United States District Court, S.D. New York
Adam E. Deutsch, Esq., Morelli Alters Ratner LLP, New York, NY. Counsel for Plaintiff.
Qiana Smith-Williams, Esq., Office of the Corporation Counsel. City of New York New York, NY. Counsel for Defendant.
MEMORANDUM AND ORDER
NAOMI REICE BUCHWALD, District Judge.
Plaintiff was arrested on February 27, 2012, and indicted for attempted robbery, assault, and related charges. Over a year later, all charges were dismissed. In this section 1983 action, plaintiff alleges that officers of the New York City Police Department (NYPD) arrested him without probable cause, arrested him based on his race, used excessive force in effecting his arrest, and prosecuted him maliciously. Plaintiff alleges as well that each of these wrongs resulted from a policy or custom of the NYPD.
The City of New York (the "City"), the NYPD, and former NYPD Commissioner Raymond Kelly ("Kelly") move to dismiss plaintiff's complaint on the grounds that plaintiff has failed to plead a municipal policy or custom, that plaintiff has failed to plead Kelly's personal participation in any such policy or custom, and that plaintiff has failed to plead certain elements of his claims for false arrest and malicious prosecution. We agree that plaintiff has failed to plead a municipal policy or custom, so that the municipal and official defendants may not be held liable on a federal constitutional theory. We also agree that plaintiff has failed to plead that any municipal employee initiated plaintiff's prosecution, so that no defendant may be held liable for malicious prosecution. We conclude, however, that plaintiff may proceed with his false arrest and excessive force claims against individual defendants, and also against the City on the surviving state-law causes of action on a respondeat superior theory.
A. Documents Considered
In deciding a motion to dismiss for failure to state a claim, we consider the complaint (Compl., ECF No. 2), materials incorporated into the complaint by reference, materials integral to the complaint, and facts that are capable of judicial notice. See DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010).
Defendants ask us to consider certain police and court records along with the Complaint. Detective David Cruz's report of interviewing a complainant, an arrest record, the criminal complaint and indictment, and a deposition of plaintiff. According to defendants, these records demonstrate that NYPD officers had probable cause to arrest plaintiff. These documents are unquestionably not "incorporated" into the Complaint because they are neither attached to the Complaint nor explicitly mentioned therein. We may take judicial notice of the procedural history of plaintiff's criminal case, but not of the truth of the arresting officers' version of events.
In advocating these extraneous documents, defendants argue most strenuously that these documents are "integral" to the Complaint by describing the circumstances of the arrest that is the focus of plaintiff's claims. Defendants look for support to certain cases in which courts have considered similar police records at the pleading stage. See Betts v. Shearman, No. 12-cv-3195 (JPO), 2013 WL 311124, at *3, 2013 U.S. Dist. LEXIS 11139, at *10 (S.D.N.Y. Jan. 24, 2013) (considering incident report and accusatory instrument that "provide[d] crucial details" about the plaintiff's prosecution), aff'd on qualified immunity grounds, 751 F.3d 78 (2d Cir. 2014); cf. Obilo v. City Univ. of City of N.Y., Civil Action No. CV-01-5118 (DGT), 2003 WL 1809471, at *4, 2003 U.S. Dist. LEXIS 2886, at *14-15 (E.D.N.Y. Apr. 7, 2003) (considering incident report and police complaint that the plaintiff had conceded were "implicitly" incorporated into his conspiracy allegations).
The better view, adopted by a majority of courts in our Circuit, is that these kinds of police records are not "integral" to a false arrest complaint. See Bejaoui v. City of New York, No. 13-CV-5667 (NGG)(RML), 2015 WL 1529633, at *4-5, 2015 U.S. Dist. LEXIS 44087, at *14-16 (E.D.N.Y. Mar. 31, 2015) (noting disagreement and declining to consider extrinsic police reports); Alvarez v. Cty. of Orange, No. 13-cv-7301 (KMK), ___ F.Supp. 3d ___, ___, 2015 WL 1332347, at *8, 2015 U.S. Dist. LEXIS 37983, at *20-23 (S.D.N.Y. Mar. 25, 2015) (collecting cases). A document is not "integral" simply because its contents are highly relevant to a plaintiff's allegations, but only when it is clear that the plaintiff relied on the document in preparing his complaint. See Global Network Commc'ns, Inc. v. City of New York, 458 F.3d 150, 156-57 (2d Cir. 2006); Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002). Most typically, "the incorporated document is a contract or other legal document containing obligations upon which the plaintiff's complaint stands or falls, but which for some reason... was not attached to the complaint." Global Networks Commc'ns, 458 F.3d at 157. "It must also be clear that there exist no material disputed issues of fact regarding the relevance of the document." Faulkner v. Beer, 463 F.3d 130, 134 (2d Cir. 2006).
Here, there is "no indication in the record that plaintiff relied on these documents in drafting the complaint." Allyn v. Rockland Cty., No. 12-cv-5022 (VB), 2013 WL 4038602, at *4, 2013 U.S. Dist. LEXIS 114947, at *12-13 (S.D.N.Y. July 30, 2013), appeal docketed, No. 15-1749 (2d Cir. May 29, 2015), ECF No. 1. To the contrary, plaintiff relies on his own perceptions and recollections. Furthermore, it is not beyond dispute that the police report is a truthful description of the police officers' basis to arrest plaintiff. To accept the truth of the documents offered by defendants at this stage would amount to a premature determination that the arresting officers are more credible than plaintiff. To make such a determination at this stage would not be appropriate, and therefore we will not consider the facts adduced in plaintiff's police records. We will, however, take judicial notice of the existence of the criminal complaint (executed by the alleged victim), the indictment, and the temporary order of protection.
B. The Facts Alleged
1. The February 27 Incident
Plaintiff alleges that, on February 27, 2012, he was eating lunch with friends in a Bronx park, when NYPD officers surrounded him, drew their guns, and shouted "Where's the gun?" Compl. ¶¶ 19-20. The police officers knocked a cell phone out of plaintiff's hand, tackled plaintiff to the ground, and searched plaintiff and plaintiff's backpack. Id . ¶ 21. One of the officers held plaintiff to the ground by pressing his knees against plaintiff's back and face. Id . At some point while under arrest, plaintiff overheard on a police radio that the police were looking for a "tall, black" person with a "blue hoody." Pl. Dep. 24:6-12, Ex. E to Smith-Williams Decl., ECF No. 9. Plaintiff acknowledges that his clothing fit this description. Id.
Plaintiff was then taken to two precinct houses, was held overnight, and eventually learned that he had been arrested on suspicion of a robbery. Compl. ¶¶ 25-26. According to a complaint sworn to by the alleged victim, plaintiff had struck the victim and had attempted to take the victim's wallet from his rear pocket. Crim. Compl., Ex. D to Smith-Williams Decl. Plaintiff was arraigned and charged with a top count of attempted robbery. Compl. ¶ 27; Cert. of Indictment, Ex. F to Smith-Williams Decl. Plaintiff pled not guilty, and all charges were dismissed on December 6, 2013, over 21 months after plaintiff's arrest. Compl. ¶¶ 27-28; Cert. of Disposition, Ex. C. to Deutsch Decl., ECF No. 11.
2. Municipal Policy or Custom
Plaintiff's most specific allegation of a municipal policy or ...