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Birch v. Danzi

United States District Court, E.D. New York

July 26, 2018

KYLE BIRCH, Plaintiff,



         Plaintiff Kyle Birch, appearing pro se and proceeding in forma pauperis, brings this action, pursuant to 42 U.S.C. § 1983, against Defendants, alleging numerous violations in connection with his August 20, 2014 arrest and subsequent prosecution. For the reasons stated herein, Defendants' motion to dismiss is granted in part and denied in part.


         I. Relevant Facts[1]

         Plaintiff alleges that on August 20, 2014, Defendant-Officers John Romano and Frank Danzi of the New York Police City Department (“NYPD”), dressed in plainclothes and without identifying themselves, jumped out of their car, pointed a gun at him, chased him, and ultimately arrested him in connection with a string of burglaries. While he was handcuffed and on the ground, Officer Romano or Danzi dragged him across the parking lot, kicked him, and hit him in the back with an unknown object.

         After his arrest, Plaintiff was taken to the 120th Precinct, where he was questioned by Defendant-Detectives Genee Parker and Patrick O'Connor. At some point, an unidentified officer attempted to take a cellphone picture of Plaintiff and when Plaintiff refused, the officer slapped him. Plaintiff claims that he was illegally searched after his arrest. The officers found a forged Social Security card and check in his backpack.

         According to Plaintiff, he was charged with five counts of burglary in the second degree, fourteen counts of criminal possession of stolen property, two counts of criminal mischief, two counts of attempted burglary in the second degree, one count of criminal possession of a forged instrument, and sixteen counts of criminal trespass in connection with the burglaries. He was separately charged with one count of criminal possession of stolen property and one count of criminal possession of a forged instrument in connection with the forged check and Social Security Card found in his backpack. Plaintiff claims that he was arraigned twice, once on August 21, 2014, and again in September or October 2014, and indicted on August 26, 2014.[2]

         In June 2016, the state court held a suppression hearing concerning a post-arrest statement purportedly written by Plaintiff confessing to the burglaries and other crimes. Plaintiff denied writing the confession. Detectives Parker and O'Connor testified at the suppression hearing that they had witnessed Plaintiff write and sign the confession, and had advised him of his Miranda rights. Plaintiff states that a handwriting expert testified at the hearing that the writing on the confession was not a match to Plaintiff's handwriting. Plaintiff claims that this falsified confession prompted the prosecutor to dismiss the burglary charges. Plaintiff also claims that, during discovery for the trial, either Officer Danzi or Romano admitted that, at the time of Plaintiff's arrest, he was looking to “arrest anybody that look[ed] like they was looking to do burglaries.” The officer testified that he and the other officers had “no description but . . . were looking for a black man with a book bag.”

         On April 25, 2017, the day his criminal trial was set to begin, Plaintiff pleaded guilty to Criminal Possession of a Forged Instrument in the Second Degree and Criminal Possession of Stolen Property in the Fifth Degree. (Dkt. 29-1.)[3] Plaintiff was sentenced to two to five years' imprisonment. (Id.) That same day, the burglary charges were dismissed, purportedly due to a lack of evidence and the falsified confession.

         II. Procedural History

         Plaintiff filed the instant complaint on February 5, 2018. (Dkt. 1.) On May 29, 2018, Defendants Danzi, Romano, and the City of New York submitted a letter in anticipation of filing a motion to dismiss.[4] (Dkt. 29.) The Court converted the pre-motion conference letter into a motion to dismiss on June 5, 2018, and held oral argument on the motion on June 27, 2018.


         To survive a motion to dismiss pursuant to Federal Rule of Civil Procedure 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.'” Ashcroft v. Iqbal, 556 U.S. 662, 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. (quoting Twombly, 550 U.S. at 556). The “plausibility standard is not akin to a ‘probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (citation omitted). Determining whether a complaint states a plausible claim for relief is “a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. at 679 (citation omitted).

         “In addressing the sufficiency of a complaint, [the Court] accept[s] as true all factual allegations and draw[s] from them all reasonable inferences; but [the Court is] not required to credit conclusory allegations or legal conclusions couched as factual allegations.” Rothstein v. UBS AG, 708 F.3d 82, 94 (2d Cir. 2013). “A document filed pro se is to be liberally construed, and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than ...

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