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Betts v. Shearman

Jan 24, 2013
12 Civ. 3195 (JPO) (S.D.N.Y. Jan. 24, 2013)


finding that the contents of an incidental report and criminal court complaint were integral to the plaintiff's claims of malicious prosecution and false arrest

Summary of this case from Fox v. City of New York


12 Civ. 3195 (JPO)


JOHN BETTS, Plaintiff, v. MARTHA ANNE SHEARMAN, et al., Defendants.



Plaintiff John Betts ("Betts") brings this civil rights action against Martha Anne Shearman ("Shearman"), the City of New York ("the City"), New York City Police Officer Pablo Rodriguez ("Rodriguez"), and an unidentified New York City Police Officer ("Jane Doe"). Betts sues Shearman and the officer defendants for constitutional violations under 42 U.S.C. § 1983, together with various state law claims. Betts also asserts a Monell claim against the City. (Compl. at ¶¶ 51-58.) Shearman, the City, and Rodriguez have moved to dismiss the Complaint. (See Motion to Dismiss, Dkt. No. 10 ("Shearman Mot."); Motion to Dismiss, Dkt. No. 14 ("City Mot.").) For the reasons that follow, Defendants' motions to dismiss are granted.

Betts asserts false arrest, malicious prosecution, abuse of process, prima facie tort, and intentional infliction of emotional distress claims under New York State law. (Complaint, Dkt. No. 1 ("Compl."), at ¶¶ 63-75.)

I. Background

A. Factual Background

All facts are taken from the Complaint unless otherwise indicated and are assumed true for the purposes of this motion. Cooper v. Parsky, 140 F.3d 433, 440 (2d Cir. 1998) ("The court is required to accept as true all factual allegations in the complaint, and to consider documents attached to or incorporated by reference in the complaint." (internal citation omitted)).

On the night of January 20, 2011, Betts was at the apartment he shared with his wife, Shearman, located at 930 Fifth Avenue, Apartment 3C and 3D in New York, New York. (Compl. at ¶ 16.) Around 11:30 p.m., Shearman—allegedly under the influence of alcohol—became "verbally combative" towards Betts, at which point Betts locked himself into a spare bedroom. (Id. at ¶¶ 17-18.)

Shearman attempted to gain forcible entry into the bedroom, threatening to call the police if Betts did not let her into the room. (Id. at ¶¶ 18-19.) Betts does not address in his Complaint whether he did, in fact, open the door for Shearman. However, he contends that Shearman called the New York City Police Department that night, complaining of a fabricated incident of domestic assault. (Id. at ¶¶ 20-21.) Around 1:00 a.m. on January 20, 2011, police officers Rodriguez and Jane Doe responded to the call and "forcibly entered" the bedroom in which Betts was asleep. (Id. at ¶ 21.) Betts contends that around this same time, Rodriguez and Doe "coached" Shearman, helping her "fabricat[e] a contrived version of the events to justify a baseless and false arrest." (Id. at ¶ 22.)

It is unclear whether the evening in question was during the evening of January 20, stretching into the morning of January 21, or the evening of January 19, together with the early morning hours of January 20. Thus, for purposes of this opinion, the evening in question is referred to as "January 20."

According to Betts, Shearman falsely claimed that Betts had "slammed her arm against the ground," causing "substantial pain." (Id. at ¶ 23.) In responding to Shearman's allegations of abuse, Rodriguez and Jane Doe arrested Betts for resisting arrest (id. at ¶ 29), and Betts was later charged with assault in the third degree, resisting arrest, and harassment in the second degree. (Id. at ¶ 25.) Betts contends that the officers lacked probable cause for the arrest, and ignored obvious signs that Shearman lacked credibility as a claimant, noting that Shearman was "strung out," seemed "intoxicated and high," had made false accusations against Betts in the past, and evidenced no physical mark from the alleged assault. (Id. at ¶ 24.)

In addition to claiming that Shearman, Rodriguez, and Jane Doe "initiated a criminal prosecution against [him]," Betts also alleges that Rodriguez subjected Betts to "unreasonable and excessive force, all without provocation or justification," which "caused [Betts] to suffer injury to his shoulder." (Id. at ¶¶ 32-33.) Betts alleges that the accusatory instrument prepared by Jane Doe and Shearman contained "materially false, fabricated and contrived allegations," but the three defendants nevertheless forwarded the instrument to the New York County District Attorney's Office. (Id. at ¶ 34.) In April 2011, the criminal charges against Betts were "resolved in Betts' favor" and dismissed with prejudice. (Id. at ¶ 36.)

Betts alleges that his rights were violated, and, as a "direct and proximate result," of Defendants' actions, he was (1) incarcerated for a day; (2) "subjected to limitations on his freedom;" (3) "forced to endure the harassment, humiliations, hardships and inhumanities associated with arrest and incarceration;" and (4) suffered, inter alia, "mental anguish, depression, mental shock, mental trauma, and post traumatic stress disorder." (Id. at ¶¶ 46-47.) Betts also alleges that Defendants' actions caused him to lose his business, which in turn resulted in substantial financial loss. (Id. at ¶¶ 48-49.)

B. Procedural History

Betts filed the Complaint in this action on April 23, 2012. (See generally Compl.) Shearman and Rodriguez, jointly with the City, filed separate motions to dismiss on August 28, 2012. (See generally Shearman Mot.; City Mot.) Betts replied to the motions to dismiss on September 26, 2012 (Memorandum of Law in Opp. to Shearman, Dkt. No. 18 ("Betts' Opp. 1); Memorandum of Law in Opp. to City, Dkt. No. 17 ("Betts' Opp. 2").) Shearman and Rodriguez, together with the City, separately replied to Betts' opposition memorandums on October 9, 2012. (Shearman Reply Memorandum, Dkt. No. 19 ("Shearman Rep."); City Reply Memorandum, Dkt. No. 20 ("City Rep.").)

II. Discussion

A. Legal Standard

1. Motion to Dismiss

Whenever deciding a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), a court must "accept as true all of the factual allegations contained in the complaint." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 572 (2007). Moreover, in examining such a motion, a court must draw "all inferences in the light most favorable to the non-moving party's favor." In re NYSE Specialists Sec. Litig., 503 F.3d 89, 95 (2d Cir. 2007). Though Rule 8(a) requires no more than a "short and plain statement of the claim showing that the pleader is entitled to relief," Fed. R. Civ. P. 8(a)(2), a plaintiff's allegations must nevertheless engender a plausible claim. See Twombly, 550 U.S. at 570 ("Because the plaintiffs here have not nudged their claims across the line from conceivable to plausible, their complaint must be dismissed."). While this standard is deferential to plaintiffs, in the sense it takes their factual allegations as true, this "tenet" is "inapplicable to legal conclusions." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Put another way, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id.

2. Incorporation of Documents by Reference

"In assessing the legal sufficiency of a claim, the Court may consider those facts alleged in the complaint, documents attached as an exhibit thereto or incorporated by reference . . . and documents that are 'integral' to plaintiff's claims, even if not explicitly incorporated by reference." John v. N.Y.C. Dep't of Corrs., 183 F. Supp. 2d 619, 627 (S.D.N.Y.2002) (internal citations omitted), vacated in part on other grounds by 130 Fed. Appx. 506 (2d Cir. 2005). In this Circuit, a complaint is deemed to include as well "documents that the plaintiffs either possessed or knew about and upon which they relied in bringing the suit," Rothman v. Gregor, 220 F.3d 81, 88-89 (2d Cir. 2000), "or matters of which judicial notice may be taken." Guo Hua Ke v. Morton, No. 10 Civ. 8671, 2012 WL 4715211, at *3 (S.D.N.Y. Sept. 30, 2012) (quotations omitted).

When a district court is confronted with matters outside the pleadings while considering a Rule 12(b)(6) motion, it has two options: it must (1) "exclude the additional material and decide the motion on the complaint alone," or (2) "convert the motion to one for summary judgment under Fed.R.Civ.P. 56 and afford all parties the opportunity to present supporting material." Friedl v. City of New York, 210 F.3d 79, 83-84 (2d Cir. 2000) (quotations omitted)). The Second Circuit construes this conversion requirement strictly, noting that "where there is a legitimate possibility that the district court relied on inappropriate material in granting the motion," reversal of that district court's decision is appropriate. Amaker v. Weiner, 179 F.3d 48, 50 (2d Cir. 1999). However, mere attachment "of an affidavit or exhibit to a Rule 12(b)(6) motion" will not, "without more, establish that conversion is required." Id.

Here, the City and Rodriguez, in their motion to dismiss, attached as an exhibit a copy of the Domestic Incident Report ("DIR") for the incident between Betts and Shearman that night. (See Declaration of Carolyn K. Depoian in Support, Dkt. No. 16 ("Depoian Decl."), at Ex. B.) Betts attached that same DIR to his oppositions to Shearman's and the City's respective motions, together with the accusatory instrument prepared by the authorities in this case, and an additional Betts declaration. (See Betts' Opp. 1 at Exs. 2-4; Betts' Opp. 2 at Exs. 2-4.) In his opposition, Betts asserts that since Shearman submitted a declaration detailing her version of events, he too may submit a declaration for this Court to consider. (Betts' Opp. 1 at 6.) However, this assertion misstates the law. First, this Court is not required to consider matters outside the pleadings, and second, even if a Court looks to some matters outside the Complaint—namely those that are integral to the Complaint or those of which it may take judicial notice—it may do so without converting the motion to dismiss into one for summary judgment.

Neither Betts' nor Shearman's declaration will be considered. (Betts' Opp. 1 at Ex. 4; Declaration of Anne Shearman-Betts, Dkt. No. 12 ("Shearman Decl.").) However, the Court will consider the DIR and the accusatory instrument in Betts' misdemeanor prosecution for harassment, as both documents are uncontested in validity, integral to Betts' Complaint, and available to both parties. See, e.g., Obilo v. City Univ. of City of New York, No. Civ. 01-5118, 2003 WL 1809471, at *5 (E.D.N.Y. Apr. 7, 2003) ("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, the two DD5s and plaintiff's handwritten statement can properly be considered as integral to plaintiff's complaint.") Given the nature of Betts' claims, which include malicious prosecution and false arrest, the eventual charges levied against him—described in the criminal court complaint—along with the DIR, provide crucial details associated with Betts' allegations. And though Betts claims that Shearman fabricated the assault that allegedly occurred on the evening in question (Compl. at ¶¶ 20, 22), central to his claim is the fact that the DIR too contained fabricated information, which led, in turn, to his prosecution (Id. at ¶¶ 25, 34.)

A DD5 refers to a criminal complaint follow-up report, completed by police. Id. at *3.

3. Qualified Immunity

As a defense to Betts' § 1983 claims, Rodriguez asserts qualified immunity as a defense. (Memorandum of Law in Support of Motion, Dkt. No. 15 ("City Memo."), at 13.) Qualified immunity protects police officers from liability associated with their discretionary actions whenever: (1) "[the] 'conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known,'" Cerrone v. Brown, 246 F.3d 194, 199 (2d Cir. 2001) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)); or (2) "it was 'objectively reasonable . . . to believe that [their] actions were lawful at the time of the challenged act.'" Id. (quoting Lennon v. Miller, 66 F.3d 416, 420 (2d Cir. 1995) (internal quotations omitted)). Qualified immunity is an affirmative defense; however, it reflects "an immunity from suit rather than a mere defense to liability." Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) (emphasis in original). Thus, it is appropriate to decide the issue of qualified immunity, when raised, at an early stage of the litigation, such as when deciding a pre-answer motion to dismiss. See Pani v. Empire Blue Cross Blue Shield, 152 F.3d 67, 74-75 (2d Cir. 1998) ("It is also well established that an affirmative defense of official immunity should be resolved as early as possible by the court, and may be resolved by Rule 12(b)(6) if clearly established by the allegations within the complaint." (internal citations omitted)); Torres v. Vill. of Sleepy Hollow, 379 F. Supp. 2d 478, 483 (S.D.N.Y. 2005) ("[T]he availability of qualified immunity ought to be decided by a court at the earliest possible opportunity—preferably at the outset of the case, at which point plaintiff's well pleaded allegations are assumed to be true, and defendant's version of the facts is immaterial.").

In the case of allegations to which probable cause is a complete defense, such as false arrest or imprisonment, the Second Circuit has defined the standard of qualified immunity as one of "arguable probable cause." Cerrone, 246 F.3d at 202. Arguable probable cause is present whenever "'a reasonable police officer in the same circumstances and possessing the same knowledge as the officer in question could have reasonably believed that probable cause existed in the light of well established law.'" Id. at 203 (quoting Lee v. Sandberg, 136 F.3d 94, 102 (2d Cir.1997)). Put another way, so long as (1) "it was objectively reasonable for the officer to believe that probable cause existed," or (2) "officers of reasonable competence could disagree on whether the probable cause test was met," an officer will be entitled to qualified immunity on such claims. Golino v. City of New Haven, 950 F.2d 864, 870 (2d Cir. 1991); see also Cerrone, 246 F.3d at 203 ("It is inevitable that law enforcement officials will in some cases reasonably but mistakenly conclude that probable cause is present, and we have indicated that in such cases those officials—like other officials who act in ways they reasonably believe to be lawful—should not be held personally liable."); Williams v. City of Mount Vernon, 428 F. Supp. 2d 146, 155 (S.D.N.Y. 2006) ("In situations where probable cause is required, this standard requires something less than actual probable cause.").

"The existence of probable cause to arrest constitutes justification and 'is a complete defense to an action for false arrest,' whether that action is brought under state law or under § 1983." Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996).

Additionally, "qualified immunity is not established by claiming 'the defendant did not do what plaintiff said he did.'" Williams, 428 F. Supp. 2d at 155. It is not enough that an officer defendant offers contradictory assertions as to the events in question, because at this stage of the litigation, "where [t]he facts asserted in plaintiff's Complaint tell a different story, and on a motion to dismiss, where discovery has not yet occurred, [a court] must presume that plaintiff's version of events is true." Id; see also Torres, 379 F. Supp. 2d at 483 ("Nothing in Saucier can be read to deprive the plaintiff of his Seventh Amendment right to have a jury resolve all disputed issues of material fact. If plaintiff's version of the facts is wrong and defendant's is correct, then the defendant will prevail, not on the ground of qualified immunity, but because he did nothing wrong.").

B. Plaintiff's § 1983 Claims Against Rodriguez

Betts asserts various constitutional violations that allegedly give rise to causes of action pursuant to 42 U.S.C. § 1983. (See Compl. at ¶¶ 22, 31, 33, 39, 40, 41.) "The purpose of § 1983 is to deter state actors from using the badge of their authority to deprive individuals of their federally guaranteed rights and to provide relief to victims if such deterrence fails." Wyatt v. Cole, 504 U.S. 158, 161 (1992). "In order to state a cause of action under 42 U.S.C. § 1983, a plaintiff must allege that some person acting under color of state law deprived him of a federal right." Washington v. James, 782 F.2d 1134, 1138 (2d Cir. 1986). Here, Betts' § 1983 claims fail as a matter of law, as Rodriguez is entitled to qualified immunity with respect to some, and as for others, Betts fails to state a claim.

1. False Arrest

Betts alleges that he was arrested without probable cause (Compl. at ¶¶ 30, 31), and Rodriguez asserts qualified immunity as a defense. (City Memo. at 13.) "To prevail on a claim for false arrest, the plaintiff must prove that (1) the defendant intended to confine or arrest the plaintiff, (2) the plaintiff was conscious of the confinement, (3) the plaintiff did not consent to the confinement, and (4) the arrest was not otherwise privileged (i.e., the arrest was not supported by probable cause)." Travis v. Vill. of Dobbs Ferry, 355 F. Supp. 2d 740, 746-47 (S.D.N.Y. 2005) (citing Singer v. Fulton County Sheriff, 63 F.3d 110, 118 (2d Cir.1995)). An officer sued for false arrest under § 1983 must "have had personal involvement in the arrest in order to be held liable" pursuant to that section. Id.; see also Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994) ("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.'" (quoting Moffitt v. Town of Brookfield, 950 F.2d 880, 885 (2d Cir.1991)). Whenever a police officer has probable cause to make an arrest, such arrest cannot be false, as it is "otherwise privileged" under the law. See Singer, 63 F.3d at 118 ("There can be no federal civil rights claim for false arrest where the arresting officer had probable cause."). "It is well established that an arrest without probable cause is a constitutional violation." Williams, 428 F. Supp. at 154. But, even where probable cause is, in fact, lacking, qualified immunity may nevertheless shield the officer who acts reasonably under the circumstances. Id. at 155 ("When examining qualified immunity in the context of a suit for damages based on an arrest allegedly without probable cause, courts must grant a defendant qualified immunity '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.'" (quoting Golino, 950 F.2d at 870)).

Betts alleges that Rodriguez arrested him without probable cause. (Compl. at ¶¶ 24, 27-30, 41.) Specifically, Betts asserts that there were serious credibility problems with Shearman's story, and that the police, even though called to the house by Shearman, should have recognized that they lacked probable cause with respect to any of the eventual charges levied against him. (Id. at ¶ 24.) Even assuming that Betts did not resist arrest (id. at ¶ 30), the allegations themselves establish that Rodriguez had arguable probable cause to arrest Betts on the evening in question. Neither the ultimate disposition of an action, nor the crimes eventually charged, are dispositive of a probable cause determination. Accord Jaegly v. Couch, 439 F.3d 149, 154 (2d Cir. 2006) ("[W]e conclude here that a claim for false arrest turns only on whether probable cause existed to arrest a defendant, and that it is not relevant whether probable cause existed with respect to each individual charge, or, indeed, any charge actually invoked by the arresting officer at the time of arrest. Stated differently, when faced with a claim for false arrest, we focus on the validity of the arrest, and not on the validity of each charge." (emphasis in original)). Betts was eventually charged with Assault in the Third Degree, Resisting Arrest, and Harassment in the Second Degree. (Betts' Opp. at Ex. 3.) Thus, if Rodriguez had arguable probable cause for any of those counts, Betts' claims fail as a matter of law, as Rodriguez is entitled to qualified immunity.

Though Betts claims that Shearman falsely accused him of assault, he admits that she phoned the police, which brought Rodriguez to the home that evening. Thus, whether or not Shearman's claims to the police were true, the police nevertheless were properly dispatched to the apartment upon notification of a possible incident of domestic violence. Of course, this phone call alone is likely not sufficient to establish probable cause for an arrest, as any reasonable police officer would also examine the situation upon arrival in order to make a final probable cause determination. Thus, Betts' claim of false arrest stems from Shearman's alleged lack of credibility at the time. Betts contends that Shearman was so "strung out" that no reasonable officer could have believed her allegations. (Compl. at ¶ 24.) Moreover, he adds that there was no physical evidence of an assault, buttressing Betts' claim that Shearman fabricated the incident and diminishing the reasonableness of a probable cause finding. (Id.) Under Betts' description of the facts in his Complaint, it is clear that he would have stated a claim for false arrest had Shearman's accusation not occurred—as there is no information from the face of the Complaint or the documents referenced therein that suggests, under Defendants' version of the facts, that any harassment or resistance to arrest occurred outside of the alleged incident of domestic assault. However, Shearman's allegation, which Betts admits she made to the police on at a least two occasions that evening—on the phone and in person—though perhaps false, was undisputedly one tile in the informational mosaic presented to Rodriguez on the night of January 20. Thus, the question becomes, were Rodriguez's actions "objectively reasonable 'as measured by reference to clearly established law,' and 'the information the . . . officers possessed[?]'" Lee, 136 F.3d at 101-02 (quoting Harlow, 457 U.S. at 818 and Anderson v. Creighton, 483 U.S.635, 641 (1987) (internal citations omitted)).

The fact that Shearman was allegedly displaying signs of intoxication and drug use does not automatically negate the content of her domestic incident report. Complainants are not always saints, but their saintliness—or lack thereof—tends to bear on their credibility, not necessarily on their status as victims. Of course, a putative victim may be so devoid of indicia of credibility that an officer may be unjustified in arresting the alleged perpetrator. However, that victim's intoxication does not, without more, require an officer to depart from a given scene without effectuating an arrest. See Singer, 63 F.3d at 119 ("An arresting officer advised of a crime by a person who claims to be the victim, and who has signed a complaint or information charging someone with the crime, has probable cause to effect an arrest absent circumstances that raise doubts as to the victim's veracity."); see also McKinney v. George, 726 F.2d 1183, 1187 (7th Cir.1984) ("If policemen arrest a person on the basis of a private citizen's complaint that if true would justify the arrest, and they reasonably believe it is true, they cannot be held liable for a violation of the Constitution merely because it later turns out that the complaint was unfounded.").

For example, in Lee v. Sandberg, Connecticut State Troopers were dispatched to a home twice during a night in response to two domestic disturbance calls made by one Mrs. Lee. Lee, 136 F.3d at 98. After the first incident, Mrs. Lee stated her husband, Mr. Lee had pushed her, and the officers on the scene observed that "white saliva stained the corners of her mouth," she was "disheveled," she had slurred speech, and her eyes were "red and glassy." Id. at 97. Additionally, Mrs. Lee changed her story several times and was not bruised where she was allegedly pushed. Id. One of the State Troopers recommended an emergency psychiatric evaluation for Mrs. Lee, upon learning from her husband that she was on medication. After a second domestic disturbance call, which occurred after Mrs. Lee's doctor had determined her intoxicated but not dissociative, the police arrested Mr. Lee when his wife claimed that he had hit her in a "karate-chop" on the arm, despite the fact that, again, there were no "signs of physical assault on Mrs. Lee's arm, such as bruising or swelling." Id. at 98.

In Lee, the District Court denied summary judgment, holding that "the issue of whether the State Troopers had probable cause to arrest plaintiff hinged on whether Mrs. Lee was a credible informant." Id. at 100. Citing her erratic behavior, disheveled appearance, and psychiatric problems, the District Court surmised that there was a genuine issue of material fact as to Mrs. Lee's credibility and the reasonableness of the Officers' actions in arresting Mr. Lee for disorderly conduct. Id. On appeal, the Second Circuit disagreed, vacating the district court's determination that "a jury could well find the [State Troopers'] actions in arresting Mr. Lee for disorderly conduct were objectively unreasonable—i.e. that no reasonable officer, viewing the totality of the circumstances, could conclude that there was probable cause to arrest [the plaintiff] for disorderly conduct." Id. at 100 (quotations omitted). Citing the "extraordinarily difficult judgment decisions that law enforcement officers must make in domestic violence situations, and the presence of factors . . . that suggest that Mrs. Lee's statements were not incredible," the court held that the officer defendants' actions were objectively reasonable, and thus, entitled to qualified immunity. Id.

As further support for its arguable probable cause finding, the Lee court also cited Connecticut law, which demands that officers who determine "upon speedy information that a family violence crime . . . has been committed . . . shall arrest the person or persons suspected of its commission and charge such person or persons with the appropriate crime." Id. at 103-04 (quoting Conn. Gen. Stat. Ann. § 46b-38a(3)). New York law demands a similar response from its police officers, providing in relevant part:

a police officer shall arrest a person, and shall not attempt to reconcile the parties or mediate, where such officer has reasonable cause to believe that:

. . . (c) a misdemeanor constituting a family offense . . . has been committed by such person against such family or household member, unless the victim requests otherwise. The officer shall neither inquire as to whether the victim seeks an arrest of such person nor threaten the arrest of any person for the purpose of discouraging requests for police intervention.
N.Y. C.P.L. § 140.10(4)(c). Any officer investigating a report of such a crime must also:
prepare and file a written report of the incident . . . including statements made by the victim and by any witnesses, and make any additional reports required by local law enforcement policy or regulations. Such report shall be prepared and filed, whether or
not an arrest is made as a result of the officers' investigation, and shall be retained by the law enforcement agency for a period of not less than four years.
Id. at § 140.10(5). This statute, like the one at issue in Lee, "reflects the legislature's attempt to eliminate indifference by law enforcement agencies when responding to reports of domestic violence and to prevent further injury to victims of family violence." Lee, 136 F.3d at 104. And when a victim lucidly complains of abuse, neither the lack of physical injury nor the alleged assailant's conflicting account necessarily dooms a subsequent arrest as an unreasonable one.

Here, assuming that Shearman had been drinking and appeared "strung out," central to Betts' claim is that she nevertheless twice made false allegations to the police regarding the events of the evening in question. However, whether the allegations were eventually proved to be false or not has no bearing on the question of Rodriguez's qualified immunity. Instead, qualified immunity demands objective reasonableness in light of the circumstances—nothing more. See, e.g., Robison v. Via, 821 F.2d 913, 921 (2d Cir.1987) ("[E]ven if the contours of the plaintiff's federal rights and the official's permissible actions were clearly delineated at the time of the acts complained of, the defendant may enjoy qualified immunity if it was objectively reasonable for him to believe that his acts did not violate those rights."). Here, the Complaint does not allege that Shearman "partially disavow[ed]" her statement and only cites Shearman's intoxication as a reason to doubt her credibility. (Compl. at ¶ 24.) Given that Shearman was lucid enough to make a sworn statement on the DIR, which corroborated the claim in her original call to the police that she had been assaulted by Betts, it was objectively reasonable for Rodriguez to arrest Betts on suspicion of assault in the third degree.

In Ward v. City of New York, No. 08 Civ. 7380, 2010 WL 3629536 (S.D.N.Y. Sept. 17, 2010), Judge Holwell, in a converted motion for summary judgment, stated that "given [the alleged victim's] age, her partial disavowal, her comments about feeling alienated from her mother, the fact that she first accused [the plaintiff] during an argument with her mother, or other facts known to the officers at the time," an issue of material fact existed as to the reasonableness of the officers' actions in arresting the plaintiff. Id. at *1.

"A person is guilty of assault in the third degree when: 1. With intent to cause physical injury to another person, he causes such injury to such person or third person; or 2. He recklessly causes physical injury to another person; or 3. With criminal negligence, he causes physical injury to another person by means of a deadly weapon or a dangerous instrument." N.Y. Pen. L. §120.00.

Betts alleges that Shearman's claims of assault were fabricated, and perhaps they were. The issue is not the ultimate disposition of the charges against Betts, but rather, the sufficiency of his Complaint and the objective reasonableness of Rodriguez's actions on the night in question. While the credibility of an alleged victim indeed bears on the reasonableness of a putative perpetrator's arrest, police officers are trained to take victims' accounts seriously, even where their stories may later prove false. Cf. Miloslavsky v. AES Eng'ring Soc'y, 808 F. Supp. 351, 355 (S.D.N.Y.1992) ("The veracity of citizen complaints who are the victims of the very crime they report to the police is assumed."), aff'd, 993 F.2d 1534 (2d Cir.1993); State v. Amarillo, 198 Conn. 285, 310, 503 A.2d 146, 161 (1986) ("It is generally agreed . . . that a comparable showing [of reliability] is not needed to establish veracity when the information comes from an average citizen who is in a position to supply information by virtue of having been a crime victim." (citation and internal quotation marks omitted; alterations in original)). Moreover, a police officer is not "required to explore and eliminate every theoretically plausible claim of innocence before making an arrest." Martinez v. Simonetti, 202 F.3d 625, 635 (2d Cir. 2000) (quoting Ricciuti v. N.Y. C. Transit Auth., 124 F.3d 123, 128 (2d Cir. 1997) (quotations omitted)). Put another way, on the night in question, Rodriguez was neither "require[d]" nor "allow[ed]" to "sit as prosecutor, judge, or jury." Id. at 635-36 (quoting Krause v. Bennett, 887 F.2d 362, 372 (2d Cir. 1989) (quotations omitted).

Additionally, Betts alleges that Rodriguez "assisted Shearman in making a false allegation," and that he "coached her in fabricating a contrived version of the events to justify a baseless and false arrest." (Compl. at ¶ 22.) But these allegations do not plausibly state a claim. Even at the motion to dismiss stage, a pleader must "amplify a claim with some factual allegations in those contexts where such amplification is needed to render the claim plausible." Iqbal, 556 U.S. at 670 (emphasis in original) (quotations omitted). A complaint will face dismissal where it "pleads facts that are 'merely consistent with' a defendant's liability," meaning it "'stops short of the line between possibility and plausibility.'" Id., 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557). Here, while it is of course possible that Rodriguez coached Shearman into giving a false statement of the alleged domestic assault, what is far more plausible is that Shearman made her statement of her own volition, especially since it was allegedly consistent with her original phone call to the police. Nor does Betts allege specific facts rendering plausible the conclusory assertion that Rodriguez "coached" Shearman with respect to her statement. In one sense, Betts claims that Shearman made two false accusations—one, when she called the police to their home in the first place, stating that she had been assaulted, and the other when she spoke with the officers who arrived as they completed their mandatory DIR. But, at the same time, Betts alleges that Shearman was coached in this second statement, aided in her fabrication by Rodriguez—a contradictory assertion. In sum, Rodriguez's arrest of Betts was reasonable under the circumstances, and Betts' contention that Rodriguez coached Shearman in making a statement that she had already made once before that same evening is implausible and insufficiently pleaded. Thus, Rodriguez is entitled to qualified immunity on Betts' § 1983 false arrest claim.

The cases cited by Betts to support this view are inopposite, tending to reflect circumstances where the police actively sought out a witness or complainant, coercing them to make certain statements, rather than a circumstance, as here, where an alleged victim reaches out to the police herself, and makes a confirmatory statement in the police's presence. See, e.g., Zahrey v. City of New York, 2009 WL 54495, at *10 (S.D.N.Y. Jan. 7, 2009).

2. False Imprisonment

Betts also asserts a § 1983 false imprisonment claim against Rodriguez, arguing that he was imprisoned—suffering a deprivation of liberty—due to his arrest. (Compl. at ¶¶ 31, 41, 46.) Rodriguez moves to dismiss on the basis of qualified immunity. (City Memo. at 13.) False imprisonment is substantially the same as false arrest, requiring that: "(1) the defendant intended to confine [the plaintiff], (2) the plaintiff was conscious of the confinement, (3) the plaintiff did not consent to the confinement and (4) the confinement was not otherwise privileged." Weyant, 101 F.3d at 853 (quotations omitted; alterations in original). Here, as in the aforementioned false arrest context, though Betts was arrested and imprisoned, Rodriguez has qualified immunity with respect to Betts' claims, as there was arguable probable cause for his actions. Put another way, even if Betts' confinement was "not otherwise privileged," Rodriguez is immune from suit as to this charge, as reasonable officers could disagree as to the nature of Rodriguez's actions. See, e.g., Anderson, 483 U.S. at 641 ("[I]t is inevitable that law enforcement officials will in some cases reasonably but mistakenly conclude that probable cause is present, and we have indicated that in such cases those officials—like other officials who act in ways they reasonably believe to be lawful-should not be held personally liable.").

3. Excessive Force

Betts also claims that Rodriguez "subjected [Betts] to unreasonable and excessive force, all without provocation and justification and caused [Betts] to suffer injury to his shoulder." (Compl. at ¶ 33.) Rodriguez moves to dismiss the excessive force claim on the ground that Betts' allegations fail Rule 8's particularity requirement. (City Memo. at 18.) While Rule 8 does not require "detailed factual allegations," Twombly, 550 U.S. at 555, it does "demand[] more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Iqbal, 556 U.S. at 678.

"A claim for use of excessive force under § 1983 may be established if the force used was excessive or unreasonable in light of the circumstances." Williams, 428 F. Supp. 2d at 157. In examining whether an officer's use of force is "reasonable" under a given set of circumstances, a court will balance the "nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing governmental interests at stake." Graham v. Conner, 490 U.S. 386, 396 (1989) (internal quotations omitted). Here, there is no question that there was an intrusion on Betts' Fourth Amendment interests, and presumably he was handcuffed during the course of his arrest. (Compl. at ¶ 33.) However, Betts states no facts or circumstances—even in the broadest sense—from which this Court could conclude that he states a plausible claim that Rodriguez levied an unreasonable amount of force against him in effectuating the arrest. It is true that minor injury may indeed give rise to a claim of excessive force. See Robison, 821 F.2d at 924 (holding that the fact that plaintiff's injuries were neither "permanent" nor "severe," together with her failure to seek medical treatment for her injuries, did not necessitate dismissal of her claim of excessive force at the summary judgment stage). Accordingly, "[a] lack of an allegation of serious physical injury stemming from [a plaintiff's] arrest and search does not, therefore, require a Rule 12(b)(6) dismissal." Messina v. Mazzeo, 854 F. Supp. 116, 130 (E.D.N.Y. 1994). However, "[b]ecause the test is now one of objective reasonableness—without any reference to the officers' subjective state of mind—a motion to dismiss an excessive force claim is appropriate if, accepting all of the allegations as true, it is clear that the force used by the officers was objectively reasonable under the circumstances." Id. at 128-29.

Had Betts included context together with his conclusory assertion that his shoulder was somehow injured, he likely would have stated a claim. See, e.g., Johnson v. Glick, 481 F.2d 1028, 1029-30 (2d Cir. 1973) (reversing the district court's dismissal of Plaintiff's excessive force claim under 12(b)(6), where he alleged that Defendant had struck him twice on the head and denied him medical attention); Messina, 854 F. Supp. at 131 (denying Defendant's 12(b)(6) motion with respect to Plaintiff's excessive force claim when Plaintiff alleged "repeated slaps and blows at the scene of the arrest, in the police car, and at the station house" along with "physical injuries to his right wrist, abdomen, face and legs, causing him to suffer intense pain, and emotional pain and suffering"); cf. Santiago v. Yarde, 487 F. Supp. 52, 54 (S.D.N.Y. 1980) ("The limited and minor nature of plaintiff's alleged injuries provides insufficient support for plaintiff's claim that he was maliciously abused by defendant. He does not claim he was struck, or kicked in any way, or that he received or sought medical treatment.") However, here, there are no facts from which it can be concluded that Rodriguez used anything other than reasonable force in restraining Betts, only a bare assertion. Cf. First Nationwide Bank v. Gelt Funding, 27 F.3d 763, 771 (2d Cir. 1994) ("Under Rule 12(b)(6), the well-pleaded material allegations of the complaint are taken as admitted; but conclusions of law or unwarranted deductions of fact are not admitted." (internal quotations omitted)).

"Although the [Glick Court's] reference to the guards' subjective state of mind is no longer good law in light of Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989), the Court's determination that plaintiff's complaint survived summary dismissal based on the pleadings is significant." Messina, 854 F. Supp. at 129-30 (internal citation omitted).

Given the possibility that Betts may be able to contextualize his claim with facts that bolster this particular allegation's plausibility, this Court dismisses the excessive force allegation without prejudice, giving Betts leave to replead this claim.

4. Malicious Prosecution and Abuse of Process

Betts also asserts malicious prosecution claims under § 1983, claiming that Rodriguez, together with the City and Shearman, maliciously prosecuted him and maliciously abused process in preparing a "false accusatory instrument" and subsequently arresting and incarcerating him. (Compl. at ¶¶ 34, 41.) Rodriguez moves to dismiss both allegations on the grounds of failure to state a claim and qualified immunity. (City Memo. at 9-13.)

"Freedom from malicious prosecution is a constitutional right that has long been clearly established." Kinzer v. Jackson, 316 F.3d 139, 143 (2d Cir. 2003). In order "[t]o sustain a § 1983 claim of malicious prosecution, a plaintiff must demonstrate conduct by the defendant that is tortious under state law and that results in a constitutionally cognizable deprivation of liberty." Id. Thus, in this Circuit, to state a § 1983 claim for malicious prosecution, a plaintiff must show: "(1) that the defendant commenced or continued a criminal proceeding against him; (2) that the proceeding was terminated in the plaintiff's favor; (3) that there was no probable cause for the proceeding; and (4) that the proceeding was instituted with malice," id., together with either an arrest made pursuant to a warrant—i.e. legal process, or a "post-arraignment deprivation of liberty." Singer, 63 F.3d at 117. The Second Circuit has held that where police officers "swear out a complaint" and later "file it in a criminal court," they have commenced a criminal action, "put[ting] in motion proceedings that rendered the defendant at all times subject to the orders of the court, see § 510.40(2), and foreseeably requir[e] him to incur the expense of a lawyer and the inconvenience and perhaps expense of multiple court appearances." Swartz v. Insogna, No. 11 Civ. 2846, 2013 WL 28364, --F.3d--, at *5 (2d Cir. Jan. 3, 2013).

Here, as discussed, Rodriguez is entitled to qualified immunity on the probable cause prong of this claim, as he had arguable probable cause for the arrest. And while of course forwarding inaccurate or misleading information to the prosecutor could constitute malice in this context, Lowth, 82 F.3d at 573 ("[M]alice does not have to be actual spite or hatred, but means only that the defendant must have commenced the criminal proceeding due to a wrong or improper motive, something other than a desire to see the ends of justice served." (citations and quotations omitted)), here, Betts' naked assertions that the police fabricated the information corroborated by Shearman are implausible at best.

Under New York law, "even when probable cause is present at the time of arrest, evidence could later surface which would eliminate that probable cause." However, "[i]n order for probable cause to dissipate, the groundless nature of the charges must be made apparent by the discovery of some intervening fact," which includes "the failure to make a further inquiry when a reasonable person would have done so may be evidence of lack of probable cause." Lowth v. Town of Cheektowaga, 82 F.3d 563, 571 (2d Cir. 1996) (quotations omitted). Here, as there is no evidence of such dissipation, this Court may employ the same probable cause analysis that applies in the false arrest context. --------

Betts also asserts an abuse of process claim under § 1983. (Id. at ¶ 41.) Rodriguez moves to dismiss the allegation on the ground that Betts' malicious abuse of process claim fails to state a claim. (City Memo. at 15.) Whereas malicious prosecution is associated with the "improper issuance of process," abuse of process reflects the "improper use of process after it is regularly issued." Cook v. Sheldon, 41 F.3d 73, 80 (2d Cir. 1994) (quotations omitted). As with false arrest, imprisonment, and malicious prosecution, the elements of a § 1983 claim for malicious abuse of process stem from New York state law. Id. In order to state such a claim, a plaintiff must show that a defendant: "(1) employ[ed] regularly issued legal process to compel performance or forbearance of some act (2) with intent to do harm without excuse or justification, and (3) in order to obtain a collateral objective that is outside the legitimate ends of the process." Id. Improper motive behind an arrest or prosecution is not sufficient to state a malicious abuse of process claim. See, e.g., Jones v. Maples/Trump, No. 98 Civ. 7132, 2002 WL 287752, at *7 (S.D.N.Y. Feb. 26, 2002) ("Not every use of process motivated by selfishness or maliciousness gives rise to an abuse of process claim."). Instead, to state such a claim, a plaintiff must allege that defendants "aimed to achieve a collateral purpose beyond or in addition to [Plaintiff's] criminal prosecution." Savino v. City of New York, 331 F.3d 63, 78 (2d Cir. 2003).

Here, Betts' Complaint makes no allegation of a collateral objective pursued by Rodriguez in a perversion of legal process; nowhere does Betts state that Rodriguez initiated his arrest in order to effectuate some other, nefarious aim. But see Bd. of Educ. of Farmingdale Union Free Sch. Dist. v. Farmingdale Classroom Teachers' Ass'n., 38 N.Y.2d 397, 404 380 N.Y.S.2d 635 (Ct. App. 1975) (Plaintiff stated a claim for abuse of process where it claimed defendants were perverting process to "inflict economic harm on the school district"); Dean v. Kochendorfer, 237 N.Y. 384, 143 N.E. 229 (Ct. App. 1924) (Plaintiff stated a claim for abuse of process where Defendant issued a warrant for the collateral purpose that Defendant "might lecture and chide [Plaintiff] under the guise of judicial action"). As Betts alleges no collateral objective, his abuse of process claims must be dismissed.

5. Right to a Fair Trial

Betts also appears to assert a claim that he was denied his right to a fair trial in violation of his Fifth and Fourteenth Amendment rights. (Compl. at ¶ 41.) Rodriguez moves to dismiss this claim as duplicative of Betts' malicious prosecution and false arrest/imprisonment allegations. (City Memo. at 16.)

Betts may bring a right to a fair trial claim alongside his other § 1983 claims without suffering summary dismissal as a matter of law. See Nibbs v. City of New York, 800 F. Supp. 2d 574, 576 (S.D.N.Y. 2011) ("The Court is not persuaded that the distinction Defendants suggest is relevant. Ricciuti did not base its holding upon the existence of separate pieces of evidence supporting each claim. On the contrary, courts in this District have regularly found Ricciuti to stand for the proposition that a claim for denial of a right to a fair trial may be brought alongside one for malicious prosecution even where both are supported by the same evidence." (citing Brandon v. City of New York, 705 F. Supp. 2d 261, 276 (S.D.N.Y. 2010) and Jovanovic v. City of New York, No. 04 Civ. 8437, 2006 WL 2411541, at *13 (S.D.N.Y. Aug. 17, 2006)). This claim nevertheless fails the plausibility requirement of Twombly and Iqbal.

"When a police officer creates false information . . . and forwards that information to prosecutors, he violates the accused's constitutional right to a fair trial, and the harm occasioned by such an unconscionable action is redressable in an action for damages under 42 U.S.C. § 1983." Ricciuti, 124 F.3d at 130. Here, Betts makes only threadbare allegations that somehow Rodriguez and Jane Doe "coached" Shearman into giving a false written statement for the DIR. (Compl. at ¶ 22.) Given that Betts' own Complaint alleges that Shearman originally called the police of her own volition and stated that Betts "among other things, . . . had assaulted her," it is implausible to suggest that any subsequent statement to that same effect was somehow coached by the police. Shearman's allegations very well may have been fabricated—the ultimate disposition of the action against Betts is not the issue—but the allegation that Rodriguez somehow elicited the fabrication, when the alleged fabrication had already been shared with the police prior to Rodriguez's arrival at the home, is implausible.

6. Jane Doe

Had the claims against Jane Doe differed from those against Rodriguez, and had her conduct been alleged in such a way that permitted Betts' claims against her to go forward, Plaintiff's claims against Jane Doe would have survived. However, here, Betts does not distinguish between Jane Doe's conduct and Rodriguez's except to note that Rodriguez exhibited excessive force. Thus, Betts' claims against Jane Doe are accordingly dismissed with prejudice for the aforementioned reasons pertaining to Betts' claims against Rodriguez.

C. Plaintiff's § 1983 Claims Against Shearman

Betts also asserts § 1983 claims for false arrest, false imprisonment, malicious prosecution, abuse of process, and denial of a right to a fair trial against Shearman. (See generally Compl. at ¶¶ 15-50.) Because Shearman is not a state actor, and was not acting under color of state law, as required by § 1983, Betts' claims against her fail. See 42 U.S.C. § 1983 ("Every person who, under color of any statute, ordinance, regulation custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured . . . ."); United States v. Int'l Bhd. of Teamsters, Chauffeurs, Warehousemen & Helpers of Am., 941 F.2d 1292, 1295-96 (2d Cir.1991) ("Because the United States Constitution regulates only the Government, not private parties, a litigant claiming that his constitutional rights have been violated must first establish that the challenged conduct constitutes 'state action.'").

While private parties may indeed be sued pursuant to § 1983, such claims may survive only where a plaintiff alleges facts "demonstrating that the private entity acted in concert with the state actor to commit an unconstitutional act." Ciambriello v. Cty. of Nassau, 292 F.3d 307, 324 (2d Cir. 2002). Thus, Shearman is suable under § 1983 only if she conspired with the police or was a "willful participant in joint activity with the State or its agents." Id. (quotations omitted). It is well established that a private party does not become a "willful participant" by merely invoking the assistance of the police. See, e.g., Liwer v. Hair Anew, No. 99 Civ. 11117, 2000 WL 223828, at *2 (S.D.N.Y. Feb. 25, 2000) ("Where a private person merely seeks the assistance of the police to quell a disturbance, the private party is not 'jointly engaged' in the police officer's conduct so as to render it a state actor under § 1983."); Young v. Suffolk County, 705 F. Supp. 2d 183, 196 (E.D.N.Y. 2010) ("The provision of information to or summoning of police officers, even if that information is false or results in the officers taking affirmative action, is not sufficient to constitute joint action with state actors for purposes of § 1983." (citing Ginsberg v. Healey Car & Truck Leasing, Inc., 189 F.3d 268, 272 (2d Cir.1999) ("Healey's provision of background information to a police officer does not by itself make Healey a joint participant in state action under § 1983 [and] Officer Fitzgerald's active role in attempting to resolve the dispute after Healey requested police assistance in preventing further disturbance also does not, without more, establish that Healey acted under color of law." (alteration in the original))).

Betts also alleges that Shearman conspired with Rodriguez and Jane Doe to violate his constitutional rights pursuant to § 1983. (Compl. at ¶ 34.) "In order to survive a motion to dismiss on his § 1983 conspiracy claim, [Defendant] must allege (1) an agreement between a state actor and a private party; (2) to act in concert to inflict an unconstitutional injury; and (3) an overt act done in furtherance of that goal causing damages." Ciambriello, 292 F.3d at 324-25. Moreover, in this Circuit, "complaints containing only conclusory, vague, or general allegations that the defendants have engaged in a conspiracy to deprive the plaintiff of his constitutional rights are properly dismissed." Id. at 325 (quotations omitted). Put another way, "diffuse and expansive allegations are insufficient, unless amplified by specific instances of misconduct." Id. (quotations omitted). Here, Betts has "fail[ed] to specify in detail the factual basis necessary to enable appellees intelligently to prepare their defense." Ostrer v. Aronwald, 567 F.2d 551, 553 (2d Cir. 1977). Instead, the Complaint merely states in a conclusory fashion that the three individual defendants conspired to deprive him of his rights, presumably through the officers' alleged "coaching" of Shearman. Given that it is implausible that Shearman was coached into providing a statement consistent with her earlier allegation—made before police arrived on the premises—and given that § 1983 is aimed at state actors, or those private citizens who "willful[ly] participa[tes] in joint activity with the State or its agents," Ciambriello, 292 F.3d at 324, Betts fails to state a claim against Shearman.

D. Plaintiff's Monell Claim Against the City

Plaintiff also alleges that the City has a "custom, policy and practice" of "improper training" and "improper supervision" that permitted constitutional violations and "tacitly permitt[ed] the subornation of perjury," the "fabrication of evidence, the coaching of witnesses in domestic cases, and the commencement and continuation of criminal prosecutions without probable cause." (Compl. at ¶ 52.) The City moves to dismiss this allegation for failure to state a claim. (City Memo. at 21.)

It is axiomatic that municipalities cannot be held liable pursuant to § 1983 on a respondeat superior theory. Monell v. Dep't of Social Servs., 436 U.S. 658, 690 (1978). Instead, a plaintiff asserting a § 1983 claim against a municipality must allege that the town or City "under color of some official policy, 'caused' an employee to violate a person's constitutional rights." Saenz v. Lucas, No. 07 Civ. 10534, 2008 WL 2735867, at *5 (S.D.N.Y. July 9, 2008) (quoting Monell, 436 U.S. at 692); see also Zahra v. Town of Southold, 48 F.3d 674, 685 (2d Cir. 1995) ("To hold a municipality liable in such an action, 'a plaintiff is required to plead and prove three elements: (1) an official policy or custom that (2) causes the plaintiff to be subjected to (3) a denial of a constitutional right.'" (quoting Batista v. Rodriguez, 702 F.2d 393, 397 (2d Cir.1983)).

Thus, if, pursuant to policy or custom, a municipality's agents engage in constitutional violations, liability will attach. Monell, 436 U.S. at 692. To allege such a policy or custom, the plaintiff may assert: "(1) the existence of a formal policy officially endorsed by the municipality; (2) actions taken or decisions made by municipal officials with final decision making authority, which caused the alleged violation of plaintiff's civil rights; (3) a practice so persistent and widespread that it constitutes a custom of which constructive knowledge can be implied on the part of the policymaking officials; or (4) a failure by policymakers to properly train or supervise their subordinates, amounting to 'deliberate indifference' to the rights of those who come in contact with the municipal employees." Saenz, 2008 WL 2735867, at *5 (emphasis added).

While a court may not apply a heightened pleading standard to Monell claims, Leatherman v. Tarrant Cty. Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 168 (1993), "boilerplate" conclusions as to municipal liability will not suffice, even at this early stage of the litigation. See, e.g., In re Dayton, 786 F. Supp. 2d 809, 822-23 (S.D.N.Y. 2011) ("This boilerplate recitation of the elements of a Monell claim is insufficient to survive a motion to dismiss."); Brodeur v. City of New York, No. 99 Civ. 651, 2002 WL 424688, at *6 (S.D.N.Y. Mar. 18, 2002) ("However, absent from the complaint are specific factual allegations sufficient to establish that a municipal policy or custom caused [Plaintiff's] alleged injury. If anything, [Plaintiff] alleges that City officials sought to deprive him of his civil rights out of a sense of personal animus towards him, not as an outgrowth of a municipal policy or custom." (internal citation omitted)); George v. Burton, No. 00 Civ. 143, 2001 WL 12010, at *2 (S.D.N.Y. Jan. 4, 2001) ("[P]laintiff has failed to proffer any facts in his complaint from which we can infer such a pattern or practice.").

Here, Betts has done no more than state, in a conclusory fashion, that Jane Doe and Rodriguez "acted in accordance with [a] custom, policy and practice," which "allowed improper police procedures to be used and failed to prevent the occurrences" described in the Complaint. (Compl. at ¶ 53.) To state there is a policy does not make it so. And while a plaintiff need not assert the allegations in the initial complaint with a level of specificity only made possible through discovery, here, Betts has alleged no facts from which this Court could plausibly infer the existence of a custom or policy on the part of the City. See Plair v. City of New York, 789 F. Supp. 2d 459, 469 (S.D.N.Y. 2011) ("Here, the complaint lacks sufficient factual details concerning Monell liability and contains boilerplate allegations of unconstitutional policies and practices. Specifically, Plaintiff conclusorily alleges that the City 'permitted, tolerated and was deliberately indifferent to a pattern and practice of staff brutality and retaliation by DOC staff at the time of plaintiff's beatings [which] constituted a municipal policy, practice or custom and led to plaintiff's assault.'" (internal citation omitted; alteration in original)).

E. Plaintiff's State Law Claims

Betts asserts state law claims of false arrest, malicious prosecution, abuse of process, prima facie tort, and intentional infliction of emotional distress against all Defendants. (Compl. at ¶¶ 63-75.) This Court declines to exercise supplemental jurisdiction over Betts' state law claims, as all his other claims have been dismissed. 28 U.S.C. § 1367 ("(c) The district courts may decline to exercise supplemental jurisdiction over a claim under subsection (a) if . . . (3) the district court has dismissed all claims over which it has original jurisdiction . . . .").

III. Conclusion

For the foregoing reasons, Defendants' motions to dismiss are GRANTED.

Betts' claims against the City are DISMISSED with prejudice. Betts' claims against Rodriguez are DISMISSED with prejudice, except his excessive force claim, which is DISMISSED without prejudice, and with leave to REPLEAD within thirty days of this order. Betts' claims against Shearman are DISMISSED with prejudice. Jane Doe is terminated as a party.

The Clerk of the Court is directed to close the entries at Docket Numbers 10 and 14. Dated: New York, New York

January 24, 2013



United States District Judge

Summaries of

Betts v. Shearman

Jan 24, 2013
12 Civ. 3195 (JPO) (S.D.N.Y. Jan. 24, 2013)

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Case details for

Betts v. Shearman

Case Details

Full title:JOHN BETTS, Plaintiff, v. MARTHA ANNE SHEARMAN, et al., Defendants.


Date published: Jan 24, 2013


12 Civ. 3195 (JPO) (S.D.N.Y. Jan. 24, 2013)

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