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Johnson v. City of New York

United States District Court, S.D. New York

May 26, 2017



          GREGORY H. WOODS, United States District Judge

         If 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.

         Plaintiff 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.

         I. BACKGROUND

         A. Facts Alleged[1]

         On 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).[2] 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[1][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.[3]

         On July 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.

         At some 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.

         According 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.[4] 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:

         I, the 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.

         The 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 accreditation.

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.

         Plaintiff 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.[5] 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.

         On 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.”).[6] 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.” Id. 4:21-24.

         On 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.

         On 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.

         In the 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.

         B. Procedural History

         Plaintiff 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.[7] After another extension, Defendants filed a reply in support of their motion on January 27, 2017. ECF No. 41.


         Under 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, the-defendant-unlawfully-harmed-me accusation.” 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).

         Determining 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).

         “In 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).


         A. Plaintiff's Claims Against the NYPD Must Be Dismissed

         Plaintiff 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.

         B. Plaintiff's State-Law Claims Against the Individual Defendants Must Be Dismissed

         Under 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)).

         “[I]n 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).

         As is 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.[8] 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)).[9]

         C. False Arrest and Unreasonably Prolonged Detention Claims

         A 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).

         “Probable 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. ...

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