United States District Court, E.D. New York
MEMORANDUM AND ORDER
ROSLYNN R. MAUSKOPF, United States District Judge.
February 29, 2016, pro se plaintiff Dwayne Harvey
commenced this action pursuant to 42 U.S.C. § 1983,
alleging violations of his constitutional rights and various
state law claims against defendants the City of New York (the
"City"), the New York City Police Department (the
"NYPD"), Officer Scott Munro, and Officer Timothy
Kessler (collectively the "City defendants").
(See generally Compl. (Doc. No. 1): Am. Compl. (Doc.
No. 6).) On March 6, 2017, the City defendants moved to
dismiss Harvey's amended complaint pursuant to Federal
Rule of Civil Procedure ("Rule") 12(b)(6) for
failure to state a claim. (See Mot. (Doc. No. 27).)
Despite proper service, Harvey did not file any opposition to
the motion. (See Deck Serv. (Doc. Nos. 23, 29).) For
the reasons set forth herein, the City defendants' motion
to dismiss is granted, and the case is dismissed with leave
to amend in accordance with the instructions set forth below.
following facts are considered true for purposes of this
motion to dismiss. On August 4, 2015, Harvey was taken into
custody by Officer Munro after failing a series of field
sobriety tests. (Am, Compl. at ¶ 5.) Thereafter, Harvey
was transported to the 112"1 Precinct where Officer
Kessler administered a breath alcohol test using an
Intoxilyzer 5000EN device (the "breathalyzer").
(Id.) After several attempts at administering the
test, Harvey blew .082% blood alcohol concentration
("BAC"). (Id.) Harvey alleges that a
physical disability and Chronic Pulmonary Obstruction Disease
("C.O.P.D.") prevented him from properly taking the
field sobriety and breathalyzer tests. (Id.) As a
result of the breathalyzer test, Harvey was arrested and
charged with operating a vehicle while under the influence.
(Id.) The criminal charges resulting from the arrest
ultimately were dismissed. (Am. Compl. at ¶ 6.)
to Rule 12(b)(6), a party may move to dismiss a cause of
action that "fail[s] to state a claim upon which relief
can be granted." Fed.R.Civ.P. 12(b)(6). To withstand a
motion to dismiss, a complaint "must contain sufficient
factual matter, accepted as true, to 'state a claim to
relief that is plausible on its face.'" Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007)); Hayden v. Paterson, 594 F.3d 150, 161 (2d
Cir. 2010). A claim is plausible "when the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged." Matson v. Ed. of Educ, 631
F.3d 57, 63 (2d Cir. 2011) (quoting Iqbal, 556 U.S.
at 678). The Court .assumes the truth of the facts alleged,
and draws all reasonable inferences in the nonmovant's
favor. See Harris v. Mills, 572 F.3d 66, 71 (2d Cir.
2009). Although all factual allegations contained in the
complaint are assumed to be true, this tenet is
"inapplicable to legal conclusions."
Iqbal, 556 U.S. at 678.
plaintiff proceeds pro se, the plaintiffs pleadings
should be held "to less stringent standards than formal
pleadings drafted by lawyers." Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (per curiam) (quoting
Estelle v. Gamble, 429 U.S. 97, 104-05 (1976));
see Harris, 572 F.3d 66 at 72 (noting that even
after Twombly, the court "remain[s] obligated
to construe a pro se complaint liberally").
Notwithstanding the liberal pleading standards granted to
a pro se plaintiff, the Court "need not argue
a. pro se litigant's case nor create a case for
the pro se which does not exist." Molina v.
New York, 956 F.Supp. 257, 260 (E.D.N.Y. 1995). Where
a pro se plaintiff has altogether failed to satisfy
a pleading requirement and the allegations in the complaint
do not raise a plausible claim to relief, dismissal is
warranted. See Twombly, 550 U.S. at 558; see
also Rodriguez v. Weprin, 116 F.3d 62, 65 (2d Cir. 1997)
§ 1983 Claims
alleges § 1983 false arrest claims against Officer Munro
and Officer Kessler. "A § 1983 claim for false
arrest is substantially the same as a false arrest claim
under New York law." Diop v. City of New York,
50 F.Supp.3d 411, 418 (S.D.N.Y. 2014) (citing Weyant v.
Okst, 101 F.3d 845, 852 (2d Cir. 1996)). Under New York
law, the elements of a false arrest claim are "(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." Id. (quoting
Singer v. Fulton County Sheriff, 63 F.3d 110, 118
(2d Cir. 1995). Only the fourth element, which alludes to
probable cause, is in dispute.
existence of probable cause to arrest "is a complete
defense to an action for false arrest, whether that action is
brought under state law or under Section 1983."
Weyant, 101 F.3d at 852 (internal citation omitted).
Probable cause 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."
Manganiello v. City of New York, 612 F.3d 149, 161
(2d Cir. 2010). The law does not require police officers to
explore and eliminate every theoretically plausible claim of
innocence before making an arrest. See Cetrone v.
Brown, 246 F.3d 194, 203 (2d Cir. 2001). What is
required is a "probability or substantial chance of
criminal activity, not an actual showing of such
activity." United Stales v. Valentine, 539 F.3d
88, 94 (2d Cir. 2008) (citation omitted).
it is undisputed that the result of a breathalyzer test
showed Harvey had a BAC of .082%. (Am. Compl.) See
N.Y. Veh. & Traf. Law § 1192(2) ("No person
shall operate a motor vehicle while such person has .08 of
one per centum or more by weight of alcohol in the
person's blood . . .'"). Harvey argues that his
physical disabilities, which allegedly necessitated multiple
attempts to produce a result from the breathalyzer test,
rendered the test insufficient to provide probable cause.
However, "probable cause does not require that the
police rule out innocent explanations for the suspect's
activities." Peterec v. Milliard, No.
12-CV-3944 (CS), 2014 WL 6972475, at *5 (S.D.N.Y. Dec. 8,
2014) (citing Cartkew v. Cnty. of Suffolk, 709
F.Supp.2d 188, 199 (E.D.N.Y. 2010)). Whether or not the
officers were aware of Harvey's alleged disabilities at
the time of arrest, the results of the breathalyzer test
provided probable cause to believe that he was driving under
the influence of alcohol. See Costello v. Milano,
No. 12-CV-7216 (CS), 2014 WL 1794886, at *11 (S.D.N.Y.May 6,
2014). Accordingly, Harvey's § 1983 claims for false
arrest and false imprisonment are dismissed.
State Law Claims
New York state law claims against City employees for actions
undertaken within the scope of their employment are dismissed
for failure to state a claim. In order to survive a motion to
dismiss for failure to state a claim, 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 (internal citation omitted).