Johnson v. Tudisco et al
Filing
42
OPINION & ORDER re: 27 MOTION to Dismiss . filed by Anthony Vicaretti, Joseph Tudisco, Matthew Dicembri. For the reasons stated above, Defendants' motion to dismiss the Complaint is GRANTED in its entirety with leave to reple ad. To state a claim upon which relief can be granted, a complaint must plead sufficient facts to state a claim to relief that is plausible on its face. Plaintiff shall have until January 28, 2019 to file a Second Amended Complaint. Defendants a re directed to file an answer to the Second Amended Complaint, if any, within thirty days of the date the Second Amended Complaint is filed. The Court respectfully directs the Clerk of the Court to mail a copy of this opinion to Plaintiff at Plain tiff's address on the docket and to show proof of service on the docket. The Clerk of the Court is also respectfully requested to terminate the motion at ECF No. 27. SO ORDERED. (Amended Pleadings due by 1/28/2019.) (Signed by Judge Nelson Stephen Roman on 12/12/2018) (anc) Transmission to Docket Assistant Clerk for processing.
Plaintiff’s daughter without his consent and then arrested Plaintiff. (Id.) Upon arriving at the
police station, Plaintiff was thrown on the ground. (Id.) Plaintiff requested, on two occasions on
June 15, 2017, to see an EMT. (Id.) It appears that he was treated by an EMT for a laceration on
his head on that day, June 15. (Id.)
At an unspecified date, Plaintiff then appeared before a judge and was granted permission
to speak, but was “grabbed, pulled, and yanked” out of the courtroom by Defendant Tudisco
before he finished speaking to the judge. (Id.) From this incident, Plaintiff sustained two
abrasions to his wrist. (Id.) In allegedly perjured testimony, Defendant Tudisco stated that
Plaintiff was resisting his attempts to help him walk out of the courtroom and that Plaintiff
pushed into him. (Id. pp. 8 – 9.)
After the arrest on June 15, 2017 and the court appearance described above, it appears
that Plaintiff was charged with five misdemeanors from his initial arrest which were dismissed.
(Id. p. 4 – 5.) Plaintiff was then charged with civil contempt and assault, which were also
dismissed. (Id. p. 5.) The most recent date Plaintiff was in court, according to the Amended
Complaint, was July 13, 2017. 1 (Id. p. 4.) Under a liberal interpretation of Plaintiff’s Amended
Complaint, Plaintiff claims that Defendants’ actions violated his Fourth, Fifth, Eighth, and
Fourteenth Amendment rights and amounted to common law false arrest, malicious arrest, and
malicious prosecution. (Id.)
1
Plaintiff later refers to his “only 2 court dates” as June 15, 2017 and July 13, 2017. (Am. Compl. p. 6.)
2
LEGAL STANDARDS
I.
Motion to Dismiss
To survive a Rule 12(b)(6) motion, a complaint must plead “enough facts to state a claim
to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A
claim is facially plausible when the factual content pleaded allows a court “to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009). “While legal conclusions can provide the framework of a complaint,
they must be supported by factual allegations.” Id. at 679. In considering a 12(b)(6) motion, a
court must take all material factual allegations as true and draw reasonable inferences in the nonmoving party’s favor, but a court is “not bound to accept as true a legal conclusion couched as a
factual allegation.” Id. at 678 (quoting Twombly, 550 U.S. at 555) (internal quotation marks
omitted). A court also need not credit “mere conclusory statements” or “[t]hreadbare recitals of
the elements of a cause of action.” Id.
Further, a court is generally confined to the facts alleged in the complaint for the
purposes of considering a motion to dismiss pursuant to 12(b)(6). Cortec Indus. v. Sum Holding
L.P., 949 F.2d 42, 47 (2d Cir. 1991). A court may, however, consider documents attached to the
complaint, statements or documents incorporated into the complaint by reference, matters of
which judicial notice may be taken, public records, and documents that the plaintiff either
possessed or knew about, and relied upon, in bringing the suit. See Kleinman v. Elan Corp., 706
F.3d 145, 152 (2d Cir. 2013).
Where a plaintiff proceeds pro se, the court must construe the complaint liberally and
interpret it to “raise the strongest arguments that [it] suggest[s].” Askew v. Lindsey, No. 15-CV7496(KMK), 2016 WL 4992641, at *2 (S.D.N.Y. Sept. 16, 2016) (quoting Sykes v. Bank of
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America, 723 F.3d 399, 403 (2d Cir. 2013)). Yet, “the liberal treatment afforded to pro se
litigants does not exempt a pro se party from compliance with relevant rules of procedural and
substantive law.” Id. (quoting Bell v. Jendell, 980 F. Supp. 2d 555, 559 (S.D.N.Y. 2013)).
II.
42 U.S.C. § 1983 Claims
Section 1983 provides that “[e]very person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of
the United States . . . to the deprivation of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured.” 42 U.S.C. § 1983.
Section 1983 “is not itself a source of substantive rights, but a method for vindicating
federal rights elsewhere conferred by those parts of the United States Constitution and federal
statutes that it describes.” Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979); see Patterson v.
County of Oneida, 375 F.3d 206, 225 (2d Cir. 2004). To state a claim under § 1983, a plaintiff
must allege “(1) the challenged conduct was attributable to a person who was acting under color
of state law and (2) the conduct deprived the plaintiff of a right guaranteed by the U.S.
Constitution.” Castilla v. City of New York, No. 09-CV-5446(SHS), 2013 WL 1803896, at *2
(S.D.N.Y. Apr. 25, 2013); see Cornejo v. Bell, 592 F.3d 121, 127 (2d Cir. 2010); Quinn v.
Nassau Cty. Police Dep’t, 53 F. Supp. 2d 347, 354 (E.D.N.Y. 1999) (Section 1983 “furnishes a
cause of action for the violation of federal rights created by the Constitution.”).
DISCUSSION
I.
Federal Claims
Defendants argue that Plaintiff failed to state federal claims against them because
Plaintiff did not connect his § 1983 claim to a violation of any federal right and, alternatively,
because those claims are barred by Heck v. Humphrey.
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A.
Failure to state a § 1983 claim
Defendants are correct that Plaintiff did not make a concise statement that his § 1983
claims are for violations of specific federal law provisions. However, it is clear from the context
of his Amended Complaint that he seeks to vindicate his Fourth, Fifth, Eighth, and Fourteenth
Amendment rights through § 1983. (Am. Compl. p. 4.) Construing Plaintiff’s Amended
Complaint liberally, Plaintiff properly brought a § 1983 action based on alleged violations of his
rights under those specific amendments to the United States Constitution.
B.
Federal claims barred under Heck
Essentially, Heck precludes the use of Section 1983 for legal suits seeking damages that
have the effect of challenging an existing state or federal criminal conviction or duration of
incarceration. In Heck, the Supreme Court determined that to recover damages under § 1983 for
an alleged unconstitutional conviction or imprisonment, “or for other harm caused by actions
whose unlawfulness would render a conviction or sentence invalid,” a plaintiff must prove that
the conviction was “reversed on direct appeal, expunged by executive order, declared invalid by
a state tribunal authorized to make such a determination, or called into question by a court’s
issuance of a writ of habeas corpus, 28 USC § 2254.” Heck v. Humphrey, 512 U.S. 477, 486 – 87
(1994). “[A] § 1983 cause of action for damages attributable to an unconstitutional conviction or
sentence does not accrue until the conviction or sentence has been invalidated.” Id. at 490. As
the Court reiterated in Wallace v. Kato, Heck delays the accrual of a cause of action until the
setting aside of an extant conviction. 549 U.S. 384, 393 (2007) (emphasis added).
In the instant action, Plaintiff alleges constitutional violations amounting to malicious
prosecution, denial of due process, and false arrest. Plaintiff also claims that his Eighth
Amendment rights were violated, but that claim cannot be dismissed pursuant to Heck because it
is unrelated to the validity of any conviction and would not imply the invalidity of any
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imprisonment. See Favors v. Hoover, No.13-CV-428(JRT/LIB), 2014 WL 4954682, at *10 (D.
Minn. May 13, 2014) (stating that claims that “do not imply the invalidity of [the plaintiff]’s . . .
imprisonment” were not barred by Heck). Most relevant here, Plaintiff claims that Defendants
(1) arrested him in violation of the Fourth Amendment; (2) deprived him of the opportunity to
speak before a judge; and (3) provided false testimony about the hearing before the judge and
that these actions resulted in the criminal charges. However, Plaintiff does not plead that he was
convicted of the charged conduct, only that the charges against Plaintiff arising from Defendants’
alleged actions were dismissed. Because there is no underlying conviction or sentence to be
invalidated, Heck does not apply. See Wiggins v. Metro. Gov’t of Nashville, No. 16-CV-5519,
2017 WL 4863166, at *3 (6th Cir. May 8, 2017); Curry v. Yachera, 835 F.3d 373, 378 (3d Cir.
2016) (“[A] section 1983 action for damages must be dismissed unless there was no conviction
or sentence or ‘the plaintiff can demonstrate that [a] conviction or sentence has already
been invalidated.’ ” (citation omitted)); Serino v. Hensley, 735 F.3d 588, 591 (7th Cir. 2013);
Turner v. Broward Sheriff’s Office, 542 F. App’x 764, 756 (11th Cir. 2013); Butler v. Compton,
482 F.3d 1277, 1280–81 (10th Cir. 2007); Miller v. Riser, 84 F. App’x 417, 419 (5th Cir. 2003).
C.
Arrest without probable cause claim
“[T]he warrantless arrest of a person is a species of seizure required by the [Fourth]
Amendment to be reasonable.” Payton v. New York, 445 U.S. 573, 585 (1980). The Fourth
Amendment permits warrantless arrests when “the arresting officer has probable cause to believe
a crime has been or is being committed” United States v. Delossantos, 536 F.3d 155, 159 (2d Cir.
2008). In assessing a warrantless arrest, the Court considers “totality of the circumstances, from
the perspective of a reasonable police officer in light of his training and experience, based on the
facts known to the arresting officer at the time of the arrest.” Burgess v. DeJoseph, 725 F. App’x
36, 39 (2d Cir. 2018) (internal citations and quotation marks omitted). Probable cause to arrest
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exists when the officer has knowledge or reasonably trustworthy information of facts and
circumstances that would be sufficient to warrant a person of reasonable caution to believe that
the individual being arrested committed a crime. Jaegly v. Couch, 439 F.3d 149, 152 (2d Cir.
2006).
Plaintiff’s Amended Complaint does not state a plausible claim for arrest in violation of
the Constitution. Plaintiff does not allege that Defendants did not have a warrant or otherwise
have probable cause to arrest Plaintiff. Even after a liberal interpretation of the Amended
Complaint and interpreting it to raise the strongest argument it suggests, this Court cannot
conclude that Defendants arrested Plaintiff without probable cause because Plaintiff does not
state sufficient facts to support a plausible claim. Plaintiff provides scant facts surrounding his
arrest. He states that that Defendants came to Plaintiff’s door to ask him about an unspecified
situation, Plaintiff showed Defendants his car, and Defendants questioned his daughter. (Am.
Compl. p. 3.) This brief recital of vague circumstances surrounding Plaintiff’s arrest, without
even an allegation that Defendants did not have probable cause, is insufficient for the Court to
infer that there was no probable cause for the arrest, even under a liberal interpretation. There is
nothing in the Amended Complaint to support a plausible claim for unconstitutional arrest.
Although the Court must, and does, afford some latitude to pro se plaintiffs, those plaintiffs are
still required to comply with the Federal Rules of Civil Procedure, and the Court must dismiss a
pro se plaintiff’s claim if it is not plausible on its face. Because Plaintiff only supports his false
arrest claim with conclusory allegations, that claim is not plausible on its face and is dismissed.
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D.
Due process claims
First, Plaintiff alleges that Defendants violated his procedural due process rights when
Defendant Tudisco removed him from the courtroom without any order from the judge. (Am.
Compl. p. 3.)
Courts engage in a two-step analysis when resolving procedural due process claims. To
state a plausible due process claim, a plaintiff must show “(1) the existence of a property or
liberty interest that was deprived; and (2) deprivation of that interest without due process.”
Bryant v. N.Y. State Educ. Dep’t, 692 F.3d 202, 218 (2d Cir. 2012). Here, Plaintiff’s Amended
Complaint fails to assert a plausible claim that his removal from the courtroom deprived him of
any protected interest. He does not allege that he was not given a hearing or that he was
otherwise wrongfully incarcerated after the hearing. Plaintiff only claims that he was removed
from the courtroom before he was finished speaking without an order from the judge and that the
charges against him were dismissed; he provides no further detail from which the Court could
reasonably infer that he was deprived of a protected interest without due process. From the facts
in the Amended Complaint, the Court cannot even determine when or whether Plaintiff was
imprisoned in connection with the charges. The conclusory allegations in the Amended
Complaint are insufficient to support a facially plausible due process claim. 2
Second, Plaintiff claims that Defendants subjected him to malicious prosecution when
they attempted to “coerce statements” from his daughter and when they provided false testimony
about the incident during which Plaintiff was removed from the courtroom.
2
Plaintiff refers to the fact that he was never arraigned and states that he has “not been back to local court
for 5 misdemeanors from the initial arrest.” However, those five misdemeanors were dismissed. (Am. Compl. p. 5.)
There are insufficient facts in the Amended Complaint surrounding the arraignment, court appearances, and
dismissals to support any plausible claim for relief.
8
A malicious prosecution claim pursuant to § 1983 is largely indistinguishable from a state
law claim. In New York, a claim for malicious prosecution lies if plaintiff demonstrates four
elements: (1) “the defendant initiated a criminal proceeding”; (2) the proceeding was terminated
in plaintiff's favor; (3) “there was no probable cause for the criminal charge”; and (4) defendant
acted maliciously. Rothstein v. Carriere, 373 F.3d 275, 282 (2d Cir. 2004). A federal claim
for malicious prosecution must also “show a violation of his rights under the Fourth
Amendment.” See Murphy v. Lynn, 118 F.3d 938, 944 (2d Cir. 1997). Plaintiff’s Amended
Complaint does not state a facially plausible malicious prosecution claim. He states that
Defendants initiated a criminal proceeding against him and that the charges were ultimately
dismissed. However, he provides no details surrounding the circumstances of the dismissal; it is
unclear whether the dismissal was in Plaintiff’s favor. Criminal proceedings are terminated in
favor of the accused “only when their final disposition is such as to indicate the accused is not
guilty.” Singleton v. City of New York, 632 F.2d 185, 193 (2d Cir. 1980). If the charges had
been dismissed in the interests of justice, for example, the Second Circuit has determined that
such a dismissal is not a favorable termination for a plaintiff attempting to bring a malicious
prosecution claim. Singer v. Fulton Cty. Sheriff, 63 F.3d 110, 118 (2d Cir. 1995). Plaintiff’s
allegations surrounding the dismissal of the criminal charges against him are conclusory and are
insufficient to plausibly show that the criminal proceeding terminated in Plaintiff’s favor. 3 Thus,
the malicious prosecution claim must be dismissed due to Plaintiff’s failure to plausibly support
each element required for a claim upon which relief may be granted.
3
Plaintiff alleges in a conclusory manner, without factual support, that Defendants engaged in a policy of
investigating and detaining individuals for discriminatory reasons. (See Am. Compl. p. 11.) To the extent that this
threadbare allegation was intended as part of Plaintiff’s malicious prosecution claim against Defendants, that claim
would fail for the reasons expressed in this Opinion.
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E.
Inadequate medical care claim
Plaintiff alleges that Defendants were deliberately indifferent to his medical needs. A
claim for inadequate medical care is born out of the Eighth Amendment’s protection against
cruel and unusual punishment. Caiozzo v. Koreman, 581 F.3d 63, 69 (2d Cir. 2009)
(citing Weyant v. Okst, 101 F.3d 845, 856 (2d Cir. 1996)). To be entitled to relief for inadequate
medical care, a plaintiff must plead and prove “deliberate indifference to his serious medical
needs.” Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994) (“Hathaway II”) (citing Estelle v.
Gamble, 429 U.S. 97, 103 (1976)) (alterations omitted).
Deliberate indifference is a dual-pronged analysis requiring proof of both an objective
and subjective prong. Hathaway II, 37 F.3d at 66. The objective prong mandates the deprivation
be, “in objective terms, sufficiently serious.” Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir.
1998) (internal quotations omitted). To satisfy the subjective prong, the official must act with “a
sufficiently culpable state of mind,” see Wilson v. Seiter, 501 U.S. 294, 298 (1991), in that the
official “must know of and disregard an excessive risk to inmate health or safety; [he] must both
be aware of facts from which the inference can be drawn that a substantial risk of serious harm
exists, and he must also draw the inference.” Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011)
(quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)). Negligence or medical malpractice do
not “rise to the level of a constitutional violation unless the malpractice involves culpable
recklessness.” Hill, 657 F.3d at 123 (citing Chance, 143 F.3d at 703) (internal quotations and
alterations omitted).
The Amended Complaint contains few facts to support a claim for inadequate medical
care in violation of the Eighth Amendment, and those facts are insufficient to support a plausible
claim for relief. On the day Plaintiff was arrested, June 15, 2017, he had a laceration on his
head. (Am. Compl. p. 3.) The police provided him with gauze, and he was seen twice by an
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EMT. (Id.) Four or five days later, after Plaintiff was imprisoned, he saw a nurse and received
x-rays relating to the same injury. (Id.)
Based on the face of his Amended Complaint, Plaintiff does not appear to allege he was
actually deprived of medical treatment. Rather, he states that he was provided assistance by the
police, seen two times by an EMT, and provided with care at the prison. To the extent that
Plaintiff claims that he was not provided with a sufficient level of care in a timely manner, this
claim still fails to support a plausible claim for relief. Plaintiff pleads no facts to indicate that the
alleged deficiency in the care he received was, objectively, sufficiently serious or posed any risk
of harm. See Christian v. Saunders, No. 17-CV-2587(GBD)(BCM), 2018 WL 3300695, at *6
(S.D.N.Y. Feb. 28, 2018) (noting that where the risk of harm caused by delay in adequate
medical treatment is not substantial, there is no Eighth Amendment violation). He also failed to
plead that Defendants knew of and disregarded a substantial risk of harm to Plaintiff. Because
Plaintiff did not state a facially plausible claim that he received inadequate medical care under
the Eighth Amendment Plaintiff’s § 1983 claims are dismissed. 4
III.
State Law Claims
According to Defendants, Plaintiff’s state law claims must be dismissed because he has
failed to plead compliance with the New York General Municipal Law § 50. This Court agrees.
State law claims brought in federal court are subject to state procedural rules, which here
are those of New York. Felder v. Casey, 487 U.S. 131, 152 (1988) (“[F]ederal courts are
constitutionally obligated to apply state law to state claims.”). Section 50-e of the New York
General Municipal Law requires that a plaintiff file a notice of claim within ninety days of the
4
While Plaintiff alludes to sustaining abrasions on his wrists during the court proceeding in which he
requested to speak, there are not sufficient facts in Plaintiff’s Amended Complaint from which to infer excessive
force.
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incident giving rise to the claim. N.Y. Gen. Mun. Law § 50-e. To state a claim upon which
relief can be granted, a plaintiff’s complaint must show that (1) the notice of claim was served;
(2) at least thirty days have passed since the notice of claim was filed and before the complaint
was filed; and (3) the defendant has not adjusted or satisfied the claim in that time. See
Canzoneri v. Village of Rockville Centre, 986 F. Supp. 2d 195, 206 (E.D.N.Y. 2013). Plaintiff’s
Amended Complaint contains no facts to suggest that Plaintiff completed a notice of his state law
claims as required by the statute. Although the Court must construe the pro se Plaintiff’s
Amended Complaint liberally, the Court cannot exempt Plaintiff from notice of claim
requirement under New York law. See Bell v. Jendell, 980 F. Supp. 2d 555, 559 (S.D.N.Y.
2013)); Maisonet v. Metro. Hosp. & Health Hosp. Corp., 640 F. Supp. 2d 345, 348 (S.D.N.Y.
2009) (“Pro se status, however, ‘does not exempt a party from compliance with relevant rules of
procedural and substantive law.’ ”(quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983))).
Accordingly, Plaintiff’s state law claims must be dismissed under Rule 12(b)(6) for failure to
state a claim upon which relief may be granted. 5
5
Defendants raise other grounds to dismiss Plaintiff’s Amended Complaint, including lack of personal
involvement and immunity, but the Court will not address those arguments as the Amended Complaint is already
dismissed for failure to state a claim upon which relief can be granted.
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