United States District Court, E.D. New York
MEMORANDUM AND ORDER
Glasser Senior United States District Judge
Esther, Krystana, and Crystal Browne, and Steve Alexander
(collectively, “Plaintiffs”) commenced this
action pursuant to 42 U.S.C. § 1983, alleging that the
New York City Policy Department (“NYPD”) and
unidentified “Doe” officers
(“Defendants”) violated the rights afforded them
by the Fourth, Fifth, and Fourteenth Amendments to the United
States Constitution. Pending now before the Court is
Defendants' motion to dismiss pursuant to Rule 12(b)(6),
Fed.R.Civ.P. ECF 15, 16, 17. Following Plaintiffs'
failure to timely respond to that motion, the Court issued an
Order to Show Cause as to why the motion should not be
considered fully briefed and unopposed. ECF 19. Received from
the Plaintiff in response was a letter explaining that
“plaintiffs oppose the dismissal of this matter;
however, are unable to provide the Court with additional
briefing of the issue at this time.” ECF 20. With this
remarkable response, the Court considers the Defendants'
motion to be fully briefed and unopposed. For the reasons
that follow, the motion is GRANTED.
following facts are drawn from the Complaint, ECF 1
(hereinafter “Compl.”), unless otherwise noted.
On or about April 5, 2013, plaintiffs Bertram, Esther,
Krystana, and Crystal Browne were inside their home at 1556
Saint Marks Avenue in Brooklyn. Id. ¶ 11. At
approximately 6:00am, NYPD officers “broke into”
the house and “accosted and seized the
plaintiffs” including restraining them “at
gunpoint, ” and “ransack[ing]” their home
prior to arresting and transporting them to an unspecified
precinct. Id. ¶ 12. During the arrests, Steve
Alexander arrived at the residence, was “accosted and
seized” and transported to the precinct. Alexander was
released from custody that same night, and the Brownes were
released the following day, April 6, 2013. Id.
¶ 18. On April 10, 2013, Plaintiffs were informed that
the cases against them were to be dismissed. Id.
¶ 19. On April 8, 2016, Plaintiffs filed their Complaint
in this action. DE 1.
deciding a Fed.R.Civ.P. 12(b)(6) motion to dismiss, and
accepting the facts pleaded to be true, Plaintiffs must state
a claim that is plausible on its face from which the Court
can draw the reasonable inference that the claim has merit.
“Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (citation omitted). When, as in this case, a motion to
dismiss is unopposed, the failure to oppose does not, by
itself, justify dismissal. McCall v. Pataki, 232
F.3d 321, 322- 23 (2d Cir.2000). “[T]he sufficiency of
a complaint is a matter of law that the court is capable of
determining based on its own reading of the pleading and
knowledge of the law.” Goldberg v. Danaher,
599 F.3d 181, 84 (2d Cir.2010) (citation omitted).
named as a Defendant, the NYPD is a non-suable agency of the
City of New York. See Jenkins v. City of New York,
478 F.3d 76, 93 n. 19 (2d Cir. 2007). Plaintiffs' claims
against that agency are DISMISSED, and the Court considers
the remaining claims only as against the Doe Defendants.
do not identify any specific cause of action in their
Complaint, but broadly allege violations of their
constitutional rights pursuant to § 1983, which does not
provide a statute of limitations. As such, courts apply the
relevant statute of limitations for personal injury actions
under state law in § 1983 actions. Hogan v.
Fischer, 738 F.3d 509, 517 (2d Cir. 2013). New
York's three-year statute of limitations for unspecified
personal injury actions applies to the claims herein.
Pearl v. City of Long Beach, 296 F.3d 76, 79 (2d
Cir. 2002). Accrual of § 1983 claim occurs at
“that point in time when the plaintiff knows or has
reason to know of the injury which is the basis of his
action.” Singleton v. City of N.Y., 632 F.2d
185, 191 (2d Cir. 1980). While Plaintiffs fail to name any
specific causes of action, any claims stemming from the
arrests and releases on April 5-6, 2013-such as, for example,
false arrest or unlawful search- were not timely filed. A
claim of malicious prosecution stemming from the events of
April 10, 2013 is not available. A pre-requisite for that
cause of action is the commencement of a judicial proceeding.
Manganiello v. City of New York, 612 F.3d 149, 161
(2d Cir. 2010). There is no indication that the judicial
process was set in motion beyond the Plaintiffs' arrest.
As such, Plaintiffs' Complaint fails to state a claim.
foregoing reasons, Defendants' motion to ...