Babayof v. State of New York et al

Filing 11

MEMORANDUM AND ORDER: Plaintiff's claims regarding his 2006 and 2007 arrests are dismissed. His claims regarding the 3/4/2010, 10/10/2010, 1/3/2012, and 2/20/2012 arrests may proceed against the arresting officers. Corporation Counsel is h ereby directed to produce the information specified above regarding the identities and service address of these defendants within 30 days of this Order. No summonses shall issue at this time. A copy of this Order shall be served on the Specia l Litigation Division of the Corporation Counsel. The case is referred to Roanne L. Mann, United States Magistrate Judge, for pretrial supervision. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith. SO ORDERED by Judge William F. Kuntz, II, on 4/11/2013. Copies of this Order sent to pro se Plaintiff & Corporation Counsel via first class mail. (Latka-Mucha, Wieslawa)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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YAHER ISRAEL BABAYOF, aJk/a
YAIR ISRAEL BABAYOFF,

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ME~~NDUM AND ORDER

Plaintiff,

12-CV-6073 (WFK) (RLM)
-againstCITY OF NEW YORK; P.O. JANE DOE
and JOHN DOE 1-10,
Defendants.

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WILLIAM F. KUNTZ, II, United States District Judge:
On March 29, 2013, plaintiff submitted a Second Amended Complaint. For the reasons
set forth below, plaintiffs claims concerning his 2006 and 2007 arrests are dismissed as timebarred. Plaintiffs remaining claims, that is, those claims not dismissed by the Court in this and
previous orders, may proceed. The Clerk of Court shall send a copy of this order and the second
amended complaint to the New York City Law Department and a copy of this Order to plaintiff. No
summonses shall issue at this time.
I. Procedural History

On December 7, 2012, plaintiff filed this pro se action alleging false arrest and malicious
prosecution. By Order dated January 16,2013, the Court granted plaintiffs request to proceed in
forma pauperis, but dismissed the complaint against each of the three defendants named therein,

the City of New York, the State of New York, and the New York City Police Department, for
failure to state a claim on which relief may be granted. 28 U.S.C. § 1915(e)(2)(B)(ii). However,
in an abundance of caution, the Court afforded plaintiff thirty (30) days to submit an amended
complaint against proper defendants to a 42 U.S.C. § 1983 action.

On February 15, 2013,

plaintiff submitted an amended complaint naming the City of New York and eleven "Doe"
defendants, but did not adequately identify the Doe defendants or give them notice of plaintiffs
claims against them.

By Order dated February 28, 2013, the Court construed the amended

complaint liberally, and in an effort to extract from the amended complaint a list of defendants
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that could be served, the Court organized plaintiff s claims for false arrest and malicious
prosecution by arrest date and identified the missing information required to comply with Rule 8
and to allow service of process. In addition, plaintiff was afforded thirty (30) days to show cause
why his claims regarding his 2006 and 2007 arrests should not be dismissed as time-barred and
to file a second amended complaint setting forth his claims against each defendant named in the
second amended· complaint. Specifically, for each remaining arrest, plaintiff was directed to
provide the date, time and location of the arrest, the name of the police officers involved, if
known, and the name of the precinct, ifknown. On March 29,2013, plaintiff submitted a second
amended complaint.

II. Discussion
A. Claims Regarding Arrests in 2006 and 2007 Are Dismissed
Plaintiff s submission, dated March 29, 2013, does not address the issue of timeliness of
the complaint regarding the 2006 and 2007 arrests. The Court finds that the claims regarding
these arrests are barred by the statute of limitations. The predicate arrests supposedly occurred in
2006 and 2007, but plaintiff filed this action in 2012, well beyond the three-year statute of
limitations applicable to 42 U.S.C. § 1983 actions, and plaintiff has alleged no basis for equitable
tolling. See Abbas v. Dixon, 480 F.3d 636,641-42 (2d Cir. 2007).

B. Identifying Doe Defendants in Remaining Claims
What remains are plaintiffs federal and state law claims arising from four arrests:

1. March 4,2010: Plaintiff alleges that "[o]n March 4th 2010 on or about 10:30
a.m. at the location of 144-33 Melbourne Avenue, [he] was arrested by Detective
John Doe [#1] 107th Precinct for false claims that plaintiff attacked his father and
destroyed property" and that the charges were dismissed in June 2010. Second
Am. CompI. at ~ 21).
2. October 10, 2010: Plaintiff was arrested on October 10, 2010 on or about
9:30 a.m. at 144-33 Melbourne Avenue[,] Flushing, New York by Officer John
Doe [#2] for violating an order of protection that had been obtained by his sister.
Id at ~ 22. He was detained for twelve hours; the case was dismissed in April
2011. Id Plaintiff does not identify the precinct involved.
3. January 3, 2012: Plaintiff was arrested on January 3, 2012 at or around 11 :30
a.m. at 144-23 72nd Avenue by "officers of the 107th Precinct" for allegedly
breaking a window and for violating an order of protection. Id at ~ 23-24.
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4. February 20, 2012: Plaintiff alleges that he was arrested on "February 20th
2012 at or around 7:00 p.m. [at] 6909 138th Street[,] Flushing, New York" by
Officer Jane Doe [# 1] of the 107th Precinct. Id. at ~ 25. Plaintiff states that the
charges were dismissed. Id. at ~ 26.
Pursuant to Valentin v. Dinkins, 121 F.3d 72 (2d Cir. 1997) (per curiam), the Court directs
Corporation Counsel to ascertain the full name(s) and service addressees) of the officer(s), who were
involved in the four arrests outlined above.

Corporation Counsel is not required to defend or

indemnify these individuals at this juncture. This order merely provides a means by which plaintiff
may name and properly serve the defendants as instructed by the Second Circuit in Valentin.
Corporation Counsel is hereby ordered to produce the information specified above regarding
the identities and service addresses of the arresting officers within thirty (30) days of this Order.
Once this information is provided, plaintiffs complaint shall be deemed amended to reflect the full
names of the defendants, summonses shall be issued, and the Court shall direct service on the
defendants.

III. Conclusion
Plaintiff's claims regarding his 2006 and 2007 arrests are dismissed.

His claims

regarding the March 4,2010, October 10, 2010, January 3, 2012, and February 20, 2012 arrests
may proceed against the arresting officers. Corporation Counsel is hereby directed to produce
the information specified above regarding the identities and service address of these defendants
within thirty (30) days of this Order.

A copy of this Order shall be served on the Special

Litigation Division of the Corporation Counsel. The case is referred to Roanne L. Mann, United
States Magistrate Judge, for pretrial supervision. The Court certifies pursuant to 28 U.S.C. §
1915(a)(3) that any appeal from this order would not be taken in good faith. Coppedge v. United
States, 369 U.S. 438,444-45 (1962).

SO ORDERED
Dated: Brooklyn, New York
April 11, 2013

/S/ Judge William F. Kuntz, II
~ON. WILLIAM F.~~Z(rt
United States Distri~ge
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