Pilao Ong v. Park Manor (Middletown Park) Rehabiliation and Healthcare Center et al
Filing
144
OPINION AND ORDER: In light of the foregoing the Court holds: (1) that all claims against Defendants New York State, Yvette, Tiffany, and Guzman are dismissed without prejudice for failure to serve; (2) that all claims against Defendants Conklin, L abuda, and Lacatena are dismissed with prejudice and without leave to amend for failure to comply with Rule 8's short-and-plain-statement requirement; (3) that all claims against Defendants Kammarada, McLymore, Belgiovene, Moskowitz, and Leo are dismissed without prejudice and with leave to amend for failure to comply with Rule 8's short-and-plain-statement requirement; (4) that the Rule 8 Motions filed by Wallkill Defendants, MPRHCC Defendants, and Sholes & Miller are denied with respect to any other Defendant; (5) that the Court's denial of the Rule 8 Motions is without prejudice to Defendants to file another Rule 12(b)(6) motion to dismiss for failure to stat a claim; (6) that all claims against Defendant Mannix are dismissed with prejudice and without leave to amend for failure to state a claim; (7) that all claims against Defendants Orange County, Murphy, and Crain are dismissed without prejudice and with leave to amend for failure to state a claim; and In deciding whether to file an amended complaint with respect to Defendants Kammarada, McLymore, Belgiovene, Moskowitz, Leo, Murphy, Crain, and Orange County, Plaintiff should be aware that this likely will be his final opportunity to submit an amended complaint. Moreover, if Plaintiff does not comply with the Court's instruction that he allege a Defendants' personal involvement, the Court will dismiss his claims against that Defendant without leave to amend. Finally, in the interest of clarity, the Court directs Plaintiff to submit an amended complaint that contains claims and allegations only against these Defendants. If Plaintiff wishes to attach new exhibits to the Third Amended Complaint, he may do so, b ut those exhibits must be relevant to his allegations against the specific Defendants named in the Third Amended Complaint. Plaintiff has 30 days from the date of this Order to submit the Third Amended Complaint. The Clerk of the Court is respectfully directed to terminate the pending motions. (Dkt. Nos. 39, 105, 108, 112, 119.) SO ORDERED. (Signed by Judge Kenneth M. Karas on 9/29/2014) (lnl)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
BIENVENIDO PILAO ONG,
Plaintiffs,
-v-
Case No. 12-CV-974 (KMK)
OPINION AND ORDER
PARK MANOR (MIDDLETOWN PARK)
REHABILITATION AND HEALTHCARE
CENTER et al.,
Defendants.
Appearances:
Bienvenido Pilao Ong
Middletown, NY
Pro Se Plaintiff
Katherine J. Zellinger, Esq.
Law Offices of Alan I. Lamer
Elmsford, NY
Counsel for Defendants Park Manor (Middletown Park) Rehabilitation and Healthcare Center,
Darla Conklin, Eileen Masterson, Jennifer Small, Wendy Brewster, Jenna Green, Suzanne
Forman, and Lisa M. Reyes
Victor Carmine Piacentile, Esq.
Kopff, Nardelli & Dopf, LLP
New York, NY
Counsel for Defendant Park Manor (Middletown Park) Rehabilitation and Healthcare Center
James A. Randazzo, Esq.
Caitlin Grace Scheir, Esq.
Gaines, Gruner, Ponzini & Novick, LLP
White Plains, NY
Counsel for Defendants Town of Wallkill Police Department, Police Officer Jason Farmingham,
Robert Hertman, Sergeant Mr. R. Procak, TOW-P.O. Jefferey Gulick, TOW-P.O. Adam Solan,
Deputy Chief Anthony Spano, Sgt. Robert McLymore, Sgt. Robert Kammarada, and P.O. A.
Dewey
Carol C. Pierce, Esq.
Orange County Attorney
Goshen, NY
Counsel for Defendants County of Orange, Tim Murphy, Candice H. Crain, Dina M. Lacatena
Michael Francis Albanese, Esq.
State of New York, Attorney General’s Office
New York, NY
Counsel for Defendant Timothy Mannix
Kenneth Andrew McLellan, Esq.
Keith Robert Roussel, Esq.
Winget Spadafora & Schwartzberg, LLP
New York, NY
Counsel for Defendant Sholes & Miller, LLP
KENNETH M. KARAS, District Judge:
Plaintiff Bienvenido Pilao Ong brings this Action against multiple defendants, alleging
various claims under federal and state law arising out of five incidents that took place in 2010
and 2011. Before the Court are five motions to dismiss filed by certain groups of Defendants.
For the following reasons, the Court grants those motions in part and denies them in part.
I. BACKGROUND
A. Factual Background
The following facts are taken from Plaintiff’s Second Amended Complaint and the
exhibits attached thereto. (See Second Am. Compl. (Dkt. No. 32).)1 Plaintiff is an AsianAmerican naturalized U.S. citizen over the age of 65 who, at all relevant times, was a resident of
This document consists of a total of 322 pages, the first 32 of which contain Plaintiff’s
Complaint (set out in six sections of 120 individually numbered paragraphs), and the remaining
290 of which contain a number of indexed exhibits. When referring to the Complaint, the Court
will use the relevant paragraph number or page number, where appropriate. When referring to
an exhibit, the Court will use the index number Plaintiff assigned to that exhibit. The Court
notes that, in addition to labelling each exhibit with an index number, Plaintiff included tables of
contents explaining the nature and intended use of each indexed exhibit. Those tables can be
found at pages 33–35, 82–85, 140–46, 224–25, and 241–44 of the combined, 322-page
document.
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2
Middletown, NY. (See id. ¶¶ 28, 78.) Defendants include four entities and a number of
individuals employed by those entities, which Plaintiff classifies into five categories: (1)
Middletown Park Rehabilitation and Health Care Center (formerly known as “Park Manor”)
(“MPRHCC”), a long-term-care facility primarily serving elderly individuals; Vincent
Maniscalco (“Maniscalco”), an administrator; Darla Conklin (“Conklin”), an assistant
administrator; Eileen Masterson (“Masterson”), a director of nursing; Suzzane Forman
(“Forman”), a director of social services; Jenna Green (“Green”), a case manager; Jennifer Small
(“Small”), a nursing manager; Wendy Brewster (“Brewster”), another nursing manager; Lisa
Reyes (“Reyes”), a physical therapist; “Ms. Dawn” (“Dawn”), a duty nurse; “Ms. Tiffany”
(“Tiffany”), a nursing aid; and “Ms. Yvette” (“Yvette”), another nursing aid, (collectively,
“MPRHCC Defendants”); (2) Town of Wallkill Police Department (“Wallkill”); Chief of Police
Robert Hertman (“Hertman”); Deputy Chief Antonio Spano (“Spano”); Sergeant Robert
Kammarada (“Kammarada”); Sergeant Robert McLymore (“McLymore”); Sergeant Richard
Procak (“Procak”); Officer Jason Farmingham (“Framingham”); Officer “A. Dewey”
(“Dewey”); Officer Thomas Kleveno (“Kleveno”); Officer “S. Belgiovene” (“Belgiovene”);
Officer Jeffrey Gulick (“Gulick”); Officer Adam Solan (“Solan”); Sergeant “A. Moskowitz”
(“Moskowitz”); and Angelina Guzman (“Guzman”), a police dispatcher (collectively, “Wallkill
Defendants”); (3) “New York State Police—Troop F” (“New York State”) and Timothy Mannix
(“Mannix”), a New York State police officer; (4) County of Orange (“Orange County”); Tim
Murphy (“Murphy”), the head supervisor of Orange County’s Adult Protective Services
department (“APS”); and APS case workers Candice Crain (“Crain”), Kate Labuda (“Labuda”),
Dina Lacatena (“Lacatena”), and Andrea Leo (“Leo”) (collectively, “Orange County
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Defendants”); and (5) Sholes & Miller, LLP (“Sholes & Miller”), a New York law firm. (See id.
at 1–3.)
The Complaint divides its allegations and exhibits into five sections corresponding to the
five days on which the events giving rise to Plaintiff’s Complaint allegedly occurred. The
Court’s summary follows Plaintiff’s chronological organization.
1. March 30, 2010
On March 30, 2010, Plaintiff got into an argument with his daughter, who was a minor.
(Id. ¶¶ 63, 109.) The police were called, and Defendant Farmingham, along with other unnamed
police officers, arrived at Plaintiff’s home. (Id. ¶ 109.) Plaintiff attempted to explain the
situation, but “Farmingham did not listen to [his] explanation,” and instead “just hand cuff[ed]”
Plaintiff and “dragg[ed] [him] down stair[s] going to . . . [a] driveway.” (Id.) Farmingham then
“unlawfully arrested” Plaintiff, using “substantial force . . . without provocation” while doing so
(Id.)
Farmingham “never created or made [an] arrest/incident[] report,” (id. ¶ 51.1), but
Plaintiff was nevertheless charged with one count of second-degree menacing, N.Y. Penal Law
§ 120.14, and one count of endangering the welfare of a child, N.Y. Penal Law § 260.10, both
Class A misdemeanors under New York law, (see id. ¶ 56; see also id. Ex. 1.2 (Securing Order,
dated Mar. 30, 2010)). Bail was set at $1,000 cash or $2,000 bond, but Plaintiff was remanded
and remained in jail until he was released on April 4, 2010. (See id. ¶ 59; see also id. Ex. 1.2.)
Plaintiff was ultimately convicted of one count of endangering the welfare of a child, as charged,
and one count of disorderly conduct, N.Y. Penal Law § 240.20 (the latter of which is a
“violation,” as opposed to a Class A misdemeanor) on May 6, 2010. (See id. Ex. 1.4 (Seal
Order, dated Mar. 21, 2013, indicating that Plaintiff’s case was adjudicated on May 6, 2010, and
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that it “was terminated with a conviction for a noncriminal offense”); see also id. (Certificate of
Disposition, dated Jan. 15, 2013, indicating same).)
While Plaintiff was in jail, authorities took two actions related to Plaintiff’s charges.
First, on March 30, the day of Plaintiff’s arrest, a town court justice issued a temporary Order of
Protection against Plaintiff, prohibiting him from certain types of contact with his daughter and
two other individuals. (See id. ¶ 60; see also id. Ex. 1.1 (Order of Protection, dated Mar. 30,
2010).) That order expired on April 15, 2010. (See id. ¶ 63; see also id. Ex. 1.1.) Nevertheless,
perhaps due in part to the Order, Plaintiff stayed in a hotel from April 4, 2010 (the day he was
released) until May 20, 2010, and thereby incurred $3,306.94 in charges. (See id. ¶ 59; see also
id. Ex. 1.6 (Microtel Folio).) Second, on March 31, the day after Plaintiff’s arrest, while he was
still in jail, Wallkill police officers—one of whom was Defendant Dewey—went to Plaintiff’s
home and seized a firearm and a pistol permit, the former of which police later secured in an
armory, and the latter of which they forwarded to the Orange County Pistol Permit Office. (See
id. ¶¶ 39, 56, 59, 110; see also id. Exs. 1.5-1, 1.5-2 (Firearms Surrender Report, dated Mar. 31,
2010).) It is unclear whether police returned these items to Plaintiff when he was released, but
on April 7, three days later, a county court judge issued an Order of Suspension, ordering that
Plaintiff’s pistol permit be suspended, that Plaintiff “immediately surrender all weapons and
license [sic] to the Orange County Sheriff’s Department,” and that, if Plaintiff did not comply,
the Orange County Sheriff’s Department would be “directed to send a representative to take
custody of said weapons.” (Id. Ex. 1.5A (Order of Suspension, dated Apr. 7, 2010); see also id.
¶ 63.2.)
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2. August 20, 2010
On August 20, 2010, Plaintiff lived with his mother in an apartment in Middletown. (Id.
¶ 111.) That afternoon, Defendant Guzman, a 911 operator, received a call from Plaintiff’s
neighbor, who reported that “Plaintiff’s mother was yelling that she was being sexually assaulted
and/or otherwise physically abused by Plaintiff.” (Id.) Guzman then dispatched Defendants
Farmingham and Kleveno to Plaintiff’s apartment. (Id.) After they arrived at the apartment and
knocked on the door, Plaintiff answered and asked them why they were there. (Id.; see also id.
¶ 75.) Initially, Farmingham asked Plaintiff if Plaintiff knew him; Plaintiff responded that he
remembered Farmingham as the officer who arrested him on March 30, 2010. (Id. ¶¶ 75, 111.)
Farmingham then told Plaintiff that he was there to arrest Plaintiff again, and when Plaintiff
asked him why, Farmingham responded that the police had received a call from Plaintiff’s
neighbor reporting that Plaintiff’s mother was “‘yelling for help’” and that “it sounded as though
someone [was] being raped.” (Id. ¶¶ 64, 111; see also id. ¶ 75 (alleging that Farmingham told
Plaintiff that he was “going to arrest [him] again because somebody heard . . . [his] mom yelling
[that] she was getting or being rape[d] and [that] [someone] [was] biting [his] mother”).) When
Plaintiff asked about the neighbor’s identity, the officers refused to tell him. (Id. ¶¶ 75, 111.) 2
Farmingham and Kleveno then “immediately” entered the apartment and “closed the
door,” at which point Farmingham “push[ed] [Plaintiff] near [a] door,” told him to “put [his]
hand[s] up,” and then told him to “start strip[ping] from head to foot.” (Id. ¶ 111.) The officers,
aware that Plaintiff previously possessed a handgun and a pistol license, were specifically
looking for a “weapon or gun.” (Id.) Farmingham then “put hand cuffs on [Plaintiff] [and] then
This is perhaps why Plaintiff multiple times refers to the neighbor’s communication
with the police as an “anonymous call.” (See Second Am. Compl. ¶¶ 64, 67, 75, 111.)
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start[ed] biting Plaintiff”; Kleveno saw this occur, but did not try to intervene. (Id.; see also id.
¶¶ 64, 71.)
At some point while in Plaintiff’s apartment, Farmingham stated that he detected a “‘very
strong odor of something rotting.’” (Id. ¶ 65.) He then “went to [Plaintiff’s] refrigerator,”
“open[ed]” it, commented that it “‘smell[ed] [of] rotten food,’” and asked Plaintiff whether he
was “‘feeding [his] mother’” rotten food. (Id. ¶ 67.) Plaintiff responded that the officers should
“not [be] searching and opening [his] refrigerator” because they were there for the “‘purpose’” of
responding to the “‘anonymous call,’” and that they were “‘violating [his] privacy and at the
same time harassing’” and “‘intimidating’” him. (Id.) In a similar incident, while Plaintiff was
in handcuffs, he asked Farmingham to “close[] [his] laptop” before the officers brought him to
the police station, but Farmingham refused. (Id. ¶ 73.) Plaintiff alleges that he was later told by
a friend who went to Plaintiff’s apartment after Plaintiff was taken to jail that Farmingham
searched Plaintiff’s laptop and made a comment to Plaintiff’s friend about Plaintiff’s finances
based on information he obtained in the search. (Id. ¶¶ 73, 111.)
While the officers were at the scene, an ambulance arrived, as well as Defendant Crain,
who appeared on behalf of APS. (See id. ¶ 77.1; see also id. Ex. 2.0 (Incident Report, dated
Aug. 20, 2010, indicating that Crain and a non-party nurse were at the scene); id. Ex. 2.1 (Arrest
Report, dated Aug. 20, 2010, indicating same).) All of those parties entered Plaintiff’s mother’s
bedroom and, after examining her at the scene, decided to send her to Orange Regional Medical
Center for a full evaluation. (See id. Ex. 2.0.) Although the examining doctor found “[n]o
information regarding sexual or psychiatric abuse” and that there were “no fracture[s]” or “signs
of infection,” he did determine that Plaintiff’s mother suffered from “[d]ementia,” “severe
dehydration,” and “[p]hysical abuse” in the form of “ecchymosis on the skin of upper and lower
7
extremities and blisters.” (Id. ¶ 77.1.; id. Ex. 2.14 (History and Physical, dated Aug. 20, 2010).)3
The doctor also noted that he would consider a “gynecological exam,” possibly based on the rape
allegations. (Id. ¶ 77.1; id. Ex. 2.14.)
The police filed an Incident Report that day, which included an officer’s account of the
arrest:
On August 20, 2010, [Farmingham] was dispatched to [Plaintiff’s apartment] to
check the welfare of an elderly female. Upon arrival[, Plaintiff] answered the door,
[Farmingham] informed [Plaintiff] that [he] and officer Kleveno were there to
check the welfare of his mother. Upon [Plaintiff] answering the door there was a
very strong odor of something rotting. [Plaintiff] immediately became defensive
and stated to [the officers] that he had just put his mother to sleep and the he did
not want us to wake her. [The officers] then informed [Plaintiff] that [they] would
need to speak to his mother before leaving. [Plaintiff] agreed to let [the officers]
speak to his mother. While walking in [Plaintiff] began to appear very nervous.
Upon entering [the mother’s] bedroom, [the officers] immediately observed several
bruises on [the mother’s] legs [and] arms and also that [the mother] had a black eye.
[Farmingham] also observed bed sheets next to [the mother’s] bed that were
covered in urine. [Plaintiff] was asked to leave the room so [Farmingham] could
speak to [the mother]. [Farmingham] then interviewed [the mother,] who was
visibly shaking and appeared confused. [Farmingham] attempted to interview [the
mother,] but due [to] a language barrier [Farmingham] was unable to obtain
information from [the mother]. [The mother] also appeared to [be] frightened and
afraid to speak to [the officers]. [An ambulance] was dispatched and [Farmingham]
contacted [APS]. [Farmingham] spoke with Candice Crain of APS[,] who stated
that she would respond to [the] location. Upon arrival of [the ambulance,]
[Plaintiff] stated to [the officers] and in front of the [ambulance crew], “I tie [sic]
her legs up.” [The officers] then took [Plaintiff] into custody, [and Plaintiff] was
then transported to [the] station for processing. Upon arrival of [Crain], [Crain]
spoke with [the mother] and discovered that her legs[,] which were covered under
the blankets[,] were still tied with a twisted plastic bag. [Crain] immediately
removed [the mother’s] legs from the restraint and informed [Farmingham]. [The
mother] was transported to [the hospital] for evaluation . . . . [Crain] went to the
hospital with [the mother]. Upon arrival to the hospital[, Crain] discovered with
hospital staff further bruising on [the mother’s] breast and upper thighs. [The
3
Although it is unclear from the report exactly what the examining doctor meant by his
diagnosis of “ecchymosis,” the Court notes that that term, in medical usage, commonly refers to
“the escape of blood into the tissues from ruptured blood vessels marked by a livid black-andblue or purple spot or area”—in other words, a bruise. Webster’s Third New Int’l Dictionary 718
(2002).
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doctor] stated that the bruising was consistent with [the mother] being physically
abused.
(Id. Ex. 2.0.) The police also provided Plaintiff with an official notice, required by N.Y. C.P.L.
§ 710.30, of the county’s intent later to offer Plaintiff’s statement, “I tie [sic] her legs down,”
into evidence. (Id. Ex. 2.0-2 (710.30 Notice, dated Aug. 20, 2010).)
Plaintiff was charged that day with second-degree endangering the welfare of a
vulnerable elderly person (a Class E felony), N.Y. Penal Law § 260.32, third-degree assault (a
Class A misdemeanor), N.Y. Penal Law § 120.00, and second-degree unlawful imprisonment (a
Class A misdemeanor), N.Y. Penal Law § 135.05. (Id. ¶ 65; see also id. Ex. 2.1 (Arrest Report,
dated Aug. 20, 2010).) In a misdemeanor information and felony complaint filed the same day,
Farmingham offered an account of the incident that appears to be consistent with the account he
gave in the Incident Report:
[Plaintiff] . . . [,] on Aug[ust] 20, 2010 at approximately [3:25 p.m.,] being the
caregiver for 92 year old victim (Felicidad P[.] Rana)[,] did physically tie [the]
victim’s feet together and then to the bed using a plastic bag, in order to prevent
said victim from being able to get out of bed. Furthermore[,] the victim was unable
to stand on her own and walk to the bathroom due to the tightness in her ankles
from being restrained[,] causing said victim to urinate on the floor.
(Id. Ex. 2.2 (Misdemeanor Information, filed Aug. 20, 2010).)
[Plaintiff] . . . [,] on Aug[ust] 20, 2010 at approximately [3:25 p.m.,] being the
caregiver for 92 year old victim (Felicidad P[.] Rana)[,] did physically tie [the]
victim’s feet to the bed using a plastic bag. [Plaintiff’s] actions did cause swelling
and severe bruising to [the] victim’s ankles and feet.
(Id. Ex. 2.3 (Felony Complaint, filed Aug. 20, 2010).)4
Plaintiff was kept in jail overnight, but the next morning he was released on bail with the
assistance of his friend. (Id. ¶ 64.) That same day, Plaintiff saw a doctor, who completed a
According to a “Seal Order” filed on March 21, 2013, the case was “adjudicated” on
November 16, 2010, and it “was terminated in favor of [Plaintiff].” (Second Am. Compl. Ex. 2.5
(Seal Order).)
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medical examination, which included taking numerous x-rays, and concluded that Plaintiff had
bruises on his stomach and left arm. (See id. ¶ 71; id. Ex. H (prescription slip, noting that
Plaintiff complained of being “bitten by police” and had “bruise[s]” on his chest and abdomen);
id. Exs. I, J, K (x-ray images); id. Exs. L, M, N (photos of Plaintiff appearing to indicate
bruises).)
3. June 10, 2011
On June 10, 2011, Plaintiff’s mother was a resident at MPRHCC, where she lived on the
third floor, fifth unit, in Room #511. (Id. ¶¶ 102, 112.) While visiting his mother in her room,
Plaintiff observed that his mother had been “neglected,” in that she was not wearing any pants or
socks, but was “covered [only] by [three] bed sheet[s],” and was therefore “chilling because [the
air conditioner] was so high.” (Id. ¶ 90; see also id. ¶ 102.) He also observed that her pants,
which had been “‘thrown in the garbage,’” were “full of feces and soak[ed] with urine.” (Id.
¶¶ 90, 102.) Plaintiff was concerned, not only because of his mother’s present situation, but also
because he knew that multiple times his mother had repeatedly pushed a “‘red button’” in her
room to summon help, “but no one came[] in.” (Id. ¶ 90.) Plaintiff asked two nurses,
Defendants Tiffany and Yvette, to watch his mother while he asked a third nurse, Defendant
Dawn, who was alone at a nearby nursing station, to bring his mother some socks. (Id.
¶¶ 90, 102.)
At some point, Dawn “reported Plaintiff to [the] Director of Nursing.” (Id. ¶ 90.) Then,
Defendant Brewster, a nursing manager, and Defendant Reyes, a physical therapist, “allegedly
called the [Wallkill] police to inform the[m] that she [sic] had heard Plaintiff yelling [at his]
mother and [making] verbal threat[s] regarding the use of [a] firearm.” (Id. ¶ 112.) Two police
officers responded to the scene: Defendant Gulick, from Wallkill, and Defendant Mannix, a state
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trooper. (See id. ¶¶ 88, 102–03.) They did not find a firearm at the scene, (id. ¶ 112), but Gulick
did arrest Plaintiff and charge him with third-degree attempted assault (a Class B misdemeanor),
N.Y. Penal Law §§ 110.00, 120.00, and first-degree endangering the welfare of an incompetent
or physically disabled person (a Class A misdemeanor), N.Y. Penal Law § 260.25, (see id.
¶¶ 88, 102; see also id. Ex. 3.18 (Arrest Report, dated June 10, 2011).) Plaintiff alleges that,
throughout the course of the incident, only seven people were present: Gulick, Mannix, Tiffany,
Yvette, Plaintiff, his mother, and Defendant Masterson. (Id. ¶ 102.) Conversely, he alleges that
a number of Defendants—specifically, Conklin, Small, Brewster, Green, Forman, Reyes, and
Maniscalco—were not present. (Id. ¶¶ 86, 87, 89, 90, 102.)
A temporary Order of Protection issued that same day, ordering Plaintiff to surrender any
firearms he owned or possessed, and prohibiting Plaintiff from certain types of contact with his
mother. (Id. Ex. 3.15 (Order of Protection, dated June 10, 2011).) Another temporary Order of
Protection was then issued on July 12, 2011, restricting Plaintiff generally from any form of
communication or contact with his mother, but allowing Plaintiff to visit his mother “only . . .
under the supervision of [Plaintiff’s friend] Brent Borgmann.” (Id. Ex. 3.21 (Order of
Protection, dated July 12, 2011).) A final temporary Order of Protection was entered on August
2, 2011, retaining the supervised-visit condition of the previous order while also ordering
Plaintiff to refrain from committing “any criminal offense or interference with” his mother. (Id.
Ex. 3.23 (Order of Protection, dated Aug. 2, 2011).) The Order, which expired on August 2,
2012, also entered an “adjournment in contemplation of dismissal” of Plaintiff’s case, meaning
that if Plaintiff complied with the Order for one year, he could expect the charges to be
dismissed. (Id.; see also id. Ex. 3.26 (Letter from Plaintiff’s attorney, Craig Stephen Brown,
Esq., to Plaintiff, dated Aug. 5, 2011, informing Plaintiff that he “[was] given a one . . . year
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Adjournment in Contemplation of Dismissal with a limited Order of Protection,” and that “[i]f
[he] [did] not get arrested within this one . . . year time period, the charge [would] be
dismissed”).)
The Complaint is somewhat unclear as to the details of the incident that prompted
Plaintiff’s arrest, but documents attached to the Complaint—including a Domestic Incident
Report and an Incident Report—contain Defendant Gulick’s account:
While [Plaintiff] was visiting [his mother] at a rehabilitation/nursing facility,
[Plaintiff] became verbally abusive towards [his mother] and also struck and pushed
[her] several times. [Plaintiff] was placed in custody by [Gulick]. [Plaintiff’s
mother] did not suffer any injuries. [Her] [s]tatement was taken from [a] staff
member who witnessed [the] incident.
(Id. Ex. 3.17 (Domestic Incident Report, dated June 11, 2011).)
[Gulick] responded to a 911 [call]. Upon arrival [Gulick] located [Plaintiff] inside
a private residential room with [his mother] and several staff members from
[MPRHCC]. [Gulick] advised [Plaintiff] to exit the room and stand in the hallway.
[Plaintiff] was uncooperative but eventually left the room. [Gulick] and [Defendant
Belgiovene] searched [Plaintiff] because it was reported [that] he made a verbal
threat regarding the use of a firearm. No firearm [was] located. [Gulick] spoke
with [a witness, who was a physical-therapist assistant,] who advised [that] at
approx[imately] [5:00 p.m.,] she [was] walking down the hallway and heard
yelling, cursing[,] and what sounded like approx[imately] [three] slaps coming
from [Plaintiff’s mother’s] room . . . . [The witness] observed [Plaintiff’s] arm in
the air in a striking position and [Plaintiff] then started forcibly pushing [his
mother’s] knees and legs while yelling[,] “Fucking diaper!!” [The witness] stated
[that] she is familiar with [Plaintiff] because he visits [his mother] everyday [sic]
and she is aware of numerous complaints against [Plaintiff] by staff members. [The
witness] stated [that] after observing the incident, she advised [a nurse manager
named Wendy,] who called 911. [Gulick] placed [Plaintiff] into custody and
transported [him] to [the Wallkill police station]. [Gulick] processed [Plaintiff]
who was then [transferred] to [officer] Renwick for arraignment . . . . [Gulick] . . .
contacted [APS] and spoke with [Defendant] Andrea Leo[,] who took the case.
Judge Owen issued a stay away order of protection against [Plaintiff] protecting
[his mother]. [Defendant Maniscalco,] Director of Administration [at MPRHCC]
was advised. Case closed.
(Id. Exs. 3.19, 3.19-1 (Incident Report and Additional Narrative, dated June 10, 2011).) The
Complaint also contains, as an attached exhibit, a deposition from Defendant Reyes, taken by
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Defendant Gulick the day of the incident, which was submitted in support of the Misdemeanor
Information filed against Plaintiff and provides Reyes’s account of the incident:
I was walking down the hallway on the 5th floor when I heard yelling, cursing[,]
and what sounded like approx[imately] [three] slaps coming from one of the private
residential rooms. I had passed the room so I turned back and was able to look
inside the room because the door was wide open. I observed a male subject,
[Plaintiff], who I am familiar with from being at the facility every day visiting his
mother . . . who resides in the room. [Plaintiff’s] arm was in the air in a striking
position and he then started forcibly pushing [his mother’s] knees and legs while
cursing[,] “Fucking diaper!!” [His mother] had no pants on during the physical
altercation. I never entered the room and viewed everything from the hallway.
After witnessing [Plaintiff’s] actions I walked away and immediately advised [a
nursing manager named Wendy] and she then called 911. I am aware of numerous
complaints against [Plaintiff] from the nursing staff and he’s also made direct
comments to me threatening physical harm to members of his family and staff
members.
(Id. Ex. 3.16.1 (Supporting Deposition of Lisa M. Reyes, dated June 10, 2011).)
4. September 13, 2011
Plaintiff was arrested again on September 13, 2011. (Id. ¶ 113.) The Complaint does not
appear to allege the facts underlying this arrest, however the Court can glean a number of details
from exhibits attached to the Complaint. On August 9, 2011, three Defendants employed by
MPRHCC—Masterson, Brewster, and Small—gave statements to Defendant Solan regarding
allegations of harassment against Plaintiff. First, Masterson stated that, “[i]n the past week, [her]
staff ha[d] been receiving numerous phone calls from [Plaintiff]. [Plaintiff] call[ed] at all hours
of the day[,] t[y]ing up [her] staff just to vent his frustrations with [her] and [Brewster] for
having him arrested.” (Id. Ex. 4.5 (Masterson Statement, dated Aug. 9, 2011).) She also alleged
that these phone calls “serve[d] no legitimate purpose in that all [Plaintiff] want[ed] to do [was]
vent.” (Id.) She further alleged that when Plaintiff was “allowed at the facility, he would harass
other visitors[,] causing a hazardous environment.” (Id.) Finally, she alleged that Plaintiff’s
“action[s] ha[d] left [her] and other staff in fear of their safety.” (Id.)
13
Second, Brewster stated that, “on [June 10, 2010], [she] was one of the nursing staff
involved in an incident between [Plaintiff] and his mother.” (Id. Ex. 4.6 (Brewster Statement,
dated Aug. 9, 2011).) She acknowledged that, “[s]ince the incident, [she] ha[d] not spoken with
[Plaintiff].” (Id.) However, she alleged that “numerous threats were made at [her] when other
nursing staff ha[d] spoken with him,” and she further alleged that, “[a]lthough the threats were
not made directly to [her], [she] still [was] in fear for [her] safety and well[-]being.” (Id.)
Third, Small stated that she had received a call from Plaintiff on August 8, 2011 (the
previous day) “while working at [MPRHCC].” (Id. Ex. 4.7 (Small Statement, dated Aug. 9,
2011).) According to Small, Plaintiff “seemed very irate and rambeling [sic]” on the call. (Id.)
In this context, he told Small, “‘I know it was [Brewster] that called 911 the day I was taken into
police custody. I have rights to my mother. [Brewster] and [Masterson] will pay the ultimate
consequence and I can see it in my mind what I will do to you.’” (Id.) Small then “reported the
incident to [Maniscalco] . . . that day.” (Id.)
Approximately two weeks later, on August 23, Maniscalco provided to Farmingham a
handwritten log of phone calls MPRHCC had received from Plaintiff since July 12, 2011,
reflecting that Plaintiff had made 11 such calls. (Id. Ex. 4.3 (note from Maniscalco to
Farmingham, dated Aug. 23, 2011).) Maniscalco also gave a statement:
Since July of [2011] I have been receiving numerous phone calls from [Plaintiff].
[Plaintiff] is currently no longer allowed on the property due to an incident that
occurred in June at my facility. [Plaintiff] calls me on a daily basis numerous times
serving no legitimate purpose other th[a]n to vent his frustration against me banning
him from the property. [Plaintiff] not only contacts me via the telephone but [he]
has sent numerous fax messages to me which serves no legitimate purpose.
[Plaintiff] has been advised by me numerous time[s] to stop all communication,
phone and fax, and that all communications should be sent to the facilities attorney
or his attorney regarding any matter that he may have. [Plaintiff] has failed to
comply with my request and the constant phone calls I [b]elieve is causing
annoyance and alarm for my safety. I wish to pursue charges against [Plaintiff].
(Id. Ex. 4.4 (Supporting Deposition of Vincent Maniscalco, dated Aug. 23, 2011).)
14
On September 13, 2011, Wallkill police arrested Plaintiff and charged him with seconddegree aggravated harassment, N.Y. Penal Law § 240.30 (a Class A misdemeanor). (Id. Ex. 4.0
(Arrest Report, dated Sept. 13, 2011).) According to the Arrest Report, Defendant Solan was the
arresting officer. (Id.) Ultimately, the charge was later dismissed, for reasons that are not clear
based on the Complaint and accompanying exhibits. (See id. Ex. 4.9 (Certificate of Disposition,
dated Oct. 18, 2011).)
5. November 10, 2011
The fifth incident discussed in Plaintiff’s Complaint involves a petition for guardianship
filed on August 24, 2011, and litigated at a November 10, 2011 Surrogate’s Court hearing. On
August 24, 2011, Defendant Sholes & Miller, on behalf of Defendant MPRHCC, filed a petition
in Orange County Surrogate’s Court to determine whether Plaintiff’s mother should be appointed
a legal guardian. (Id. ¶¶ 24, 108.) The petition claimed that Plaintiff’s sister, Victoria Chang
(“Chang”), sought to become her mother’s legal guardian:
Petitioner is aware that [Plaintiff’s mother] had designated her son, [Plaintiff], as
her health care proxy. However, due to [Plaintiff’s] refusal to take our calls,
respond to our letters, and discuss his mother’s care, and due to his assaults on his
mother and orders of protection discussed below, we contacted [Plaintiff’s
mother’s] alternate health care proxy, [Plaintiff’s sister] Yolando Co. When our
social worker spoke with Ms. Co by telephone on June 30, 2011, Ms. Co advised
that she could not make health care decisions for her mother and wanted to be
removed as her mother’s alternate health care proxy. Ms. Co requested that all calls
and decision making regarding her mother be directed to her sister, Victoria Chang,
the eldest daughter of [Plaintiff’s mother]. We then spoke with Ms. Chang
regarding acting as a surrogate health care proxy pursuant to the Family Health
Care Decision Act. . . .
Although [Plaintiff] claims to be his mother’s power of attorney, we have not seen
such a document.
Ms. Chang attended an initial care plan meeting at our facility on July 15, 2011.
Ms. Chang indicated that she wanted to be in charge of her mother’s health care
decision making process, and also wanted her mother to reside in a nursing home
closer to her own home, which is located in New Jersey.
15
(Id. Ex. 18 (apparent excerpt from guardianship petition).) Along with the petition, Sholes &
Miller filed a number of supporting documents, including (1) a “Family Health Care Decision
Information” form signed by Defendant Green and dated June 29, 2011, noting that Plaintiff’s
mother had an existing Health Care Proxy, that she did not have a guardian, but that she did have
two daughters (Victoria Chang and Eloisa Kern), (see id. Ex. 12); (2) a “Consent by Surrogate to
DNR Order” form signed by Plaintiff (as his mother’s surrogate), witnessed by Defendant Green,
and dated March 31, 2011, indicating Plaintiff’s consent for a physician to issue a do-notresuscitate order (“DNR”), (see id. Ex. 14); (3) supporting documentation regarding the DNR
consent form, (see id. Exs. 15–17); and (4) a New Jersey police report memorializing a domestic
dispute in November 2007 involving Plaintiff’s mother (as the offender), Chang (as the
complainant), and a third-party witness, (see id. Ex. 19).
A judge issued an Order To Show Cause the same day the petition was filed. (See id.
Exs. 5.0, 5.0-1 (Order To Show Cause, dated Aug. 24, 2011).) Moreover, at some point,
Plaintiff’s mother was appointed a temporary guardian from the Orange County Department of
Social Services, a “court evaluator,” and an attorney from Mental Hygiene Legal Services, Inc.
to represent her in connection with the guardianship petition. (See id. Ex. Index No. 2011-08338
(“Guardianship Order”) (Order & J. Appointing Guardian of the Person and Property, dated Dec.
12, 2011).) A hearing was originally scheduled to take place in October, but it was rescheduled
to November 10. (See id. Ex. 13 (Letter from Sarah E. Sholes, Esq., to Plaintiff and others (Oct.
14, 2011).)
At the hearing, Sarah Sholes (“Sholes”), an attorney from Defendant Sholes & Miller,
appeared on behalf of petitioner; the court evaluator appeared on behalf of the court; Plaintiff’s
mother’s attorney appeared on behalf of Plaintiff’s mother; and David Medford of the Orange
16
County Attorney’s Office appeared on behalf of the Orange County Department of Social
Services. (See id. Ex. 5.1 (“Hr’g Tr.”) (Hr’g Tr., dated Nov. 10, 2011).) In support of the
petition, Sholes called a number of witness, including the court evaluator, and Defendants
Masterson, Forman, Smalls, Farmingham, and Crain. (See id. (Index page).) Plaintiff’s mother’s
attorney also called a number of witnesses, including Plaintiff’s mother, Chang, and Plaintiff.
(See id.) The Court was also presented with a number of exhibits, including the court evaluator’s
report, Plaintiff’s mother’s medical records, and exhibits from the Wallkill Police Department.
(See Guardianship Order 2.)
Plaintiff identifies a number of excerpts from the Hearing Transcript that are relevant to
his Complaint. First, the court evaluator (who is not a party to this Action) testified regarding
Plaintiff’s status as Power of Attorney. After being shown a copy of a document dated
November 20, 2007, wherein Plaintiff’s mother appears to have granted Plaintiff power of
attorney, Sholes asked the court evaluator whether he had seen that document:
A. The first I saw the power of attorney was a few minutes ago in chambers
produced by the assistant county attorney.
Q. Does that power of attorney indicate that [Plaintiff] is [his mother’s] power of
attorney?
A. Yes. And if I was aware of this, and I had seen a copy of it, I would have
requested in my report that the power of attorney be revoked immediately.
Q. And on what basis?
A. Based upon the maltreatment—the alleged maltreatment of [Plaintiff] relating
to his mother, clearly identified by the several police reports that are attached to
your petition. . . .
(Hr’g Tr. 9.)
Second, Defendant Masterson testified on direct examination regarding Plaintiff’s
treatment of his mother at MPRHCC:
17
Q. Are you familiar with [Plaintiff]?
A. I am.
Q. Can you tell us what your experience has been with him in terms of he and his
mother since she has been at [MPRHCC]?
A. My experiences have been that he has displayed volatile actions on many
occasions towards his mother, towards the staff.
Q. Can you give us some examples?
A. I can give an example as to times that he would start yelling, start cursing.
Q. At staff?
A. At staff, and also yelling about her diapers, things like that.
Q. And what would the comment about the diapers entail?
A. F’g diapers. F’g diapers.
Q. And was [Plaintiff] asked by the staff not to raise his voice and not to curse?
A. Yes. On more than one occasion.
Q. Did he heed any of those requests?
A. No.
Q. Now, did there come a time in June of this year when a physical incident
occurred between [Plaintiff] and his mother at the facility?
A. Yes.
Q. And how did you come to learn about that?
A. It was brought to my attention by the then assistant director of nursing, and the
nursing supervisor that I needed to go to the unit where [Plaintiff’s mother] was,
that something was going on with her son.
Q. Did you go to the unit?
A. I did.
Q. When you got there, what did you learn?
18
A. I asked the staff what was the matter and they said there was a report that
[Plaintiff] had been cursing at his mother and was seen slapping his mother on the
leg.
Q. Were the police called?
A. They were.
Q. Was [Plaintiff] arrested as a result?
A. He was.
Q. Now was it your understanding that a protective order was issued by a local
judge as a result of that incident?
A. Yes.
Q. And eventually was that protective order revised to permit [Plaintiff] to visit his
mother in the company of someone else?
A. Yes.
Q. When [Plaintiff’s mother] was admitted to the facility . . . , was she on any type
of special diet?
A. She was. She had some swallowing difficulties so she was on a special type of
diet.
Q. And did there come a time when you learned that [Plaintiff] had brought
different food in for her and was feeding her different food?
A. Yes.
Q. And what, if any, medical issues were there with that scenario?
A. There was the risk for aspiration for her because at that time she wasn’t taking
a regular texture diet with regular thin liquids.
Q. Did the staff explain the risk of aspiration to [Plaintiff]?
A. Correct. They had before and during the incident.
Q. So is it correct that even after he had been asked not to bring in that food, he
continued to do so?
19
A. Yes.
Q. And was he observed feeding that food that he brought in to his mother?
A. Yes.
....
Q. Have you noticed any changes in [Plaintiff’s mother’s] mood and her demeanor
since [Plaintiff] stopped visiting her?
....
A. I have observed that [Plaintiff’s mother] is more open with the nursing staff in
that she will speak to them more. She doesn’t just use clipped one word answers.
And that she also has gained 11 points since [Plaintiff] stopped visiting her.
Q. And was that weight gain a good thing for her?
A. A very good thing.
(Id. 14–18.) Plaintiff’s mother’s attorney then asked Masterson a number of questions on crossexamination:
Q. Miss Masterson, you mentioned that at some point there was a stipulation that
[Plaintiff] could visit with [his mother] with supervision?
A. Right.
Q. Is that plan still in effect?
A. No, it is not.
Q. Why was it changed?
A. It was changed because [Plaintiff] was not abiding by the stipulations even. He
was being adversarial.
Q. With whom?
A. With the staff. Even with another visitor in the lobby.
Q. Did the nursing home take any legal action to prevent [any] further supervised
visits?
....
20
A. We had consulted with counsel and also with the police about the order of
protection.
Q. And was the order of protection changed or extended at any point?
A. Yes.
Q. And what is his current order of protection, if you know?
A. That he cannot come to the facility.
Q. Is he permitted supervised visits on any level?
A. No.
Q. Outside of the nursing facility?
A. No.
Q. And are you aware of the current expiration date of that order of protection?
A. I believe that I am. I’m not sure if it is correct. I thought it was in December
of this year.
(Id. 19–21.)
Third, Forman testified on direct examination regarding her position at MPRHCC, her
qualifications, and her presence at the scene of the July 20, 2011 incident:
Q. Miss Forman, where are you currently employed?
A. [MPRHCC].
Q. In what capacity?
A. Director of social services.
Q. Are you a social worker?
A. I am.
Q. Are you licensed in New York State?
A. Not licensed. Master’s in social work.
21
Q. Okay. Where did you obtain your master’s?
A. Rutgers University.
....
Q. Did you become aware in June of [2011] of an incident involving [Plaintiff] and
his mother?
A. Yes.
Q. How did you learn about that?
A. I was at the facility at the time. . . . And I was informed the same time Mrs.
Masterson was.
Q. Did you go to [Plaintiff’s mother’s] room?
A. I did.
Q. Tell us what you observed and heard?
A. When I entered the room, [Plaintiff] was in there with his mother and another
nurse’s aide. And when asked to leave, he refused to leave, and he started yelling
and screaming.
Q. And can you tell us what types of things he was yelling and screaming?
A. “I’m not going anywhere. I didn’t do anything. What are you talking about?
What are you talking about?” And then the police came. They came very quickly.
Q. Was [Plaintiff] arrested?
A. Yes he was.
Q. What was your understanding as to what had happened with him and his
mother?
A. Another staff member apparently witnessed [Plaintiff] slapping his mother and
yelling at her while in the room with her.
Q. And did you speak to that staff member?
A. No, I didn’t.
(Id. 22, 24–25.)
22
Fourth, Smalls testified on direct examination about her prior conversations with
Plaintiff:
Q. Now, have you had any conversations with [Plaintiff] over the time his mother
has resided at [MPRHCC]?
A. Yes.
Q. Can you tell us about those conversations, what his tone and demeanor was?
A. I remember one time I had to go out on a doctor’s appointment with [Plaintiff’s
mother]. And he was telling me about his brother who smoked and did a lot of
drinking. And he wished that his brother would die. And the brother ended up with
lung cancer. And the brother, I guess, wanted to make amends with him, and he
refused. He said, I hope you die. And then the brother died.
I have spoken to [Plaintiff] several times on the phone. One time in August. He
said he knew that it was Wendy Brewster that called 911 that day he was taken into
police custody. And that Wendy and Eileen Masterson would pay the ultimate
consequence for keeping him from his mother.
Q. What did you interpret paying the ultimate consequence to mean?
A. It could mean anything. I thought, you know, physical retaliation.
Q. Did you notify Miss Masterson that he made that remark?
A. Yes.
Q. Did [Plaintiff] ever raise his voice to you or within ear s[h]ot of you?
A. Yes.
Q. And can you explain what his tone was when those things happened, what the
reason for it was, if any?
A. The day we approached him about him feeding his mother the unsafe diet
texture, I believe it was soup with pieces of carrots and celery and rice in it. And
she was on a pureed diet at the time. And he says, “Don’t tell me how to feed my
mother. I know how to feed my mother. I read about it on the internet how to feed
my mother.” And he was very angry.
Q. Were there further examples of him feeding his mother food that was not on her
pureed diet?
23
A. Just that one time that I witnessed.
Q. Did any of your staff ever tell you that there were other incidents where he had
been seen trying to feed his mother food that was not on her diet?
A. Yes.
Q. And did you counsel him about that?
A. Yes.
Q. More than once?
A. Yes.
Q. Did there come a time when he told you that he had been up in a tree?
A. Yes.
Q. Can you tell us about that?
A. It was one of the social workers and myself. He was talking about his sister
Victoria [Chang] and how he wanted to kill her. And he was sitting up in a tree
with a gun. And that God came to him in the tree and said that you do not want to
do this. So he climbed down from the tree.
(Id. at 33–35.)
Fifth, Farmingham testified about his interactions with Plaintiff:
Q. Did there ever come a time [on August 20, 2010] when you were called to the
Senior Horizons facility in the Town of Wallkill?
A. Yes, sir.
Q. Why were you called there?
A. For a check the welfare call. An anonymous caller called to complain about the
neighbor in the close proximity of their apartment and continuously hearing
slapping noises, and it sounded like somebody moaning in pain.
Q. What did you do after you received that call?
A. I responded to the Senior Horizons complex. Went to the apartment number
that was issued to me over the radio in the car. Knocked on the door, and which
was answered by [Plaintiff].
24
Q. Have you ever met [Plaintiff] before that time?
A. I have.
Q. When you first encountered him, did you recognize him?
A. I did.
Q. Once you saw [Plaintiff], what did you do then?
A. I informed him that I received a call about the welfare of his mother. I told
him—I informed him that I needed to speak to him. And while standing at the
doorway I smelled a very strong odor of something which seemed to be rotting. It
was a very foul odor, almost as if it were more rotting flesh, or something that may
have been partially had food, or possibly somebody deceased in the residence.
Q. What did you do after that?
A. He immediately was very hesitant to let me in. And I informed him that I wasn’t
going to go anywhere until I was able to speak to his mother. He agreed to let me
in. And we walked into the apartment.
Q. Would you describe the apartment?
A. Very disheveled. Messy. Unorganized. Very foul odor. Very stale air. As if
no windows had been opened for several weeks. It was just a mess. A complete
mess.
There was pads that were near the mother’s bed that were covered in urine. There
was a towel on the bed that was covered in urine and brown stains, which I would
have assumed that would be fecal matter.
Q. Did you find [Plaintiff’s] mother in the apartment that day?
A. Yes, I did.
Q. Where was she located?
A. She was in the bedroom when you open the door, the living room. If you’re
looking in, the living room is on the left, the bedroom is kind of straight ahead on
the right.
Q. When you found her in the apartment, was she laying down on the bed or was
she sitting up?
A. She was laying down on the bed with the blankets over her legs.
25
Q. What happened after you noticed where [Plaintiff’s mother] was?
A. I went in to speak with her. She appeared very disheveled. Very kind of out of
it. [Plaintiff] began to speak very loudly. Very aggravated and agitated. I told him
that I needed to speak to his mother and I asked him to leave the room. He refused.
I told him, listen, I need to speak to your mom. She wouldn’t talk to me. She was
very—she seemed to be very fearful. And the fact that he was so agitated and
screaming seemed to make her very more uneasy of my presence to speak to me.
Q. Did there ever come a time when you called for any assistance?
A. I did. I called for an ambulance to, at the bare minimum, come and evaluate
her. I contacted my sergeant, and I also notified—I got the number for [APS] and
I got the calls started to [APS].
Q. While you were at the scene, did any of the people you called arrive at the
apartment?
A. They did. . . . Town of Wallkill Volunteer Ambulance Corps.[] arrived and also
[APS]. I believe her name is Candace. And she is in the room.
....
Q. Now once the case worker from [APS] arrived, what happened then?
A. [Plaintiff] already had been taken into custody and brought back to the station
by [Kleveno] in a marked patrol unit. When the ambulance arrived, I believe Miss
Crain arrived shortly thereafter or right before. She spoke with her. She went to
the hospital with her.
When she went into the room and came back out after speaking with her, she had
informed me that she had found [Plaintiff’s mother’s] leg tied to the bed, which was
covered by the blankets.
Q. Did you go back into the room at that point?
A. I did not. The ambulance had put her on the stretcher and so forth. She had,
Miss Crain had removed the leg before I had seen it.
Q. What did you do then?
A. I—they were taken—I had another Officer come in with a camera to take
pictures of the scene.
....
26
Q. Now, sir, I’m gonna ask you to take a look at [certain photographs] for
identification purposes. . . .
....
Q. [What is] picture number 6?
A. It is a picture . . . of the plastic bag used to tie [Plaintiff’s mother’s] legs. Again
of her bed in the apartment.
....
Q. Picture number 7?
A. Again, another picture of the rope, just a different angle, that was used to tie her
legs.
....
Q. . . . . Do you recognize Exhibit 19A?
....
A. The paper bag which I placed the rope in for evidence.
Q. How do you know it’s the paper bag that you placed the rope into?
A. Because I filled everything out and I signed it that I was the one that sealed it
and placed it on the evidence.
....
Q. What is Exhibit 19B[?]
A. It is a plastic bag that is spun around to use to tie her legs down.
(Id. at 39–48.)
Finally, Crain testified as to her recollection of the events of August 20, 2010:
Q. . . . What were the circumstance[s] why you were called into the field [on August
20, 2010]?
A. Officer Far[m]ingham had made a referral for [Plaintiff’s mother], so I went out
to the apartment. And when I got there Officer Far[m]ingham was there and the
paramedics were there. And [Plaintiff’s mother] was there.
27
Q. And once you got there, what did you find?
A. I found [Plaintiff’s mother] in her bedroom lying on the bed. She was in a night
gown. And she appeared to have some bruising on her face, on her arms. And the
paramedic had pointed out that one of her ankles was very bruised.
So while I was there I decided to move the blanket and that is when I noticed that
her other leg was still tied to the bed.
Q. What kind of bed was it?
A. It was a twin bed. I believe it had the hospital bars on the side.
Q. And how was her leg tied?
A. It was with a long, like a plastic bag that appeared to be tied a couple times.
And it was wrapped around her ankle and then tied to the hospital bed bar.
Q. Once you noticed that this was on her leg, what did you do?
A. Tried to remove it.
Q. Were you able to remove it?
A. Actually it was tied so tight that the paramedic had to remove it. I tried.
....
Q. Ma’am, do you recognize [Exhibit] 19B?
A. Yes. . . . . [It is] [t]he rope that bound [Plaintiff’s mother’s] leg to the bed.
(Id. at 51–53.) Crain also examined and testified to a number of photographs taken at the
hospital on August 20, 2010, purportedly depicting bruises on various parts of Plaintiff’s
mother’s body. (See id. at 53–56.)
On December 12, 2011, the Surrogate’s Court issued an order finding that Plaintiff’s
mother was sufficiently “incapacitated” that she would “likely suffer harm because of her
functional limitations” and that “the appointment of a Guardian [was] necessary to prevent such
harm.” (Guardianship Order 2–3.) Accordingly, the court appointed Chang guardian. (Id. at 3.)
28
The order also decreed that “all health care proxies and power of attorney documents previously
executed by [Plaintiff’s mother] [were] [t]hereby revoked and vacated and any appointments
made thereunder [were] [t]hereby terminated.” (Id. at 7.) And it issued a permanent Order of
Protection against Plaintiff, ordering that he “remain at least 500 feet from [his mother] [at] all
times” and “refrain from any and all telephone and other contact” with her. (Id. at 7–8; see also
Second Am. Compl. Ex. Index No. 2011-008338 (Order of Protection, dated Dec. 12, 2011).)
Plaintiff’s mother passed away approximately one month later, on January 10, 2012. (Second
Am. Compl. ¶ 81.)
B. Procedural History
1. Initial Complaints
Plaintiff filed the instant Action on February 6, 2012. At that time, the Complaint was 12
pages long (not including approximately 56 pages of exhibits); contained allegations involving
the August 2010, June 2011, and September 2011 incidents; and named only the Town of
Wallkill Police Department and MPRHCC as defendants—although it did include references to,
inter alia, Farmingham, Reyes, Tiffany, Yvette, Dawn, Maniscalco, and Gulick. (See Dkt. No.
2.) On March 27, 2012, the Court issued an Order noting that the Complaint contained
numerous allegations against Farmingham “throughout the Complaint,” and therefore
“direct[ing] [the Clerk of Court] to amend the caption of th[e] action to add [Farmingham] as a
defendant.” (Dkt. No. 7 at 3–4.) The Court also directed the Clerk “to substitute as a defendant
the Town of Wallkill for the Town of Wallkill Police Department.” (Id. at 4.)
The Court held an initial conference on November 30, 2012, at which Plaintiff and
counsel for Wallkill, Farmingham, and MPRHCC appeared. (See Dkt. (minute entry for Nov.
30, 2012).) At that conference, the Court granted Plaintiff leave to file an amended complaint.
29
(See id.) After successfully seeking numerous extensions of the original January 15, 2013
deadline, Plaintiff ultimately filed his Amended Complaint on May 7, 2013. (See Dkt. No. 23.)5
The Amended Complaint, now consisting of 34 pages and a number of exhibits, named
MPRHCC, Wallkill, and Farmingham as Defendants, but also added a number of new Parties,
including Maniscalco, Conklin, Masterson, Small, Brewster, Green, Dawn, Forman, Reyes,
Tiffany, Yvette, Hertman, Procak, Kleveno, Gulick, Solan, Orange County Department of Social
Services, Murphy, Crain, Labuda, Lacatena, Mannix, Sholes & Miller, and Sholes. (See id.)6
On July 11, 2013, the Court issued, sua sponte, an Order directing Plaintiff to submit a
second Amended Complaint. After reminding Plaintiff that, in granting him leave to file his
Amended Complaint, the Court “specifically directed [him] to be clearer as to the entities and/or
persons he intend[ed] to sue, the actionable conduct those entities or persons allegedly engaged
in, and the federal statutory or constitutional basis for his claims,” the Court noted that the
Amended Complaint was “extremely difficult to follow,” and that “it [was] in many respects less
clear than [the] original Complaint.” (Order (“July 2013 Order”) 1–2 (Dkt. No. 25).) The Court
was able to “discern that Plaintiff intends to pursue malicious prosecution, excessive force,
failure to intervene, and false imprisonment claims against the law enforcement Defendants,”
and it could “construe some of the allegations in the Amended Complaint to support a claim
against the law enforcement Defendants for violating Plaintiff’s right to familial association with
5
The Amended Complaint is listed as the twenty-third entry on the Docket, but many of
the exhibits can be found in the twenty-second entry, which is the May 4, 2013 letter from
Plaintiff to the Court wherein Plaintiff submitted his Amended Complaint and accompanying
exhibits. (See Dkt. No. 22.)
6
Of the presently named Defendants, the Amended Complaint did not name Spano,
Kammarada, McLymore, Dewey, Belgiovene, Moskowitz, or Guzman (from Wallkill) or Leo
(from Orange County).
30
his mother.” (Id. at 6.) However, the Court noted that “by presenting a great amount of
disjointed and nonsequential information to the Court about the various events giving rise to
Plaintiff’s arrests, Plaintiff ha[d] rendered it impossible to comprehend what actually happened
to him.” (Id.) It therefore held that “[Plaintiff’s] claims against the law enforcement Defendants
. . . [did] not satisfy the pleading requirements of Rule 8.” (Id.) It also held that, with regard to
the other Defendants, “Plaintiff [did] not clearly or specifically allege how they were personally
involved in any alleged wrongdoing or any basis for their liability under federal law,” and it
therefore held that “[t]he balance of the Amended Complaint . . . also [did] not satisfy the
pleading requirements established by Rule 8.” (Id.)
The Court then granted Plaintiff “one more opportunity to file an Amended Complaint
. . . in order [to] correct the above deficiencies and to allege clearly and concisely facts to support
his claims.” (Id. at 7.) The Court specifically instructed Plaintiff to “provide a short plain
statement of the relevant facts, in separate numbered paragraphs in chronological order,
supporting each claim against each Defendant.” (Id.) It also instructed Plaintiff to allege, in the
Second Amended Complaint, “who violated Plaintiff’s federally protected rights; what facts
show that his federally protected rights were violated; when such violation(s) occurred; where
such violation(s) occurred; and why Plaintiff is entitled to relief.” (Id. at 8.) Finally, the Court
instructed Plaintiff to “allege, in separate numbered paragraphs, for each named Defendant, what
that Defendant did to be personally involved in the violation of Plaintiff’s constitutional rights,”
and it warned Plaintiff that “[i]f [he] [did] not comply with this instruction, his pleading may be
dismissed as against any Defendant whose personal involvement [could not] be discerned from
reading the pleading.” (Id.) It also twice told Plaintiff that “this may be his final opportunity to
31
amend.” (Id. at 7; see also id. at 8 (“[T]he Court may not grant Plaintiff another chance to
amend.”).)
2. Second Amended Complaint
Plaintiff ultimately submitted his Second Amended Complaint on September 24, 2013.
(See Dkt. No. 32.) On December 18, 2013, the Court issued an Order directing Plaintiff to serve
the 36 Defendants named in the Second Amended Complaint, and advising Plaintiff that, “[i]f
within 120 days of issuance of [a] summons, Plaintiff ha[d] not made service or requested an
extension of time in which to do so, under Rules 4(m) and 41(b) of the Federal Rules of Civil
Procedure, the Court may dismiss this action for failure to prosecute.” (See Dkt. No. 36 at 2.)7
Plaintiff had previously served Defendants MPRHCC, Wallkill, and Farmingham in 2012, when
he originally filed his Complaint. (See Dkt. (entry for Apr. 5, 2012, indicating issuance of
summons); Dkt. No. 8 (Motion To Dismiss filed by MPRHCC, dated May 2, 2012); Dkt. No. 13
(notice of appearance filed on behalf of Defendants Farmingham and Wallkill, dated June 29,
2012).) Plaintiff therefore filed USM-285 forms for the remaining Defendants, which forms
7
In addition to the 35 Defendants that are listed in both the caption of the Second
Amended Complaint and on the Docket (one of which is Sholes & Miller), it appears that
Plaintiff meant to include Sholes, individually, as a Defendant in both his Amended Complaint
and Second Amended Complaint, but she is currently not listed as a Defendant on the Docket. It
does not appear that Plaintiff sought to correct the Docket or otherwise serve Sholes when he
submitted service forms for the other Defendants. Moreover, when she accepted service on
behalf of Defendant Sholes & Miller, Sholes noted that she “[did not] know whether [she had]
been named as an individual defendant, or whether plaintiff pro se [was] suing just Sholes &
Miller, LLP.” (Dkt. No. 44 (Process Receipt & Return for Sholes & Miller, dated Mar. 5,
2014).) Plaintiff still made no attempt to add Sholes as a Defendant or to serve her. The Court
therefore construes Plaintiff’s Second Amended Complaint not to name Sholes as an individual
Defendant.
32
were received on January 13, 2014, resulting in the issuance of summons on February 14, 2014.
(See Dkt. (entries for Jan. 13, 2014 and Feb. 14, 2014).)
Most of the unserved Defendants were served at various points from March to June of
2014. However, the Docket reflects that 11 Defendants are currently not represented by counsel,
and that at least seven of them have not been served.8 Of those, it appears that Plaintiff failed to
file a USM-285 form for or otherwise serve New York State. Of the remaining five unserved
Defendants, Plaintiff has failed to serve two of them (Yvette and Tiffany) because he was not
able to provide their full names, and subsequent court-directed efforts by Defendants to identify
these individuals were unsuccessful.9 He has also failed to serve one of them (Guzman), despite
8
Defendants Dawn and Maniscalco were served on April 1, 2014, apparently along with
other MPRHCC Defendants. (See Dkt. No. 85 (Process Receipt & Return for Dawn, filed Apr.
11, 2014); Dkt. No. 81 (Process Receipt & Return for Maniscalco, filed Apr. 11, 2014); see also
Dkt. Nos. 80, 82-84 (Process Receipts & Returns for other MPRHCC Defendants, all of whom
were served on the same date and at the same address as Dawn, filed Apr. 11, 2014).) The Court
notes that, because all of the other MPRHCC Defendants are represented by the same attorney,
Dawn and Maniscalco’s current lack of representation, as reflected on the Docket, may be a
technical oversight.
Likewise, Defendants Kleveno and Leo were served on August 20, 2014 and September
4, 2014, respectively. (See Dkt. No. 140 (Process Receipt & Return for Kleveno, filed Sept. 10,
2014); Dkt. No. 137 (Process Receipt & Return for Leo, filed Sept. 10, 2014).) The Court notes
that, because all of the other Wallkill Defendants are represented by one attorney, and all of the
other Orange County Defendants are also represented by one attorney, Kleveno and Leo’s
current lack of representation, as reflected on the Docket, may also be a technical oversight.
After Plaintiff unsuccessfully attempted to serve Defendant Labuda at APS (where she
apparently no longer worked at the time Plaintiff attempted to serve her), (see Dkt. No. 90
(unexecuted Process Receipt, filed Apr. 22, 2012)), counsel for Orange County Defendants, at
the Court’s direction, provided an updated address for Labuda, and it further informed Plaintiff
that it had been “authorized to accept service on [her] behalf,” (Dkt. No. 98 (Letter from Carol C.
Pierce, Esq. to Plaintiff (May 27, 2014))). It does not appear that Plaintiff has served Labuda
since he received this information.
9
The U.S. Marshals returned unexecuted Process Receipts on April 22, 2014, for
Defendants Yvette and Tiffany. (See Dkt. Nos. 86, 89.) At a conference held on May 21, 2014,
the Court directed counsel representing MPRHCC Defendants to ascertain the identities of
Yvette and Tiffany, but counsel informed Plaintiff on June 5, 2014, that she was “unable to
33
providing her full name, because he attempted to serve her at the Wallkill Police Department, but
Wallkill has no record of her being an employee there, (see Dkt. No. 66 (unexecuted Process
Receipt, filed Mar. 21, 2014)), and Wallkill’s counsel has represented to the Court, after
complying with its order to help Plaintiff serve her, that Guzman “is not, nor has she ever been, a
dispatcher for the police department or employed by [Wallkill] in any other capacity,” but was
instead “the private individual who had placed a call to the police department concerning the
incident referenced in the reports,” (Dkt. No. 99 (Letter from James A. Randazzo, Esq., to
Plaintiff, May 28, 2014)). Counsel for Wallkill was, however, able to provide contact
information for four of the Wallkill Defendants whom, because they had all left their positions at
the Wallkill Police Department, Plaintiff was originally unable to serve. (See id.) Accordingly,
on June 26, 2014, summonses were issued as to those four Defendants, whom for some reason
Plaintiff had previously not attempted to serve. (See Dkt. (entry for June 26, 2014).) Of those
four Defendants, Plaintiff has only yet to serve Belgiovene. (See Dkt. No. 139 (unexecuted
Process Receipt, filed Sept. 10, 2012). The final remaining unserved Defendant is Moskowitz,
whom Plaintiff apparently did not realize was already a Defendant when, on July 11, 2014, he
requested that the Court allow him to add Moskowitz as a Defendant. (See Dkt. No. 117 (Letter
from Plaintiff to Court (July 11, 2014)).) The Court notified Plaintiff on July 16 that he “may
seek leave to amend his Complaint to include [Moskowitz] as a defendant,” but that he must
“includ[e] the specific grounds upon which [Moskowitz] [could] be held liable.” (Id.) But
identify” those Defendants. (See Dkt. No. 116 (letter from Plaintiff to Court (July 15, 2014),
attaching a letter from Katherine J. Zellinger, Esq., to Plaintiff (June 5, 2014)).) Plaintiff
informed the Court of this development on July 17, 2014, but he has not made any further
requests related to these Defendants. (See id.)
34
Plaintiff has since not sought such leave and he has not otherwise attempted to effect service on
Moskowitz.
Therefore, in light of this discussion, and before turning to Defendants’ Motions, the
Court will take this opportunity to address the status of the seven unserved Defendants. With
regard to four of those Defendants, Plaintiff has failed to attempt to serve one (New York State)
and has failed to request an extension or other relief from the Court for three (Yvette, Tiffany,
and Guzman) whom neither Plaintiff nor existing counsel have been able to locate. Accordingly,
pursuant to the Court’s December 19, 2013 Order, the Court dismisses the Complaint against
those Defendants without prejudice for failure to serve. (See Order (Dkt. No. 36).)10
3. Defendants’ Motions
The Court has held two premotion conferences in this case. The first was held on
December 17, 2013, at the request of counsel for Defendants Wallkill and Farmingham, each of
whom was named in the original Complaint. (See Dkt. (minute entry for Dec. 17, 2013).)11 The
10
Plaintiff also has yet to serve, but may be attempting to serve, Defendants Belgiovene
and Moskowitz. However, because the Court separately dismisses Plaintiff’s claims against
those Defendants for failure to comply with Rule 8 (but grants Plaintiff leave to amend),
Plaintiff’s failure to serve the Second Amended Complaint on those Defendants will be moot as
a result of this Order. If Plaintiff chooses to submit a Third Amended Complaint against these
Defendants, the Court will issue a separate Order regarding service at that time.
Additionally, Plaintiff has yet to serve, but may be attempting to serve, Defendant
Labuda. However, because the Court separately dismisses Plaintiff’s claims against Labuda for
failure to comply with Rule 8 without leave to amend, Plaintiff’s failure to serve the Second
Amended complaint on Labuda will be moot as a result of this Order.
11
Defendant MPRHCC was also named in the original Complaint, but it did not initially
request a premotion conference and it did not appear at the December 2013 premotion
conference. In this context, the Court notes that MPRHCC filed a motion to dismiss in May
2012 (presumably shortly after Plaintiff served the original Complaint at some point after April
5, 2012), but the Court summarily denied it “without prejudice for failure to comply with the
Court’s Individual Practices” requiring parties to request a premotion conference before filing a
dispositive motion. (See Dkt. No. 11.)
35
Court set a briefing schedule for Wallkill’s and Farmingham’s Motion To Dismiss at that
conference, (see Dkt. No. 35), pursuant to which those Defendants filed their Motion on January
17, 2014, (see Dkt. Nos. 39–41), and Plaintiff filed his Memorandum of Law in opposition to the
Motion on February 26, 2014, (see Dkt. No. 43).12
The second premotion conference was held on May 21, 2014, at which counsel for all
Defendants appeared. (See Dkt. No. 76 (Order); Dkt. (minute entry for May 21, 2014).)
Pursuant to a scheduling order adopted at that conference, the remaining Defendants filed
Motions To Dismiss on June 20, 2014, (see Dkt. Nos. 105–07 (Defendant Mannix); Dkt. Nos.
108–11 (Orange County Defendants); Dkt. Nos. 112–14 (Defendant Sholes & Miller); 119–25
(MPRHCC Defendants), Plaintiff filed his Memorandum of Law in opposition on July 18, 2014,
(see Dkt. No. 118), and Defendants filed Reply Memoranda on or before August 8, 2014, (see
Dkt. No. 126 (Orange County Defendants); Dkt. No. 128 (Defendant Mannix); Dkt. No. 131
(Defendant Sholes & Miller); Dkt. No. 133 (MPRHCC Defendants)).13
II. DISCUSSION
Wallkill Defendants, MPRHCC Defendants, Mannix, and Sholes & Miller move to
dismiss Plaintiff’s Second Amended Complaint for failure to comply with Rule 8 of the Federal
12
Counsel for these Defendants later informed the Court that he did not intend to file a
reply memorandum in support of the Motion. (See Dkt. No. 50 (Letter from James A. Randazzo,
Esq. to Court (Mar. 13, 2014)).)
13
On June 5, 2014, counsel for Wallkill and Farmingham requested that the Court amend
their existing Motion “to include [Defendants Hertman, Spano, Kammarada, McLymore, Procak,
and Solan] as movants to avoid filing another motion on their behalf.” (See Dkt. No. 100 (Letter
from James A. Randazzo to Court (June 5, 2014)).) The Court granted that request on June 6,
2014, (see Dkt. No. 101), and it therefore deems the Motion filed on January 17, 2014 to apply to
all Wallkill Defendants who have been served, (see Dkt. Nos. 39–41).
36
Rules of Civil Procedure.14 Among those Defendants, only Mannix moves to dismiss the Second
Amended Complaint for the additional reason that, substantively, it fails to state a claim.
Finally, Orange County Defendants move to dismiss the Second Amended Complaint only on
the ground that, substantively, it fails to state a substantive claim. After a brief discussion of the
standard of review applicable to pro se complaints, the Court will first address the Movants’ Rule
8 argument, and it will then turn to Mannix’s and Orange County Defendants’ remaining Rule
12(b)(6) arguments.
A. Submissions by Pro Se Litigants
“A document filed pro se is to be liberally construed, and a pro se complaint, however
inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by
lawyers.” Ahlers v. Rabinowitz, 684 F.3d 53, 60 (2d Cir. 2012) (internal quotation marks
omitted) (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam)); see also James v.
Westchester Cnty., No. 13-CV-19, 2014 WL 4097635, at *2 (S.D.N.Y. Aug. 19, 2014) (“Pro se
complaints are held to less stringent standards than those drafted by lawyers, even following
Twombly and Iqbal.” (internal quotation marks omitted)). “This policy of liberally construing
pro se submissions is driven by the understanding that implicit in the right of self-representation
is an obligation on the part of the court to make reasonable allowances to protect pro se litigants
from inadvertent forfeiture of important rights because of their lack of legal training.” Triestman
v. Fed. Bureau of Prisons, 470 F.3d 471, 475 (2d Cir. 2006) (alterations internal quotation marks
omitted); see also Quadir v. N.Y. State Dep’t of Labor, — F. Supp. 2d —, 2014 WL 4086296, at
14
The Court notes that Mannix did not move separately to dismiss pursuant to Rule 8, but
instead “join[ed] in the motion pursuant to Rule 8 filed by [Wallkill Defendants] on January 17,
2014.” (See Def.’s Mem. of Law in Supp. of His Mot. To Dismiss the Second Am. Compl. or in
the Alternative for Summ. J. (“Mannix Mem.”) 6 (Dkt. No. 106).)
37
*3 (S.D.N.Y. Aug. 19, 2014) (same). “Nonetheless, a pro se complaint must state a plausible
claim for relief.” Nielsen v. Rabin, 746 F.3d 58, 63 (2d Cir. 2014) (internal quotation marks
omitted). Moreover, in doing so, a pro se party is “not exempt . . . from compliance with
relevant rules of procedural and substantive law.” Triestman, 470 F.3d at 477 (internal quotation
marks omitted); see also Jordan v. Chase Manhattan Bank, No. 13-CV-9015, 2014 WL
3767010, at *4 (S.D.N.Y. July 31, 2014) (same).
B. Rule 8
Most of the Parties—all except Mannix and Orange County Defendants—move to
dismiss the Second Amended Complaint on the sole ground that it fails to comply with Rule 8.
As relevant here, that rule provides that “[a] pleading that states a claim for relief must contain
. . . a short and plain statement of the claim showing that the pleader is entitled to relief,” Fed. R.
Civ. P. 8(a)(2), and that “[e]ach allegation must be simple, concise, and direct,” id. at 8(d)(1); see
also Fed. R. Civ. P. 10(b) (“A party must state its claims . . . in numbered paragraphs, each
limited as far as practicable to a single set of circumstances.”). Nonetheless, Rule 8 also
provides that “[n]o technical form is required” to comply with the rules, Fed. R. Civ. P. 8(d)(1),
and that “[p]leadings must be construed so as to do justice,” id. at 8(e).
From these Rules emerge two legal standards relevant to Defendants’ Motions. First, the
latter part of Rule 8(a)(2) contains what the Supreme Court in Twombly called the “Rule 8
entitlement requirement,” which is that “the ‘plain statement’ possess enough heft to ‘sho[w] that
the pleader is entitled to relief.’” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007)
(alteration in original) (quoting Fed. R. Civ. P. 8(a)(2)); see also id. at 555 (noting “a plaintiff’s
obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’” (alteration in original)); id. at
555 n.3 (noting that “Rule 8(a)(2) . . . requires a ‘showing,’ rather than a blanket assertion, of
38
entitlement to relief”); id.at 557 (noting “the line between possibility and plausibility of
‘entitle[ment] to relief’” (alteration in original)). This part of Rule 8(a)(2) is echoed in Iqbal,
which applied Twombly’s “plausibility standard” outside of the context of antitrust litigation.
See Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (concluding that, “where the well-pleaded facts
do not merit the court to infer more than the mere possibility of misconduct, the complaint has
alleged—but it has not ‘show[n]’—‘that the pleader is entitled to relief’” (alterations in original)
(quoting Fed. R. Civ. P. 8(a)(2))). Second, the first part of Rule 8(a)(2) contains what may be
termed the “short-and-plain-statement requirement,” which has been independently interpreted,
perhaps along with Rule 8(d)(1)’s requirement that allegations be “simple, concise, and direct,”
to protect interests separate from the entitlement requirement. See Salahuddin v. Cuomo, 861
F.2d 40, 42 (2d Cir. 1988) (discussing the interests underlying the short-and-plain-statement
requirement); cf. Wynder v. McMahon, 360 F.3d 73, 80 (2d Cir. 2004) (noting the “critical
distinction between the notice requirements of Rule 8(a) and the requirement, under Rule
12(b)(6), that a plaintiff state a claim upon which relief can be granted”). The first requirement
asks, “how short is too short?” The second requirement asks, “how long is not short enough?”
Cf. Shomo v. State of New York, 374 F. App’x 180, 182 (2d Cir. 2010) (“The jurisprudence
involving Rule 8, traced from our decision in Salahuddin through the Supreme Court’s . . . Iqbal
decision, is difficult to apply to the dismissal of a complaint containing too much detail,
especially where the complaint is filed by a pro se litigant.”).
In their Motions To Dismiss pursuant to Rule 8, Defendants ask only the second
question.15 In particular, Defendants’ Motions make at least five common arguments. First, they
15
The Memoranda filed by Wallkill Defendants and MPRHCC Defendants also contain a
single sentence arguing that, “to the extent there are any ‘factual allegations’ [in the Second
39
all quote the Second Circuit’s opinion in Salahuddin v. Cuomo, 861 F.2d 40 (2d Cir. 1988),
wherein the court identified the reasoning underlying the short-and-plain-statement requirement:
The statement should be plain because the principal function of pleadings under the
Federal Rules is to give the adverse party fair notice of the claim asserted so as to
enable him to answer and prepare for trial. The statement should be short because
unnecessary prolixity in a pleading places an unjustified burden on the court and
the party who must respond to it because they are forced to select the relevant
material from a mass of verbiage.
Id. at 42 (citations omitted). (See Mem. of Law in Supp. of Def. Town of Wallkill & Police
Officer Jason Farmingham’s Mot. To Dismiss Pl.’s Second Am. Compl. (“Wallkill Defs.’
Mem.”) 3 (Dkt. No. 41); Mem. of Law in Supp. of Defs. Sholes & Miller, LLP’s & Sarah Sholes,
Esq.’s Mot. To Dismiss Pl.’s Second Am. Compl. (“Sholes Mem.”) 3 (Dkt. No. 113); Mem. of
Law in Supp. of Defs. Park Manor Rehabilitation & Healthcare Center, Darla Conklin, Eileen
Masterson, Suzanna Forman, Jennifer Small, Jenna Green & Wendy Brewster’s Mot. To Dismiss
Pl.’s Second Am. Compl. (“MPRHCC Defs.’ Mem.”) 2–3 (Dkt. No. 120).) Second, they all
reference the Second Amended Complaint’s difficult-to-follow formatting. (See Wallkill Defs.’
Mem. 4 (noting that the Second Amended Complaint “is single-spaced and typed in a font of
Arial 8 pts., which . . . makes it difficult to read”); MPRHCC Defs.’ Mem. 3 (same); Sholes
Mem. 4 (noting that “[t]he format of the Second Amended Complaint makes it difficult to
read”).) Third, they all reference the Second Amended Complaint’s length and the prevalence of
arguably irrelevant content within the document. (See Wallkill Defs.’ Mem. 4 (noting that the
Second Amended Complaint “consist[s] of over 30 pages and over 200 pages of attachments”
Amended Complaint], they are conclusory and violate the plausibility pleading standard.”
(Wallkill Defs.’ Mem. 4 (citing Iqbal, 556 U.S. at 678); MPRHCC Defs.’ Mem. 4 (same).)
However, this argument itself is conclusory, and the Court declines to dismiss any claims based
on a one-sentence argument that, itself, does not give Plaintiff fair notice of the claims he must
defend. The Court’s denial of Defendants’ Motion on this ground, however, is without prejudice
to Defendants, who may later seek to file a motion to dismiss the Second Amended Complaint
for failure to state a claim.
40
and contains “120 separately numbered paragraphs, many with subparts, with the vast majority
of the paragraphs exceeding 10 lines of text” and with “many paragraphs” that “are irrelevant . . .
and do not even address any purported conduct of the defendants”); MPRHCC Defs.’ Mem. 3
(same); Sholes Mem. 4 (noting that “[m]any of the paragraphs of the Second Amended
Complaint do not address alleged conduct of the defendants”).) Fourth, they all argue that the
Second Amended Complaint is confusing. (See Wallkill Defs.’ Mem. 3–4 (“Plaintiff’s [Second
Amended Complaint] is confusing, unclear and at times unintelligible, thus preventing
defendants from again being able to ascertain what the specific allegations and claims are against
them.”); MPRHCC Defs.’ Mem. 3 (same); Sholes Mem. 5 (“It is unclear in the Second Amended
Complaint which counts are being asserted against which defendant[.]”).) Finally, they all
explicitly invoke Rules 8(a)(2) and 8(d)(1) and argue that the Second Amended Complaint fails
to satisfy Rule 8. (See Wallkill Defs.’ Mem. 4 (“Simply, the [Second Amended Complaint] does
not contain a short and plain statement of the claim and is anything but simple, concise and
direct, and as such, must again be dismissed.”); MPRHCC Defs.’ Mem. 4 (same); Sholes Mem.
4–5 (citing Rules 8(a)(2) and 8(d)(1), and arguing that “[t]he Second Amended Complaint does
not contain short and plain statements of the claim”).)16
“The fundamental command of the Federal Rules of Civil Procedure is never to exalt
form over substance.” Amron v. Morgan Stanley Inv. Advisors Inc., 464 F.3d 338, 343 (2d Cir.
2006) (internal quotation marks omitted). When enforcing technical requirements on litigants,
The Court notes that much of the language in the “Argument” section of MPRHCC
Defendants’ Memorandum is nearly identical to the language in that section of Wallkill
Defendants’ earlier-filed Memorandum, although the former does not contain any apparent
attribution to the latter. (Compare MPRHCC Defs.’ Mem. 2–4, with Wallkill Defs.’ Mem. 3–4.)
Thus, the parentheticals following the citations to MPRHCC Defendants’ Memorandum in this
paragraph are meant literally.
16
41
courts are always mindful of the “jurisprudential preference for adjudication of cases on their
merits rather than on the basis of formalities.” Salahuddin, 861 F.2d at 42; see also Swierkiewicz
v. Sorema N.A., 534 U.S. 506, 514 (2002) (“The liberal notice pleading of Rule 8(a) is the
starting point of a simplified pleadings system, which was adopted to focus litigation on the
merits of a claim.”); cf. Wynder, 360 F.3d at 80 (noting that “form matters in our system of
adjudication,” but holding that the complaint “[was] not so lacking in form as to warrant
dismissal” (internal quotation marks omitted)). In this context, “dismissal of a pro se claim as
insufficiently pleaded is appropriate only in the most unsustainable of cases,” Boykin v.
KeyCorp, 521 F.3d 202, 216 (2d Cir. 2008), and it “‘is usually reserved for those cases in which
the complaint is so confused, ambiguous, vague, or otherwise unintelligible that its true
substance, if any, is well disguised,’” Kittay v. Kornstein, 230 F.3d 531, 541 (2d Cir. 2000)
(quoting Salahuddin, 861 F.2d at 42).
Instead of focusing on whether a complaint’s allegations are “short and plain” or “simple,
concise, and direct,” the Court asks whether the complaint gives “fair notice” to the defendants.
See Simmons v. Abruzzo, 49 F.3d 83, 86 (2d Cir. 1995) (“The function of pleadings under the
Federal Rules is to give fair notice of the claims asserted.” (internal quotation marks omitted));
see also Amron, 464 F.3d at 343 (“A complaint need only ‘give the defendant fair notice of what
the plaintiff’s claim is and the grounds upon which it rests.’” (quoting Swierkiewicz, 534 U.S. at
513)); Wynder, 360 F.3d at 79 (“The key to Rule 8(a)’s requirements is whether adequate notice
is given.”). “Fair notice is that which will enable the adverse party to answer and prepare for
trial, allow the application of res judicata, and identify the nature of the case so it may be
assigned the proper form of trial.” Simmons, 49 F.3d at 86 (internal quotation marks omitted).
Thus, courts will not dismiss a complaint that is arguably prolix or unintelligible unless the
42
complaint’s form or substance prevents the defendant from forming a “fair understanding” of the
plaintiff’s allegations or otherwise prejudices the defendant in responding to the complaint. See
Amron, 464 F.3d at 343 (“Dismissal is improper on technical pleading irregularities, which are
excusable as long as they neither undermine the purpose of notice pleading nor prejudice the
adverse party.” (internal quotation marks omitted)); see also Phillips v. Girdich, 408 F.3d 124,
130 (2d Cir. 2005) (“Although [the plaintiff’s] allegations were not neatly parsed and included a
great deal of irrelevant detail, that is not unusual from a pro se litigant. As long as his mistakes
do not prejudice his opponent, a plaintiff is entitled to trial on even a tenuous legal theory,
supported by the thinnest of evidence.” (citation omitted)); Kittay, 230 F.3d at 542 (finding that a
complaint satisfied Rule 8 where the “allegations [were] sufficiently clear to have provided [the
defendant] with a fair understanding of what the plaintiff [was] complaining about and to have
allowed [the defendant] to know whether there is a legal basis for recovery” (internal quotation
marks omitted)).
Here, the Second Amended Complaint satisfies Rule 8’s short-and-plain-statement
requirement with respect to some Defendants, but it fails to satisfy that requirement with respect
to others. With respect to the former, even when the Court previously found that the Complaint
violated Rule 8 and ordered Plaintiff to submit his Second Amended Complaint, it recognized
that “Plaintiff intends to pursue malicious prosecution, excessive force, failure to intervene, and
false imprisonment claims against the [Wallkill] Defendants.” (July 2013 Order 6.) The Court
ultimately found noncompliance with Rule 8 because the Amended Complaint “present[ed] a
great amount of disjointed and nonsequential information . . . about the various events giving rise
to Plaintiff’s arrests, . . . render[ing] it impossible to comprehend what actually happened to
[Plaintiff].” (Id.) However, in his Second Amended Complaint, Plaintiff cured some of the
43
deficiencies of the Amended Complaint when he organized his allegations chronologically and
grouped them into five sections corresponding with the five incidents that form the basis of his
claims. Plaintiff also added clarity to his exhibits, which he indexed and grouped into five
categories corresponding with the five incidents described in the body of the Complaint.
Although it is true that certain parts of the Second Amended Complaint are arguably
incomprehensible, and that the Complaint still contains a number of arguably confusing or
irrelevant paragraphs, the Court cannot say that the Second Amended Complaint fails to put
certain Defendants on fair notice of Plaintiff’s claims. See Wynder, 360 F.3d at 79 (“[The]
plaintiff’s submission is a model of neither clarity nor brevity, and we can sympathize with the
district court’s displeasure with it, but it is sufficient to put the defendants on fair notice.”);
Salahuddin, 861 F.2d at 43 (vacating a district court’s dismissal for failure to comply with Rule 8
where the complaint included “a surfeit of detail,” but where, “[d]espite its length,” the
complaint “[was] neither vague nor incomprehensible,” and where, by “err[ing] on the side of
detail rather than vagueness,” the complaint “[met] the notice requirement of the [Federal] Rules
[of Civil Procedure]”).
Specifically, from the Second Amended Complaint, the Court can discern a number of
claims, which, in an attempt to add clarity to Plaintiff’s allegations, the Court will group into two
categories. First, Plaintiff alleges a number of federal and state law claims against Wallkill
Defendants. The federal law claims, most of which arise under § 1983, include false-arrest and
false-imprisonment claims for all four of the arrests; Fourth Amendment claims related to the
March 30, August 20, and June 10 arrests; excessive-force claims for the March 30 and August
20 arrests; and Second Amendment claims for the March 30 and June 10 arrests. They also
include conspiracy and failure-to-intervene claims, under §§ 1985 and 1986, respectively, for all
44
four arrests. The state law claims arise either under New York constitutional law or tort law, and
they include malicious-prosecution, negligence, intentional-infliction-of-emotional-distress,
failure-to-supervise, and failure-to-train claims for all four arrests; assault and battery claims for
the March 30 and August 20 arrests; and constitutional claims equivalent to Plaintiff’s Second
and Fourth Amendment claims for the March 30, August 20, and June 10 arrests. Plaintiff also
appears to allege state law conspiracy claims with regard to all four arrests.17
Second, Plaintiff alleges a state law abuse-of-process claim with regard to the September
13 arrest and the guardianship petition filed on August 24 and argued on November 10. With
regard to these incidents, the Court notes that “[c]onspiracy to commit a tort is not an
independent cause of action” under New York law. See Aprea v. N.Y. State Bd. of Elections, 960
N.Y.S.2d 255, 257 (App. Div. 2013). “Allegations of conspiracy are permitted only to connect
the actions of separate defendants with an otherwise actionable tort,” Alexander & Alexander of
N.Y., Inc. v. Fritzen, 503 N.E.2d 102, 103 (N.Y. 1986), but “[t]he agreement itself is not
actionable,” Danahy v. Meese, 446 N.Y.S.2d 611, 614 (App. Div. 1981). Moreover, although
the Second Amended Complaint contains numerous allegations that various Defendants made
false statements or submitted falsified documents, these allegations alone do not support a
cognizable claim. Anghel v. N.Y. State Dep’t of Health, 947 F. Supp. 2d 284, 301 (E.D.N.Y.
2013) (“[T]he Plaintiff’s causes of action for perjury and subornation of perjury fail because in
the absence of statute [sic], no action lies to recover damages caused by perjury or subornation of
perjury, whether committed in the course of, or in connection with, a civil action or suit, a
17
As further proof that the Second Amended Complaint gives Defendants fair notice of
certain claims, Defendant Mannix interprets the Complaint to allege false-arrest, maliciousprosecution, excessive-force, and failure-to-intervene claims. (See Mannix Mem. 7.) The
Court’s interpretation is perhaps more liberal than Mannix’s, but it is nonetheless consistent.
45
criminal prosecution, or other proceeding, and whether the perjurer was a party to or a witness in
the action or proceeding.” (internal quotation marks omitted)); Retina Assocs. of Long Island,
P.C. v. Rosberger, 751 N.Y.S.2d 50, 52 (App. Div. 2002) (“No action lies to recover damages
for alleged subornation of perjury in a prior action or proceeding, except where the perjury is
part of a larger fraudulent scheme greater in scope than the issues determined in the prior
proceeding.” (internal quotation marks omitted)); Yalkowsky v. Shedler, 463 N.Y.S.2d 8, 9 (App.
Div. 1983) (“The factual gravamen of th[e] 70 page 336 paragraph complaint appears to consist
largely, if not entirely, of allegations of perjury and subornation of perjury in prior or still
pending judicial proceedings. Such allegations do not form the basis of a civil action for
damages.”); Alexander v. City of Peekskill, 436 N.Y.S.2d 327, 328 (App. Div. 1981) (“It is . . .
fundamental that at common law actions to recover damages in tort for perjury committed in a
prior action or proceeding do not lie.”). However, New York courts appear to recognize an
exception to the bar on civil actions for perjury “where the perjury is merely a means to the
accomplishment of a larger fraudulent scheme.” See Newin Corp. v. Hartford Accident & Indem.
Co., 333 N.E.2d 163, 166 (N.Y. 1975) (noting “the ancient rule that [New York] courts . . . will
not entertain civil actions for damages arising from alleged subornation of perjury in a prior civil
proceeding,” but also noting the “exception” that “[a] cause of action for fraud and deceit will
lie, even though perjury is present, where the perjury is merely a means to the accomplishment of
a larger fraudulent scheme”); see also Alexander, 436 N.Y.S.2d at 329 (same).18 The Court
18
The Court notes that its refusal to construe the Second Amended Complaint to state
claims for civil conspiracy and perjury is based on the ground that those claims are not
cognizable under New York law, not that the Complaint fails to state a claim that is otherwise
cognizable.
46
therefore finds that the Second Amended Complaint gives certain Defendants fair notice that
Plaintiff is alleging an abuse-of-process claim, and that the Complaint’s allegations of conspiracy
and perjury are part of that claim but do not allege independent claims.19
In construing the Second Amended Complaint to allege these claims, the Court takes no
position whatsoever on whether the Complaint meets other pleading requirements, such as Rule
8’s entitlement requirement and Rule 12(b)(6)’s requirement that a complaint state a claim for
relief. See Fed. R. Civ. P. 8(a)(2), 12(b)(6). Indeed, in the context of Defendants’ narrow Rule 8
19
At various points in his Second Amended Complaint, Plaintiff makes passing
references to §§ 1981, 1983, 1985, and 1986, asserting only that his “rights [were] violated.”
(See, e.g., Second Am. Compl. ¶¶ 36–37, 70; id. at unnumbered 82 (first index page for the
second section of exhibits, containing description of the attached August 20, 2010 arrest report).)
In some of these references, the Court can infer the specific right that Plaintiff alleges
Defendants violated. (See, e.g., id. ¶ 64 (alleging that his “rights [were] violated” under
§§ 1981, 1983, 1985, and 1986 in the specific context of alleging that Farmingham used
excessive force during the August 20 arrest and that he was falsely arrested).) However, in many
other references, the Second Amended Complaint is not clear as to which underlying
constitutional or statutory right Defendants supposedly violated, and the Court therefore cannot
infer the nature of Plaintiff’s claim. To the extent Plaintiff asserts §§ 1981, 1983, 1985, or 1986
violations without referring to facts that indicate what specific constitutional or statutory right
may have been violated, the Court finds that Defendants do not have fair notice of those claims.
Moreover, primarily in the context of alleging that multiple Defendants submitted false
statements, committed perjury, or falsified documents, Plaintiff makes a number of references to
a provision of the New York Penal Code that criminalizes, as a Class A misdemeanor, any
making of a “false statement.” (See, e.g., id. at unnumbered 82–84, 224–25 (index pages for the
second and fourth sections of exhibits) (citing N.Y. Penal Law § 210.45).) However, that
provision cannot form the basis of a civil claim, nor can it form the basis of a § 1983 or related
claim given that those statutes apply only to violations of federal constitutional rights. See
Peterec v. Hillard, No. 12-CV-3944, 2013 WL 5178328, at *8 (S.D.N.Y. Sept. 16, 2013)
(dismissing a false-statement claim based on New York Penal Law “because private citizens do
not have a private cause of action for criminal violations” (internal quotation marks omitted));
Grimes v. Fremont Gen. Corp., 933 F. Supp. 2d 584, 611 (S.D.N.Y. 2013) (dismissing forgery
claims under New York Penal Law because “[n]o private right of action exists to enforce [such]
provisions”); cf. Hammer v. Am. Kennel Club, 803 N.E.2d 766, 768 (N.Y. 2003) (“Where a penal
statute does not expressly confer a private right of action on individuals pursuing civil relief,
recovery under such a statute may be had only if a private right of action may be fairly
implied.”).
47
Motion, it would be inappropriate for the Court to do so given that the short-and-plain-statement
requirement is “extremely permissive” and is part of a rule that is meant “to lower the entry
barriers for federal plaintiffs.” Wynder, 360 F.3d at 77–78. The Court merely holds that,
because it can understand the Second Amended Complaint to allege certain claims, Defendants
have fair notice of those claims and the Complaint thereby satisfies the short-and-plain-statement
requirement.20 See Kittay, 230 F.3d at 541 (“[I]f the court underst[ands] the allegations
sufficiently to determine that they could state a claim for relief, the complaint has satisfied Rule
8.”); see also Wynder, 360 F.3d at 80 (“While we have insisted that complaints be concise
because unnecessary prolixity in a pleading places an unjustified burden on the court and the
party who must respond to it . . . , [the] plaintiff’s long submission does not overwhelm the
defendants’ ability to understand or to mount a defense.” (internal quotation marks omitted)).21
In its Memorandum of Law, Sholes & Miller argues that “the Court does not have the
duty to re-write the Complaint for the Plaintiff,” even when it construes Plaintiff’s pro se
submission. (Sholes & Miller Mem. 2.) In this Opinion, the Court does not re-write, but merely
interprets, the Second Amended Complaint to test whether the Court understands the Complaint
to allege certain claims such that Defendants have fair notice of those claims. Moreover, the
case Sholes & Miller cites to support its argument is inapposite, as it spoke to the lack of a “duty
to re-write” a pro se plaintiff’s complaint in the context of a Rule 12(b)(6) motion arguing that a
complaint “lacks an allegation regarding an element necessary to obtain relief.” See Pierce v.
Marano, No. 01-CV-3410, 2002 WL 1858772, at *4 (S.D.N.Y. Aug. 13, 2002) (internal
quotation marks omitted).
20
21
In contrast to the aforementioned claims, the Court notes that the Second Amended
Complaint references a number of other potential claims arising under state and federal law,
including “witness tampering,” retaliation against a witness, violation of the Nursing Home
Reform Act of 1987, racial discrimination, and a First Amendment claim. (See Second Am.
Compl. ¶¶ 7–12, 15–17, 26, 34, 82, 116.) The Court finds that, with regard to these claims and
others not specifically identified by the Court, the Second Amended Complaint fails to meet
Rule 8’s fair notice requirement because it does not allege facts that specifically support these
claims. For example, the Complaint does not identify a witness against whom Defendants
retaliated or with whom Defendants tampered, it does not explain how Defendants violated the
Nursing Home Reform Act or cite a provision of that Act that could serve as the basis for a
claim, it does not specify how Defendants discriminated against Plaintiff based on his race, and it
48
But identifying the claims does not end the matter, because to satisfy Rule 8, each
Defendant must have fair notice of the claim or claims alleged against it. With regard to the
claims against Wallkill Defendants, the Second Amended Complaint includes allegations
regarding Farmingham’s role in the March 30 and August 20 arrests, Dewey’s role in the March
30 arrest, Kleveno’s role in the August 20 arrest, Gulick’s, Procak’s, and Mannix’s role in the
June 10 arrest, and Solan’s role in the September 13 arrest.22 It also alleges that Hertman, as
Chief of Police, and Spano, as Deputy Chief of Police, are liable for their roles in failing to
supervise, monitor, or investigate those individuals. Finally, it alleges that Wallkill itself is liable
for the actions of these individuals.
With regard to the other claims, it alleges that Brewster and Reyes gave false statements
to police, resulting in Plaintiff’s arrest on June 10; that Masterson, Brewster, Small, and
Maniscalco gave false statements to police, resulting in Plaintiff’s arrest on September 13; that
does not explain how Defendants violated Plaintiff’s First Amendment rights. The Court thus
dismisses these claims without leave to amend given Plaintiff’s previous opportunities to raise
these claims in his Complaint and his Amended Complaint. See Salahuddin, 861 F.2d at 42
(“We do not mean to imply that the court has no power to dismiss a prolix complaint without
leave to amend in extraordinary circumstances, such as where leave to amend has previously
been given and the successive pleadings remain prolix and unintelligible, or where the substance
of the claim pleaded is frivolous on its face.” (citations omitted)).
Some of the Second Amended Complaint’s allegations against these individuals are
more specific than others. For example, with regard to Solan, Plaintiff appears to allege only
that he was the officer who falsely arrested him on September 13, 2011. However, with regard
to Gulick, Dewey, Kleveno, and Farmingham, he alleges not only that they falsely arrested and
falsely imprisoned him, but that they violated his Fourth Amendment rights to be free from
unreasonable searches and seizures—by, for example, illegally searching his laptop, his
refrigerator, and his person (via strip searches)—and, with regard to Dewey and Gulick, his
Second Amendment right to possess a firearm. Moreover, Plaintiff specifically alleges that
Farmingham used excessive force against him during the March 30 and August 20 arrests, and
that Dewey and Kleveno failed to intervene during those incidents.
22
49
Masterson, Forman, Small, Farmingham, and Crain gave false statements under oath at the
November 10 hearing, resulting in Plaintiff losing certain rights related to his mother; that
Murphy coached Crain to give the false statements; that Sholes & Miller submitted falsified
documents and filed a malicious claim involving Plaintiff on August 24 and November 10; and
that all of these individual Defendants conspired against Plaintiff throughout the course of the
June 10, September 13, and November 10 incidents.23 These Defendants, therefore, have fair
notice that the abuse-of-process and conspiracy claims are alleged against them.
With regard to other Defendants not yet named in the Court’s analysis of the Second
Amended Complaint, the Court finds that the Complaint does not give those Defendants fair
notice of any claims alleged against them. Defendants Dawn, Tiffany, and Yvette are mentioned
multiple times in the Second Amended Complaint, but only as individuals who were present
during the June 10 incident, and not as individuals who did anything to harm Plaintiff. By
contrast, Defendants Conklin, Labuda, Lacatena, Kammarada, McLymore, Belgiovene,
Moskowitz, Leo, and Guzman are hardly mentioned at all—and, when they are mentioned, it is
within the context of an assertion of liability without any explanation as to their role in harming
Plaintiff.24 Given that many of these Defendants’ names appear in the exhibits attached to the
As with Plaintiff’s other allegations, some of the allegations against the Defendants
involved in these claims are more specific than others. For example, the Complaint does not
appear to speculate as to why Crain (from APS) and Farmingham (from Wallkill) were involved
in the alleged conspiracy. However, with regard to MPRHCC Defendants (and Sholes & Miller,
acting on their behalf), Plaintiff speculates that they conspired against him in retaliation for his
successful efforts to help his friend, Brent Borgmann, to win a case in small claims court against
MPRHCC involving allegations of nursing-home abuse. (See Second Am. Compl. ¶¶ 36, 84.)
23
The Second Amended Complaint does allege that Guzman was the “dispatcher” who
“called” Farmingham and Kleveno to Plaintiff’s apartment on August 20, but this lone allegation
is insufficient to give Guzman fair notice of any claims raised against her. Moreover, the Court
has already dismissed all claims against Guzman for failure to serve.
24
50
Second Amended Complaint or even in the allegations in the body of the Complaint, it is
certainly possible that they are in some way involved with this case. However, whether Plaintiff
intends to depose these individuals or call these witnesses at trial, he may not pursue any claims
against them given the lack of fair notice of those claims in his Second Amended Complaint.25
The Court therefore dismisses the claims against these Defendants.26
C. Rule 12(b)(6)
In addition to moving to dismiss the Second Amended Complaint for failure to meet Rule
8’s short-and-plain-statement requirement, Defendant Mannix moves to dismiss it for failure to
25
The Court notes that, in his Amended Complaint, Plaintiff referred to certain
Defendants as “potential witnesse[s] [as to] what happened,” in contrast to others whom he
alleged were “involved in [a] conspiracy.” (See Am. Compl. 1–4 (naming, as potential
witnesses, Tiffany, Yvette, Lacatena, Gulick, and Mannix).) At the May 21, 2014 conference,
the Court informed Plaintiff that even if he does not name certain individuals as Defendants, he
may be able to call them as witnesses as part of his case.
Defendants Conklin, Labuda, and Lacatena were named in Plaintiff’s Amended
Complaint, which the Court dismissed with leave to amend. (See Am. Compl.; July 2013 Order.)
In that Order, the Court advised Plaintiff that he would have one final opportunity to amend his
Complaint, (July 2013 Order 7), and that in doing so, he “should not name [an] individual as a
Defendant” if he could not “clearly allege facts showing that [that] individual Defendant was
personally involved in the wrongdoing,” (Id. at 8.) Because the Court has already granted
Plaintiff an opportunity to amend as to these individuals but he has failed to comply with the
Court’s order, the Court dismisses the claims against these Defendants without leave to amend.
See Salahuddin, 861 F.2d at 42.
By contrast, Defendants Kammarada, McLymore, Belgiovene, Moskowitz, and Leo were
not named in the Amended Complaint, and therefore Plaintiff has not had an opportunity to
submit an amended complaint alleging personal wrongdoing with regard to these Defendants.
Therefore, the Court dismisses the claims against these Defendants, but grants Plaintiff leave to
amend. In doing so, however, Plaintiff should be mindful of the Court’s order, in this Opinion,
directing him to serve Defendants Belgiovene and Moskowitz within the required timeframe.
Finally, with regard to Guzman, the Court has dismissed the claims against her for failure
to serve. The dismissal under Rule 8, therefore, is in the alternative, and the Court need not
address whether Plaintiff has leave to amend to correct the deficiencies with regard to his Rule 8
obligations.
26
51
state a claim under Rule 12(b)(6). Orange County Defendants also move to dismiss pursuant to
that Rule, although for different reasons.
In contrast to the other Defendants’ Motions, Mannix’s and Orange County Defendants’
Motions implicate the part of Rule 8 containing “a plaintiff’s obligation to provide the ‘grounds’
of his ‘entitle[ment] to relief,’” which “requires more than labels and conclusions,” and more
than “a formulaic recitation of the elements of a cause of action[ ].” Twombly, 550 U.S. at 555
(quoting Fed. R. Civ. P. 8(a)(2)). Indeed, “the pleading standard Rule 8 announces . . . demands
more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at
678. “Nor does a complaint suffice if it tenders naked assertions devoid of further factual
enhancement.” Id. (alterations and internal quotation marks omitted). Instead, a complaint’s
“[f]actual allegations must be enough to raise a right to relief above the speculative level.”
Twombly, 550 U.S. at 555. Although “once a claim has been stated adequately, it may be
supported by showing any set of facts consistent with the allegations in the complaint,” id. at
563, and a plaintiff must allege “only enough facts to state a claim to relief that is plausible on its
face,” id. at 570, if a plaintiff has not “nudged [his or her] claim[] across the line from
conceivable to plausible, the[] complaint must be dismissed,” id.; see also Iqbal, 556 U.S. at 679
(“Determining whether a complaint states a plausible claim for relief will . . . be a contextspecific task that requires the reviewing court to draw on its judicial experience and common
sense. But where the well-pleaded facts do not permit the court to infer more than the mere
possibility of misconduct, the complaint has alleged—but it has not ‘show[n]’—‘that the pleader
is entitled to relief.’” (citation omitted) (second alteration in original) (quoting Fed. R. Civ. P.
8(a)(2))); id. at 678–79 (“Rule 8 marks a notable and generous departure from the hyper-
52
technical, code-pleading regime of a prior era, but it does not unlock the doors of discovery for a
plaintiff armed with nothing more than conclusions.”).
“[W]hen ruling on a defendant's motion to dismiss, a judge must accept as true all of the
factual allegations contained in the complaint.” Erickson, 551 U.S. at 94; see also Nielsen v.
Rabin, 746 F.3d 58, 62 (2d Cir. 2014) (“In addressing the sufficiency of a complaint we accept
as true all factual allegations . . . .” (internal quotation marks omitted)); Aegis Ins. Servs., Inc. v.
7 World Trade Co., 737 F.3d 166, 176 (2d Cir. 2013) (“In reviewing a dismissal pursuant to Rule
12(b)(6), we . . . accept all factual allegations in the complaint as true . . . .” (alterations and
internal quotation marks omitted)). Further, “[f]or the purpose of resolving [a] motion to
dismiss, the Court . . . draw[s] all reasonable inferences in favor of the plaintiff.” Daniel v. T &
M Prot. Res., Inc., 992 F. Supp. 2d 302, 304 n.1 (S.D.N.Y. 2014) (citing Koch v. Christie’s Int'l
PLC, 699 F.3d 141, 145 (2d Cir. 2012)). Additionally, “[i]n ruling on a 12(b)(6) motion, . . . a
court may consider the complaint[,] . . . any written instrument attached to the complaint as an
exhibit[,] or any statements or documents incorporated in it by reference,” as well as “matters of
which judicial notice may be taken, and documents either in plaintiffs' possession or of which
plaintiffs had knowledge and relied on in bringing suit.” Kalyanaram v. Am. Ass'n of Univ.
Professors at N.Y. Inst. of Tech., Inc., 742 F.3d 42, 44 n.1 (2d Cir. 2014) (some alterations,
citation, and internal quotation marks omitted); see also Leonard F. v. Isr. Disc. Bank of N.Y.,
199 F.3d 99, 107 (2d Cir. 1999) (“In adjudicating a Rule 12(b)(6) motion, a district court must
confine its consideration to facts stated on the face of the complaint, in documents appended to
the complaint or incorporated in the complaint by reference, and to matters of which judicial
notice may be taken.” (internal quotation marks omitted)); Hendrix v. City of New York, No. 12–
CV–5011, 2013 WL 6835168, at *2 (E.D.N.Y. Dec. 20, 2013) (same).
53
1. Defendant Mannix
At the outset, Mannix argues that all of the claims against him should be dismissed for
failure to allege that he was personally involved in any deprivation of Plaintiff’s rights or in any
actions resulting in harm to Plaintiff. (See Def.’s Mem. of Law in Supp. of His Mot. To Dismiss
the Second Am. Compl. (“Mannix Mem.”) 7 (Dkt. No. 106) (“The Second Amended Complaint,
and all of the paperwork attached thereto, do not allege that Defendant Mannix interacted with
Plaintiff in any way, much less committed a constitutional violation against him.”).) Having
reviewed the Second Amended Complaint, the Court agrees. Aside from listing Mannix in the
caption and in certain headings, the Second Amended Complaint refers to Mannix a total of nine
times, at least three of which are duplicative of other references. (See Second Am. Compl.
¶¶ 88, 102–03.) More importantly, every single reference to Mannix alleges nothing more than
that he was “present,” along with four other Defendants, at the scene of Plaintiff’s arrest on June
10, or that he “accompanied” Gulick when Gulick made the arrest. (See id.) This is insufficient
to meet Plaintiff’s burden of stating a plausible claim for relief, which requires that Plaintiff
allege that Mannix was personally involved in the deprivation of his rights, with respect to
Plaintiff’s § 1983 claims, see Grullon v. City of New Haven, 720 F.3d 133, 138 (2d Cir. 2013)
(“It is well settled that, in order to establish a defendant’s individual liability in a suit brought
under § 1983, a plaintiff must show . . . the defendant’s personal involvement in the alleged
constitutional deprivation.”); Lovick v. Schriro, No. 12-CV-7419, 2014 WL 3778184, at *3
(S.D.N.Y. July 25, 2014) (dismissing § 1983 claims where the complaint contained “no
allegations whatsoever indicating that [the defendants] were personally involved in the purported
violations” of the plaintiff’s constitutional rights); cf. Iqbal, 556 U.S. at 676 (“Because vicarious
liability is inapplicable to . . . § 1983 suits, a plaintiff must plead that each Government-official
54
defendant, through the official’s own individual actions, has violated the Constitution.”), and that
Mannix caused Plaintiff’s injury, with respect to Plaintiff’s state claims, see Mayzick v. Cnty. of
Nassau, — F. Supp. 2d —, 2014 WL 3673094, at *3 (E.D.N.Y. July 23, 2014) (noting that a
state law malicious-prosecution claim has “substantially the same” elements as a similar claim
brought under § 1983); Frey v. City of New York, No. 12-CV-2074, 2013 WL 706051, at *3
(S.D.N.Y. Feb. 27, 2013) (noting the requirement of pleading a “causal connection between the
[defendant’s] outrageous conduct and [the plaintiff’s] injury” in the context of an intentionalinfliction-of-emotional-distress claim); Oskar v. IDS Property Cas. Ins. Co., No. 09-CV-4516,
2011 WL 1103905, at *6 (E.D.N.Y. Mar. 23, 2011) (noting a plaintiff’s burden to plead that “the
defendant breached [a] duty [of care]” in a negligence action). The Court therefore dismisses
these claims.
Similarly, with respect to Plaintiff’s federal and state law conspiracy claims, his
barebones allegations of Mannix’s “presence” and “accompaniment” are insufficient to plead a
plausible conspiracy claim. See Webb v. Goord, 340 F.3d 105, 110 (2d Cir. 2003) (“In order to
maintain an action under [§] 1985, a plaintiff must provide some factual basis supporting a
meeting of the minds, such that defendants entered into an agreement, express or tacit, to achieve
the unlawful end.” (internal quotation marks omitted)); Rodriguez v. Winski, 973 F. Supp. 2d
411, 429 (S.D.N.Y. 2013) (dismissing conspiracy claims where the complaint “fail[ed] to plead
sufficient facts” because it “merely ma[de] conclusory allegations of a conspiratorial agreement
and attempt[ed] to generate suspicion, without more”); see also Betts v. Shearman, 751 F.3d 78,
84 n.1 (2d Cir. 2014) (affirming a dismissal for “fail[ure] to sufficiently plead a conspiracy . . .
because the pleading was conclusory”). Plaintiff therefore also fails to plead a failure-tointervene claim under § 1986. See Brown v. City of Oneonta, N.Y., 221 F.3d 329, 341 (2d Cir.
55
1999) (“[A] § 1986 claim must be predicated on a valid § 1985 claim . . . .” (internal quotation
marks omitted)); Johnson v. City of New York, 669 F. Supp. 2d 444, 452 (S.D.N.Y. 2009)
(same). The Court therefore dismisses these claims as well.
In its July 2013 Order dismissing the Amended Complaint, the Court granted Plaintiff
“one more opportunity to file an Amended Complaint,” and it informed Plaintiff that he “should
be aware that this may be his final opportunity to amend.” (July 2013 Order 7.) Moreover, it
instructed him to “specifically allege, . . . for each named Defendant, what that Defendant did to
be personally involved in the violation of Plaintiff’s constitutional rights.” (Id. at 8.) It further
advised him that “[i]f [he] [did] not comply with [that] instruction, his pleading [might] be
dismissed as against any Defendant whose personal involvement cannot be discerned from
reading the pleading, and the Court [might] not grant [him] another chance to amend.” (Id.) At
the May 2014 premotion conference, the Court repeated this warning to Plaintiff and offered him
a final opportunity to submit an amended complaint before Defendants submitted their motions,
but Plaintiff indicated his intent to stand behind the Second Amended Complaint. Therefore,
because Plaintiff has failed to comply with the Court’s instruction with regard to Defendant
Mannix, the Court will not grant Plaintiff leave to amend with respect to that Defendant. See
Rullan v. N.Y.C. Sanitation Dep’t, No. 13-CV-5154, 2014 WL 2011771, at *8 n.4 (S.D.N.Y.
May 16, 2014) (denying pro se plaintiff leave to amend where the plaintiff “failed to provide the
details ordered by the [c]ourt in permitting the plaintiff to file [an] [a]mended [c]omplaint” and
where he “[had] not sought to file another amended complaint or proffered what he would state
in another amended complaint”); see also Coleman v. brokersXpress, LLC, 375 F. App’x 136,
137 (2d Cir. 2010) (affirming dismissal without leave to amend for pro se plaintiff where “[t]he
district court afforded [the plaintiff] one opportunity to amend the complaint” but the plaintiff
56
“made no specific showing as to how he would cure the defects that persisted if given a second
opportunity to amend”); Jendrzejczak v. Williams, No. 13-CV-1239, 2014 WL 2533041, at *1
(N.D.N.Y. June 5, 2014) (noting that “affording . . . an opportunity to amend is not required
where—as here—the pro se plaintiff has already been afforded the opportunity to amend his
claims”).
2. Orange County Defendants
Orange County Defendants move to dismiss the Complaint on the grounds that certain
claims are time barred, that the individual Orange County Defendants are immune from suit, and
that the Second Amended Complaint fails to allege any Defendant’s personal involvement.27 As
a reminder, the Court has construed Plaintiff’s Second Amended Complaint to allege claims
against Crain and Murphy (and, by extension, Orange County) that relate only to those
Defendants’ participation in the November 10 guardianship petition hearing.28 Moreover, with
27
Orange County Defendants move only on behalf of Orange County, Murphy, Crain,
and Lacatena because, when the Motion was filed, Plaintiff had not yet served Leo and Labuda.
Plaintiff served Leo on Sept. 4, 2014. (See Dkt. No. 137 (Process Receipt & Return, filed Sept.
10, 2014).) Moreover, because the Court has already dismissed Plaintiff’s claims against
Lacatena for lack of fair notice under Rule 8, it considers Orange County Defendants’ Motion
only as it applies to Orange County, Murphy, and Crain.
The Second Amended Complaint does allege that Crain was present at Plaintiff’s
August 20 arrest. (See Second Am. Compl. ¶ 65.) However, the Court has already found that
this allegation is insufficient to give Crain fair notice of any claims alleged against her in
connection with the August 20 arrest, and it has therefore dismissed any claims against Crain in
connection with that incident on that ground. For this reason, the Court does not address Orange
County Defendants’ statute-of-limitations argument, which applies only to any claims arising out
of the March 30 and August 20 arrests. (See Orange County Defs.’ Mem. 6.)
The Court further notes that Plaintiff appears to allege that Crain kept Plaintiff’s key to
his home for 44 days, but he does not appear to allege any claims for relief based on this
allegation. (See Second Am. Compl. ¶ 65.) And, in the alternative, the Court would dismiss any
claims against Crain related to her role in the August 20 arrest (and any related claims against
other Orange County Defendants) for the same reason it dismissed similar claims against
28
57
regard to that hearing, it has construed the Complaint to allege only an abuse-of-process claim
under state law.
In the context of those claims, the Complaint alleges only that Crain “lied under oath” at
the November 10 hearing. (See Second Am. Compl. ¶ 106.) It also alleges that Murphy was
Crain’s supervisor, that he “had a malicious [intent]” that was directed at Plaintiff at the time of
the hearing, (see id.), and that he “coach[ed] . . . Crain [on] what to say [at the hearing] so they
[could] get what they want[ed]” at the hearing, (see id. at unnumbered 241 (first index page of
the fifth section of exhibits, heading)). And it further alleges that Crain, Sholes, and other
individuals who testified at the hearing “worked . . . together” to obtain a certain outcome. (See
id. at unnumbered 242 (second index page of the fifth section of exhibits, description of exhibit
5.1).)
With regard to what Crain actually said at the November 10 hearing, the relevant portion
of the hearing transcript is attached as an exhibit to the Second Amended Complaint:
Q. [O]nce you got [to Plaintiff’s apartment], what did you find?
A. I found [Plaintiff’s mother] in her bedroom lying on the bed. She was in a night
gown. And she appeared to have some bruising on her face, on her arms. And the
paramedic had pointed out that one of her ankles was very bruised.
So while I was there I decided to move the blanket and that is when I noticed that
her other leg was still tied to the bed.
....
Q. And how was her leg tied?
A. It was with a long, like a plastic bag that appeared to be tied a couple times.
And it was wrapped around her ankle and then tied to the hospital bed bar.
Mannix, all of which were based on his mere presence at the June 10 arrest—namely, that
Plaintiff does not sufficiently allege Crain’s personal involvement.
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....
Q. What do you recognize [an exhibit] to be?
A. The rope that bound [Plaintiff’s mother’s] leg to the bed.
(Hr’g Tr. 51–53.) Plaintiff alleges that, in this part of her testimony—and, specifically, when she
stated that she “found [Plaintiff’s mother] in her bedroom lying on the bed,” that she noticed that
Plaintiff’s mother’s “leg was . . . tied to the bed,” and that she recognized an exhibit as “[t]he
rope that bound [Plaintiff’s mother’s] leg to the bed,” (id. (emphasis added))—Crain lied under
oath because these statements were inconsistent with the Incident Report for the August 20
incident, which quoted Plaintiff as telling the police, “I tie [sic] her legs up,” (id. at unnumbered
84 (third index page for second section of exhibits, descriptions for exhibits 2.8-3–5 (quoting id.
Ex. 2.0))).
To plead a claim of abuse of process under New York law, Plaintiff “must plead . . . that
there was (1) regularly issued civil process, (2) an intent to do harm without excuse or
justification, (3) use of the process in a perverted manner to obtain a collateral objective, and (4)
actual or special damages.” Mosdos Chofetz Chaim, Inc. v. RBS Citizens, N.A., — F. Supp. 2d
—, 2014 WL 1612988, at *15 (S.D.N.Y. Mar. 30, 2014) (alterations and internal quotation
marks omitted); see also D’Amico v. Corr. Med. Care, Inc., — N.Y.S.2d —, 2014 WL 3882627,
at *3 (App. Div. Aug. 8, 2014) (same). Here, Plaintiff’s allegation concerning Crain’s testimony
does not satisfy the third element. Although Plaintiff alleges that Crain “lied under oath,” he
does not allege a collateral objective that her alleged lying served. (Second Am. Compl. ¶ 106.)
Plaintiff also generally alleges that Murphy “had a malicious [intent]” and that he “coach[ed] . . .
Crain [on] what to say [at the hearing] so they [could] get what they want[ed].” (Id. ¶ 106,
unnumbered 241). However, “a malicious motive alone does not give rise to a cause of action
for abuse of process” under New York law. Savino v. City of New York, 331 F.3d 63, 77 (2d Cir.
59
2003) (alterations and internal quotation marks omitted) (quoting Curiano v. Suozzi, 469 N.E.2d
1324, 1326 (N.Y. 1984)); see also Allen v. Antal, No. 12-CV-8024, 2014 WL 2526977, at *16
(S.D.N.Y. Mar. 13, 2014) (“Neither retaliation nor a malicious motive . . . is a sufficient
collateral objective to satisfy that element of a cognizable malicious abuse of process claim.”
(internal quotation marks omitted)); Shakima O. v. Westchester Cnty., No. 12-CV-9468, 2014
WL 521608, at *3 (S.D.N.Y. Feb. 10, 2014) (“The allegation that defendants’ actions arose out
of personal animosity towards plaintiffs is not sufficient to state a claim for abuse of process,
because personal animosity is a collateral motive, not a collateral purpose.” (alterations and
internal quotation marks omitted)). Moreover, to the extent the Second Amended Complaint
asserts that Crain had a collateral objective (i.e., that she was trying to “get what [she] want[ed],”
(Second Am. Compl. at unnumbered 241), the allegations are conclusory and the Court need not
consider them in evaluating Defendants’ Motion. See Burroughs v. Dorn, No. 13-CV-3609,
2013 WL 3820673, at *6 (E.D.N.Y. July 22, 2013) (dismissing an abuse-of-process claim where
the plaintiff “offer[ed] nothing more than conclusory statements as to [the] allegation that [a
defendant] intended to do harm without justification”); Jovanovic v. City of New York, No. 04CV-8437, 2006 WL 2411541, at *12 (S.D.N.Y. Aug. 17, 2006) (dismissing an abuse-of-process
claim where the plaintiff “allege[d] a collateral objective only in the most conclusory fashion,
failing to provide any basis for assessing [a defendant’s] motive for the [use of process]”); see
also Iqbal, 556 U.S. at 679 (“While legal conclusions can provide the framework of a complaint,
they must be supported by factual allegations.”); Twombly, 550 U.S. at 555 (“[O]n a motion to
dismiss, courts are not bound to accept as true a legal conclusion couched as a factual
allegation[.]” (internal quotation marks omitted)). Therefore, the Court dismisses these claims.
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III. CONCLUSION
In light of the foregoing, the Court holds:
(1) that all claims against Defendants New York State, Yvette, Tiffany, and
Guzman are dismissed without prejudice for failure to serve;
(2) that all claims against Defendants Conklin, Labuda, and Lacatena are dismissed
with prejudice and without leave to amend for failure to comply with Rule 8’s shortand-plain-statement requirement;
(3) that all claims against Defendants Kammarada, McLymore, Belgiovene,
Moskowitz, and Leo are dismissed without prejudice and with leave to amend for
failure to comply with Rule 8’s short-and-plain-statement requirement;
(4) that the Rule 8 Motions filed by Wallkill Defendants, MPRHCC Defendants,
and Sholes & Miller are denied with respect to any other Defendant;
(5) that the Court’s denial of the Rule 8 Motions is without prejudice to Defendants
to file another Rule 12(b)(6) motion to dismiss for failure to state a claim;
(6) that all claims against Defendant Mannix are dismissed with prejudice and
without leave to amend for failure to state a claim;
(7) that all claims against Defendants Orange County, Murphy, and Crain are
dismissed without prejudice and with leave to amend for failure to state a claim;
and
In deciding whether to file an amended complaint with respect to Defendants
Kammarada, McLymore, Belgiovene, Moskowitz, Leo, Murphy, Crain, and Orange County,
Plaintiff should be aware that this likely will be his final opportunity to submit an amended
complaint. Moreover, if Plaintiff does not comply with the Court’s instruction that he allege a
Defendants’ personal involvement, the Court will dismiss his claims against that Defendant
without leave to amend.
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Finally, in the interest of clarity, the Court directs Plaintiff to submit an amended
complaint that contains claims and allegations only against these Defendants. 29 If Plaintiff
wishes to attach new exhibits to the Third Amended Complaint, he may do so, but those exhibits
must be relevant to his allegations against the specific Defendants named in the Third Amended
Complaint. Plaintiff has 30 days from the date of this Order to submit the Third Amended
Complaint. The Clerk ofthe Court is respectfully directed to terminate the pending motions.
(Dkt. Nos. 39, 105, 108, 112, 119.)
SO ORDERED.
September :JUj, 2014
White Plain7,"New York
Dated:
29
Plaintiffsubmitted a "Motion for Discovery" to the Court, dated August 19,2014,
requesting, inter alia, that he be permitted to add claims against two additional DefendantsDavid Jolly and Dr. Mrilini M. Yeddu-to his Complaint. (See Dkt. No. [TK].). This Opinion
does not consider Plaintiffs claims against these individuals. If Plaintiff wishes to include
claims and allegations against these individuals in his Third Amended Complaint, he may do so.
62
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