United States District Court, E.D. New York
MEMORANDUM DECISION AND ORDER
DONNELLY, District Judge.
plaintiffs filed this lawsuit on June 22, 2015, in connection
with their November 15, 2013 arrest and subsequent
imprisonment for drug-related crimes, against Detective
Michael Fahmy, unnamed police officers, and the City of New
York. On November 16, 2016, 1 dismissed the plaintiffs claims
for false arrest, false imprisonment, and malicious
prosecution claims against the individual officers, and
dismissed the claims against the City. Because the defendants
had omitted discussion of certain claims, I issued an order
instructing the plaintiff to show cause why the following
claims should not be dismissed: deprivation of the right to a
fair trial, failure to intervene, supervisory liability, and
claims for violations of Section 1981. The plaintiff and the
defendants responded to that order. Now, for the reasons
discussed below, the plaintiffs complaint is dismissed in its
November 15, 2013, the plaintiffs were "at or near"
132 Harrison Avenue in Staten Island; they claim that they
were "committing no crime, " were "not acting
in a suspicious manner, " and were not "in
possession of any contraband or controlled substances."
(Compl. ¶¶ 12-15.) The plaintiffs contend that they
were "unlawfully and without just cause, approached,
accosted, falsely arrested and falsely imprisoned."
(Compl. ¶ 16.)
to the plaintiffs, Detective Michael Fahmy, "with the
acquiescence of other defendants, misrepresented facts in the
police reports and other documents." (Compl. ¶ 19.)
The plaintiffs say that "false information and evidence,
including the possession of marajuhana was used against the
plaintiff[s] and formed the basis of the criminal charges
against them." (Compl. ¶ 20.) Then, the plaintiffs
were held for "approximately 24 hours" before they
were released. (Compl. ¶¶ 17-18.) They were charged
with criminal possession of a controlled substance in the
seventh degree and unlawful possession of marijuana. The
plaintiffs were "compelled to make numerous court
appearances" between the date of their arrest and April
21, 2015, when the criminal court judge dismissed the
charges. (Compl. ¶¶ 17-18.)
plaintiffs also allege that "supervisory defendants
personally caused" the plaintiffs'
"constitutional injury by being deliberately and/or
consciously indifferent to the rights of citizens in failing
to properly train, select, supervise and discipline their
employees." (Compl. ¶¶ 57, 107.) They complain
that the alleged violations are "not isolated incidents,
" and assert that New York Police Department leadership
should be aware that officers "are engaging in a pattern
of falsification to conceal their abuse of authority and for
other unlawful motives." (Compl. ¶ 23.) In support
of this contention, the plaintiffs cite lawsuits, notices of
claim, and complaints filed with the NYPD's Internal
Affairs Bureau and the City of New York's Civilian
Complaint Review Board. (Compl. ¶ 23.)
23, 2016, the defendants moved to dismiss the complaint
pursuant to Rule 12(b)(6), but did not move to dismiss all of
the plaintiffs claims. In their opposition, the plaintiffs
include new factual allegations that were not in their
complaint. I granted the defendants' motion, and
issued an order to show cause why the remaining claims should
not be dismissed. The plaintiff submitted a response to that
order on December 6, 2016. The defendants responded on
December 28, 2016. The plaintiff filed a reply to the
defendants' submission on January 27, 2017. For the
reasons that follow, the complaint is dismissed in its
the court must accept all factual allegations as true,
Town of Babylon v. Fed. Hous. Fin. Agency, 699 F.3d
221, 227 (2d Cir. 2012), the same rule does not apply to
legal conclusions. Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009). "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 required, the plaintiffs must make
more than an "unadorned,
IqbaU 556 U.S. at 678 (citing Bell Ail. Corp. v.
Twombly, 550 U.S. 544, 555 (2007)). A pleading that
provides mere "labels and conclusions" or "a
formulaic recitations of the elements of a cause of
action" is insufficient. Iqbal, 556 U.S. at 678
(citing Twombly, 550 U.S. at 555).
Malicious Abuse of Process
order to make an adequate allegation of malicious abuse of
process, the plaintiffs must establish that the defendants
"(1) employ[ed] regularly issued legal process to compel
performance or forbearance of some act, (2) with the intent
to do harm without excuse o[r] justification, and (3) in
order to obtain a collateral objective that is outside the
legitimate ends of the process." Arrington v. Cityof
N.Y., 628 F.App'x 46, 49 (2d Cir. 2015) (quoting
Savino v. City o/N.Y., 331 F.3d 63, 76 (2d Cir.
2003)). A collateral purpose is one beyond or in addition to
criminal prosecution. Arrington v, 628 F.App'x
at 49. A "malicious motive alone ... does not give rise
to a cause of action for abuse of process."
Savino, 331 F.3d at 77. Rather, the plaintiffs must
establish that the defendants had an improper purpose in
bringing the action. Id.
their complaint, the plaintiffs say that the reason the
defendants arrested them was to receive overtime compensation
and "credit for an arrest." In response to my order
to show cause, the plaintiffs maintain that the collateral
objective of the abuse of process was "obtaining
money." (Pl's Resp. to Show Cause at 13 (ECF No.
38).) However, the plaintiff cites to no case, and I have
found none, to suggest that an allegation that the arresting
officer sought to receive overtime for an otherwise lawful
arrest constitutes an abuse of process.
Second Circuit has clarified that improper purposes include,
for example, "extort[ing] money" or
"coerc[ing] action." Hauser v. Bartow, 273
N.Y. 370, 374 (1937). Here, the plaintiffs make no such
allegation. Rather, they simply claim that the defendants
made the arrest so that they could incur overtime, and thus
get paid more money. Even if this were true, however, it does
not establish an improper purpose. The plaintiffs must allege
that the officers "aimed to achieve a collateral purpose
beyond or in addition to his criminal prosecution."
Savino, 331 F.3d at 77. They have not done so.
"[t]he pursuit of a collateral objective must occur
after the process is issued; the mere act of issuing
process does not give rise to a claim." De Santis v.
City of N.Y., No. 10-cv-3508-NRB, 2011 WL 4005331, at *8
(S.D.N.Y. Aug. 29, 2011) (citation omitted). The plaintiff
has not alleged that Detective Fahmy did anything after the
issuance of process. Because the plaintiffs have not
adequately pled abuse of process, that cause of action is
dismissed. See also Walker v. City of N.Y., No.
14-cv-808-ER, 2015 WL 4254026, at *5 (S.D.N.Y. July 14, 2015)