McCord v. The City of New York et al

Filing 22

MEMORANDUM & ORDER: granting in part and denying in part 15 Motion to Dismiss. For the foregoing reasons, the City's motion is granted in part and denied in part. Plaintiffs claims are dismissed insofar as they center on (1) Defendants' ; alleged tampering with evidence and coercion of witnesses, (2) Plaintiffs interrogation, and (3) Defendants' alleged use of force. Plaintiff's Fourth Amendment search and seizure claim survives. Three final notes. First, to the extent th at Plaintiff's claims are dismissed, dismissal is without prejudice. With respect to his evidence-tampering and witness-coercion (Brady) claim, Heck permits only without-prejudice dismissal because the claim may be reinstated should Plaintiff� 39;s conviction eventually be invalidated. See Amaker, 179 F.3d at 52. Similarly, the collateral estoppel bar to Plaintiff's Miranda claim may dissolve if the Second Department disagrees with the trial court's disposition of Plaintiffs moti on to suppress his post-arrest statements. This Court will "retain jurisdiction... in order to act on any motion arising from a reversal of the supreme court's judgment by the appellate division." Petrella v. Siegel, 843 F.2d 87, 90 (2 d Cir. 1988); see also Chi. Ins. Co. v. Fasciana, No. 04 Civ. 7934 (LAP), 2006 WL 3714310, at *4 (S.D.N.Y. Dec. 13, 2006). And although Plaintiff's bare-bones excessive force allegations currently fail to state a claim, he may be able to " contextualize his claim with facts that bolster this particular allegation's plausibility." Betts, 2013 WL 311124, at *11. The Court will therefore allow Plaintiff an opportunity to re-plead his excessive force claim. Second, as noted above , it appears that the individual Defendants in this case, Angst and Denezzo, have not been served. This action cannot proceed against those Defendants if they have not been served. Notably, to the extent that Plaintiff's claims survive against t he City alone, and not the individual Defendants, they are subject to the standards for § 1983 municipal liability set forth in Monell v. Department of Social Services, 436 U.S. 658 (1978). Third, the Court notes that it may be appropriate to s tay this action pending resolution of Plaintiff's criminal appeal. If Plaintiff's appeal challenges the same conduct that forms the basis of his search and seizure claim, the possibility that the Second Department will dispose of that chall enge counsels hesitation before proceeding further on that claim in this Court. The Second Circuit has suggested that a stay may be appropriate under similar circumstances, "with a view to avoiding wasteful duplication of judicial resources and having the benefit of the state court's views." Giulini v. Blessing, 654 F.2d 189, 193 (2d Cir. 1981); see also Kirschner v. Klemons, 225 F.3d 227, 237-39 (2d Cir. 2000); Jackson, 135 F.3d at 257. However, this Court is currently unable to ascertain whether the Second Department will, in fact, be addressing the same Fourth Amendment issues that Plaintiff raises here; if not, there would seem to be no reason to stay the litigation of his remaining claim. In light of the foregoing, it i s hereby ORDERED that Plaintiff must submit a letter to the Court by July 7, 2014. His letter should indicate whether he wishes to file an amended complaint or instead rest on his original complaint without re-pleading his excessive force claim. If Plaintiff wishes to file an amended complaint, he should include a proposed amended complaint with his letter. Plaintiff's letter should also indicate whether he wishes to maintain his claims against Angst and Denezzo. The Court will consider ex tending his time to serve those Defendants if he demonstrates good cause for his failure to serve them within 120 days of the summons being issued. See Fed. R. Civ. P. 4(m). Plaintiff is cautioned that, in light of his prior lack of communication reg arding the City's motion to dismiss, failure to submit a letter by the July 7 deadline may result in dismissal of his remaining claim for failure to prosecute. See, e.g., Robinson v. Sposato, No. 13 Civ. 3334 (JFB) (WDW), 2014 WL 1699001, at *2 (E.D.N.Y. Apr. 24, 2014) (dismissing prisoner's suit for failure to prosecute because "plaintiff has shown no interest in continuing with this action"). It is further ORDERED that the City shall submit, by June 27, 2014, a letter rega rding whether a stay of this action would be appropriate in light of the above-cited cases and any other relevant authority. Plaintiff may respond by letter on or before July 7. This resolves Docket No. 15. (Signed by Judge Alison J. Nathan on 6/6/2014) (djc) Modified on 6/6/2014 (djc).

···usocsDNY

OOcuMEN!
ELECTRONICMJ,.Y FILED

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

·DOC#:

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DATEFILEDillJN

ANTHONY MCCORD,

~------~~~~....,

0 6 2014

13 Civ. 2008 (AJN)

Plaintiff,

MEMORANDUM &
ORDER

-v-

THE CITY OF NEW YORK, et al.,
Defendants.

----------------------------------------------------------------------)(
ALISON J. NATHAN, District Judge:
Before the Court is Defendant the City of New York's (the "City's") unopposed motion
to dismiss prose Plaintiff Anthony McCord's complaint for failure to state a claim pursuant to
Federal Rule of Civil Procedure 12(b)(6). Dkt. No. 15. For the reasons that follow, the City's
motion is granted in part and denied in part.

I.

Background
The following facts are taken from Plaintiffs complaint or judicially noticeable court

documents. See Shmueli v. City ofNew York, 424 F.3d 231, 233 (2d Cir. 2005).
Plaintiff is currently incarcerated at Sing Sing Correctional Facility. In March 2010, two
female witnesses infonned New York City Police Department ("NYPD") Detective Patrick
Angst that Plaintiff had entered their apartment, assaulted them, raped one of them, and stolen
two laptop computers. Angst then swore out a criminal complaint against Plaintiff and arrested
him following his identification by one of the witnesses. Def. Ex. B. Plaintiff was indicted by a
Kings County grand jury, and on December 2, 2011, he was convicted of second-degree robbery,
second-degree assault, first-degree burglary, and fourth-degree possession of stolen prope1iy. He
was sentenced to a prison tenn of twenty-one years to life. Def. Ex. F.
1

On September 27, 2012, a panel of New York's Appellate Division, Second Department,
granted Plaintiff's application for leave to prosecute an appeal in the form of a poor person and
assigned him appellate counsel. Def. Ex. G. His appeal remains pending.
In this action, brought under 42 U.S.C. § 1983, Plaintiff raises constitutional challenges
to several aspects of his arrest and prosecution. His complaint, which was filed on March 25,
2013, names as Defendants the City, the NYPD, Angst, and Detective Gary Denezzo. Plaintiff
claims that Angst and Denezzo entered and searched his dwelling and seized his property
without a warrant. Compl.

iii! 2-4. 1

He also claims that they ignored his repeated requests to

have counsel present during his post-arrest interrogation and coerced him to sign a Miranda
waiver. Id.

iii! 6.

He further alleges that Angst and Denezzo induced the two witnesses to falsely

accuse and testify against him, tampered with or failed to collect evidence of their search and
seizure of his dwelling, and struck him in the head "without cause or justification for the use of
such force." Id.

iii! 7-11.

Plaintiff seeks $10 million in compensatory damages and $3 million in

punitive damages.
Plaintiff's case was initially assigned to Judge Ramos, who granted Plaintiff leave to
proceed in forma pauperis and dismissed his claims against the NYPD because the NYPD is not
a suable entity. Dkt. Nos. 4, 7. Plaintiff submitted forms requesting that service on the
remaining Defendants be effectuated by the U.S. Marshals; the ECF docket sheet indicates that
the Marshals were able to successfully serve the City, but not Angst and Denezzo. Dkt. Nos. 911; see also Def. Br. at 1 n.l (indicating that "[ o ]n information and belief, as of the date of this

1

References to specific paragraphs of the complaint refer to the corresponding numbered paragraphs of the City's
Exhibit A, which reproduces Plaintiff's original complaint but adds numbered paragraphs.

2

Motion, Detectives Angst and Denezzo have not yet been served"). The case was reassigned to
the undersigned on August 6, 2013.
The City moved to dismiss on October 1, 2013, and the Court directed Plaintiff to either
oppose the motion or amend his complaint by October 28, 2013. Dkt. No. 18. After that
deadline passed without any submissions from Plaintiff, the Court gave him a final chance to
amend or oppose by December 16, 2013. Dkt. No. 19. Plaintiff again failed to submit an
opposition brief or amended complaint, and the Court deemed the City's motion fully submitted
by order dated January 6, 2014. Dkt. No. 21.

II.

Legal Standard
Although Plaintiff has not opposed the City's motion, that failure alone is not grounds for

dismissal; "the sufficiency of a complaint is a matter of law that the court is capable of
detennining based on its own reading of the pleading and knowledge of the law." McCall v.

Pataki, 232 F.3d 321, 322-23 (2d Cir. 2000). The Court must therefore evaluate Plaintiffs
complaint and determine whether it survives the City's motion. Because Plaintiff is proceeding
prose, his submissions "must be construed liberally and interpreted 'to raise the strongest
arguments that they suggest."' Triestman v. Fed. Bureau ofPrisons, 470 F.3d 471, 474 (2d Cir.
2006) (emphasis omitted) (quoting Pabon v. Wright, 459 F.3d 241, 248 (2d Cir. 2006)).
"To survive a motion to dismiss, 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 At!. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). While
well-pleaded factual allegations must be accepted as true, "a plaintiffs obligation to provide the
'grounds' of his 'entitle[ment] to relief requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555

3

(alteration in original) (quoting Fed. R. Civ. P. 8(a)(2)). Therefore, in assessing whether a
pleading states a plausible claim to relief, courts disregard legal conclusions and "[t]hreadbare
recitals of the elements of a cause of action, supported by mere conclusory statements." Iqbal,
556 U.S. at 678.

III.

Discussion
Construed broadly in Plaintiffs favor, the Complaint contains four claims. The first is an

unlawful search and seizure claim: Plaintiff alleges that Defendants entered his home, searched
it, and seized his property, all without a warrant. The second is a Miranda claim: Plaintiff
alleges that Defendants coerced him into making incriminating post-arrest statements without an
attorney present. The third claim alleges that Defendants tampered with crime-scene evidence
and coerced the two witnesses to testify against him. The final claim is an excessive force claim:
Plaintiff alleges that Defendants struck him in the head "without cause or justification."

A. Heck v. Humphrey
The Court agrees with the City that Plaintiffs third claim is barred by Heck v. Humphrey,
512 U.S. 477 (1994). Under Heck, a state prisoner may not bring a§ 1983 claim that will
"necessarily imply" the invalidity of his conviction unless his conviction has already been
invalidated. Id. at 487. Here, Plaintiff claims that the police coerced witnesses to testify against
him, fabricated evidence, and concealed evidence of their own misconduct. At core, these
allegations implicate the protections established in Brady v. Maryland, 373 U.S. 83 (1963). 2 See

Amaker v. Weiner, l 79 F.3d 48, 49, 51 (2d Cir. 1999) (claim that defendants "conspired to secure

2

To the extent that Plaintiff is alleging a malicious prosecution claim, not a Brady claim, he fails to state a claim
because an essential element of malicious prosecution is termination of the prosecution in the defendant's favor. See
Manganiello v. City ofNew York, 612 F.3d 149, 161 (2d Cir. 2010). Nor could Plaintiff state a false arrest claim, for
similar reasons. See Cameron v. Fogarty, 806 F.2d 380, 387 (2d Cir. 1986).

4

plaintiffs conviction ... by manufacturing inculpatory evidence and subsequently suppressing
evidence probative of their misconduct" sounded under Brady and was therefore barred); see

also Poventudv. City of New York,-F.3d-, 2014 WL 182313, at *9 (2d Cir. Jan. 16, 2014)
(en bane) (discussing Amaker). Because a Brady violation requires a new trial, Plaintiffs claim
necessarily implies that his conviction was invalid. See Poventud, 2014 WL 182313, at *8-9.
But Plaintiffs conviction has not already been invalidated; it is currently on appeal. His claim is
therefore barred by Heck.
The City argues that Plaintiffs search and seizure and Miranda claims are similarly
barred, but Heck's application to those claims is not as straightforward as the City suggests. In

Heck itself, the Supreme Court recognized that the introduction at trial of unlawfully seized
evidence would "not necessarily imply that the plaintiffs conviction was unlawful"-for
instance, if the evidence was properly admitted notwithstanding the constitutional violation, or if
the admission of the evidence was erroneous but harmless. 512 U.S. at 487 n.7. In other words,
because the admission of unlawfully seized evidence does not always require a conviction to be
set aside, a conclusion that evidence was unlawfully seized does not require the further
conclusion that the plaintiffs conviction was invalid. The same logic applies to statements
obtained in violation of Miranda, because the admission of such statements does not inevitably
invalidate a resulting conviction. See Arizona v. Fulminante, 499 U.S. 279, 310 (1991); Jackson

v. Suffolk Cnty. Homicide Bureau, 135 F.3d 254, 257 (2d Cir. 1998).
Determining whether Plaintiffs search and seizure and Miranda claims are barred by

Heck would therefore require a careful analysis of whether those claims, if proven, would
actually imply the invalidity of Plaintiffs conviction. The Court is not equipped to conduct such
an analysis in this procedural posture because the parties have provided no basis from which to

5

assess whether any seized evidence or self-incriminating statements were "essential" to the
prosecution's case. Fifield v. Barrancotta, 353 F. App'x 479, 481 (2d Cir. 2009); see also, e.g.,
Covington v. City ofNew York, 171 F.3d 117, 123 (2d Cir. 1999) ("[W]e are unable to determine
whether success on Covington's Section 1983 false arrest claim would necessarily imply the
invalidity of a possible conviction resulting from the criminal proceedings instituted against him
based on that arrest, as we have no information before us as to the nature of the evidence which
might have been available against him in those proceedings."), overruled on other grounds by
Wallace v. Kato, 549 U.S. 384 (2007). As a result, the Court cannot conclude that Heck bars
these claims.
The City advances no other arguments for dismissing Plaintiffs search and seizure claim,
which does not suffer from any readily apparent defects that might justify dismissal. Because
"[t]he evil of an unreasonable search or seizure is that it invades privacy, not that it uncovers
crime, which is no evil at all," the Second Circuit has held that a § 1983 plaintiff alleging an
unlawful search or seizure may not recover compensatory damages stemming from his arrest or
incarceration. Townes v. City ofNew York, 176 F.3d 138, 147---48 (2d Cir. 1999). Instead, such
plaintiffs are limited to damages "directly related to the invasion of their privacy-including
(where appropriate) damages for physical injury, property damage, injury to reputation, etc." Id.
at 148. In this case, Plaintiff does not specify any injury related to the alleged invasion of his
privacy; the thrust of his complaint is that he was "arrested and charged with several serious
crimes." Compl. il 12. But at this stage, the Court cannot conclusively hold that Plaintiff will be
unable to prove properly recoverable damages, so dismissal would be premature. See Gannon v.
City ofNew York, 917 F. Supp. 2d 241, 244 (S.D.N.Y. 2013); Hayes v. Perotta, 751 F. Supp. 2d
597, 604 (S.D.N.Y. 2010). Moreover, if Plaintiff fails to demonstrate compensable injury,

6

punitive or nominal damages may still be available for any Fourth Amendment violation that he
succeeds in proving. See Robinson v. Cattaraugus County, 147 F.3d 153, 162 (2d Cir. 1998)
("We have long recognized in§ 1983 cases that punitive damages may be awarded even in the
absence of a compensatory award."); Irish Lesbian & Gay Org. v. Giuliani, 143 F.3d 638, 651
(2d Cir. 1998) ("Although [plaintiff] did not specifically request nominal damages in its
pleadings, we have not precluded the award of nominal damages ... ifthe complaint explicitly
sought compensatory damages."). The Court therefore denies the City's motion to dismiss
Plaintiffs search and seizure claim.

B. Collateral Estoppel
By contrast, Plaintiffs Miranda claim fails for an independent reason: he is collaterally
estopped from raising it. Plaintiffs allegations-that the police ignored his request for counsel
and coerced him into signing a Miranda waiver-were the subject of a pre-trial evidentiary
hearing, pursuant to People v. Huntley, 15 N.Y.2d 72 (1965), in the New York trial court. Def.
Ex. E at 1. That court rejected Plaintiffs attempt to suppress his post-arrest statements because
it found that he had knowingly and voluntarily waived his rights. Id. at 3-7.
Federal courts, including in § 1983 cases, are obliged to give the same effect to statecourt criminal decisions "as would be given to those decisions by the law of the state in which
the judgment was rendered." Johnson v. Watkins, 101 F.3d 792, 794 (2d Cir. 1996); see 28
U.S.C. § 1738; Allen v. McCurry, 449 U.S. 90, 103-04 (1980). Under New York law, collateral
estoppel applies when (1) there is "an identity of issue which has necessarily been decided in the
prior action and is decisive of the present action," and (2) the party against whom estoppel is
raised had "a full and fair opportunity to contest the decision now said to be controlling."
Johnson, 101 F.3d at 795 (quoting Schwartz v. Public Adm 'r ofBronx Cnty., 24 N.Y.2d 65, 71

7

(1969)) (internal quotation marks omitted). As noted above, the issues raised in Plaintiffs
Miranda claim in this Court are identical to the ones decided by the New York trial court, and
there is nothing to suggest that Plaintiff did not have a "full and fair opportunity" to contest that
court's conclusions. Accordingly, his Miranda claim is barred by collateral estoppel. 3 See
Hayes v. County ofSullivan, 853 F. Supp. 2d 400, 426-27 (S.D.N.Y. 2012); Mitchell v. Hartnett,
262 F. Supp. 2d 153, 155 (S.D.N.Y. 2003).
C. Excessive Force
Finally, the City argues that Plaintiffs excessive force claim should be dismissed because
he fails to allege that he was injured when he was struck in the head. Claims of excessive force
in the context of arrests are analyzed under a Fourth Amendment reasonableness standard: "the
question is whether the officers' actions are 'objectively reasonable' in light of the facts and
circumstances confronting them." Graham v. Connor, 490 U.S. 386, 397 (1989). Although
there is some inconsistency among lower courts on the question of how seriously a plaintiff must
be injured in order to prevail on a Fourth Amendment excessive force claim, see Yang Feng
Zhao v. City ofNew York, 656 F. Supp. 2d 375, 390-91 (S.D.N.Y. 2009) (discussing this issue),
the Second Circuit has recognized that some minimum amount of force must be shown. See,
e.g., Robison v. Via, 821F.2d913, 923 (2d Cir. 1987) (reversing denial of summary judgment

where evidence did not "come[] close to describing force that was injurious, malicious, or
excessive"). This requirement is consistent with the fact that "[n]ot every push or shove ...

3

The pendency of Plaintiffs appeal does not affect this conclusion. See Robinson v. Allstate, 706 F. Supp. 2d 320,
324-25 (W.D.N.Y. 2010); Chi. Ins. Co. v. Fasciana, No. 04 Civ. 7934 (LAP), 2006 WL 3714310, at *4 (S.D.N.Y.
Dec. 13, 2006); Macfarlane v. Village ofScotia, 86 F. Supp. 2d 60, 64-65 (N.D.N.Y. 2000); Chariot Plastics, Inc. v.
United States, 28 F. Supp. 2d 874, 881(S.D.N.Y.1998).

8

violates the Fourth Amendment." Graham, 490 U.S. at 396 (quoting Johnson v. Glick, 481 F.2d
1028, 1033 (2d Cir. 1973) (Friendly, J.)) (internal quotation mark omitted).
The sum total of Plaintiffs allegations regarding Defendants' use of force is a statement
that Defendants "[ s]tr[uck] [him] in the head without cause or justification for the use of such
force." Compl. if 11. Stripped oflegal conclusions, see Iqbal, 556 U.S. at 679, this amounts to a
factual assertion that Plaintiff was struck in the head. Because Plaintiff has not set forth any
additional facts plausibly suggesting that this blow to his head was either more than de minimis
or objectively unreasonable under the circumstances, he has not sufficiently pled a Fourth
Amendment violation. See Betts v. Shearman, No. 12 Civ. 3195 (JPO), 2013 WL 311124, at
*10-11 (S.D.N.Y. Jan. 24, 2013); Guo Hua Kev. Morton, No. 10 Civ. 8671 (PGG), 2012 WL
4715211, at *11 (S.D.N.Y. Sept. 30, 2012). In light of this pleading failure, the Court need not
decide whether the City is correct that Plaintiffs failure to receive medical attention is sufficient
to show that any use of force was de minimis as a matter oflaw. But see Chambers v.

Pennycook, 641 F.3d 898, 906 (8th Cir. 2011) ("[I]t is logically possible to prove an excessive
use offorce that caused only a minor injury, and a rule that forecloses a constitutional claim in
that circumstance focuses on the wrong question."). Plaintiffs excessive force claim is
dismissed.

D. False IFP Application
In a footnote, the City argues that Plaintiffs complaint should be dismissed in its entirety
because he falsely claimed in forma pauperis status. Def. Br. at 2 n.2. The basis for this
argument is the fact that Plaintiff settled a previous lawsuit against the City in January 2013, but
did not disclose any income on the in forma pauperis application submitted along with his
complaint in this action. At this stage, it would be premature to dismiss Plaintiffs claims on this

9

ground. Although Plaintiffs settlement agreement indicates that he would receive $3,000 from
the City, see Stipulation of Settlement & Order of Dismissal if 2, McCord v. Rhoe, No. 11 Civ.
5850 (WHP) (S.D.N.Y. Jan. 9, 2013), ECF No. 32, Plaintiffs application in this action is dated
March 22, 2013-relatively shortly after that agreement was signed-and it is possible that the
settlement payment was not remitted to Plaintiff immediately. In the case that the City cites,
there was actual evidence that "over $4000 was deposited in Plaintiffs inmate account" but was
not reported on three subsequent in forma pauperis applications. Order at 1, Francis v. Scott,
No. 11 Civ. 4589 (LTS) (RLE) (S.D.N.Y. July 5, 2012), ECF No. 33. Given the absence of such
evidence here, the Court declines to dismiss Plaintiffs complaint at this stage.

IV.

Conclusion
For the foregoing reasons, the City's motion is granted in part and denied in part.

Plaintiffs claims are dismissed insofar as they center on (1) Defendants' alleged tampering with
evidence and coercion of witnesses, (2) Plaintiffs interrogation, and (3) Defendants' alleged use
of force. Plaintiffs Fourth Amendment search and seizure claim survives.
Three final notes. First, to the extent that Plaintiffs claims are dismissed, dismissal is
without prejudice. With respect to his evidence-tampering and witness-coercion (Brady) claim,

Heck permits only without-prejudice dismissal because the claim may be reinstated should
Plaintiffs conviction eventually be invalidated. See Amaker, 179 F.3d at 52. Similarly, the
collateral estoppel bar to Plaintiffs Miranda claim may dissolve if the Second Department
disagrees with the trial court's disposition of Plaintiffs motion to suppress his post-arrest
statements. This Court will "retain jurisdiction ... in order to act on any motion arising from a
reversal of the supreme court's judgment by the appellate division." Petrella v. Siegel, 843 F.2d
87, 90 (2d Cir. 1988); see also Chi. Ins. Co. v. Fasciana, No. 04 Civ. 7934 (LAP), 2006 WL

10

3714310, at *4 (S.D.N.Y. Dec. 13, 2006). And although Plaintiffs bare-bones excessive force
allegations currently fail to state a claim, he may be able to "contextualize his claim with facts
that bolster this particular allegation's plausibility." Betts, 2013 WL 311124, at *11. The Court
will therefore allow Plaintiff an opportunity to re-plead his excessive force claim.
Second, as noted above, it appears that the individual Defendants in this case, Angst and
Denezzo, have not been served. This action cannot proceed against those Defendants if they
have not been served. Notably, to the extent that Plaintiff's claims survive against the City
alone, and not the individual Defendants, they are subject to the standards for § 1983 municipal
liability set forth in Monell v. Department ofSocial Services, 436 U.S. 658 (1978).
Third, the Court notes that it may be appropriate to stay this action pending resolution of
Plaintiff's criminal appeal. If Plaintiff's appeal challenges the same conduct that forms the basis
of his search and seizure claim, the possibility that the Second Department will dispose of that
challenge counsels hesitation before proceeding further on that claim in this Court. The Second
Circuit has suggested that a stay may be appropriate under similar circumstances, "with a view to
avoiding wasteful duplication of judicial resources and having the benefit of the state court's
views." Giulini v. Blessing, 654 F.2d 189, 193 (2d Cir. 1981); see also Kirschner v. Klemons,
225 F.3d 227, 237-39 (2d Cir. 2000); Jackson, 135 F.3d at 257. However, this Court is currently
unable to ascertain whether the Second Department will, in fact, be addressing the same Fourth
Amendment issues that Plaintiff raises here; if not, there would seem to be no reason to stay the
litigation of his remaining claim.
In light of the foregoing, it is hereby ORDERED that Plaintiff must submit a letter to the
Court by July 7, 2014. His letter should indicate whether he wishes to file an amended
complaint or instead rest on his original complaint without re-pleading his excessive force claim.

11

If Plaintiff wishes to file an amended complaint, he should include a proposed amended

complaint with his letter. Plaintiff's letter should also indicate whether he wishes to maintain his
claims against Angst and Denezzo. The Court will consider extending his time to serve those
Defendants if he demonstrates good cause for his failure to serve them within 120 days of the
summons being issued. See Fed. R. Civ. P. 4(m). Plaintiff is cautioned that, in light of his prior
lack of communication regarding the City's motion to dismiss, failure to submit a letter by the
July 7 deadline may result in dismissal of his remaining claim for failure to prosecute. See, e.g.,
Robinson v. Sposato, No. 13 Civ. 3334 (JFB) (WDW), 2014 WL 1699001, at *2 (E.D.N.Y. Apr.
24, 2014) (dismissing prisoner's suit for failure to prosecute because "plaintiff has shown no
interest in continuing with this action").
It is further ORDERED that the City shall submit, by June 27, 2014, a letter regarding

whether a stay of this action would be appropriate in light of the above-cited cases and any other
relevant authority. Plaintiff may respond by letter on or before July 7.
This resolves Docket No. 15.
SO ORDERED.

Dated: June 6, 2014
New York, New York

United States District Judge

12