The opinion of the court was delivered by: Seybert, District Judge
Shanik Johnson, mother and natural guardian of Plaintiff, brought this action on behalf of her twelve year-old son, Plaintiff Kaylil Johnson, against the County of Nassau, Nassau County Police Department and Officers John Doe 1 through 10 (collectively "Defendants"). Plaintiff asserts causes of action based on 42 U.S.C. § 1983 and New York state law. Pending before this Court is Defendants' Rule 12(b)(6) motion to dismiss. For the foregoing reasons, that motion is GRANTED IN PART AND DENIED IN PART.
On or about October 30, 2008 at around 7:10 a.m., Plaintiff was in the car with his parents on the way to school. (Compl. ¶ 12.) At some point, approximately twenty police officers stopped the vehicle, drew their guns, and asked Plaintiff to exit the car. (Id. ¶ 13.) Before Plaintiff could get out, one officer opened the door, grabbed Plaintiff's arm, and physically removed him from the car. (Id.)
The officers opened Plaintiff's backpack and searched its contents. (Id. ¶ 14.) The officers also searched Plaintiff's pockets and asked Plaintiff his age and relationship to the other people in the car. (Id. ¶¶ 14--15.) Next, the officers asked Plaintiff's parents to exit the car and similarly questioned them. (Id. ¶ 16.) The officers then opened and inspected the vehicle's trunk. (Id. ¶ 17.)
One hour later, the officers finally let Plaintiff and his parents leave. (Id. ¶ 16.) Due to this incident, Plaintiff claims that he suffers headaches and nausea. (Id. ¶ 18.)
Based on these facts, Plaintiff asserts that: (1) Defendants violated his Fourth and Fourteenth Amendment rights by searching his backpack, his pockets, and the trunk of his parents' car, (Id. ¶ 22.); (2) Defendants violated his Fourth and Fourteenth Amendment rights by using excessive force against him, (Id. ¶ 25.); (3) Defendants failed to intervene to prevent these constitutional violations, (Id. ¶ 28.); and (4) Nassau County failed to train and supervise its employees. (Id. ¶¶ 68-- 70.) Plaintiff also asserts state law claims for battery, assault, intentional infliction of emotional distress, negligent hiring/training/supervision/retention, and negligence. (Id. ¶¶ 32--76.)
In deciding FED. R. CIV. P. 12(b)(6) motions to dismiss, the Court applies a "plausibility standard," which is guided by "[t]wo working principles," Ashcroft v. Iqbal, __ U.S. __, 129 S.Ct. 1937, 1949, 173 L.Ed. 2d 868 (2009); Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009). First, although the Court must accept all allegations as true, this "tenet" is "inapplicable to legal conclusions"; thus, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Harris, 572 F.3d at 72 (quoting Ashcroft). Second, only complaints that state a "plausible claim for relief" can survive Rule 12(b)(6). Id. Determining whether a complaint does so is "a context specific task that requires the reviewing court to draw on its judicial experience and common sense." Id.
II. Plaintiff's Search and Seizure Claims
Plaintiff first cause of action alleges a § 1983 claim based on improper search and seizure.*fn2 In this regard, Plaintiff alleges that Defendants improperly: (1) stopped his parents' car; (2) interrogated him for an hour; (3) searched his backpack and pant pockets; and (4) searched his parents' car.
As an initial matter, Plaintiff's Complaint alleges that Defendants' search and seizure was "without probable cause." (Compl. ¶ 22.) But, as Plaintiff's Opposition brief appears to concede, this is not the appropriate standard. See Pl. Opp. Br. at 7-10. Even construed liberally, Plaintiff alleges that Defendants engaged in an investigative stop and search incident to this stop. Accordingly, Defendants needed only reasonable suspicion to stop Plaintiff, not probable cause, which applies to arrests.*fn3 It follows then that, to plead an improper seizure claim, Plaintiff needed to plead facts suggesting that Defendants lacked reasonable suspicion. See Allen v. City of N.Y., Nos. 03-CV-1668, 03-CV-3869, 03-CV-5323, 03-CV-4646, 2006 WL 1071576, at *3 (E.D.N.Y. Apr. 21, 2006) (plaintiffs pled a lack of probable cause by alleging that their appearances did not match the victim's descriptions). Plaintiff failed to do so. Instead, Plaintiff pled only a conclusory, improper allegation that the Defendants lacked probable cause. (Compl. ¶ 22). So the improper seizure claim must be dismissed.
Plaintiff's improper search claims deserve more consideration. During an investigative stop, police officers are entitled to conduct a warrantless stop-and-frisk if: (1) the police officer reasonably suspects that the person apprehended is committing or has committed a criminal offense; and (2) the police officer reasonably suspects that the person stopped is armed and dangerous. Evans v. Solomon, 681 F.Supp.2d 233, 247 (E.D.N.Y. 2010). Here, however, Plaintiff does not allege a stop-and-frisk. Instead, Plaintiff alleges that, upon being removed from the car, the officers "immediately searched" ...