Crosby v. New York State Office For People With Developmental Disabilities
Filing
15
REPORT AND RECOMMENDATIONS re 9 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM MOTION to Dismiss for Lack of Jurisdiction filed by New York State Office For People With Developmental Disabilities, The State of New York, 5 First MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM First MOTION to Dismiss for Lack of Jurisdiction filed by Lorianne Riley, Rebecca Laborde, Carli M. Wilson. Objections due fourteen days from receipt. DECISION AND ORDER denying 12 Cross MOTION to Amend/Correct filed by Robert Crosby. Signed by Hon. Leslie G. Foschio on 9/18/2015. (SDW)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
________________________________________
ROBERT CROSBY,
Plaintiff,
v.
NEW YORK STATE OFFICE FOR PEOPLE WITH
DEVELOPMENTAL DISABILITIES,
STATE OF NEW YORK,
REBECCA LABORDE,
LORIANNE RILEY,
CARLI M. WILSON,
Defendants.
________________________________________
APPEARANCES:
REPORT
and
RECOMMENDATION
------------------------------DECISION
and
ORDER
14-CV-656A(F)
DeMARIE & SCHOENBORN, P.C
Attorneys for Plaintiff
JOSEPH DeMARIE, of Counsel
403 Main Street, Suite 615
Buffalo, New York 14203
ERIC T. SCHNEIDERMAN
New York State Attorney General
Attorney for Defendants
KATHLEEN M. KACZOR,
Assistant New York State Attorney General, of Counsel
350 Main Street, Suite 300A
Buffalo, New York 14202
JURISDICTION
This case was referred to the undersigned for all pretrial matters by order of Hon.
Richard J. Arcara filed October 29, 2014 (Doc. No. 11). It is presently before the court
on Defendants’ motion to dismiss and requesting a stay of proceedings pending
determination of Defendants’ motions filed October 6, 2014 (Doc. No. 5) and October
1
16, 2014 (Doc. No. 9), and Plaintiff’s motion for leave to file an amended complaint and
to stay proceedings filed November 6, 2014 (Doc. No. 12) (“Plaintiff’s Motions”).1
BACKGROUND
Plaintiff commenced this § 1983 action by a complaint filed August 13, 2014
alleging Fourth Amendment violations – false arrest and malicious prosecution -- by
Defendants. In order to correct a typographical error, Affirmation of Joseph DeMarie In
Support of Plaintiff’s Motions and for denial of Defendants’ Motions to Dismiss (Doc. No.
12-1) (“DeMarie Affirmation”) attaching exhibits A – E (Doc. No. 12-2-6) (“Plaintiff’s
Exh(s). __”) ¶ ¶ 2, 3, Plaintiff’s Amended Complaint was filed August 14, 2014 (Doc. No.
2) (“the Amended Complaint”). Defendants moved to dismiss the Amended Complaint
on October 5, 2014 (Doc. No. 5) based on sovereign immunity, lack of personal
jurisdiction based on improper service as to Defendants New York State Office For
People With Developmental Disabilities (“NYSOPWDD” or “Defendant NYSOPWDD”)
and the State of New York (“New York State” or “Defendant New York State”) (“State
Defendants”), and Plaintiff’s failure to state a claim against State Defendants and
Defendants Laborde (“Laborde”), Riley (“Riley”) and Wilson (“Wilson”) (“Individual
Defendants”) together with Defendants’ Memorandum of Law In Support of the Motion
to Dismiss (Doc. No. 5-1) (“Defendants’ First Memorandum of Law”) (“Defendants’ First
Motion to Dismiss”). Following Plaintiff’s further service upon the NYSOPWDD and
New York State, State Defendants filed a motion to dismiss on October 16, 2014
pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6) (Doc. No. 9) (“Defendants’ Second
1
As Defendants’ Motions to Dismiss are dispositive and Plaintiff’s motion to amend and Plaintiff’s and
Defendants’ motions to stay are non-dispositive, such motions are addressed together in this combined
Report and Recommendation and Decision and Order.
2
Motion to Dismiss”) (“Defendants’ Motions”) asserting sovereign and 11th Amendment
immunity and a failure to state a claim, including any of Plaintiff’s claims based on state
law, together with Defendants’ Memorandum of Law In Support of the Motion to Dismiss
(Doc. No. 9-1) (“Defendants’ Second Memorandum of Law”).
On November 11, 2014, Plaintiff filed a cross-motion for leave to file a Second
Amended Complaint, Doc. No. 12, (“Plaintiff’s Motion to Amend”), and to stay
proceedings pending resolution of Plaintiff's motion (“Plaintiff’s Motion to Stay”)
(“Plaintiff’s Motions”) together with the DeMarie Affirmation. Plaintiff’s proposed Second
Amended Complaint is included as Plaintiff’s Exh. E (“Proposed Second Amended
Complaint”). Plaintiff did not file a memorandum of law in opposition to Defendants’
Motions or in support of Plaintiff’s Motion to Amend. On December 4, 2014, Defendants
filed Defendants’ Response Memorandum of Law In Opposition To Plaintiff’s Motion To
Amend And In Further Support Of Defendants’ Motion To Dismiss (Doc. No. 14)
(“Defendants’ Response Memorandum”).2 Oral argument on Defendants’ motions and
Plaintiff’s motions was deemed unnecessary. Based on the following, Defendants’
Motions to Dismiss (Doc. Nos. 5 and 9) should be GRANTED; Defendants’ motion for a
stay is DISMISSED as moot; Plaintiff’s motions for leave to file a Second Amended
2
In Defendants’ Response Memorandum, Defendants state that Plaintiff’s request for leave to cure
defects in service upon State Defendants, DeMarie Affirmation ¶ ¶ 11-14, is moot, Defendants’ Response
Memorandum at 1 (“Plaintiff’s motion for leave to cure service is moot.”), as confirmed by Defendants’
failure to assert improper service in Defendants’ Second Memorandum of Law. Although the State
Defendants state that because of Defendants’ Motion to Dismiss Defendants have “now appeared” in this
action rendering Plaintiff’s motion for leave to cure a defect in service moot, filing a motion to dismiss for
failure to state a claim or a lack of service does not waive defendant’s defense of insufficiency of service.
See Zherka v. Ryan, 52 F.Supp.3d 571, 577 (S.D.N.Y. 2014) (no waiver of insufficient service defense
where defendant generally appears but timely moves to dismiss on that ground). As such, the court does
not address this issue as a ground for Defendants’ Motions.
3
Complaint (Doc. No. 12) is DENIED with prejudice; Plaintiff’s motion for a stay (Doc. No.
12) is DISMISSED as moot.
FACTS3
In the Amended Complaint Plaintiff alleges Plaintiff, on April 1, 2013, was
arrested in Cattaraugus County by “Deputy T.S. Pence” based on a criminal complaint
charging Plaintiff with a violation of N.Y. Penal Law § 260.32[1], a class E felony
(“§260.32[1]”) (“the charges”). Amended Complaint ¶ ¶ Ninth, Tenth. Section 260.32[1]
penalizes intentional and negligent causing of physical injury to or unconsented sexual
contact with a vulnerable elderly person, or an incompetent or physically disabled
person by a caregiver for such persons. According to Plaintiff, Plaintiff remained in
custody until February 22, 2014 when on motion of the Cattaraugus County District
Attorney the complaint was dismissed in the interest of justice by the Mansfield Town
Court. Amended Complaint ¶ ¶ Eleventh, Thirteenth. According to Plaintiff, the charges
placed against Plaintiff by the Individual Defendants acting under color of state law were
“false, malicious and without foundation in fact or law,” and the Individual Defendants
knew of such falsity when the charges were filed. Id. ¶ ¶ Nineteenth, Twenty-First,
Twenty-Third. As a result, Plaintiff alleges, Plaintiff’s arrest and subsequent prosecution
was without probable cause resulting in Plaintiff suffering mental stress and trauma and
unnecessary out of pocket costs including the costs of defense. Id. ¶ ¶ Sixteenth,
Seventeenth. Plaintiff further asserts that Defendant NYSOPWDD “condoned, cajoled,
urged and required Individual Defendants” to violate Plaintiff’s rights secured by the
Fourth and Fourteenth Amendments. Id. ¶ ¶ Fifteenth, Sixteenth. Plaintiff asserts
3
Taken from the pleadings and papers filed in this matter.
4
Plaintiff’s § 1983 claims based on his alleged unlawful arrest and malicious prosecution
in a single First Cause of Action. Id. ¶ ¶ Twentieth, Twenty-Fourth. Plaintiff requests
only monetary damages from Defendants. Id. at 4.
DISCUSSION
A.
State Defendants’ Motion.
Federal courts lack subject matter jurisdiction over § 1983 claims seeking money
damages against a state and its agencies. Leitner v. Westchester Community College,
779 F.3d 130, 134 (2d Cir. 2015) (state’s Eleventh Amendment immunity from suit
pursuant to § 1983 “encompasses not just actions in which a state is actually named as
a defendant, but also certain actions against state agents and instrumentalities,
including actions for the recovery of money from the state.”) (citing Regents of the Univ.
of Cal. v. Doe, 519 U.S. 425, 429 (1997))); Taylor v. New York State Office For People
with Disabilities, 2014 WL 1202587, at *5 (citing Gollomp v. Spitzer, 568 F.3d 355, 365
(2d Cir. 2009)). Plaintiff does not argue otherwise. See DeMarie Declaration (passim).
Rather, Plaintiff’s opposition to Defendants’ motion is limited to a statement that
“Plaintiff believes its [sic] complaint is sufficient on its face,” id. ¶ 21, and that “specifics
and particularization of the [Defendants’] acts which give rise to bringing suit in Federal
Court fall under Rule 26 disclosure just as they would be provided in a bill of particulars
in a state court action.” Id. ¶ 22. Here, Plaintiff alleges NYSOPWDD is an agency of
New York State. See Amended Complaint ¶ Fourteenth (Individual Defendants are
employees of New York State’s Office for People With Developmental Disabilities and
are “all part of the State of New York”). Plaintiff also alleges Defendant New York State
5
as a “legal entity.” Amended Complaint ¶ Fourth. As such, this court lacks subject
matter jurisdiction over the Amended Complaint’s claims against Defendant
NYSOPWDD, as a New York state agency, and Defendant New York State, or,
alternatively, Plaintiff has failed to state a claim against State Defendants. See Taylor,
2014 WL 1202587, at *4 (discussing alternative bases to dismiss § 1983 action against
Defendant NYSOPWDD under either Fed.R.Civ.P. 12(b)(1) or 12(b)(6)). Therefore,
under either analysis, the Amended Complaint against NYSOPWDD and New York
State should be DISMISSED.
B.
Individual Defendants’ Motion.
On a motion to dismiss under Fed.R.Civ.P. 12(b)(6) (“Rule 12(b)(6)”), the court
looks to the four corners of the complaint and is required to accept the plaintiff's
allegations as true and to construe those allegations in the light most favorable to the
plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Goldstein v. Pataki, 516 F.3d
50, 56 (2d Cir. 2008) (court is required to liberally construe the complaint, accept as true
all factual allegations in the complaint, and draw all reasonable inferences in the
plaintiff’s favor). The Supreme Court requires application of “a ‘plausibility standard,’
which is guided by ‘[t]wo working principles.’” Harris v. Mills, 572 F.3d 66, 71-72 (2d Cir.
2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and quoting Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (“Iqbal”)). “First, although ‘a court must accept as
true all of the allegations contained in a complaint,’ that ‘tenet’ ‘is inapplicable to legal
conclusions,’ and ‘[t]hreadbare recitals of the elements of a cause of action, supported
by mere conclusory statements, do not suffice.’” Harris, 572 F.3d at 72 (quoting Iqbal,
556 U.S. at 678). “‘Second, only a complaint that states a plausible claim for relief
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survives a motion to dismiss,’ and ‘[d]etermining whether a complaint states a plausible
claim for relief will . . . be a context-specific task that requires the reviewing court to
draw on its judicial experience and common sense.’” Id. (quoting Iqbal, 556 U.S. at
679).
“To survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Iqbal,
556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). “A claim will have ‘facial
plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.’” Sykes v.
Bank of America, 723 F.3d 399, 403 (2d Cir. 2013) (quoting Ashcroft, 556 U.S. at 678);
see Twombly, 550 U.S. at 570 (the complaint must plead “enough facts to state a claim
to relief that is plausible on its face”). The factual allegations of the complaint “must be
enough to raise a right to relief above the speculative level on the assumption that all
the allegations in the complaint are true.” Twombly, 550 U.S. at 570. “[M]ore than a
sheer possibility that a defendant acted unlawfully” is required. Id. at 678. “‘In
adjudicating a motion to dismiss, a court may consider only the complaint, any written
instrument attached, and any document upon which the complaint heavily relies.’”
ASARCO LLC v. Goodwin, 756 F.3d 191, 198 (2d Cir. June 25, 2014) (quoting In re
Thelen LLP, 736 F.3d 213, 219 (2d Cir. 2013)).
1.
False Arrest.
As a basis for a § 1983 claim based on false arrest, the elements of false arrest
are the substantially the same under federal and New York law. Rodriguez, 649
F.Supp.2d at 301 citing Savino v. City of New York, 331 F.3d 63, 75 (2d Cir. 2003);
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Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996). “‘To state a claim for false arrest, a
plaintiff must allege that “(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.’” Rodriguez, 649
F.Supp.2d at 305, quoting Savino, 331 F.3d at 75 (internal citations omitted). As to the
first element, plaintiff must allege defendant was personally involved in the arrest. Id.
“‘It is well settled in this Circuit that personal involvement of defendants in alleged
constitutional deprivations is a prerequisite to an award of damages under § 1983.’”
Spavone v. New York State Dept. of Correctional Services, 719 F.3d 127, 135 (2d Cir.
2013) (quoting Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995)). Where a false
arrest is alleged as the ground as a § 1983 claim based on a Fourth Amendment
violation, plaintiff must allege plausible facts showing defendant was directly involved or
an inference of direct involvement in plaintiff’s arrest. See Rodriguez v. City of New
York, 649 F.Supp.2d 301, 305-06 (S.D.N.Y. 2009) (dismissing complaint for failure to
state a claim where DA defendants not shown to have directed or participated in
plaintiff’s arrest). Even an allegation that defendant assisted the police in their
investigation leading to plaintiff’s arrest is insufficient. Rodriguez, 649 F.Supp.2d at
306.
Here, the Amended Complaint fails to allege facts upon which Individual
Defendants’ personal involvement in Plaintiff’s arrest plausibly may be inferred. Plaintiff
states no allegation that any Individual Defendant participated directly in Plaintiff’s
arrest. Such failure requires dismissal. See Mayzick v. County of Nassau, 32
F.Supp.2d 399, 403 (E.D.N.Y. 2014) (conclusory assertions insufficient to support false
8
arrest claims), Rodriguez, 649 F.Supp.2d at 305 (no allegation that defendants were
personally involved in plaintiff’s arrest or facts upon which such personal involvement
may be inferred). Specifically, Plaintiff alleges that the criminal information, presumably
pursuant to N.Y. Crim. Proc. Law § 200.15, the basis upon which Plaintiff was arrested,
was filed by a Cattaraugus County Deputy Sheriff, T.S. Pence (“”Pence”, “Deputy
Pence” or “the Deputy Sheriff”), who is not a defendant, not by Individual Defendants.
As such, the only plausible inference that can be drawn from Plaintiff’s allegations is
that the Deputy Sheriff decided to charge and arrest Plaintiff because, regardless of
whether Individual Defendants knew the information upon which he may have relied
was false, the Deputy Sheriff believed the information Individual Defendants provided in
the alleged statements established probable cause for Plaintiff’s arrest for violation of §
260.32[1]. Moreover, Plaintiff does not allege that Deputy Pence relied solely on such
statements and did not conduct his own investigation, or that Individual Defendants
importuned Pence to arrest Plaintiff. Rodriguez, 649 F.Supp.2d at 306 (assistance to
police investigation leading to plaintiff’s arrest insufficient to establish personal
involvement in alleged false arrest). The mere reporting to a law enforcement officer by
third-persons, here the Individual Defendants, of facts or a belief that another person,
such as Plaintiff, has committed a crime without more does not render such reporting
persons liable for false arrest. See King v. Crossland Savings Bank, 111 F.3d 251, 257
(2d Cir. 1997) (to hold false arrest defendant liable under New York law as one who
affirmatively instigated or procured arrest, plaintiff must show the defendant did more
than merely provide information to the police because “[t]he mere identification of a
potential culprit does not give rise to liability [for false arrest].”);4 Rodriguez, 649
4
Unless otherwise indicated all bracketed material added.
9
F.Supp.2d at 305-06 (District Attorney defendants lacked sufficient personal
involvement in plaintiff’s alleged false arrest where District Attorney defendants did not
direct or participate in plaintiff’s arrest and only assisted in the investigation which
resulted in plaintiff’s arrest). Thus, the Amended Complaint fails to allege facts plausibly
demonstrating Individual Defendants were personally involved in effectuating Plaintiff’s
alleged false arrest. As such, Plaintiff has failed to sufficiently allege facts establishing
the first element of Plaintiff’s false arrest claim, and the Amended Complaint should be
DIMISSED as to the Individual Defendants on Plaintiff’s false arrest claim.
2.
Malicious Prosecution.
Although not separately alleged, Plaintiff appears to assert a claim for malicious
prosecution as a violation of his Fourth Amendment protections. See Amended
Complaint ¶ Nineteenth (“the charges placed against the Plaintiff by the individual
defendants were false and malicious and without any foundation in fact or law.”); ¶
Twenty-Fourth (“Defendants knew that the prosecution of plaintiff was without any basis
in law and was malicious.”). The elements for a malicious prosecution claim asserted
pursuant to § 1983 are “‘(1) that the defendant initiated a prosecution against plaintiff,
(2) that the defendant lacked probable cause to believe the proceeding could succeed,
(3) that the defendant acted with malice, and (4) that the prosecution was terminated in
plaintiff’s favor.’” Rohman v. New York City Transit Authority, 215 F.3d 208, 215-16 (2d
Cir. 2000) (quoting Posr v. Court Officer Shield No. 207, 180 F.3d 409, 417 (2d Cir.
1999)). In addition, a § 1983 plaintiff must allege a “sufficient post-arraignment liberty
restraint to implicate the plaintiff’s Fourth Amendment rights.” Rohman, 215 F.3d at 215
(citing cases). Where, as here, a plaintiff seeks to impose § 1983 liability, in order to
10
meet the first element – that Individual Defendants initiated the prosecution -- for a
malicious prosecution claim, “‘it must be shown that defendant played an active role in
the prosecution, such as giving advice and encouragement or importuning the
authorities to act.’” Rohman, 215 F.3d at 217 (quoting DeFilippo v. County of Nassau,
583 N.Y.S. 2d 283, 284 (2d Dep’t 1992)). “‘Mere reporting of a crime to police and
giving testimony is insufficient.’” Id. While Plaintiff alleges Individual Defendants were
aware that Defendants’ statements given to Pence regarding Plaintiff were false,
Amended Complaint ¶ Twenty-Third, and that the “prosecution of plaintiff was . . .
malicious,” Id. ¶ Nineteenth, Plaintiff fails to provide facts upon which it may be plausibly
inferred that Individual Defendants initiated such prosecution by “‘playing an active role
in the prosecution, such as by giving advice and encouragement or importuning
authorities to act.” Rohman, 215 F.3d at 217. Nor does Plaintiff state the facts upon
which such falsity allegation is based thus failing the plausibility requirement. See
Mayzick, 32 F.Supp.3d at 403 (“actual evidence of falsity” required). Indeed, the
Amended Complaint alleges only that Defendant NYSOPWDD “condoned, cajoled,
urged and required Individual Defendants to act in violation of the Plaintiff’s
constitutional rights,” Amended Complaint ¶ Sixteenth, but not, as required, that
Individual Defendants urged or importuned Deputy Sheriff Pence to file the alleged
unfounded charges against Plaintiff. In short, if facts exist showing that the Individual
Defendants knew the statements or information given to Pence upon which Pence
placed or charges against Plaintiff were false and played an active role in the
prosecution of Plaintiff by giving advice or encouragement or importuning Pence to file
11
the charges, thus demonstrating Individual Defendants initiated the prosecution, Plaintiff
has not alleged them.
That the charges were dismissed by the District Attorney in the interests of
justice, Amended Complaint ¶ 13, does not necessarily constitute a termination under
New York law in Plaintiff’s favor, a required element of Plaintiff’s malicious prosecution
claim. See Lynch v. Suffolk County Police Dep’t, 348 Fed.Appx. 672, 2009 WL
3287565, at **1-2 (2d Cir. Oct. 14, 2009) (dismissal pursuant to N.Y. Crim. Proc. Law §
170-40 “in the interest of justice . . . cannot provide favorable termination required as
basis for a claim of malicious prosecution.”) (quoting Hygh v. Jacobs, 961 F.2d 359, 368
(2d Cir. 1992) (citing Ryan v. N.Y. Tel. Co., 467 N.E.2d 487, 492 (N.Y. 1984))).
Although where the court dismissed in the interest of justice based on its finding that the
plaintiff was innocent and the charges groundless, such dismissal provides a basis for a
malicious prosecution claim, see Cantalino v. Danner, 754 N.E.2d 164, 167-68 (N.Y.
2001), the Amended Complaint makes no such allegation and Plaintiff’s malicious
prosecution claim should be dismissed on this ground as well. As such, the Amended
Complaint has failed to state a malicious prosecution claim under § 1983 and therefore
should be DISMISSED as to this claim.
Defendants have not requested that such dismissal be with prejudice.
Nevertheless, where further amendment of the complaint would be futile, dismissal of
the complaint with prejudice is not an abuse of discretion. See Van Buskirk v. The New
York Times Co., 325 F.3d 87, 92 (2d Cir. 2003) (affirming district court’s dismissal of
complaint with prejudice for failure to state a claim where amendment of the complaint
would have been futile). A claim is futile if it “could not withstand a motion to dismiss
12
under Rule 12(b).” Dougherty v. Town of N. Hempstead Bd. of Zoning Appeals, 282
F.3d 83, 88 (2d Cir. 2002). Here, Plaintiff’s claims against the state Defendants are
most assuredly futile based on such Defendants’ 11th Amendment immunity which
Plaintiff does not dispute and thus dismissal of the Amended Complaint as to State
Defendants should be with prejudice. Second, as amply demonstrated by a review of
the Proposed Amended Complaint against the Individual Defendants, Discussion, infra,
at 13-15, on Plaintiff’s motion to amend, Plaintiff manifestly lacks facts sufficient to avoid
the conclusion that Plaintiff’s claims against the Individual Defendants cannot meet
Iqbal’s standards on the critical elements of personal involvement and initiation of the
criminal prosecution lodged against Plaintiff by Pence as well as the absence of a
favorable disposition, prerequisites to Plaintiff’s false arrest and malicious prosecution
claims. Thus, the court finds dismissal of the Amended Complaint should also be with
prejudice as to all Defendants.
C.
Plaintiff’s Motion to Amend.
Plaintiff moves for leave to file an amended complaint, attaching the Proposed
Amended Complaint as Plaintiff’s Motion Exh. E. Defendants oppose, contending that
based on 11th Amendment immunity, the Proposed Amended Complaint’s asserted
claims against State Defendants are futile, Defendants’ Response Memorandum at 4-5,
and that the Proposed Amended Complaint also fails to state any viable § 1983 claim
against the Individual Defendants, Defendants’ Response Memorandum at 5-6, based
on Plaintiff’s failure to sufficiently allege Individual Defendants’ personal involvement in
Plaintiff’s arrest, that Individual Defendants initiated the prosecution of Plaintiff, and that
the prosecution of Plaintiff resulted in a favorable termination, i.e., an acquittal or
13
unqualified dismissal. Id. More specifically, Defendants contend that in contrast to the
Amended Complaint which alleged the charges against Plaintiff were dismissed “in the
interest of justice,” Amended Complaint ¶ Thirteenth, the Proposed Amended Complaint
merely alleges the charges against Plaintiff were “dismissed by motion of the
Cattaraugus County District Attorney.” Proposed Amended Complaint ¶ Seventeenth.
Defendants’ Response Memorandum at 5. As such, Defendants contend the Proposed
Amended Complaint is futile. For purposes of Fed.R.Civ. 15(a), a proposed
amendment is futile if it “could not withstand a motion to dismiss under Rule 12(b)(6).”
Dougherty, 282 F.3d at 88.
Here, the Proposed Amended Complaint suffers from the same infirmities as
does the Amended Complaint. First, without recognizing State Defendants’ wellrecognized 11th Amendment immunity, the Proposed Amended Complaint again names
the State of New York and the NYSOPWDD, which Plaintiff acknowledges is an arm of
the state. See Amended Complaint ¶ Fourth (State of New York is a legal entity), ¶ Fifth
(“New York States maintains a Department of the Office for People with Developmental
Disabilities”). Such entities are thus beyond the subject matter jurisdiction of this court.
See Discussion, supra, at 5-6 (citing caselaw). As discussed, Discussion, supra, at 12,
even a dismissal in the interest of justice as alleged by the Amended Complaint is
insufficient unless the dismissing court determine that Plaintiff was innocent or the
charges were groundless. As such, as to Plaintiff’s malicious prosecution claim, the
Proposed Amended Complaint would require dismissal and is futile. Second, a fair
reading of the Proposed Amended Complaint indicates it, like the Amended Complaint,
fails to plausibly allege the personal involvement of Individual Defendants in either
14
Plaintiff’s arrest or prosecution. For example, although the Proposed Amended
Complaint states that the criminal information against Plaintiff was filed by Deputy
Pence based on an investigative report of Defendant Wilson which, in turn, was based
on statements of Defendants Laborde and Riley, as with the Amended Complaint, these
additional allegations, even if true, do not allege specific facts plausibly demonstrating
the Individual Defendants participated in or directed Plaintiff’s arrest or initiated the
prosecution of Plaintiff. See Discussion, supra, at 7-13 (citing cases). As such they
are conclusory and would require dismissal. See Mayzick, 32 F.3d at 403-04. Nor do
the allegations add any facts in the allegations in the Amended Complaint showing that
these Defendants actively participated in the Plaintiff’s prosecution or importuned
Deputy Pence to file the charges against Plaintiff sufficient to show Individual
Defendants initiated the prosecution of Plaintiff. See Discussion, supra, at 10-12 (citing
cases). Further, as with the Amended Complaint, while the Proposed Amended
Complaint states that Defendants were aware the information provided to Pence was
false, no facts are alleged from which the truth of this otherwise conclusory allegation
can be plausible inferred sufficient to avoid dismissal. Discussion, supra, at 11 (citing
caselaw). The Proposed Amended Complaint’s allegation that the charges against
Plaintiff were dismissed on motions of the county prosecutor is also deficient on its face
to support a malicious prosecution claim as it fails to allege such termination was a
disposition indicating “the accused [Plaintiff] is not guilty.” Singleton v. City of New
York, 632 F.2d 185, 193 (2d Cir. 1992). See also Discussion, supra, at 12 (citing
cases). Thus, the Proposed Amended Complaint could not avoid a further motion to
15
dismiss for failure to state a claim against Defendants as to both Plaintiff’s false arrest
and malicious prosecution claims and, as such, Plaintiff’s motion is DENIED.
CONCLUSION
Based on the foregoing, Defendants’ Motions to Dismiss the Amended
Complaint, Doc. Nos. 5, 9, should be GRANTED as to both the State and Individual
Defendants with prejudice. Plaintiff’s motion for leave to file a Second Amended
Complaint, Doc. No. 12, is DENIED; Plaintiff’s motion for a stay is DISMISSED as moot;
the Clerk of Court should be directed to close the file.
Respectfully submitted as to Defendants’
Motions to Dismiss,
/s/ Leslie G. Foschio
_________________________________
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
SO ORDERED as to
Plaintiff’s Motion to Amend.
/s/ Leslie G. Foschio
________________________________
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
Dated: September 18, 2015
Buffalo, New York
16
Pursuant to 28 U.S.C. §636(b)(1), it is hereby
ORDERED that this Report and Recommendation be filed with the Clerk of the
Court.
ANY OBJECTIONS to this Report and Recommendation must be filed with the
Clerk of the Court within fourteen (14) days of service of this Report and
Recommendation in accordance with the above statute, Rules 72(b), 6(a) and 6(e) of
the Federal Rules of Civil Procedure and Local Rule 72.3.
Failure to file objections within the specified time or to request an extension of
such time waives the right to appeal the District Court's Order. Thomas v. Arn, 474 U.S.
140 (1985); Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir.
1989); Wesolek v. Canadair Limited, 838 F.2d 55 (2d Cir. 1988).
Let the Clerk send a copy of this Report and Recommendation to the attorneys
for the Plaintiff and the Defendants.
SO ORDERED.
/s/ Leslie G. Foschio
_________________________________
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
DATED:
September 18, 2015
Buffalo, New York
17
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