Myers v. The People of the State of New York (Department of Motor Vehicles) et al

Filing 48

MEMORANDUM-DECISION and ORDERED, that Defendants Motion (Dkt. No. 34) to dismiss is DENIED as moot; and it is further ORDERED, that Plaintiffs Cross-Motion (Dkt. No. 38) is DENIED as moot; and it is further ORDERED, that Plaintiff submit a second ame nded complaint setting forth all of the facts and claims that the Court will consider when conducting an initial review under 28 U.S.C. § 1915(e) within thirty (30) days of the filing date of this Decision and Order as set forth above; and it is further ORDERED, that Plaintiff submit a memorandum of law addressing the timeliness of his claims within thirty (30) days of the filing date of this Decision and Order as set forth above(3/10/16). Signed by Senior Judge Lawrence E. Kahn on February 09, 2016.***A copy of this order was served upon the pro se plaintiff by regular US mail. (sas)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
SCOTT MYERS,
Plaintiff,
-against-

1:14-cv-1492 (LEK/CFH)

THE PEOPLE OF THE STATE OF
NEW YORK, et al.,
Defendants.

MEMORANDUM-DECISION and ORDER
I.

INTRODUCTION
Pro se Plaintiff Scott Myers (“Plaintiff”) commenced this action for violations of his civil

rights that allegedly occurred after he was arrested on the charge of driving while intoxicated. Dkt.
No. 1 (“Complaint”). United States Magistrate Judge Christian F. Hummel granted Plaintiff’s
Application to proceed in forma pauperis and conducted an initial review of the Complaint pursuant
to 28 U.S.C. § 1915(e). Dkt. No. 9 (“Report-Recommendation”). The Report-Recommendation,
which recommended the dismissal of claims against all Defendants except for Officer Gambino
(“Gambino”), was approved and adopted in its entirety. Dkt. No. 18 (“April Order”). On August 3,
2015, Plaintiff filed an Amended Complaint seeking to add claims against the Sheriff of the Town
of Saugerties. Dkt. No. 26 (“Amended Complaint”). Presently before the Court is an initial review
of the Amended Complaint.1

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On August 21, 2015, Gambino filed a Motion to dismiss for failure to state a claim in
reference to the original Complaint. Dkt. No. 34 (“Motion”). Plaintiff has filed a Cross-Motion and
Response in opposition. Dkt. No. 38 (“Cross-Motion”). Because Plaintiff has filed an Amended
Complaint, Gambino’s Motion as well as Plaintiff’s Cross-Motion are denied as moot.

II.

INITIAL SCREENING
A. Legal Standard
Having found that Plaintiff meets the financial criteria for commencing this action in forma

pauperis, and because Plaintiff seeks relief from an officer or employee of a governmental entity,
the Court must consider the sufficiency of the allegations set forth in the Amended Complaint in
light of 28 U.S.C. § 1915(e).2 Section 1915(e) directs that, when a plaintiff seeks to proceed in
forma pauperis, “the court shall dismiss the case at any time if the court determines that . . . (B) the
action . . . (i) is 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)(B).3
Additionally, when reviewing a complaint, a Court may also look to the Federal Rules of
Civil Procedure. Rule 8 provides that a pleading which sets forth a claim for relief shall contain “a
short and plain statement of the claim showing that the pleader is entitled to relief.” See FED. R.
CIV. P. 8(a)(2). The purpose of Rule 8 “is to give fair notice of the claim being asserted so as to
permit the adverse party the opportunity to file a responsive answer, prepare an adequate defense
and determine whether the doctrine of res judicata is applicable.” Powell v. Marine Midland Bank,
162 F.R.D. 15, 16 (N.D.N.Y. 1995) (quoting Brown v. Califano, 75 F.R.D. 497, 498 (D.D.C.
1977)).
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The Court will review the Amended Complaint in place of the original Complaint. “It is
well established that an amended complaint ordinarily supersedes the original and renders it of no
legal effect.” Arce v. Walker, 139 F.3d 329, 332 n.4 (2d Cir. 1998) (quoting Int’l Controls Corp. v.
Vesco, 556 F.2d 665, 668 (2d Cir. 1977)).
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To determine whether an action is frivolous, a court must look to see whether the
complaint “lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325
(1989).
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A court should not dismiss a complaint if the plaintiff has stated “enough facts to state a
claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). While a court should construe the factual allegations in the light
most favorable to the plaintiff, “the tenet that a court must accept as true all of the allegations
contained in a complaint is inapplicable to legal conclusions.” Id. “Threadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. (citing
Twombly, 550 U.S. at 555). Rule 8 “demands more than an unadorned the-defendant-unlawfullyharmed-me accusation.” Id. Thus, a pleading that contains only allegations which “are so vague as
to fail to give the defendants adequate notice of the claims against them” is subject to dismissal.
Sheehy v. Brown, 335 F. App’x 102, 104 (2d Cir. 2009).
B. Summary of the Amended Complaint
The following facts are set forth as alleged by Plaintiff in his Amended Complaint. On June
28, 2009, Gambino stopped Plaintiff’s car in the Town of Saugerties. Am. Compl. at 2. Plaintiff
produced his drivers license and registration, but was almost immediately asked to exit his vehicle,
placed in handcuffs, and escorted to Gambino’s police car. Id. Plaintiff alleges that Gambino did
not read Plaintiff his Miranda rights or provide him with chemical refusal warnings and ignored
Plaintiff’s request for an attorney. Id. Five other officers arrived at the scene, and Plaintiff alleges
that he was yelled at and asked to perform field sobriety tests, which he did. Id. Plaintiff was then
arrested and arraigned a few hours later before Judge Daniel Lamb. Id. He contends that intake at
Ulster County Jail recorded no evidence of substance abuse. Id. Plaintiff contends that “Gambino’s

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papers” and subsequent testimony to the Department of Motor Vehicles at an administrative hearing
were false, and that Gambino improperly impounded Plaintiff’s car. Id. Plaintiff’s trial for the
underlying offenses occurred 1,315 days after his arrest, during which Plaintiff represented himself
pro se and had all charges against him dismissed. Id. Plaintiff contends that Officer Gambino was
not licensed to operate the chemical test equipment, did not know how to operate his RADAR
equipment, and lacked probable cause that Plaintiff was traveling at a speed of 51 or 52 miles per
hour in a 35 mile per hour zone. Id. Plaintiff has added claims against the Sheriff of the Town of
Saugerties for his failure to properly train or manage his subordinate, Gambino. Id.
In his first cause of action, Plaintiff asserts the following claims: “stopping an innocent
citizen, making false claims in official papers, making a false arrest, taking property that they were
not entitled or empowered to take, intimidating a citizen, causing great and real mental harm,
causing a report in the ‘blotter’ of arrests that is false and caused damage to my public reputation
with concommitant [sic] losses of income, and that the loss of my drivers [license] from then to now
is caused by the actions of the defendants.” Id.
In his second cause of action, Plaintiff alleges that Gambino caused him mental anguish by
falsely claiming that Plaintiff was not cooperative and by further exacerbating Plaintiff’s posttraumatic stress disorder. Id. at 3. Plaintiff’s third cause of action asserts a claim against Gambino
for allegedly lying at the administrative hearing held by the Department of Motor Vehicles. Id.
Plaintiff seeks punitive damages, compensation, and damages for pain and suffering. Id. at 2, 4.
Liberally construed, Plaintiff alleges the following claims: (1) Gambino arrested Plaintiff
without probable cause and impounded his car in violation of the Fourth Amendment and Plaintiff’s
due process rights; (2) Gambino made misrepresentations at Plaintiff’s administrative hearing,

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thereby depriving him of due process and in violation of his equal protection rights; and (3) the
Ulster County Sheriff failed to properly supervise and train its employees, resulting in the
deprivation of Plaintiff’s constitutional rights.
C. Analysis
1. Legal Standard
Plaintiff brings this action pursuant to 42 U.S.C. § 1983, which establishes a cause of action
for “‘the deprivation of any rights, privileges, or immunities secured by the Constitution and laws’
of the United States.” German v. Fed. Home Loan Mort. Corp., 885 F. Supp. 537, 573 (S.D.N.Y.
1995) (citing Wilder v. Va. Hosp. Ass’n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983)); see
also Myers v. Wollowitz, No. 95-CV-0272, 1995 WL 236245, at *2 (N.D.N.Y. Apr. 10, 1995)
(“Section 1983 is the vehicle by which individuals may seek redress for alleged violations of their
constitutional rights.”). “Section 1983 itself creates no substantive rights, [but] . . . only a procedure
for redress for the deprivation of rights established elsewhere.” Sykes v. James, 13 F.3d 515, 519
(2d Cir. 1993). The Court will construe the allegations in Plaintiff’s Amended Complaint with the
utmost leniency. See, e.g., Haines v. Kerner, 404 U.S. 519, 521 (1972) (holding that a pro se
litigant’s complaint is to be held “to less stringent standards than formal pleadings drafted by
lawyers”).
2. Application
In § 1983 actions, the applicable statute of limitations is the State’s “general or residual
[state] statute [of limitations] for personal injury actions . . .” Pearl v. City of Long Beach, 296 F.3d
76, 79 (2d Cir. 2002) (quoting Owens v. Okure, 488 U.S. 235, 249-50 (1989)). In New York, a
three-year statute of limitations applies for personal injury actions and thus to § 1983 actions. Id.;

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see also N.Y. C.P.L.R. § 214(5). Although state law provides the relevant limitations period,
federal law determines when a § 1983 action accrues, which has been held to be the time “when the
plaintiff knows or has reason to know of the harm.” Connolly v. McCall, 254 F.3d 36, 41 (2d Cir.
2001); see also Covington v. City of New York, 916 F. Supp. 282, 285 (S.D.N.Y. 1996) (same).
“Thus, in determining when the statute begins to run, the proper focus is on the time of the
[wrongful] act, not the point at which the consequences of the act become painful.” Covington, 916
F. Supp. at 285 (internal quotation marks omitted).
Plaintiff commenced this action on December 10, 2014. Compl. The statute of limitations
for a § 1983 claim seeking damages for false arrest, where the arrest is followed by criminal
proceedings, begins to run at the time the claimant becomes detained pursuant to legal process. See
Wallace v. Kato, 549 U.S. 384, 397 (2007). Plaintiff was detained immediately following his arrest
on June 28, 2009. Am. Compl. at 2. Accordingly, Plaintiff should have commenced his false arrest
claim no later than June 28, 2012. Similarly, to the extent that Plaintiff claims he was denied due
process and equal protection the night of his arrest, that claim should have been commenced no later
than June 28, 2012, which is three years after the actual constitutional deprivation.
The statute of limitations on false imprisonment begins to run when the alleged false
imprisonment ends. Wallace, 549 U.S. at 389. This takes into account the reality that a victim may
not be able to sue while he is still imprisoned. Id. “Reflective of the fact that false imprisonment
consists of detention without legal process, a false imprisonment ends once the victim becomes held
pursuant to such process—when, for example, he is bound over by a magistrate or arraigned on
charges.” Id. Any damage arising after legal process is afforded “forms part of the damages for the
‘entirely distinct’ tort of malicious prosecution, which remedies detention accompanied, not by

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absence of legal process, but by wrongful institution of legal process.” Id. Here, Plaintiff was
arraigned two hours after his arrest, which would have either been on June 28, 2009 or June 29,
2009. Am. Compl. at 2. Therefore, Plaintiff’s false imprisonment claim should have been brought
by June 29, 2012 in order to be timely.
To the extent that Plaintiff claims he was denied due process and equal protection during his
bench trial before Judge Lamb, the Amended Complaint does not include sufficient factual
allegations to allow the Court to determine whether Plaintiff’s claims are timely. As previously
mentioned, the Amended Complaint is now the operative pleading in this action and supersedes the
allegations contained in the original Complaint. However, the Court finds that the Amended
Complaint does not include sufficient factual allegations to allow the Court to conduct a meaningful
initial review of Plaintiff’s claims. In light of Plaintiff’s pro se status and in recognition of the fact
that the original Complaint included a more complete timeline of the underlying facts of this case,
Plaintiff will be afforded one final opportunity to amend his Complaint.
Accordingly, Plaintiff is instructed to provide a second amended complaint, which should
include sufficient factual allegations so that the Court may determine when Plaintiff’s due process
and equal protection claims accrued. Any amended complaint submitted by Plaintiff in response to
this Decision and Order must set forth a short and plain statement of the facts he relies on in support
of his claims that specific individuals named as defendants in that pleading engaged in acts of
misconduct or wrongdoing which violated his constitutional rights. Plaintiff’s second amended
complaint, which shall supersede and replace in its entirety the original Complaint and Amended
Complaint, must be a complete pleading which sets forth all of the claims that Plaintiff wants the
Court to consider as a basis for awarding relief herein.

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Plaintiff is instructed to file a second amended complaint within thirty (30) days of the
filing date of this Decision and Order.
3. Equitable Tolling
“In cases where the statute of limitations has run, equitable tolling may be available.” Boyle
v. DeWolf, No. 13-CV-0104, 2013 WL 1749933, at *2 (N.D.N.Y. Apr. 23, 2013) (Kahn, J.).
Equitable tolling is available only in “rare and exceptional circumstances,” where a court finds that
“extraordinary circumstances” have prevented a party from filing his or her claims within the statute
of limitations. Abbas v. Dixon, 480 F.3d 560, 564 (2d Cir. 2007). The party asserting that equitable
tolling applies must have “acted with reasonable diligence throughout the period he [sought] to
toll.” Doe v. Menefee, 391 F.3d 147, 159 (2d Cir. 2004). Further, a plaintiff bears the burden of
establishing that equitable tolling of her claims is appropriate. Boos v. Runyon, 201 F.3d 178, 185
(2d Cir. 2000). Equitable tolling is generally not available where the circumstances that a plaintiff
claims prevented him from timely filing were within the plaintiff’s control. See Smaldone v.
Senkowski, 273 F.3d 133, 138 (2d Cir. 2001) (noting that the “exceptional circumstances” giving
rise to equitable tolling must be “beyond [the] control” of the party who seeks to benefit from it);
see also Walker v. Jastremski, 430 F.3d 560, 564 (2d Cir. 2005) (finding that equitable tolling was
not available where pro se litigant’s delay in filing his § 1983 action appeared to be entirely within
his control).
In light of Plaintiff’s pro se status and in the interests of justice, Plaintiff is instructed to file
a memorandum of law with the Court within thirty (30) days of this Decision and Order,
explaining why his § 1983 claims are timely and setting forth any arguments in favor of equitable
tolling. See Abbas v. Dixon, 480 F.3d 636, 640 (2d Cir. 2007) (holding that district courts should

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provide pro se plaintiffs notice and an opportunity to be heard before dismissing claims as untimely
sua sponte). At this time, the Court takes no position on the merits of Plaintiff’s claims.
III.

CONCLUSION
Accordingly, it is hereby:
ORDERED, that Defendant’s Motion (Dkt. No. 34) to dismiss is DENIED as moot; and it

is further
ORDERED, that Plaintiff’s Cross-Motion (Dkt. No. 38) is DENIED as moot; and it is
further
ORDERED, that Plaintiff submit a second amended complaint setting forth all of the facts
and claims that the Court will consider when conducting an initial review under 28 U.S.C. § 1915(e)
within thirty (30) days of the filing date of this Decision and Order as set forth above; and it is
further
ORDERED, that Plaintiff submit a memorandum of law addressing the timeliness of his
claims within thirty (30) days of the filing date of this Decision and Order as set forth above; and it
is further
ORDERED, that the Clerk shall serve a copy of this Decision and Order on Plaintiff.
IT IS SO ORDERED.

DATED:

February 09, 2016
Albany, New York

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