The opinion of the court was delivered by: David N. Hurd United States District Judge
MEMORANDUM-DECISION and ORDER
Plaintiffs Daniel Faccio ("D. Faccio") and Chastity Faccio ("C. Faccio"), a married couple, along with their minor children A.F. and D.F. (collectively "plaintiffs" or "Faccios"), bring these actions asserting several causes of actions under the United States Constitution, New York State Constitution, federal law, and state law.
Plaintiffs filed Civil Action No. 1:10-CV-699 ("member case") on June 16, 2010, against Glens Falls City School District ("District"); Glens Falls Middle School ("middle school"); Christopher Reed, principal of Glens Falls Middle School ("Reed"); Laurey Parker, assistant principal of Glens Falls Middle School ("Parker"); Hank Dwyer, custodian at Glens Falls Middle School ("Dwyer"); Kate McPhillip, teacher at Glens Falls Middle School ("McPhillip"); and Anne Zilch, teacher at Glens Falls Middle School ("Zilch") (collectively "school defendants"). Member Compl., Dkt. No. 1.
Plaintiffs filed Civil Action No. 1:10-CV-783 ("lead case") on July 1, 2010, against the Glens Falls Police Department ("Department") and police officer Christopher Eggleston ("Eggleston") (collectively "police defendants"). Lead Compl., Dkt. No. 1. These two civil actions were consolidated on November 10, 2010, because the allegations derived from the same chain of events. Civil Action No. 1:10-CV-783 was designated the lead case.
Both the police defendants and the school defendants moved to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim upon which relief can be granted. The police defendants also counterclaimed alleging plaintiffs failed to bring a claim grounded in fact and/or law and requested attorney's fees pursuant to 42 U.S.C. § 1988. Plaintiffs responded to both motions to dismiss. Both sets of defendants replied. The motions were taken on their submissions without oral argument.
Defendants middle school, Reed, Dwyer, Parker, Zilch, and McPhillip were not properly served. See Dkt. No. 29, 7. Summons were mailed to all of the defendants by the United States Marshal Service. The superintendent waived service on behalf of the District, but the remaining defendants did not waive service. The Marshal Service notified plaintiffs of the failure to serve these defendants, but plaintiffs did not request that the Marshal Service serve the remaining defendants. See Dkt. No. 29,7. Under Rule 4(m) of the Federal Rules of Civil Procedure, lack of service results in either a dismissal without prejudice or an order to make service.
However, for the reasons discussed in this Memorandum-Decision and Order, plaintiffs fail to state a claim against these unserved defendants, and the claims against them will be dismissed pursuant to Rule 12(b)(6).
Plaintiff D.F. was a seventh-grade student at the middle school from September 2009 to June 2010. Plaintiffs allege that during this time, D.F. was subjected to harassment and bullying by faculty, staff, and students. They claim that the harassment and bullying was because of D.F.'s race, color, orientation, nationality, ethnicity, sex, and origin and assert the harassment occurred every day or every other day. The Faccios contend they met with middle school officials to report the harassment. On December 13, 2009, D. Faccio notified Parker and an "officer of the school" that twelve members of the football team wanted to assault D.F.. D. Faccio also notified Parker and the officer about an incident where an individual driving a pick-up truck followed D.F. from the middle school parking lot, gave D.F. the middle finger, and called D.F. an ethnic slur.
On December 14, 2009, a student gave a written statement to police alleging D. Faccio threatened him. The next day, December 15, 2009, D. Faccio and A.F., drove to the middle school to pick up D.F.. At the middle school, D. Faccio was approached and arrested by officers of the Department for endangering the welfare of a child.
D. Faccio was transported to the police station where he was searched and questioned. He also alleges his car was towed from the middle school and searched. Additionally, his minor children, A.F. and D.F.-who were under his supervision at the time of his arrest-were taken to the police station until his wife arrived at the police station.
Plaintiffs claim that the police questioned A.F. and D.F. without their consent when the children were at the police station.
The Faccios contend the harassment of D.F. at school escalated after D. Faccio's arrest. According to the complaint, on January 8, 2010, Reed harassed D.F. and grabbed his arm hard. On April 19, 2010, Zilch yelled at D.F. and spat in his face. On an unspecified date, McPhillip unfairly "wrote up" D.F. for punishment. On one occasion, Dwyer put his hands on D.F. in the school cafeteria in order to physically force D.F. to sit down. In addition, Parker subjected D.F. to occasional lunch detentions where she did not allow D.F. to eat. Finally, plaintiffs allege that the middle school and the District ignored their pleas to stop the harassment of D.F..
Both sets of defendants move for dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6) on the grounds that the respective complaints fail to state a claim.
"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 1974 (2007)). All reasonable inferences must be drawn in favor of the complainant. See Bank of N.Y. v. First Millennium, Inc., 607 F.3d 905, 922 (2d Cir. 2010) (citing Hayden v. Paterson, 594 F.3d 150, 160 (2d Cir. 2010)). However, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Iqbal, 129 S. Ct. at 1949. Instead, "[w]hile legal conclusions can provide the framework of a complaint, they must be supported by factual allegation." Id. at 1950.
Pro se pleadings are to be construed liberally, particularly if the plaintiffs are alleging civil rights violations. See Sealed Plaintiff v. Sealed Defendant # 1, 537 F.3d 185, 191 (2d Cir. 2008). Only the most unsustainable of pro se claims should be dismissed for insufficient pleading. Id. (citing Boykin v. KeyCorp, 521 F.3d 202, 216 (2d Cir. 2008)).
In their complaints, plaintiffs make numerous allegations of improper behavior by employees of the Department and the District.
A. Federal Law Claims Against Police Defendants
The Faccios allege constitutional violations on behalf of D. Faccio as well as minor children A.F. and D.F.. The alleged deprivations occurred during and shortly after D. Faccio's arrest on December 15, 2009. These include: (1) false arrest of D. Faccio; (2) illegal search of D. Faccio's person; (3) illegal search of D. Faccio's vehicle; (4) illegal seizure of A.F. and D.F.; (5) illegal questioning of A.F. and D.F.; (6) illegal questioning of D. Faccio after he invoked his Miranda right to have counsel present; and (7) racial profiling. In construing plaintiffs' complaint liberally, these allegations will be analyzed as claims made pursuant to 42 U.S.C. § 1983.
1. False Arrest of D. Faccio
Plaintiffs allege that on December 15, 2009, D. Faccio was falsely arrested*fn1 by Eggleston and the Department. Defendants contend they had probable cause to arrest.
To establish a false arrest claim under § 1983, a plaintiff must show that the defendant intentionally confined him without consent and without justification. Escalera v. Lunn, 361 F.3d 737, 744 (2d Cir. 2004). Probable cause to arrest constitutes justification. Id. Probable cause exists "when the arresting officer has knowledge or reasonably trustworthy information of facts and circumstances that are sufficient to warrant a person of reasonable caution in the belief that the person to be arrested has committed or is committing a crime." Id.
The Faccios claim the arrest was the result of a false report that D. Faccio had a gun. According to the complaint, "they [the police officers] said the principal*fn2 said I had a gun in the car." Lead Compl., 1. Plaintiffs submitted a copy of the statement made to police on December 14, 2009, by a thirteen-year-old student. See Dkt. 25, Ex. A. The student alleged that D. Faccio threatened him. Plaintiffs also attached a copy of the misdemeanor complaint generated by Eggleston that charged D. Faccio with endangering the welfare of a child. See Dkt. 25, Ex. B.
The police defendants claim there was probable cause to arrest D. Faccio based on the student's statement. Plaintiffs contend the student's statement was false. As the allegations in the complaint must be taken as true in a motion to dismiss, it must be assumed that D. Faccio did not threaten the child, and the child lied to the police. Even assuming that the child made a false allegation to the police, a person of reasonable caution would have still believed the child's statement to be reasonably trustworthy as there was no apparent reason to doubt the child's statement. Thus, based off of this statement, police had probable cause to arrest as there was sufficient knowledge that D. Faccio had committed a crime.
Because police had probable cause based on the signed statement of the thirteen-year-old alleging that D. Faccio threatened him, the false arrest claim will be dismissed.
2. Illegal Search of D. Faccio
Plaintiffs allege that D. Faccio was illegally searched after his arrest. As previously discussed, the police had probable cause to arrest D. Faccio and his false arrest claim fails. Searches incident to a lawful arrest are legal. See United States v. Robinson, 414 U.S. 218, 224, 94 S. Ct. 467, 472 (1973). Because D. Faccio's arrest was lawful, it was legal for the police to search his person. Therefore, any claim alleging an illegal search of D. Faccio will be dismissed.
3. Illegal Search of D. Faccio's Vehicle
Plaintiffs allege their vehicle was illegally searched. According to D. Faccio, "I called my wife to pick up my car from a 2 hour parking. [G]o to find out the P.D. wanted to search my car and towed it anyway. [W]ith a 2 hour parking spot they felt they had to tow my car anyway." Lead Compl., 2. Defendants did not respond to this claim.
An illegal search of a vehicle is a violation of the Fourth Amendment, and a person whose vehicle has been illegally searched by a state actor may make a claim under § 1983. See Torres v. Vill. of Sleepy Hollow, 379 F. Supp. 2d 478, 485 (S.D.N.Y. 2005). Police have authority to search a vehicle if they have probable cause to suspect the vehicle contains evidence of criminal activity or if the arrestee is in reaching distance of the vehicle. See Arizona v. Gant, 129 S. Ct. 1710, 1721 (2009). Police may also search an impounded vehicle in accordance with standard police procedures (commonly referred to as an inventory search). See United States v. Lopez, 547 F.3d 364, 369--70 (2d Cir. 2008).
Taking plaintiffs' allegations as true, the car was towed from a legal parking place and searched by the police. Furthermore, the defendants have not offered a justification for the alleged search, and nothing suggests the police suspected the vehicle contained evidence of criminal activity, nor was D. Faccio within reaching distance of the vehicle. To the contrary, the car was towed and searched after D. Faccio was in custody at the police station. To the extent that plaintiffs sufficiently pleaded a § 1983 claim for the illegal search of their vehicle, the claim must be dismissed because, as discussed below, there are no named defendants against whom to maintain this cause of action.
The police defendants argue any claims against Eggleston must be dismissed because he was not personally involved. They assert Eggleston did not physically arrest D. Faccio and had no contact with him during the events on December 15, 2009. They argue that his involvement was limited to taking a statement from the thirteen-year-old child. In support of their position, defendants attached to their motion to dismiss an affidavit from Detective Sergeant Peter Castertino of the Department who stated that he was the arresting officer. Defs.' Mot. to Dismiss, Castertino Aff., Dkt. No. 23--3.
The personal involvement of defendants is an essential element of a § 1983 claim. Wright v. Smith, 21 F.3d 496, 501 (2d Cir.1994). "A plaintiff must allege a tangible connection between the acts of a defendant and the injuries suffered." Bass v. Jackson, 790 F.2d 260, 263 (2d Cir. 1986). There is no respondeat superior liability under § 1983, and a defendant may not be held liable for constitutional violations merely because he or she holds a high position of authority. Richardson v. Goord, 347 F.3d 431, 435 (2d Cir. 2003); Wright, 21 F.3d at 501.
The complaint states that "the glens falls police department and a police officer by the name of CHRISTOPHER L EGGLESTON made an arrest on the day of 12/15/2009 ." Lead Compl., 1. As explained above, the claims for false arrest and the illegal search of D. Faccio will be dismissed because there was probable cause to arrest him and the search of his personal was conducted pursuant to a lawful arrest. With respect to the alleged illegal search of the Faccio's vehicle, the complaint states: "[G]o to find out the P.D. wanted to search my car and towed it anyway." Lead Compl., 2. There are no allegations that Eggleston was the one who searched the vehicle. Because plaintiffs have alleged no facts supporting Eggleston's personal involvement in the alleged illegal vehicle search, the claim against him will be dismissed.
b. Glen Falls Police Department
Defendants contend that all claims against the Department must be dismissed because plaintiffs did not plead any facts suggesting the Department had a custom or policy which caused ...