OBILO v. CITY UNIVERSITY/NEW YORK

Full title: HENRY U. OBILO, Plaintiff, v. CITY UNIVERSITY OF THE CITY OF NEW YORK…

Court: United States District Court, E.D. New York

Date published: Feb 28, 2003

Civil Action No. CV-01-5118 (DGT) (E.D.N.Y. Feb. 28, 2003)

Opinion

Civil Action No. CV-01-5118 (DGT)

February 28, 2003

MEMORANDUM ORDER

DAVID G. TRAGER, District Judge.

Plaintiff Henry Obilo brings this civil rights action against defendants City University of New York ("CUNY"), the College of Staten Island ("CSI"),¹ "Police Officer/Detective" Burgess ("Burgess"), "Public Safety Officer/Director" Gene Martinez ("Martinez"), "Public Safety Officer/Asst. Director" Robert Yurman ("Yurman"),² Vice President of CSI Carol Jackson ("Jackson"), and Police Officer "John Doe 1" thru "John Doe 5", alleging that plaintiff's arrest and subsequent prosecution for an alleged sexual assault violated various of his constitutional rights. In both his initial and amended complaint, plaintiff sued Burgess, Martinez and Yurman in their official capacity and Jackson in both her official and individual capacity. See Compl. ¶¶ 8-9, 11-12; Am. Compl. ¶ 7-8, 10-11.³

1 Under New York Education Law, CUNY is a distinct corporate body.See N.Y. Educ. Law § 6203. In addition, CUNY is considered to include "each senior college and each community college." Id. § 6202(2). CSI is a senior college within the CUNY system. See id. § 6205(5). A senior college, such as CSI, is not a legally cognizable entity apart from CUNY. See id. §§ 6202(2) 6202(5). Consequently, CUNY appears to be the only properly named institutional defendant in this action.

2 In his complaint, plaintiff misspelled Yurman's name as "Youman".

3 In his complaint, plaintiff also sued Rudolph Guliani, in his official capacity as Mayor of the City of New York ("Guliani"), and Bernard B. Kerik, in his official capacity as Commissioner of the New York City Police Department ("NYPD") ("Kerik"). At a February 5, 2002 conference, plaintiff's counsel agreed to withdraw all claims against Guliani and Kerik. Accordingly, those defendants will be treated as dismissed from this case and Count III of plaintiff's original complaint (which alleges a claim of municipal liability against Guliani and Kerik) and other allegations against the City of New York and the NYPD will be considered as effectively withdrawn. As discussed in more detail below, plaintiff has submitted an amended complaint with his opposition memorandum. In the amended complaint, plaintiff has withdrawn Count III and all allegations against Guliani and Kerik, although plaintiff still asserts allegations of failure to train and investigate police officers against the City of New York, NYPD and "the City of Staten Island." These claims will be addressed infra in the context of plaintiff's claims against Burgess in his official capacity.

Plaintiff's four count initial complaint is not the most artful pled. In Count I, plaintiff appears to allege claims against defendants CUNY, CSI, Martinez, Yurman and Jackson (collectively, "state defendants") under 42 U.S.C. § 1981 and § 1983, arguing that his detention by Martinez and Yurman, and their subsequent call to the NYPD, violated his rights under the Fourth Amendment to the Constitution. See Compl. ¶ 36.⁴ Plaintiff also alleges that "the Board of Trustees of [CUNY], nor the Executive Department of [CSI] nor the Executive Department of the City of New York nor the [NYPD] caused an investigation to be made to ascertain the conduct of the defendant Polices Officers." Id. ¶ 34. In Count II, plaintiff seems to assert another § 1983 claim against Burgess and the state defendants, alleging that his arrest and prosecution violated his Fourth Amendment rights.⁵ See id. ¶¶ 37-39. In Count IV, plaintiff asserts against Burgess pendent state law claims under New York law for false arrest and malicious prosecution.See id. ¶¶ 49-51. In addition, it appears that Count IV contains allegations of, inter alia, assault and intentional and negligent infliction of emotional distress against the unnamed police officers for failure to intervene and stop "the abuse" they were witnessing. Id. ¶ 50. As relief, plaintiff seeks $1 million in compensatory damages for each of Counts I and II, $500,000 in compensatory damages for Count IV, and $1 million in punitive damages for each of Counts I and IV.

4 Except as otherwise indicated, citations to paragraphs in plaintiff's original complaint correspond to the identical paragraphs in plaintiff's amended complaint and vice versa.

5 Actually, in Counts I and II, plaintiff asserts that the alleged false arrest and malicious prosecution for which his § 1983 claim is premised violated his rights under the First, Fourth, Fifth and Fourteenth Amendment. See Compl. ¶ 36. However, the Second Circuit has found that "the Fourth Amendment provides the source of a § 1983 claim premised on a person's arrest." Singer v. Fulton County Sheriff, 63 F.3d 110, 115 (2d Cir. 1995) (footnote omitted).

Burgess moves to dismiss plaintiff's original complaint pursuant to Rule 12(b)(6) for failure to state a claim, arguing that (1) probable cause existed for plaintiff's arrest and subsequent criminal prosecution; (2) Burgess is entitled to qualified immunity; and (3) with regard to plaintiff's pendent state law claims, except malicious prosecution, plaintiff failed to comply with conditions precedent to suit. In a separate motion, state defendants move to dismiss the original complaint pursuant to Rules 12(b)(1) and 12(b)(6), claiming that (1) Eleventh Amendment immunity bars the § 1981 and § 1983 claims for money damages; (2) state defendants do not constitute "persons" subject to suit within the meaning of § 1981 and § 1983; and (3) the complaint fails to allege a viable claim against defendant Jackson.

Background

Plaintiff, a black male student matriculating at CSI, alleges that on October 6, 1999,⁶ he was escorted from class by campus security officers Martinez and Yurman and accused of criminal activity — sexually assaulting Kathleen Tomey ("Tomey"),⁷ a white female college student who plaintiff alleges was his girlfriend. See Compl. ¶¶ 3, 16-18. At CSI, Plaintiff was "fully interrogated" by defendants Martinez and Yurman. Id. ¶ 20. During the interrogation, plaintiff "attempt[ed] to plead his innocence regarding the criminal allegations."Id. Nonetheless, Martinez and Yurman contacted the 122nd Precinct of the NYPD, and plaintiff was subsequently arrested and transported to the precinct. See id. ¶¶ 21-22. While in police custody, plaintiff spoke to Burgess and others, "pleading his innocence and informing them that he was not involved in the alleged criminal activity." Id. ¶ 22. Plaintiff was charged, arraigned and subsequently prosecuted by the District Attorney under Indictment No. 301/99 encaptioned People of the State of New York v. Henry Obilo. See id. ¶¶ 23-24. Plaintiff was acquitted of all charges on or about May 2, 2000, after a jury trial in the Supreme Court of the State of New York, County of Richmond. See id. ¶ 25.

6 Plaintiff's complaint alleges that he was escorted from class and detained by Martinez and Yurman on "October 6, 2001." Compl. ¶ 16 (emphasis added). Based on the time sequence of the other allegations contained in the complaint, it is fairly evident that plaintiff meant to assert that he was escorted from class on October 6, 1999. See Compl. ¶ 21 (alleging plaintiff was arrested on or about October 6, 1999);see also Am. Compl. ¶ 17 (alleging plaintiff was escorted from class on or about October 6, 1999).

7 The parties' submissions to the court contain various spellings of the complaining victim's last name. For purposes of this memorandum, the spelling in plaintiff's complaint will be adopted.

On July 17, 2000,⁸ plaintiff filed a Notice of Claim with the Comptroller of the City of New York. See id. ¶ 26. In the Notice of Claim, plaintiff indicated that the nature of his claim against the City of New York and CUNY was false arrest, unlawful detention, and malicious prosecution in that New York City police officers "fail[ed] to observe proper standards of investigation" when arresting him and, in concert with the District Attorney's office, "wrongfully prosecute[d] him." Notice of Claim ¶ 2. Plaintiff also stated that these alleged crimes were at the "urging" of CUNY and CSI officials.⁹ Id. In addition, plaintiff indicated that his claim arose on or about May 3, 2000 when he was acquitted by a jury. See id. ¶ 3. According to plaintiff, a 50-h hearing was conducted on April 18, 2001, see Compl. ¶ 26, during which plaintiff was orally examined under oath about the occurrence and extent of the injuries presented in his Notice of Claim. See Notice of 50-h hearing, attached to Notice of Claim.

8 In his complaint, plaintiff alleges that he served a Notice of Claim on the Comptroller on July 27, 2000. A review of the Notice of Claim, a copy of which is attached to, inter alia, the Declaration of Conception A. Montoya in support of Burgess' motion to dismiss indicates that it was received by the Comptroller's office on July 17, 2000. See Decl. of Conception A. Montoya ("Montoya Decl."), Ex. G. A copy of the Notice of Claim is also attached to plaintiff's opposition memorandum, but it did not contain the "Received City of New York" stamp indicating the date filed with the Comptroller. See Pl.'s Opp'n, Ex. B ("Notice of Claim"). The Notice of Claim and its contents can properly be considered since it was expressly referred to in paragraph 26 of plaintiff's original and amended complaint. See Brass v. Am. Film Techs., 987 F.2d 142, 150 (2d Cir. 1993) (citing Cortec Indus., Inc v. Sum Holding L.P., 949 F.2d 42, 47-48 (2d Cir. 1991)).

9 Interestingly, plaintiff makes no such discernible allegation in either his original or amended complaint.

Plaintiff filed a timely complaint against all defendants on August 1, 2001. At a February 5, 2002 pre-motion conference, it was ordered that in lieu of permitting Burgess and the state defendants to proceed on their respective motions to dismiss, plaintiff was to file an amended complaint by March 8, 2002. See Tr. at 12-13, Attached to Decl. of Bruce McHale. When plaintiff failed to submit an amended complaint by early May 2002, a briefing schedule was approved for motions directed to the original complaint.

Plaintiff attached an amended complaint to his opposition memorandum dated June 13, 2002. The amended complaint seeks to sue Burgess, Martinez and Yurman in their individual as well as official capacity. Compare Am. Compl. ¶¶ 8, 10-11 with Compl. ¶¶ 9, 11-12. In addition, the amended complaint contains allegations that Jackson "coerced and forced and threatened the plaintiff and in effect disbarred and unlawfully removed the plaintiff as a student of [CSI], even though the plaintiff was duly qualified to be in attendance at [CSI]" in violation of unspecified constitutional rights. Am. Compl. ¶ 37. Count III of the amended complaint appears to assert a claim against Jackson for inadequate training and supervision of campus security officers. See id. ¶¶ 41-47. In all other respects, plaintiff's amended complaint is virtually identical to his original complaint.

To the extent that plaintiff seeks to belatedly introduce the amended complaint, state defendants argue that this request should be denied as futile because the amended complaint is subject to dismissal on the basis that (1) Martinez and Yurman had probable cause to detain plaintiff and/or (2) Martinez and Yurman are entitled to qualified immunity. State defendants do not, however, address the new claims asserted against Jackson. Burgess asserts that the amended complaint should be dismissed for the same reasons he argues with regard to the original complaint. For purposes of the current motions to dismiss, plaintiff's request will be entertained for the limited purpose of analyzing Burgess and state defendants' arguments on their respective motions with respect to the amended complaint to determine whether the amendment is futile.

Discussion Standard of Review

A complaint cannot be dismissed under Rule 12(b)(6) unless "it appears beyond reasonable doubt that the plaintiff can prove no set of facts in support of his claim which entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102 (1957). However, a complaint should be dismissed if an affirmative defense, or other defense barring relief, is apparent from the face of the complaint. See Pani v. Empire Blue Cross Blue Shield, 152 F.3d 67, 74-75 (2d Cir. 1998) (citations omitted). When determining the sufficiency of a plaintiff's claim, "consideration is limited to the factual allegations in [the] complaint, which are accepted as true, to documents attached to the complaint as an exhibit or incorporated in it by reference, to matters of which judicial notice may be taken, or to documents either in [plaintiff's] possession or of which plaintiff had knowledge and relied on in bring suit." Brass, 987 F.2d at 150 (citing Cortec, 949 F.2d at 47-48).

With Burgess' Notice of Motion, he attached a declaration from his lawyer, Conception A. Montaya, to which seven lettered exhibits were attached. These exhibits are as follows: (A) a copy of plaintiff's summons and original complaint; (B) a copy of the incident report filed by Tomey with CSI on October 2, 1999 ("incident report"); (C) a copy of the complaint filed by Tomey with the 122nd Precinct on October 2, 1999 ("police complaint"); (D) a copy of Burgess' complaint follow-up report (commonly referred to as a "DD5") dated October 3, 1999, which contains details about a conversation with Tomey ("October 3, 1999 DD5"); (E) a copy of Burgess' DD5 dated October 6, 1999, which contains details about a conversation with plaintiff ("October 6, 1999 DD5"); (F) a copy of plaintiff's handwritten statement to Burgess dated October 6, 1999 ("plaintiff's statement"); and (G) a copy of plaintiff's Notice of Claim filed with the Comptroller on July 17, 2000.¹⁰ Plaintiff's complaint can obviously be considered as can plaintiff's Notice of Claim because, as indicated above, it was specifically referenced in his original and amended complaint. See Compl. ¶ 26.

10 State defendants have attached to their memorandum an excerpt of the transcript from the February 5, 1999 pre-motion conference, of which judicial notice may be taken. State defendants do not appear to request consideration of documents outside the complaint for purposes of their motion.

Other exhibits may also properly be considered because they too were referenced (albeit implicitly) in plaintiff's complaint and/or are central to plaintiff's allegations.¹¹ First, plaintiff asserts that the allegations against him were of a "conspiratorial nature" and that he was therefore arrested and prosecuted without probable cause. Compl. ¶ 23-24; see also Compl. ¶ 35 (alleging actions were done "without any probable cause"). This is an implicit reference to the incident report and police complaint filed by Tomey, and the October 3, 1999 DD5, all of which set forth her allegations against plaintiff. Accordingly, these exhibits may be considered because they are incorporated by reference in the complaint.

11 In fact, at oral argument, plaintiff's counsel conceded that the exhibits were incorporated in plaintiff's complaint by reference.

Moreover, these documents are "central" to plaintiff's claims. See Adipar Ltd. v. PLD Int'l Co., CV-01-0765, 2002 WL 31740622, at *4 n. 1 (S.D.N.Y. Dec. 6, 2002) (citing Brass, 987 F.2d at 150); see also Cortec, 949 F.2d at 48 (determining that documents not publicly filed, attached to complaint nor incorporated by reference to it could be considered on 12(b)(6) motion because plaintiff did not lack notice of the documents and the documents were integral to its complaint); 5 C. Wright A. Miller, Federal Practice Procedure § 1327, at 489 n. 15 (stating that when "plaintiff fails to introduce a pertinent document as part of his pleading, defendant may introduce the exhibit as part of his motion attacking the pleading"). Indeed, the Second Circuit has indicated that notice to the pleader is the critical element in determining whether extrinsic documents may properly be considered on a motion to dismiss. See Cortec, 949 F.2d at 48. If assertions in plaintiff's complaint are based on allegations of sexual assault by Tomey, it should come as no surprise to plaintiff if the documents that initiated those allegations are considered when determining whether to dismiss plaintiff's claims. Alternatively, at the very least, judicial notice can be taken of the fact that Tomey filed an incident report with CSI and a complaint with the NYPD, both on October 2, 1999, and that Burgess interviewed Tomey on October 3, 1999.

Second, plaintiff asserts that after being accused of sexual assault, he repeatedly proclaimed his innocence and that, while in police custody, he spoke to Burgess and informed the police that he was not involved in the alleged criminal activity. See Compl. ¶¶ 20, 22. Plaintiff also makes vague and generalized allegations about "clear and unequivocal evidence" of the conspiratorial nature of the allegations against him, id. ¶ 23, and "evidence tending to clearly exonerate" him. Id. ¶ 24. It appears that the "evidence" that plaintiff claims exonerates him is, or includes, the report from his conversation with Burgess and his written statement to the police.¹² If so, plaintiff's malicious prosecution claim is based on plaintiff's assertion that certain of the defendants and the state prosecutors rejected this evidence when determining whether to prosecute him. Accordingly, the October 6, 1999 DD5 and plaintiff's handwritten notes can properly be considered. As with consideration of the incident report and police complaint, consideration of these documents should not surprise plaintiff in light on the allegations of his repeated pronouncements of innocence to Martinez, Yurman, Burgess and others.

12 This assumption is supported by plaintiff's opposition memorandum, in which he argues that defendants failed to consider "statements and proofs submitted to the investigating officers." Pl.'s Opp'n, Point II. As plaintiff's opposition memorandum did not contain any page numbers, sections of the memorandum will be referred to by point headings.

Lastly, Burgess also submitted an affidavit in support of his motion to dismiss in which he attests that he testified at neither the grand jury proceedings nor the trial proceedings in the criminal matter underlying plaintiff's lawsuit. See Burgess Aff. ¶¶ 3, 4. However, plaintiff's complaint does not reference his grand jury proceedings, although he does allege that he was indicted (presumably by the grand jury). Accordingly, it would be improper to consider Burgess' affidavit.¹³

13 It should be noted, however, that at oral argument, plaintiff's counsel conceded that Burgess did not testify at trial, although counsel was not certain whether he testified at the grand jury proceedings.

In sum, at the very least the contents of the Notice of Claim can be considered and judicial notice can be taken of the incident report, police complaint and two DD5s completed by Burgess. There is a strong argument that the contents of the incident report, police complaint, two DD5s and plaintiff's handwritten statement can properly be considered as integral to plaintiff's complaint.

Defendant Burgess (1) Individual Capacity Claims

An individual capacity suit seeks to impose personal liability on an official for actions taken under color of state law. In his amended complaint, plaintiff seeks to assert a § 1983 claim for false arrest and malicious prosecution against Burgess, alleged to be an NYPD officer, in his individual capacity. To assert a § 1983 claim, plaintiff must allege that Burgess "acting under color of state law, caused the deprivation of a federal right." Hafer v. Melo, 502 U.S. 21, 25, 112 S.Ct. 358, 362 (1991) (citing Kentucy v. Graham, 473 U.S. 159, 166, 105 S.Ct. 3009, 3105 (1985)). In his complaint, plaintiff alleges that Burgess was acting under color of state law. See Compl. ¶ 15. Therefore, the critical issue is whether plaintiff adequately alleges a claim for false arrest or malicious prosecution against Burgess.

False Arrest

Probable cause to arrest is a complete defense to an action for false arrest, whether the action is brought under state law or § 1983. See Singer, 63 F.3d at 188 (citing Bernard v. United States, 25 F.3d 98, 102 (2d Cir. 1994)); Broughton v. State, 37 N.Y.2d 451, 458, 335 N.E.2d 310, 315, 373 N.Y.S.2d 87, 95 (1975). Burgess maintains that he had probable cause to arrest plaintiff because he relied on (1) Tomey's complaint and her identification of plaintiff, (2) his own observations, which corroborated Tomey's allegations that she was accosted by plaintiff, and (3) information provided by Martinez and Yurman, who were investigating the same complaint.¹⁴ In response, plaintiff argues that Burgess' "exclusive reliance" on Tomey's statements as a basis for probable cause is without merit.

14 Burgess also contends that the fact that the grand jury indicted plaintiff, see Compl. ¶ 24, creates a presumption of probable cause to arrest. Burgess is correct in his recitation of the law; however, the presumption created by plaintiff's indictment applies only to a malicious prosecution action, not a false arrest action. See Broughton v. State, 37 N.Y.2d at 456, 335 N.E.2d at 313, 373 N.Y.S.2d at 93; but see Montes v. King, CV-00-4707, 2002 WL 424318, at *3 (S.D.N.Y. March 19, 2002).

Plaintiff also asserts incorrectly that he does not need to establish probable cause to sustain a viable § 1983 claim and that the "critical element of the tort [sic] of false arrest and malicious prosecution is not whether there was probable cause to effectuate the arrest, but rather whether there was a `reckless disregard'" by defendants for plaintiff's constitutional rights. Pl.'s Opp'n, Point II. Plaintiff then asserts that "malice can be inferred from the fact that the defendant may have acted with reckless disregard for the rights of another party." Id. In support of this position, plaintiff cites two cases from the State of Mississippi. Plaintiff appears to have confused the tort of false arrest with that of malicious prosecution and to have introduced a subjective determination into the analysis of probable cause in the false arrest context.

Under New York law, "neither actual malice nor want of probable cause is an essential element" of an action for false arrest when the arrest is effectuated without a warrant. Broughton, 37 N.Y.2d at 457-58, 335 N.E.2d at 314-15, 373 N.Y.S.2d at 93-94. Thus, with regard to plaintiff's claims under state law, it is Burgess' burden to establish probable cause. However, in the context of § 1983, federal courts have held that the plaintiff bears the burden of establishing the absence of probable cause.See, e.g., Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996); see also Raysor v. Port Auth., 768 F.2d 34, 39-40 (2d Cir. 1985) (noting that the burden of establishing probable cause rests with the plaintiff under § 1983 and the defendant under New York law). In any event, "[p]robable cause consists of such facts and circumstances as would lead a reasonably prudent person in like circumstances to believe the plaintiff guilty," clearly an objective standard. Colon v. City of New York, 60 N.Y.2d 78,82, 455 N.E.2d 1248, 1250, 468 N.Y.S.2d 453, 455 (1983); see also Maryland v. Macon, 472 U.S. 463, 470-71, 105 S.Ct. 2778, 2782-83 (1985); Lee v. Sandberg, 136 F.3d 94, 103, n. 5 (2d Cir. 1997); 1 LaFave and Israel, Criminal Procedure § 3.3, at 188 (stating the probable cause test is "an objective one"). Thus, the crucial issue is whether the facts in Burgess' possession at the time he arrested plaintiff were sufficient to establish probable case for the arrest and not whether he acted in "reckless disregard" given the facts at hand. Burgess contends that probable cause is established by the allegations in plaintiff's complaint and the supporting documents.

"In general, probable cause exists when the officers have knowledge or reasonably trustworthy information of facts and circumstances that are sufficient to warrant a person of reasonable caution in the belief that the person to be arrested has committed or is committing a crime."Weyant, 101 F.3d at 852. Moreover, "a finding of probable cause can be made based on the `totality of the circumstances.'" Bernard, 25 F.3d at 102 (quoting Ill. v. Gates, 462 U.S. 213, 230, 103 S.Ct. 2317, 2328 (1982)). In evaluating probable cause to arrest, the court should consider the information available to the arresting officer at the time of arrest. See Peterson v. County of Nassau, 995 F. Supp. 305, 313 (E.D.N.Y. 1998) (citing Anderson v. Creighton, 483 U.S. 635, 641, 107 S.Ct. 3034, 3040 (1987)).

In this case, Burgess relied on several factors in reaching probable cause to arrest plaintiff. First, Burgess relied on information provided by the security officers at CSI, including Martinez and Yurman, who were investigating the same complaint filed by Tomey in a CSI incident report. Plaintiff's complaint establishes that, as part of Martinez and Yurman's investigation, they "fully interrogated" plaintiff before contacting the NYPD. To establish probable cause to effect an arrest, officers are allowed to rely on information provided to them by fellow officers. See Bernard, 25 F.3d at 102-03; see also Martinez v. Simonetti, 202 F.3d 625, 634 (2d Cir. 2000) (citing Bernard, 25 F.3d at 102-03). Even if the information relied upon turns out to be false, there is still probable cause to arrest if the arresting officer acted reasonably and in good faith in relying on the information. See Bernard, 25 F.3d at 102-03 (citing Colon, 60 N.Y.2d at 82, 455 N.E.2d at 1250, 468 N.Y.S.2d at 455). Here, Burgess investigated Tomey's complaint after she filed an incident report at CSI and after CSI investigated the same complaint. Plaintiff's complaint asserts no viable challenge to Martinez and Yurman's investigation. Thus, Burgess had every right to rely on the CSI investigation in establishing probable cause to arrest plaintiff.

Second, Burgess interviewed the complainant, Tomey, one day after she filed her police complaint.¹⁵ See October 3, 1999 DD5. It is well-established law in the Second Circuit that "[a]n arresting officer advised of a crime by a person who claims to be the victim, and who has signed a complaint . . . charging someone with the crime, has probable cause to effect an arrest absent circumstances that raise doubts as to the victim's veracity." Singer, 63 F.3d at 199; accord Mistretta v. Prokesch, 5 F. Supp.2d 128, 133 (E.D.N.Y. 1998); Miloslavsky v. AES Eng'g Soc'y, Inc., 808 F. Supp. 351, 355 (S.D.N.Y. 1992), aff'd without opinion, 993 F.2d 1534 (2d Cir. 1993). In addition, "the veracity of citizen complaints who are the victims of the very crimes they report to the police is assumed." Lee, 136 F.3d at 103 (quoting Miloslavsky, 808 F. Supp. at 355)); see also 2 Wayne LaFave, Search and Seizure, § 3.4(a), at 205 (noting that the Supreme Court has "proceeded as if veracity may be assumed when information comes from the victim of . . . criminal activity"). In this case, the veracity of Tomey's complaint was bolstered when, during Burgess' interview of Tomey, he observed bruises on her left and right arms that were consistent with her allegations that plaintiff physically accosted her. See October 3, 1999 DD5. Moreover, Tomey identified plaintiff in person as her assailant. See October 6, 1999 DD5.

15 Burgess also emphasizes that he conducted an interview of plaintiff, an action that he maintains further supports his claim of probable cause to effectuate plaintiff's arrest. However, plaintiff's complaint appears to allege that plaintiff was interviewed by Burgess after being arrested. See Compl. ¶ 22 ("Plaintiff, after being arrested by Police Officers from the 122nd Precinct, the plaintiff [sic] was transported to the 122nd Precinct. While in custody of the arresting officers the plaintiff spoke to Police Officer/Detective Burgess. . . .") (emphasis added). For purposes of this motion, plaintiff's version of the events will be credited and it will be assumed that Burgess' interview of plaintiff occurred after plaintiff's arrest.

While plaintiff alleges that Tomey was his girlfriend, his complaint is devoid of any allegations that Tomey was an incredible complainant. C.f. Mistretta, 5 F. Supp.2d at 133 ("The most common situation in which [doubts as to veracity] arise is when there exists a prior relationship between the victim and the accused that gives rise to a motive for a false accusation."). In fact, all plaintiff appears to assert is that he was arrested despite his repeated protestations of innocence. See Compl. ¶¶ 20 (alleging Martinez and Yurman contacted police despite plaintiff's proclamations of innocence), 22 (alleging Burgess detained, charged and arraigned plaintiff despite his pronouncements of innocence). In his opposition papers, plaintiff also asserts that all defendants in this case failed to investigate further the allegations of sexual abuse before arresting plaintiff.¹⁶ See Pl.'s Opp'n, Point II. However, the Second Circuit has rejected the argument that conflicting accounts from an alleged victim and an arrestee should have prompted a more thorough investigation by police. Indeed, a finding of probable cause is not foreclosed where a police officer is presented with different stories from an alleged victim and an arrestee. See Curley v. Village of Suffern, 268 F.3d 65, 70 (2d Cir. 2001) (citing Singer, 63 F.3d at 113, 119); Ricciuti v. New York City Transit Auth., 124 F.3d 123, 128 (2d Cir. 1997). In any event, despite plaintiff's assertion, Burgess did not merely rely on Tomey's complaint and identification of plaintiff; he also relied on CSI's investigation and his own observations which corroborated Tomey's allegations.

16 To the extent that plaintiff maintains that his allegations regarding Burgess, Martinez and Yurman's respective "failure to investigate" Tomey's allegations set forth an independent claim, plaintiff is mistaken. Instead,

allegations of an officer's failure to investigate are considered under the rubric of false imprisonment, false arrest, or malicious prosecution. See Mistretta, 5 F. Supp.2d at 135 (allegations of an officer's failure to investigate exculpatory statements prior to arrest addressed in the context of a false arrest claim); Dukes v. City of New York, 879 F. Supp. 335, 343 (S.D.N.Y. 1995) (allegations of an officer's failure to interview witnesses and discover addition [sic] evidence addressed in context of a malicious prosecution claim).

Campbell v. Guliani, et al., CV-99-2603, 2000 U.S. Dist. LEXIS 1617, at *11, n. 6 (E.D.N.Y. Feb. 16, 2000); c.f. Stone v. Dept. of Investigation of New York, CV-91-2471, 1992 WL 25202, at *2 (S.D.N.Y. Feb. 4, 1992) ("There is . . . no constitutional right to an investigation by government officials.") (citations omitted).

Moreover, "[o]nce a police officer has a reasonable basis for believing there is probable cause, he is not required to explore and eliminate every theoretically plausible claim of innocence before making an arrest." Ricciuti, 124 F.3d at 128 (finding probable cause even though police officer chose to believe claimed victim's version of a fight based on visible injuries, notwithstanding the alleged assailants cries of innocence); see also Curley, 268 F.3d at 70 ("Although it would have been better procedure for the arresting officers to investigate plaintiff's version of events more completely, the arresting officer does not have to prove plaintiff's version wrong before arresting him.") (citing Krause v. Bennett, 887 F.2d 363, 373 (2d Cir. 1989)); Mistretta, 5 F. Supp.2d at 135 ("[Law enforcement officers] have no duty to investigate an exculpatory statement of the accused, and their refusal to do so does not defeat probable cause.") (citations omitted).

Thus, even if plaintiff can prove that he furnished exculpatory statements to the police, a finding of probable cause is not foreclosed. In fact, to take plaintiff's assertions one step further, even if plaintiff can establish that an investigation might have cast doubt upon the basis of his arrest, probable cause can still be established. See Curley, 268 F.3d at 70 (citing Krause, 887 F.2d at 371). Indeed, the Second Circuit has found that "[b]efore making an arrest, if the arresting officer has probable cause, he need not also believe with certainty that the arrestee will be successfully prosecuted." Id. Thus, considering the totality of the circumstances, plaintiff has not shown why Burgess had reason to doubt the veracity of Tomey or discredit the investigation by CSI in formulating a probable cause determination. Therefore, Burgess had probable cause to effectuate plaintiff's arrest. Accordingly, plaintiff's proposed § 1983 false arrest claim against Burgess in his individual capacity would be subject to dismissal and is denied as futile.

As an alternative, Burgess maintains that he is entitled to qualified immunity.¹⁷ The doctrine of qualified immunity protects police officers from being subject to personal liability in cases where official conduct "does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Ricciuti, 124 F.3d at 127. The right not to be arrested without probable cause is a clearly established right. See Lee, 136 F.3d at 102. Thus, the critical issue is whether Burgess' probable cause determination was objectively reasonable. See Lennon v. Miller, 66 F.3d 416, 422 (2d Cir. 1995) ("[I]n qualified immunity cases, we are not concerned with the correctness of the defendant's conduct, but rather the `objective reasonableness' of their chosen course of action given the circumstances confronting them at the scene.").

17 In his memorandum, it appears that Burgess is asserting qualified immunity as a defense to plaintiff's claims against him in his official capacity. However, the Second Circuit has stated that "[t]he defense of qualified immunity protects only individual defendants sued in their individual capacity. . . ." Ford v. Reynolds, CV-01-9200, 2003 WL 132977, at *4 (2d Cir. Jan. 17, 2003). Therefore, the qualified immunity defense will be considered only in the context of plaintiff's claims against Burgess in his individual capacity. In his opposition memorandum, plaintiff does not address Burgess' claim that he is entitled to qualified immunity other than a simple argument that all defendants carry the burden of showing that absolute immunity is justified in this case. See Pl.'s Opp'n, Point III. While plaintiff is correct that Burgess must establish the defense of immunity, see Lee, 136 F.3d at 101, Burgess is seeking qualified immunity, which Burgess maintains is established in this case.

In the Second Circuit, even when there is no probable cause to arrest, a police officer is immune from a false arrest claim "`if either (a) it was objectively reasonable for the officer to believe that probable cause existed, or (b) officers of reasonable competence could disagree on whether the probable cause test was met.'" Lee, 136 F.3d at 102 (quotingGolino v. City of New Haven, 950 F.2d 864, 870 (2d Cir. 1991)); accord Posr v. Court Officer Shield #207, 180 F.3d 409, 416 (2d Cir. 1999) (same). In other words, "[i]n an unlawful arrest action, an officer is immune if he has `arguable probable cause,' and is subject to suit only if his `judgment was so flawed that no reasonable officer would have made a similar choice.'" Provost v. City of Newburgh, 262 F.3d 146, 169 (2d Cir. 2001) (quoting Lee, 136 F.3d at 103; Lennon, 66 F.3d at 425, respectively).

Lastly, it should be noted that the qualified immunity entitlement is an "immunity from suit rather than a mere defense to liability; and . . . is effectively lost if the case is erroneously permitted to go to trial." Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 2815-16 (1985). Thus, to satisfy the goal of the doctrine, it is necessary that qualified immunity questions be resolved at the earliest possible stage of litigation. See Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 2156 (2001) (quoting Hunter v. Bryant, 502 U.S. 224, 227, 112 S.Ct. 534, 536 (1991) (per curiam)).

Even if plaintiff's arrest and prosecution were without actual probable cause, Burgess' decision to arrest and criminally charge plaintiff was objectively reasonable under the circumstances of this case. As noted above, the Second Circuit allows police officers, in making a probable cause determination, to rely on a victim's allegations that a crime has been committed. See Singer, 63 F.3d at 119. Moreover, police officers can rely on information supplied by fellow officers, even if that information ultimately turns out to be false. See Bernard, 25 F.3d at 102-03. Lastly, it is not unreasonable for police officers to rely on accounts provided by a victim or officer, even when an arrestee proclaims his innocence. See Curley, 268 F.3d at 70 (victim); Ricciuti, 124 F.3d at 128 (officer). The complaint in this case contains no allegations that undermine the veracity of the CSI officers or that allege that the CSI investigation was implausible. In addition, other than the mere allegation that Tomey was plaintiff's girlfriend, the complaint also lacks assertions that undermine the victim's credibility. Accordingly, even if there is no actual probable cause in this case, there certainly is "arguable" probable cause that entitles Burgess to qualified immunity. Thus, plaintiff's proposed § 1983 claim for false arrest against Burgess in his individual capacity would be subject to dismissal on this alternative ground. Consequently, plaintiff's request to submit an amended complaint containing such allegations is denied as futile.

Malicious Prosecution

Malicious prosecution claims brought under § 1983 are guided by the tort law of the forum state. See Russell v. Smith, 68 F.3d 33, 36 (2d Cir. 1995); Singer, 63 F.3d at 118. To state a claim for malicious prosecution under New York law, plaintiff must allege that: "(1) [defendants] initiated a prosecution against plaintiff, (2) without probable cause to believe the proceeding can succeed, (3) the proceeding was begun with malice, and (4) the matter terminated in plaintiff's favor." Ricciuti, 124 F.3d at 130 (citing O'Brien v. Alexander, 101 F.3d 1479, 1484 (2d Cir. 1996)). Accordingly, a finding of probable cause defeats a malicious prosecution claim. See Moore v. Comesanas, 32 F.2d 670, 673 (2d Cir. 1994). Probable cause to arrest is sufficient for probable cause to prosecute unless facts come to light between the arrest and arraignment that vitiate the probable cause. See Carson v. Lewis, 35 F. Supp.2d 250, 263 (E.D.N.Y. 1999) (citing Dukes v. City of New York, 879 F. Supp. 335, 342 (S.D.N.Y. 1995)); see also Dimascio v. City of Albany, 205 F.3d 1322 (2d Cir. 2000) (table). Burgess argues that since the facts at plaintiff's arraignment were based on the facts known at the time of his arrest, probable cause existed for both the arrest and the prosecution of plaintiff. In response, plaintiff makes only vague and general allegations that a prosecution was begun despite evidence given to the NYPD and Burgess before plaintiff's arrest, and allegedly in the District Attorney's possession, that exonerated plaintiff. See Compl. ¶¶ 23, 24. These allegations do not suffice to demonstrate that new evidence came to light after plaintiff's arrest that undermined the probable cause for his arrest.

Moreover, once a suspect has been indicted, there is a strong presumption of probable cause for purposes of defending against a malicious prosecution claim. See Green v. Montgomery, 219 F.3d 52, 60 (2d Cir. 2000) (citing Marshall v. Sullivan, 105 F.3d 47, 50 (2d Cir. 1996)); Colon, 60 N.Y.2d at 82, 455 N.E.2d at 1250, 468 N.Y.S.2d at 455 (citations omitted). Plaintiff's complaint establishes that he was indicted. See Compl. ¶ 24. Therefore, to overcome this presumption, plaintiff must allege that "the indictment was produced by fraud, perjury, the suppression of evidence or other police conduct undertaken in bad faith." Colon, 60 N.Y.2d at 83, 455 N.E.2d at 1251, 468 N.Y.S.2d at 456; accord Marshall, 105 F.2d at 50; Bernard, 25 F.3d at 104. Plaintiff's complaint contains no allegations of fraud, perjury or suppression of evidence.¹⁸

18 Burgess argues that plaintiff cannot in fact support an allegation of fraud, perjury or suppression of evidence as to him since he did not testify before the grand jury that indicted plaintiff. However, as noted above, this fact, which was attested to in Burgess' affidavit, is not properly before this court and, therefore, will not be considered for purposes of this motion.

The only assertion of "bad faith" that can be gleaned from plaintiff's complaint is that the allegations against him were of a "conspiratorial nature." Compl. ¶¶ 23, 24. However, plaintiff's proclamations of conspiracy amount to nothing more than generalized accusations. To be sure, plaintiff's complaint merely asserts that certain defendants disregarded information supplied by plaintiff apparently demonstrating the "conspiratorial nature" of the allegations lodged against him. Id. In his opposition memorandum, plaintiff attempts to flesh out these allegations with an argument that police misconduct can be inferred from the fact that the jury acquitted plaintiff, despite Tomey's testimony at trial. See Pl.'s Opp'n, Point II. Plaintiff appears to be asserting that Burgess acted in bad faith by relying for purposes of probable cause on Tomey's allegations, which, because plaintiff was ultimately acquitted, plaintiff argues were patently false. See Pl.'s Opp'n, Point II (arguing that "the defendants unreasonably sided with the complainant. . . ."). Plaintiff's argument is unpersuasive and contrary to law.

As noted above, Burgess was not required to investigate plaintiff's protestations of innocence. See Ricciuti, 124 F.3d at 128. Indeed, an officer is not required to play judge or jury with conflicting evidence presented to him at the time of an arrest. See Curley, 268 F.3d at 70 (citing Krause, 887 F.2d at 371). Moreover, an arrestee's ultimate guilt or innocence is irrelevant to the determination of probable cause. See United States v. Patrick, 899 F.2d 169, 171 (2d Cir. 1990); Miloslavsky, 808 F. Supp. at 354 (citations omitted). Thus, the fact that plaintiff was ultimately found not guilty has no effect on the fact that there was probable cause to arrest him and bring him before a grand jury. Therefore, plaintiff's vague allegations of conspiracy and exculpatory evidence are insufficient to defeat the strong presumption of probable cause created by his indictment.¹⁹ Accordingly, as plaintiff's amended complaint fails to adequately allege that Burgess' did not have probable cause to prosecute him, plaintiff's proposed § 1983 claim of malicious prosecution is subject to dismissal as to Burgess.

19 Moreover, to the extent that plaintiff's conspiracy allegations attempt to assert a separate § 1983 claim, such allegations fail. A conspiracy is actionable under § 1983 only if plaintiff can prove an actual violation of constitutional rights. Since there was probable cause to arrest and prosecute plaintiff, plaintiff cannot prove an actual violation of his constitutional rights as to Burgess. See Singer, 63 F.3d at 119-20. Moreover, assuming arguendo that the complaint establishes a violation of plaintiff's constitutional rights, a complaint "containing only conclusory, vague or general allegations of conspiracy to deprive a person of constitutional rights cannot withstand a motion to dismiss."Sommer v. Dixon, 709 F.2d 173, 175 (2d Cir. 1983) (per curiam). Thus, plaintiff's conspiracy claim is dismissed as to Burgess because plaintiff's complaint cannot support a violation of his constitutional rights, and, even if it could, the complaint contains no specific allegations to support his claim of conspiracy.

Lastly, in a § 1983 claim for malicious prosecution, "the Court applies the same standard used to evaluate qualified immunity in the false arrest context." Hardin v. Meridien Foods, CV-98-2268, 2001 WL 1150344, at *5 (S.D.N.Y. Sept. 27, 2001) (citing Lennon, 66 F.3d at 425). Thus, for the reasons stated above, even if Burgess did not have actual probable cause to prosecute plaintiff, he had arguable probable cause. Accordingly, like plaintiff's proposed § 1983 false arrest claim, plaintiff's proposed § 1983 malicious prosecution claim against Burgess in his individual capacity is denied as futile.

§ 1981 ²⁰

20 In his motion to dismiss, Burgess does not address plaintiff's § 1981 claim.

Count I of plaintiff's amended complaint appears to allege a § 1981 claim against Burgess.²¹ Section 1981 "prohibits discrimination that infects the legal process in ways that prevent one from enforcing contract rights, by reason of his or her race, [and it] covers . . . efforts to impede access to the courts or obstruct nonjudicial methods of adjudicating disputes about the force of binding obligations." Mian v. Donaldson, Lufkin Jenrett Sec. Corp., 7 F.3d 1085, 1087 (2d Cir. 1993). To state a claim under § 1981, plaintiff must allege: (1) that he is a member of a racial minority; (2) that Burgess had an intent to discriminate against him on the basis of race; and (3) that the discrimination concerned one or more of the activities enumerated in the statute, namely make and enforce contracts, sue and be sued, give evidence, etc. See Mian, 7. F.3d at 1087.

21 Plaintiff also asserts a violation of his rights under the Ninth and Thirteenth Amendments. The Ninth Amendment, which concerns unenumerated rights, and the Thirteenth Amendment, which concerns slavery and involuntary servitude, are inapplicable to this case. Accordingly, these claims are dismissed. See Campbell, 2000 U.S. Dist. Lexis 1617, at *17 (dismissing claims premised on Ninth and Thirteenth Amendment as inapplicable in case involving claims of false arrest and malicious prosecution under § 1981 and § 1983).

To sustain a motion to dismiss, plaintiff's complaint must assert "that the defendant['s] acts were purposefully discriminatory . . . and racially motivated." Albert v. Caravano, 851 F.2d 561, 571-72 (2d Cir. 1988) (en banc). Plaintiff cannot defeat a Rule 12(b)(6) motion with "naked assertions" of discrimination; instead "the plaintiff must specifically allege the events claimed to constitute intentional discrimination as well as circumstances giving rise to a plausible inference of racially discriminatory intent." Yusuf v. Vassar College, 35 F.3d 709, 713-14 (2d Cir. 1994) (internal citations omitted).

Plaintiff's complaint establishes that he is black and that Tomey, the complainant, is white. See Compl. ¶¶ 19, 29. Plaintiff also alleges, "on information and belief" that some of the defendant police officers and/or CSI campus security officers also are white. Id. ¶ 29. While plaintiff's amended complaint asserts that Burgess and other police officers "turned a deaf ear on the repeated pleas [of innocence] of the plaintiff, solely because the complainant was a white female and because the plaintiff . . . was Black," Am. Compl. ¶ 22, these bald allegations are insufficient to establish racially discriminatory intent under § 1981. See Yusuf, 35 F.3d at 713-14. Even if these allegations could establish such intent, plaintiff's complaint is devoid of any allegations that Burgess or any other police officers prevented plaintiff from enforcing or pursuing judicial enforcement of any rights, contractual or otherwise. Accordingly, to the extent plaintiff's amended complaint seeks to assert a § 1981 claim against Burgess in his individual capacity, it fails to state a viable claim and is dismissed as futile.

Pendent State Law Claims

Since none of plaintiff's federal law claims against Burgess in his individual capacity survive a motion to dismiss, this court declines to exercise pendent jurisdiction over the state law claims asserted against Burgess and the unnamed police officers in Count IV of plaintiff's original and amended complaint. See United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 1139 (1966) (stating that if all of plaintiff's "federal claims are dismissed before trial . . . the state claims should be dismissed as well."); Tops Markets, Inc. v. Quality Markets, Inc., 142 F.3d 90, 103 (2d Cir. 1998) (stating that since all of plaintiff's federal claims fail, "the balance of factors . . . favors declining to exercise pendent jurisdiction over remaining state law claims and dismissing them without prejudice") (citing Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350, 108 S.Ct. 614, 619 (1988)). Consequently, the issue of whether plaintiff's state law tort claims were instituted in accordance with the Notice of Claim requirements under New York General Municipal Law will not be addressed.

(2) Official Capacity Claims

In both his original and amended complaint, plaintiff asserts claims under § 1981 and § 1983 against Burgess in his official capacity as a police officer with the NYPD. See Compl. ¶ 9; Am. Compl. ¶ 8. A suit against an officer is his official capacity is essentially a suit against the government entity itself. See Monell v. Dept. of Social Servs., 436 U.S. 658, 691, n. 55, 98 S.Ct. 2018, 2036, n. 55 (1978). Accordingly, plaintiff's claim against Burgess in his official capacity is basically a claim against the City of New York. To establish municipal liability, plaintiff must allege that a municipal custom or policy resulted in a deprivation of plaintiff's constitutional rights. See id. at 690-91, 98 S.Ct. at 2035-36. "The inference that such a policy existed may arise from `circumstantial proof, such as evidence that the municipality so failed to train its employees as to display a deliberate indifference to the constitutional rights of those within its jurisdiction.'" Dwares v. City of New York, 985 F.2d 94, 100 (2d Cir. 1993) (quoting Ricciuti, 941 F.2d at 123).

While Count III of plaintiff's initial complaint contained numerous allegations of municipal liability against the City of New York and the NYPD relating to the conduct of defendant police officers, at this court's urging, those allegations were withdrawn and do not appear in plaintiff's amended complaint.²² The only discernible allegations of municipal liability in plaintiff's amended complaint are bald claims against the City of New York and "City of Staten Island" of failure to "properly train, supervise and discipline its officers to avoid the use of unnecessary force, to refrain from acting without racial animus, to avoid the arbitrary stop and harassment of law-abiding black persons without probable cause." Am. Compl. ¶¶ 30 (City of New York), 32 (Staten Island). In addition, plaintiff asserts that the City of New York and its Executive Department and the NYPD, among others, failed to investigate the conduct of defendant police officers and to discipline defendants for their conduct. See id. ¶¶ 31 (discipline), 32 34 (investigate). Notably, plaintiff's complaint lacks any allegations of deliberate indifference to plaintiff's rights. Thus, these conclusory allegations are insufficient to establish a municipal policy or custom.

22 Plaintiff's amended complaint does, however, contains such allegations against Jackson relating to the conduct of CSI campus security officers. These claims are discussed infra in the context of plaintiff's claims against Jackson in her individual capacity.

Even if plaintiff's conclusory allegations could suffice to allege a municipal policy or custom, "a claim of inadequate training and supervision under § 1983 cannot be made out against a supervisory body without a finding of a constitutional violation by the persons supervised." Ricciuti, 941 F.2d at 132 (citing City of Los Angeles v. Heller, 475 U.S. 796, 799, 106 S.Ct. 1571, 1573 (1986)). In this case, Burgess has established that he had probable cause to arrest plaintiff and that, if he did not, he at least was objectively reasonable in his determination of probable cause and thus entitled to qualified immunity. Consequently, since plaintiff cannot sustain a claim for constitutional deprivation by Burgess, plaintiff's claim of municipal liability also fails.

Accordingly, since the allegations against Burgess are premised on allegations of personal liability, the claims against Burgess in his official capacity are dismissed. See Campbell, 2000 U.S. Dist. LEXIS 1617, at *4-5 (dismissing claims of false arrest and malicious prosecution brought against NYPD detective in his official capacity because such claims were based on allegations of personal liability and not on a government entity's official policy or custom).

State Defendants

State defendants maintain that they are immune from suit under the Eleventh Amendment and have moved to dismiss plaintiff's complaint under Rule 12(b)(1) for lack of jurisdiction. Plaintiff argues that this assertion is "without merit and really begs the question." Pl.'s Opp'n, Point III. "[C]ourts must police subject matter delineations on their own initiative." Preston v. New York, 223 F. Supp.2d 452, 461 (S.D.N.Y. 2002) (citing, inter alia, Fed.R.Civ.P. 12(h)). Thus, when considering a motion to dismiss pursuant to Rule 12(b)(1), a court is required to resolve disputed jurisdictional facts. See Cargill Int'l S.A. v. M/T Pavel Dybenko, 991 F.2d 1012, 1019 (2d Cir. 1993); see also Ruhrgas A.G. v. Marathon Oil Co., 526 U.S. 574, 583-84, 119 S.Ct. 1563, 1569-70 (1999). When doing so, the court may reference evidence outside the pleadings,see Zappia Middle East Constr. Co. v. Emirate of Abu Dhabi, 215 F.3d 247, 253 (2d Cir. 2000), and the court is not required to draw inferences in favor of the plaintiff. See Newsom-Lang v. Warren Int'l, 129 F. Supp.2d 662, 663-64 (S.D.N.Y. 2001). As the party "seeking to invoke the subject matter jurisdiction of the district court," plaintiff bears the burden of demonstrating that there is subject matter jurisdiction in this case. Scelsa v. City Univ. of New York, 76 F.3d 37, 40 (2d Cir. 1996) (citations omitted).

Defendants CUNY and CSI

It is well settled that the Eleventh Amendment bars suits for any kind of relief brought in federal court by a private individual against a state or its agencies in the absence of Congress' explicit abrogation of the state's sovereign immunity or the state's unequivocal waiver of its immunity.²³ See, e.g., Bd. of Trustees v. Garrett, 531 U.S. 356, 363-64, 121 S.Ct. 955, 962 (2001); Graham, 473 U.S. at 169, 105 S.Ct. at 3107; Pennhurst State Sch. Hosp. v. Halderman, 465 U.S. 89, 97-100, 104 S.Ct. 900, 906-908 (1984). The State of New York and its agencies have not consented to suit in federal court. See Trotman v. Palisades Interstate Park Comm'n, 557 F.2d 35, 38-40 (2d Cir. 1977). Moreover, neither § 1981 nor § 1983 validly abrogates a state's sovereign immunity.²⁴ See Quern v. Jordan, 440 U.S. 332, 343-45, 99 S.Ct. 1139, 1146-47 (1979); see also Chinn v. City Univ. of New York, 963 F. Supp. 218, 224 n. 1 (1997) (§ 1981); Trotman, 557 F.2d at 38 (§ 1983).

23 The Eleventh Amendment to the U.S. Constitution reads as follows: "The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." U.S. Const. amend. XI.

24 For this reason, while plaintiff is correct in his assertion that Congress may authorize suits against non-consenting states through its enforcement powers under § 5 of the Fourteenth Amendment, such argument is inapplicable in this context. See Pl.'s Opp'n, Point IV (citing Fitzpatrick v. Bitzes, 427 U.S. 445, 456 (1976); Scheur v. Rhodes, 416 U.S. 232 (1974)).

An entity like CUNY,²⁵ which is not a state agency, is nevertheless entitled to immunity if it is an "arm of the state." Rosa R. v. Connelly, 889 F.2d 435, 437 (1989) (considering whether local school board was "arm of the state and thus entitled to Eleventh Amendment protection from suit in federal court"); accord Pikulin v. City Univ. of New York, 176 F.3d 598, 600 (2d Cir. 1999) (per curiam) (quoting Rosa R., 889 F.2d at 437).

25 As noted earlier, CUNY is considered to include "each senior college and each community college." N.Y. Educ. Law § 6202(2). CSI is specifically referred to in the statute as a "senior college." Id. § 6202(5); see also Weinbaum v. Cuomo, 219 A.D.2d 554, 555, n*, 631 N.Y.S.2d 825, 826, n* (1st Dep't 1995) (finding CSI a CUNY senior college).

In Pikulin, a case involving a CUNY community college, the Second Circuit vacated and remanded the district court decision based on a line of cases that found CUNY and/or its senior colleges arms of the state for purposes of Eleventh Amendment immunity.²⁶ See 176 F.3d at 600-01. These cases relied on the State of New York's obligation, under New York Education Law § 6205(1),²⁷ to indemnify CUNY's trustees, officers, and staff against liability. See, e.g., Burrell, 995 F. Supp. at 411; Moche, 781 F. Supp. at 165; Minetos, 875 F. Supp. at 1053;Scelsa, 806 F. Supp. at 1137. The court criticized exclusive reliance on the indemnification provisions of § 6205(1) as inadequate, noting that the provision "requires the state to indemnify only such individuals affiliated with CUNY and does not address the state's financial responsibility, if any, to satisfy judgment entered against CUNY itself."Pikulin, 176 F.3d at 600. Instead, the court stated that when determining whether an institution is an arm of the state entitled to Eleventh Amendment immunity,

26 See Burrell v. City Univ. of New York, 995 F. Supp. 398, 410-11 (S.D.N.Y. 1998); Minetos v. City Univ. of New York, 875 F. Supp. 1046, 1053 (S.D.N.Y. 1995); Moche v. City Univ. of New York, 781 F. Supp. 160, 165 (E.D.N.Y. 1992); Scelsa v. City Univ. of New York, 806 F. Supp. 1126, 1137 (S.D.N.Y. 1992); Silver v. City Univ. of New York, 767 F. Supp. 494, 499 (S.D.N.Y. 1991); Ritzie v. City Univ. of New York, 703 F. Supp. 271, 276-77 (S.D.N.Y. 1989).

27 That section of the New York Education Law provides as follows:

§ 6205. Liability of board of trustees and liability of city university of New York.

1. The state shall save harmless and indemnify members of the board of trustees and any duly appointed member of the teaching or supervising staff, officer or employee of the senior colleges under the jurisdiction of such board pursuant to section seventeen of the public officers law against any claim, demand, suit or judgment arising by reason of any act or omission to act by such person occurring in the discharge of its duties and within the scope of his service on behalf of such university.

N.Y. Educ. Law § 6205(1).

[t]he appropriate analysis focuses both on the extent to which the state would be responsible for satisfying the judgment that might be entered against the defendant entity, see [Rosa R., 889 F.2d] at 437-38; [Trotman, 557 F.2d at 38], and on the degree of supervision exercised by the state over the defendant entity. See Rosa R., 889 F.2d at 437.

Id. at 600.

The distinction between this case and Pikulin is that this case involves a CUNY senior college, while Pikulin involved a CUNY community college. This distinction is important because senior colleges enjoy a different relationship with the state than do community colleges.Compare N.Y. Educ. Law §§ 6244(1) and 6229 with N.Y. Educ. Law §§ 6224(4) and 6230; see also Hester-Bey v. New York City Tech. Coll., CV-98-5129, 2000 WL 488484, at *3-4 (E.D.N.Y Mar. 22, 2000) (describing differences in the New York Education Law between CUNY senior colleges and community colleges). Accordingly, in the post-Pikulin era, courts ruling on the immunity status of CUNY and its senior colleges have distinguished the holding in Pikulin and have found the colleges to be arms of the state and thereby immune from suit. See, e.g., Sacay v. Research Found. of the City Univ. of New York, 193 F. Supp.2d 611, 624-25 (E.D.N.Y. 2002); Salerno v. City Univ. of New York, CV-99-11151, 2000 WL 1277324, at *2-4 (S.D.N.Y. Sept. 8, 2000), vacated in part on reconsideration on other grounds, CV-99-11151, 2002 WL 31856953 (S.D.N.Y. Dec. 19, 2002); Becker v. City Univ. of New York, 94 F. Supp.2d 487, 489 (S.D.N.Y. 2000); Hester-Bey, 2000 WL 488484, at *2-4.

With regard to the first Pikulin analysis, "senior colleges of CUNY are both funded and administered by the state to a great degree."Hester-Bey, 2000 WL 488484, at *4. Indeed, the New York Education Law specifically provides for the state's payment of money judgments entered against CUNY senior colleges:

Notwithstanding any inconsistent provisions of law, with respect to claims against the city university which arise on or after July first, nineteen hundred seventy-nine, the comptroller of the state of New York is authorized to examine, audit, certify for payment and pay from funding sources available for payment of claims by the state any settlement, order or judgement in any federal or state court, other than the court of claims, or any administrative tribunal which pertains to a senior college of the city university of New York.

N.Y. Educ. Law § 6224(6); see Perry v. City of New York, 126 A.D.2d 714, 714, 511 N.Y.S.2d 310, 310 (2nd Dept. 1987) (finding state responsible for paying money judgments against CUNY senior colleges); see also Becker, 94 F. Supp.2d at 489; Hester-Bey, 2000 WL 488484, at *2-3. Moreover, the state court of claims, which hears claims against the State New York and its agencies, has exclusive jurisdiction over claims brought by any person against CUNY and its senior colleges for wrongful death, breach of contract and in tort. See N.Y. Educ. Law § 6224(4); see also id. § 6224(5) (providing for state's payment of judgments entered against CUNY in state court of claims); Hester-Bey, 2000 WL 488484, at *4. In addition, the state has ultimate responsibility for funding the budget of CUNY senior colleges. Indeed, § 6221(A)(4) provides for the state's reimbursement of CUNY senior college's net operating expenses. See N.Y. Educ. Law § 6221(A)(4); see also id. § 6201(1).

In his opposition memorandum, plaintiff cites § 6201(1) of the New York Education Law in support of his contention that CUNY is not an arm of the state for Eleventh Amendment purposes. See Pl.'s Opp'n, Point IV. This provision, which sets forth legislative findings and intent, states in relevant part: "[I]n order to meet the state's responsibility to provide post-secondary education in New York city beyond the associate degree level, as it does elsewhere in the state, there should be full state funding of senior college operating and debt service." N.Y. Educ. Law § 6201(1) (emphasis added). Contrary to plaintiff's assertion, this provision actually strengthens the argument that the state has assumed financial responsibility for CUNY. See Becker, 94 F. Supp.2d at 490 (relying on, inter alia, § 6201 as support for finding that the state would pay a judgment against a CUNY senior college). Accordingly, "it is clear that any award against a senior college of CUNY will be paid for by public funds of the New York State treasury." Hester-Bey, 2000 WL 488484, at *4; accord Becker, 94 F. Supp.2d at 491.

However, as the Pikulin court advised, the analysis of CUNY's relationship to the state does not stop at this conclusion. With regard to the second Pikulin analysis, the state "has ultimate authority over how CUNY senior colleges are operated and governed." Becker, 94 F. Supp.2d at 491. In fact, the state supervises the process for determining the budget for CUNY senior colleges, which includes presentment of a proposed budget for the senior colleges' operating and capital expenses to the governor. See N.Y. Educ. Law § 6230(2); see also Becker, 94 F. Supp.2d at 490; Hester-Bey, 2000 WL 488484, at *4. This process also provides for the governor to add his recommendations as part of the executive budget submitted to the state legislature. See N.Y. Educ. Law § 6230(3). In addition, the state comptroller is required to perform annual audits of the senior colleges' annual financial reports and to prepare a report to the governor and other officials. See id. § 6230(4); see also Becker, 94 F. Supp.2d at 490.

Moreover, other factors that indicate that the state exercises a great degree of supervision over CUNY senior colleges include: (1) the fact that the governor appoints 10 out of 17 members of CUNY's board of trustees, see N.Y. Educ. Law §§ 6204(2)(a) 6204(2)(d); (2) the fact that the real property of the CUNY senior colleges is owned by the state, see id. § 6219(a)(1), and (3) the fact that CUNY may acquire property for use by senior colleges using the state's eminent domain power, see id. §§ 301, 6213. See also Becker, 94 F. Supp.2d at 490-91;Hester-Bey, 2000 WL 488484, at *4. These factors adequately establish that CUNY and its senior colleges are supervised by the state to a great degree.

Again, plaintiff asserts that § 6201(1) and § 6201(2) compel a different conclusion. Plaintiff has emphasized the legislature's finding that "[t]he governance of the university must reflect increased state responsibility but should preserve the city's participation in the governance of the university it created and developed at city expense." N.Y. Educ. Law § 6201(1). Section 6201(2) states, in relevant part, that "[t]he legislature intends that the city university of New York should be maintained as an independent system of higher education." Id. § 6201(2). These provisions do not undermine a finding that the state has a great deal of supervision over CUNY and its senior colleges. If anything, in light of all the other factors supporting state authority and control over CUNY and its senior colleges, these legislative findings indicate that "although CUNY has a degree of independence, it is ultimately accountable to, and dependent upon, the state." Becker, 94 F. Supp.2d at 491. Thus, defendants CUNY and CSI — a CUNY senior college — are arms of the State of New York and are therefore immune from suit under § 1981 and § 1983.²⁸ Consequently, all of plaintiff's claims against these defendants are dismissed as barred by the Eleventh Amendment.

28 This finding is consistent with every post-Pikulin case that has addressed the question of whether CUNY and/or its senior colleges are arms of the state for Eleventh Amendment purposes. See Husain v. Springer, et al., 193 F. Supp.2d 664 (E.D.N.Y. 2002); Sacay, 193 F. Supp.2d 611; Hamilton v. City College of the City Univ. of New York, 173 F. Supp.2d 181, 184 (S.D.N.Y. 2001); see also Johnson v. City Univ. of New York, CV-00-4964, 2002 WL 1750841 (S.D.N.Y. July 24, 2002);Ware v. City Univ. of New York, CV-01-9305, 2002 WL 1343752 (S.D.N.Y. June 18, 2002); Sank v. City Univ. of New York, et al., CV-94-0253, 2002 WL 523282 (S.D.N.Y. Apr. 5, 2002); Kulkarni v. City Univ. of New York, et al., CV-01-3019, 2001 WL 1415200 (S.D.N.Y. Nov. 13, 2001); Loren v. Levy, et al., CV-00-7687, 2001 WL 921173 (S.D.N.Y. Aug. 14, 2001); During v. City Univ. of New York, et al., CV-01-9584, 2002 WL 1159675 (S.D.N.Y. May 31, 2001); Bunch v. City Univ. of New York, CV-98-1172, 2000 WL 1457078 (S.D.N.Y. Sept. 28, 2000), reconsideration denied by, 2000 WL 1810959 (S.D.N.Y. Dec. 7, 2000); Salerno, 2000 WL 1277324; Becker, 94 F. Supp.2d 487; Hester-Bey, 2000 WL 488484.

Defendants Jackson, Martinez and Yurman (1) Official Capacity Claims

Eleventh Amendment immunity also extends to claims for monetary damages brought against state officers sued in their official capacities. See Ford, 2003 WL 132977, at *3; Rodriguez v. Weprin, 116 F.3d 62, 66 (2d Cir. 1997); see also Chinn, 963 F. Supp. at 224. In both his initial and amended complaint, plaintiff sued defendants Jackson, Martinez and Yurman in their official capacities.²⁹ See Compl. ¶¶ 8, 11, 12; Am. Compl. ¶¶ 7, 10-11. Accordingly, these defendants assert that they are immune from suit. Plaintiff, however, argues that under the doctrine of Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441 (1908), these defendants are not entitled to immunity.

29 Plaintiff alleges in his complaint that Jackson is "Vice President" of CSI, Martinez is "employed as a Public Safety Officer/Director of Public Safety" with CSI, and Yurman is "employed as a Public Safety Officer/Asst. Director of Public Safety" at CSI. Compl. ¶¶ 8, 11-12; accord Am Compl. ¶¶ 7, 10-11.

In Ex Parte Young, the Supreme Court established

a limited exception to the general principal of sovereign immunity [that] allows a suit for injunctive relief challenging the constitutionality of a state official's actions in enforcing state law under the theory that such a suit is not one against the State, and therefore not barred by the Eleventh Amendment.

Ford, 2003 WL 132977, at *3 (quotation omitted). Very recently, the Second Circuit stated that "`[i]n determining whether the doctrine of Ex Parte Young avoids an Eleventh Amendment bar to suit, a court need only conduct a straightforward inquiry into whether the complaint alleges an ongoing violation of federal law and seeks relief properly characterized as prospective.'" Id. (quoting Verizon Md. v. Pub. Serv. Comm'n of Md., 535 U.S. 635, ___, 122 S.Ct. 1753, 1760 (2002) (internal citation and quotation marks omitted)). This characterization is important since, "retrospective compensatory relief, whether `expressly denominated as damages . . . or tantamount to an award for damages for a past violation of federal law,' does not vindicate sufficient interests to justify overcoming the Eleventh Amendment bar." Chinn, 963 F. Supp. at 225 (quoting Papasan v. Allain, 478 U.S. 265, 278, 106 S.Ct. 2932, 2940 (1986)).

In this case, plaintiff's original and amended complaint unequivocally seek monetary relief against defendants Jackson, Martinez and Yurman for an alleged deprivation of plaintiff's rights based on an arrest and subsequent prosecution of plaintiff. See Compl., Count I, "wherefore" clause (seeking $1,000,000.00 in actual and compensatory damages); id., Count II, "wherefore" clause (same). Nowhere in these complaints does plaintiff seek injunctive relief. Thus, there being no claim for prospective injunctive relief, Ex Parte Young is inapplicable to this case. See Ford, 2003 WL 132977, at *4. Accordingly, as plaintiff's § 1981 and § 1983 claims against Jackson, Martinez and Yurman seek solely "retrospective compensatory relief" for actions taken in their official capacity, these claims are dismissed.³⁰ See Chinn, 963 F. Supp. at 225 (dismissing on Eleventh Amendment basis § 1981 claims for monetary relief asserted against Dean of CUNY senior college in her official capacity).

30 Since these claims are dismissed on Eleventh Amendment grounds, it is not necessary to consider state defendants' alternative ground for dismissal, namely that neither a state agency or entity, nor a state official sued in his or her official capacity, is a "person" subject to suit within the meaning of § 1981 or § 1983.

(2) Individual Capacity Claims

"`However, the eleventh amendment does not extend to a suit against a state official in his [or her] individual capacity, even when the conduct complained of was carried out in accordance with state law.'" Ford, 2003 WL 132997, at *4 (quoting Berman Enters. v. Jorling, 3 F.3d 602, 606 (2d Cir. 1993)). In his amended complaint, plaintiff seeks to assert his § 1981 and § 1983 claims against Martinez and Yurman in their individual, as well as official, capacity. In both his original and amended complaints, plaintiff sued Jackson in both her individual and official capacity. These individual-capacity claims are not barred by the Eleventh Amendment. See Chinn, 963 F. Supp. at 225.

Martinez and Yurman

State defendants, however, assert that the § 1983 claims against Martinez and Yurman in their individual capacity should be dismissed pursuant to Rule 12(b)(6) for failure to state a claim because those defendants (1) acted with probable cause and/or (2) are entitled to qualified immunity.³¹ The crux of plaintiff's claims against these defendants is that Martinez and Yurman had no justification for "approaching" plaintiff, "escorting" him to the campus security office, and thereafter contacting the NYPD. See Compl. ¶¶ 17-21. However, by plaintiff's own account, these officers acted with probable cause, and their conduct is thus not actionable. Indeed, as stated above, probable cause is an absolute defense to an action for false arrest under § 1983. See Singer, 63 F.3d at 188 (citations omitted). In this case, Martinez and Yurman were responding to a report of sexual assault by Tomey, a person described as plaintiff's girlfriend. See Compl. ¶ 17. In the Second Circuit, an allegation by a crime victim personally acquainted with her alleged assailant establishes probable cause. See Curley, 268 F.3d at 70; Lee, 136 F.3d at 103. As noted above, plaintiff's complaint sets forth no allegations that undermine Tomey's accusations. Thus, Martinez and Yurman were justified in relying on Tomey's complaint to establish probable cause to detain plaintiff.

31 State defendants do not argue any grounds for dismissal of plaintiff's § 1981 claim asserted against Martinez, Yurman and Jackson in their individual capacity. Nonetheless, plaintiff cannot maintain a § 1981 claim against Martinez and Yurman because plaintiff's complaint is devoid of any allegations that these state defendants had an intent to discriminate against him or that, even if they did, they deprived plaintiff of one of the statute's enumerated rights. Plaintiff's § 1981 claim against Jackson is discussed infra in the context of plaintiff's claims against Jackson in her individual capacity.

Plaintiff alleges that he "attempted to plead his innocence," but that the officers ignored his pleas, and nevertheless contacted the NYPD, who arrested plaintiff. However, probable cause is not foreclosed when an officer relies on a victim's complaint, even if the alleged assailant provides a different version of events. See Curley, 268 F.3d at 70. Thus, under applicable law, and based on information available to them at the time of plaintiff's detainment, Martinez and Yurman acted appropriately and with probable cause. Accordingly, plaintiff's proposed § 1983 false arrest claim against these state defendants in their individual capacity is denied as futile.

Alternatively, even if Martinez and Yurman did not have actual probable cause, state defendants argue that their conduct was not objectively unreasonable and that these defendants are therefore entitled to qualified immunity.³² In the false arrest context, an action is objectively unreasonable only if "`no officer of reasonable competence could have made the same choice in similar circumstances.'" Lee, 136 F.3d at 102 (quoting Lennon, 66 F.3d at 420-21). In this case, Martinez and Yurman responded appropriately to a report of sexual assault by a crime victim, who could not have been mistaken as to plaintiff's identity. Thus, even if plaintiff can prove that he presented Martinez and Yurman with an account that conflicted with Tomey's version of events, these defendants are entitled to qualified immunity because "officers of reasonable competence could disagree" as to the determination of probable cause. Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 1096 (1986). Accordingly, the proposed § 1983 claim against Martinez and Yurman in their individual capacity is subject to dismissal on this alternative ground and is denied as futile.

32 Of course, as with Burgess, if Martinez and Yurman had actual probable cause, they would be entitled to qualified immunity on the basis that their conduct did not violate plaintiff's constitutional right. See Saucier, 533 U.S. at 201; see also Lee, 136 F.3d at 102 (stating that the right not to be arrested without probable cause is a constitutional right).

Jackson A. § 1983

To the extent that plaintiff alleges against Jackson a § 1983 claim premised on plaintiff's arrest and/or prosecution, state defendants argue that this claim fails. To state a claim under § 1983, "a plaintiff must allege the violation of a right secured by the Constitution and law of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law." West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 2254-55 (1988). Plaintiff's amended complaint contains no allegations whatsoever of Jackson's involvement in any of the events relating to plaintiff's arrest and prosecution.³³ "It is well settled in this Circuit that `personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983.'" Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994) (quoting Moffit v. Town of Brookfield, 950 F.2d 880, 886 (2d Cir. 1991)). Because plaintiff's complaint contains no allegations of Jackson's personal involvement in plaintiff's arrest and prosecution, any claim for false arrest against her is "fatally defective on its face" and is dismissed. Alfaro Motors, Inc. v. Ward, 814 F.2d 883, 886 (2d Cir. 1987) (quotation and citation omitted); see also Dove v. Fordham University, 56 F. Supp.2d 330, 335-36 (S.D.N.Y. 1999), aff'd without opinion, 210 F.3d 354 (2d Cir. 2000) (table) (dismissing § 1981 and § 1983 claims as legally deficient because complaint was devoid of allegations of wrongdoing or personal involvement by particular defendants).

33 Plaintiff's complaint does, however, allege that each defendant was acting under color of state law. See Compl. ¶ 15.

Nonetheless, Count I of plaintiff's amended complaint contains the following allegation against Jackson:

[S]hortly after the arrest of the plaintiff, Defendant Carol Jackson, as the Vice President of [CSI] coerced and forced and threatened the plaintiff and in effect disbarred and unlawfully removed the plaintiff as a student of [CSI], even though the plaintiff was duly qualified to be in attendance at said College. Despite being found not guilty by the jury at the completion of the criminal prosecution against the plaintiff, defendant Carol Jackson has unjustly and unlawfully failed and/or refused to permit the plaintiff to continue his studies at [CSI]. The actions of Defendant Jackson were not in accordance with the Plaintiff's Constitutional rights and other legal requirements and were done with race based animus towards the plaintiff solely because he is Black and born in Nigeria.

Am. Compl. ¶ 37.³⁴ As the paragraph indicates, plaintiff does not specify the constitutional rights that he alleges Jackson violated. A plaintiff "must make specific allegations that indicate a deprivation of constitutional rights; general indirect and conclusory allegations are not sufficient." Hankard v. Town of Avon, 126 F.3d 418, 423 (2d Cir. 1997); see also Barr v. Abrams, 810 F.2d 358, 363 (2d Cir. 1987) (stating that complaints based on a violation of civil rights must include specific allegations of facts showing a violation of rights "instead of a litany of general conclusions that shock but have no meaning"). Thus, it is arguable that these general allegations are insufficient to state a claim under § 1983. Nonetheless, it is apparent that plaintiff's counsel merely inserted this paragraph at the end of the allegations in Count I. Thus, liberally construing the complaint, the previous paragraph, which asserts that the allegations in Count I constitute a violation of, inter alia, plaintiff's Fourteenth Amendment due process and equal protection rights, could be applied to this allegation.³⁵

34 At oral argument, counsel for state defendant's argued that Obilo, in fact, voluntarily withdrew from CSI and even requested tuition reimbursement. However, for purposes of this motion, plaintiff's allegations will be accepted as true.

35 At oral argument, plaintiff's counsel argued that the allegations in paragraph 37 of plaintiff's amended complaint establish a violation of plaintiff's equal protection rights under the Fourteenth Amendment.

To the extent that plaintiff's allegations allege an equal protection claim under the Fourteenth Amendment, the allegations are insufficient on their face.³⁶ Plaintiff's complaint does not allege that similarly situated persons were treated differently by Jackson, an essential element in any equal protection claim. See Gagliardi v. Village of Pawling, 18 F.3d 188, 193 (2d Cir. 1994) ("[I]t is axiomatic that plaintiff [making an equal protection claim] must allege that similarly situated persons were treated differently.").

36 The Fourteenth Amendment prohibits a state from depriving "any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV § 1.

Similarly, to the extent that plaintiff's allegations allege a due process violation under the Fourteenth Amendment, the allegations are facially defective. To establish a due process violation, plaintiff must allege: (1) that the government deprived him of an interest "encompassed by the Fourteenth Amendment's protection of liberty and property," (2) without the constitutionally required process. Bd. of Regents v. Roth, 408 U.S. 564, 569, 92 S.Ct. 2701, 2705 (1972). Thus, "[t]he threshold issue is always whether the plaintiff has a property or liberty interest protected by the Constitution." Narumanchi v. Bd. of Trustees of Conn. State Univ., 850 F.2d 70, 72 (2d Cir. 1988); see also DeShaney v. Winnebago County Dep't of Soc. Servs., 489 U.S. 189, 195-96, 109 S.Ct. 998, 1003 (1989) (stating that a claim based on a violation of due process must involve the deprivation of a recognized life, liberty, or property interest). Nowhere in plaintiff's complaint does he allege that he had a liberty or property interest of which Jackson deprived him. Accordingly, plaintiff fails to allege a violation of his due process rights. Thus, plaintiff's proposed claim against Jackson is subject to dismissal for failure to state a claim and is consequently denied as futile.

In addition, Count III of plaintiff's amended complaint seeks to impose liability on Jackson for "lack of sufficient and appropriate training" of, among others, CSI campus security officers,³⁷ which allegedly resulted in "the wrongful arrest, detention, abuse, harassment, threat, use of unnecessary force and excessive force, arbitrary stop and arrest of plaintiff." Am. Compl. ¶ 47. According to plaintiff, this insufficient training and resultant unlawful conduct "constituted a standing policing [sic] and custom and was condoned by the supervisory officials within [CSI] and [CUNY]." Id. ¶ 44.

37 A review of plaintiff's original and amended complaint reveals that plaintiff's amended complaint asserts against Jackson essentially the same claim that his original complaint asserts against Guliani and Kerik — the municipal liability claim that plaintiff's counsel agreed to withdraw at the February 5, 1999 conference.

As noted above, since Jackson is a state official, a § 1983 claim for damages can only be asserted against her in her individual capacity.C.f., Will, 491 U.S. at 68-70, 109 S.Ct. at 2311-12. Moreover, before she can be liable for damages in a § 1983 action, the plaintiff must allege Jackson's "personal involvement" in the alleged deprivation of plaintiff's constitutional rights. Wright, 21 F.3d at 501. Plaintiff has not alleged that Jackson was in any way personally involved in his detainment or subsequent arrest and prosecution. Indeed, plaintiff's complaint does not assert that Martinez and Yurman detained plaintiff at Jackson's request or that Jackson called the NYPD. Nonetheless, plaintiff does allege that Jackson had "an obligation and duty to plaintiffs [sic] to properly train and supervise campus police officers." Am. Compl. ¶ 43. Borrowing from the municipal liability context, as a supervisor, Jackson can be liable under § 1983 if plaintiff alleges (1) Jackson "directly participated" in the violation, (2) Jackson "created a policy or custom under which unconstitutional practices occurred, or allowed such a policy or custom to continue," or (3) Jackson was "grossly negligent in managing subordinates who caused the unlawful condition or event." Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994) (citing Williams v. Smith, 781 F.2d 319, 323-24 (2d Cir. 1986)). However, it is not necessary to determine whether plaintiff has adequately alleged such liability on the part of Jackson because, as discussed above, plaintiff's complaint establishes that Martinez and Yurman had actual, or at least, arguable probable cause and are therefore not liable to plaintiff. In other words, if Martinez and Yurman are not liable to plaintiff on the § 1983 false arrest claim, Jackson cannot be liable in a supervisory capacity. Accordingly, plaintiff's proposed claim against Jackson in her individual capacity is denied as futile.

B. § 1981

Lastly, to the extent that paragraph 37 of plaintiff's amended complaint seeks to assert a § 1981 claim against Jackson, that claim fails since plaintiff has not alleged a deprivation of one of the statute's enumerated rights. As indicated above, to state a claim under § 1981, plaintiff must allege, inter alia, that the discrimination concerned one or more of the activities enumerated in the statute, namely make and enforce contracts, sue and be sued, give evidence, etc. See Mian, 7. F.3d at 1087. Assuming, arguendo, that plaintiff's allegations could establish racially discriminatory intent, plaintiff's complaint contains no allegations that Jackson thwarted plaintiff's attempt to enforce his rights or that plaintiff has a contractual relationship with Jackson. Accordingly, like plaintiff's proposed § 1983 claim, plaintiff's proposed § 1981 claim is defective on its face and is denied as futile.

Conclusion

In sum,

• Plaintiff's proposed § 1983 claim against Burgess in his individual capacity is DENIED since (1) Burgess had probable cause to arrest and prosecute plaintiff or (2) at least, Burgess had arguable probable cause and is therefore entitled to qualified immunity.

• Plaintiff's proposed § 1981 claim, to the extent he asserts it against Burgess in his individual capacity, is DENIED because plaintiff has failed to allege racially purposeful discrimination and, even if he did, he has failed to allege that the discrimination concerned one or more of the activities enumerated in the statute.

• Plaintiff's § 1983 claim against Burgess in his official capacity is DISMISSED as plaintiff has failed to adequately allege a municipal policy or custom, and, even if he did, Burgess is not liable to plaintiff because he either had probable cause to arrest plaintiff or is entitled to qualified immunity.

• Plaintiff's pendent state law claims against Burgess and the unnamed police officers are DISMISSED as all of plaintiff's federal claims against those defendants are dismissed.

• All of plaintiff's claims against CUNY and CSI are DISMISSED as these defendants are entitled to Eleventh Amendment immunity.

• All of plaintiff's claims against Jackson, Martinez and Yurman in their official capacity are DISMISSED as these defendants are entitled to Eleventh Amendment immunity.

• Plaintiff's proposed § 1983 claim against Martinez and Yurman in their individual capacity is DENIED since (1) they had probable cause to detain plaintiff or (2) at least, they had arguable probable cause and are therefore entitled to qualified immunity.

• Plaintiff's proposed § 1981 claim, to the extent he asserts it against Martinez and Yurman in their individual capacity, is DENIED because plaintiff has failed to allege racially discriminatory intent.

• Plaintiff's proposed § 1983 claims against Jackson in her individual capacity is DENIED because (1) she was not personally involved in any alleged constitutional deprivation and (2) to the extent plaintiff seeks to impose liability on Jackson for the actions of Martinez and Yurman, those defendants are not liable to plaintiff since they had probable cause to detain plaintiff or are subject to qualified immunity.

• Plaintiff's proposed § 1981 claim, to the extent he asserts it against Jackson in her individual capacity, is DENIED because plaintiff has failed to allege racially purposeful discrimination and, even if he did, he has failed to allege that the discrimination concerned one or more of the activities enumerated in the statute.

• Plaintiff's request to amend his complaint is DENIED because, as indicated above, all of plaintiff's proposed claims are subject to dismissal and are therefore futile.

Since none of plaintiff's claims remain, this case is dismissed in its entirety. The Clerk of the Court is directed to close the case.

SO ORDERED