McGee v. Dunn et al

Filing 83

MEMORANDUM OPINION AND ORDER LIFTING THE STAY AND GRANTING DEFENDANT JAMES DUNN'S MOTION TO DISMISS: For the reasons stated above, the defendant James Dunn's motion to dismiss (ECF No. 35) is GRANTED. IT IS SO ORDERED. The Clerk is DIRECTED to transmit a copy of this memorandum opinion and order to counsel of record herein. Pursuant to Federal Rule of Civil Procedure 58, the Clerk is DIRECTED to enter judgment on this matter. The Clerk is further DIRECTED pursuant to Federal Rule of Civil Procedure 58, to enter judgment on this Court's previous decision and order granting certain defendants' motions to dismiss (ECF No. 50). (Signed by Judge Frederick P. Stamp, Jr on 4/29/2013) (mml)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-----------------------------------------JAMES P. McGEE,

09 Civ. 6098 (FPS)

Plaintiff,
v.

MEMORANDUM OPINION AND ORDER
LIFTING THE STAY AND
JAMES DUNN, J. DUNN CONSTRUCTION CORP., GRANTING DEFENDANT JAMES
ECTOR PEREZ GALINDO, TOWN OF CARMEL,
DUNN’S MOTION TO DISMISS
TOWN OF CARMEL POLICE DEPARTMENT,
TOWN OF CARMEL POLICE OFFICERS,
CHRISTOPHER FOX,
JOHN DOE (Fox’s supervisor
on the day of the arrest),
DET. ROBERT BAGNAROL,
LT. BRIAN KARST,
SGT. JOHN (JACK) HARNEY,
LT. MICHAEL CASSARI,
CHIEF MICHAEL R. JOHNSON,
PUTNAM COUNTY DISTRICT ATTORNEY’S OFFICE,
KEVIN WRIGHT, ESQ., then-Putnam County
District Attorney and
ROBERT A. NOAH, ESQ., Putnam County
Assistant District Attorney,
Defendants.
-----------------------------------------I.

Procedural History

This action arises out of a longstanding dispute between the
plaintiff, James P. McGee, and one of the fifteen named defendants,
James Dunn (“Dunn”). As noted in a previous order, the plaintiff’s
complaint, filed in the United States District Court for the
Southern District of New York, asserts claims against the following
defendants: Ector Perez Galindo (“Galindo”); the Putnam County
District

Attorney’s

Office,

Kevin

Wright,

and

Robert

Noah

(collectively the “PCDA defendants”); the Town of Carmel, the

Carmel

Police

Department,

and

the

Carmel

Police

Officers

Christopher Fox, John Doe, Detective Robert Bagnarol, Lieutenant
Brian Karst, Sergeant John Harney (“Harney”), Lieutenant Michael
Cazzari, and Chief Michael R. Johnson (collectively “the Town of
Carmel defendants”); and James Dunn and J. Dunn Construction Corp.
(“JDCC”) (collectively, the “Dunn defendants”).

The plaintiff

alleges in his complaint that the defendants conspired to bring
about his arrest and prosecution based on false and misleading
evidence and to engage in a malicious abuse of process.

The

plaintiff brings his complaint pursuant to 42 U.S.C. § 1983,
alleging due process violations that resulted from the defendants’
conspiracy.

According

to

the

plaintiff,

he

is

entitled

to

compensatory damages, punitive damages, and attorney’s fees for the
mental and emotional pain and suffering he has experienced as a
result of the defendants’ alleged conspiracy.
The defendants filed four separate motions to dismiss pursuant
to Rule 12(b)(6) of the Federal Rules of Civil Procedure.

After

the parties briefed these motions, this Court entered a memorandum
opinion and order, wherein it granted defendants’ motions to
dismiss as to all but one defendant, defendant Dunn.1

As to

defendant Dunn, this Court stayed the action due to his Chapter 7
bankruptcy petition, and directed that defendant Dunn inform this

1

After this Court granted those defendants’ motions to dismiss,
the plaintiff filed a motion for reargument, relief from judgment
or, in the alternative, to amend the complaint, which this Court
denied. See ECF No. 80.
2

Court if the automatic stay was lifted by the United States
Bankruptcy Court.

On April 16, 2013, defendant Dunn, through

counsel, notified this Court that the United States Bankruptcy
Court terminated the automatic stay with respect to defendant Dunn.
Accordingly, the stay placed on this action concerning defendant
Dunn is terminated and this Court will now proceed to make a
determination as to defendant Dunn’s motion to dismiss.
In support of defendant Dunn’s motion,2 he argues that this
action should be dismissed based on res judicata and collateral
estoppel because the plaintiff’s allegations in this case are
identical to the allegations that were raised and dismissed in the
state court action.

Further, defendant Dunn contends that the

plaintiff’s allegations against Dunn should be dismissed as legally
insufficient.

The plaintiff responded to the Dunn defendants’

motion to dismiss by arguing first that, because the state court
dismissal was not a decision on the merits, res judicata does not
apply.

Further, even if it does apply, the complaint states a

§ 1983 claim against defendant Dunn as it properly alleges that
Dunn acted under color of state law, and it adequately alleges all
of the elements of the claimed violations under § 1983.

2

Defendant

The Dunn defendants, James Dunn and J. Dunn Construction
Corp., filed a combined motion to dismiss. This Court granted the
motion to dismiss as to J. Dunn Construction Corp. in a previous
decision and order, and will therefore, only refer to the arguments
on behalf of James Dunn.
3

Dunn

did

not

file

a

reply

to

the

plaintiff’s

response

in

opposition.
For the reasons stated below, this Court finds that the motion
to dismiss as to defendant Dunn must be granted.
II.

Facts3

The plaintiff and his wife hired James Dunn to perform work on
their house pursuant to three home improvement contracts.

On or

about May 19, 2005, Dunn collected his tools and walked off the job
after a dispute arose between him and the plaintiff regarding the
placement of electrical wiring and other issues related to the
construction. Several days later, Dunn informed the plaintiff that
he would not return until the plaintiff paid him the remaining
balances on the three contracts in cash, plus $800.00 for the
additional work that he had allegedly performed.

On May 30, 2005,

Dunn increased his demand from $800.00 to $5,000.00. The plaintiff
was unable to persuade Dunn to return to complete the work.
On or about July 18, 2005, the McGees suffered extensive water
damage to their home during a storm.

After filing a claim with

their insurance carrier, Liberty Mutual, the senior insurance
inspector determined that the water damage was due to the faulty
installation of the roof by Dunn in May 2005.

Liberty Mutual paid

the McGees for the ceiling damage and then attempted to pursue a

3

For purposes of deciding this motion to dismiss as to
defendant Dunn, this Court states the facts as set forth in the
complaint.
4

subrogation action against Dunn for reimbursement.

Liberty Mutual

was unable to contact Dunn for approximately fourteen months.
The plaintiff then brought a small claims action against Dunn
in the Town of Carmel Justice Court regarding one of the three
contracts entered into between them.

Subsequently, Dunn filed a

counterclaim against McGee, and McGee then brought a second small
claims action in that court regarding the second contract.

McGee

also brought a consumer complaint before the Dutchess County
Department of Consumer Affairs (“DCDCA”) regarding one of the three
contracts that he had entered into with Dunn, but the DCDCA
determined that the matter was beyond its scope.
Because the amount of damages related to his two small claims
actions in the Town of Carmel Justice Court exceeded the subject
matter jurisdiction of that court, McGee withdrew his two small
claims actions in order to commence an action in the New York State
Supreme Court. However, the trial of Dunn’s counterclaim proceeded
in small claims court.

Prior to this trial, McGee’s lawyer, Mark

Starkman, withdrew from representing him, allegedly because Dunn
had induced Starkman to believe false accusations about McGee’s
honesty.

Dunn’s counterclaim was tried in the Town of Carmel

Justice Court, with McGee proceeding pro se.4

4

By decision and

“Pro se” describes a person who represents himself in a court
proceeding without the assistance of a lawyer.
Black’s Law
Dictionary 1341 (9th ed. 2009).
5

order dated November 29, 2005, Judge James Reitz found in McGee’s
favor and dismissed Dunn’s counterclaim in its entirety.
On December 20, 2006, McGee brought a civil action against
Dunn in the New York State Supreme Court relating to all three
contracts.

This action was ultimately concluded by way of a

settlement agreement pursuant to which Dunn agreed to a judgment
against his construction contracting firm, JDCC.
Over the course of the litigation described above, Dunn often
discussed his ongoing private dispute with the McGees at Fiddler’s
Bar, a local establishment frequented by members of the Carmel
Police Department and the Putnam County District Attorney’s Office.
According to the complaint, almost all of the defendants in this
case had some connection to Fiddler’s Bar, either as a patron,
employee, or contractor.

The complaint further states that Dunn,

with the aid of his attorney Philip Marin, Esq. (“Marin”), induced
Galindo to swear out the criminal complaint against McGee that
brought about the false arrest and malicious prosecution at issue
in this case.5
Beginning in August 2005, Dunn unsuccessfully attempted to
convince various agencies to initiate criminal investigations and
proceedings against McGee. Dunn made various claims against McGee,
including: that McGee had illegal structures on his property; that

5

Galindo worked as a cook at Fiddler’s Bar, and was also
allegedly employed by Dunn as a day laborer doing home improvement
work.
6

McGee had forged estimates from other contractors for completing
the

work

that

Dunn

had

abandoned;

that

McGee

had

committed

insurance fraud; and that McGee had asked Dunn to perform illegal
construction. When McGee’s attorney, Mark Starkman, withdrew from
representing him in December 2005, Dunn allegedly spread falsehoods
to various agencies regarding the McGees’ dishonesty.
and

December

2006,

Dunn

allegedly

attempted

to

In November

persuade

the

Dutchess County Supervisor’s Office, the Dutchess County Attorney’s
Office, and the Dutchess County District Attorney’s Office to bring
criminal charges against McGee for insurance fraud and forgery, but
to no avail.
In 2006, Liberty Mutual commenced an inter-insurance company
arbitration proceeding against Dunn and his insurance carrier,
Utica First.

The Inter-Insurance Company Arbitration Board ruled

in the McGees’ favor, finding Dunn liable for the water damage to
the McGees’ home.

As a result of this decision, Utica First

reimbursed Liberty Mutual for the insurance payment it had made to
the McGees.

Dunn filed a complaint about this decision with the

New York State Department of Insurance, accusing Liberty Mutual and
the McGees of insurance fraud, but the New York State Department of
Insurance rejected Dunn’s complaint.
On March 21, 2007, Dunn brought Galindo to the office of his
attorney, Marin, to sign a civil affidavit.

At this meeting, Dunn

and Marin allegedly told Galindo that a phone call made by McGee to

7

Galindo constituted the crime of witness tampering and that Galindo
should report this phone call to the police.

Dunn allegedly

suggested that Galindo go to the Carmel Police Station and swear
out a criminal complaint, and Galindo agreed to do so.

On March

27, 2007, Dunn escorted Galindo to the Carmel Police Station to
file the complaint against McGee.

Defendants Officer Fox and

Sergeant Harney were present when Galindo swore out the complaint.6
The complaint consisted of the following statement:
me around 11 p.m.
testifying.

“McGee calls

I think he try to scare me if I go to court to

Because he ask me if I was citizen or legal in USA.”

Compl. ¶ 37.
The March 27, 2007 complaint by Galindo formed the sole basis
for McGee’s arrest on the charge of witness tampering, despite the
fact that it failed to allege when the supposed tampering occurred
and whether there was an ongoing proceeding in which Galindo was to
be called as a witness.

Moreover, the complaint was supposedly

accepted by the police without any of the required personal
information of the complainant. On the same day that Galindo filed
the complaint, Officer Fox left messages on McGee’s business
answering machine directing him to come down to the police station
for processing, or else a warrant would be issued for his arrest.
On March 29, 2007, McGee’s attorney, Darren Fairlie, Esq.
(“Fairlie”), called Officer Fox and Assistant District Attorney

6

An interpreter was not present.
8

Noah (“Noah”) in order to provide some background of the dispute
between Dunn and McGee and explain the connection between Galindo
and Dunn.

Fairlie requested that Assistant District Attorney Noah

investigate the matter before arresting McGee.

Noah, however,

insisted that McGee present himself for arrest the following day,
as the police had instructed him to do.

Thus, on March 30, 2007,

McGee voluntarily reported to the police station with his counsel,
Fairlie. Upon entering the station, the police allegedly separated
McGee and Fairlie and placed McGee in a cell. When McGee requested
that Officer Fox notify Fairlie that he had been arrested and
placed in a cell, Officer Fox supposedly threatened to make McGee
sit in the cell all day, take him before a judge, and make him
raise bail before releasing him.

Officer Fox then allegedly

attempted to coerce McGee into signing a waiver of his Miranda
rights, including his right to counsel.
waiver.

McGee did not sign the

Officer Fox then attempted to question McGee without his

attorney present, all while Fairlie was seated down the hall.
Following the arrest, Fairlie wrote to Chief Michael Johnson
and Kevin Wright, Esq., among others, complaining of the arrest.
Immediately thereafter, acting at the direction of Noah, Wright
and/or Johnson, Officer Fox allegedly attempted to rectify the
defects in the original accusatory instrument by filling in the
details himself.

However, the arrest report still failed to

provide specifics regarding the alleged “ongoing civil case.”

9

On or about April 4, 2007, Detective Bagnarol allegedly called
Galindo and requested that he return to the precinct to complete a
second

“voluntary

statement.”

This

second

statement

was

accomplished by a question and answer session between Bagnarol and
Galindo, with no interpreter present.

Defendant Harney, a friend

of Dunn’s, signed the second voluntary statement as a witness.
In response to Fairlie’s March 30, 2007 letter, Lieutenant
Karst called Fairlie and attempted to persuade him that he had
conducted

an

in-house

investigation

regarding

the

arrest

and

processing of McGee and had concluded that nothing was improper.
Lieutenant Karst would not provide a copy of the investigation
report to Fairlie.

According to the plaintiff, the Carmel Police

Department attempted to cover up the manner in which Galindo -- at
Dunn’s direction -- swore out the criminal complaint and has
attempted to conceal evidence regarding the manner in which McGee
was arrested.
Assistant District Attorney Noah continued the prosecution of
McGee for ten months.

Noah allegedly never interviewed Galindo,

never verified Galindo’s allegations that McGee called him in
November 2006, and never confirmed if there were court proceedings
ongoing between Dunn and the McGees when the phone call to Galindo
was allegedly made. Noah did, however, have multiple conversations
and meetings with Dunn in order to obtain information to use in the
prosecution of McGee.

10

McGee hired an attorney to defend him against the criminal
charge of witness tampering.

On January 14, 2008, Judge Joseph J.

Spofford, Jr. issued a decision and order dismissing the accusatory
instrument as insufficient and finding “no credible evidence that
at the time of the alleged phone conversation that there was any
pending action or proceeding.”

McGee contends that the defendants

conspired, acted in concert, and aided and abetted each other,
under color of state law, to do whatever was necessary to cause his
false

arrest,

process.

malicious

prosecution,

and

malicious

abuse

of

Compl. ¶ 85.
III.

Applicable Law

In assessing a motion to dismiss for failure to state a claim
under Rule 12(b)(6), a court must accept all well-pled facts
contained

in

the

complaint

as

true.

Kiobel

v.

Petroleum Co., 621 F.3d 111, 123 (2d Cir. 2010).

Royal

Dutch

However, to

survive a motion to dismiss, the complaint must offer more than
“labels and conclusions or a formulaic recitation of the elements
of a cause of action” and must tender more than “naked assertions
devoid of further factual enhancement.” Arar v. Ashcroft, 585 F.3d
559, 594 (2d Cir. 2009) (citing Ashcroft v. Iqbal, 129 S. Ct. 1937,
1949 (2009)) (internal citations omitted).
It has often been said that the purpose of a motion under Rule
12(b)(6) is to test the formal sufficiency of the statement of the
claim for relief; it is not a procedure for resolving a contest

11

about the facts or the merits of the case.

5B Charles Alan Wright

& Arthur R. Miller, Federal Practice and Procedure § 1356 (3d ed.
1998).

The Rule 12(b)(6) motion also must be distinguished from a

motion for summary judgment under Federal Rule of Civil Procedure
56, which goes to the merits of the claim and is designed to test
whether there is a genuine issue of material fact.

Id.

For

purposes of the motion to dismiss, the complaint is construed in
the

light

essentially

most
the

favorable
court’s

to

the

inquiry

party
is

making

directed

the
to

claim

and

whether

the

allegations constitute a statement of a claim under Federal Rule of
Civil Procedure 8(a).

Id. § 1357.

A complaint should be dismissed if it does not allege “enough
facts to state a claim to relief that is plausible on its face.”
Hollander v. Copacabana Nightclub, 624 F.3d 30, 32 (2d Cir. 2010)
(quoting Iqbal, 129 S. Ct. at 1949).

“A claim is plausible ‘when

the plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the
misconduct alleged.’” Matson v. Bd. of Educ. of City Sch. Dist. of
N.Y., 631 F.3d 57, 63 (quoting Iqbal, 129 S. Ct. at 1949).
Detailed factual allegations are not required, but the facts
alleged must be sufficient “to raise a right to relief above the
speculative level.”

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555

(2007).

12

IV.
A.

Discussion

Res Judicata
Defendant Dunn first argues that he believes this Court should

grant his motion to dismiss based on the principles of res judicata
and collateral estoppel, because a New York state court dismissed
a

similar

action

by

the

plaintiff

against

defendant

Dunn.

Defendant Dunn asserts that under New York law, the transactional
approach is used when applying the principles of res judicata.
Therefore, he states that the plaintiff cannot circumvent the
application of res judicata by renaming his cause of action against
the

defendant,

because

all

claims

arising

out

of

the

same

transaction or series of transactions are barred once a claim is
brought to a final conclusion.

Defendant Dunn then cites portions

of the plaintiff’s state court complaint and portions from the
complaint in this action that he believes prove that the current
claims arise out of the same transaction or series of transactions
as the plaintiff’s state court claims.
The plaintiff responds in opposition to defendant Dunn’s res
judicata argument by stating that, while the transactional approach
does apply under New York law, the dismissal in this case was not
on the merits.

Therefore, the plaintiff argues that because the

dismissal was not on the merits, it has no preclusive effect.

The

plaintiff also indicates that unlike the state court complaint, the
complaint in this action alleges more than a malicious prosecution

13

claim and moreover, it also corrects any possible defects of the
state court complaint.
“[A] federal court must give to a state-court judgment, the
same preclusive effect as would be given that judgment under the
law of the State in which the judgment was rendered.”

Migra v.

Warren City School Dist. Bd. of Educ., 465 U.S. 75, 81 (1984).
This applies “regardless of whether the action alleged state or
federal claims, and includ[es] actions brought pursuant to 42
U.S.C. § 1983.”

Legal Aid Society v. City of New York, No. 96 CIV.

5141, 1997 WL 394609, at *2 (S.D.N.Y. July 11, 1997).

Therefore,

this Court must apply New York principles of res judicata.

New

York courts use a transactional approach when determining whether
to give past judgments preclusive effect over newly filed actions.
Romano v. Astoria Federal Sav. & Loan Ass’n, 490 N.Y.S.2d 244, 245
(N.Y. App. Div. 1985); Antonious v. Muhammad, 873 F. Supp. 817, 821
(S.D.N.Y. 1995) (citations omitted).

Under this approach, “once a

claim is brought to a final conclusion, all other claims arising
out of the same transaction or series of transactions are barred,
even if based upon different theories or if seeking a different
remedy.”

O’Brien v. City of Syracuse, 429 N.E.2d 1158, 1159 (N.Y.

1981); see Antonious, 873 F. Supp at 821 (quoting O’Brien, 429
N.E.2d at 1159).
Under New York law, the dismissal or final conclusion
original action must have been on the merits.

14

of the

Antonious, 873 F.3d

at 822.

It is the burden of the party who is asserting res

judicata to prove that the judgment was on the merits.

Watts v.

Swiss Bank Corp., 27 N.Y.2d 270, 275 (N.Y. 1970). When a dismissal
is the result of a motion “attacking the sufficiency of the
complaint as stating a cause of action[,]” such dismissal only has
preclusive effect “as to a new complaint for the same cause of
action which fails to correct the defect or supply the omission
determined to exist in the earlier complaint.”

175 E. 174th Corp.

v. Hartford Acc. & Indem. Co., 416 N.E.2d 584, 590 n.1 (N.Y. 1980).
This Court finds that defendant Dunn, the party asserting that
res judicata applies, has not met his burden of proving that the
state court dismissal was on the merits.

Defendant Dunn merely

states in his response that the judgment was “on the merits.”
ECF No. 35 *3.

See

The defendant does not indicate on what bases the

case was dismissed or even what motion resulted in the dismissal of
the action.

It appears that defendant Dunn intended to attach a

copy of this judgment, but this Court has not received any such
exhibit.

Id.

Even if such exhibit was attached to his motion,

however, this Court is still left with no argument from defendant
Dunn as to why he believes the dismissal was on the merits.

The

plaintiff specifically argued in his response to defendant Dunn’s
motion to dismiss that the dismissal was not on the merits and
provided quotations from the dismissal order and case law in
support of his argument, yet defendant Dunn did not file a reply to

15

oppose these assertions.
failure

to

meet

his

Therefore, based on defendant Dunn’s

burden

of

proving

that

the

state

court

dismissal was on the merits, this Court cannot grant defendant
Dunn’s motion to dismiss on res judicata grounds.
B.

Legal Sufficiency
Defendant Dunn’s second argument in support of his motion to

dismiss is that the plaintiff’s allegations against him are legally
insufficient, and therefore the complaint should be dismissed in
its entirety.

Specifically, defendant Dunn argues that because he

did not bring any criminal proceeding against the plaintiff, the
plaintiff’s malicious prosecution claim must fail.

Defendant Dunn

also states that the record is devoid of any evidence to support
plaintiff’s
explanation.

conspiracy

theory,

without

providing

any

further

Defendant Dunn does not address plaintiff’s abuse of

process allegation.
The plaintiff, in opposition to defendant Dunn’s arguments,
asserts that first, defendant Dunn acted under color of state law,
as is required if he is to be found liable under § 1983.
plaintiff

states

that

the

complaint

adequately

alleges

The
that

defendant Dunn acted under color of state law, as it alleges that
defendant Dunn acted in “cahoots” with his friends at the Town of
Carmel Police Department.

See ECF No. 36 *11.

Second, the

plaintiff argues that the complaint adequately alleges all of the
elements of the claimed violations under § 1983.

16

1.

Section 1983 Malicious Prosecution and Abuse of Process

Claims
Two essential elements are required to maintain a § 1983
action: “(1) the conduct complained of must have been committed by
a person acting under color of state law; and (2) the conduct
complained of must have deprived a person of rights, privileges, or
immunities secured by the Constitution or laws of the United
States.”

Pitchell v. Callan, 13 F.3d 545, 547 (2d Cir. 1994)

(citations omitted).

According to the United States Court of

Appeals for the Second Circuit, “[a] private person -- not a
government official -- acts under color of state law for purposes
of § 1983 when ‘he has acted together with or has obtained
significant aid from state officials’ or because his conduct is
otherwise chargeable to the state.”

Barrett v. Harwood, 189 F.3d

297, 304 (2d Cir. 1999) (quoting Lugar v. Edmondson Oil Co., 457
U.S. 922, 937 (1982)).

The Second Circuit has held that a private

party’s conduct constitutes state action when:
[T]here is such a close nexus between the State and the
challenged action that seemingly private behavior may be
fairly treated as that of the State itself. That nexus
may exist where a private actor has operated as a wilful
participant in joint activity with the State or its
agents, or acts together with state officials or with
significant state aid.
Abdullahi v. Pfizer, Inc., 562 F.3d 163, 188 (2d Cir. 2009)
(internal quotations omitted); see also Ginsberg v. Healey Car &
Truck Leasing, Inc., 189 F.3d 268, 272 (2d Cir. 1999) (stating that

17

for a private person to be a state actor, there must be evidence of
a plan, prearrangement, conspiracy, custom, or policy).
complaints

containing

only

conclusory,

vague,

or

“However,
general

allegations that the defendants have engaged in a conspiracy to
deprive the plaintiff of his constitutional rights are properly
dismissed.”

Richardson v. New York City Health and Hospitals

Corp., No. 05-CV-6278, 2009 WL 804096, at *17 (S.D. N.Y. Mar. 25,
2009) (internal quotations omitted).
Although

defendant

Dunn

did

not

make

specific

arguments

concerning whether or not he was acting under color of state law in
his motion to dismiss, the plaintiff did make such arguments.
Therefore, this Court will address whether or not, based on the
complaint, defendant Dunn may be considered to have acted under
color of state law for § 1983 purposes.

In support of the

plaintiff’s position, he states that the complaint alleges personal
connections between defendant Dunn and the PCDA defendants and Town
of Carmel defendants and the complaint also alleges that defendant
Dunn entered into a conspiracy with these state actor defendants.
This allegation, however, is merely a conclusory allegation, which
does not provide enough facts for this Court to find that the
required close nexus between defendant Dunn and the state actors
existed. See Fisk v. Letterman, 401 F. Supp. 2d 362, 377 (S.D.N.Y.
2005) (“Alleging merely that a private party regularly interacts

18

with a state actor does not create an inference of agreement to
violate a plaintiff’s rights.”).
While
contained

the
in

plaintiff
the

does

complaint

assert

show

a

that

other

connection

allegations
between

the

defendants, only one of these allegations concerns any interaction
between defendant Dunn and a state actor.

This is the allegation

that defendant Dunn spoke with and provided information concerning
the plaintiff to defendant Noah, an Assistant District Attorney, in
connection with defendant Noah’s prosecution of the plaintiff.
Compl. ¶ 72-73.

However, this allegation alone is not sufficient

for this Court to find that a plausible claim under § 1983 for
malicious prosecution or abuse of process exists against defendant
Dunn, as it does not allege the required close nexus between
defendant Dunn and a state actor.7
2.

Section 1983 Conspiracy Claim

To state a claim for conspiracy under § 1983, the complaint
“must allege (1) an agreement between a state actor and a private
party; (2) to act in concert to inflict an unconstitutional injury;
and (3) an overt act done in furtherance of that goal causing

7

This Court notes that, even if it did find that defendant Dunn
acted under color of state law, this Court would nonetheless
dismiss plaintiff’s claim for malicious prosecution against
defendant Dunn for the reasons set forth in its opinion and order
granting the other defendants’ motions to dismiss. In that opinion
and order, this Court found that because the prosecution against
the plaintiff was not dismissed on the merits, the plaintiff could
not maintain an action for malicious prosecution against the
defendants. ECF No. 50 *20.
19

damages.”

Ciambriello v. County of Nassau, 292 F.3d 307, 324-35

(2d Cir. 2002) (citing Pangburn v. Culbertson, 200 F.3d 65, 72 (2d
Cir. 1999).

The analysis of this issue is similar to determining

whether the complaint alleged sufficient facts for this Court to
find that defendant Dunn acted under the color of state law.

See

id. at 324 (finding the analysis of a § 1983 conspiracy claim
similar to analysis of whether a party acted under color of state
law).

As such, “complaints 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; diffuse and expansive allegations are
insufficient,
misconduct.”

unless

amplified

by

specific

instances

of

Dwares v. City of N.Y., 985 F.2d 94, 100 (2d Cir.

1993).
This

Court

again

finds

allegations are insufficient.

that

the

plaintiff’s

factual

Specifically, the plaintiff has not

alleged sufficient factual allegations to support an inference that
defendant

Dunn

agreed

with

a

state

actor

unconstitutional injury upon the plaintiff.

to

inflict

an

The mere fact that

defendant Dunn discussed his private dispute with the plaintiff at
Fiddler’s Bar does not prove conspiracy.

Even assuming, as the

plaintiff suggests, that defendant Noah spoke directly to Dunn on
several occasions, and that Noah solicited information from Dunn,

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these allegations do not add up to an agreement to inflict an
unconstitutional injury upon the plaintiff.
V.

Conclusion

For the reasons stated above, the defendant James Dunn’s
motion to dismiss (ECF No. 35) is GRANTED.
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to counsel of record herein. Pursuant to Federal
Rule of Civil Procedure 58, the Clerk is DIRECTED to enter judgment
on this matter.

The Clerk is further DIRECTED pursuant to Federal

Rule of Civil Procedure 58, to enter judgment on this Court’s
previous decision and order granting certain defendants’ motions to
dismiss (ECF No. 50).
DATED:

April 29, 2013

/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE

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