MEMORANDUM AND ORDER
This is a civil rights action brought under 42 U.S.C. Sections 1981, 1983, and 1988 by Eddie Roundtree against the City of New York, the City of New York Police Department (the “Police Department”), Lee Brown (both individually and as Commissioner of the Police Department), Diana Nix (an officer of the Police Department), and unnamed individual police officers of the Police Department. The plaintiff alleges that the defendants “illegally arrested, illegally searched, illegally detained and illegally assaulted” him and that the defendants thereby violated his civil rights under the Fourth, the Fifth, and the Fourteenth Amendments to the federal Constitution. Complaint ¶1¶ 35-36. Defendants have moved to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(6). For the reasons stated below, the motion of the defendants is granted in part and denied in part.
FACTS
The defendants concede — as concede they must for the purposes of this motion — the truth of the facts as alleged by the plaintiff in his complaints. The plaintiff, Mr. Roundtree, is a black male. At the time of the events that gave rise to his complaint, he was employed as a chauffeur. On July 10, 1990, Mr. Roundtree was driving a large sedan through Queens, New York; he was wearing a coat, a tie, and dark sunglasses. While stopped at an intersection in Queens, the plaintiff gave a match to a passerby. Soon thereafter, he was detained by police officers who searched, arrested, and handcuffed the plaintiff; they told him that he was under arrest for possession of cocaine. Then, the police officers “physically and with undue force, pushed plaintiff into one of ... two unmarked [police] cars____” Complaint ¶ 17.
The police took the plaintiff to the 103rd police precinct at about 7:30 p.m. Mr. Roundtree was detained there for several hours during which time he was denied use of a lavatory; he was then subjected to a strip search, and he was photographed and fingerprinted. At about midnight, he was taken to the 110th precinct where he spent the night. During this time, he was not allowed to make a telephone call or to consult with an attorney.
Mr. Roundtree was not provided with food until 10:00 a.m. on the morning of July 11,1991. At that time, he was given a “stale bologna and cheese sandwich and sour milk.” Complaint ¶ 20. At about 2:30 p.m. that day, plaintiff was transported to court in Kew Gardens, New York; there, he was subjected to a “pat down”. Complaint 1122. Finally, Mr. Roundtree, who contends that he had no cocaine in his possession at the time of his arrest, pleaded guilty to disorderly conduct and paid a $100 fine. He alleges that his plea was entered on the advice of counsel that such a plea was the “most expeditious way for him to be released from custody and to return to his job.” Complaint ¶ 24.
Plaintiff then filed this civil rights action in which he alleges that the municipal defendants engage in “a custom and practice of routinely conducting drug sweep roundups by targeting certain areas known for excessive illegal drug activity, and rounding up persons walking or driving on particular blocks within these known drug areas.” Complaint 1129. Mr. Roundtree alleges that his arrest and detention were executed pursuant to “these tactics". Complaint II30. Plaintiff further contends that the police officer defendants violated *617 his constitutional rights “by the unlawful and wrongful seizing of plaintiffs person without probable cause, by causing him to be unlawfully detained and incarcerated on serious charges that they knew or should have known were false, by the unlawful seizing of plaintiffs person in clear violation of due process, and by the knowing and wrongful submission of false data regarding the transaction that led to plaintiffs arrest.” Complaint if 36. Plaintiff appears also to allege unconstitutional search of his person, Complaint' ¶ 35; excessive use of force in his arrest, Complaint ¶¶ 17, 35; punishment without due process of law, Complaint 1137; invasion of his privacy, Complaint 1132; and failure by the defendants “to protect [his] personal rights” while he was detained, Complaint 1132.
Mr. Roundtree states that “due [sic] solely to the acts of the defendants ... plaintiff was denied his fundamental rights, was deprived of his liberty and forced to answer criminal charges. He was forced to undergo the mental anguish and strain of these proceedings; and will bear lasting and permanent mental scars of the ordeal.” Complaint II38. Finally, he maintains that “[a]s a proximate result of defendants’ actions, plaintiff was greatly humiliated, injured in his reputation and suffered great pain and mental anguish, all to plaintiff’s damage in the sum of $1,000,000.00 for emotional pain and suffering.” Complaint If 40. He therefore seeks compensatory and punitive damages in that amount.
DISCUSSION
Federal Rule of Civil Procedure 12(b)(6) provides that a complaint may be dismissed upon motion for “failure to state a claim upon which relief can be granted.” This provision of Rule 12(b)(6) is “a lineal descendant of the common law general demurrer.” Wright & Miller, Federal Practice and Procedure: Civil 2d § 1355. As such, “the complaint is construed in the light most favorable to the plaintiff and its allegations are taken to be true.”
Id.
at § 1357. Thus, “in ruling on a 12(b)(6) motion, a court is required to accept the material facts alleged in the complaint as true____”
Easton v. Sundram,
That is, a motion under Rule 12(b)(6) cannot present any question of fact; rather, such a motion presents only the question of whether or not the complaint has set forth a legally cognizable claim. For this reason, as stated in Easton, at 1014-15:
[The court may not dismiss an action under Rule 12(b)(6)] “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief,” Conley v. Gibson,355 U.S. 41 , 45-46 [78 S.Ct. 99 , 101-02,2 L.Ed.2d 80 ] (1957); see also Branum v. Clark,927 F.2d 698 , 705 (2d Cir.1991).
This admonition not to dismiss under Rule 12(b)(6) has been construed as all the more applicable if the complaint alleges a violation of civil rights. Easton, at 1015.
Here, plaintiff alleges first a violation of 42 U.S.C. Section 1981. That section provides:
All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and no other.
As is clear from the text of this statute, “[t]he
sine qua non
of a complaint under section 1981 is a showing of racial discrimination.”
Smith v. Dallas County Board of Education,
Second, the plaintiff states in his complaint that he proceeds as well under 42 *618 U.S.C. Section 1988. This section does not, however, provide a cause of action; rather, it governs actions or proceedings brought to enforce other civil rights provisions (such as Section 1981 or Section 1983).
Third, as to his Section 1983 claim, the plaintiff alleges that the defendants denied him the rights secured to him under the Fourth, the Fifth, and the Fourteenth Amendments to the Constitution. Complaint ¶ 36. However, the plaintiff inexplicably contends in his opposition papers that he does not intend to state a claim for “false arrest” or for “illegal search” or for “assault or excessive force”. Plaintiff’s Memorandum of Law at 1-2. He states: “It is not by the individual acts (i.e., search, arrest and detention) that plaintiff was deprived of his constitutional rights. It is by the totality of the circumstances visited upon him by defendants’ implementation of their policy.” Id. at 11. And yet plaintiff refers the court to paragraphs 31, 37, and 38 of his complaint as the source of his allegations that his rights under “the Fourth, Fifth and Fourteenth Amendments to the Constitution were violated.” Id. at 10. Elsewhere in his papers he alleges that he suffered:
[A] deprivation of liberty, a search incident to arrest, an invasion of privacy, an assault following the arrest, and a failure to protect his personal rights while under arrest ... in violation of 42 U.S.C. §§ 1981, 1983, and 1988....
Id. at 4.
Although the plaintiff appears somewhat confused as to whether or not his constitutional rights were violated, he cannot escape the requirement that, in order to maintain an action under 42 U.S.C. Section 1983, he must allege a violation of at least
one
of his federal rights.
See Baker v. McCollan,
Among the many rights mentioned by plaintiff, those for which he alleges a factual basis are: (1) unconstitutional seizure of the plaintiff’s person; (2) unconstitutional search of his person; (3) unconstitutional detention; (4) use of excessive force in his arrest; and (5) punishment without due process of law. These five allegations are considered individually in the paragraphs that follow.
Plaintiff also makes three other allegations: that the defendants committed “knowing and wrongful submission of false data regarding the transaction that led to plaintiff’s arrest” (complaint ¶ 36); that the defendants invaded his privacy (complaint ¶ 32); and that the defendants failed to protect his personal rights while under arrest (complaint H 32). Of these, the first does not present even a colorable claim of a violation of a constitutional or other federal right; it must therefore be dismissed. The second is not grounded on any specific allegation of fact and must therefore be dismissed as conclusory.
Alfaro Motors, Inc. v. Ward,
*619 1. Unconstitutional Seizure of the Plaintiffs Person
The Fourth Amendment to the United States Constitution provides:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
This provision has been construed to require that an arrest must be grounded in probable cause,
Beck v. Ohio,
However, a Section 1983 claim predicated on an arrest without probable cause is absolutely barred if the plaintiff was convicted of the offense for which he was arrested. The Second Circuit so held in the leading case of
Cameron v. Fogarty,
[W]e conclude that the proper accommodation between the individual’s interest in preventing unwarranted intrusions into his liberty and society’s interest in encouraging the apprehension of criminals requires that § 1983 doctrine be deemed, in the absence of any indication that Congress intended otherwise, to incorporate the common-law principle that, where law enforcement officers have made an arrest, the resulting conviction is a defense to a § 1983 action asserting the arrest was made without probable cause.
See also Malady v. Crunk,
Although the plaintiff in
Cameron
had been convicted
at trial
of the offense for which he was arrested, entry of a guilty plea also operates as a defense to a Section 1983 action for arrest without probable cause.
Keyes v. City of Albany,
The application of Cameron to this case could not be more straightforward: Plaintiff was arrested for possession of cocaine, and he pleaded guilty to disorderly conduct. He now contends that the arrest *620 was without probable cause and was therefore in violation of the Fourth Amendment to the United States Constitution. He does not claim that his conviction was “obtained by fraud, perjury, or other corrupt means.” On these facts as alleged by the plaintiff, his plea of guilty is a complete defense to his claim of unconstitutional seizure of his person. Thus, insofar as plaintiff asserts a claim of arrest without probable cause, that claim must be dismissed.
2. Unconstitutional Search of the Plaintiff’s Person
Just as the Fourth Amendment prohibits seizures of persons effected without probable cause, so too a search must generally be conducted pursuant to a warrant.
Marshall v. Barlow’s Inc.,
Under Robinson, the arrest must be “lawful” in order to justify any search incident to that arrest; but such lawfulness is readily apparent in this case: It would be incongruous to maintain that the ultimate conviction of the plaintiff establishes probable cause for the arrest itself but that the validity of the arrest nonetheless remains open as to any searches incident to that arrest. Under Cameron, the guilty plea of a plaintiff demonstrates not merely the probable cause for the arrest but the lawfulness of it; hence, insofar as the constitutionality of a search incident to an arrest derives from the validity of the arrest itself, Cameron compels the conclusion that a guilty plea provides a defense to any Section 1983 claim brought for the search of an arrested person that is conducted as an incident to that arrest.
For this reason, the first two searches to which the plaintiff was subjected — the initial “frisk” and the strip search at the police station — cannot be the genesis of a claim by the plaintiff that his rights under the Fourth Amendment were violated: His guilty plea provides a complete defense to the claim that these searches incident to arrest were unconstitutional— just as his guilty plea provides a complete defense to the claim that the arrest itself was unconstitutional. 1 Thus, insofar as he asserts a Section 1983 claim of unconstitutional search, it must be dismissed.
3. Unconstitutional Detention of Plaintiff
Plaintiff further alleges that he was “illegally detained” by the defendants. Complaint 1135. As with his other allegations that concern the legitimacy of his arrest, this contention fails to state a claim upon which relief can be granted. Under Cameron, plaintiffs subsequent conviction establishes probable cause for his arrest; thus, it also establishes the legitimacy of his arrest. In that plaintiff contends that he was detained as a consequence of his arrest, then, this claim fails as a matter of law.
Even if plaintiff seeks to establish that the
length
of his detention constituted a violation of his rights under the Fourth Amendment, he cannot establish a valid claim. In
County of Riverside v. McLaughlin,
— U.S. —,
4. Use of Excessive Force
Plaintiff claims in his complaint that he was “illegally assaulted” by the arresting police officers, Complaint ¶ 35; he alleges that the officers “physically and with undue force, pushed plaintiff into one of the two unmarked [police] cars....” However, plaintiff alleges no physical injury by reason of this “undue force”; rather, he claims to have suffered “emotional pain and suffering.” Complaint U 40.
In
Graham v. Connor,
Thus, the inquiry necessary to consider whether the plaintiff here has stated a claim of excessive force must proceed along the objective lines of reasonableness:
The “reasonableness” of a particular use of force case is an objective one: the question is whether the officers’ actions are “objectively reasonable” in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.
Id.
at 1872. A court must therefore adopt the “perspective of a reasonable officer on the scene [of the arrest],” and it must understand that “ ‘[n]ot every push or shove, even if it may later seem unnecessary in the peace of a judge’s chambers ... ’ violates the Fourth Amendment.”
Id.
(quoting
Johnson v. Glick,
Graham,
then, clearly establishes that a claim of excessive force in an arrest is to be evaluated on a “reasonableness” standard; it necessarily follows that such a claim may be subject to dismissal under Rule 12(b)(6). For example, if the plaintiff does not allege an unreasonably excessive use of force, he has failed to state a claim upon which relief can be granted. Still, the standard for dismissal under Rule 12(b)(6) is high: It must appear “beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.”
Conley, supra,
Thus, the question of whether the plaintiff here has stated a claim is a question of law; as such, it is a question that the court, in the first instance, must endeavor to answer:
When a case arises in which the standard of conduct, pure and simple is submitted to the jury, the explanation is plain. It is that the court, not entertaining any clear views of public policy applicable to the matter, derives the rule to be applied from daily experience, as it has been agreed that the great body of the law of tort has been derived. But the court further feels that it is not itself possessed of sufficient practical experience to lay down the rule intelligently. It conceives that twelve men taken from the practical part of the community can aid its judgment. Therefore it aids its *622 conscience by taking the opinion of the jury-
O.W. Holmes, The Common Law 98 (Mark DeWolfe Howe, ed. 1963). That is, the question whether or not particular conduct falls below the applicable standard required by the law — such as the reasonableness of the use of force in this case — is submitted to the jury only when the court finds itself unable to discern a clear answer. The necessary corollary, then, is that “[a] judge who has long sat at nisi prius ought gradually to acquire a fund of experience which enables him to represent the common sense of the community in ordinary instances far better than an average jury.” Id. at 99.
However, a particular case may also present facts as to which the application of the proper legal standard is so clear that no useful purpose would ever be served by permitting a jury to decide the question. Such cases stake out the poles between which lie the more difficult applications that are reserved for the jury. Id. at 101. As Holmes illustrates this point:
If the whole evidence in the case was that a party, in full command of his senses and intellect, stood on a railway track, looking at an approaching engine until it ran him down, no judge would leave it to the jury to say whether the conduct was prudent. If the whole of the evidence was that he attempted to cross a level track, which was visible for half a mile each way, and on which no engine was in sight, no court would allow a jury to find negligence. Between these extremes are cases which would go to the jury.
Id. at 102. The counsel of Holmes is as prudent as his analysis is accurate: When the plaintiff presents a case the facts of which indicate that he stands very near one of the two poles, the court should dispose of his claim as a judgment of law.
Here, this court must consider as true all the facts alleged by the plaintiff, and it must further determine whether there is
any
set of facts that he could prove to support his claim. Nonetheless, despite these benefits of doubt afforded him by the case law under Rule 12(b)(6), this court must conclude that the plaintiff has failed to state a claim of excessive use of force. To allege that he was “vrith undue force, pushed ... into one of the ... cars” and that his injuries from this push were “emotional pain and suffering” is not to state a claim that the use of force was “unreasonable”. Indeed, to conclude that a “push” that does not cause the slightest of physical injuries to the plaintiff is nonetheless an actionable use of excessive force would be to hold that
any
physical contact by an arresting officer with the arrested person is actionable. This would transform the constitutional wrong of excessive force in arrest into the common law tort of battery; and it would reduce the holding in
Graham
into an empty proposition against which no use of force is reasonable as a matter of law. With deference to Holmes, a judge need not have “long sat at
nisi prius
” to conclude that the plaintiff here does not state a claim of use of excessive force. Accord:
Foster v. Metropolitan Airports Commission,
At the hearing, [the plaintiff] testified that at the time of his arrest one of the officers slapped him several times with his open hand. He further testified that he was not injured by the slaps and that they caused no bleeding, required no medical attention, and were too weak to knock him down. Thus, on his own evidence, they amounted to more of an affront than an injury. Assuming the *623 truth of his account, and however reprehensible such conduct by a policeman may be, it does not rise to such a level that redress may be had for it under 42 U.S.C. § 1983.
In the present case, whether or not this “push ... seem[s] unnecessary in the peace of a judge’s chambers,” it is manifest that the push was not unreasonable; it is thus manifest that this case does not fall in the realm of the jury. Thus, even the most generous construction of the plaintiff’s complaint leaves no doubt that “the plaintiff can prove no set of facts” to support his claim of use of excessive force. This claim must therefore be dismissed.
5. Punishment without Due Process of Law
Finally, plaintiff alleges that the defendants deprived him of his right “to be free from punishment without due process” of law. In
Bell v. Wolfish,
In evaluating the constitutionality of conditions or restrictions of pretrial detention that implicate only the protection against deprivation of liberty without due process of law, we think that the proper inquiry is whether those conditions amount to punishment of the detainee. For under the Due Process Clause, a detainee may not be punished prior to an adjudication of guilt in accordance with due process of law.
Bell,
The Court noted there that it “is all but impossible to compress the distinction [between punitive measures and regulatory restraints] into a sentence or a paragraph....”
Id.
at 537,
Thus, if a particular condition or restriction of pretrial detention is reasonably related to a legitimate governmental objective, it does not, without more, amount to “punishment.” Conversely, if a restriction or condition is not reasonably related to a legitimate goal — if it is arbitrary or purposeless — a court permissibly may infer that the purpose of the governmental action is punishment that may not constitutionally be inflicted upon detainees qua detainees.
Id.
at 539,
Here, the plaintiff alleges that, while he was detained by the defendants, he was denied the use of lavatory facilities for several hours, that he was not permitted to use a telephone to contact an attorney, and that the only food he was given during his detention was barely edible. On these allegations, it does not appear “beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Rather, it is not difficult to conclude that denial of access to a lavatory or to a telephone after arrest, as well as providing food poorly suited for human consumption, might well be “arbitrary or purposeless” and “a restriction or condition ... not reasonably related to a legitimate [governmental] goal” such that, accordingly, an intent to punish may be inferred. That is, these allegations clearly state a claim that the plaintiff was subjected to conditions of punishment without due process of law.
See, e.g., Green v. Ferrell,
As an additional matter, the claims of the plaintiff against the municipal defendants must be dismissed. Under
Monell v. Department of Social Services,
(1) an official policy or custom that (2) causes the plaintiff to be subjected to (3) a denial of a constitutional right.
Batista v. Rodriguez,
Here, the plaintiff has alleged that the municipal defendants, as an “official policy or custom”, conduct “drug sweep roundups by targeting certain areas known for excessive illegal drug activity, and rounding up persons walking or driving on particular blocks within these known drug areas.” Complaint ¶ 29. However, the plaintiff fails to allege the requisite “causal link” between this “policy or custom” and the one denial of his constitutional rights about which he has stated a claim. That is, the “policy or custom” that he does allege — “drug sweep roundups” — is unrelated to the constitutional harm of punishment without due process of law. As such, the Monell claims against the municipal defendants must be dismissed. 2
Finally, the plaintiff — apparently aware that his papers thus far have not been artfully drafted — has requested that the court, rather than dismiss for failure to state a claim, grant the plaintiff leave to amend his pleadings in order “to remedy the defect.” Plaintiff’s memorandum of law at 14. He cites
Deck v. Shanman,
These cases are inapposite to the present case: Here, the plaintiff pleads at least eight violations of his rights, and five of these are at least colorable constitutional claims. Of those five, three are barred by the plaintiff’s plea of guilty, one fails to allege facts that cross the relevant threshold of reasonableness, and the last allegation does in fact state a claim upon which relief can be granted. Thus, although the complaint is poorly crafted, it is not impossible for this court to discern from it how the defendants’ motion under Rule 12(b)(6) should be decided. Further, the same unsteady hand that requests leave to amend from the court also drafted the remainder of the plaintiff’s memorandum of law — a memorandum that simply compounds the ambiguities of the complaint. The papers of the plaintiff show that he has failed to state a claim as to every allegation except that of punishment without due process; and the facts alleged by the plaintiff show that there is no other claim that he could properly state. An amended complaint— one that promises to be of no higher quality than the first — is unnecessary for the disposition of this motion.
CONCLUSION
The court grants in part and denies in part the motion of the defendants to dismiss the complaint under Rule 12(b)(6) for failure to state a claim; all claims — including the Monell claim — are dismissed with the exception of the plaintiff’s claim that he was subjected to punishment without due process of law; as to that claim, the motion of the defendants to dismiss is denied.
SO ORDERED.
Notes
. It is not clear whether the plaintiff asserts that the "pat down” at the courthouse was an unconstitutional search. Regardless, such a search is clearly constitutional as an administrative search to ensure the security of the courthouse.
McMorris v. Alioto,
. The Monell claim in plaintiffs action appears to be predicated on the constitutional allegations for which he failed to state a claim (such as arrest without probable cause). To the extent that the plaintiff seeks to plead a Monell claim with respect to his action for punishment without due process, the court hereby grants him leave to amend his complaint.