J. & W. Trading and Leasing Inc. et al v. State of New York et al

Filing 175

MEMORANDUM-DECISION and ORDER - That Van Doren's 128 motion to dismiss is GRANTED. That Colavita's and Buske's 133 motion to dismiss is GRANTED IN PART and DENIED IN PART as follows: GRANTED as to Mhina's conspiracy and S ection 1983 false arrest claims and DENIED in all other respects. That the following claims remain against Colavita and Buske: malicious prosecution claims under Section 1983 and New York State law; a Section 1981 claim; and a false arrest claim under New York State law. That the Clerk terminate defendant Van Doren from this action. Signed by Senior Judge Gary L. Sharpe on 8/1/2018. (Copy served via regular mail)(jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
JAMES P. MHINA,
Plaintiff,

5:15-cv-327
(GLS/DEP)

v.
BETH VAN DOREN et al.,
Defendants.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
James P. Mhina
Pro Se
P.O. Box 133
Syracuse, NY 13201
FOR THE DEFENDANTS:
Beth Van Doren
Onondaga County Attorney’s Office
John H. Mulroy Civic Center
421 Montgomery Street, 10th Floor
Syracuse, NY 13202
Anthony Colavita1 and David Buske
City of Syracuse Corporation Counsel
233 East Washington Street
Room 300 City Hall
1

KAREN ANN BLESKOSKI, ESQ.

AMANDA R. HARRINGTON,
ESQ.

Consistency in the spelling of this name—whether it is “Colavita” or “Collavita”—has
remained elusive. (Compare Dkt. No. 5 at 3 n.3, with Dkt. No. 49 ¶ 79.) In his second
amended complaint, Mhina uses the spelling “Colavita.” (See generally 2d Am. Compl., Dkt.
No. 24.) Likewise, in the pertinent motion to dismiss, it is spelled “Colavita.” (See generally
Dkt. No. 133, Attach. 2.) Thus, the court uses that spelling. The Clerk is directed to amend
the docket accordingly.

Syracuse, NY 13202
Gary L. Sharpe
Senior District Judge
MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiff pro se James P. Mhina brings claims under 42 U.S.C. § 1983
and New York State common law against Beth Van Doren, Assistant
District Attorney for Onondaga County, and Anthony Colavita and David
Buske, City of Syracuse Police Detectives. (2d Am. Compl., Dkt. No. 24.)
Pending are Van Doren’s motion to dismiss, (Dkt. No. 128), and a motion
to dismiss filed by Colavita and Buske, (Dkt. No. 133). For the reasons
stated below, Van Doren’s motion is granted and Colavita’s and Buske’s
motion is granted in part and denied in part.
II. Background
A.

Facts2
In his prolix second amended complaint, Mhina generally alleges that

defendants cooperated to file and prosecute criminal charges against him

2

The facts are drawn from Mhina’s second amended complaint and presented in the
light most favorable to him. Citations to this pleading are to the CM/ECF-generated page
numbers.

2

between 2006 and 2009. (See generally 2d Am. Compl.) Mhina appears
to have been arrested and charged by the City of Syracuse Police
Department for petit larceny, attempted grand larceny, and possession of a
forged instrument. (Id. at 10, 12-13.) Additionally, according to public
records, Mhina was charged with falsifying business records and scheme
to defraud. See People v. Mhina, 110 A.D.3d 1445, 1446 (4th Dep’t
2013).3 In 2009, upon a jury verdict, Mhina was convicted of three counts
of criminal possession of a forged instrument in the second degree, two
counts of falsifying business records in the first degree, and one count of
scheme to defraud. See id. at 1445-46. His conviction was subsequently
overturned on appeal. See id. at 1447. Mhina alleges that he was
released after serving more than seven-and-a-half years in prison. (2d Am.
Compl. at 3.)
As best the court can decipher, Mhina alleges the following. In 2006,
Woodhaven Apartments failed to return a $1,700.00 check to him and
instead turned it over to the Syracuse Police Department. (Id. at 2, 7.)
Defendants then coerced Woodhaven Apartments and its owner to file

3

The court may look to matters of public record, including case law, when considering
a motion to dismiss for failure to state a claim. See Pani v. Empire Blue Cross Blue Shield,
152 F.3d 67, 75 (2d Cir. 1998).

3

criminal charges of attempted grand larceny. (Id. at 3.) In October 2006,
Colavita and Buske arrested Mhina for petit larceny and attempted grand
larceny. (Id. at 10.) Colavita and Buske, who are white, “used bigotry”
when they arrested Mhina, “a black man of African origin.” (Id. at 12.)
They called Mhina a “‘niger’” and said “that he was going to be at home
with other ‘nigers’ where they belong, in prisons and in jails.” (Id.)4 In June
2007, while investigating another charge, Colavita and Buske coerced a
Bank of America employee to lie and fraudulently bring charges against
Mhina. (Id. at 12-13.) Colavita and Buske also testified at Mhina’s trial and
“lied using false testimony of [the bank employee].” (Id. at 13-14.)
“When . . . Van Doren was conducting and performing administrative
[sic] and investigating . . . Mhina, [she] coerced [a Citizens Bank employee]
to change a true bank record statements [sic] to fit a crime of petit[]
larceny.” (Id. at 19.) Van Doren used this statement to certify an arrest
warrant for Mhina. (Id.) She also used “false, fraudulent, coerced
evidence” during Mhina’s trial. (Id. at 21.) Additionally, Van Doren
interfered with Mhina’s “corporate business contracts profits” when she

4

Mhina also alleges that Colavita and Buske “are known in the black neighborhoods to
b [sic] real racist, always violating black peoples’ civil and constitutional rights during arrests.”
(2d Am. Compl. at 12.)

4

coerced the Citizens Bank employee “to change true bank statements.”
(Id. at 22.)5 In 2008, defendants also coerced a bank employee to lie and
“bring” fraudulent criminal charges of possession of a forged instrument.
(Id. at 55.) It is far from clear how all of these events are related, if at all.
Mhina seeks, among other relief, “$100,000,000,000.00” in damages.
(Id. at 15.)
B.

Procedural History
Mhina initially filed suit against over a dozen defendants on March

20, 2015. (Compl., Dkt. No. 1.) After various dismissals, (Dkt. Nos. 11,
22, 115), the only defendants remaining are Van Doren, Colavita, and
Buske.6 Mhina’s second amended complaint can be read as bringing
claims of false arrest, malicious prosecution, and conspiracy under both
Section 1983 and New York State common law. (See generally 2d Am.
Compl.) He also brings a Section 19817 claim against Colavita and Buske
5

Mhina alleges that he had “very profitable, 10-20 year guaranteed irrevocable, good
letters of credit 235+ in number,” (2d Am. Compl. at 37), from business associates worldwide,
(id. at 46).
6

Twice, the court has had to deny premature summary judgments motions by Mhina.
(Dkt. Nos. 12, 56.) Mhina also filed an improper and baseless motion for default judgment,
(Dkt. No. 98), which was denied, (Dkt. No. 115 at 12). Various other improper filings by Mhina
have been stricken, (see, e.g., Dkt. No. 20), and he has had a premature appeal dismissed by
the Second Circuit, (Dkt. No. 159).
7

See 42 U.S.C. § 1981.

5

and a New York State common law tortious interference claim against Van
Doren. (Id.)8
Pending are Van Doren’s motion to dismiss, (Dkt. No. 128), and
Colavita’s and Buske’s motion to dismiss, (Dkt. No. 133).
III. Standard of Review
Federal Rule of Civil Procedure 12(b)(6) provides that a cause of
action shall be dismissed if a complaint fails “to state a claim upon which
relief can be granted.” For a full discussion of the governing standard for
Rule 12(b)(6), the court refers the parties to its prior decision in Ellis v.
Cohen & Slamowitz, LLP, 701 F. Supp. 2d 215, 218 (N.D.N.Y. 2010).
IV. Discussion
A.

Van Doren
In her motion to dismiss, Van Doren argues that she is entitled to

absolute prosecutorial immunity. (Dkt. No. 128, Attach. 2 at 1-5.) The
court agrees.
Mhina alleges that Van Doren coerced others to make certain false
statements and file criminal charges. (2d Am. Compl. at 3, 5, 19, 22.) But
8

As a pro se litigant, the court must read Mhina’s pleadings “liberally and interpret
them to raise the strongest arguments that they suggest.” McPherson v. Coombe, 174 F.3d
276, 280 (2d Cir. 1999) (internal quotation marks and citation omitted).

6

absolute prosecutorial immunity applies to the falsification of evidence, the
coercion of witnesses, and the solicitation of perjured testimony. See
Taylor v. Kavanagh, 640 F.2d 450, 452 (2d Cir. 1981). Mhina also alleges
that Van Doren used a fraudulent, coerced statement to certify an arrest
warrant. (2d. Am. Compl. at 19.) This too is covered because
“prosecutors are immune from suit based on their actions in . . . procuring
[an] arrest warrant.” Barr v. Abrams, 810 F.2d 358, 362 (2d Cir. 1987); see
Pinaud v. County of Suffolk, 52 F.3d 1139, 1150 (2d Cir. 1995).
Additionally, Van Doren is immune from Mhina’s allegations that she used
false, fraudulent, coerced evidence during trial and prosecuted him without
cause. See Harrison v. County of Nassau, No. 15-CV-2712, 2016 WL
4083381, at *4 (E.D.N.Y. Aug. 1, 2016) (noting absolute immunity applies
“even where the prosecutor knowingly prosecutes an innocent person”);
Moye v. City of New York, No. 11 Civ. 316, 2012 WL 2569085, at *9
(S.D.N.Y. July 3, 2012) (“A prosecutor’s presentation of false evidence, or
subornation of perjury at trial, is protected by absolute immunity.”)
(collecting cases). And to the extent that Mhina alleges a conspiracy claim
against Van Doren, she is immune. See Pettus v. City of New York, No.
10–CV–1442, 2011 WL 4458901, at *10 (citing Dorman v. Higgins, 821
7

F.2d 133, 139 (2d Cir. 1987)).
However, “when a prosecutor performs an investigative or
administrative function rather than a prosecutorial one, absolute immunity
is not available.” Barbera v. Smith, 836 F.2d 96, 99 (2d Cir. 1987) (internal
citations omitted). In recognition of this,9 Mhina alleges, “When defendant
Beth Van Doren was conducting and performing administrative and
investigating [sic] plaintiff . . . Mhina, coerced [a Citizens Bank employee]
to change a true bank record statements [sic] to fit a crime of petite
larceny.” (2d Am. Compl. at 19 (emphasis added).) He also alleges that
Van Doren tortiously interfered “during [the] investigative stage” of his
criminal case. (Id. at 22.) But “[e]ven in a pro se case . . . although a court
must accept as true all of the allegations contained in a complaint, that
tenet is inapplicable to legal conclusions, and threadbare recitals of the
elements of a cause of action, supported by mere conclusory statements,
do not suffice.” Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010)
(internal quotation marks and citation omitted); see Green v. McLaughlin,

9

In a Memorandum-Decision and Order addressing Mhina’s original complaint, in
recognition that Mhina might be able to allege that Van Doren was acting in an investigative or
administrative role such that absolute immunity would not apply, the court allowed Mhina to
replead claims against Van Doren in his amended complaint. (Dkt. No. 11 at 6-9.)

8

480 F. App’x 44, 46-47 (2d Cir. 2012). In other words, Van Doren was not
performing an investigative or administrative function just because Mhina
says she was, and absolute immunity applies.
B.

Colavita and Buske
1.

Conspiracy

The court agrees with Colavita and Buske that Mhina’s conclusory
allegations of a conspiracy are insufficient to state a claim. (Dkt. No. 133,
Attach. 2 at 8-9.) “Even a pro se plaintiff must allege some factual basis to
substantiate his conclusion that defendants conspired together to deprive
him of his constitutionally protected interests.” Studifin v. N.Y.C. Police
Dep’t, 728 F. Supp. 990, 993 (S.D.N.Y. 1990) (internal citation omitted).
As Colavita and Buske point out, Mhina has failed to provide any facts from
which it could be reasonably inferred that a conspiracy existed. (Dkt. No.
133, Attach. 2 at 9.) Mhina merely alleges that Colavita and Buske
coerced certain individuals, (see, e.g., 2d Am. Compl. at 5), which is
insufficient, see Corsini v. Nast, 613 Fed. App’x 1, 4 (2d Cir. 2015)
(“[C]omplaints containing only conclusory, vague, or general allegations
that the defendants have engaged in a conspiracy to deprive the plaintiff of
his constitutional rights are properly dismissed[.]”) (internal quotation marks
9

and citations omitted).10
2.

Malicious Prosecution

The elements of a malicious prosecution claim are: “(1) the
defendant initiated a prosecution against plaintiff, (2) without probable
cause to believe the proceeding can succeed, (3) the proceeding was
begun with malice[,] and[ ] (4) the matter terminated in plaintiff’s favor.”
Rentas v. Ruffin, 816 F.3d 214, 220 (2d Cir. 2016) (internal quotation
marks and citation omitted). Colavita and Buske argue that Mhina has not
sufficiently alleged the first and third elements. (Dkt. No. 133, Attach. 2 at
9-11.)11
Colavita and Buske argue that there are no allegations to infer that
they filed an accusatory instrument or played an active role in Mhina’s
prosecution. (Id. at 10-11.) But Mhina alleges that Colavita and Buske
coerced others to file criminal charges. (2d Am. Compl. at 3.) He also
10

Although Colavita and Buske focused on conspiracy in the context of Section 1983,
(Dkt. No. 133, Attach. 2 at 8-9), Mhina’s complaint arguably may be read as containing a claim
for civil conspiracy under New York State law, (see generally 2d Am. Compl.). However, such
a claim fails for the same reasons that his Section 1983 conspiracy does—there are no factual
allegations from which to infer a conspiracy. See McSpedon v. Levine, 158 A.D.3d 618, 621
(2d Dep’t 2018).
11

Colavita and Buske did not challenge the sufficiency of the fourth element—i.e., that
the matter terminated in Mhina’s favor. Although Mhina’s claim may be vulnerable on that
ground, see Martinez v. City of Schenectady, 97 N.Y.2d 78, 84-85 (2001), the court expresses
no opinion on that issue at this time because it was not raised.

10

alleges that they coerced a Bank of America employee “to lie[] and
fraudulently bring malicious charges against [him].” (Id. at 13.) Although a
close call, in drawing all reasonable inferences in Mhina’s favor, it cannot
be said at this stage that Colavita and Buske did not “play[] an active role
in the prosecution, such as giving advice and encouragement or
importuning the authorities to act.” Manganiello v. City of New York, 612
F.3d 149, 163 (2d Cir. 2010) (internal quotation marks and citation
omitted).
Colavita and Buske also argue that there are no allegations showing
actual malice. (Dkt. No. 133, Attach. 2 at 11.) But Mhina alleges that they
called him a “‘niger’” when they arrested him and told him “he was going to
be at home with other ‘nigers’ where they belong, in prisons and in jails.”
(2d Am. Compl. at 12.) Although not explicitly alleged to be connected to
Mhina’s prosecution (as opposed to his arrest), in drawing all reasonable
inferences in favor of the plaintiff at this stage, actual malice is sufficiently
pled. See Tuff v. Vill. of Yorkville Police Dep’t, 6:16-CV-473, 2017 WL
401241, at *13 (N.D.N.Y. Jan. 30, 2017) (“[A]ctual malice . . . could
reasonably be inferred from allegations that [p]laintiff was ticketed, and

11

treated harshly, because of his race.”).12
3.

Section 1981

The same racial allegations also preclude dismissal of Mhina’s
Section 1981 claim. A Section 1981 claim has the following elements: “(1)
plaintiff[] [is] [a] member[] of a racial minority; (2) defendants’ intent to
discriminate on the basis of race; and (3) discrimination concerning one of
the statute’s enumerated activities.” Brown v. City of Oneonta, 221 F.3d
329, 339 (2d Cir. 2000). “[I]t is well settled that an allegation of arrest
based on racial discrimination satisfies the third prong.” Hernandez v. City
of Albany, No. 1:12–CV–1614, 2015 WL 364183, at *4 (N.D.N.Y. Jan. 27,
2015) (internal citation omitted). Colavita and Buske argue that Mhina “has
not set forth any allegations that would causally link his ‘African origin’ and
his arrest by [them].” (Dkt. No. 133, Attach. 2 at 12.) But that blatantly
ignores Mhina’s specific allegations that Colavita and Buske used explicit
racial slurs when arresting him.13
12

Tuff examined a malicious prosecution under New York State law. See Tuff, 2017
WL 401241, at *13. But “[t]he elements of a malicious prosecution claim under [S]ection 1983
are derived from applicable state law.” Swartz v. Insogna, 704 F.3d 105, 111 (2d Cir. 2013).
As such, for the same reasons Mhina’s Section 1983 malicious prosecution claim survives, his
New York State law malicious prosecution claim survives.
13

The statute of limitations for a Section 1981 claim is three years. See Patterson v.
County of Oneida, 375 F.3d 206, 225 (2d Cir. 2004). The arrest having allegedly occurred in
October 2006, (2d Am. Compl. at 10), it would seem that Mhina’s claim is barred. But because

12

4.

False Arrest

The court agrees with Colavita and Buske that Mhina’s Section 1983
false arrest claim is barred by the applicable three-year statute of
limitations. (Dkt. No. 133, Attach. 2 at 13-15.) They correctly argue that
“[Mhina] . . . does not set forth any allegations that would indicate that his
false arrest claim is grounded in a Fourth Amendment violation or that any
evidence obtained as a result of his arrest was the sine qua non of the
prosecution’s case.” (Id. at 14 (internal citations omitted).) “Rather, the
complaint suggests that [Minha]’s arrest was the result of an ongoing
investigation by [d]efendants and that [Minha] was ultimately convicted
based on the allegedly false testimony of a bank manager.” (Id. at 14-15
(internal citation omitted).) Thus, Minha’s false arrest claim accrued at the
time of his arrest, which he alleges is October 2006, and accordingly is
time-barred. (Id. at 15.)14
However, Colavita and Buske do not address Minha’s New York

Colavita and Buske did not raise this issue in their motion, the court declines to address it.
14

Even if Minha’s “actual arrest date” was February 4, 2008, as Colavita and Buske
allege, (Dkt. No. 133, Attach. 2 at 14 n.1), his Section 1983 false arrest claim would be
untimely.

13

State law cause of action for false arrest.15 Such a claim is governed by a
one-year statute of limitations that runs from a plaintiff’s release from
confinement. See Coleman v. Worster, 140 A.D.3d 1002, 1004 (2d Dep’t
2016) (collecting cases). Minha alleges that he was released on October
27, 2014, which makes his New York State law false arrest claim timely.16
5.

Tortious Interference

In response to Colavita’s and Buske’s motion to dismiss, Minha
seems to attempt to allege a tortious interference claim against the two
detectives. (Dkt. No. 139 at 4; Dkt. No. 140, Attach. 1 at 3-4.) But Minha
made no such allegations in his second amended complaint, which is the
operative pleading. (See generally 2d Am. Compl.) That is, Minha only
alleged tortious interference against Van Doren. (Id. at 22.) “[C]ourts are
not required to consider claims that are raised for the first time in a pro se
plaintiff’s papers in opposition to a motion.” Wiltshire v. Wanderman, No.
13–CV–9169, 2015 WL 4164808, at *1 n.3 (S.D.N.Y. July 10, 2015)
(collecting cases). The court refuses to do so, especially since Mhina has
15

Once again, Colavita and Buske ignore at least one potential defense. For example,
probable cause provides a complete defense to a false arrest claim. See Mahoney v. State of
New York, 147 A.D.3d 1289, 1291 (3d Dep’t 2017); Nasca v. Sgro, 130 A.D.3d 588, 589 (2d
Dep’t 2015). But this argument was not raised so the court does not consider it.
16

As noted above, Minha filed his original complaint on March 20, 2015. (Compl.)

14

been given at least three bites at the apple already.17
V. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that Van Doren’s motion to dismiss (Dkt. No. 128) is
GRANTED; and it is further
ORDERED that Colavita’s and Buske’s motion to dismiss is
GRANTED IN PART and DENIED IN PART as follows:
GRANTED as to Mhina’s conspiracy and Section 1983 false arrest
claims; and
DENIED in all other respects; and it is further
ORDERED that the following claims remain against Colavita and
Buske: malicious prosecution claims under Section 1983 and New York
State law; a Section 1981 claim; and a false arrest claim under New York
State law; and it is further
ORDERED that the Clerk terminate defendant Van Doren from this

17

To the extent Mhina may be construed as asserting a claim of perjury based on
allegations that any of the defendants lied under oath, either in an affidavit or through
testimony before the grand jury or at trial, such a claim is not cognizable. See Luckett v. Bure,
290 F.3d 493, 497 (2d Cir. 2002). Additionally, although Mhina sued Van Doren “under her
official capacity,” he did not allege any policy, practice, or decision of a final policymaker to
support a Monell claim. See Monell v. Dep’t of Social Servs. of City of N.Y., 436 U.S. 658, 691
(1978); (cf. Dkt. No. 5 at 16-17.)

15

action; and it is further
ORDERED that the Clerk provide a copy of this MemorandumDecision and Order to the parties.
IT IS SO ORDERED.
August 1, 2018
Albany, New York

16