United States District Court, S.D. New York
OPINION AND ORDER
JESSE M. FURMAN, District Judge.
Plaintiff Donnell Baines, who is proceeding pro se, was convicted in New York State court of first-degree rape, sex trafficking, and promoting prostitution, and sentenced to more than forty years in prison. In this case, he sues various officers from the New York City Police Department (the "Officer Defendants") and Kimberly Mitchell, a woman he was convicted of assaulting (collectively, "Defendants"), pursuant to Title 42, United States Code, Section 1983. Against the Officer Defendants, Plaintiff appears to assert claims for unlawful entry, excessive force, and unreasonable search in violation of the Fourth and Fourteenth Amendments, as well as selective enforcement of the laws in violation of the Equal Protection Clause of the Fourteenth Amendment. In addition, against all Defendants, he asserts a claim for deprivation of property in violation of the Due Process Clause of the Fourteenth Amendment and for conspiracy to violate his civil rights. The Officer Defendants now move to dismiss all claims except for the excessive-force claim. ( See Defs.' Mem. Law Supp. Mot. To Dismiss Second Am. Compl. Pursuant Fed.R.Civ.P. 12(b)(6) (Docket No. 98) ("Defs.' Mem.") 2 & n.2). For the reasons that follow, the motion is granted in part and denied in part. Additionally, although Plaintiff has not yet served Mitchell, the Court sua sponte dismisses all claims against her.
Before describing the relevant background, the Court must address two preliminary matters. First, the Officer Defendants suggest that the Court should disregard some allegations in the Second Amended Complaint ("SAC"), on the ground that they "directly contradict" the facts pleaded in Plaintiff's earlier complaints. (Defs.' Mem. 13-14, 16-17). It is true that a Court may disregard the factual allegations in an amended complaint where a plaintiff "blatantly changes" his story to "directly contradict" his earlier pleadings. E.g., Colliton v. Cravath, Swaine & Moore LLP, No. 08-CV-400 (NRB), 2008 WL 4386764, at *6 (S.D.N.Y. Sept. 24, 2008) (internal quotation marks omitted), aff'd sub nom. Colliton v. Cravath, Swain & Moore LLP, 356 F.Appx. 535 (2d Cir. 2009); see, e.g., Wallace v. NYC Dep't of Corr., No. 95-CV-4404, 1996 WL 586797, at *1-2 (E.D.N.Y. Oct. 9, 1996) (disregarding the assertion in an amended complaint that an action was taken pursuant to an official policy because the original complaint contended that the action was an aberration from that policy). However, "the more usual and benevolent option is to accept the superseded pleadings but allow the factfinder to consider the earlier pleadings as admissions in due course." Barris v. Hamilton, No. 96-CV-9541 (DAB), 1999 WL 311813, at *2 (S.D.N.Y. May 17, 1999); see also Kermanshah v. Kermanshah, 580 F.Supp.2d 247, 266 (S.D.N.Y. 2008) (noting that courts typically disregard subsequent pleadings only where they are "blatant" or "directly contradictory" as opposed to merely "inconsistent" (internal quotation marks omitted)). Here, the Court will follow the latter course. For one thing, the discrepancies between the SAC and Plaintiff's earlier pleadings are not the sort of "blatant... contradict[ions]" that have caused other courts to disregard allegations in amended pleadings. Colliton, 2008 WL 4386764, at *6. For another, Plaintiff is proceeding pro se, so his pleadings "must be held to less stringent standards than formal pleadings drafted by lawyers.'" Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). Thus, the better option is to treat the SAC as the sole operative pleading for purposes of this motion, without prejudice to the Officer Defendants arguing "in due course" that the earlier pleadings should be treated as "admissions." Barris, 1999 WL 311813, at *2.
Second, in moving to dismiss, the Officer Defendants rely on police reports describing Mitchell's allegations that Plaintiff assaulted her. ( E.g. Defs.' Mem. 2, 3, 14, 22-23 (citing Decl. Matthew Bridge Supp. Defs.' Partial Mot. To Dismiss Second Am. Compl. (Docket No. 97), Exs. B & C)). On a motion to dismiss, however, a court may consider only materials of which it may take judicial notice or that were attached to the complaint or incorporated by reference. See, e.g., City of Pontiac Policemen's & Firemen's Ret. Sys. v. UBS AG, 752 F.3d 173, 179 (2d Cir. 2014); Anderson v. Rochester-Genesee Reg'l Transp. Auth., 337 F.3d 201, 205 n.4 (2d Cir. 2003). In this case, the police reports at issue were neither attached as exhibits to, nor referenced in, the SAC, and Plaintiff's passing mention of Mitchell's assault allegations ( see SAC ¶ 56), which were detailed in one of the police reports, is insufficient to incorporate it into the SAC such that it may be considered on a motion to dismiss. See Sahu v. Union Carbide Corp., 548 F.3d 59, 67 (2d Cir. 2008) (holding that limited references are insufficient to incorporate documents or exhibits into the complaint). Thus, the Court may not, and does not, consider the reports in deciding the Officer Defendants' motion. Avalos v. IAC/Interactivecorp., No. 13-CV-8351 (JMF), 2014 WL 5493242, at *3 n.1 (S.D.N.Y. Oct. 30, 2014).
Accordingly, the following facts, presumed to be true for purposes of this motion, are taken from the SAC and public documents of which the Court may take judicial notice. See Karmely v. Wertheimer, 737 F.3d 197, 199 (2d Cir. 2013); see also McNamee v. Clemens, 762 F.Supp.2d 584, 592 n.1 (E.D.N.Y. 2011) (noting that a court may take judicial notice of an indictment, but not for the truth of the allegations contained therein); Lowery v. Home Depot, No. 13-CV-3957 (JPO), 2014 WL 5151402, at *1 n.2 (S.D.N.Y. Oct. 14, 2014) (noting that a court may take judicial notice of a verdict in a criminal trial); Williams v. City of N.Y., No. 07-CV-3764 (RJS), 2008 WL 3247813, at *2 & n.3 (S.D.N.Y. Aug. 7, 2008) (taking judicial notice of the plaintiff's incarceration and the term of his sentence based on the inmate lookup website of the New York State Department of Corrections and Community Supervision). Plaintiff's claims all arise from interactions involving him and Mitchell, who lived with (and, although not expressly alleged in the SAC, was presumably romantically involved with) Plaintiff for about six months beginning in April 2009. (SAC ¶¶ 13-14, 17). Plaintiff alleges that, on October 1, 2009, Mitchell moved out of Plaintiff's apartment. (Id. ¶¶ 15, 17). A few weeks later, on October 18, 2009, Mitchell called Plaintiff to tell him that she was outside his apartment, accompanied by multiple police officers, and asked permission to enter and retrieve her belongings. (Id. ¶¶ 18-20). Plaintiff consented, at which point Mitchell and the officers removed all her remaining possessions from his apartment. (Id. ¶¶ 20-24).
On October 21, 2009, Mitchell called Plaintiff and asked permission to come over "for a social visit.'" (Id. ¶ 27). Plaintiff agreed, but when Mitchell was in his apartment, he told her that she could not stay in the apartment when he was not there and that if she wanted to come over "for a social visit, '" she "would be required to call well in advance of coming over to seek Plaintiff's permission." (Id. ¶ 28). From that date to December 7, 2009, Mitchell was "an infrequent visitor'" to Plaintiff's apartment, "knowing full well during this entire period that she had no authority over Plaintiff's residence." (Id. ¶ 30). On December 7, 2009, for reasons that are not clear, Mitchell was at Plaintiff's apartment and allegedly got into a physical fight with Plaintiff's then-girlfriend. (Id. ¶¶ 30-31). Plaintiff kicked Mitchell out of his apartment and told her not to return; as she was leaving, Mitchell told Plaintiff that she was going to have him and his then-girlfriend arrested. (Id. ¶¶ 32-33). The next afternoon, Mitchell and two men associated with Mitchell threatened Plaintiff multiple times, both on the telephone and in person. (Id. ¶¶ 34-39). Among other things, Mitchell "threatened Plaintiff's safety, " telling him that she was going to arrange to have him beaten up and robbed; she also told Plaintiff that she was going to lie to the police, by informing them "that it was Plaintiff who assaulted her, thereby having Plaintiff arrested." (Id. ¶ 34).
On the evening of December 8, 2009, Plaintiff received a call from Mitchell, who was outside his apartment and requested his permission to enter the apartment to retrieve her possessions (despite the fact that she had allegedly removed all of her possessions in October). (Id. ¶¶ 44-46). Mitchell was apparently accompanied by at least some of the same police officers - the Officer Defendants here - who had escorted her to remove her belongings on October 18, 2009. (Id. ¶ 47). Plaintiff refused, telling Mitchell and the accompanying officers that she no longer had any possessions in his apartment. (Id. ¶ 46). One of the officers - Defendant Brian White - then took the phone and told Plaintiff that Mitchell had a copy of the keys to the apartment and had told the police that she lived in the apartment and that she and Plaintiff were in a romantic relationship. (Id. ¶¶ 49, 51). Plaintiff denied that he and Mitchell were in a relationship and asked the officer to arrest Mitchell for possessing his keys, asserting that they were stolen property. (Id. ¶ 51). Over the phone, Plaintiff then heard Officer White ask Mitchell whether she still lived in the apartment, to which Mitchell responded "No, not any more [sic], but my belongings are up there and he assaulted me." (Id. ¶ 56).
Shortly thereafter, Plaintiff heard his doorknob rattle and, upon realizing that Defendants were at the door, again refused to consent to their entry into the apartment and threatened to call the police if they did not leave. (Id. ¶¶ 64, 66-67). The Officer Defendants then used the keys to open the door and forced their way into Plaintiff's apartment, whereupon one of the Officers immediately placed Plaintiff in handcuffs. (Id. ¶¶ 68-71). Plaintiff alleges that the Officers pinned him down and handcuffed him in "a jerking fashion, which caused Plaintiff to suffer pain." (Id. ¶¶ 72-73). They then pulled him to his feet by the handcuffs and twisted his arms behind his back, causing a "loud popping'" sound in his shoulder. ( Id. ¶ ¶ 75-76). Shortly thereafter, an Officer told him to have a seat, and pulled downward on the cuffs "with enough force to slam the Plaintiff down on the floor, " causing injuries to his back and thigh. (Id. ¶ 81).
After Plaintiff was detained, another officer entered the room and asked whether the officers had searched Plaintiff's apartment for weapons. (Id. ¶ 84). They reported that they had not. (Id. ). When Plaintiff protested that the officers did not have permission to search his apartment, one of the officers then went out to the hallway where Mitchell was waiting and asked for her permission to search the apartment, which she granted. (Id. ¶¶ 86-88). According to Plaintiff, the Officer Defendants then "ransack[ed]'" the apartment, searching it from "topto-bottom.'" (Id. ¶¶ 91-92).
Following the search, Plaintiff was taken from his apartment to the local police station, where he was placed in a holding cell. (Id. ¶¶ 101, 103, 106). One of the Defendants, Officer Robert O'Donoghue, informed Plaintiff that other officers would be escorting Mitchell back to his apartment so that she could retrieve her belongings. (Id. ¶ 109). When Plaintiff asked Officer O'Donoghue to intercede to stop Mitchell from taking his property, the officer told Plaintiff that there was nothing he could do and that Plaintiff's only remedy was to bring a civil suit against Mitchell. (Id. ¶¶ 111-12). Plaintiff was released from custody later that evening; upon returning to his apartment, he found that several valuables had been taken from his apartment. (Id. ¶¶ 114-15).
On November 10, 2010, nearly a year after the events at issue in this case, Plaintiff was indicted on charges, including first-degree rape, sex trafficking, and assault, stemming from his interactions with Mitchell in December 2009. ( See Bridge Decl., Ex. H). Shortly thereafter, on December 17, 2010, Plaintiff filed the instant action. (Compl. (Docket No. 2)). The case was stayed during the pendency of Plaintiff's criminal proceedings, which culminated, on October 24, 2012, with Plaintiff's conviction by a jury of, among other things, first-degree rape, sex trafficking, promoting prostitution, and assault arising from the December 2009 events. (Bridge Decl. ¶ 8; id., Ex. F; see Docket No. 24). According to the New York State Department of Corrections and Community Supervision, Plaintiff's aggregate minimum prison sentence for those convictions is forty-two years, ten months, and four days - meaning that his earliest possible release date is May 13, 2053. See Inmate Population Information Search, New York State Department of Corrections and Community Supervision Inmate Information, http://nysdoccslookup.doccs.ny.gov/ (last visited June 8, 2015). He is currently incarcerated at Five Points Correctional Facility. (Id. ).
In evaluating a motion to dismiss pursuant to Rule 12(b)(6), the Court must accept all facts set forth in the complaint as true and draw all reasonable inferences in the plaintiff's favor. See, e.g., Burch v. Pioneer Credit Recovery, Inc., 551 F.3d 122, 124 (2d Cir. 2008). A claim will survive a Rule 12(b)(6) motion, however, only if the plaintiff alleges facts sufficient "to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible "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) (citing Twombly, 550 U.S. at 556). A plaintiff must show "more than a sheer possibility that a defendant has acted unlawfully, " id., and cannot rely on mere "labels or conclusions" to support a claim, Twombly, 550 U.S. at 555. If the plaintiff's pleadings "have not nudged [his or her] claims across the line from conceivable to plausible, [the] complaint must be dismissed." Id. at 570. Here, because Plaintiff is proceeding pro se, his Complaint "must be held to less stringent standards than formal pleadings drafted by lawyers." Erickson, 551 U.S. at 94 (internal quotation marks omitted). Nonetheless, a pro se litigant must still state a ...