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Bowers v. Kelly

United States District Court, S.D. New York

May 4, 2015



LORNA G. SCHOFIELD, District Judge.

Plaintiff Daquan Bowers, pro se, commenced this action on September 5, 2013, alleging constitutional violations, pursuant to 42 U.S.C. ยง 1983, in connection with his arrest on December 20, 2012. The Defendants are Police Commissioner Raymond Kelly, Assistant District Attorney Neil Fenton, and three police officers - Andrew Wilson, Henry Daverin and "Sergeant O'Brien." Plaintiff alleges, inter alia, (1) the unlawful stop and search of a car in which Plaintiff was a passenger; (2) the unlawful search of Plaintiff's person; (3) false arrest; (4) malicious prosecution; (5) violations of Brady v. Maryland, 373 U.S. 83 (1963); (6) the denial of a right to a fair trial by fabrication of evidence; (7) conspiracy and (8) excessive force.

Defendant Kelly moved to dismiss the First Amended Complaint ("Amended Complaint"), pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the following reasons, his motion is granted.


The following facts are taken from Plaintiff's allegations in the Amended Complaint, the docket in this case, and certain documents submitted by Defendant of which this Court may take judicial notice.

On December 20, 2012, Plaintiff and three other individuals were arrested under suspicion of robbery after being stopped in Queens. According to Plaintiff, the driver of the vehicle had committed no traffic infractions, but the police officer Defendants stopped the car - with guns drawn - despite the absence of probable cause. According to the police report summarizing the arrest, when the officers searched Plaintiff's person, they discovered a gun hidden in his groin area. The charges against Plaintiff included robbery and possession of a loaded firearm.

Plaintiff filed this action on September 5, 2013. Summonses were issued on October 3, 2013. On November 7, 2013, Defendant Kelly was served with the original Complaint and has appeared through counsel in this action.

On October 23, 2013, Plaintiff moved to file an amended complaint. On November 6, 2013, he filed the Amended Complaint, which the Court accepted on November 12, 2013, as the operative complaint, granting his motion.

On November 29, 2013, three of the four remaining Defendants - Fenton, Wilson and O'Brien - were served with the original Complaint. Defendants Fenton, Wilson, Daverin and O'Brien were never served with the Amended Complaint, and no counsel has yet appeared on their behalf in this action. Accordingly, they are not presently parties to this action. See Lucente v. Int'l Bus. Machines Corp., 310 F.3d 243, 260 (2d Cir. 2002) ("[A]n amended complaint ordinarily renders the original complaint of no legal effect. It is as though the original complaint was never served."). On December 4, 2013, Plaintiff again filed the Amended Complaint.

On January 14, 2014, at a status conference, the Court stayed discovery, pending the outcome of the related prosecution of Plaintiff in state court. On April 8, 2014, Plaintiff pleaded guilty to eight counts, including three counts of first-degree robbery and one count of criminal possession of a weapon in the second degree, according to the Certificate of Disposition in Plaintiff's criminal case. Plaintiff was principally sentenced to a ten-year term of imprisonment.

On September 3, 2014, Defendant Kelly filed the instant motion to dismiss. Plaintiff did not oppose the motion.


On a motion to dismiss, this Court accepts as true all well-pleaded factual allegations and draws all reasonable inferences in favor of the non-moving party. See Goldstein v. Pataki, 516 F.3d 50, 56 (2d Cir. 2008). To withstand dismissal, a pleading "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)). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. While "detailed factual allegations'" are not necessary, the pleading must be supported by more than mere "labels and conclusions' or a formulaic recitation of the elements of a cause of action.'" Id. (quoting Twombly, 550 U.S. at 555). "Nor does a complaint suffice if it tenders naked assertion[s]' devoid of further factual enhancement.'" Id. (alteration in original) (quoting Twombly, 550 U.S. at 557). Rule 8 of the Federal Rules of Civil Procedure "requires factual allegations that are sufficient to give the defendant fair notice of what the... claim is and the grounds upon which it rests.'" Anderson News, L.L.C. v. Am. Media, Inc., 680 F.3d 162, 182 (2d Cir. 2012) (alteration in original) (quoting Twombly, 550 U.S. at 555), cert. denied, 133 S.Ct. 846 (2013). Moreover, "where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - but it has not shown - that the pleader is entitled to relief." Iqbal, 556 U.S. at 679 (internal quotation marks omitted); see also Fed.R.Civ.P. 8(a)(2).

"[O]n a motion to dismiss, a court may consider... matters of which judicial notice may be taken." Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002) (internal quotation marks omitted). "[U]nder Fed.R.Evid. 201, [courts may take judicial notice of] public records such as arrest reports, indictments, and criminal disposition data." Smith v. City of New York, No. 12 Civ. 4891, 2013 WL 5942224, at *1 (S.D.N.Y. Nov. 6, 2013) (citing Kramer v. Time Warner Inc., 937 F.2d 767, 773-75 (2d Cir. 1991)). "If the court takes judicial notice, it does so in order to determine what statements [the records] ...

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