United States District Court, S.D. New York
OPINION AND ORDER
GREGORY H. WOODS, United States District Judge
everything that Plaintiff Millicent Johnson alleges in her
amended complaint is true, she has endured a harrowing
experience. While that conclusion is easy to draw, the
question of whether the defendants she has named in this
lawsuit are legally responsible for that experience is
significantly more complicated. In July 2014, while applying
for a civilian job at Fort Bragg Army Base in Fayetteville,
North Carolina, Plaintiff was arrested on an outstanding
warrant issued by the New York State Supreme Court,
transferred to the custody of the local North Carolina
sheriff's department, and then extradited to New York.
After having been detained for a total of 37 days in both
North Carolina and New York, she was released from
Riker's Island after a fingerprint analysis revealed that
she was not, in fact, the subject of the warrant. Less than
two months later, Plaintiff returned to Fort Bragg in an
effort to secure the same job. She was again arrested on the
same warrant and transferred to the custody of local law
enforcement. This time, she was not extradited to New York
and was released from custody after one day.
brings this suit under 42 U.S.C. § 1983 and state law
against the City of New York, the New York City Police
Department (“NYPD”), the NYPD Fugitive Warrant
Division, two named NYPD officers, and ten unnamed NYPD
officers. She has not named any North Carolina or Fort Bragg
officials as defendants. Plaintiff asserts claims for false
arrest and imprisonment, excessive force, malicious
prosecution, malicious abuse of process, negligence, and
intentional infliction of emotional distress. Plaintiff also
seeks to establish municipal liability on the part of the
City of New York. Defendants have moved to dismiss the
amended complaint in its entirety. For the reasons that
follow, Defendants' motion to dismiss is GRANTED.
January 24, 2001, the New York Supreme Court issued a warrant
for the arrest of a person named “Millencent
Johnson” after that person violated bail and failed to
appear for her arraignment on a state criminal charge. Arrest
Warrant Under Indictment No. 8698/2000 (the
“Warrant”), annexed as Ex. B to Decl. of
Alexander Noble in Supp. Mot. to Dismiss (“Noble
Decl”) (ECF No. 33) and as Ex. B to Decl. of Susan
Calvello in Opp'n to Mot. to Dismiss (“Calvello
Decl.”) (ECF No. 38-1). The 2001 Warrant
identified Millencent Johnson as an African-American female
born December 12, 1977, 5'2” in height and 180 lbs.
in weight, with black hair and brown eyes, and residing in
Newark, New Jersey. Noble Decl., Ex. B. Plaintiff Millicent
Johnson is also an African-American female born on December
12, 1977, but is 4'9” in height and was 110 lbs. in
weight during the 2014 events at issue here. Pl.'s
Designation of Agent for Access to Sealed Records Pursuant to
NYCPL § 160.50[d], executed Jan. 13, 2016, annexed as
Ex. C. to Noble Decl. and as Ex. E to Calvello Decl.;
Pl.'s NYC Department of Correction Inmate Lookup
Information, annexed as Ex. D to Noble Decl.
22, 2014, Plaintiff underwent a background check while
applying for a job as a civilian food service worker at Fort
Bragg Army Base in Fayetteville, North Carolina. ECF No. 22,
Am. Compl. (“AC”) ¶ 17. During the
background check, Fort Bragg officials located the Warrant in
a national law enforcement database and determined that
Plaintiff was its subject. AC ¶ 18-19. Fort Bragg
military police arrested Plaintiff and placed her in a
holding cell “over her protestations that she was being
mistakenly arrested.” AC ¶ 20. According to the
Amended Complaint, they did so “as agents of
defendants.” Id. Plaintiff alleges on
information and belief that “Military Police officials
contacted defendants, and defendants, without ever
investigating, verifying or confirming that plaintiff was the
actual wanted person, informed Military Police officials that
plaintiff was the subject of the bench warrant when in fact
plaintiff was not the actual subject of the bench
warrant.” AC ¶ 21.
point later the same day, Plaintiff was transferred to the
custody of the Cumberland County Sheriff's Department,
also in Fayetteville, North Carolina. AC ¶¶ 23, 26.
Plaintiff alleges that “defendants importuned,
commanded, requested, and/or instructed” that the
officials at Fort Bragg effect this transfer. AC ¶ 22.
As with the initial arrest by Fort Bragg officials, Plaintiff
alleges that officials from the Cumberland County
Sheriff's Department “contacted defendants, and
defendants, without investigating, verifying or confirming
that plaintiff was the actual wanted person, informed
Cumberland County Sheriff Department officials that plaintiff
was the wanted subject of the outstanding bench warrant, when
in fact plaintiff was not the actual subject.” AC
¶ 24. And Plaintiff alleges again that “defendants
importuned, commanded, requested, and/or instructed that
plaintiff be detained and imprisoned at the Cumberland County
Sheriff's jail in order for defendants to extradite
plaintiff to the New York State Supreme Court, in the County
and City of New York.” AC ¶ 25. Cumberland County
officials took Plaintiff into custody “against [her]
will and over her protestations that she was mistakenly
arrested and imprisoned.” AC ¶ 26.
to a document entitled Waiver of Extradition Findings and
Order―which is referenced in the Amended Complaint and
has been attached by both parties as exhibits to their
briefing on Defendants' motion―an extradition
hearing was held in North Carolina state court on July 25,
2014. Noble Decl., Ex. E and Calvello Decl.,
Ex. G (“Waiver of Indictment”); see also
AC ¶ 27. The document contains three primary sections.
The first section spells Plaintiff's first name correctly
(i.e., “Millicent”) and indicates that
she is wanted for the crime of possession of stolen property,
committed on January 24, 2001. Waiver of Indictment. The
“Name of Demanding State and County of Crime” is
listed as “New York, New York.” Id. The
second section contains the actual “Waiver of
Defendant, ” which contains the following pre-printed
recital, with one box checked:
undersigned, in open court state that:
1. [x] a. I understand that I have been arrested in this
State under criminal process alleging that I committed the
crime(s) shown above on the date and in the demanding state
and county named above.
[ ] b. I understand that I have been arrested in this State
under criminal process alleging that I was convicted of the
crime(s) shown above, which was committed on the date of
offense and in the demanding state and county named above,
and further alleging that I have escaped from confinement or
broken the terms of my bail, probation or parole.
2. A Judge or a Clerk of the Superior Court has informed me
that I am not required to sign this Waiver and that I have a
right to be represented by an attorney before signing it and
at all other stages of extradition. This judicial official
also informed me that if I do not sign this Waiver, I cannot
be extradited to the demanding state until a Governor's
Warrant has been issued and served on me and if a
Governor's Warrant is served on me, I will have a right
to apply for a writ of habeas corpus.
3. I freely and voluntarily waive the issuance and service of
a Governor's Warrant and all other procedure incidental
to extradition proceedings.
4. I freely and voluntarily consent to return to the
demanding state shown above upon the arrival of a duly
accredited agent of that state.
Id. The above recital is dated July 25, 2014 and is
signed “Millicent Johnson.” Id.
third and final section of the document is entitled
“Findings and Order.” Id. It is signed
by The Honorable Tamage S. Baggett, Jr., and states:
I am a Judge or Clerk of Superior Court of the General Court
of North Carolina, a court of record. The defendant named
above appeared before me this day. I informed the defendant
of the right to the issuance and service of a Governor's
Warrant and to obtain a writ of habeas corpus as provided for
in N.C. G.S. 15A-730. The defendant then freely, voluntarily
and understandingly executed the above Waiver in my presence.
To any officer having the defendant named above in custody:
You are DIRECTED to deliver the defendant together with a
copy of this document, to the duly accredited agent(s) of the
demanding state upon their presentation of evidence of their
Id. In the Amended Complaint, Plaintiff alleges that
“the signing of the waiver was not made voluntarily and
freely” and that “defendants . . . knew or should
have known, including by absolute indifference, that the
waiver was neither freely made or [sic] voluntarily
[sic].” AC ¶ 27, 42. Plaintiff further alleges, on
information and belief, that she “protested her
innocence and then protested the fact that she was not the
person wanted by this fugitive warrant.” AC ¶ 28.
was held in North Carolina until August 7, 2014. AC ¶
31. She alleges that she was held during that time
“[a]t the request and direction of defendants, ”
and that “[d]uring this time, defendants failed to
investigate, verify and/or confirm that plaintiff was the
actual person who was the subject of the bench warrant, and
instead of correcting the grave error that plaintiff was not
the actual wanted person, defendants sought extradition of
plaintiff from Fayetteville, North Carolina to New York
County, New York City.” Id. On August 7, 2014,
Defendants Pasquariello, Valle-Sarakas, and Police Officers
“John Doe” and “Jane Doe” 1-10 (the
“Individual Defendants”) travelled from New York
to North Carolina to take custody of Plaintiff and bring her
to New York State Supreme Court. AC ¶ 32. The officers
placed her in handcuffs and transported her by airplane to
New York City, where she was placed in a holding cell
“over her protestations that she was mistakenly
arrested, imprisoned and extradited.” AC ¶ 33. On
the same day, the Individual Defendants brought Plaintiff
before a justice of the New York State Supreme Court for New
York County, where she was arraigned on the indictment listed
on the Warrant and then remanded to the custody of the New
York City Department of Correction. AC ¶ 34. According
to the Amended Complaint, “[a]t no time did defendants
verify, investigate and/or confirm that plaintiff was the
actual wanted person who was the subject of the bench
warrant, ” AC ¶ 32, 34, and Plaintiff was
arraigned “based on defendants' baseless
representations to the Court that [she] was the subject
person of the bench warrant, ” AC ¶ 34.
August 12, 2014, five days after arriving in New York,
Plaintiff appeared at a hearing before Justice Melissa
Jackson of the New York State Supreme Court. See Tr.
of Aug. 12, 2014 Proceeding, Noble Decl., Ex. F and Calvello
Decl., Ex. I (“Aug. 12 Tr.”). According to the
transcript of that hearing, the following exchange occurred
between Plaintiff's attorney, Glen Abolafia, and the
court concerning verification of Plaintiff's
identification as the warrant subject:
MR. ABOLAFIA: Also an issue when she was last printed. It is
my understanding that this was based on her applying for a
job, she lived in North Carolina. She was applying for a
civilian in Fort Bragg. She had to be fingerprinted for that.
Has she been printed after that. She denies ever being in the
New York area.
THE COURT: She was way back when, I have this in front of me.
She was arrested and arraigned on the felony complaint back
in 2000, I have it right here with the same charges.
MR. ABOLAFIA: Is there a photograph in the Court file?
THE COURT: It is the same person, yes. You need to find your
file. I do have the court file here in front of me.
Aug. 12 Tr. 3:9-24. A few moments later, the court stated to
Mr. Abolafia: “Could you ask Ms. Hast to prepare a take
out order for her to be reprinted just to confirm it is the
same person who was arrested back in 2000.”
August 28, 2017, after the fingerprinting analysis showed
that she was not the warrant subject, Plaintiff was released
from custody. See AC ¶ 37. Plaintiff alleges,
upon information and belief, that “defendants learned
that plaintiff was not the actual person who was the subject
of the bench warrant, but failed to take corrective measures
and effect plaintiff's immediate release from
incarceration, and caused plaintiff to continue to be
unlawfully imprisoned.” AC ¶ 36.
October 9, 2014 (42 days later), Plaintiff returned to Fort
Bragg to secure her civilian food service job. AC ¶ 40.
She was once again arrested by Fort Bragg officials on the
same warrant and transferred to the custody of the Cumberland
County Sheriff's Department, before being released on
October 10, 2014. AC ¶¶ 40, 43-44.
Amended Complaint, Plaintiff alleges that although
“defendants had actual notice that plaintiff was not
the person who was the wanted subject of the bench
warrant” after her first erroneous arrest,
“defendants failed to take corrective steps to prevent
future misidentifications of plaintiff as the person wanted
on the bench warrant.” AC ¶ 38. Plaintiff also
alleges that “defendant [sic] was indifferent and
negligent and also intentional in their disregard of taking
measures to prevent misidentification of plaintiff as the
person wanted in the warrant, ” and that
Plaintiff's second arrest was “a direct result
of” Defendants' failure to take such corrective
measures. AC ¶ 40-41.
filed this action on October 19, 2015. In her initial
complaint, Plaintiff named as defendants the City of New
York, the NYPD, and Police Officers “John Doe”
and “Jane Doe” 1-10. ECF No. 1. On October 3,
2016, the Court removed the action from participation in
Local Civil Rule 83.10 (formerly the 1983 plan) at
Plaintiff's request. ECF No. 13. On October 17, 2016,
Plaintiff filed an amended complaint on consent, adding as
defendants the NYPD Fugitive Warrant Division and police
officers Anthony Pasquariello and Marisa Valle-Zarakas. ECF
No. 22. Defendants' filed a motion to dismiss the Amended
Complaint on December 2, 2016. ECF Nos. 31-33. After an
extension, Plaintiff filed an opposition to Defendants'
motion on January 13, 2017. ECF Nos. 37-38. After another
extension, Defendants filed a reply in support of their
motion on January 27, 2017. ECF No. 41.
Federal Rule of Civil Procedure 8(a)(2), a complaint must
contain “a short and plain statement of the claim
showing that the pleader is entitled to relief.” Rule 8
“does not require detailed factual allegations, but it
demands more than an unadorned,
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). To
survive a motion to dismiss pursuant to Rule 12(b)(6), a
complaint “must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is
plausible on its face.'” Iqbal, 556 U.S.
at 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)). “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.”
Id. (citing Twombly, 550 U.S. at 556).
“To survive dismissal, the plaintiff must 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 Twombly, 550 U.S. at 544).
whether a complaint states a plausible claim is a
“context-specific task that requires the reviewing
court to draw on its judicial experience and common
sense.” Iqbal, 556 U.S. at 679. The court must
accept all facts alleged in the complaint as true and draw
all reasonable inferences in the plaintiff's favor.
Burch v. Pioneer Credit Recovery, Inc., 551 F.3d
122, 124 (2d Cir. 2008) (per curiam). However, a complaint
that offers “labels and conclusions” or
“naked assertion[s]” without “further
factual enhancement” will not survive a motion to
dismiss. Iqbal, 556 U.S. at 678 (citing
Twombly, 550 U.S. at 555, 557).
considering a motion to dismiss for failure to state a claim
pursuant to Rule 12(b)(6), a district court may consider the
facts alleged in the complaint, documents attached to the
complaint as exhibits, and documents incorporated by
reference in the complaint.” DiFolco v. MSNBC Cable
L.L.C., 622 F.3d 104, 111 (2d Cir. 2010) (citations
omitted). “Where a document is not incorporated by
reference, the court may never[the]less consider it where the
complaint ‘relies heavily upon its terms and effect,
' thereby rendering the document ‘integral' to
the complaint.” Id. (quoting Mangiafico v.
Blumenthal, 471 F.3d 391, 398 (2d Cir. 2006)). Finally,
the Court may also consider “matters of which judicial
notice may be taken.” Goel v. Bunge, Ltd., 820
F.3d 554, 559 (2d Cir. 2016) (citation omitted).
Plaintiff's Claims Against the NYPD Must Be
names the NYPD and the NYPD Fugitive Warrant Division as
defendants to this suit. However, an agency of the City of
New York, such as the NYPD, is not an entity that can be
sued. See N.Y. City Charter ch. 17, § 396
(“[A]ll actions and proceedings for the recovery of
penalties for the violation of any law shall be brought in
the name of the city of New York and not in that of any
agency, except where otherwise provided by law.”);
Jenkins v. City of New York, 478 F.3d 76, 93 n.19
(2d Cir. 2007); Romero v. City of New York, No.
16-CV-4157, 2016 WL 6155935, at *3 (E.D.N.Y. Oct. 21, 2016);
see also Emerson v. City of New York, 740 F.Supp.2d
385, 395 (S.D.N.Y. 2010) (“[A] plaintiff is generally
prohibited from suing a municipal agency.”).
Accordingly, Plaintiff's claims against the NYPD and the
NYPD Fugitive Warrant Division are dismissed with prejudice.
Plaintiff's State-Law Claims Against the Individual
Defendants Must Be Dismissed
New York law, a notice of claim is a condition precedent to
bringing a tort claim against a municipality and any of its
officers, agents, or employees. N.Y. Gen. Mun. Law
§§ 50-e(1), 50-i(1); C.S.A. Contracting Corp.
v. N.Y. City Sch. Constr. Auth., 833 N.E.2d 266, 268
(N.Y. 2005); see also Fincher v. Cty. of
Westchester, 979 F.Supp. 989, 1002 (S.D.N.Y. 1997);
Rose v. Cty. of Nassau, 904 F.Supp.2d 244, 247-48
(E.D.N.Y. 2012). “The purpose of the notice-of-claim
requirement is to afford the municipality an adequate
opportunity to investigate the claim in a timely and
efficient manner and, where appropriate, to settle claims
without the expense and risks of litigation.” Hardy
v. N.Y. City Health & Hosp. Corp., 164 F.3d 789, 794
(2d Cir. 1999) (citation omitted). “The notice of claim
must provide, among other things, the nature of the claim and
must be filed within ninety days after the claim
arises.” Rose, 904 F.Supp.2d at 248 (citing
§ 50-e). “In addition, the plaintiff must plead in
his complaint that: (1) he has served the notice of claim;
(2) at least thirty days have elapsed since the notice was
filed and before the complaint was filed; and (3) in that
time the defendant has neglected to or refused to adjust or
satisfy the claim.” Id. (citing § 50-i).
“Notice of claim requirements are construed strictly by
New York state courts, and failure to abide by their terms
mandates dismissal of the action . . . .” Tulino v.
City of New York, No. 15-cv-7106 (JMF), 2016 WL 2967847,
at *3 (S.D.N.Y. May 19, 2016) (citing AT&T Co. v.
N.Y. City Dep't of Human Res., 736 F.Supp. 496, 499
(S.D.N.Y. 1990) (collecting cases)).
a federal court, state notice-of-claim statutes apply to
state-law claims.” Hardy, 164 F.3d at
793 (emphasis in original) (citation omitted); see also
Cruz v. City of New York, No. 15-cv-2265 (PAE), 2017 WL
544588, at *4 (S.D.N.Y. Feb. 8, 2017) (“The notice of
claim requirements apply equally to state tort claims brought
as pendent claims in a federal civil rights action.”
(quoting Fincher, 979 F.Supp. at 1002)). The
notice-of-claim requirement does not apply, however, to
federal claims brought under Section 1983. E.g.,
Bordeau v. Metro. Transit Auth., No. 06-cv-6781
(DLI), 2008 WL 4455590, at *1 (E.D.N.Y. Sept. 30, 2008).
most relevant here, “[a] notice of claim must identify
any individual officers the plaintiff intends to name in the
lawsuit in addition to the municipality.” Jackson
v. City of New York, 29 F.Supp.3d 161, 181 (E.D.N.Y.
2014) (citation omitted); see also Schafer v. Hicksville
Union Free Sch. Dist., No. 06-cv-2531 (JS), 2011 WL
1322903, at *11 (E.D.N.Y. Mar. 31, 2011) (“In New York,
General Municipal Law Section 50-e . . . requires plaintiffs
to name their defendants in their notice of claim prior to
commencing a lawsuit.” (citation omitted)). Plaintiff
filed a notice of claim on October 23, 2014 seeking
compensation for injuries allegedly resulting from the events
described in the Amended Complaint. Noble Decl., Ex.
H. The caption of Plaintiff's notice
of claim named as defendants only “City of New
York” and “New York City Police Department,
” and did not include Defendants Pasquariello or
Valle-Zarakas, or even any unidentified “John
Doe” defendants. Id. Accordingly,
Plaintiff's state-law claims against the Individual
Defendants for false arrest and detention, intentional
infliction of emotional distress, negligence, malicious
prosecution, and malicious abuse of process are dismissed
with prejudice. See Schafer, 2011 WL 1322903, at *11
(“Plaintiffs may not file a notice of claim naming a
municipal entity and then commence an action against a roster
of individual municipal employees.” (internal quotation
marks and citation omitted)); Jackson, 29 F.Supp.3d
at 181 (“Plaintiff's notice of claim failed to
identify any of the Individual Defendants, either by their
particular names or as “Doe” defendants, and only
named the City of New York. Plaintiff argues that this
failure should be excused because only through discovery did
Plaintiff learn the identities of the Individual Defendants.
However, Plaintiff failed to provide notice of suit against
even unnamed individual “John Doe” defendants,
and consequently the City of New York and the Individual
Defendants were not on notice of these claims.”
(internal citations omitted)).
False Arrest and Unreasonably Prolonged Detention
Section 1983 claim for false arrest or false imprisonment is
substantially the same as a claim for false arrest under New
York law. Boyd v. City of New York, 336 F.3d 72, 75
(2d Cir. 2003); see also Posr v. Doherty, 944 F.2d
91, 96 (2d Cir. 1991) (stating that, under New York law, the
torts of false arrest and false imprisonment are synonymous).
Such a claim requires a plaintiff to show that (1) the
defendant intended to confine the plaintiff, (2) the
plaintiff was conscious of the confinement, (3) the plaintiff
did not consent to the confinement, and (4) the confinement
was not otherwise privileged. See Ackerson v. City of
White Plains, 702 F.3d 15, 19 (2d Cir. 2012) (quoting
Broughton v. State of New York, 335 N.E.2d 310, 314
(N.Y. 1975)). The existence of probable cause acts as a
complete defense to a false arrest or false imprisonment
claim. Jaegly v. Couch, 439 F.3d 149, 152 (2d Cir.
2006) (citation omitted).
cause to arrest exists when the officers have knowledge of,
or reasonably trustworthy information as to, facts and
circumstances that are sufficient to warrant a person of
reasonable caution in the belief that an offense has been or
is being committed by the person to be arrested.”
Zellner v. Summerlin, 494 F.3d 344, 368 (2d Cir.
2007) (citations omitted). It is well-established that
“[w]hen an arrest is made pursuant to a facially valid
warrant, there is a presumption that it was made with
probable cause.” Brown, 2013 WL 3245214, at
*9. Moreover, “a mistaken identity can provide the
basis for probable cause.” Martinez v. City of New
York, 340 F. App'x 700, 701 (2d Cir. 2009) (citing
Hill v. Cal., 401 U.S. 797, 802-03 (1971)) (holding
that police officers had probable cause to arrest a person
with a sufficiently similar appearance to the description in
a warrant). “If officers arrest an individual based on
a mistaken identification, that arrest is still
constitutionally valid if the police have probable cause to
arrest the person sought and the arresting officer reasonably
believed that the arrestee was that person.”
Id. (citing Hill, 401 U.S. at 803-03);
see, e.g., Brown, 2013 WL 3245214, at *9
(citing and applying Martinez rule); Ortiz v.
Vill. of Monticello, No. 06-cv-2208 (ER), 2012 WL
5395255, at *9 (S.D.N.Y. ...