Barber v. Ruzzo et al
Filing
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MEMORANDUM-DECISION and ORDER that the defendants' 8 MOTION to Dismiss filed by Margaret L. McMullen, Timothy J. Ruzzo, Michael Spitz is GRANTED in part as to: 1. All claims against defendants in their official capacities; 2. All claims agains t McMullen and Spitz in their individual capacities; 3. Barber's first, second, fourth and fifth causes of action against Ruzzo in his individual capacity. That defendants motion to dismiss (Dkt. No. 8) is DENIED with respect to Barber's c laim of malicious prosecution against Ruzzo in his individual capacity. That McMullen and Spitz are terminated as parties. That Barber's motion to supplemet his pleadings (Dkt. No. 13) is DENIED as moot. That Ruzzo file the appropriate resonsive pleadings with the time allotted by the rules. That the parties notify Magistrate Judge Homer in order to schedule further proceedings in accordance with this order. Signed by Judge Gary L. Sharpe on 10/19/2011. (jel, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_________________________________________
DANIEL W. BARBER,
Plaintiff,
1:10-cv-1198
(GLS/DRH)
v.
TIMOTHY J. RUZZO,
MARGARET L. MCMULLEN,
and MICHAEL SPITZ,
Defendants.
_________________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
Oliver, Oliver Law Firm
156 Madison Avenue
Albany, NY 12202
LEWIS B. OLIVER, JR., ESQ.
FOR THE DEFENDANTS:
HON. ERIC T. SCHNEIDERMAN
New York State Attorney General
Albany Office
The Capitol
Albany, NY 12224
ROGER W. KINSEY
ADAM SILVERMAN
Assistant Attorney Generals
Gary L. Sharpe
District Court Judge
MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiff Daniel W. Barber commenced this action against defendants
Timothy J. Ruzzo, Margaret L. McMullen, and Michael Spitz, asserting
claims pursuant to 42 U.S.C. § 1983 for unlawful detention, illegal search,
malicious prosecution, and restricting free speech in violation of the First
and Fourth Amendments of the United States Constitution. (See Compl. ¶
1, Dkt. No. 1.) Pending are defendants’ motion to dismiss and Barber’s
motion to supplement his pleadings. (Dkt. Nos. 8, 13.) For the reasons
that follow, defendants’ motion to dismiss is granted in part, denied in part,
and Barber’s motion is denied as moot.
II. Background1
Plaintiff Daniel W. Barber, a former employee of the New York State
Department of Correctional Services, was arrested at his home on May 3,
2007 by defendant Timothy J. Ruzzo, an investigator with New York State
Police Department. (See Compl. ¶¶ 7, 31, Dkt. No. 1.) Although he did not
know the four officers who accompanied Ruzzo, Barber and Ruzzo had a
history together. (Id. ¶ 21.)
In June 2001, Ruzzo was involved in the investigation and arrest of
four plumbers who were doing work at the Coxsackie Correctional Facility.
1
The facts are drawn from Barber’s Complaint and presented in a light most favorable
to him. (See Compl., Dkt. No. 1.)
2
(Id. ¶ 19.) During the course of the investigation, Barber, a correctional
officer at Coxsackie, “refused directions by a supervisor to make false
statements in an incident report concerning” the plumbers. (Id. ¶ 20.) As a
result of Ruzzo’s investigation, Barber was “charged with a Notice of
Discipline” and eventually terminated on October 5, 2001. (Id. ¶ 21.)
Approximately six years later, Ruzzo was contacted by defendant
Michael Spitz, a Lieutenant at Coxsackie, about a postcard that Barber
sent to Coxsackie. (Id. ¶¶ 27-28.) The postcard, which Barber mailed on
April 28, 2007, was received by defendant Margaret L. McMullen, a mail
and supply clerk at Coxsackie, on May 2. (Id. ¶¶ 23-25.) McMullen felt the
language on the postcard was “threatening” and forwarded it to Spitz, her
watch commander. (Id. ¶ 25.) Although the postcard was addressed
generically to “the Captain,” it stated, in relevant part, that Barber was fired
six years earlier and that “hell is coming for justice.” (Id. ¶¶ 24-26.)
On May 3, 2007, Ruzzo “swore out a criminal information . . .
charging [Barber] with aggravated harassment in the second degree.” (Id.
¶ 28.) Ruzzo then proceeded to Barber’s home, arrested him while he was
outside, and ordered an unauthorized search of his home. (Id. ¶¶ 32-36.)
That same day, Ruzzo transported Barber to the Catskill Town Court for
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arraignment. (Id. ¶ 38.) During the arraignment, Ruzzo “suggested” that
Barber “should be incarcerated and subjected to a mental health
evaluation”; he further recommended that an order of protection be issued
against Barber. (Id. ¶ 39.)
Justice Robert Carl agreed with Ruzzo, and remanded Barber to the
Greene County Jail pending a mental health evaluation. (Id. ¶ 40.) He
also issued a temporary Order of Protection against Barber that remained
effective until August 3, 2007. Five days later, Barber appeared before
Justice Roberg, Coxsackie Town Justice, and “ was released on his
recognizance.” (Id. ¶¶ 42-43.) Notwithstanding his release, Barber was
ordered to submit to a mental health evaluation. (Id. ¶ 44.) The evaluation
was completed by the Green County Mental Health Center, who, in a report
dated May 25, 2007, found no evidence of any mental health diseases. (Id.
¶ 45.) Although the prosecution persisted for another year, Justice Roberg
dismissed the complaint on July 21, 2008 after finding that, as a matter of
law, the postcard was non-threatening. (Id. ¶ 47.)
Barber now alleges five causes of action against the defendants in
their official and individual capacities: (1) illegal detention; (2) unlawful
search; (3) malicious prosecution; (4) illegal imprisonment and malicious
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prosecution arising out of the mental health evaluation; and (5) a violation
of his right to free speech. (Id. ¶¶ 48-135.)
III. Standard of Review
The standard of review under Fed. R. Civ. P. 12 is well established
and will not be repeated here. For a full discussion of the standard, the
court refers the parties to its decision in Ellis v. Cohen & Slamowitz, LLP,
701 F. Supp. 2d 215, 218 (N.D.N.Y. 2010).
IV. Discussion
As a threshold matter, Barber concedes that his first and second
causes of action for unlawful detention and illegal search and seizure are
untimely, and consents to their dismissal. (See Dkt. No. 11, Attach. 1 ¶ 4.)
Moreover, Barber failed to respond to defendants’ assertion of Eleventh
Amendment immunity with respect to his claims against them in their
official capacities.2 (See generally Dkt. No. 11.) Accordingly, Barber’s first
and second causes of action are dismissed, and the claims against Ruzzo,
McMullen, and Spitz, in their official capacities, are dismissed as well. The
remaining contested claims will be addressed in turn.
2
Notwithstanding Barber’s failure to counter the defendants’ argument, the court
concludes, after reviewing Barber’s Complaint, that his claims do not fall within any of the
recognized exceptions to sovereign immunity. See Kentucky v. Graham, 473 U.S. 159, 169
(1985); Ex parte Young, 209 U.S. 123, 157 (1908).
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A.
Malicious prosecution
Defendants assert two grounds for dismissal of the malicious
prosecution claim: (1) a lack of personal involvement by McMullen and
Spitz; and (2), probable cause as a complete defense on behalf of Ruzzo.
(See Dkt. No. 8, Attach. 1 at 11-12.) Despite Barber’s counter arguments,
the court is unpersuaded with respect to the claim against McMullen and
Spitz. (See Dkt. No. 11 at 11-19.)
To state a claim for malicious prosecution, a plaintiff must establish
that: “(1) the defendant commenced a criminal proceeding against him; (2)
the proceeding ended in the plaintiff’s favor; (3) the defendant did not have
probable cause to believe the plaintiff was guilty of the crime charged; and
(4) the defendant acted with actual malice.” Cook v. Sheldon, 41 F.3d 73,
79 (2d Cir. 1994). However, as with all section 1983 claims, “personal
involvement of defendants in [the] alleged constitutional deprivations is a
prerequisite to an award of damages.” Blyden v. Mancusi, 186 F.3d 252,
264 (2d Cir. 1999) (quoting Wright v. Smith, 21 F.3d 496, 501 (2d Cir.
1994)).
Here, Barber alleges that McMullen received the postcard,
interpreted it as threatening, and called Spitz, who in turn contacted Ruzzo.
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(See Compl. ¶¶ 25, 27, Dkt. No. 1.) Indeed, it was Ruzzo alone who
initiated the criminal proceeding against Barber. With the exception of
“labels and conclusions,” Barber fails to plead “factual content that allows
the court to draw the reasonable inference” that McMullen and Spitz took
any part in his prosecution. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949
(2009). Simply stating that McMullen and Spitz were “personally and
actively involved in the continuation of criminal proceedings against him,” is
grossly insufficient to establish personal involvement in the actual
prosecution. (See Compl. ¶ 87, Dkt. No. 1.) As such, defendants’ motion
to dismiss Barber’s third cause of action is granted with respect to
McMullen and Spitz.
However, Barber’s claim against Ruzzo is viable. Although probable
cause is a complete defense to a malicious prosecution claim, see Savino
v. City of New York, 331 F.3d 63, 72 (2d Cir. 2003), determining whether
an officer has probable cause requires a review of “the facts known to the
arresting officer at the time of the arrest,” Devenpeck v. Alford, 543 U.S.
146, 152 (2004) (internal citations omitted). Given the history between
Barber and Ruzzo, Ruzzo’s participation in the arraignment, and the
unresolved questions of fact, the court concludes that Ruzzo’s assertion of
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probable cause is premature. Accordingly, defendants’ motion is denied
with respect to the claim of malicious prosecution against Ruzzo in his
individual capacity.3
B.
Illegal imprisonment and the right to free speech
Defendants argue that Barber’s claims for illegal imprisonment—
arising out of his mental health evaluation—and free speech infringement
are time barred. (See Dkt. No. 8, Attach. 1 at 4-6.) Barber counters that
the accrual dates defendants are relying on, May 25, 2007 for the illegal
imprisonment claim, and August 3, 2007 for the first amendment claim, are
incorrect. (See Dkt. No. 11 at 3-11.) Instead, Barber avers that the actual
accrual date for both claims is July 21, 2008, the date his case was
dismissed. (Id.) The court disagrees.
Section 1983 actions are governed by the “general or residual state
statute of limitations for personal injury actions.” Ormiston v. Nelson, 117
F.3d 69, 71 (2d Cir. 1997) (internal quotation marks and citation omitted).
Although federal law determines the accrual date, Barber’s claims are still
subject to New York’s three year statute of limitations for unspecified
3
Since Barber’s claim for malicious prosecution against Ruzzo survives, his request to
supplement his pleadings on the issue of probable cause is denied as moot. (See Dkt. No.
13.)
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personal injury claims. See Wallace v. Kato, 549 U.S. 384, 387 (2007);
N.Y. C.P.L.R. § 214(5) (McKinney 2003). Generally, a section 1983 claim
accrues “once the plaintiff knows or has reason to know of the injury which
is the basis of his action.” Cornwell v. Robinson, 23 F.3d 694, 703 (2d Cir.
1994) (internal quotations omitted).
Here, Barber was ordered to submit to a mental health evaluation on
May 3, 2007. (See Compl. ¶¶ 40, 44, Dkt. No. 1.) Albeit unspecified in the
Complaint, it is clear that the evaluation occurred prior to the mental health
report being issued on May 25, 2007.4 (See id. ¶ 45.) Thus, the latest
possible accrual date for Barber’s illegal imprisonment claim is May 25,
2007, which renders it untimely when it was filed on October 6, 2010.
Likewise, Barber’s first amendment claim is also time barred. Using
August 3, 2007—the day the temporary restraining order lapsed—as the
accrual date, Barber’s “prior restraint of speech” claim expired in August
2010. (See Compl. ¶¶ 41, 113, Dkt. No. 1.) Although Barber argues that
his speech was restrained until the charges against him were dismissed,
the court is unpersuaded as he was aware of the restraint well before the
4
Barber’s argument that Justice Roberg’s failure to hold a follow up hearing on his
competency suspended the accrual date for this claim is unavailing. (See Dkt. No. 11 at 3-8.)
That argument mistakenly focuses on Justice Roberg’s knowledge, and not Barber’s.
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temporary restraining order expired on August 3, 2007.
Accordingly, defendants motion to dismiss Barber’s illegal
imprisonment and first amendment claims is granted with respect to all
defendants in their individual capacities.
V. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that defendants’ motion to dismiss (Dkt. No. 8) is
GRANTED in part as to:
1.
All claims against defendants in their official capacities;
2.
All claims against McMullen and Spitz in their individual
capacities; and
3.
Barber’s first, second, fourth and fifth causes of action against
Ruzzo in his individual capacity; and it is further
ORDERED that defendants motion to dismiss (Dkt. No. 8) is DENIED
with respect to Barber’s claim of malicious prosecution against Ruzzo in his
individual capacity; and it is further
ORDERED that McMullen and Spitz are terminated as parties; and it
is further
ORDERED that Barber’s motion to supplement his pleadings (Dkt.
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No. 13) is DENIED as moot; and it is further
ORDERED that Ruzzo file the appropriate responsive pleadings
within the time allotted by the rules; and it is further
ORDERED that the parties notify Magistrate Judge Homer in order to
schedule further proceedings in accordance with this order; and it is further
ORDERED that the Clerk provide a copy of this MemorandumDecision and Order to the parties.
IT IS SO ORDERED.
October 19, 2011
Albany, New York
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