of emotional distress. This court has jurisdiction of Plaintiff's claims under 28 U.S.C. §§ 1331, 1343 and 1367.

Defendant moves to dismiss this action pursuant to rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim. The motion is granted in part and denied in part.


The following are facts drawn from Plaintiff's Second Amended Complaint ("SAC") and are taken as true for the purposes of this motion practice. In March 2003, Plaintiff was the manager of a Hollywood Video store in the Bronx, where Nyree Soto ("Soto") and Tamesha Dasent ("Dasent") were both employees. (SAC ¶ 12.) Dasent used a false name, "Norda Williams," throughout all the events described below. (Id. ¶¶ 85-86.)

On March 15, 2003, Soto complained to Sgt. Adam Sanchez of the 45th Precinct that Plaintiff had raped her two weeks earlier. (Id. ¶¶ 38-39.) Soto made her rape complaint while Sgt. Sanchez was investigating Plaintiff's allegation that Soto's boyfriend had assaulted him. (Id. ¶¶ 32-33.) Sgt. Sanchez, who had no training in rape investigations, asked both Plaintiff and Soto to return to the 45th Precinct with him so that detectives of the Special Victims Squad could interview them. (Id. ¶¶ 45, 52.) At the precinct, Soto joked and laughed with a friend. (Id. ¶¶ 50-51.) No Special Victims Squad detectives were available to assist Sgt. Sanchez, so Sgt. Sanchez arrested Plaintiff without further investigation. (Id. ¶¶ 53, 57, 59.)

On April 1, 2003, Dasent lodged a police complaint alleging that Plaintiff had sexually assaulted her in the back office of Hollywood Video on December 25, 2002. (Id. ¶¶ 70, 72.) Present with Dasent when she made her complaint were Soto and two civil attorneys who would later, on April 17, 2003, file a $50 million sexual harassment civil lawsuit against Hollywood Video on behalf of Soto and Dasent. (Id. ¶¶ 72, 101.) She thereafter alleged that Mr. Cabble had also assaulted her sexually on August 26, 2002. (Id. ¶ 95.)

Plaintiff was arrested again on April 1, 2003, was arraigned, and was remanded to Riker's Island until he was released on his own recognizance on November 10, 2003. (Id. ¶ 16.) On April 25, 2003, Plaintiff was indicted by a grand jury on multiple counts of rape and attempted rape as well as related charges. (Id. ¶¶ 123, 136.) Prosecutors did not present to the grand jury any evidence of Soto and Dasent's civil suit against Hollywood Video or any evidence of hundreds of personal phone calls between Plaintiff and Soto occurring both before and after the alleged rape. (Id. ¶¶ 114-118.) Prosecutors also failed timely to subpoena a security video recording of the back office of Hollywood Video dated December 25, 2002, which contradicted certain aspects of Dasent's description of the alleged sexual assault incident on that date. (Id. ¶¶ 73, 78, 120-122.)

At a bench trial that commenced before Justice Steven Barrett in Bronx County Supreme Court on March 1, 2004, 10 of the 25 counts of the indictment were dismissed or withdrawn by the Bronx District Attorney's Office, and Plaintiff was acquitted on the remainder. (Id. ¶¶ 145-47.)


In deciding a motion to dismiss a complaint, the Court accepts as true the non-conclusory factual allegations in the complaint and draws all reasonable inferences in the plaintiff's favor. Roth v. Jennings, 489 F.3d 499, 501 (2d Cir. 2007); see also Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). To survive a motion to dismiss, a complaint must plead "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).

False Arrest

"A § 1983 claim for false arrest, resting on the Fourth Amendment right of an individual to be free from unreasonable seizures . . . is substantially the same as a claim for false arrest under New York law." Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996) (citing Singer v. Fulton County Sheriff, 63 F.3d 110, 118 (2d Cir. 1995)) (internal quotation marks omitted). To state a claim for false arrest, Plaintiff must allege that: 1) the defendant intended to confine him, 2) the plaintiff was conscious of the confinement, 3) the plaintiff did not consent to the confinement and 4) the confinement was not otherwise privileged. Broughton v. State, 37 N.Y.2d 451, 456 (1975). The parties dispute only whether Plaintiff has plausibly stated that his arrest was not privileged, i.e., that it was not supported by probable cause.

"Probable cause exists when, based on the totality of circumstances, the officer has . . . reasonably trustworthy information as to facts and circumstances that are sufficient to warrant a person of reasonable caution in the belief that an offense has been or is being committed by the person to be arrested." Finigan v. Marshall, 574 F.3d 57, 62 (2d Cir. 2009). In this case, at the time of each arrest of Plaintiff, the only information available to the arresting officer was the statement of the putative victim -- there were, according to the complaint, no witnesses to the alleged criminal acts, nor any physical evidence.

"An arresting officer advised of a crime by a person who claims to be the victim, and who has signed a complaint or information charging someone with the crime, has probable cause to effect an arrest absent circumstances that raise doubts as to the victim's veracity." Singer v. Fulton County Sheriff, 63 F.3d 110, 119 (2d Cir. 1995). Although both arrests were based on victims' complaints, Plaintiff has plausibly alleged that there were circumstances raising doubts about Soto's and Dasent's veracity at the time of Plaintiff's arrests. Plaintiff alleges that both Soto and Dasent made their complaints weeks or months after the alleged crimes took place, that they both filed a multi-million dollar civil suit against Hollywood Video within weeks of their criminal complaints, that Soto made her complaint during a police investigation into the alleged criminal conduct of her own boyfriend and that Soto was laughing and joking at the 45th Precinct during the investigation of her rape complaint. Taken ...

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