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Virginia Toomer v. Cellco Partnership D/B/A Verizon Wireless

July 20, 2012

VIRGINIA TOOMER,
PLAINTIFF,
v.
CELLCO PARTNERSHIP D/B/A VERIZON WIRELESS, LESLIE GUZMAN, THE CITY OF NEW YORK, POLICE OFFICER RAMON PALANCO, AND JOHN DOE POLICE OFFICERS #1-4,
DEFENDANTS.



The opinion of the court was delivered by: Paul A. Engelmayer, District Judge:

OPINION & ORDER

In this civil rights action, plaintiff Virginia Toomer sues Cellco Partnership d/b/a Verizon Wireless ("Verizon"), the City of New York (the "City"), and individual defendants. Toomer's claims arise from events which occurred on January 23, 2011, when she was arrested outside a Verizon store on West 125th Street in Harlem after an altercation with a Verizon store manager and officers of the New York City Police Department ("NYPD"). Toomer brings claims under 42 U.S.C. § 1983 and under New York law for false arrest, malicious prosecution, assault, battery, conspiracy, constitutional tort, negligence, and respondeat superior; she seeks special, compensatory, and punitive damages, as well as costs and attorneys' fees. Verizon and defendant Leslie Guzman, the Verizon store manager, bring this motion to dismiss all claims pending against them. For the reasons that follow, that motion is granted.

I.Background*fn1

A.Parties

Toomer is a New York City resident. Verizon is a legal entity doing business as Verizon Wireless. Guzman was the manager of the Verizon store at 166 West 125th Street, New York, New York at the time of the events at issue. Officer Ramon Polanco*fn2 is the NYPD officer who arrested Toomer; Toomer also sues four John Doe officers (collectively with the City of New York and Polanco, the "City defendants"). Polanco and Guzman are sued in their individual and official capacities.

B.Facts

On January 21, 2011, Toomer went to the Verizon store because her Blackberry cell phone was malfunctioning. Compl. ¶ 12. She had a contract with Verizon for mobile wireless service. Id. She was told by an unnamed Verizon employee that she had six days left on her contract, and that she could obtain a new cell phone for either $99 or $149. Id. Toomer chose not to purchase the new cell phone that day. On Sunday, January 23, 2011, she returned to the store in the early afternoon. Id. ¶ 13. She was told by a different employee that the information she had received two days earlier was incorrect: In fact, her contract had expired, meaning she would have to spend $500 for a new Blackberry device. Id.

After Toomer asked for a manager, the manager, Guzman, confirmed that the contract had lapsed. Id. ¶ 14. Toomer began to "calmly reason with [Guzman]." Id. Guzman then became "loud and aggressive," and refused to reveal her name or tender her business card. Id. "At [p]laintiff's behest, [d]efendant Guzman called police officers into the store to redress the situation." Id. When police officers arrived, they informed Toomer that there was nothing they could do. Id. ¶ 15. Toomer then wrote down the officers' badge numbers. Id. Guzman asked one of the officers to tell Toomer to leave; Toomer claims she did so immediately. Id. ¶¶ 15, 19. When she left the store, the four officers left as well. Id. ¶¶ 15--16. Once outside the store, Officer Polanco began to "verbally abuse" Toomer, who asked "why he was treating her that way." Id. ¶ 16. Officer Polanco then demanded that Toomer place her hands behind her back, and arrested her. Id.

Toomer was driven, in the back of the police car, to the local precinct. Id. ¶ 17. During the ride, she claims, she suffered extreme pain and discomfort, due in part to two hip replacements. Id. She was released three and a half hours later. Id. ¶ 18. When she left the precinct, she checked her purse for the paper on which she had written the police officers' badge numbers, but it was missing. Id. ¶ 22. She returned to the station, where Officer Polanco told her she "didn't need the names of the officers." Id. Officer Polanco wrote his "name and badge number on a Chinese restaurant delivery check and told her to leave." Id.

Toomer was charged under New York State Penal Law § 140.10 with criminal trespass in the third degree.*fn3 Id. ¶ 18; N.Y. Penal Law § 140.10 (McKinney 2012). The criminal complaint states that Guzman "asked [Toomer] to leave because [Toomer] was acting inappropriately by screaming obscenities at [Guzman]." Compl. ¶ 19. It also states that Guzman asked Toomer "to leave multiple times, that [Toomer] refused to leave, and that [Toomer] did not have permission or authority to remain" at the store. Id. In her Complaint, Toomer disputes this characterization, claiming that she left the store immediately upon being asked. Id. ¶ 20. On July 13, 2011, after Toomer had made four court appearances, the charges against her were dismissed. Id. ¶¶ 21, 24. However, because of the arrest and the criminal charges against her, she had been suspended from her position at the New York City Department of Education. Id. ¶ 23.

Toomer alleges that Officer Polanco and Guzman engaged during these events in a "joint venture and formed an agreement to violate [Toomer's] rights." Id. ¶ 23. The defendants, she claims, "assisted each other in performing the various actions described and lent their physical presence and support and the authority of their office to each other during said events." Id.

C.Toomer's Claims

The Complaint contains 11 causes of action. The first is brought against all defendants under 42 U.S.C. § 1983. It claims deprivations of Toomer's rights under the Fourth Amendment to be free from unreasonable searches and seizures by virtue of the defendants' alleged false arrest, malicious prosecution, and assault and battery of her, and the conspiracy to take these actions.*fn4 It also claims a violation of her Fourteenth Amendment right to due process. Toomer's other claims are for: (1) malicious prosecution, against all defendants; (2) violation of her rights under §§ 5, 6, and 12 of the New York State Constitution, against all defendants; (3) conspiracy to falsely arrest, maliciously prosecute, and commit assault and battery, against Guzman, Officer Polanco, and the John Doe police officers; (4) negligent hiring and retention, against Verizon; (5) grossly negligent hiring and retention, against Verizon; (6) respondent superior, against Verizon; (7) Monell liability, against the City; (8) false arrest, against the City, Officer Polanco, and the John Doe police officers; (9) assault, against the City, Officer Polanco, and the John Doe police officers; and (10) battery, against the City, Officer Polanco, and the John Doe police officers.*fn5

II.Legal Standard on a Motion to Dismiss

Verizon and Guzman move under Federal Rule of Civil Procedure 12(b)(6) to dismiss the suit against them for failure to state a claim. To survive such a motion to dismiss, a plaintiff must plead sufficient factual allegations "to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). Where a plaintiff has not "nudged [his or her] claims across the line from conceivable to plausible, [the] complaint must be dismissed." Twombly, 550 U.S. at 570. The Court must accept as true all well-pleaded factual allegations in a complaint, and "draw[ ] all inferences in the plaintiff's favor." Allaire Corp. v. Okumus, 433 F.3d 248, 249--50 (2d Cir. 2006) (internal quotation marks and citation omitted). On the other hand, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the ...


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