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Harvey v. City of New York

United States District Court, E.D. New York

October 30, 2017



          ROSLYNN R. MAUSKOPF, United States District Judge.

         On 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.


         The 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.)


         Pursuant 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.

         When a 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) (citation omitted).


         I. § 1983 Claims[1]

         Harvey 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.

         The 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).

         Here, 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.

         II. State Law Claims

         Harvey's 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). ...

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