Anna Doe v. City of N.Y.

Anna Doe, Plaintiff v. The City of New York,Detective Richard Hall, Detective Eddie Martins, Sergeant John Espey,Police Officer Gregory Markov, and John Doe Officers 1 to 8, Defendants.

18-cv-670 (ARR) (JO)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

August 9, 2018

Not for publication

Opinion & Order

ROSS, United States District Judge:

Anna Doe alleges that New York City Police Department Detectives Richard Hall and Eddie Martins took her into police custody, repeatedly raped her in the back of a police van, and then released her without charging her with any crime. Later that same evening, Doe went to Maimonides Hospital to seek treatment. A number of police officers, including Officer Gregory Markov, responded to the hospital when they heard that Doe was complaining that plainclothes police officers had raped her. Markov and the John Doe Officers "bullied, threatened and intimidated" Doe in an attempt to prevent her from filing a complaint, questioning whether she had in fact been raped and whether her alleged assailants were actually police officers.

Doe filed suit in Kings County Supreme Court against Detectives Hall and Martins, their supervisor Sergeant John Espey, the police officers who responded to the hospital, and the City of New York. The City removed this complaint to federal court, and is now moving to dismiss all claims against the City, Officer Markov, and the John Doe Officers. (The City is not representing Sergeant Espey or Detectives Hall and Martins.) Sergeant Espey, who is being represented by counsel from the Sergeants Benevolent Association, is also moving to dismiss all claims against him. Detectives Hall and Martins, who have resigned from the police force and are currently facing criminal charges in Kings County Supreme Court, do not join in the motion to dismiss.

For the following reasons, Sergeant Espey's motion to dismiss is granted in its entirety. The City and Officer Markov's motion to dismiss is granted in part and denied in part.

BACKGROUND¹

A. The Events of September 15, 2017

On September 15, 2017, at about 8:00 p.m., Anna Doe was in Calvert Vaux Park in Brooklyn when Detectives Hall and Martins detained and arrested her "without just cause or provocation," placing her in the back of an unmarked police van. Third Am. Compl. ¶ 13, ECF No. 42 ("Compl."). Hall and Martins drove Doe to the parking lot of a Chipotle Restaurant, where they raped her. Id. ¶ 14. They then drove around Brooklyn, raping Doe as they went. Id. ¶ 15. When they were done, they released Doe near the 60th Precinct, without charging her with any crime. Id. ¶¶ 16-17. Hall and Martins were assigned to the Brooklyn South Narcotics unit at the time of this incident, and were working under the supervision of Sergeant Espey. Id. ¶ 10.

Later that night, accompanied by her mother, Doe went to Maimonides Hospital to seek treatment for the injuries she sustained as a result of this incident. Id. ¶¶ 37, 44. She told hospital staff that two plainclothes police officers had raped her. Id. ¶ 38. Hospital personnel relayed this information to the NYPD. Id. ¶ 39. A number of police officers responded to the hospital, including Officer Gregory Markov. Id. ¶¶ 40, 42. Doe told several officers, including Markov, "that she wished to press charges against the two plainclothes police officers." Id. ¶ 42.

Markov and these other officers then "pressured, bullied, threatened and intimidated" Doe "in an attempt to prevent [her] from implicating . . . police officers in the sexual assault." Id. ¶ 43.Markov repeatedly told Doe and her mother in Russian that "the two plainclothes police officers were not real police officers and that he was aware that [Doe] made the same complaints previously about other police officers." Id. ¶ 47. (Markov, like Doe and her mother, speaks Russian. Id. ¶¶ 45-16.) He also repeatedly insisted that Doe had "the story wrong," she "was not raped by police officers," and she "did not know what she was talking about." Id. ¶¶ 48-19. Doe alleges that Markov did all of this to prevent her "from submitting to a medical exam and rape kit," and to keep her "from pressing charges against the two plainclothes police officers." Id. ¶ 50.

B. Brooklyn South Narcotics

This is not the first reported case of on-duty sexual misconduct by officers assigned to Brooklyn South Narcotics. Plaintiff alleges that newspaper articles show a pattern of sexual misconduct by officers assigned to this command over the course of the past 20 years.

According to a 2011 newspaper article detailing a police corruption trial, multiple officers assigned to this command supplied crack cocaine to a drug user "and forced her to perform sex acts . . . in return." Id. ¶¶ 25-26. A 2008 newspaper article revealed that 15 police officers from this command "were placed on desk duty as a result of a five-month investigation by the NYPD's Internal Affairs Bureau, which revealed a widespread practice of officers in that unit trading drugs for sexual favors with informants and prostitutes." Id. ¶ 27. As a result of this same investigation, "the Police Commissioner transferred the commanding officer of citywide narcotics, the head of Brooklyn South Narcotics . . . and two captains in the unit." Id. ¶ 28. Finally, a 2003 article revealed that a female police lieutenant was suing her former superiors in the NYPD over the "constant abuse" she endured during her time in the "frat house" environment of Brooklyn South Narcotics. Id. ¶ 29. She alleged that officers in this unit, among other things, "guzzled beer, surfed the internet for hardcore pornography and pasted pictures of nude women on the walls." Id.

C. Procedural history

After the City removed this action to the Eastern District of New York, Doe filed her first amended complaint. First Am. Compl., ECF No. 8. A month later, the City requested a pre-motion conference regarding an anticipated motion to dismiss. Letter from Ariel Lichterman (Apr. 10, 2018), ECF No. 16. Plaintiff then filed a second amended complaint, Second Am. Compl., ECF No. 23, "in order to obviate the need for the Court's intervention," Letter from Michael N. David (Apr. 17, 2018), ECF No. 24. Plaintiff's counsel stated that he "believe[d] that the second amended complaint addresses the issues raised by defense counsel." Id. The City then filed a renewed request for a pre-motion conference. Letter from Ariel Lichterman (Apr. 19, 2018), ECF No. 27. Plaintiff filed a responsive letter. Letter from Michael N. David (Apr. 30, 2018), ECF No. 28. Two weeks later, Sergeant Espey sought to join the City's request for a pre-motion conference, without providing any factual or legal grounds for this request. Letter from Matthew K. Schieffer (May 14, 2018), ECF No. 39. Two days after that, I held a telephonic pre-motion conference with counsel for Doe, the City, and Espey, where I set a briefing schedule and discussed what I viewed as the pleading defects with regard to plaintiff's complaint. Plaintiff subsequently filed a third amended complaint. The present motions to dismiss followed.

The third amended complaint lists seven causes of action: (1) False arrest and imprisonment against Hall, Martins, and the City; (2) Assault, sexual assault, and battery against Hall, Martins, and the City; (3) Negligent hiring, retention, and supervision against the City; (4) Negligent supervision against Espey; (5) Violations of the First, Fourth, Fifth, Eighth, and Fourteenth Amendments under 42 U.S.C. § 1983 against all defendants; (6) Intentional infliction of emotional distress against Hall, Martins, Markov, the John Doe Officers, and the City; and (7) First Amendment retaliation against Hall, Martins, Markov, the John Doe Officers, and the City.

The defendants (other than Detectives Halls and Martins) are moving to dismiss all seven causes of action for failure to state a claim. I will discuss each cause of action in turn.

DISCUSSION

In deciding a motion to dismiss under Rule 12(b)(6), this court must "accept[] all factual allegations in the complaint as true" and "draw[] all reasonable inferences in the plaintiff's favor." Lundy v. Catholic Health Sys. of Long Island Inc., 711 F.3d 106, 113 (2d Cir. 2013) (quoting Holmes v. Grubman, 568 F.3d 329, 335 (2d Cir. 2009)). Nonetheless, the complaint's "[f]actual allegations must be enough to raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Only "a plausible claim for relief survives a motion to dismiss." LaFaro v. N.Y. Cardiothoracic Grp., 570 F.3d 471, 476 (2d Cir. 2009). Further, courts "are not bound to accept as true a legal conclusion couched as a factual allegation." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (citing Twombly, 550 U.S. at 555).

"Generally, consideration of a motion to dismiss under Rule 12(b)(6) is limited to consideration of the complaint itself." Faulkner v. Beer, 463 F.3d 130, 134 (2d Cir. 2006). A court can, however, consider materials outside the complaint on a 12(b)(6) motion in some limited circumstances. Id. For example, a district court can consider the full text of documents that are quoted in the complaint or "documents relied upon by [the] plaintiff in drafting the complaint and integral to the complaint." Id. A court can also consider "matters of which judicial notice may be taken." Chambers v. Time Warner, 282 F.3d 147, 153 (2d Cir. 2002). But "a plaintiff's reliance on the terms and effect of a document in drafting the complaint is a necessary prerequisite to the court's consideration of the document on a dismissal motion; mere notice or possession is not enough."Id. Moreover, if other "matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment." Fed. R. Civ. P. 12(d).

I. The ...