Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Levantino v. New York State Police

United States District Court, E.D. New York

November 3, 2014

NEW YORK STATE POLICE, KEITH M. SKALA, in his official and individual capacity, N.Y. STATE POLICE INVESTIGATOR JOHN DOE # 1, in their official and individual capacity, N.Y. STATE POLICE INVESTIGATOR JOHN DOE # 2, in their official and individual capacity, Defendants

Page 192

[Copyrighted Material Omitted]

Page 193

For the Plaintiff: Kyle T. Pulis, Esq., Of Counsel, Scott Michael Miskin, PC, Islandia, NY.

For the Defendants: Dorothy O. Nese, Toni E. Loque, Valerie Singleton, Assistant Attorneys General, Eric T. Schneiderman, Attorney General of the State of New York, Mineola, NY.

Page 194


ARTHUR D. SPATT, United States District Judge.

On February 12, 2014, the Plaintiff Michael J. Levantino (the " Plaintiff" ) commenced this action pursuant to 42 U.S.C. § 1983 against the Defendants New York

Page 195

State Police and three individual state troopers, Keith M. Skala, John Doe # 1, and John Doe #2 (collectively the " Defendants" ). In essence, the complaint alleged that the Defendants lacked probable cause to arrest and detain the Plaintiff for possession of marijuana; falsely imprisoned the Plaintiff; and violated his federal constitutional rights to due process and equal protection of the law.

On July 2, 2014, the New York State Police and Skala moved pursuant to Federal Rule of Civil Procedure (" Fed. R. Civ. P." ) 12(b)(6) to dismiss the complaint as against them for failure to state a claim upon which relief can be granted.

On September 21, 2014, the Plaintiff cross-moved pursuant to Fed.R.Civ.P. 15(a) for leave to amend the complaint.

Where, as here, the Plaintiff seek to amend his complaint while a motion to dismiss is pending, a court " has a variety of ways in which it may deal with the pending motion to dismiss, from denying the motion as moot to considering the merits of the motion in light of the amended complaint." Roller Bearing Co. of Am., Inc. v. Am. Software, Inc., 570 F.Supp.2d 376, 384 (D. Conn. 2008)(internal quotation marks and alteration omitted). " An amendment to a pleading is futile if the proposed claim could not withstand a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6)." Annunziato v. Collecto, Inc., 293 F.R.D. 329, 333 (E.D.N.Y. 2013)(citing Lucente v. Int'l Bus. Machs. Corp., 310 F.3d 243, 258 (2d Cir. 2002)). " Therefore a proposed amendment is not futile if it states a claim upon which relief can be granted." Waltz v. Board of Educ. of Hoosick Falls Cent. School Dist., No. 1:12-CV-0507 (GTS)(CFH), 2013 WL 4811958, *4 (N.D.N.Y. Sept. 10, 2013)(citations omitted).

As each claim in the proposed amended complaint must be examined under a 12(b)(6) analysis in any event, the Court exercises its discretion to deny the motion to dismiss as moot. Further, the Court grants in part and denies in part the Plaintiff's cross-motion to amend the complaint.


Unless stated otherwise, the following facts are drawn from the complaint.

On May 30, 2013, the Plaintiff left work and arrived at his home at approximately 5:45 p.m. Upon arriving at home, the Plaintiff exited his vehicle and walked to the mailbox station at his apartment complex, when he noticed two men approaching him. Initially, the Plaintiff believed that the two men were salesmen and ignored them. The two men then confronted the Plaintiff, questioning him about his identity without identifying themselves. The men asked if the Plaintiff was Michael Levantino and, in response, the Plaintiff asked who they were.

One of the men then raised his badge and identified himself as a police officer. The Plaintiff immediately apologized and explained that he had thought they were salesman. The officers then asked the Plaintiff about his knowledge of a marijuana farm. The Plaintiff denied having any such knowledge. The officers responded: " That's not what we heard" and told the Plaintiff that they were going to need him to go down to the police station to answer some questions. (Compl., at ¶ 19.)

The Plaintiff asked the officers if he could place his belongings inside his home before they brought him to the police station, to which the officers responded " yes." However, when the Plaintiff unlocked the door to his apartment, one of the officers blocked the Plaintiff from entering his home, placed his hand on his gun, and told the Plaintiff that he was going in first. The Plaintiff contends that he did not consent

Page 196

to the officers entering his home, nor did he consent to the officers searching his home. The Plaintiff was told to wait outside while one officer watched him, and the other swept the Plaintiff's apartment.

The Plaintiff then asked the officers if they could close the door behind them because he did not want his cats getting out, and one of them responded, " you have much bigger problems." (Compl., at ¶ 28.) After the officer conducted the warrantless search of the Plaintiff's home, he advised the Plaintiff that he was free to enter. The search of the Plaintiff's home did not uncover any illegal items, substances, or evidence related to a marijuana farm.

Once the Plaintiff entered his apartment, the officer told him to leave anything that he did not need. The Plaintiff left his belongings on the couch because the officers prohibited the Plaintiff from entering any further into his own apartment. The Plaintiff exited the apartment with the officers and they directed him to one of the police cars parked in front. When the Plaintiff reached the car, one of the officers told the Plaintiff to put his hands behind his back. The officers then handcuffed the Plaintiff and placed him in the police car.

The Plaintiff contends that his neighbors were outside watching as he was handcuffed and placed in the police car, thereby causing him to suffer emotional distress and embarrassment. The Plaintiff asked one of the officers why he had to report his vehicle mileage to the dispatcher before they left, and the officer responded that it was so " they could track his mileage if he decided to drive plaintiff to a remote location to assault plaintiff before bringing him into the station." (Compl., at ¶ 46.) While in the vehicle, the Plaintiff complained that his handcuffs were too tight, cutting off his circulation, but the officer refused to loosen the cuffs, stating that it would not be much longer before they arrived at their destination.

The Plaintiff asked what he had done to be handcuffed and detained, and the officers refused to answer, only responding that the Plaintiff should know. The Plaintiff then inquired as to whether one of the officers had a brother because he looked like one of the Plaintiff's co-workers, and the officer responded in an aggressive tone: " you think you know me?" (Compl., at ¶ 48.) The Plaintiff then became nervous and remained quiet for the remainder of the drive.

Upon the Plaintiff's arrival at the State Police office, the Plaintiff was searched, and his possessions were removed from him, including his keys, wallet, and cell phone. The Plaintiff was then handcuffed to a bench in the office where he was unable to move or exit the police station. The Plaintiff was not free to go, as he was handcuffed to the bench. To this point, the Plaintiff had not been read his Miranda rights. The Plaintiff asked why he was being held, and the officers responded that the Plaintiff was in " really big trouble." (Compl., at ¶ 54.) The officers then explained to the Plaintiff that he was observed at a farm that was growing marijuana. The Plaintiff immediately denied any involvement and demanded that the officers provide some proof, as he had no idea what the officers were talking about. While detained against his will, the officers searched through the Plaintiff's wallet.

Without reading the Plaintiff his Miranda rights, the officers questioned the Plaintiff about his involvement with a marijuana farm, to which the Plaintiff responded that he had no such knowledge and that they had arrested the wrong person. The Plaintiff then explained that whomever they believed had witnessed the Plaintiff at the farm was mistaken. The officers explained to the Plaintiff that they had pictures

Page 197

of him at the farm, but, at that time, refused to show them to the Plaintiff.

After approximately one hour of being chained to the bench, one of the officers escorted the Plaintiff to an interrogation room where another officer sat across from him. The officer presented a photograph to the Plaintiff and stated that it was a photograph of the Plaintiff walking out of the woods in which the marijuana farm was discovered. The Plaintiff denied that he was the individual in the photograph, and the officer stated: " I guess you're going to be spending the night." (Compl., at ¶ 56.) The Plaintiff was then escorted back to the office and was chained to the bench once again. At some point, the Plaintiff asked the officers what day of the week the pictures were taken because he could prove that it was not him, as he worked more than fifty hours a week. The officers responded that they knew it was the Plaintiff; that they had him under surveillance for six months and personally witnessed him going to and from the marijuana farm. The officers allegedly told the Plaintiff that they had incriminating pictures of him, and that he would be going away for a long time.

The officers later read the Plaintiff his Miranda rights and told him that he was under arrest, despite the fact that he had already been handcuffed for hours and was not able to leave, and subject to numerous interrogations. After the Plaintiff was read his Miranda rights, he was asked if he had any visible or identifiable tattoos or scars. The Plaintiff advised the officers that he did not have any tattoos and only one scar from a hernia operation.

While under arrest, the Plaintiff asked for a glass of water, as he had been detained for hours with nothing to drink or eat. The officers refused to give the Plaintiff a drink and told him that there was a soda machine in the lobby, and if the Plaintiff had money in his wallet, he could buy a drink. The officers then removed money from the Plaintiff's wallet and bought the Plaintiff a drink from the machine, complaining that he then had to re-inventory the Plaintiff's belongings when he returned. The Plaintiff spent a few more hours handcuffed to the bench, while the officers found a place to send the Plaintiff for the night. When it was time for the Plaintiff to be relocated, the officers uncuffed him from the bench and cuffed his hands behind his back.

The Plaintiff was eventually transported to the 3rd Precinct in Brentwood, New York to spend the night. When he arrived, he was brought into a holding area and was told to remove all his clothes except for his underwear. When the Plaintiff removed his clothes, it again became clear that he did not have any tattoos. After the Plaintiff was searched, he was told to get dressed and to follow one of the officers to an available cell, which was approximately 4 by 7 feet and consisted of two 12 by 2 feet boards attached to the wall as a bed, a plastic bag for a blanket, and a toilet/sink. The walls were covered with urine, feces, spit, and other bodily excretions. After a while, one of the officers approached the cell and told the Plaintiff to follow him to an interrogation room.

While in the interrogation room, the officers questioned the Plaintiff about recent murders that happened in the Brentwood area, to which the Plaintiff replied that he had no knowledge other than hearing about the incidents. The Plaintiff was not questioned about the marijuana farm during this interrogation. After the interrogation, the Plaintiff was then returned to his cell. When the Plaintiff asked ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.