United States District Court, S.D. New York
Suzannah B. Troy, Plaintiff,
City of New York, et al., Defendants.
MEMORANDUM & ORDER
ALISON J. NATHAN, District Judge.
This action arises from the investigation of a physical altercation between Plaintiff Suzannah Troy and non-party Delita Hooks by police officers employed by the City of New York ("City"). Plaintiff, proceeding pro se, brings this action against the City and individual defendants Lieutenant Agnes, Lieutenant Burgos, Sergeant Chen, Detective Dwyer, IAB Chief Campisi, Commissioner Kelly, Sergeant O'Donnell, and Deputy Inspector Winski, alleging that Defendants violated the federal constitution, the state constitution, and state tort law. Before the Court is Defendants' motion to dismiss the complaint pursuant to Federal Rule of Criminal Procedure 12(b)(6). For the reasons that follow, the motion is granted.
The following facts are taken from the complaint and judicially noticeable documents. See Kramer v. Time Warner Inc., 937 F.2d 767, 773 (2d Cir. 1991) (holding that a district court may "consider matters of which judicial notice may be taken" in deciding a motion to dismiss, so long as such extrinsic documents are not relied upon for the truth of the matters asserted therein). But the Court does not rely on factual assertions made for the first time in Plaintiff's opposition brief, see, e.g., Pl. Opp. 4 (asserting for the first time that Plaintiff spoke to Detective Del Pozo about "witnessing a retired NYPD commander attempted [sic] to fix a ticket for Rudin Flunkie"), as it is "axiomatic that the Complaint cannot be amended by briefs in opposition to a motion to dismiss." Muniz v. Morillo, No. 06-cv-6570 (RJS), 2008 WL 4219073, at *6 (S.D.N.Y. Sept. 10, 2008) (quoting O'Brien v. Nat'l Prop. Analyst Partners, 719 F.Supp. 222, 229 (S.D.N.Y. 1989)). Indeed, Plaintiff was advised and subsequently reminded of her right to amend the Complaint in the face of the motion to dismiss, see Dkt. Nos. 29, 33, but declined to do so, opting instead to rely on the Complaint and oppose the motion, see Dkt. No. 40.
A. Plaintiff's History of Activism
Plaintiff Suzannah Troy defines herself as an activist who has engaged in numerous campaigns involving her local community and the NYPD. Compl. 4. For example, Plaintiff "worked with the NYPD and Parks Dept. to return the doors" to the Tompkins Square Park women's restrooms in August 2009, published a letter in the New York Times advocating raising the salaries of NYPD officers in 2004, and gave free massages to NYPD officers in the lobby of her health club following September 11. Compl. 5-7. Plaintiff has also expressed more critical views of the NYPD, such as by filing a grievance with the Supreme Court Committee related to "the rape trial of NYPD PO Moreno aka the NYPD Rape Cop." Compl. 8-9.
B. Altercation with Ms. Hooks
Plaintiff is a patient of Dr. Kathleen Vine. Compl. 11. At the time of the events underlying this litigation, Dr. Vine shared offices and a reception area with Dr. Andrew Fagelman, who employed and continues to employ receptionist Delita Hooks. Id. On October 1, 2012, Plaintiff stopped by a water cooler in the reception area of Dr. Vine's office on her way out the door. Id. Upon noticing that the water cooler was stocked with Styrofoam cups, Plaintiff turned to Ms. Hooks and asked, "Would you consider using paper cups instead of Styrofoam? It's better for the environment." Id.
While the exact sequence of the events that followed is not entirely clear from Plaintiff's complaint, Plaintiff appears to contend that Ms. Hooks reacted to Plaintiff's request by striking her desk, yelling at Plaintiff, getting up from her desk to approach Plaintiff in a threatening manner, and giving Plaintiff "the finger." Compl. 11-12. Plaintiff retreated to the hallway and began using her cell phone to record Ms. Hooks through the doorway of the office. Id. at 12 Plaintiff said to Ms. Hooks, "[W]ould you please give me the finger again, now I am filming." Id. Instead of closing the door to block Plaintiff's view, the Complaint alleges that Ms. Hooks continued to threaten Plaintiff, stating, "I will slap the crap out of you!" Id. According to the Complaint, Ms. Hooks then slapped Plaintiff's cell phone out of Plaintiff's hands, threw her shoe at Plaintiff, punched Plaintiff in the left eye, and dragged Plaintiff toward the elevator by pulling on Plaintiff's hair. Id. at 12-13. Plaintiff attempted to defend herself by making short jabs with her bags and her left arm, which was weak due to a recent medical procedure (Plaintiff's right arm was holding her cell phone, which she had apparently retrieved). Id. at 13. The attack allegedly culminated with Ms. Hooks pressing her bare foot against Plaintiff's groin while pulling on Plaintiff's hair so that Plaintiff was "bent over like a bridge." Id. at 13-14. Ms. Hooks' co-workers and friends were ultimately able to put a stop to the altercation, and Ms. Hooks returned to her desk. Id. at 14-15.
C. Investigation of Altercation
Immediately after leaving Dr. Vines' office on October 1, 2012, Plaintiff attempted to file a complaint with the 1st Precinct of the New York Police Department by telephone. Compl. 15. When nobody answered her call, she walked to their office and lodged her complaint in person. Id.; Nam Decl. Ex. B (Omniform System Complaint Report) ("Complaint Report").
Three days later, on October 4, Detective John Vergona called Plaintiff regarding her complaint. Compl. 18. During their conversation, Plaintiff described the altercation, revealing that she had told the following joke in the doctor's office just before being attacked: "Thank you, I'll see you next summer, and if I can afford injections then I'll get them to attract younger men." Id. at 21. Plaintiff alleges that this statement caused Detective Vergona to "develop a misogynistic attitude towards [her]." Id. Detective Vergona informed Plaintiff that he would visit Dr. Vine's office on the following Monday, October 8, to investigate. Id. Despite this assurance, Detective Vergona did not visit Dr. Vine's office. Id.
Later that same day, Plaintiff called Detective Vergona to provide additional information regarding her case. Compl. 21. Despite Plaintiffs multiple requests, Detective Vergona refused to meet Plaintiff in person to examine her injuries. Id. Detective Vergona said to Plaintiff, "I DON'T CARE IF YOU HAVE TWO BLACK EYES. STOP BABBLING." Id. at 21-22. At some point, Detective Vergona told Plaintiff that he would not interview Dr. Fagelman or Dr. Vine because they had not witnessed the altercation. Id. at 27. After these initial phone calls, Plaintiff sent Detective Vergona corroborating evidence, including the video recording of the attack, a medical report from Plaintiffs primary care physician documenting her injuries, and photographs of her injuries. Id. at 18-19. The photographs of Plaintiffs injuries were attached to her complaint file. See Nam Decl., Ex. C.
Three days later, on October 7, Plaintiff emailed Detective Vergona to inform him of vulgar and threatening comments that had been left on the video of the altercation, which Plaintiff had uploaded to YouTube. Compl. 23. Detective Vergona never discussed this email with Plaintiff. Id.
On October 11, Plaintiff called the 1st Precinct and spoke with Detective Del Pozo in order to request that charges be brought against Ms. Hooks. Compl. 29.
On October 13, Detective Vergona emailed Plaintiff to inform her that he would visit Dr. Fagelman's office the following Monday, October 15, and requesting that she call him that afternoon. Compl. 29. Detective Vergona did not visit Dr. Fagelman's office on October 15, and, furthermore, refused to take Plaintiff's call that afternoon. Id. at 29-30.
On October 16, Detective Vergona called Plaintiff to inform her that Ms. Hooks had filed a cross-complaint against her on October 2. Compl. 36. Plaintiff was surprised, as she had not been contacted by the detectives assigned to Ms. Hooks' complaint. Id. at 21. Unlike Plaintiff, who was never able to meet with Detective Vergona in person, Ms. Hooks "had a meeting promptly with the NYPD" following the filing of her cross complaint. Id. at 46.
Detective Vergona further informed Plaintiff that, if Plaintiff did not drop her complaint against Ms. Hooks, both Plaintiff and Ms. Hooks would be arrested. Compl. 37. Faced with this choice, Plaintiff told Detective Vergona that she would rather be arrested. Id. Detective Vergona demanded that Plaintiff turn herself in immediately. Id. Although Plaintiff initially agreed to do so, she subsequently realized that she had a conflicting dentist appointment and called Detective Vergona back to reschedule, offering to turn herself in that afternoon at 3 pm instead. Id. at 37-38. Detective Vergona rejected this offer, telling Plaintiff that she should turn herself on October 20, which was a Saturday. Id. at 38. Plaintiff objected that she was Jewish and Saturday was the Sabbath, but Detective Vergona refused to reconsider. Id.
Plaintiff's impending incarceration caused her to experience mental, emotional, and physical distress. Compl. 38. In particular, Plaintiff was concerned that she would be unable to cope with an existing urinary condition while in prison, which was caused by a collapsed bladder and fibroid tumors. Id. at 38. Fearing for her health, Plaintiff, acting through counsel, agreed to withdraw her complaint against Ms. Hooks in exchange for Ms. Hooks doing the same. Id. at 38-39.
D. Concerns Regarding Investigation
Plaintiff came to suspect that she was being treated unfairly by Detective Vergona and other officers in the 1st Precinct, and she reported these concerns to other authorities during and after the investigation of her complaint. For example, Plaintiff contacted IAB regarding her complaint against Ms. Hooks, such as by sending them medical records documenting her injuries from the altercation. Compl. 19. Plaintiff also contacted IAB regarding the harassing comments she received on the video of the attack posted to YouTube. Id. at 24. Although IAB initially told ...