Jean-Laurent v. Cornelius et al
Filing
65
MEMORANDUM OPINION AND ORDER: re: 39 MOTION to Dismiss . filed by Christian Jara, Corporation Counsel of City of New York, Alicea, Jerry Zender, Brendan McArdle, Chainese, 42 MOTION to Dismiss . filed by Dennis V oid, Sharon Henry, Tesera Tucker. The Court has considered all of the arguments raised by the parties. To the extent not specifically addressed, the arguments are either moot or without merit. For the foregoing reasons, the defendants' moti ons to dismiss are granted and the Complaint is dismissed. The federal claims are dismissed with prejudice and the state claims are dismissed without prejudice to their being asserted in state court. The Clerk is direct to close all pending motions and to close the case. (As further set forth in this Order.) (Signed by Judge John G. Koeltl on 3/8/2017) (cf)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
────────────────────────────────────
PHILLIP JEAN-LAURENT,
15-cv-2217 (JGK)
Plaintiff,
MEMORANDUM OPINION AND
ORDER
- against LATECHAR CORNELIUS, et al.,
Defendants.
────────────────────────────────────
JOHN G. KOELTL, District Judge:
Pro se plaintiff Phillip Jean-Laurent filed a complaint
dated March 15, 2015, alleging various causes of action under 42
U.S.C. § 1983 arising out of a March 29, 2013 arrest and a
subsequent conviction for harassment. Jean-Laurent alleges that
Latechar Cornelius, Shanice Cornelius, and John Kinard
(“Cornelius Defendants”); Police Officer Jerry Zender, Police
Officer Luis Alicea, Sergeant Christian Jara, Detective Lawrence
Chainese, Assistant District Attorney Brendan McArdle, Police
Officer John Doe #1, and Detective Jane Doe #1 (“City
Defendants”); and Senior Parole Officer Tesera Tucker, Parole
Officer Sharon Henry, and Parole Officer Dennis Void (“State
Defendants”) (collectively, “defendants”) conspired to deprive
Jean-Laurent of his constitutional rights by falsely arresting
and imprisoning him and maliciously prosecuting him. The
1
plaintiff also alleges that the defendants committed a variety
of state law torts against him.
On March 11, 2016, the City and State Defendants moved to
dismiss the Complaint. ECF Nos. 39, 42. The plaintiff eventually
filed an opposition to the motions on September 19, 2016, long
after the extended deadline set by the Court.
Although the City Defendants argue that the motion to
dismiss should be granted based on the untimeliness of the
response, in light of the plaintiff’s pro se status and the lack
of any articulable prejudice caused by the delay, the Court will
consider the plaintiff’s opposition and the City and State
Defendants’ replies.
I.
In deciding a motion to dismiss pursuant to Rule 12(b)(6),
the allegations in the complaint are accepted as true, and all
reasonable inferences must be drawn in the plaintiff's favor.
McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir.
2007). 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.” Bell Atl. Corp. v. Twombly, 550
2
U.S. 544, 570 (2007). “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.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). While the Court should construe the factual allegations
in the light most favorable to the plaintiff, “the tenet that a
court must accept as true all of the allegations contained in
the complaint is inapplicable to legal conclusions.” Id.; see
also Villar v. Ramos, No. 13-cv-8422 (JGK), 2015 WL 3473413, at
*1 (S.D.N.Y. June 2, 2015).
When faced with a pro se complaint, the Court must
“construe [the] complaint liberally and interpret it to raise
the strongest arguments that it suggests.” Chavis v. Chappius,
618 F.3d 162, 170 (2d Cir. 2010) (internal quotation marks
omitted). “Even in a pro se case, however, . . . threadbare
recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Id. (internal quotation
marks omitted). Thus, although the Court is “obligated to draw
the most favorable inferences” that the complaint supports, it
“cannot invent factual allegations that [the plaintiff] has not
pled.” Id.; see also Villar, 2015 WL 3473413, at *1. 1
1
The City defendants also moved to dismiss pursuant to Federal
Rules of Civil Procedure 12(b)(2), 12(b)(4), and 12(b)(5),
arguing that the plaintiff failed to serve the defendants
properly. However, any defective service could be cured. Because
3
II.
For the purposes of the motions to dismiss, the Court
accepts as true the factual allegations in the Complaint.
In December 2012, the plaintiff began to date Latechar
Cornelius. Compl. ¶ 23. On April 1, 2013, the police responded
to a dispute between Jean-Laurent and Cornelius over living
arrangements and money. Id. ¶¶ 26-28. The responding police
officers, Police Officer (“P.O.”) Zender and P.O. Alicea, took a
statement from Cornelius in which she stated that Jean-Laurent
had bitten her on the face. Id. ¶¶ 29-31. The officers then
separately interviewed John Kinard, Cornelius’ son, who claimed
to have witnessed the plaintiff bite Cornelius. Id. ¶¶ 32-35.
Shortly thereafter, Sergeant Jara and another officer, P.O. John
Doe #1, arrived on the scene and the plaintiff was arrested for
assaulting Cornelius (“Arrest 1” or “the first arrest”). Id.
¶¶ 34-35. The plaintiff was detained pending his arraignment.
Id. ¶ 36. Immediately following his arraignment, Jean-Laurent
was again arrested on a separate criminal contempt charge by
Detectives Chainese and Jane Doe #1 (“Arrest 2” or “the second
arrest”). Id. ¶ 36. Once released from custody, Jean-Laurent
the plaintiff’s claims must be dismissed pursuant to Rule
12(b)(6), it is unnecessary to decide whether service on any
defendant was improper.
4
unsuccessfully attempted to contact his parole officer, Officer
Void, to report his arrest and incarceration. Id. ¶ 38.
On April 8, 2013, Jean-Laurent appeared for a scheduled
parole reporting date and was promptly arrested for parole
violations stemming from the April 1 incident and for failure to
report his arrests to his parole officer (“Arrest 3” or “the
third arrest”). Id. ¶ 42. Jean-Laurent alleges that, during this
time period, Assistant District Attorney (“A.D.A”) McArdle
shared information about the plaintiff’s court dates from the
April 1 incident with Senior Parole Officer Tucker and Parole
Officer Henry. Id. ¶ 40.
Jean-Laurent was tried in Bronx County Criminal Court
beginning on August 13, 2013. 2 The Complaint alleges that A.D.A
McArdle, who tried the case, allowed Latechar Cornelius, Shanice
Cornelius, and John Kinard to give false testimony. Id. ¶ 44.
Jean-Laurent was found not guilty of all of the charges except
that he was found guilty of Harassment in the Second Degree, a
violation, and received a fifteen day sentence. Id. ¶ 45.
Following the conviction, Jean-Laurent remained imprisoned until
2
Jean-Laurent was charged with Assault in the Third Degree (N.Y
Penal Law § 120.00), Menacing in the Third Degree (N.Y. Penal
Law § 120.15), Criminal Obstruction of Breathing or Blood
Circulation (N.Y. Penal Law § 121.11), Criminal Mischief in the
Fourth Degree (N.Y. Penal Law § 145.00), and Harassment in the
Second Degree (N.Y. Penal Law § 240.26). Lichterman Decl. in
Supp. of the City Defendants’ Mot., Ex. C.
5
an October 30, 2013 hearing on his parole violations. 3 Id. ¶ 46.
The parole authority found two violations and revoked JeanLaurent’s parole. Fu Decl. in Supp. of Mot., Ex. A. However, in
light of his history of compliance, parole was then immediately
restored. Id.
The Complaint includes claims for false arrest, (Counts One
and Two); assault (Counts Three and Four); malicious prosecution
(Counts Five and Six); false imprisonment (Counts Seven and
Eight); fabrication of evidence (Counts Nine and Ten);
conspiracy to violate Jean-Laurent’s constitutional rights
(Counts Eleven and Twelve); abuse of process (Counts Thirteen
and Fourteen); and conspiracy to falsely arrest and imprison,
and to maliciously prosecute Jean-Laurent (Counts Twenty-One and
Twenty-Two), all in violation of the federal and New York state
constitutions. See Compl. ¶¶ 48-61, 67-68. The federal claims
allege violation of the plaintiff’s rights under the United
States Constitution which are actionable under 42 U.S.C. § 1983
if the violations are committed under color of state law. The
Complaint also includes state law claims for conversion (Counts
Fifteen and Sixteen); injurious falsehood (Counts Seventeen and
Eighteen); and intentional infliction of emotional distress
3
The Complaint alleges that the hearing occurred on October 29,
2013, but the record of the parole revocation hearing indicates
that it occurred on October 30, 2013. Fu Decl. in Supp. of the
State Defendants’ Mot., Ex. A.
6
(Counts Nineteen and Twenty). See id. ¶¶ 62-66. Although
summonses were issued for the Cornelius Defendants, the record
does not reflect that service was effected or that the Cornelius
Defendants have appeared.
III.
The City and State Defendants now move to dismiss all
claims against them. The City Defendants argue, among other
reasons, that the Complaint must be dismissed because several of
the federal claims are barred by Heck v. Humphrey, 512 U.S. 477
(1994); because there was probable cause for the plaintiff’s
arrest and prosecution; and because the claims are otherwise
inadequately pleaded. The State Defendants argue that the claims
against them must be dismissed because there was probable cause
for the plaintiff’s arrest and parole revocation; because the
State Defendants are entitled to immunity; and because the
Complaint otherwise fails to state a claim upon which relief can
be granted.
A.
Counts One and Two allege that the defendants violated
Jean-Laurent’s constitutional rights by falsely arresting him. 4
4
The Complaint purports to assert a variety of claims under the
New York State Constitution. See Compl. ¶¶ 48-61 (Counts One
through Fourteen). The Court also construes Counts Twenty-One
and Twenty-Two as allegations that the defendants conspired to
violate Jean-Laurent’s constitutional rights, including his
state constitutional rights. See id. ¶¶ 67-68. Because the Court
7
An allegation of false arrest under 42 U.S.C. § 1983 “is
substantially the same as a claim for false arrest under New
York law.” Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996); see
also Bullard v. City of New York, 240 F. Supp. 2d 292, 297
(S.D.N.Y. 2003). “Under New York state law, to prevail on a
claim of false arrest a plaintiff must show that (1) the
defendant intended to confine him, (2) the plaintiff was
conscious of the confinement, (3) the plaintiff did not consent
to the confinement and (4) the confinement was not otherwise
privileged.” Jocks v. Tavernier, 316 F.3d 128, 134-35 (2d Cir.
2003) (quotation marks omitted). Because an arrest made with
probable cause is privileged, “probable cause ‘is a complete
defense to an action for false arrest.’” Bullard, 240 F. Supp.
2d at 297 (quoting Bernard v. United States, 25 F.3d 98, 102 (2d
Cir. 1994)); see also Jocks, 316 F.3d at 135.
“Probable cause is established when the arresting officer
has knowledge or reasonably trustworthy information sufficient
to warrant a person of reasonable caution in the belief that an
offense has been committed by the person to be arrested.” Singer
v. Fulton Cty. Sheriff, 63 F.3d 110, 119 (2d Cir. 1995)
(quotation marks omitted); see also Jenkins v. City of New York,
declines to exercise supplemental jurisdiction over the state
law claims, the Court does not decide any of the claims based on
the New York State Constitution. See 28 U.S.C. § 1367(c)(3).
8
Nos. 98-cv-7170 (JGK), 98-cv-7338 (JGK), 1999 WL 782509, at *8
(S.D.N.Y. Sept. 30, 1999). “An arresting officer advised of a
crime by a person who claims to be the victim, and who has
signed a complaint or information charging someone with the
crime, has probable cause to effect an arrest absent
circumstances that raise doubts as to the victim’s veracity.”
Singer, 63 F.3d at 119. “Information about criminal activity
provided by a single complainant can establish probable cause
when the information is sufficiently reliable and corroborated.”
Oliveira v. Mayer, 23 F.3d 642, 647 (2d Cir. 1994). Information
from a credible eyewitness can likewise be sufficient to
establish probable cause. See Miloslavsky v. AES Eng'g Soc.,
Inc., 808 F. Supp. 351, 355 (S.D.N.Y. 1992), aff’d, 993 F.2d
1534 (2d Cir. 1993) (table); see also Bullard, 240 F. Supp. 2d
at 298.
Moreover, a conviction for the offense which precipitated
the arrest is definitive evidence of probable cause. Cameron v.
Fogarty, 806 F.2d 380, 387 (2d Cir. 1986); see also Weyant, 101
F.3d at 852 (conviction following arrest is normally conclusive
evidence of probable cause provided that the conviction survives
appeal). Finally, a warrant may issue for parole violations upon
mere reasonable cause, not probable cause. N.Y. Comp. Codes R. &
Regs. tit. 9 § 8004.2(c) (2016); see also Alvarado v. City of
New York, 482 F. Supp. 2d 332, 337 (S.D.N.Y. 2007).
9
Based on the allegations in the Complaint, the City and
State Defendants had probable cause for each of the three
arrests, requiring dismissal of Jean-Laurent’s claims for false
arrest (Counts One and Two).
Although the plaintiff was acquitted on the assault charge,
the first arrest resulted in a conviction for harassment,
establishing conclusive evidence of probable cause. See Cameron,
806 F.2d at 380; see also Weyant, 101 F.3d at 852. Probable
cause was further established by the credible report of the
victim, Latechar Cornelius, that Jean-Laurent had assaulted her,
see Singer, 63 F.3d at 119, as well as by Kinard’s corroborative
statement to police, Bullard, 240 F. Supp. 2d at 298. Because
probable cause establishes that the first arrest was privileged,
the Complaint fails to state a claim as to that arrest. 5
The plaintiff’s false arrest claim in connection with the
third arrest also fails. 6 Parole regulations require a parolee to
notify his parole officer immediately following any contact with
or arrest by law enforcement. 9 N.Y.C.R.R. § 8003.2(f). Before
5
For the same reason, the claims for abuse of process must be
dismissed. See Compl. ¶¶ 60-61 (Counts Thirteen and Fourteen).
See Jones v. J.C. Penny’s Dep’t Stores Inc., 317 Fed. App’x 71,
74 (2d Cir. 2009) (summary order) (failure to establish lack of
probable cause required dismissal of the plaintiff’s federal
abuse of process claims).
6
Jean-Laurent does not challenge the second arrest. See Compl.
¶¶ 36-37.
10
his arrest for parole violations, Jean-Laurent’s parole officers
were informed of his arrests and appearance in court, but had
not received a notification of this incident from the plaintiff
himself. Jean-Laurent admits to trying unsuccessfully to notify
his parole officer of his arrest. Compl. ¶ 38. Thus, there was
reasonable cause for the third arrest. See Alvarado, 482 F.
Supp. 2d at 337. Furthermore, the charges of parole violation
were sustained and Jean-Laurent’s parole was revoked, precluding
his claim for false arrest. Fu Decl. in Supp. of Mot., Ex. A;
see Fogarty, 806 F.2d at 387 (plaintiff in a false arrest case
must show “that the proceedings previously commenced against him
11
terminated in his favor”). 7 Thus, the false arrest claims
regarding the third arrest must be dismissed. 8
The Complaint also alleges false imprisonment claims
against both the City and State Defendants arising out of the
same conduct as the false arrest claims. False arrest is “a
7
Moreover, the City and State defendants would be entitled to
qualified immunity for the claims alleging false arrest. Such
immunity attaches to “protect[] government officials from
liability for civil damages insofar as their conduct does not
violate clearly established statutory or constitutional rights
of which a reasonable person would have known.” Pearson v.
Callahan, 555 U.S. 223, 231 (2009) (quotation marks omitted).
The City and State Defendants are entitled to qualified immunity
because there is no “clearly established” law that would put a
reasonable officer on notice that his “conduct was unlawful in
the circumstances of the case.” Id. at 232. In particular,
reasonable police officers faced with a complainant alleging
that her former partner bit her would not have been put on
notice that relying on such allegations in making an arrest
would be unlawful. See Martinez v. Simonetti, 202 F.3d 625, 634
(2d Cir. 2000) (granting qualified immunity to officers in part
on the basis that “police officers, when making a probable cause
determination, are entitled to rely on the victims’ allegations
that a crime has been committed”). Similarly, there is no
clearly established law that would put reasonable parole
officers on notice that charging the plaintiff with violations
of parole would be unlawful under the circumstances. See
Alvarado v. City of New York, 482 F. Supp. 2d 332, 337-38
(S.D.N.Y. 2007) (parole officers entitled to immunity for arrest
of parolee following parolee’s indictment on a criminal charge).
8
Because the assault allegations are based on the allegations
that the arrests themselves were unlawful, and not on
allegations of excessive force, the presence of probable cause
also requires dismissal of the claims for assault (Counts Three
and Four). Kramer v. City of New York, 04-cv-106 (HB), 2004 WL
2429811, at *11 (S.D.N.Y. Nov. 1, 2004) (“As Plaintiff does not
allege that the officers used excessive force during the arrest,
her claim of assault and battery should be dismissed.”).
12
species of false imprisonment” and the analysis for false arrest
is the same as that of false imprisonment. Singer, 63 F.3d at
118; see also Jenkins v. City of New York, 478 F.3d 76, 88 n.10
(2d Cir. 2007). Thus, for all the reasons set out above, the
false arrest and false imprisonment counts (Counts One, Two,
Seven, and Eight), abuse of process counts (Counts Thirteen and
Fourteen), and the assault counts (Counts Three and Four) must
be dismissed. 9
9
In his Complaint, the plaintiff alleges, without explanation,
that he remained imprisoned “beyond and in excess of the maximum
term of a court imposed post-release supervision.” Compl. ¶ 46.
In his memorandum in opposition to the motions to dismiss, the
plaintiff alleges that he was originally sentenced to a three
year term of supervised release that expired on October 27,
2013, but that the parole revocation hearing occurred thereafter
and he was subsequently released. Plaintiff’s Mem. in Opp. to
Mots. p. 14. The State Defendants submitted a court order dated
November 22, 2013 which recited that the plaintiff had
originally been sentenced to a determinate prison term of seven
years plus a three-year term of post-release supervision, but
the court clerk subsequently issued a commitment order
reflecting a five-year term of post-release supervision. Fu
Decl. in Further Supp. of Mot., Ex. A. The parties agreed that
the five-year term of post-release supervision was of no legal
effect. Id. The court ordered the Department of Corrections and
Community Supervision to recalculate the defendant’s sentence to
reflect the three-year term of post-release supervision. Id.
There are no allegations regarding the actual date of the
plaintiff’s release. Personal involvement of a defendant is a
requirement for personal liability under § 1983. See Grullon v.
City of New Haven, 720 F.3d 133, 138 (2d Cir. 2013) (“[I]n order
to establish a defendant’s individual liability in a suit
brought under § 1983, a plaintiff must show, inter alia, the
defendant’s personal involvement in the alleged constitutional
deprivation.”). There are no allegations in the Complaint that
any of the individual defendants were personally involved in
preparing or filing the incorrect records reflecting a five-year
term of post-release supervision for the plaintiff. Nor are
13
B.
Counts Five and Six allege that the defendants commenced
the criminal and parole revocation proceedings against the
plaintiff without reasonable or probable cause, constituting
malicious prosecution. To prove malicious prosecution, a
plaintiff must demonstrate “(1) the initiation or continuation
of a criminal proceeding against plaintiff; (2) termination of
the proceeding in plaintiff's favor; (3) lack of probable cause
for commencing the proceeding; and (4) actual malice as a
motivation for defendant's actions.” Jocks, 316 F.3d at 136
(quoting Murphy v. Lynn, 118 F.3d 938, 947 (2d Cir. 1997)).
Just as with false arrest, probable cause is “a complete
bar to a claim of malicious prosecution.” Bullard, 240 F. Supp.
2d at 297; see also Manganiello v. City of New York, 612 F.3d
149, 161-62 (2d Cir. 2010). For the reasons set out above,
probable cause existed as to Jean-Laurent’s arrest, thereby
there any allegations that any of the defendants were personally
involved in the decision regarding the plaintiff’s release.
Therefore, the plaintiff’s allegation that he was held for some
period of time beyond the expiration of his three-year term of
post-release supervision is not a basis for liability against
the defendants in this case. See, e.g., Scott v. Fischer, 616
F.3d 100, 110 (2d Cir. 2010) (affirming dismissal of § 1983
claim against employees of the Department of Corrections because
the plaintiff failed to allege that the employees participated
in the plaintiff’s allegedly defective parole revocation
hearing).
14
creating a presumption of probable cause for his prosecution on
the same grounds.
Moreover, the malicious prosecution claims must be
dismissed because the proceedings did not terminate in the
plaintiff’s favor. Murphy, 118 F.3d at 947. A prosecution is
deemed to have terminated favorably for the accused if the case
ended in an acquittal or “when its final disposition is such as
to indicate the innocence of the accused.” Id. at 948; see also
Russell v. Smith, 68 F.3d 33, 36 (2d Cir. 1995) (“In the absence
of a decision on the merits, the plaintiff must show that the
final disposition is indicative of innocence.”). Besides
acquittal on the merits or a failure to prosecute, few results
are sufficiently indicative of innocence to qualify as a
favorable termination for the plaintiff. See Murphy, 118 F.3d at
948-49 (citing various outcomes, including dismissals for
insufficient pleading or lack of subject matter jurisdiction, as
insufficiently indicative of innocence to qualify as favorable
terminations). Jean-Laurent was convicted on a charge that was
based on conduct that lead to his first arrest and had his
parole revoked following the third arrest, neither of which
qualifies as a favorable outcome. 10 Although he was acquitted of
the more serious criminal charges, in this case the conviction
10
The plaintiff’s direct appeal of his conviction for harassment
is currently pending.
15
“on a lesser offense is still inconsistent with the requirement
of a favorable termination.” Sanders v. Williams, No. 14-cv-7219
(PAC), 2015 WL 7963135, at *5 (S.D.N.Y. Nov. 10, 2015). 11 See
also Poventud v. City of New York, 750 F.3d 121, 132 (2d Cir.
2014) (en banc). 12 The claims for malicious prosecution must
therefore be dismissed.
11
The City Defendants also argue that the malicious prosecution
claim should be dismissed because it represents a collateral
attack on the plaintiff’s conviction in violation of Heck v.
Humphrey, 512 U.S. 477 (1994). But the plaintiff “did not have
the practical ability to pursue habeas relief” from his fifteen
day sentence. Sanders, 2015 WL 7963135, at *5 n.2.; see
Teichmann v. New York, 769 F.3d 821, 828 (2d Cir. 2014)
(Livingston, J., concurring) (“We have recognized an exception
to Heck’s favorable termination requirement when habeas was
never reasonably available to the plaintiff through no lack of
diligence on his part -- that is, where an action under § 1983
was a diligent plaintiff’s only opportunity to challenge his
conviction in a federal forum.”). The Court therefore does not
rely on Heck.
12
Although acquittal on the more serious of several counts may
sometimes constitute “favorable termination” for the purposes of
malicious prosecution, such instances are limited to ones where
“the charges arose out of distinct facts and should be analyzed
separately.” Posr v. Doherty, 944 F.2d 91, 100 (2d Cir. 1991)
(citing Janetka v. Dabe, 892 F.2d 187 (2d Cir. 1989)). In those
cases, the possibility arises “of a prosecutor securing an
indictment for an easily provable minor offense,” such as
resisting arrest, “and adding to it more serious charges with
the hope that proof of probable cause on the lesser charge would
insulate the prosecutor from liability for malicious prosecution
on the unproved serious ones.” DiBlasio v. City of New York, 102
F.3d 654, 658 (2d Cir. 1996). This is not such a case; the
criminal charges arose out of the same transaction and could not
be analyzed separately for the purposes of a malicious
prosecution claim.
16
C.
The claims for fabrication of evidence, Counts Nine and
Ten, must also be dismissed. A person’s constitutional rights
are violated if “an (1) investigating official (2) fabricates
evidence (3) that is likely to influence a [fact-finder’s]
decision, (4) forwards that information to prosecutors, and (5)
the plaintiff suffers a deprivation of liberty as a result.”
Jovanovic v. City of New York, 486 Fed. App’x 149, 152 (2d Cir.
2012) (summary order) (citing Ricciuti v. N.Y.C. Transit Auth.,
124 F.3d 123, 129-30 (2d Cir. 1997)). The Complaint includes
only conclusory allegations that the defendants “instigated,
encouraged, aided, conspired, caused and/or fabricated
allegations against [the] plaintiff.” Compl. ¶¶ 56, 57. The
Complaint does not set forth any facts regarding which
particular allegations were fabricated, nor does it offer
anything other than “mere conclusory statements” regarding the
defendants’ alleged wrongdoing. See Amory v. Katz, No. 15-cv1535 (VAB), 2016 WL 7377091, at *9 (D. Conn. Dec. 19, 2016)
(dismissing claim for fabrication of evidence against officers
because the complaint contained only “conclusory statements that
the officers’ descriptions of events were ‘false’” and did “not
actually include any specific claims of fabrication”).
In sum, all of the federal constitutional claims must be
dismissed because there was probable cause to arrest the
17
plaintiff on criminal charges, and reasonable cause to arrest
the plaintiff for a parole violation, as evidenced by his
criminal conviction and parole revocation, and because the
allegations otherwise fail to state a claim. 13 Because the
complaint fails to state a constitutional claim, any claim for
conspiracy to deprive the plaintiff of his constitutional rights
necessarily fails. D’Angelo-Fenton v. Town of Carmel, 470 F.
Supp. 2d 387, 397 (S.D.N.Y. 2007) (noting that “a § 1983
conspiracy claim necessitates proving an actual deprivation of a
constitutional right”) (quotation marks omitted). Moreover, the
“allegations as to conspiracy are [] vague and unsupported by
description of particular overt acts,” and are therefore
insufficient to withstand the motions to dismiss. Sommer v.
Dixon, 709 F.2d 173, 175 (2d Cir. 1983) (per curiam). Counts
Eleven, Twelve, Twenty-One, and Twenty-Two must therefore be
dismissed.
13
The claims against the City Defendants must also be dismissed
on the basis of immunity. The police officer defendants had
qualified immunity protecting them from liability for the
alleged claims of false arrest, malicious prosecution, false
imprisonment, and fabrication of evidence because, based on the
allegations in the Complaint, reasonable officials could, at the
very least, disagree as to whether there was probable cause to
arrest and prosecute the plaintiff given the written statement
and allegations of Latechar Cornelius and corroboration by John
Kinard. See, e.g., Simonetti, 202 F.3d at 634.
18
D.
The claims against A.D.A McArdle must be dismissed for the
additional reason that he has absolute immunity for the actions
alleged in the Complaint. The Complaint seeks to hold McArdle
liable for presenting the testimony of Latechar Cornelius,
Shanice Cornelius, and John Kinard at the plaintiff’s criminal
trial. Compl. ¶ 44. It also alleges that McArdle provided
information about the dates of a court-issued access order.
Id.
¶40. “[T]he duties of the prosecutor in his role as advocate for
the State involve actions preliminary to the initiation of a
prosecution and actions apart from the courtroom,” which, along
with actions taken “in preparing for the initiation of judicial
proceedings or for trial,” are entitled to absolute immunity.
Buckley v. Fitzsimmons, 509 U.S. 259, 272-73 (1993) (quotation
marks omitted). Absolute prosecutorial immunity is limited to
“activities that are ‘intimately associated with the judicial
phase of the criminal process.’” Day v. Morgenthau, 909 F.2d 75,
77 (2d Cir. 1990) (quoting Imbler v. Pachtman, 424 U.S. 409, 430
(1976)). Because Jean-Laurent’s allegations against A.D.A
McArdle relate only to his actions in preparation for and during
the plaintiff’s trial, those activities are entitled to absolute
19
immunity and the claims must be dismissed. See Buckley, 509 U.S.
at 272-73; Day, 909 F.2d at 77. 14
The State Defendants, meanwhile, are entitled to absolute
immunity from the plaintiff’s federal claims because parole
officers “receive absolute immunity for their actions in
initiating parole revocation proceedings and in presenting the
case for revocation to hearing officers, because such acts are
prosecutorial in nature.” Victory v. Pataki, 814 F.3d 47, 66 (2d
Cir. 2016) (quoting Scotto v. Almenas, 143 F.3d 105, 111-13 (2d
Cir. 1998)). 15
E.
The remainder of the claims in the Complaint against the
City and State Defendants, namely, Counts Fifteen through
Twenty, allege solely state law claims such as conversion,
injurious falsehood, and intentional infliction of emotional
distress. See Compl. ¶¶ 62-66. The Court declines to exercise
supplemental jurisdiction over those claims. See Valencia ex
rel. Franco v. Lee, 316 F.3d 299, 305 (2d Cir. 2003) (noting
14
The plaintiff has also failed to allege what constitutional
right A.D.A McArdle violated by allegedly providing the dates of
a court-issued access order.
15
The State Defendants also argue that the state constitutional
claims must be dismissed because New York law precludes claims
for damages against employees of the Department of Corrections.
As discussed above, the Court declines supplemental jurisdiction
over the state law claims and thus need not address this
argument. See 28 U.S.C. § 1367(c)(3).
20
that the district court may, in its discretion, decline to
exercise supplemental jurisdiction over state law claims where
“the district court has dismissed all claims over which it has
original jurisdiction”) (quoting 28 U.S.C. § 1367(c)(3)).
IV.
Although the Cornelius Defendants did not file a motion to
dismiss, the federal claims against them must nevertheless be
dismissed for failure to state a claim. To the extent that the
plaintiff is attempting to sue the Cornelius Defendants for
violation of the plaintiff’s rights under the United States
Constitution, the proper cause of action is a claim for a
violation of 42 U.S.C. § 1983. But § 1983 only applies to
denials of rights “under color of state law,” and generally does
not apply to acts by private individuals. See Kia P. v.
McIntyre, 235 F.3d 749, 755-56 (2d Cir. 2000) (noting that
relief under § 1983 is only available when the “actions alleged
by the plaintiff[] come[s] within the definition of ‘under color
of’ [state] law.” (quotation marks omitted). 16 Construing the
complaint liberally, the plaintiff may be attempting to allege a
conspiracy claim under 42 U.S.C. § 1985, which applies to
private citizens. See 42 U.S.C. § 1985. “To state a cause of
16
Although there can be a claim for conspiracy under § 1983, as
discussed above, the plaintiff has failed to alleged such a
conspiracy with sufficient particularity.
21
action under § 1985(3), a plaintiff must allege (1) a conspiracy
(2) for the purpose of depriving a person or class of persons of
the equal protection of the laws, or the equal privileges and
immunities under the laws; (3) an overt act in furtherance of
the conspiracy; and (4) an injury to the plaintiff's person or
property, or a deprivation of a right or privilege of a citizen
of the United States.” Traggis v. St. Barbara's Greek Orthodox
Church, 851 F.2d 584, 586-87 (2d Cir. 1988). However, because
§ 1985 itself “provides no substantive rights,” a § 1985 claim
must be dismissed if the related § 1983 claim fails. Id. at 587.
Moreover, the Complaint contains no allegations of a class-based
designation and makes no more than conclusory general
allegations of a conspiracy, which are insufficient to survive a
motion to dismiss. See Schoon v. Berlin, No. 07-cv-2900 (JGK),
2011 WL 1085274, at *3 (S.D.N.Y. Mar. 23, 2011).
The Court declines to exercise supplemental jurisdiction
over the remaining state law claims against the Cornelius
Defendants. See 28 U.S.C. § 1367(c)(3); Valencia, 316 F.3d at
305.
CONCLUSION
The Court has considered all of the arguments raised by the
parties. To the extent not specifically addressed, the arguments
are either moot or without merit. For the foregoing reasons, the
defendants’ motions to dismiss are granted and the Complaint is
22
dismissed. The federal claims are dismissed with prejudice and
the state claims are dismissed without prejudice to their being
asserted in state court. The Clerk is direct to close all
pending motions and to close the case.
SO ORDERED.
Dated:
New York, New York
March 8, 2017
______/s/_____________________
John G. Koeltl
United States District Judge
23
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