Smith v. John Doe #1 et al

Filing 17

MEMORANDUM OPINION AND ORDER granting re: 6 MOTION to Dismiss, filed by New York City Housing Authority. The Clerk is directed to close Docket No. 6. (Signed by Judge John G. Koeltl on 9/3/10) (cd)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK -----------------------------------DEREK SMITH, Plaintiff, - against JOHN DOE #1, JOHN DOE #2, JOHN DOE #3, RAYMOND KELLY, MICHAEL BLOOMBERG, MICHAEL MORGENTHAU, NEW YORK POLICE DEPARTMENT, NEW YORK CITY HOUSING AUTHORITY, and THE CITY OF NEW YORK, Defendants. -----------------------------------JOHN G. KOELTL, District Judge: The defendant, the New York City Housing Authority (the "Housing Authority"), moves to dismiss the Complaint against it pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, for failure to state a claim upon which relief can be granted. The motion is granted. I On a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the allegations in the Complaint are accepted as true. Grandon v. Merrill Lynch & Co., 147 F.3d 184, In deciding a motion to dismiss, all 10 Civ. 3136 (JGK) MEMORANDUM OPINION AND ORDER

188 (2d Cir. 1998).

reasonable inferences must be drawn in the plaintiff's favor. Gant v. Wallingford Bd. of Educ., 69 F.3d 669, 673 (2d Cir. 1995); Cosmas v. Hassett, 886 F.2d 8, 11 (2d Cir. 1989). The

Court's function on a motion to dismiss is "not to weigh the evidence that might be presented at a trial but merely to

determine whether the complaint itself is legally sufficient." Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir. 1985). The

Court should not dismiss the Complaint if the plaintiff has stated "enough facts to state a claim to relief that is plausible on its face." 544 (2007). Twombly v. Bell Atl. Corp., 550 U.S.

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. (2009). The pleadings and allegations of a pro se plaintiff must be construed liberally for the purpose of a motion to dismiss pursuant to Rule 12(b)(6). See McKithen v. Brown, 481 F.3d 89, Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949

96 (2d. Cir. 2007) (quoting Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006)); Weixel v. Bd. of Educ. of City of New York, 287 F.3d 138, 145-46 (2d Cir. 2002). Additionally,

the submissions of a pro se litigant should be interpreted to "raise the strongest arguments that they suggest." Pabon v. Wright, 459 F.3d 241, 248 (2d Cir. 2006) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)). II The plaintiff complains about his arrest on February 12, 2007. He attributes the arrest in part to the Housing

Authority's alleged failure to maintain an adequate intercom system in a city housing project. He also complains about the

actions of the police officers who arrested him and claims that 2

the Housing Authority should be liable for his alleged false arrest by the police. He has also sued the New York City Police

Department ("NYPD") and the unknown officers who arrested him. The Complaint was placed in prison mail by the plaintiff on March 14, 2010. The plaintiff's claims of negligence against the Housing Authority are plainly barred by the one-year-and-ninety-day statute of limitations for tort claims against the Housing Authority. See N.Y. Pub. Hous. Law § 157(2). Such claims are

also barred by the plaintiff's failure to file a timely notice of claim against the Housing Authority. See N.Y. General Municipal Law § 50-e(1); White v. New York City Housing Authority, 831 N.Y.S.2d 515 (App. Div. 2007); Figueroa v. New York City Housing Authority, 707 N.Y.S.2d 37 (App. Div. 2000). To the extent that the plaintiff is attempting to allege a claim for a violation of his constitutional rights based on false arrest, the plaintiff has failed to plead any facts to state a plausible claim for relief against the Housing Authority. Insofar as he complains of a false arrest, his Complaint is directed against New York City police officers, and there are no allegations in the Complaint as to how the Housing Authority is responsible for the actions of New York City police officers. The New York City Housing Authority police department was merged with the NYPD in