Babayof v. State of New York et al

Filing 9

MEMORANDUM AND ORDER: Plaintiff's claims regarding arrests made in 2006 and 2007 are time-barred, unless plaintiff can provide a basis for equitable tolling and identify the defendants involved within thirty (30) days of this Order. Plaintiff� 39;s claim regarding his January 3, 2012 arrest for breaking a window is dismissed without prejudice. Plaintiff shall have thirty (30) days to file a second amended complaint setting forth his claims against each defendant named in the second amende d complaint. For each remaining arrest, plaintiff must proved the date, time and location of the arrest, the name of the police officers involved, if known, and the name of the precinct, if known. Should plaintiff decide to file a second amended comp laint, it must be submitted within thirty days of this Order, be captioned "Second Amended Complaint," and bear the same docket number as this Order. Plaintiff is advised that the second amended complaint will completely replace the origina l complaint and the amended complaint. All further proceedings will be stayed for thirty days or until plaintiff has complied with this Order. If plaintiff fails to comply with this Order within the time allowed, the action shall be dismissed and ju dgment shall enter. If submitted, the second amended complaint will be reviewed for compliance with this Order and for sufficiency under 28 U.S.C. § 1915(e)(2)(B). 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 and therefore in forma pauperis status is denied for purpose of an appeal. Ordered by Judge William F. Kuntz, II on 2/28/2013. C/M. (Brucella, Michelle)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

---------------------------------------------------------)(
YAHER ISRAEL BABAYOF, aIkIa
YAIR ISRAEL BABAYOFF,
Plaintiff,
-against-

MEMORANDUM
AND ORDER
12 CV 6073 (WFK)(RLM)

CITY OF NEW YORK; P.O. JANE DOE
and JOHN DOE 1-10,
Defendants.

---------------------------------------------------------)(

William F. Kuntz, II, United States District Judge:
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 days to submit an amended complaint
against proper defendants to a 42 U.S.c. § 1983 action. (DE # 6) On February 15,2013, plaintiff
submitted an amended complaint naming the City of New York and eleven "Doe" defendants, but
did not adequate identify the Doe defendants or give them notice of plaintiff s claims against them.
Plaintiff is afforded thirty days to file a Second Amended Complaint as set forth below.
Background

As the Court stated in its previous order in which plaintiff was afforded his first opportunity
to amend his complaint to set forth a claim against proper defendant(s) under section 1983:
If plaintiff cannot identify a defendant by name, he should identify each
individual as "Police Officer John or Jane Doe #1" et cetera and provide a physical
description and any other identifying information such as the precinct or facility with

which she or he works. Plaintiff must also comply with Fed. R. Civ. P. 8. Pursuant
to Rule 8 ofthe Federal Rules of Civil Procedure, plaintiff must provide a short, plain
statement of claim against each defendant named so that they have adequate notice
of the claims against them. Ashcroft v. Iqbal, 55 U.S. at 678 (Rule 8 "demands
more than an unadorned, the-defendant-unlawfully-harmed-me accusation.").
Plaintiff must provide facts sufficient to allow each defendant to have a fair
understanding of what the plaintiff is complaining about and to know whether there
is a legal basis for recovery. See Twombly v. Bell, 425 F.3d 99, 106 (2d Cir. 2005)
(defining "fair notice" as " 'that which will enable the adverse party to answer and
prepare for trial, allow the application of res judicata, and identify the nature of the
case so that it may be assigned the proper form of trial.' ") (quoting Simmons v.
Abruzzo, 49 F.3d 83, 86 (2d Cir. 1995)); Ricciuti v. New York City Transit Auth.,
941 F.2d 119, 123 (2d Cir. 1991). If available, plaintiff may include copies of any
relevant documents to support his claims.
Plaintiff is afforded thirty days to file an amended complaint in which he
complies with Fed. R. Civ. P. 8. See Ashcroft v. Iqbal, 55 U.S. at 678 (a claim will
be considered plausible on its face "when the plaintiff pleads factual content that
allows the court to draw reasonable inference that the defendant is liable for the
misconduct alleged."). Plaintiff must connect the facts to the defendants so that the
defendants will have notice of the claim against them as required by Fed. R. Civ. P.

8.
Discussion
In his amended complaint, plaintiff names in the caption of his complaint: The City of New
York, police officer "Jane Doe" and "John Doe 1-10." In the factual allegations section of his
amended complaint, ~ 9-26, plaintiff alleges that he was falsely arrested numerous times. Regarding
two arrests, he has alleged enough facts to allow service upon the defendants and to comply with
Rule 8. One claim, the one regarding the January 3, 2012 arrest for breaking a window, is dismissed
without prejudice on abstention grounds, and the remaining false arrest claims require more
information from plaintiff in order to proceed.

A. City of New York
The Court dismissed the City of New York in its January 16,2013 Order for failure to state
a claim on which relief may be granted. 28 U.S.c. § 1915(e)(2)(B)(ii); Bd of County Comm'rs of

Bryan County, Oklo

V.

Brown, 520 U.S. 397,403, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997) (citing
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Monell v. New York City Dep't of Social Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611
(1978)). Nothing in plaintiffs amended complaint alters the conclusion stated therein.

The

amended complaint is dismissed as to the City of New York. 28 U.S.C. § 1915(e)(2)(B)(ii).

B. Individual Defendants
Construing the amended complaint liberally, as the Court must, and undertaking the task of
trying to extract from the amended complaint a list of defendants that could be served (although such
an exercise is beyond the Court's obligation), the Court organizes plaintiffs claims for false arrest
and malicious prosecution and identifies the missing information required to comply with Rule 8 and
to allow service.

l.Arrests in 2006 and 2007
The amended complaint alleges more than one arrest related to a particular tenant, Nellie
Gadson, at the rental property which plaintiff co-owned at 609 Sutter A venue ("the property") in
Brooklyn, New York. He states that police officers Munoz and Capputo arrested him at the property
on May 29, 2006 based on the tenant's complaint. He alleges that it was the tenant, not he, who was
breaking the law. He alleges that the tenant was engaged in defrauding the New York City Housing
Authority for Section 8 funds.

He does not state at what precinct Munoz and Capputo work or

provide an address for them or any other identifying information. Nor does he state if he was
prosecuted or the result of the prosecution. (Amended Complaint at ~ 12).
Plaintiff refers to another arrest resulting from a complaint from Gadson and states that the
resulting charges were dismissed. Id at ~ 12.1 He provides no identifying information from which
a defendant could be served or informed of the claim against her or him.
A third arrest occurred on February 20,2007 based on a complaint from Gadson. Id at 13.
Plaintiff does not state who arrested him or where. Nor does he state if he was prosecuted or the

IThere are two ~ 12's in the amended complaint. This is the second of the two.
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result of the prosecution. Plaintiff states that there was "a dismissal of charges in December 9, 2009"
but does not state to which charge this was related.
Plaintiff alleges that on November 15, 2007 at about 8:30 p.m. he was involved in an
altercation with "a creditor's business partner David Zerbib." Id at ~ 18. Plaintiff states that he ran
"to the police station" and was arrested. The case was dismissed in April 2008. Id at

~

19.

Plaintiff does not provide any further information such as to which police station he went or what
officers were involved.
It appears that all of these claims are barred by the statute of limitations since the arrests

which he contests occurred in 2006 and 2007 and he filed this action in 2012, well beyond the thee
year statute oflimitations applicable to 42 U.S.C. § 1983 actions. Wallace v. Kato, 549 U.S. 384, 388

(2007); Owens v. Okure, 488 U.S. 235, 251 (1989) (statute oflimitations on § 1983 claim to which
New York law applies is three years). However, "[u]nderthe doctrine of equitable tolling, a court
may, under compelling circumstances, make narrow exceptions to the statute oflimitations in order
'to prevent inequity.' " In re Us. Lines, Inc!., 318 F.3d 432, 436 (2d Cir. 2003). Typically, the
statute oflimitations is equitably tolled when a defendant fraudulently conceals from a plaintiff the
fact that the plaintiffhas a cause of action, or when the plaintiff is induced by the defendant to forego
a lawsuit until the statute oflimitations has expired., See Pearl v. City of Long Beach, 296 F.3d 76,
82-83 (2d Cir.2002) (discussing the New York state courts' application of equitable estoppel and the
federal courts' use of equitable tolling and equitable estoppel).

Plaintiff alleged no basis for

equitable tolling; these claims appear to be time-barred. Accordingly, plaintiff is directed to show
cause within thirty days of the date of this Order why this action should not be dismissed as timebarred. Abbas v. Dixon, 480 F.3d 636, 641-42 (2d Cir. 2007) (Generally, a court should not dismiss
claims sua sponte unless a plaintiff had notice and an opportunity to present arguments against
dismissal)

3. March 4. 2010 Arrest
Plaintiff alleges that "[o]n March 4th 2010 on or about 10:30 a.m. at the location of 144-133

Melbourne Avenue, I was arrested by Detective John Doe [# 1]2 for false claims that plaintiff attacked
his father and destroyed property" and that the charges were dismissed in June 2010. Id. at ~ 21.
Plaintiff does not identify the Precinct but the City of New York could likely identify Detective John
Doe # 1 based on the information plaintiff has provided.

4. October 4, 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, but the City of New York could
likely identify Officer John Doe #2 based on the information plaintiff has provided.

5. January 3, 2012
Plaintiff was arrested on January 3,2012 on or about 11 :30 a.m. at "144-23 72 nd Avenue" for
breaking the window of a creditor. Plaintiff does not state where in the City of New York this
address is located or the precinct involved. He states that the case is still pending. Since the criminal
case is still pending, the Court must abstain from hearing this claim. Younger v. Harris, 401 U.S.
37 (1971); Diamond liD" Constr. Corp. v. McGowan, 282 F.3d 191, 198 (2d Cir. 2002). In

Younger, the Supreme Court held that federal courts must abstain from enjoining ongoing state court
criminal proceedings absent specific, narrowly defined circumstances. Younger, 401 U.S. at 56
Thus, the claim regarding plaintiffs January 3, 2012 arrest is dismissed without prejudice.
Plaintiff alleges that when he was arrested on January 3, 2012, he was also charged on an
"open complaint submitted by Detective John Doe [#3] for violating an order of protection." Id. at
~

24. He states that the charges were dismissed. Id. at ~ 26.

He does not provide any further

information.

2The Court has assigned numbers to the Doe defendants named by plaintiff in the text of the complaint.
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6. February 2012
He alleges that he was arrested by the 107th precinct for violating an order of protection from
his sister and injuring her in February 2012 on or around 7:00 p.m. at 6909 138th Street, Flushing,
New York. He states that the charges were dismissed. Id. at ~ 26. He does not provide the date of
the arrest or any further information to identify the defendant(s).

C. Leave to Amend
The Court only has enough information to serve or ask the City of New York to identify two
or three of the arresting officers in plaintiff s eight arrests. Plaintiff must provide more information
to the Court in order for the remaining claims to proceed. Accordingly, plaintiff is afforded thirty
(30) days to file a Second Amended Complaint.

Conclusion
Plaintiffs claims regarding arrests made in 2006 and 2007 are time-barred, unless plaintiff
can provide a basis for equitable tolling and identify the defendants involved within thirty (30) days
of this Order. Plaintiffs claim regarding his January 3, 2012 arrest for breaking a window is
dismissed without prejudice.
Plaintiff shall have thirty (30) days to file a second amended complaint setting forth his
claims against each defendant named in the second amended complaint. For each remaining arrest,
plaintiff must proved the date, time and location of the arrest, the name of the pplice officers
involved, ifknown, and the name of the precinct, ifknown. Should plaintiff decide to file a second
amended complaint, it must be submitted within thirty days of this Order, be captioned "Second
Amended Complaint," and bear the same docket number as this Order. Plaintiff is advised that the
second amended complaint will completely replace the original complaint and the amended
complaint. All further proceedings will be stayed for thirty days or until plaintiff has complied with
this Order. If plaintiff fails to comply with this Order within the time allowed, the action shall be
dismissed and judgment shall enter. Ifsubmitted, the second amended complaint will be reviewed
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for compliance with this Order and for sufficiency under 28 U.S.C. § 1915(e)(2)(B).
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 and therefore in forma pauperis status is denied for purpose of an appeal.

Coppedge v. United States, 369 U.S. 438,444-45 (1962).
SO ORDERED.

Dated:

s/WFK
»
William F. K ~C7'
United States .strict Judge

t4k J7~g, 2013
Brooklyn, New York

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