Opinion
01 CV 0129 (ILG)
January 9, 2002
MEMORANDUM ORDER
In this 42 U.S.C. § 1983 action, plaintiff Jakim Pugh ("Pugh") alleges that he was falsely arrested, and subjected to excessive force during that arrest, by various officers of the New York City police department. The City of New York now moves to dismiss certain counts in the complaint, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons set forth below, the City's motion is granted.
By letter dated August 22, 2001, defendant Detective Louis Scarcella ("Scarella") requested that he be permitted to join the City's motion to dismiss. The Court granted that request on August 31, 2001.
BACKGROUND
On January 9, 2001, Pugh commenced this action. In his bare-bones complaint, Pugh includes only one paragraph regarding the alleged constitutional violations he suffered. That paragraph reads:
The plaintiff on January 8, 1998 at about 8:00 AM near the intersection of Dumont and Grafton, Kings County, New York was unlawfully seized by defendants, UNIDENTIFIED NEW YORK CITY POLICE OFFICERS. After the plaintiff was unlawfully stopped by the police, plaintiff was unlawfully assaulted, searched, handcuffed and arrested. Plaintiff was physically assaulted, falsely charged with murder and unlawfully interrogated. During the interrogation plaintiff was hit and threatened by the defendants. Plaintiff JAKIM PUGH was imprisoned and brought to a police precinct and central booking. Plaintiff JAKIM PUGH was forced to stay in jail until he was released for lack of evidence without appearing in court on January 9, 1998. Defendants CHMIEL and SCARCELLA were responsible for the arrest and investigation of the plaintiff.
(Compl. ¶ 13.) Based on the allegations in this paragraph, Pugh asserts five causes of action, each of which is brought pursuant to Section 1983: (i) a claim based on the allegedly false arrest (see id. ¶¶ 14-21); (ii) a claim based on the allegedly excessive force used during and after the arrest (see id. ¶¶ 22-27); (iii) a claim based on the defendants' alleged failure "to intercede to prevent preventable harms caused by other officers' actions" (see id. ¶¶ 28-31); (iv) aMonell claim against the city (see id. ¶¶ 32-40); and (v) a claim tracking the Monell claim, but against the individual defendants (see id. ¶¶ 41-45).
The City now moves to dismiss a number of the causes of action asserted in the complaint. First, the City asserts that the false arrest and excessive force claims must be dismissed because they are barred by the statute of limitations. (See Def. Mem. at 4-5.) The City also argues that, to the extent Pugh has pleaded a conspiracy claim, that claim must be dismissed because it is inadequately plead. (See id. at 6-7.) Finally, the City argues that the claims against it must be dismissed, because Pugh has failed to allege facts demonstrating that his constitutional rights were violated as a result of a policy, practice or custom of the City. (See id. at 7-9) Pugh has not opposed the City's motion.
The City also argues that the Court should dismiss Pugh's malicious prosecution claim, because no criminal prosecution ever was initiated against Pugh. (see Def Mem. at 5-6.) The complaint, however, nowhere alleges a claim for malicious prosecution.
DISCUSSION
On a Rule 12(b)(6) motion, the Court must accept as true the factual allegations in the complaint and view the complaint in the light most favorable to the non-moving party. Bolt Elec., Inc. v. City of N.Y., 53 F.3d 465, 469 (2d Cir. 1995). Dismissal under Rule 12(b)(6) may only be granted if "it appears beyond doubt that the Plaintiff can prove no set of facts in support of her claim which entitle her to relief." Walker v. City of N.Y., 974 F.2d 293, 298 (2d Cir. 1992) (internal quotations omitted).
I. The false arrest and excessive force claims must be dismissed
In New York, the statute of limitations for actions brought pursuant to Section 1983 is three years. See, e.g, Owens v. Okure, 488 U.S. 235, 240-41 (1989); Paige v. Police Dep't of City of Schenectady, 264 F.3d 197, 199 n. 2 (2d Cir. 2001). Thus, because each of the claims in the complaint is brought under Section 1983, each claim must have been brought within three years from the date it accrued, or else it is barred by the statute of limitations. The City argues that Pugh's false arrest and excessive force claims accrued on January 8, 1998, the date on which Pugh allegedly was falsely arrested and subjected to excessive force. (See Def. Mem. at 4-5.) Accordingly, the City asserts that Pugh's false arrest and excessive force claims are barred by the statute of limitations, because he filed his complaint on January 9, 2001, one day too late. (See id.)
The City is correct. A Section 1983 claims accrues "when the plaintiff knows or has reason to know of the harm" he has suffered. Connolly v. McCall, 254 F.3d 36, 41 (2d Cir. 2001) (quoting Eagleston v. Guido, 41 F.3d 865, 871 (2d Cir. 1994)). In general, where an allegedly false arrest does not result in the initiation of a criminal prosecution, a claim of false arrest accrues on the date of the arrest. See Covington v. City of N.Y., 171 F.3d 117, 123 (2d Cir. 1999); Lewis v. N.Y.C. Police Dep't, No. 99 CIV 0952, 2000 WL 16955, at *2 (S.D.N Y Jan. 10, 2000);Bezerra v. County of Nassau, 846 F. Supp. 214, 2 18-19 (E.D.N.Y. 1994). An excessive force claim accrues on the date the plaintiff was subjected to the allegedly excessive force. See, e.g., Pichardo v. N.Y. Police Dep't, No. 98 CIV 429, 1998 WL 812049, at *7 (S.D.N.Y. Nov. 18, 1998);Bezerra, 846 F. Supp. at 219. In this case, Pugh's false arrest claim accrued on January 8, 1998, the date of his arrest, because no criminal prosecution was initiated against him. Likewise, Pugh's excessive force claim accrued on January 8, 1998, because Pugh was subjected to the allegedly excessive force on that date. (See Compl. ¶ 13.) Therefore, because Pugh did not file his complaint until January 9, 2001, his false arrest and excessive force claims are time barred.
Pugh cannot be heard to complain that it would be unfair to dismiss these claims because his lawsuit was filed one day too late. Numerous courts have granted motions to dismiss where the lawsuit at issue was filed one day beyond the statute of limitations. See, e.g., Merriweather v. City of Memphis, 107 F.3d 396, 400 (6th Cir. 1997); Day v. Morgenthau, 909 F.2d 75, 79 (2d Cir. 1990); Kasler/Cont'l Heller/Fruin Colnon v. United States, 9 Cl. Ct. 187, 191 (1985).
Accordingly, these claims must be dismissed.
In his false arrest claim, Pugh makes a passing reference to a conspiracy on the part of the defendants to falsely arrest him. (See Compl. ¶ 18.) The City has moved to dismiss this "claim," on the ground that it has been inadequately pleaded. It is not altogether clear to the Court that, notwithstanding his stray reference to a conspiracy, that Pugh has attempted to assert a Section 1983 conspiracy claim. But even assuming that Pugh intended to assert such a claim, the City is correct that the "claim" must be dismissed, for two reasons. First, the claim has been insufficiently pleaded, as the City argues. See Dwares v. City of N.Y., 985 F.2d 94, 100 (2d Cir. 1993) ("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; [d]iffuse and expansive allegations are insufficient, unless amplified by specific instances of misconduct") (internal quotation marks and citations omitted). Furthermore, "[s]ince [Pugh] cannot establish a claim for false arrest or the use of excessive force, he may not maintain a § 1983 cause of action for conspiracy."Curley v. Village of Suffern, 268 F.3d 65, 72 (2d Cir. 2001).
II. The Monell claim must be dismissed
Pugh also purports to assert a Monell claim against the City. A Monell claim — arising from the Supreme Court case of Monell v. Department of Social Services, 436 U.S. 658 (1978). is a way to hold a municipality liable under Section 1983 for the conduct of its employees. See Dwares v. City of N.Y., 985 F.2d 94, 100 (2d Cir. 1993). Such a claim cannot simply be based on a theory of respondeat superior, however; rather, a plaintiff "must show that the violation of his constitutional rights resulted from a municipal custom or policy." Id. (citations omitted);accord Perez v. County of Westchester, 83 F. Supp.2d 435, 438 (S.D.N.Y. 2000). "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, 985 F.2d at 100 (quoting Ricciuti v. N.Y.C. Transit Auth., 941 F.2d 119, 123 (2d Cir. 1991)). However,
[t]he mere assertion . . . that a municipality has such a custom or policy is insufficient in the absence of allegations of fact tending to support, at least circumstantially, such an inference. Similarly, the simple recitation that there was a failure to train municipal employees does not suffice to allege that a municipal custom or policy caused the plaintiffs injury. A single incident alleged in a complaint, especially if it involved only actors below the policymaking level, generally will not suffice to raise an inference of the existence of a custom or policy.Id. (internal citations omitted); accord Perez, 83 F. Supp.2d at 438-39.
The allegations in this case are insufficient to establish that the alleged deprivation of Pugh's constitutional rights resulted from a custom or policy of the City. Pugh merely alleges, without any supporting factual allegations, that the City, "as a matter of policy and practice, ha[s] acted with a callous, reckless and deliberate indifference to plaintiffs' [ sic] constitutional rights under the constitution and laws of the United States, in that [it] failed to adequately discipline, train, supervise or otherwise direct police officers concerning the rights of citizens." (Compl. ¶ 34 see id. ¶¶ 35-38.) Because Pugh's complaint does not contain a single factual allegation in support of this conclusory allegation, it must be dismissed. See Dwares, 985 F.2d at 101 (allegation that the City "knowingly, recklessly, negligently failed to, and was deliberately indifferent to the need to provide adequate training, monitoring and supervision of the defendant police officers with respect to their obligation to protect citizens engaged in protected First Amendment activity from unlawful and unjustified intrusions on the exercise of those rights" insufficient, without more, to state Monell claim); Perez, 85 F. Supp.2d at 438-39 (allegation that "[a]t all times hereinafter stated, defendants, their agents, servants and employees, were acting under color of law and pursuant to county policy and custom" insufficient); Fanelli v. Town of Harrison, 43 F. Supp.2d 254, 258-60 (S.D.N.Y. 1999) (same); Kuriakose v. City of Mount Vernon, 41 F. Supp.2d 460, 466 (S.D.N.Y. 1999) (same); Oparaji v. City of N.Y., No. 96 CV 6233, 1997 WL 139160, at *3 (E.D.N.Y. Mar. 21, 1997) (same).
It is unclear from the complaint whether Pugh also asserts hisMonell claim against individual police officers, in their official capacities, in addition to the City. Nevertheless, to the extent Pugh attempts to do so, the claim must be dismissed as against the individual officers for the same reason that it must be dismissed as against the City. See Dwares, 985 F.2d at 100 ("there must be proof of . . . a custom or policy in order to permit recovery on claims against individual municipal employees in their official capacities, since such claims are tantamount to claims against the municipality itself").
CONCLUSION
For the reasons set forth above, the City's motion to dismiss is granted, and Pugh's false arrest and excessive force claims (Counts I and II in the complaint) are dismissed with prejudice. To the extent Pugh alleges a conspiracy claim under Section 1983, that claim also is dismissed with prejudice. Pugh's Monell claim (Count IV in the complaint) is dismissed without prejudice.SO ORDERED.