Humbach v. Canon et al
Filing
81
OPINION & ORDER re: 56 MOTION to Dismiss filed by D.P. Corrado, Daniel Canon, Ernesto Giraldez, Chiappone, James M. Dumser, 78 FIRST MOTION to Dismiss plaintiff's complaint filed by James Infantino, 70 MOTION to Dismiss the Plaintiff's Complaint filed by Joseph Kearns, Deborah Lenaghan, Debbie Alspach, Barbara Zanato, Marisa Boniella, Lisa Tighe, Eileen Kelly, Michael Kirsch, Kathleen Campanaro. For the reasons stated above, defendant I nfantinos motion to dismiss is GRANTED in its entirety and all claims against Infantino are hereby dismissed. The Clerk of Court is respectfully requested to terminate James Infantino from the action, and to terminate the motion at docket number 78. Likewise, the motion of defendants Michael Kirsch, Barbara Zanato, Debbie Alspach, Kathleen Campanaro, Deborah Lenaghan, Eileen Kelly, Lisa Tighe, Marisa Boniella, and Joseph Kearns is GRANTED in its entirety, and all claims against those defendants are hereby dismissed. The Clerk of Court is respectfully requested to terminate those defendants from the action, and to terminate the motion at docket number 70. Finally, the motion of defendants Daniel Canon, James M. Dumser, Robert Chiappone, D.P. Corrado, and Ernesto Giraldez is GRANTED in part, dismissing the malicious prosecution and entrapment claims against them, and DENIED in part, permitting the excessive force and false arrest claims to proceed. The Clerk of Court is respectfully requ ested to terminate the motion at docket number 56. The Police Defendants shall serve and file their answer to the complaint on or before December 3, 2014. SO ORDERED. (Signed by Judge Nelson Stephen Roman on 11/12/2014) Copies Mailed By Chambers. (mml)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---------------------------------------------------------------)(
MIRIAM RUMBACH,
Plaintiff,
13-CV-2512 (NSR)
-againstOPINION & ORDER
DANIEL CANON et al.,
Defendants.
---------------------------------------------------------------)(
NELSON S. ROMAN, United States District Judge
Plaintiff Miriam Rumbach ("Plaintiff') commenced this action by complaint filed April
12, 2013 (dkt. no. 1), alleging violations of Plaintiffs constitutional rights under 42 U.S.C. §
1983. Plaintiffasse1ts claims against three classes of defendant: (1) James Infantino
("Infantino"); (2) Michael Kirsch, Barbara Zanato, Debbie Alspach, Kathleen Campanaro,
Deborah Lenaghan, Eileen Kelly, Lisa Tighe, Marisa Boniella, and Joseph Kearns (the "District
Defendants"); and (3) Daniel Canon, James M. Dumser, Robe1t Chiappone, D.P. Corrado, and
Ernesto Giraldez (the "Police Defendants").
Infantino is Plaintiffs ex-husband. The District Defendants are employees of the
Chappaqua School District. The Police Defendants are employees of the Town of New Castle
Police Depaitment. Each of the three classes of defendant now moves to dismiss the complaint,
and those three motions are consolidated for purposes of this opinion and order. The Comt
considers the three motions to be opposed, but notes that Plaintiff has not filed any opposition
brief directly addressing the motions.
For the reasons explained below, the Court dismisses the action in its entirety as against
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Infantino and the District Defendants, and partially dismisses the action as against the Police
Defendants.
I. COMPLAINT & BACKGROUND
Plaintiff contends that on April 21, 2010, she was lawfully present at the Douglas
Grafflin Elementary School in Chappaqua, New York, a school which her son, Matthew J.
Infantino, attends. Complaint (“Compl.”) (dkt. no. 1) at 5. Plaintiff allegedly was invited to a
bagel breakfast and book fair on campus. Id. Plaintiff contends she arrived at approximately
8:00 a.m., received a pass to the school, and was directed to the place where the breakfast and
book fair were being held. Id.
After finishing a visit to the ladies’ room, Plaintiff contends, one or more police officers
confronted her, beat her, and injured her, to a point where she later needed ice packs for bruising.
Id. The complaint also contains an allegation—apparently directed at the District Defendants—
that certain false statements concerning Plaintiff were made to the Police Defendants. See id.
Plaintiff was arrested that day and ultimately prosecuted for misdemeanor criminal
trespass, false personation, and resisting arrest, in violation of the New York Penal Law. The
public record suggests the backdrop for the trespass charge was a supervised visitation order
(N.Y. Sup. Ct. N.Y. Cnty. dkt. no. 309090/2007), which prohibited Plaintiff from visiting her son
without supervision.
With the instant action, Plaintiff seeks compensatory and punitive damages for her
alleged mistreatment on April 21, 2010 and for the ensuing criminal prosecution. That
prosecution ended with an August 5, 2010 adjournment in contemplation of dismissal (“ACD”).
During the colloquy preceding the ACD, Plaintiff was prompted to recant categorically “any and
all” allegations she had made on the record at a May 13, 2010 arraignment, concerning the
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purported mistreatment on April 21, 2010. See Svensson Affidavit (“Svensson Aff.”) (dkt no.
57), Ex. D, H.
Construed leniently, Plaintiff’s complaint asserts four interrelated Section 1983 claims:
(1) excessive force; (2) malicious prosecution; (3) false arrest; and (4) entrapment. In support of
these claims, Plaintiff enclosed various materials with her initial filing. The materials include an
email invitation to the breakfast and book fair, a visitor’s pass to the school, and a number of
police reports memorializing witness statements made to the police on April 21, 2010. No party
has moved to strike the surplus materials or to dismiss the complaint pursuant to Federal Rule of
Civil Procedure 8(a)(2) (requiring a “short and plain statement of the claim”). Instead, all
parties, including the Police Defendants, treat the materials as incorporated by reference into the
complaint. The Court likewise will consider the totality of Plaintiff’s submission, in evaluating
the asserted bases for dismissal. See Cleveland v. Caplaw Enters., 448 F.3d 518, 521 (2d Cir.
2006) (on a motion to dismiss, the court may consider the pleadings, documents incorporated by
reference in or attached to the pleadings, and matters of public record of which judicial notice
may be taken); see also Pabon v. Wright, 459 F.3d 241, 248 (2d Cir. 2006) (pleadings from a pro
se plaintiff are to be accorded leniency and construed to raise the strongest claims and arguments
they suggest).
II. MOTION TO DISMISS STANDARD
On a motion to dismiss for “failure to state a claim upon which relief can be granted,”
Rule 12(b)(6) dismissal is proper unless the complaint “contain[s] sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); accord
Hayden v. Paterson, 594 F.3d 150, 160 (2d Cir. 2010). “Although for the purposes of a motion
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to dismiss [a court] must take all of the factual allegations in the complaint as true, [it is] ‘not
bound to accept as true a legal conclusion couched as a factual allegation.’” Iqbal, 556 U.S. at
678 (quoting Twombly, 550 U.S. at 555). “While legal conclusions can provide the framework
of a complaint, they must be supported by factual allegations.” Id. at 679.
When there are well-pleaded factual allegations in the complaint, “a court should assume
their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Id.
A claim is facially plausible when the factual content pleaded allows a court “to draw a
reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 678.
Ultimately, determining whether a complaint states a facially plausible claim upon which relief
may be granted must be “a context-specific task that requires the reviewing court to draw on its
judicial experience and common sense.” Id. at 679.
III. DEFENDANTS AND CLAIMS
A. Infantino
Defendant Infantino moves to dismiss the complaint in its entirety on two bases. First, he
argues that Plaintiff made a misrepresentation in her request to proceed in forma pauperis (the
“IFP application”), which he says compels dismissal. Second, Infantino argues that the
complaint fails pursuant to Rule 12(b)(6) because it contains no allegations specific to him.
Infantino’s Rule 12(b)(6) argument has merit. Infantino, Plaintiff’s ex-husband, is mentioned in
the complaint’s caption, but nowhere else. The pleadings are entirely silent as to his role or
relevance to this case. There is no allegation that he was present on campus when the arrest took
place, nor that he made any false statements to the police that day. At most, the pleadings
suggest that Plaintiff called Infantino on her cell phone from school premises, which has no
obvious relevance to the case.
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Individualized pleading regarding a defendant’s involvement generally is required for
there to be a well-pleaded claim against that defendant. Iqbal, 556 U.S. at 676; see also Shomo
v. City of New York, 579 F.3d 176, 184 (2d Cir. 2009) (“personal involvement of defendants in
alleged constitutional deprivations is a prerequisite to an award of damages under § 1983”);
Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995) (enumerating ways an individual defendant
allegedly may have violated the Constitution).
Where, as here, the complaint’s caption is the sole reference to a defendant, claims
against that defendant do not withstand even the most generous facial review under Rule
12(b)(6). Infantino’s motion to dismiss is granted, and all claims against him are dismissed for
failure to state a claim.
B. The District Defendants
Next, the District Defendants move to dismiss each of the four claims on two grounds as
well: (a) the alleged misrepresentation in the IFP application; and (b) failure to state a claim.
The Court will address the second of these two grounds here, and the first below.
1. Excessive Force
The District Defendants argue that the excessive force claim fails against them because
any force was used during the Police Defendants’ arrest of Plaintiff. There is no assertion that
the District Defendants were involved in that arrest or use of force, they argue. The Court
agrees. Taken as a whole, the complaint and supporting materials describe a scenario where
some of the District Defendants determined that Plaintiff was on campus impermissibly, and
promptly contacted the Police Defendants to rectify the situation. The Police Defendants
confronted Plaintiff and ultimately arrested her. At some point during the arrest, there was a
struggle and some degree of force was used. Plaintiff contends this force was excessive.
5
Even drawing all reasonable inferences in Plaintiff’s favor, there are no factual
allegations tying the District Defendants to the alleged excessive force. At most, those
defendants stood by while the police did their job. Consequently, the excessive force claim is
dismissed as against the District Defendants.
2. Malicious Prosecution
The District Defendants contend the malicious prosecution claim fails in view of the
outcome of the criminal prosecution initiated that day. A malicious prosecution claim requires
“termination of the prior criminal proceeding in favor of the accused.” DiBlasio v. City of New
York, 102 F.3d 654, 658 (2d Cir. 1996) (emphasis added). According to the public record,
Plaintiff’s prosecution was terminated on August 5, 2010 upon acceptance of an ACD. The
authorities are clear that an ACD is “not a favorable termination because it leaves open the
question of the accused’s guilt.” Fulton v. Robinson, 289 F.3d 188, 196 (2d Cir. 2002)
(emphasis added); see also Rothstein v. Carriere, 373 F.3d 275, 287 (2d Cir. 2004). As such, the
ACD bars any recovery on a malicious prosecution theory. DiBlasio, 102 F.3d at 657.
Moreover, even if the prosecution had been terminated favorably to Plaintiff, the
malicious prosecution claim also fails as against the District Defendants for lack of factual
allegations tying them to the prosecution. While the Police Defendants arrested Plaintiff and
initiated criminal proceedings, there is no assertion that the District Defendants were directly or
personally involved in the “initiation or continuation of a criminal proceeding,” as is required.
Stampf. V. Long Island R.R., 761 F.3d 192, 198 (2d Cir. 2014) (citing Manganiello v. City of
New York, 612 F.3d 149, 161 (2d Cir. 2010)). This is a second, independent basis upon which
the Court dismisses this claim against the District Defendants.
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3. False Arrest
The District Defendants argue that the false arrest claim fails because, likewise, there is
no allegation that they were personally involved in the arrest. The elements of a false arrest
claim under Section 1983 “are substantially the same as the elements of a false arrest claim under
New York law”: (1) the defendant intended to confine the plaintiff; (2) the plaintiff was
conscious of the confinement; (3) the plaintiff did not consent to the confinement; and (4) the
confinement was not otherwise privileged. Singer v. Fulton Cnty. Sheriff, 63 F.3d 110, 118 (2d
Cir. 1995). The Court need not move beyond the first element here.
The pleadings make plain that it was incumbent on the Police Defendants, not the District
Defendants, to decide whether to arrest (or, confine) Plaintiff. Allegedly, Plaintiff was
confronted by certain of the District Defendants first, and those defendants asked Plaintiff to
leave the premises. But the pleadings do not support an inference that any District Defendant
had direct personal involvement in the decision to arrest Plaintiff. There is no suggestion that
any District Defendant trapped her in the bathroom or anywhere else on campus, or otherwise
detained her. They simply asked her to leave. This does not meet the pleading standard for the
“intent to confine” element of a false arrest claim, and consequently, that claim against the
District Defendants is dismissed as well.
4. Entrapment
Finally, the complaint asserts “entrapment,” albeit without supporting factual allegations.
This claim also fails against the District Defendants. Even if the complaint could be construed to
suggest that those defendants lured Plaintiff to campus that day, entrapment, although a possible
defense to criminal prosecution, does not lie as a civil claim under Section 1983. DiBlasio, 102
F.3d at 656 (citing Hampton v. United States, 425 U.S. 484, 488-91 (1976) (entrapment claim is
7
not a constitutional offense)). As such, this fourth and final claim against the District Defendants
is dismissed.1
C. The Police Defendants
Allegations against the Police Defendants present a closer case here at the pleading stage,
where Plaintiff is entitled to all reasonable inferences, and where the complaint is to be accorded
leniency since Plaintiff is proceeding pro se. Any entrapment claim against the Police
Defendants fails for the reason noted above: a civil entrapment claim does not lie under Section
1983. DiBlasio, 102 F.3d at 656. Likewise, the malicious prosecution claim fails as against the
Police Defendants because there has not been a “final determination” of the criminal prosecution
in Plaintiff’s favor. Id. at 657.
The Court declines, however, to grant the Police Defendants’ motion to dismiss all claims
based on voluntary waiver. The public record unequivocally establishes that Plaintiff’s
prosecution ended with an ACD. In contrast, statements Plaintiff made during the August 5,
2010 colloquy are legally equivocal here in the instant proceeding, or at least, are not dispositive.
This holds true regardless of whether the question is framed as one of waiver, estoppel, or issue
preclusion. See, e.g., Crawford v. Franklin Credit Mgmt., 758 F.3d 473, 485-86 (2d Cir. 2014)
(judicial estoppel requires “clearly inconsistent” positions taken in different phases of same
proceeding).
When prompted on August 5, Plaintiff categorically recanted “any and all” assertions she
had made at her arraignment about police mistreatment. But that recantation does not have the
force of a final judgment after adjudication of the issues. See Am Postal Workers Union v.
1
Because all of the above claims are dismissed for the aforementioned reasons, the Court will not address the
District Defendants’ alternative, qualified immunity arguments.
8
United States Postal Serv., 754 F.3d 109, 110 n. 1 (2d Cir. 2014) (issue preclusion requires that
an issue was actually litigated and necessary to the outcome of the first action). The recantation
also appears to have been collateral to the ACD proceeding, and the context for the reversal of
course is unclear from the transcript. Without having presided over that hearing, and without
further context as to why Plaintiff categorically recanted allegations against the Police
Defendants, the Court considers any positional inconsistency in the ACD hearing transcript to be
insufficiently conclusive to support dismissal in the instant case, at least at this stage of the
proceedings.
Thus, two claims remain against the Police Defendants: (1) excessive force; and (2) false
arrest. The Court will address these in turn.
1. Excessive Force
The Police Defendants argue that the excessive force claim fails because “Plaintiff’s
account of what occurred is directly contradicted by an independent eye witness,” Joseph
Kearns, who reported that the force utilized was objectively reasonable and was exerted only to a
degree necessary “to effectively control the resisting Ms. Humbach.” The Police Defendants
also argue that “Ms. Humbach has not pled, and cannot establish, that she received any medical
treatment to support her outrageous allegations.” Finally, the Police Defendants argue that
“Plaintiff names a host of individual defendants, but the Complaint itself provides no indication
as to which of the named individuals performed any allegedly illegal acts or what precisely they
did.”
The first and second of these arguments tend to conflate the Rule 12(b)(6) standard with
standards applicable in a summary judgment or trial posture. Arguments regarding contradictory
eyewitness testimony and the extent of alleged injury and compensatory damages do not compel
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dismissal as a matter of law at a stage where the Court is charged only with evaluating the face
of the pleadings, and where the Court must draw all plausible inferences in Plaintiff’s favor. The
Court acknowledges that eyewitness statements in police reports are incorporated by reference
into the complaint, but even so, the Court must accept Plaintiff’s account as true at this stage,
insofar as her account is discernible from the pleadings.
As for the Police Defendants’ third argument, lack of individualized pleading, Plaintiff
alleges that she was “beaten by police” and that her “constitutional rights were violated.”
Compl. at 3, 5. Adding color, a witness statement from defendant Marisa Boniella describes
“two police officers struggling” with Plaintiff, apparently in the parking lot outside the school
building. A witness statement from Joseph Kearns describes “two police officers restraining a
woman.” While citing to these witness reports where they are self-serving, the Police
Defendants also challenge the totality of the pleadings on the grounds that they lack allegations
specific to each Police Defendant.
A Section 1983 Plaintiff ordinarily must describe each individual defendant’s
involvement in a constitutional violation, to survive a challenge under Rule 12(b)(6). Shomo,
579 F.3d at 184 (“personal involvement of defendants in alleged constitutional deprivations is a
prerequisite to an award of damages under § 1983”). Here, however, there are only five Police
Defendants, and the pleadings suggest that all five were present on campus the day of the
incident. Reading the complaint in tandem with the enclosed police reports, it appears that one
or more of the Police Defendants confronted Plaintiff outside a school bathroom and escorted her
outside, where she ultimately struggled with two or more of the Police Defendants, allegedly was
beaten, and was arrested.
Plaintiff has not specified which of the five police officers used the alleged excessive
10
force. On the other hand, she is a pro se litigant and an alleged victim of group police violence.
Reasonably, she may not know the names of the specific officers who struck blows or wrestled
her to the ground. Cf. Casaburro v. Giuliani, 986 F. Supp. 176, 178 (S.D.N.Y. 1997) (denying
motion to dismiss claims under Section 1983 against group of New York City police officers
collectively involved in alleged mistreatment after arrest).
Ultimately, a Rule 12(b)(6) analysis turns on whether the defendants are on fair notice of
the specific allegations and claims against them. Here, on balance, the complaint and enclosed
materials are sufficient to put the Police Defendants on notice of the allegations and claims
against them. These five defendants, after all, are best-positioned to know which of the officers
may have had physical contact with Plaintiff and to what degree.
The Court finds that the pleadings contain “sufficient factual matter,” that, when accepted
as true, states an excessive force claim as against each of the Police Defendants, a claim that is
plausible on its face. Iqbal, 556 U.S. at 678. The Court therefore denies the Police Defendant’s
motion to dismiss the excessive force claim for failure to state a claim.
2. False Arrest
The final claim against the Police Defendants is one for false arrest. The Police
Defendants argue that the claim fails because, “despite Plaintiff’s outrageous allegations,” the
Police Defendants had sufficient probable cause to arrest Plaintiff based on information the
police received from the District Defendants regarding Plaintiff’s uninvited presence on campus.
The Police Defendants argue, in short, that “the totality of the circumstances” justified the arrest,
thereby undercutting a false arrest claim.
As noted, one element of a false arrest claim is that the arrest must not be privileged.
Singer, 63 F.3d at 118. Probable cause to arrest a defendant supports privilege, and is an
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absolute defense to a false arrest claim against the police. Jaegly v. Couch, 439 F.3d 149, 151-52
(2d Cir. 2006) (a Section 1983 false arrest claim derives from the Fourth Amendment right to
remain free from unreasonable seizures, which includes the right to remain free from arrest, but
only absent probable cause). “An officer has probable cause to arrest when he or she has
‘knowledge or reasonably trustworthy information of facts and circumstances that are sufficient
to warrant a person of reasonable caution in the belief that the person to be arrested has
committed or is committing a crime.’” Id. at 152 (citing Weyant v. Okst, 101 F.3d 845, 852 (2d
Cir. 1996)).
The question then, is one of reasonableness. On this question, the Police Defendants
direct the Court to authorities stating that eyewitness reports accusing another citizen of having
committed a crime generally are sufficient to establish probable cause. See, e.g., Petrychenko v.
Solovey, 99 A.D.3d 777, 780 (2d Dep’t 2012) (information from an identified citizen accusing
another individual of a specific crime generally is sufficient); People v. Read, 74 A.D.3d 1245,
1246 (2d Dep’t 2010) (eyewitness victim statement generally is sufficient).
This may be true, as a general principle. But in the instant case, the pleadings and briefs
force the Court to speculate about precisely the information the Police Defendants had when they
elected to arrest Plaintiff, presumably for criminal trespass. Reports attached to the complaint
cryptically reference “prior incidents.” The District Defendants submitted a copy of a supervised
visitation order from the New York State Supreme Court, which appears to preclude incommunity visitation between Plaintiff and her student son. It is unclear from these materials,
however, whether the District Defendants informed the Police Defendants that Plaintiff was on
campus in violation of a court order, if that was the case. Certainly that would be relevant to the
probable cause analysis.
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Equally unclear is whether the Police Defendants were informed that a breakfast and
book fair were taking place that day, and that Plaintiff had been invited to that event, as appears
to have occurred. That too would be relevant to probable cause, and that, coupled with
Plaintiff’s protest that the request to leave campus was based on “wrong information,” would call
into question whether the Police Defendants had sufficient probable cause to arrest Plaintiff for
criminal trespass.
In any event, having considered all materials submitted, there are holes in the narrative
and contrary assertions which make is impossible for the Court conclusively to determine that
eyewitness reports gave the Police Defendants probable cause to arrest. The Court declines the
invitation to resolve this question based on the pleadings alone.
Drawing reasonable inferences in Plaintiff’s favor, the complaint and enclosed materials
contain sufficient factual matter to support a false arrest claim against each of the Police
Defendants, who presumably, collectively, made the decision to arrest Plaintiff, either when they
first confronted her outside the bathroom or once outside the building. The Court denies the
Police Defendants’ motion to dismiss the false arrest claim for failure to state a claim.
IV. THE IFP APPLICATION
Last, each of the three defendant classes argues that Plaintiff made a knowing
misrepresentation regarding her asset base in her April 12, 2013 IFP application. The Court
granted the application, but the Court notes that Plaintiff has not been assigned pro bono counsel,
is litigating the matter pro se, and has emphasized to the Court certain logistical challenges
Plaintiff faces because she is incarcerated.
In the IFP application, Plaintiff checked two boxes “no” in response to the questions, “do
you own an apartment, house, or building,” and “do you pay for rent or for a mortgage.”
13
Defendants contend that the first of these responses was a knowing misrepresentation, since
public records, including a recorded deed and property tax assessments, show that Plaintiff is the
grantee and current taxpaying owner of a residential condominium unit at 1619 Third Avenue,
Unit 14J, New York, NY 10128. See Svensson Aff., Ex. E.
This alternative ground upon which dismissal is sought is less pertinent to Infantino and
the District Defendants given the above dismissal pursuant to Rule 12(b)(6) of all claims against
those defendants. The Court partially denied the Police Defendants’ Rule 12(b)(6) motion,
however, and so these arguments are not academic for their purposes.
The Police Defendants argue that language in the IFP application, found right above
Plaintiff’s signature, compels dismissal: “I understand that the Court shall dismiss this case if I
give a false answer to any questions in this declaration.” The Police Defendants also direct the
Court to 28 U.S.C. § 1915(e)(2), governing proceedings in forma pauperis, which states that,
“[n]otwithstanding any filing fee, or any portion therefor, that may have been paid, the court
shall dismiss the case at any time if the court determines that the allegation of poverty is untrue.”
There is little question that dismissal on this basis requires a threshold finding that the
IFP application contains a falsehood. This Court previously has found as much, and has vacated
a judgment and dismissed a complaint with prejudice, where a plaintiff “misrepresent[ed] her
financial arrangements in bad faith to obtain IFP status.” Cuoco v. United States Bureau of
Prisons, 328 F. Supp. 2d 463, 468 (S.D.N.Y. 2004).
The Court’s focus in that prior instance was whether the misstatement was made
knowingly and in bad faith. See id. (discussing “series of deceptive acts” and repeated
demonstrations of bad faith). At this juncture, in this case, the record is insufficiently developed
on the question of knowledge and bad faith. The Police Defendants certainly assert bad faith and
14
“gross misrepresentation,” but the posture of the case is such that all reasonable inferences must
be drawn in Plaintiff’s favor. Plaintiff has submitted a letter contesting the accusation that she
made a knowing misrepresentation. See dkt. no. 34. Although that letter does not have the force
of an affidavit or sworn deposition testimony, the letter acknowledges that Plaintiff resides at the
housing unit pursuant to some sort of divorce settlement (“marital agreements”), and then
describes a restraint on alienability (“I can neither sell it or refinance it”). That restraint, at least
plausibly, could explain the statement on the IFP application in a way that demonstrates the
absence of a knowing falsehood or bad faith.
Because the record is insufficiently developed and inferences are to be drawn in
Plaintiff’s favor, the Court denies defendants’ motions to dismiss based on a purported
misrepresentation in the IFP application. The Police Defendants may elect to develop the record
further on this point, through deposition questioning or otherwise, and to renew their argument in
support of a motion for summary judgment.
V. CONCLUSION
For the reasons stated above, defendant Infantino’s motion to dismiss is GRANTED in its
entirety and all claims against Infantino are hereby dismissed. The Clerk of Court is respectfully
requested to terminate James Infantino from the action, and to terminate the motion at docket
number 78.
Likewise, the motion of defendants Michael Kirsch, Barbara Zanato, Debbie Alspach,
Kathleen Campanaro, Deborah Lenaghan, Eileen Kelly, Lisa Tighe, Marisa Boniella, and Joseph
Kearns is GRANTED in its entirety, and all claims against those defendants are hereby
dismissed. The Clerk of Court is respectfully requested to terminate those defendants from the
action, and to terminate the motion at docket number 70.
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Finally, the motion of defendants Daniel Canon, James M. Dumser, Robert Chiappone,
D.P. Corrado, and Ernesto Giraldez is GRANTED in part, dismissing the malicious prosecution
and entrapment claims against them, and DENIED in part, permitting the excessive force and
false arrest claims to proceed. The Clerk of Court is respectfully requested to terminate the
motion at docket number 56. The Police Defendants shall serve and file their answer to the
complaint on or before December 3, 2014.
Dated: November 12, 2014
White Plains, New York
NE
United States District Judge
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