Lee v. Kitchen et al

Filing 7

DECISION AND ORDER dismissing 5 the amended complaint with prejudice. The Clerk of Court is hereby directed to dismiss the amended complaint and terminate the case. SO ORDERED. Signed by Hon. Elizabeth A. Wolford on 5/11/17. (JPL) (A copy of this Decision and Order has been mailed to Plaintiff)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

MELVIN LEE,
Plaintiff,

DECISION AND ORDER
v.

1: 16-CV-00829 EA W
JOEL KITCHEN, CANISUS COLLEGE, as
a person, DOMINIC J. BARONE, BUFFALO
STATE COLLEGE, as a person, and GARY
EVERETT,
Defendants.

INTRODUCTION
Plaintiff Melvin Lee ("Plaintiff') brings this action pursuant to 42 U.S.C. § 1983,
alleging violations of his constitutional rights. (Dkt. 1). Plaintiff was previously granted

in forma pauperis status (Dkt. 4 at 2), and has now timely submitted an amended
complaint (Dkt. 5), as permitted by the Court. (Dkt. 4). The Court is required to screen
Plaintiffs amended complaint pursuant to 28 U.S.C. § 1915(e).

DISCUSSION
I.

Plaintiff's Allegations

Plaintiff alleges that Defendant Joel Kitchen ("Kitchen"), a student at Canisius
College during the time period at issue, lied to Defendant Canisius College ("Canisius")
public safety officers regarding a robbery allegedly perpetrated by Plaintiff on February
13, 2006.

(Dkt. 5 at 4-5).

Plaintiff asserts that a Canisius public safety officer,

Defendant Dominic J. Barone ("Barone"), failed to sufficiently investigate Kitchen's
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allegation because Barone failed to interview any witnesses to the incident beyond
Kitchen. (Id. at 7). Plaintiff claims that Barone forwarded his incident investigation
report to Defendant Gary Everett ("Everett"), the public safety captain at Canisius, and
the Erie County District Attorney's office.

(Id. at 8-9).

Plaintiff was thereafter

prosecuted for and convicted by a jury in Erie County Court of "one count of Robbery in
the First Degree in violation of [New York] Penal Law section 160.15(3) and one count
of Criminal Possession of a Weapon in the Third Degree in violation [New York Penal
Law] § 265.02(1)." (Id. at 34). Plaintiff was sentenced to 10 years imprisonment and 5
years of post-release supervision.

Plaintiffs conviction was upheld on direct

(Id.).

appeal. (Id. at 16-17; see, e.g., id. at 40-41 ).
Plaintiff asserts that Defendants violated his constitutional rights by withholding
favorable evidence and by disallowing him from obtaining witnesses to testify on his
behalf. (Id. at 5, 13). Plaintiff also raises a Sixth Amendment claim for violations of his
right to confront his accuser, (id. at 16-18), and claims for false arrest and malicious
prosecution. (Id. at 18-19). He requests damages of $25,000,000.00. (Id. at 5).
II.

Standard of Review
Under § 1915(e)(2), the Court must conduct an initial screening of Plaintiffs

amended complaint. See 28 U.S.C. § 1915(e)(2). The Court must dismiss the complaint
if it is "frivolous or malicious; fails to state a claim upon which relief may be granted; or
seeks monetary relief from a defendant who is immune from such relief." Id. "An action
is 'frivolous' for§ 1915(e) purposes if it has no arguable basis in law or fact." Montero
v. Travis, 171 F.3d 757, 759 (2d Cir. 1999).
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In evaluating the complaint, a court must accept as true all of the plaintiffs factual
allegations, and must draw all inferences in the plaintiffs favor. See, e.g., Larkin v.

Savage, 318 F.3d 138, 139 (2d Cir. 2003). Although "a court is obliged to construe [pro
se] pleadings liberally, particularly when they allege civil rights violations," McEachin v.
McGuinnis, 357 F.3d 197, 200 (2d Cir. 2004), even prose pleadings must meet the notice
requirements of Rule 8 of the Federal Rules of Civil Procedure, Wynder v. McMahon,
360 F.3d 73, 79 n.11 (2d Cir. 2004) ("[T]he basic requirements of Rule 8 apply to selfrepresented and counseled plaintiffs alike.").
"[A] district court should look with a far more forgiving eye in examining whether
a complaint rests on a meritless legal theory for purposes of section [ § 1915(e)] than it
does in testing the complaint against a Rule 12(b)(6) motion." Nance v. Kelly, 912 F.2d
605, 606 (2d Cir. 1990). In determining whether a complaint survives a Rule 8 notice
inquiry, the plaintiff need "only give the defendant fair notice of what the ... claim is and
the grounds upon which it rests." Erickson v. Pardus, 551 U.S. 89, 93 (2007) (quoting

Bell At!. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

"So long as the [in forma

pauperis] plaintiff raises a cognizable claim, dismissal on the basis of factual deficiencies
in the complaint must wait until the defendant attacks the lack of such details on a Rule
12(b)(6) motion." Nance, 912 F.2d at 607.
III.

Screening Plaintiff's Complaint
A.

Defendant Buffalo State College Must Be Dismissed

Plaintiff names Buffalo State College ("BSC") as a Defendant in this action. (Dkt.
5 at 1).

A prerequisite for liability under § 19 83 is personal involvement by the

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defendant accused of the constitutional deprivation. See Sealey v. Giltner, 116 F .3d 4 7,
51 (2d Cir. 1997). The amended complaint is completely devoid of any facts establishing
BSC's involvement in Plaintiff's claims. (See Dkt. 5). Therefore, Plaintiff fails to state
a claim as to B SC, and B SC must be dismissed.
B.

State Action

Section 1983 provides, in relevant part:
Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory or the District of Columbia,
subjects, or causes to be subjected, any citizen of the United States or other
person within the jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution and laws, shall be
liable to the party injured in an action at law, suit in equity, or other proper
proceeding for redress ....
42 U.S.C. § 1983. "In order to maintain a[§] 1983 action, two essential elements must
be present: ( 1) the conduct complained of must have been committed hy a person acting
under color of state law; and (2) the conduct complained of must have deprived a person
of rights, privileges, or immunities secured by the Constitution or laws of the United
States." Pitchell v. Callan, 13 F.3d 545, 547 (2d Cir. 1994). "It is well settled that to
state a civil rights claim under § 1983, a complaint must contain specific allegations of
fact which indicate a deprivation of constitutional rights." Davidson v. Mann, 129 F.3d
700, 701 (2d Cir. 1997) (quoting Alfaro Motors, Inc. v. Ward, 814 F.2d 883, 887 (2d Cir.
1987)).
As mentioned above, in order to pursue a claim under§ 1983, the conduct at issue
must be under color of state law.

"[T]he core purpose of § 1983 is to provide

compensatory relief to those deprived of their federal rights by state actors." Hardy v.

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NY.C. Health & Hosp. Corp., 164 F.3d 789, 795 (2d Cir. 1999) (internal citations

omitted). "The traditional definition of acting under color of state law requires that the
defendant in a § 1983 action have exercised power possessed by virtue of state law and
made possible only because the wrongdoer is clothed with the authority of state law."
Carlos v. Santos, 123 F.3d 61, 65 (2d Cir. 1997); see, e.g., Hollander v. Copacabana
Nightclub, 624 F.3d 30, 33 (2d Cir. 2010). Purely private conduct is not covered by

§ 1983. Am. Mfrs. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999).
1.

Plaintiff Fails to Allege Kitchen Acted Under State Law

Plaintiff alleges that Kitchen was a "student" at Canisius when Kitchen lied about
Plaintiffs actions. (Dkt. 5 at 2; id. at 7). Plaintiff seems to only allege that Kitchen
reported the robbery and then lied to Barone. In no respects does Plaintiff allege that
Kitchen acted under color of state law. Plaintiff mentions that he was convicted on the
testimony of one witness, presumably Kitchen. (Id. at 10). A trial witness in a criminal
case does not act under color of state law for § 1983 purposes. San Filippo v. US. Trust
Co. of NY, Inc., 737 F.2d 246, 266 (2d Cir. 1984) ("Even assuming some legitimate

basis for charging that the defendants had given any false testimony ... [the plaintiff] is
precluded from bringing suit on that ground both because a private party giving
testimony is not 'acting under color of state law' for purposes of§ 1983, and because all
witnesses, whether private parties or government officials, have absolute immunity from
damages liability for their testimony under [Briscoe v. LaHue, 460 U.S. 325 (1983)]."),
overruled on other grounds by Rehberg v. Paulk, 566 U.S. 356 (2012).

Similarly, a

witness before a grand jury is not a state actor for§ 1983 purposes. Rehberg, 566 U.S. at

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375. Thus, Plaintiff failed to state a claim as to Kitchen, and Kitchen must be dismissed
as a party to this action.
2.

Barone and Everett May be State Actors

Plaintiff asserts that Barone and Everett, as members of Canisius' public safety
department, were state actors. (Dkt. 5 at 14). Plaintiff attaches to the amended complaint
Canisius' "2008 Annual Security Report," which states that "Canisius College Public
Safety officers are granted peace officer status according to New York law and have full
powers of arrest when acting pursuant to their special duties." (Id. at 21). Allegations
that an individual was acting as a duly authorized peace officer are sufficient to allege
that the individual was acting under color of state law. Schindler v. French, 232 F. App'x
17, 19 (2d Cir. 2007); see, e.g., Fabrikant v. French, 691 F.3d 193, 203 (2d Cir. 2012).
Thus, Plaintiff's amended complaint sufficiently alleges that Barone and Everett were
acting under color of state law.
3.

Canisius May be a State Actor

Plaintiff claims that Canisius, through its public safety department, undertook
police actions, including the investigation of a reported crime and the arrest of Plaintiff,
and, therefore, Canisius acted under color of state law even though it is a private college.

(See Dkt. 5).
"[C]onduct that is formally 'private' may become so entwined with governmental
policies or so impregnated with a governmental character as to become subject to the
constitutional limitations placed upon state action." Perez v. Sugarman, 499 F.2d 761,
764 (2d Cir. 1974) (quoting Evans v. Newton, 382 U.S. 296, 299 (1966)). A private

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entity is a state actor when "(l) the State compelled the conduct [the 'compulsion test'],
(2) there is a sufficiently close nexus between the State and the private conduct (the
'close nexus test' or 'joint action test'], or (3) the private conduct consisted of activity
that has traditionally been the exclusive prerogative of the State [the 'public function
test']." McGugan v. Aldana-Bernier, 752 F.3d 224, 229 (2d Cir. 2014) (quoting Hogan

v. A.O. Fox Mem 'l Hosp., 346 F. App'x 627, 629 (2d Cir. 2009)) (alterations in original).
"A merely conclusory allegation that a private entity acted in concert with a state actor
does not suffice to state a§ 1983 claim against the private entity." Ciambriello v. Cty. of

Nassau, 292 F.3d 307, 324 (2d Cir. 2002). "The fundamental question under each test is
whether the private entity's challenged actions are 'fairly attributable' to the state."

McGugan, 752 F.3d at 229 (quoting Fabrikant, 691 F.3d at 207).
Plaintiffs allegations, read liberally, state that Canisius, through Barone and
Everett, was responsible for Plaintiffs arrest and the investigation which led to that
arrest. (See Dkt. 5). Plaintiff claims that there was a "connection" between Canisius and
the state government such that Canisius was acting under color of state law. (Id. at 11).
Whether Canisius is indeed a private entity, and whether it was a state actor under the
compulsion, close-nexus, or public-function test, is not properly resolved at this stage of
the litigation. Plaintiffs allegations are sufficient, at this stage, to state that Canisius was
a state actor for purposes of§ 1983.
C.
In

Plaintiff's Claims Must be Dismissed
essence,

Plaintiff

claims

his

conviction

and

imprisonment

were

unconstitutionally obtained. Plaintiff broadly argues that Barone, Everett, and Canisius
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had a duty to investigate the allegations against him and to interview witnesses who could
have been favorable to Plaintiff at trial. (See generally id.).

Because they failed to do

so, they withheld evidence which could have been used to secure Plaintiffs acquittal, in
violation of Plaintiffs constitutional rights.

(See id.).

Plaintiff also raises a Sixth

Amendment claim for violations of his right to confront his accuser. (Id. at 16-18).
Even assuming that Plaintiffs allegations are true, Plaintiff fails to state a claim.
[I]n order to recover damages for an unconstitutional conviction or
imprisonment, a § 1983 plaintiff must demonstrate that "the conviction or
sentence has been reversed on direct appeal, expunged by executive order,
declared invalid by a state tribunal authorized to make such determination,
or called into question by a federal court's issuance of a writ of habeas
corpus." A claim for damages based on a conviction or sentence that has
not been invalidated as described above is not cognizable under § 1983.

Tavarez v. Reno, 54 F.3d 109, 110 (2d Cir. 1995) (internal citations omitted) (quoting
Heck v. Humphrey, 512 U.S. 477, 487 (1994)). Plaintiff was convicted in state court by a
jury of robbery and criminal possession of a weapon, and was sentenced to 10 years
imprisonment and five years of post-release supervision. (Dkt. 5 at 34). The New York
Supreme Court, Appellate Division, Fourth Department unanimously affirmed Plaintiffs
conviction. (Id. at 40-41 ). Plaintiff does not allege that his conviction was later reversed,
expunged, declared invalid, or called into question through the issuance of a writ of
habeas corpus. Thus, Plaintiff cannot challenge his conviction or imprisonment under

§ 1983.
To the extent that Plaintiff raises false arrest and malicious prosecution claims,
they also fail.

(See Dkt. 5 at 18-19).

Claims for malicious prosecution and false

arrest/false imprisonment may be brought pursuant to § 1983 because they implicate the
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Fourth Amendment's protection of an individual's liberty interest with respect to criminal
prosecutions. Singer v. Fulton Cty. Sheriff, 63 F.3d 110, 115 (2d Cir. 1995). A plaintiff
bringing such a claim must meet the state law requirements for the underlying torts,
Manganiello v. NYC, 612 F.3d 149, 161 (2d Cir. 2010), and "show some deprivation of

liberty consistent with the concept of 'seizure'" sufficient to implicate the Fourth
Amendment. Singer, 63 F.3d at 116.
"To state a claim for false arrest under New York law, a plaintiff must show that
'(I) 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."' Savino v. NYC, 331F.3d63, 75 (2d Cir. 2003) (quoting
Bernard v. United States, 25 F.3d 98, 102 (2d Cir. 1994)). As explained by the Supreme

Court, a false arrest claim "consists of detention without legal process .... " Wallace v.
Kato, 549 U.S. 384, 389 (2007). As a result, the false arrest ends once the [arrestee] is

arraigned and subject to legal process, and thereafter any claim of unlawful detention
forms part of the entirely separate tort of malicious prosecution. Id. at 389-390. Plaintiff
does not assert that his pre-arraignment detention was unconstitutional; his claims relate
to his post-conviction imprisonment. Thus, Plaintiff fails to state a claim for false arrest.
Plaintiff similarly fails to state a claim for malicious prosecution. "Under New
York law, 'the elements of an action for malicious prosecution are (1) the initiation of a
proceeding, (2) its termination favorably to plaintiff, (3) lack of probable cause, and (4)
malice."' Savino, 331 F.3d at 72 (quoting Colon v. NY.C., 60 N.Y.2d 78, 82 (1983)).

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Plaintiff's prosecution did not terminate in his favor. Therefore, Plaintiff fails to state a
claim for malicious prosecution.
Plaintiff fails to state a valid claim under § 1983, and, therefore, the amended
complaint must be dismissed. Because no amendment would cure the defects exposed
above, the amended complaint is dismissed with prejudice. See Cuoco v. Moritsugu, 222
F.3d 99, 112 (2d Cir. 2000) (holding that, where repleading would be futile, the district
court is not required to allow a pro se plaintiff leave to replead).
Additionally, Plaintiff's claims are likely time barred. "In [§] 1983 actions, the
applicable limitations period is found in the 'general or residual state statute of
limitations for personal injury actions .... "' Pearl v. City of Long Beach, 296 F.3d 76,
79 (2d Cir. 2002) (quoting Owens v. Okure, 488 U.S. 235, 249-50 (1989)). A § 1983
action filed in New York is subject to a three-year statute of limitations.

Fischer, 738 F.3d 509, 517 (2d Cir. 2013).

Hogan v.

The events underlying Plaintiff's

constitutional claims occurred in 2006. (See Dkt. 5). Plaintiff did not file this action
until October 19, 2016. Thus, even if Plaintiff could state a claim, his claims would
likely be barred by the statute of limitations.

CONCLUSION
The amended complaint is dismissed with prejudice for failure to state a claim.
The Clerk of Court is hereby directed to dismiss the amended complaint and terminate
the case.
Additionally, the Court certifies, pursuant to 28 U.S.C. § 1915(a), that any appeal
from this Order would not be taken in good faith and, therefore, leave to appeal to the
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Court of Appeals as a poor person is denied. See Coppedge v. United States, 369 U.S.
438 (1962); 28 U.S.C. § 1915(a)(3). Any request to proceed informa pauperis on appeal
should be directed by motion to the United States Court of Appeals for the Second
Circuit in accordance with Rule 24 of the Federal Rules of Appellate Procedure.
SO ORDERED.

Dated: May 11, 2017
Rochester, New York

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