McDonald v. City of New York

GRETHEL MCDONALD, Plaintiff, v. THE CITY OF NEW YORK; NYPD P.O. FELIX MAK, SHIELD NO. 19522; NYPD P.O. RYAN HARKINS, SHIELD NO. 10194; NYPD P.O. BRIANA SURKO, SHIELD NO. 9240; and LT. GRIGORIY BARDASH, in their individual and official capacities, Defendants.

No. 20-CV-4614 (MKB)

United States District Court, E.D. New York

May 10, 2022

MEMORANDUM & ORDER

MARGO K. BRODIE UNITED STATES DISTRICT JUDGE

Plaintiff Grethel McDonald commenced this action on September 28, 2020 alleging that the City of New York (the “City”) and New York Police Department (“NYPD”) Officers John/Jane Does #1-10 violated her civil and constitutional rights under 42 U.S.C. § 1983, 42 U.S.C. § 1988 and state law. (Compl. ¶ 1, Docket Entry No. 1.) On May 4, 2021, Plaintiff filed an Amended Complaint re-asserting claims against the City and naming Officers Felix Mak, Ryan Harkins, Briana Surko and Lieutenant (“Lt.”) Grigoriy Bardash (collectively, the “Individual Defendants”) as Defendants. (Am. Compl. ¶ 6 Docket Entry No. 12.) Plaintiff alleges that on September 30 2017, the Individual Defendants unlawfully seized her bag without provocation while she was on private property and then arrested her. (Id. ¶¶ 8-13.) Plaintiff alleges false arrest, unlawful search and seizure, excessive force, malicious prosecution, and failure to intervene. (Id. ¶¶ 1, 38-68.)

Defendants move to dismiss the Amended Complaint for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, and Plaintiff opposes the motion.^[1] For the reasons explained below, the Court denies Defendants' motion to dismiss Plaintiff's false arrest, unlawful search, excessive force, and failure to intervene claims and grants Defendants' motion to dismiss Plaintiff's malicious prosecution and Monell claims. The Court also grants Plaintiff leave to file a second amended complaint within thirty days of the date of this Memorandum and Order.

I. Background

The Court assumes the truth of the factual allegations in the Amended Complaint for the purposes of this Memorandum and Order.

a. The parties

Plaintiff is an African-American female and a resident of New York State. (Am. Compl. ¶ 4.) The City of New York is a municipal corporation organized under the laws of New York State. (Id. ¶ 5.) The Individual Defendants were, at the time of the events alleged in the Amended Complaint, NYPD officers employed with the 120th Precinct in Richmond County, New York or “other as yet unknown NYPD [precinct].” (Id. ¶ 6.)

h. The arrest

On September 30, 2017, at approximately 1:00 AM, “in the vicinity of Campbell Street, West Brighton, Richmond County, Staten Island, New York, ” Plaintiff was at 173 Campbell Street and her bag was on the porch. (Id. ¶¶ 8-10.) Plaintiff saw either Officer Mak or Officer Harkins seize her bag and hold it. (Id. ¶ 11.) Plaintiff asked for her bag, but the officer “told [P]laintiff [that] she could not have her bag, and that she had to go to the precinct.” (Id. ¶¶ 1213.) Plaintiff once again asked for her bag and told Officers Mak and Harkins that they “had no lawful right to take [P]laintiff's bag because it was on private property.” (Id. ¶ 14.) One of the officers asked Plaintiff for her identification, and when she told the officers that she had her identification in her purse, Officer Harkins searched Plaintiff's bag and told Office Mak to write Plaintiff a ticket. (Id. ¶¶ 15-17.) Either or both Officers Mak and Harkins then “grabbed [P]laintiff” and “slammed [P]laintiff to the ground.” (Id. ¶¶ 18-19.) One of the officers then put his knee on Plaintiff's face and called her a “bitch.” (Id. ¶¶ 20-21.) Officer Mak placed “excessively tight” handcuffs on Plaintiff. (Id. ¶ 23.) Officer Surko and Lieutenant Bardash were present, Officer Surko assisted in the arrest, and Lieutenant Bardash supervised and approved of the arrest. (Id. ¶¶ 22, 24.) Officers Harkins, Surko, and Mak put Plaintiff in a police car, and Officers Mak and Harkins took Plaintiff to the 120th Precinct, where she remained in a cell while they processed her arrest. (Id. ¶¶ 26-28.) “During this time, . . . [Officer Mak] . . . falsely and maliciously told the Richmond County District Attorney's Office that [P]laintiff had committed various crimes.” (Id. ¶ 29.) On or about December 21, 2018, all charges against Plaintiff were dismissed. (Id. ¶ 30.) Plaintiff alleges that the actions against her were motivated “by extreme recklessness and indifference” and “also based on profiling.” (Id. ¶¶ 36-37.)

II. Discussion

a. Standard of review

In reviewing a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a court must construe the complaint liberally, “accepting all factual allegations therein as true and drawing all reasonable inferences in the plaintiffs' favor.” Sacerdote v. N.Y.Univ., 9 F.4th 95, 106-107 (2d Cir. 2021); Vaughn v. Phoenix House N.Y. Inc., 957 F.3d 141, 145 (2d Cir. 2020).

A complaint must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); Bacon v. Phelps, 961 F.3d 533, 540 (2d Cir. 2020) (quoting Twombly, 550 U.S. at 570). A claim is plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Matson v. Bd. of Educ., 631 F.3d 57, 63 (2d Cir. 2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)); Cavello Bay Reinsurance Ltd. v. Shubin Stein, 986 F.3d 161, 165 (2d Cir. 2021) (quoting Iqbal, 556 U.S. at 678). Although all allegations contained in the Amended Complaint are assumed to be true, this tenet is “inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678; Vaughn, 957 F.3d at 145 (same).

h. Plaintiff's false arrest, unlawful search, excessive force, and failure to intervene claims are not time-barred

Defendants move to dismiss Plaintiff's false arrest, unlawful search, excessive force, and failure to intervene claims against the Individual Defendants on the basis that they are barred by the applicable section 1983 statute of limitations. (Defs.' Mem. 6.) In support, Defendants argue that: (1) the Amended Complaint does not relate back to the filing of the initial Complaint, (id. at 7-8); (2) Plaintiff's claims for false arrest, unlawful search, excessive force, and failure to intervene are time-barred “because they expired several months prior to the filing of the Amended Complaint, ” (id. at 8-10); and (3) Plaintiff's claims are not subject to former Governor Andrew Cuomo's Executive Order 202.8 (the “Executive Order”), which tolled the state statute of limitations due to the Covid-19 pandemic, because the Executive Order does not toll actions brought in federal court, ^[2] (id. at 10-12).

Plaintiff contends that the case was timely filed because the “statute of limitations was tolled due to the global Covid-19 pandemic, ” and that the Executive Order applies to cases filed in federal courts.^[3] (Pl.'s Opp'n 3-7.)

The statute of limitations for claims brought pursuant to section 1983 is determined by state law, and in New York State, the statute of limitations for actions brought pursuant to section 1983 is three years. See Helwing v. Pszeniczny, No. 21-CV-843, 2022 WL 6130341, at *2 (2d Cir. Mar. 2, 2022) (“Section 1983 actions filed in New York are . . . subject to a three-year statute of limitations.” (quoting Hogan v. Fischer, 738 F.3d 509, 517 (2d Cir. 2013))); Sant v. Stephens, 821 Fed.Appx. 42, 44-45 (2d Cir. 2020) (“The statute of limitations for actions brought in New York pursuant to [section 1983] . . . is three years.” (first citing Paige v. Police Dep't of City of Schenectady, 264 F.3d 197, 199 n.2 (2d Cir 2001); and then citing Okure v. Owens, 816 F.2d 45, 49 (2d Cir. 1987), aff'd, 488 U.S. 235 (1989))); Shomo v. City of New York, 579 F.3d 176, 181 (2d Cir. 2009) (“The statute of limitations for claims brought under [s]ection 1983 is governed by state law, and in this case is the three-year period for personal injury actions under New York State law.”). “While state law supplies the statute of limitations for claims under [section] 1983, federal law determines when a federal claim accrues. The claim accrues when the plaintiff knows or has reason to know of the harm.” Connolly v. McCall, 254 F.3d 36, 41 (2d Cir. 2001) (per curiam) (quoting Eagleston v. Guido, 41 F.3d 865, 871 (2d Cir. 1994)); see also Yany's Garden LLC v. City of New York, No. 20-CV-3419, 2022 WL 288071, at *2 (2d Cir. Feb. 1, 2022) (“Section 1983 actions in New York are subject to a three-year statute of limitations, running from the time a plaintiff knows or has reason to know of the injury giving rise to the claim.” (quotingMilan v. Wertheimer, 808 F.3d 961, 963 (2d Cir. 2015))); Sant, 821 Fed.Appx. at 45 (“Claims brought pursuant to [section] 1983 . . . accrue ‘once the plaintiff knows or has reason to know of the injury which is the basis of his action.'” (quoting Cornwell v. Robinson, 23 F.3d 694, 703 (2d Cir. 1994))); Shomo, 579 F.3d at 181 (“A [s]ection 1983 claim ordinarily ‘accrues when the plaintiff knows or has reason to know of the harm.'” (quoting Eagleston, 41 F.3d at 871)).

On March 20, 2020, former Governor Cuomo signed the Executive Order, which “suspend[ed] or modif[ied]” “any specific time limit for the commencement, filing or service of any legal action, notice, motion, or other process or proceeding.” (Executive Order.) Thereafter, Governor Cuomo signed additional orders continuing the toll of the statute of limitations until November 3, 2020. (Defs.' Mem. 10; Pl.'s Opp'n 5.) While the Second Circuit has not considered whether the Executive Order tolls the statute of limitations for section 1983 cases brought in federal courts, other cour...