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Guerrero v. City of New York

United States District Court, Second Circuit

November 4, 2013

CITY OF NEW YORK and DOES 1-10, Defendant.

JOHN M. LAMBROS, ESQ., New York, NY, Attorney for Plaintiff.

Uriel B. Abt, Esq., MICHAEL A. CARDOZO, Corporation Counsel of the City of New York, New York, NY, Attorney for Defendant.


ROBERT W. SWEET, District Judge.

Defendant City of New York (the "City" or the "Defendant") has moved pursuant to Fed.R.Civ.P. 12(b)(6) to dismiss the Second Amended Complaint ("SAC") of plaintiff Richard Guerrero ("Guerrero" or the "Plaintiff"). Upon the conclusions set forth below, the City's motion is granted and the SAC is dismissed with prejudice.

Prior Proceedings

On April 4, 2012, the Plaintiff filed the instant lawsuit against the City alleging various state and federal claims arising out of an arrest that occurred on December 10, 2010. On July 23, 2012, Plaintiff filed an Amended Complaint ("FAC"). The FAC was similar to the original complaint except that, in addition to the December 10, 2010 arrest, it alleged an unrelated and factually distinct second arrest that occurred on July 25, 2011. The City moved to dismiss the FAC on the following grounds: (i) that the Plaintiff had not sufficiently plead a policy or custom of the City of New York for purposes of establishing liability pursuant to Monell v. Dept' of Soc. Servs. , 436 U.S. 658 (1978); (ii) that the Plaintiff had not sufficiently plead any underlying constitutional violations; and (iii) that any state law claims were barred by Plaintiff's failure to timely comply with New York State's notice of claim requirements. This Court granted Defendant's motion in its entirety but granted Plaintiff leave to re-plead. Guerrero v. City of New York, 2013 WL 673872, at *6 (S.D.N.Y. Feb. 21, 2013) (the "February 21 Opinion").

On March 13, 2013, Plaintiff filed the SAC. The SAC contains a few additional allegations but is largely the same as the FAC, although it no longer asserts any state law claims.

The SAC alleges that Plaintiff was involved in two discrete incidents that are violations of 42 U.S.C. § 1983. The first incident occurred on December 10, 2010, where Plaintiff was involved in an altercation in a night club. SAC ¶ 8. Plaintiff alleges that as a result of the altercation, the police were called, and Plaintiff was ultimately arrested by the police (referred to hereinafter as the "First Arrest"). Id . After about a year, the criminal charges stemming from the First Arrest were dismissed. Id.

The second incident occurred on July 25, 2011, where Plaintiff was arrested by two plainclothes police officers as he was leaving Queens County Court, where he appeared in an unrelated matter (referred to hereinafter as the "Second Arrest" and collectively with the First Arrest, the "Arrests"). Id . ¶ 10. The officers informed Plaintiff that his arrest was made in connection with a complaint made by an N.Y.P.D. traffic agent, who accused three individuals of assaulting him or her at 5:30 A.M. on July 22, 2011. Id . However, Guerrero states that he informed the officers during the Second Arrest that he was in the hospital at the time of the alleged assault. Id . The criminal charges against Guerrero stemming from the Second Arrest were eventually dismissed. Id.

The SAC alleges that the City's customs, usages, patterns and policies violated Plaintiff's rights in violation of 42 U.S.C. § 1983 and Monell, the Arrests were false arrests and violated Plaintiff's constitutional rights, Plaintiff suffered from malicious prosecution and Plaintiff suffered from excessive force during the Arrests.

The instant motion was marked fully submitted on July 24, 2013.

The Rule 12(b)(6) Standard

On a motion to dismiss pursuant to Federal Rules of Civil Procedure 12, all factual allegations in the Complaint are accepted as true, Krijn v. Pogue Simon Real Estate Co. , 896 F.2d 687, 688 (2d Cir. 1990), and all inferences are drawn in favor of the pleader. Amidax Trading Group v. S.W.I.F.T. SCRL , 671 F.3d 140, 145 (2d Cir. 2011). The issue "is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." G-I Holdings, Inc. v. Baron & Budd , 238 F.Supp.2d 521, 534 (S.D.N.Y. 2002) (quoting Villager Pond, Inc. v. Town of Darien , 56 F.3d 375, 378 (2d Cir. 1995)).

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 , 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 570 (2007)). The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief. Id . (citations and quotations omitted). Plaintiffs must allege sufficient facts to "nudge[] their claims across the line from conceivable to plausible." Twombly , 550 U.S. at 570. Though the court must ...

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