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Diaz v. City of New York

United States District Court, S.D. New York

February 2, 2015

DENISE DIAZ, Plaintiff,
CITY OF NEW YORK, NEW YORK COUNTY DISTRICT ATTORNEY'S OFFICE, NEW YORK CITY POLICE DEPARTMENT, RAYMOND W. KELLY, individually and in his capacity as the former commissioner of the New York City Police Department, JOSE FLORES, individually and in his capacity as Investigator for the New York County District Attorney's Office, JOHN DOE 1, individually and in his official capacity as Captain in the NYPD, and JOHN DOE 2, individually and in his capacity in the NYPD or the New York District Attorney's Office, Defendants.


PAUL A. CROTTY, District Judge.

Plaintiff Denise Diaz ("Diaz") brings this 42 U.S.C. § 1983 action against defendants New York County District Attorney's Office ("DANY"); Jose Flores ("Flores"), an investigator with DANY; the City of New York (the "City"); the New York City Police Department (the "NYPD"); former NYPD Commissioner Raymond W. Kelly ("Kelly"); John Doe #1, a Captain in the NYPD; and John Doe #2, an employee of either the NYPD or DANY, for various federal and state constitutional violations arising out of an incident that occurred on November 24, 2010, Defendants DANY and Flores (collectively, "DANY Defendants") and Defendants Kelly, John Does #1 and 2, the NYPD, and the City (collectively, "City Defendants") move to dismiss Diaz's complaint, pursuant to Fed.R.Civ.P. 12(b)(6). For the following reasons, these motions are granted, except that the motion addressed to Diaz's false arrest claim against Flores and John Doe #1 is denied.


Diaz is a sergeant in the NYPD. Am. Compl. ¶ 3. At 7:50 a.m. on November 24, 2010, in the vicinity of Diaz's home, Diaz's common law husband, George Castro, was arrested for grand larceny. Id. ¶ 27. Upon hearing the commotion outside her home, Diaz emerged and asked, "[W]hat's going on?" Id. ¶ 28. An investigator with DANY responded, "Mind your business, go back inside! This has nothing to do with you!" Id. ¶ 29. Diaz informed the investigator that she was an NYPD officer, and they proceeded to her residence where she showed him her NYPD identification card. Id. ¶ 30. The Investigator then contacted an assistant district attorney with DANY and informed him that he would need a search warrant. Id. Meanwhile, additional individuals from DANY and the NYPD arrived at Diaz's home. Id. ¶ 31. Diaz called her union attorney, Andrew Quinn, who "telephonically directed the officials not to conduct a search without a fully executed warrant." Id. ¶ 32. At 8:30 a.m., Flores stated loudly that Plaintiff was "associating with a known felon" and informed John Doe #1 (assumed to be the precinct duty captain) that Diaz was "under, " which is to say under arrest. Id. ¶¶ 33-34. After conferring with Flores, John Doe #1 then directed that Diaz be arrested, escorted to the 43rd Precinct, and detained there for interrogation. Id. ¶ 35.

At 8:50 a.m., Diaz was placed in a police room guarded by two sergeants from the Internal Affairs Bureau and was not allowed to leave. Id. ¶¶ 36-37. She could not go to the bathroom without an officer and was not allowed to make a phone call. Id. ¶ 38. She "received the same treatment as the prisoners that are arrested and held against their will at a police precinct." Id. ¶ 39. She was released at 7:05 p.m. without being charged with a crime or violation. Id. ¶ 40. Castro was tried and convicted of grand larceny in the first degree, criminal possession of stolen property, and money laundering. He was sentenced to a term of 7-21 years and ordered to make restitution of $1, 997, 311. See Dkt. 45, Ex. 3. Plaintiff Diaz has not been charged with a crime. Am. Compl. ¶ 59.

While she was being held at the precinct, Diaz learned that DANY had obtained a search warrant for her home and that at 3 p.m. John Doe #2 "conducted the illegal search and seizure." Id. ¶ 41. Diaz said that she wanted to be present during the search of her home, but she was told she could not leave the precinct. Id. ¶ 42. She asked to see the search warrant before the search began, but that request was denied. Id. ¶ 43. When Diaz arrived home that evening, she discovered that officials had removed her home computer, two laptops, $5, 000 cash, personal financial, and insurance documents, credit cards, three cameras, undeveloped film rolls, and money that adorned her religious artifacts. Id. ¶ 44. These items have never been returned. Id. ¶ 45. The officials "did not leave" and did not supply Diaz with a copy of the search warrant. Id. ¶ 46. Diaz later obtained a copy of the search warrant from George Castro's attorney. She asserts that the warrant "clearly indicates that the warrant was not drafted or executed on November 24, 2011"[1] because the warrant "contained specific information that could not have been known the day Plaintiff Diaz was arrested and unlawfully imprisoned" and the warrant "does not indicate which judge authorized and signed the warrant." Id. ¶¶ 47-50.

Shortly after this incident in which Castro was arrested, Diaz began to notice long pauses prior to phone calls, beeping sounds during home telephone conversations, and background noise during home telephone conversations, all of which led her to "conclude" that her home telephone was subjected to unlawful surveillance by the City of New York, NYPD, and/or DANY. Id. ¶¶ 51-55. Prior to the incident, she was an exemplary officer and supervisor in the NYPD with no disciplinary complaint in her seventeen-year career. Id. ¶¶ 56-57. After November 24, 2010, and Castro's arrest, Diaz was stripped of her weapon and shield by the NYPD and placed on modified assignment, not returning to full duty for over three years. Id. ¶ 59. She was never charged by DANY or the NYPD even though she has been subjected to numerous interviews by DANY and the Internal Affairs Bureau of the NYPD. Id. ¶¶ 59-60. She was assigned to the Video Interactive Patrol Enhanced Response Unit ("VIPER"), which is considered "undesirable" and "where one's career virtually ends" in the NYPD. Id. ¶ 61. She twice inquired about being placed back on full duty, but received no response. Id. ¶ 62. Because of this assignment, she has lost thousands of dollars in overtime, night differential, and promotional pay opportunities. Id. ¶ 64.

Diaz contends, based on an article written by journalist Graham Rayman, that Kelly keeps a list of police officers who cannot be transferred without his approval. Id. ¶ 65-66. Diaz's name is allegedly on this list, and Kelly "intentionally and knowingly refused to transfer Diaz out of VIPER even though she was not charged criminally or administratively." Id. ¶ 70. Diaz was thereby harmed physically and emotionally, in character and reputation, and professionally and monetarily. Id. ¶ 71. When Kelly left his position as the Commissioner of the NYPD, Diaz was restored to full duty status at the 49th Precinct as a Patrol Supervisor. Id. ¶ 75.

I. Applicable Law

Federal Rule of Civil Procedure 12(b)(6) permits a court to dismiss a complaint if a plaintiff fails to "provide the grounds upon which his claim rests through factual allegations sufficient to raise a right to relief above the speculative level.'" ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiffs must allege "enough facts to state a claim to relief that is plausible on its face.'" Starr v. Sony BMG Music Entm't, 592 F.3d 314, 321 (2d Cir. 2010) (quoting Twombly, 550 U.S. at 570). "A claim has facial plausibility 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). The Court must accept as true all well-pleaded factual allegations and draw all inferences in a plaintiff's favor. See Allaire Corp. v. Okumus, 433 F.3d 248, 249-50 (2d Cir. 2006). Allegations that are merely conclusory, however, are "not entitled to be assumed true." Iqbal, 556 U.S. at 681.

To establish liability under section 1983, a plaintiff must show that (1) the defendant acted under color of state law; and (2) the defendant's actions deprived plaintiff of rights, privileges, or immunities guaranteed by the Constitution. Washington v. Cnty. of Rockland, 373 F.3d 310, 315 (2d Cir. 2004).

II. Analysis

A. Claims against the NYPD and DANY

As an initial matter, the Court dismisses all claims against the NYPD and DANY. Neither of these defendants are suable entities. See Allyn v. Rockland Cnty., 2013 WL 4038602, at *2 (S.D.N.Y. July 30, 2013) (IA] district attorney's office is not a suable entity."); Rogers v. N.Y. Police Dep't, 2012 WL 4863161, at *2 (E.D.N.Y. ...

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