Birmingham v. Raymond Kelly P.C. et al

Filing 3

MEMORANDUM AND ORDER: Plaintiff's defamation claim against Defendants Raymond Kelly P.C. and Christopher Manders is DISMISSED under 28 U.S.C. § 1915(e)(2)(ii). Plaintiff shall file an Amended Complaint within thirty days of the date of this order setting forth the specific, factual bases forhis defamation claim against Defendants Madison Security Comp., Anthony White, and Owner of Linden Plaza. The court reserves decision as to whether Plaintiff's remaining claims are sufficient under 28 U.S.C. § 1915. So Ordered by Judge Nicholas G. Garaufis on 7/7/2011. (c/m to pro se) (Lee, Tiffeny)

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IN
U 5 DISTRICT COURT E.D.N.V.

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

* JUL 1 1 2011 *

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pI

BROOKLYN OFFICE

ANTHONY BIRMINGHAM,

MEMORANDUM & ORDER

Plaintiff,

11-CV-2965 (NGG)(LB)

-againstRAYMOND KELLY P.C., CHRISTOPHER
MANDERS, Shield# 22733 of the 75th Precinct
N.Y.P.D., MADISON SECURITY COMP.,
ANTHONY WHITE, M.S.C. EMPLOYEE, and
OWNER OF LINDEN PLAZA,
Defendants.

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NICHOLAS G. GARAUFIS, United States District Judge.
On June 20, 2011, Plaintiff Anthony Birmingham ("Birmingham"), prose, filed a
Complaint against the above-captioned Defendants stemming from their involvement in his
arrest at an unknown date. (Compl. (Docket Entry# 1).) Birmingham seeks in forma pauperis
status under 28 U.S.C. § 1915. (Docket Entry# 2.) For the reasons set forth below,
Birmingham's Complaint is dismissed in part, and the court directs Birmingham to file an
Amended Complaint.

I.

BACKGROUND
Birmingham's statement of his claim, in its entirety, reads as follows:
While sitting in his vehicle in the parking lot facility of where he resides, with
Elisia, Mr. Birmingham was taken by Anthony White, Madison Security Guard,
to the security office along with the female. Allegedly Mr. White observed them
conducting in a sexual manner in the parking lot. Plaintiff was arrested August
21, 2010 by officer Christopher Manders of the 75th precinct, shield # 22733,
who was then later released by the courts.
The following alleged allegations were dismissed.
- False allegations: in which Madison Security Comp. is responsible for.
- False arrest: in which 75th precinct is responsible for.

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- Illegally detained: in which 75th precinct is responsible for.
-Deformation of character: in which both parties are responsible for.
-Punitive damage: in which both parties are held responsible for.
Plaintiff seeks $500,000 for N.Y.P.D. and 500,000 from Linden Plaza. Plaintiff
also seeks $5,000,0000 from the following Madison Security Comp.
(Compl. at 2-3.)
II.

LEGAL STANDARD
An in forma pauperis action shall be dismissed where a plaintiff's "allegation of poverty

is untrue" or where the action is "(i) frivolous or malicious; (ii) fails to state a claim on which
relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from
such relief." 28 U.S.C. § 1915(e)(2). Where a plaintiff proceeds prose, the court must construe
the pleadings liberally. Erickson v. Pardus, 551 U.S. 89, 94 (2007); Sealed Plaintiffv. Sealed
Defendant #1, 537 F.3d 185, 191 (2d Cir. 2008). Application of a liberal prose pleading
standard is particularly important in cases such as this one, in which the plaintiff alleges a
violation of his or her civil rights. See Sealed Plaintiffv. Sealed Defendant #1, 537 F.3d at 191
(citing McEachin v. McGuinnis, 357 F.3d 197, 200 (2d Cir. 2004)).
III.

DISCUSSION

A.

False Allegation and Defamation Claims

Birmingham brings defamation claims against Defendants Raymond Kelly ("Kelly"), the
New York City Police Commissioner, and Christopher Manders ("Manders"), a New York City
Police Officer with the 75th Precinct. (Compl. at 2.) Under Barr v. Mateo, 360 U.S. 564, 573-74
(1959), executive officers are absolutely immune from defamation claims arising from acts
performed in their official duties. This includes defamation claims surrounding an allegedly
false arrest by police officers. White v. Frank, 855 F.2d 956, 958-60 (2d Cir. 1988); Dale v.
Bartels, 732 F.2d 278, 284 n.8 (2d Cir. 1984). Therefore, Birmingham's defamation claim

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against Kelly and Manders fails to state a claim upon which relief can be granted under 28
U.S.C. § 1915(e)(2)(ii), and is dismissed.
Birmingham also brings false allegation and defamation claims against a number of
private actors: Defendants Madison Security Comp. ("Madison Security"), Anthony White
("White"), and Owner of Linden Plaza ("Linden Plaza") (collectively, the "Security
Defendants"). (Compl. at 2.) Analogously, private individuals are qualifiedly immune, under
New York law, for actions stemming from the reporting of a crime. See Boyd v. Nationwide
Mut. Ins. Co., 208 F.3d 406,409-10 (2d Cir. 2000) ("Good faith communications of a party
having an interest in the subject, or a moral or societal duty to speak, are protected by a qualified
privilege if made to a party having a corresponding interest or duty .... Reporting crime to a
police officer easily falls within the scope of the privilege.") (internal citations and punctuation
omitted). Where a plaintiff alleges that private defendants defamed him by falsely reporting the
plaintiffs involvement in a crime, the court must use the burden-shifting framework described in
Boyd v. Nationwide Mutual Insurance Co. to resolve those claims:
The qualified privilege creates a rebuttable presumption of good faith that may
constitute a complete defense. In order to overcome a qualified privilege, plaintiff
must demonstrate that defendant's statement was false .... and that defendant
abused the privilege by [either] acting beyond the scope of the privilege, acting
with common law malice, or acting with knowledge that the statement was false
or with a reckless disregard as to its truth....
First, acting beyond the scope of the privilege occurs where a defendant does not
exercise the privilege in a reasonable manner, abuses the occasion, or makes the
statement "in furtherance of an improper purpose.
Second, common law malice focuses on defendant's personal spite or ill-will.
The third form of abuse, reckless disregard for truth, is also known as acting with
malice in the constitutional sense. Constitutional malice requires either a high
degree of awareness of the statement's probable falsity or serious doubts as to its
truth. A defendant's failure to investigate alone does not permit a finding of
constitutional malice, even if a prudent person would have investigated.

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Id. at 41 0 (internal citations and alterations omitted; paragraph breaks altered). Although
Birmingham's allegations imply that the Security Defendants falsely reported him to police,
nothing in Birmingham's Complaint suggests that the Security Defendants did so beyond the
scope of the crime-reporting privilege, with personal spite or ill-will, or with a reckless disregard
for the truth.
Rather than dismiss Birmingham's false allegation and defamation claims against the
Security Defendants, the court will allow Birmingham leave to amend his Complaint to include
specific, factual allegations as to whether and how the Security Defendants' conduct met the
standard described above. See Matima v. Celli, 228 F.3d 68, 81 (2d Cir. 2000) ("Generally,
leave to amend should be freely given, and a pro se litigant in particular should be afforded every
reasonable opportunity to demonstrate that he has a valid claim." (internal citations and
punctuation omitted)).

B.

False Arrest and IUegal Detention Claims

Until Birmingham provides the court with an Amended Complaint, as discussed above,
the court reserves decision on whether Birmingham's false arrest and illegal detention claims
against Kelly and Manders suffice under 28 U.S.C. § 1915.

IV.

CONCLUSION
Plaintiff's defamation claim against Defendants Raymond Kelly P.C. and Christopher

Manders is DISMISSED under 28 U.S.C. § 1915(e)(2)(ii). Plaintiff shall file an Amended
Complaint within thirty days of the date of this order setting forth the specific, factual bases for
his defamation claim against Defendants Madison Security Comp., Anthony White, and Owner
of Linden Plaza. The court reserves decision as to whether Plaintiff's remaining claims are

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sufficient under 28 U.S.C. § 1915. The court directs the Clerk of Court to mail a copy of this
Memorandum & Order to Plaintiff.
SO ORDERED.

s/Nicholas G. Garaufis
J4ICHOLAS G. GARAUFIS
United States District Judge

Dated: Brooklyn, New York
July -:J_, 2011

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