Myers v. The People of the State of New York (Department of Motor Vehicles) et al
MEMORANDUM-DECISION AND ORDERED, that Defendants Motion to Dismiss (Dkt. No. 60) is GRANTED; and it is further ORDERED, that Myerss Second Amended Complaint (Dkt. No. 49) is DISMISSED without leave to amend; and it is further ORDERED, that Myerss Motion for Mandatory Arbitration or Trial Scheduling Order (Dkt. No. 65) is DENIED; and it is further ORDERED, that the Clerk of the Court close this case. Signed by Senior Judge Lawrence E. Kahn on March 24, 2017. (sas)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
THE PEOPLE OF THE STATE OF
NEW YORK, et al.,
MEMORANDUM-DECISION AND ORDER
Pro se plaintiff Scott Myers commenced this action pursuant to 42 U.S.C. § 1983 for
violations of his civil rights that allegedly occurred after he was arrested on the charge of driving
while intoxicated. Dkt. Nos. 1 (“Complaint”), 26 (“Amended Complaint”), 49 (“Second
Amended Complaint”). Presently before the Court is Defendants’ Motion to Dismiss, Dkt. No.
60 (“Motion to Dismiss”), and Myers’s “Motion for Mandatory Arbitration or Trial Scheduling
Order,” Dkt. No. 65 (“Myers Motion”). Myers did not file a response to the Motion to Dismiss.
For the following reasons, the Court grants Defendants’ Motion and denies Myers’s Motion.
A. Factual Background
The following facts are set forth as alleged by Myers in his Second Amended Complaint.
On June 28, 2009, Myers was driving home from a small group ministries meeting, where he
alleges no alcohol was served. Second Am. Compl. ¶ 1. Myers alleges that he was in compliance
with the posted thirty-five mile per hour speed limit when he was pulled over by Saugerties
police. Id. ¶¶ 2–3. Myers produced his driver’s license and registration. Id. ¶ 3. Myers alleges that
Defendant Officer Gambino was speaking aggressively to him, and that almost immediately, two
more police cars appeared at the scene. Id. In total, there were five police officers at the site of
Myers’s arrest. Id. Myers alleges that Gambino seemed agitated at the outset and was acting
aggressively toward him without reason. Id. Gambino asked Myers to get out of his car, placed
him in handcuffs, and put him in the back of a patrol car. Id. ¶ 4. Myers claims he asked for an
attorney. Id. ¶ 5. Myers was taken out of the patrol car and asked to perform various field
sobriety tests, which he claims he did to the best of his ability. Id. ¶ 6. He alleges that he was
screamed at and told he was not cooperating. Id. Myers repeated his request for an attorney and
refused to answer any questions. Id.
At around 1:30 or 2:00 AM., Myers was put back in the patrol car and driven to the Town
of Saugerties police station. Id. ¶¶ 7–8. Myers alleges that he was not given Miranda warnings or
advised of his rights regarding the refusal to take chemical tests at the scene of his arrest. Id. ¶ 8.
When Gambino told Myers to blow into the breathalyzer, Myers told him he did not trust him or
the situation and he did not believe that Gambino was honest or competent. Id. Myers contends
that Gambino lacked the required license to operate the chemical test equipment. Id. ¶ 9. Myers
claims that once at the police station, he offered to take a blood test as long as the blood test was
performed by a health professional. Id. ¶ 8. Myers was arraigned at 5:00 AM before Town of
Saugerties Judge Daniel Lamb. Id. ¶ 10. Myers contends that he once again requested an attorney
before being sent to the Ulster County jail. Id. He contends that intake at Ulster County Jail
recorded no evidence that Myers had used drugs or alcohol that evening. Id. ¶ 11. Myers was
seen by Dr. Mitchell, a psychiatrist, upon Myers’s request. Id. ¶ 12. Dr. Mitchell found that
Myers suffered from post-traumatic stress disorder (“PTSD”) as a result of the 9/11 terrorist
attacks. Id. ¶ 13. Dr. Mitchell did not find that Myers suffered from any drug or alcohol
dependency. Id. Following his meeting with Dr. Mitchell, Myers was released from jail. Id. ¶ 14.
Myers contends that his request for a jury trial was denied. Id. ¶ 15. He states that a trial
was scheduled about two years after his initial arrest, but he declined to attend for lack of a jury
of his peers. Id. ¶ 16. Following his failure to appear at trial, Myers was arrested in the village of
Tannersville where he lived, and he was held in jail for seven days by Judge Lamb. Id. ¶ 17.
Myers was held in jail as a pre-trial detainee awaiting trial for contempt of court. Id. ¶ 21. On
February 5, 2013, Myers’s trial took place before Judge Lamb, 1,315 days after Myers’s initial
arrest. Id. Gambino was the only witness. Id. Myers contends that at the trial, it was proven that
Gambino was not licensed to operate his chemical test equipment, did not know how to use his
speed detector, and that Myers was not driving in excess of the speed limit at the time of his
arrest. Id. ¶ 22. Myers asserts that Gambino lied in his paperwork, at trial, at an administrative
hearing before the Department of Motor Vehicles (“DMV”), and likely to the local press. Id.
Judge Lamb issued a decision on May 28, 2014, finding Myers not guilty of all charges. Id. ¶ 23;
Dkt. No. 49-1 (“Exhibits”) at 1.
The DMV held an administrative hearing roughly four months after Myers’s initial arrest.
Id. ¶ 20. The Administrative Law Judge confirmed that Gambino’s conduct in arresting Myers
was lawful. Id. Myers has not driven since his arrest in 2009 and has not been allowed to obtain a
driver’s license. Id. ¶ 25.
B. Procedural History
Myers began this lawsuit on December 10, 2014, Compl., and he filed his Amended
Complaint on August 3, 2015, Am. Compl., after the Court dismissed several of his claims, Dkt.
No. 18 (“April Order”) at 2–3. In a Memorandum-Decision and Order issued on February 9,
2016, the Court conducted an initial review of Myers’s Amended Complaint. Dkt. No. 48
(“February Order”). The Court dismissed the Amended Complaint, but in light of Myers’s pro se
status gave him one last chance to amend his Complaint. Id. The Court further instructed Myers
to submit a memorandum of law addressing the timeliness of his claims and setting forth any
arguments in favor of equitable tolling. Id. at 8.
In a May 9, 2016 Memorandum-Decision and Order, this Court held that the only claims
in the Second Amended Complaint that survived initial review under 28 U.S.C. § 1915(e) were
Myers’s fourth, sixth, and eleventh causes of action, which the Court construed as asserting that
Myers “was deprived of due process during his bench trial before Judge Lamb because
[Gambino] allegedly made false claims that [Myers] was physically aggressive toward him, that
[Myers] disobeyed his instructions, that [Myers] was speeding, and [Gambino] failed to correct
these false claims at trial.” Dkt. No. 56 (“May Order”) at 8, 13. Accordingly, the Court ordered
Defendants to respond to this claim only. Id. at 13.1
Defendants move to dismiss in part on the ground that Gambino is entitled to absolute
immunity for the testimony he gave (or did not give) at Myers’s trial. Mot. Dismiss at 7. On
December 22, 2016, Myers filed his motion, which continues to assert a false arrest claim despite
The other claims asserted in Myers’s Second Amended Complaint were dismissed as
untimely or for failure to state a claim. May Order at 13.
the Court’s dismissing that claim in its May Order. Myers Mot. at 7; May Order at 13. In
particular, Myers appears to take issue with the Court’s decision to dismiss his false arrest claim
as time barred. Myers Mot. at 8–10. Finally, Myers asks the Court to “look at the municipality of
Saugerties as a defendant.” Id. at 10.
To survive a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) of the
Federal Rules of Civil Procedure, a “complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A court must accept as
true the factual allegations contained in a complaint and draw all inferences in favor of the
plaintiff. Allaire Corp. v. Okumus, 433 F.3d 248, 249–50 (2d Cir. 2006). Plausibility, however,
requires “enough fact[s] to raise a reasonable expectation that discovery will reveal evidence of
[the alleged misconduct].” Twombly, 550 U.S. at 556. The plausibility standard “asks for more
than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678 (citing
Twombly, 550 U.S. at 556). “[T]he pleading standard Rule 8 announces does not require
‘detailed factual allegations,’ but it demands more than an unadorned, the-defendant-unlawfullyharmed-me accusation.” Id. (quoting Twombly, 550 U.S. at 555). Where a court is unable to infer
more than the mere possibility of the alleged misconduct based on the pleaded facts, the pleader
has not demonstrated that she is entitled to relief and the action is subject to dismissal. Id. at
A. The Motion to Dismiss
As noted above, the only surviving claim in this case is that Myers was deprived of due
process at his trial because Gambino, the police officer who arrested Myers, lied on the stand and
failed to take the opportunity at trial to correct false claims he had made about Myers. May Order
at 8, 13. This claim must be dismissed because Gambino is entitled to absolute immunity for his
As this Court has previously noted, “the Supreme Court has held that police officers are
absolutely immune from liability under section 1983 for testifying falsely at trial.” Linder v. N.Y.
State Police, No. 07-CV-371, 2007 WL 1288027, at *2 (N.D.N.Y. Apr. 30, 2007) (Kahn, J.)
(citing Briscoe v. LaHue, 460 U.S. 325, 330–31 (1983)). In other words, if “a plaintiff’s claim is
premised on perjury by police officers, the plaintiff’s ability to recover for violations of his right
to a fair trial is hindered by the common law doctrine that shields witnesses, including officers, in
a cloak of absolute immunity for their testimony in judicial proceedings.” Fappiano v. City of
New York, No. 01-CV-2476, 2015 WL 94190, at *19 (E.D.N.Y. Jan. 7, 2015), aff’d, 640 F.
App’x 115 (2d Cir. 2016); accord Deraffele v. City of New Rochelle, No. 15-CV-282, 2016 WL
1274590, at *12–13 (S.D.N.Y. Mar. 30, 2016) (holding that plaintiff’s claims relating solely to
several police officers’ allegedly false testimony were barred by absolute immunity); Hoyos v.
City of New York, 999 F. Supp. 2d 375, 393 (E.D.N.Y. 2013) (“As witnesses at trial, the officers
are entitled to absolute immunity from civil claims based on the substance of their testimony.”);
Sheff v. City of New York, No. 03-CV-708, 2004 WL 594894, at *7 (S.D.N.Y. Mar. 24, 2004)
(“Police officers may not be held liable under Section 1983 for perjurious testimony.”).
Myers’s claim that Gambino violated his right to a fair trial by offering false testimony
(or failing to correct previous misrepresentations) at his trial must be dismissed because
Gambino is entitled to absolute immunity for his testimony. True, “[w]here . . . the constitutional
tort is the action of a police officer in initiating a baseless prosecution, his role as a ‘complaining
witness’ renders him liable to the victim under section 1983.” White v. Frank, 855 F.2d 956, 961
(2d Cir. 1988). But the May Order made clear that the only surviving claims relate to the
assertion that Myers “was deprived of due process during his bench trial.” May Order at 13
(emphasis added). Absolute “immunity is available only where the constitutional tort is simply
giving false testimony,” White, 855 F.2d at 961, and since that is precisely the case here,
Gambino is entitled to absolute immunity, see Hayes v. County of Sullivan, 853 F. Supp. 2d 400,
421 (S.D.N.Y. 2012) (“Although [the officers] were complaining witnesses before the grand jury,
Plaintiff is merely seeking to hold them liable for their allegedly false testimony, not for
malicious prosecution.”); Dukes v. New York, 743 F. Supp. 1037, 1043–44 (S.D.N.Y. 1990)
(finding that “[w]hile [absolute] immunity does not extend to the constitutional tort of initiating a
baseless prosecution,” that exception was inapplicable in the present case because “the
allegations directed at [the officer] concern[ed] his testimony during [the plaintiff’s] trial”). Thus,
Myers’s only surviving claim must be dismissed.
A court “should not dismiss [a pro se complaint] without granting leave to amend at least
once when a liberal reading of the complaint gives any indication that a valid claim might be
stated.” Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (quoting Gomez v. USAA Fed.
Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999)). Myers has already amended his complaint twice,
which counsels against granting him leave to amend yet again. See, e.g., Abascal v. Hilton, No.
04-CV-1401, 2008 WL 268366, at *8 (N.D.N.Y. Jan. 30, 2008) (“[G]ranting a pro se plaintiff an
opportunity to amend is not required where the plaintiff has already been given a chance to
amend his pleading.”). Moreover, the Court warned Myers in its February Order that his Second
Amended Complaint would be his “final opportunity to amend his Complaint.” Feb Order. at 7.
Finally, because the only remaining claim involves conduct for which Gambino is entitled to
absolute immunity, any amendment would be futile. See O’Callaghan v. City of New York, No.
16-CV-1139, 2016 WL 7177509, at *11 (S.D.N.Y. Dec. 8, 2016) (“Absolute immunity . . . bars
suit for damages against [the defendants] and any attempts to amend would be futile.”); Faison v.
Maccarone, No. 11-CV-137, 2012 WL 681812, at *16 (E.D.N.Y. Mar. 1, 2012) (“[A]ny attempt
to amend the pleading with respect to defendants . . . would be futile, as they are shielded by
absolute immunity.”); Shorter v. Rice, No. 12-CV-111, 2012 WL 1340088, at *5 (E.D.N.Y. Apr.
10, 2012) (“[P]laintiff does not have any possibility of asserting a plausible Section 1983 claim
because of the application of the doctrine of absolute immunity to his federal claims against the
prosecutors. . . . Thus, . . . any amendment to the complaints would clearly be futile, [and]
dismissal without leave to re-plead is appropriate.”). Thus, the Court will not give Myers another
chance to amend his complaint.
B. Myers’s Motion
Myers’s Motion could be construed as a request for this Court to reconsider its May
Order under Federal Rule of Civil Procedure 54(b), which permits federal district courts to
reconsider an interlocutory order “at any time before the entry of a judgment adjudicating all the
claims and all the parties’ rights and liabilities.” Fed. R. Civ. P. 54(b); see also Scott v. Chipotle
Mexican Grill, Inc., 103 F. Supp. 3d 542, 545 (S.D.N.Y. 2015) (“The district court . . . ‘is vested
with the power to revisit its decisions before the entry of final judgment . . . .’” (quoting
Transaero, Inc. v. La Fuerza Aerea Boliviana, 99 F.3d 538, 541 (2d Cir. 1996))). It is “within the
plenary power of the court ‘to review its interlocutory orders “to afford such relief from them as
justice requires,” and this power is not affected by [Federal] Rule [of Civil Procedure] 60(b).’”
Wanamaker v. Columbian Rope Co., 907 F. Supp. 522, 527 (N.D.N.Y. 1995) (quoting Krome v.
Merrill Lynch & Co., Inc., 110 F.R.D. 693, 694–95 (S.D.N.Y. 1986)). “[A] motion for
reconsideration [under Rule 54(b)] should be denied unless there is a strong likelihood that the
district court’s decision would ultimately be reversed on appeal.” SEC v. Amerindo Inv.
Advisors, Inc., No. 05-CV-5231, 2014 WL 405339, at *3 (S.D.N.Y. Feb. 3, 2014). Accordingly,
a court should generally refrain from revising its earlier decisions “unless there is ‘an intervening
change of controlling law, . . . new evidence, or the need to correct a clear error or prevent a
manifest injustice.’” Official Comm. of Unsecured Creditors of Color Tile, Inc. v. Coopers &
Lybrand, LLP, 322 F.3d 147, 167 (2d Cir. 2003) (quoting Virgin Atl. Airways v. Nat’l Mediation
Bd., 956 F.2d 1245, 1255 (2d Cir. 1992)). The May Order is interlocutory because it dismissed
“some but not all of [Myers’s] claims,” Wanamaker, 907 F. Supp. at 527, so Rule 54(b) is the
only possible basis for reconsideration.2
In his motion, Myers complains that 1,795 days elapsed between his arrest in Saugerties
and the filing of his Complaint in this case. Myers Mot. at 6. He suggests that this delay was
“intentional . . . as a collaboration of the town court and the law enforcement of that court.” Id.
Under Local Rule 7.1(g), which requires a party to move for reconsideration no later
than fourteen days after the challenged order, Myers’s request for reconsideration is untimely,
since he is challenging the May Order, which was filed over seventh months before he filed his
“Motion for Mandatory Arbitration or Trial Scheduling Order.” Docket.
at 7. And he appears to argue that the statute of limitations for the false arrest claim this Court
dismissed in its May Order should therefore be equitably tolled. Id. at 6. Yet the Court already
rejected this argument in its May Order. May Order at 11–12. As the Court noted, with respect to
any claims arising from the arrest, Myers’s “injuries occurred at the time of the alleged
constitutional deprivations[,] and [he] does not argue that he was not immediately aware of the
alleged constitutional deprivations.” Id. at 12. Moreover, “the statute of limitations upon a § 1983
claim seeking damages for a false arrest in violation of the Fourth Amendment, where the arrest
is followed by criminal proceedings, begins to run at the time the claimant becomes detained
pursuant to legal process.” Wallace v. Kato, 549 U.S. 384, 397 (2007). Thus, any delay between
the arrest and later events in his state case and the present litigation has no bearing on the
question whether his claims stemming from the arrest should be equitably tolled.
Myers also appears to be asking the Court to allow him to amend his complaint a third
time so that he can add a claim against “the municipality of Saugerties” for allowing 1,318 days
to pass between his arrest and his trial. Mot. at 6, 10. As noted above, since Myers has already
amended his complaint twice, the Court need not give him another opportunity to amend, see,
e.g., Abascal, 2008 WL 268366, at *8 (“[G]ranting a pro se plaintiff an opportunity to amend is
not required where the plaintiff has already been given a chance to amend his pleading.”), and the
Court informed Myers in its February Order that he would given only one more chance to amend
his complaint, Feb. Order at 7. Further, Myers already unsuccessfully attempted to bring a claim
against Saugerties. He included Saugerties as a defendant in his original complaint, Compl. at 1,
and the Court dismissed any claims against the town nearly two years ago, April Order at 2–3.
Since Myers has “made no specific showing as to how he would cure the defects that [the Court
previously identified] if given a [third] opportunity to amend,” Coleman v. brokersXpress, LLC,
375 F. App’x 136, 137 (2d Cir. 2010), any request for leave to amend his complaint that could be
inferred from his motion is denied.3
Accordingly, it is hereby:
ORDERED, that Defendants’ Motion to Dismiss (Dkt. No. 60) is GRANTED; and it is
ORDERED, that Myers’s Second Amended Complaint (Dkt. No. 49) is DISMISSED
without leave to amend; and it is further
ORDERED, that Myers’s Motion for Mandatory Arbitration or Trial Scheduling Order
(Dkt. No. 65) is DENIED; and it is further
ORDERED, that the Clerk of the Court close this case; and it is further
ORDERED, that the Clerk of the Court serve a copy of this Memorandum-Decision and
Order on all parties in accordance with the Local Rules.
IT IS SO ORDERED.
March 24, 2017
Albany, New York
To the extent that Myers also asks this Court to “move to arbitration” or “provide a
scheduling order for discovery and trial,” Myers Mot. at 10–11, those requests are moot in light
of the Court’s decision to dismiss his Second Amended Complaint without leave to amend.
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