Layou v. Crews et al

Filing 64

DECISION and ORDER: ORDERED that 59 Report and Recommendation is approved and adopted in its entirety. ORDERED that 53 Motion for judgment on the pleadings is granted in part consistent with the Report and Recommendation. Signed by Senior Judge Lawrence E. Kahn on 9/30/13.{order served via regular mail on plaintiff} (nas )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
MICHAEL JAMES LAYOU,
Plaintiff,
-against-

9:11-CV-0114 (LEK/RFT)

DOUGLAS K. CREWS, Patrolman,
Village of Phoenix Police Department;
MICHAEL STAFFORD, Administrator,
Oswego County Correctional Facility;
COUNTY OF OSWEGO; and the
ESTATE OF RODNEY CARR,
Defendants.

DECISION and ORDER
I.

INTRODUCTION
This pro se action under 42 U.S.C. §§ 1981(a), 1983, and 1985 comes before the Court on a

Report-Recommendation filed September 12, 2013, by the Honorable Randolph F. Treece, U.S.
Magistrate Judge, pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(c). Dkt. No. 59 (“ReportRecommendation”). Judge Treece recommends that the Court grant Defendants’ Motion for
judgment on the pleadings as to: (1) Plaintiff’s claims for intentional infliction of emotional distress
(“IIED”), unlawful search, and excessive force in handcuffing by Defendant Crews; (2) Plaintiff’s
claims for abuse of process and malicious prosecution by Defendants Crews and the Estate of
Rodney Carr; (3) all of Plaintiff’s claims against the County of Oswego for failure to satisfy the
Monell pleading standard for municipal liability; and (4) all of Plaintiff’s claims under § 1981(a)
and § 1985(3) against all Defendants. See Report-Rec. at 17-28, 25; Dkt. No. 53 (“Motion”). Judge
Treece recommends that the Court deny the Motion as to Plaintiff’s claims for: (5) excessive force

in pepper-spraying by Defendant Crews; (6) denial of access to the courts by Defendant Stafford;
and (7) unlawful search, seizure, and arrest by Defendant Crews.1 See Report-Rec. at 25. Plaintiff
timely filed a number of objections to the Report-Recommendation, which the Court now addresses.
See Dkt. No. 63 (“Objections”).
II.

STANDARD OF REVIEW
A district court must review de novo any objected-to portions of a magistrate judge’s report-

recommendation or specific proposed findings or recommendations therein and “may accept, reject,
or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28
U.S.C. § 636(b); accord FED. R. CIV. P. 72(b); see also Morris v. Local 804, Int’l Bhd. of Teamsters,
167 F. App’x 230, 232 (2d Cir. 2006); Barnes v. Prack, No. 11-CV-0857, 2013 WL 1121353, at *1
(N.D.N.Y. Mar. 18, 2013). If no objections are made, or if an objection is general, conclusory,
perfunctory, or a mere reiteration of an argument made to the magistrate judge, a district court need
review that aspect of a report-recommendation only for clear error. Chylinski v. Bank of Am., N.A.,
434 F. App’x 47, 48 (2d Cir. 2011); Barnes, 2013 WL 1121353, at *1; Farid v. Bouey, 554 F. Supp.
2d 301, 306-07 & n.2 (N.D.N.Y. 2008); see also Machicote v. Ercole, No. 06 Civ. 13320, 2011 WL
3809920, at *2 (S.D.N.Y. Aug. 25, 2011) (“[E]ven a pro se party’s objections to a Report and
Recommendation must be specific and clearly aimed at particular findings in the magistrate’s
proposal, such that no party be allowed a second bite at the apple by simply relitigating a prior
argument.”). A district court also “may receive further evidence or recommit the matter to the
magistrate judge with instructions.” 28 U.S.C. § 636(b); accord FED. R. CIV. P. 72(b)(3).

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For a complete statement of the claims and underlying facts, reference is made to the
Report-Recommendation.
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III.

DISCUSSION
A. Intentional Infliction of Emotional Distress
Plaintiff contends that the Report-Recommendation erred by citing only to ¶ 39 of his

Second Amended Complaint when discussing his IIED claim. Objs. at 1; see Dkt. No. 50 (“Second
Amended Complaint”). In support of this objection, Plaintiff cites to ¶¶ 74 and 75 of the Second
Amended Complaint; however, ¶ 74 merely repeats and realleges ¶¶ 1-73 of the Second Amended
Complaint, and ¶ 75 recites the elements of an IIED claim without additional supporting factual
allegations.2 See Second Am. Compl. ¶¶ 74-75. Accordingly, the Court has reviewed this aspect of
the Report-Recommendation only for clear error. Having found none, the Court adopts Judge
Treece’s recommendation.
B. Unlawful Search
Plaintiff’s objection to the recommended disposition of his unlawful search claim against
Defendant Crews consists of a single unadorned quotation: “[G]ood faith [will not] rectify an
otherwise unlawful arrest.” Objs. at 3 (quoting Broughton v. State, 335 N.E.2d 310, 315 (N.Y.
1975)). To the extent Plaintiff is attempting to invoke the “fruit of the poisonous tree” aspect of
unlawful search doctrine, he cannot: it does not apply to § 1983 actions. Townes v. City of New
York, 176 F.3d 138, 145 (2d Cir. 1999). Otherwise, as Judge Treece ably explained, Plaintiff states
that Defendant Crews did not personally search him; accordingly, Plaintiff cannot maintain an
action against Defendant Crews for a search that Defendant Crews did not perform or have authority
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Plaintiff also cites to page seven of his Response to Defendants’ Motion, which in turn
cites ¶¶ 10, 13-17, 24-25, 29, 38, 54, 63, 65, and 67 of the Second Amended Complaint. Objs. at 1;
see Dkt. No. 56 at 7. The Court has reviewed these paragraphs and found no factual allegations
plausibly supporting an IIED claim under New York law. See, e.g., Nevin v. Citibank, N.A., 107 F.
Supp. 2d 333, 345 (S.D.N.Y. 2000).
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to order. See Report-Rec. at 15-16. The Court therefore adopts Judge Treece’s recommendation on
this claim as well.
C. Excessive Force in Handcuffing
Plaintiff objects to Judge Treece’s recommendation on the excessive force in handcuffing
claim with the conclusory statement that the severity of the handcuffs’ use was objectively
unreasonable under the circumstances. Objs. at 3. The Court therefore has reviewed Judge Treece’s
recommendation on this claim only for clear error. Having found none, the Court adopts the
recommendation.
D. Abuse of Process and Malicious Prosecution
Plaintiff seeks leave to further amend his Complaint on the basis that he failed to recognize
the difference between malicious use of process and malicious abuse of process and intended to
plead the former. Objs. at 3-4; see Jennings v. Shuman, 567 F.3d 1213, 1216 (3d Cir. 1977)
(explaining the distinction). Malicious use of process, however, is “also known as malicious
prosecution,” see Jennings, 567 F.3d at 1216, which the Report-Recommendation already
addressed. See Report-Rec. at 17-18; see also Objs. at 4 (objecting to Report-Recommendation’s
treatment of malicious prosecution claim). Accordingly, the Court has reviewed Judge Treece’s
abuse of process analysis for clear error and found none. Plaintiff’s request to amend his Complaint
is denied.
Plaintiff contends that he established malicious prosecution based on fraud, perjury, and the
misrepresentation of evidence. Objs. at 4. However, as Judge Treece explained, Plaintiff cannot
maintain a malicious prosecution claim because, contrary to Plaintiff’s assertion, the criminal
prosecution of Plaintiff was not terminated “favorably” to Plaintiff for purposes of a malicious

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prosecution suit. See Report-Rec. at 17-18. Plaintiff’s prosecution was reversed by the Appellate
Division of New York Supreme Court because “the evidence was tainted by an unlawful search and
seizure, and/or the chain of custody over the evidence could not be established.” Report-Rec. at 18.
As a matter of law, this is not a “favorable termination” permitting the accused to bring a malicious
prosecution action. See Report-Rec. at 17-18; see, e.g., Martinez v. City of Schenectady, 735
N.Y.S.2d 868, 872 (App. Div. 2001) (“Plaintiff’s felony conviction was reversed not because of her
lack of culpability . . . but because the evidence that formed the basis for her conviction was
obtained pursuant to a faulty search warrant. There is plainly no favorable termination here for
purposes of malicious prosecution.”). The Court therefore adopts Judge Treece’s recommendation
as to this claim.
E. Municipal Liability
Plaintiff’s objection to Judge Treece’s discussion of municipal liability does nothing to cure
the defects Judge Treece identified; i.e., that Plaintiff has identified neither a municipal policy or
custom of violating constitutional rights nor sufficient facts to show or from which it could be
inferred that the municipality’s policymakers have failed to properly train their subordinates to
prevent such violations. Objs. at 4-5; see Report-Rec. at 20-22. See generally Monell v. Dep’t of
Soc. Servs., 436 U.S. 658, 694 (1978). The Court therefore adopts Judge Treece’s recommendation
to dismiss the County of Oswego from this action.
F. Section 1981(a) and Section 1985(3) Claims
Finally, Plaintiff objects to the recommended dismissal of his § 1981(a) and § 1985(3)
claims because his “Complaint pleads [the] necessary requirements for purposeful discrimination of
his constitutional rights.” Objs. at 5. As Judge Treece explained, a § 1981 claim requires a plaintiff

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to show that she is a racial minority, while a § 1985 claim requires a plaintiff to show that she was
targeted by a conspiracy due to her membership in a constitutionally protected class. Report-Rec. at
22-24. Plaintiff alleges that he is poor, a convicted felon, and a drug addict, but these categories
have not been recognized as protected classes under § 1985 and do not satisfy the racial-minority
requirement of § 1981. See Report-Rec. at 23-24 (collecting cases). Accordingly, Judge Treece’s
recommendation is adopted on these claims.
G. Remainder of the Report-Recommendation
The Court has reviewed the remainder of the Report-Recommendation for clear error
because it was not objected to. See generally Dkt. Having found no such error, the Court adopts the
remainder of the recommendations.
IV.

CONCLUSION
Accordingly, it is hereby:
ORDERED, that the Report-Recommendation (Dkt. No. 59) is APPROVED and

ADOPTED in its entirety; and it is further
ORDERED, that Defendants’ Motion (Dkt. No. 53) for judgment on the pleadings is
GRANTED in part consistent with the Report-Recommendation (Dkt. No. 59); and it is further
ORDERED, that the Clerk of the Court serve a copy of this Decision and Order on all
parties.
IT IS SO ORDERED.

DATED:

September 30, 2013
Albany, NY

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