Davis Payne v. Galie et al
Filing
55
DECISION AND ORDER denying 11 Plaintiff's Motion for Judgment on the Pleadings; granting 23 Defendants' Motion to Dismiss Plaintiff's Complaint; and the Complaint is dismissed in its entirety as to all defendants. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 10/16/12. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
CHANIKKA DAVIS-PAYNE,
DECISION AND ORDER
No. 09-CV-6363(MAT)
Plaintiff,
-vsJOHN GALIE, THOMAS FOURNIER, THEODORE
WEED, JOHN FASO, JOSEPH GIANQUINTO,
NIAGARA FALLS POLICE DEPARTMENT, DOROTHY
JONES, COUNTY CRIME TASK FORCE,
Defendants.
I.
Introduction
Pro se plaintiff Channika Davis-Payne (“Davis” or “Plaintiff”)
commenced this action pursuant to 42 U.S.C. § 1983 asserting that
Defendants violated her constitutional rights in connection with
her arrest on October 5, 2005, and March 6, 2007, by the City of
Niagara Falls Police Department for drug- and weapons-related
offenses. After Defendants answered the Complaint, Plaintiff filed
a Motion for Judgment on the Pleadings (Dkt #11). Defendant Dorothy
Jones (“Jones”), an investigator with the New York State Police who
was involved in the second arrest, filed responsive papers opposing
the Motion for Judgment on the Pleadings (Dkt ##20, 21). The
remaining defendants, who are police officers employed by the City
of Niagara Falls Police Department (“the City Defendants”), filed
a Motion to Dismiss Plaintiff’s Complaint (Dkt #23). For the
reasons
discussed
below,
Defendants’
motion
is
granted,
and
Plaintiff’s Complaint is dismissed in its entirety against all
defendants.
II.
Background
A.
The October 5, 2005 Search and Seizure
On October 5, 2005, Defendants executed a search warrant at
Plaintiff’s home. The warrant was based upon information obtained
from confidential informant #26091, to whom Plaintiff sold illegal
narcotics. See Declaration of Thomas M. O’Donnell, Esq. (“O’Donnell
Decl.”),
¶¶
22-23
&
Exhibit
(“Ex.”)
A.
During
the
search,
Defendants found two handguns, a quantity of cocaine, and a digital
scale, as detailed in the Search and Seizure Inventory. See id.,
¶ 24 & Ex. B. As a result, Plaintiff was charged by a Felony
Complaint with violating New York State Penal Law (“P.L.”) § 220.50
(Criminal Possession of Drug Paraphernalia in the Second Degree
(possession of a scale)); P.L. § 220.03 (Crminal Possesion of
Controlled Substaince in the Seventh Degree) and P.L. § 265.02(4)
(Criminal Possession of a Weapon in the Third Degree (possession of
a loaded weapon)). Id., ¶ 25.
On October 25, 2008, Niagara Falls City Court Judge Robert M.
Restaino determined that there was probable cause to believe that
Plaintiff had committed these crimes. Accordingly, Plaintiff was
ordered held for action by the Grand Jury under City Court Docket
No. 08-58608. See id. & Ex. C.
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On March 7, 2007, the three crimes charged in the Felony
Complaint were dismissed as part of a plea entered by Plaintiff on
an unrelated matter in Niagara County Court. See id. & Ex. D
(Certificate of Disposition).
B.
The March 6, 2007 Arrest
Plaintiff states that the actions forming the basis of her
second claim occurred on March 7, 2007. Defendants could find no
record of any actions on their part in regards to Plaintiff on
March 7, 2007. Plaintiff, however, was arrested on March 6, 2007,
pursuant to two Felony Information/complaints. Defendants have
reasonably assumed Plaintiff intended to refer in her Complaint to
the March 6, 2007 arrest.
As detailed in the two Felony Informations, Plaintiff sold a
quantity of crack cocaine to undercover investigator Dorothy Jones
of the New York State Police on February 21, 2007, at about 1:06
a.m.
Plaintiff
consequently
was
charged
with
violating
P.L.
§ 220.39 (Criminal Sale of a Controlled Substance in the Third
Degree and P.L. § 220.16 (Criminal Possession of a Controlled
Substance in the Third Degree).
On June 13, 2007, Plaintiff appeared in Niagara Falls City
Court, and Judge Restaino determined that there was probable cause
to
believe
that
Plaintiff
had
committed
the
crimes
alleged.
Plaintiff was held over and indicted by the Grand Jury. See
O’Donnell Decl., ¶¶ 33-36 & Exs. E & F. These charges ultimately
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were dismissed as part of a plea agreement entered September 19,
2007, on an unrelated matter. See O’Donnell Decl., ¶ 37. The
Certificate of Disposition, see Ex. D to O’Donnell Decl., indicates
only that the matter was sealed and does not specify the nature of
the plea agreement.
III. General Legal Principles
A.
42 U.S.C. § 1983
In order to state a claim under 42 U.S.C. § 1983, the
plaintiff
must
establish
the
following
elements:
(1)
conduct
attributable at least in part to a person acting under color of
state law, and (2) deprivation, as the result of the challenged
conduct,
of
a
right,
privilege,
or
immunity
secured
by
the
Constitution or laws of the United States. Dwares v. City of
New York, 985 F.2d 94, 98 (2d Cir. 1993).
B.
Motions to Dismiss Under F.R.C.P. 12(b)(6) & 12(c)
The City Defendants cite Rule 12(b)(6) in support of their
motion to dismiss. Because the City Defendants have filed an Answer
to the Complaint, it appears that this motion is more appropriately
made pursuant to Rule 12(c). The Court need not decide the issue
because in deciding a Rule 12(c) motion, the same standard as that
applicable to a motion under Rule 12(b)(6) is applied. Desiano v.
Warner–Lambert & Co., 467 F.3d 85, 89 (2d Cir. 2006).
Rule 12(b)(6) of the Federal Rules of Civil Procedure provides
that a complaint may be dismissed for “failure to state a claim
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upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). To
survive a motion to dismiss, “a complaint must contain sufficient
factual matter . . . to ‘state a claim to relief that is plausible
on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, ___, 129 S.Ct.
1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v.
Twombly,
550
U.S.
544,
570
(2007)).
“A
claim
has
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.” Id. (citing Twombly, 550 U.S.
at 556).
Thus, unless a plaintiff’s well-pleaded allegations have
“nudged [his] claims across the line from conceivable to plausible,
[the plaintiff’s] complaint must be dismissed.” Twombly, 550 U.S.
at 570. The Court must liberally construe all claims, accept all
factual
allegations
in
the
complaint
as
true,
and
draw
all
reasonable inferences in favor of the plaintiff. E.g., Roth v.
Jennings, 489 F.3d 499, 510 (2d Cir. 2007); Cargo Partner AG v.
Albatrans, Inc., 352 F.3d 41, 44 (2d Cir. 2003).
IV.
Discussion
Plaintiff’s
Complaint
asserts
(1)
an
illegal
search
and
seizure and false arrest by the City of Niagara Falls Police
Department on October 5, 2005; (2) a false arrest by the City of
Niagara Falls Police Department on March 6, 2007; and (3) a
conspiracy by Defendants violated Plaintiff’s constitutional rights
on both October 5, 2005, and March 6, 2007, by making “false
-5-
statements” in support of the arrest warrants, causing her “public
embarrassment”, destroying her property, and subjecting her to
harassment and duress.
A.
Plaintiff’s claims stemming from the October 5, 2005
arrest are barred by the statute of limitations.
Although the statute of limitations period in § 1983 cases is
determined by reference to state law, the determination of when a
claim accrues is governed by federal law. Veal v. Geraci, 23 F.3d
722, 724 (2d Cir. 1994). The statute of limitations for § 1983
claims premised on torts such as false arrest or false imprisonment
is three years. See Owens v. Okure, 488 U.S. 235, 251 (1989), aff’g
816 F.2d 45, 49 (2d Cir. 1987) (applying New York’s three-year
statute of limitations governing general personal injury actions to
litigant’s § 1983 claim regarding his arrest without cause and
beating by the police). In the first and third claims of her
Complaint, Plaintiff asserts allegations that sound in false arrest
with regard to the October 5, 2005 incident.
A § 1983 claim for false arrest rests on the Fourth Amendment
right of an individual to be free from unreasonable seizures,
including arrest without probable cause. Weyant v. Okst, 101 F.3d
845, 852 (2d Cir. 1996) (citing Lennon v. Miller, 66 F.3d 416, 423
(2d Cir. 1995)). Unless the statute of limitations is otherwise
tolled, a § 1983 claim for false arrest accrues on the date of the
alleged false arrest. Woods v. Candela, 47 F.3d 545 (2d Cir. 1995);
Greig v. Harmon, 182 F.3d 899, 1999 WL 373881, at *1 (2d Cir.
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May 24, 1999). Plaintiff’s claim for false arrest accrued on
October 5, 2005, when she was arrested. As noted above, Plaintiff
commenced the instant proceeding on June 23, 2009, or three years,
eight months, and eighteen days later. It is therefore untimely.
B.
“The
Plaintiff’s claims of false arrest stemming from the
October 5, 2005 arrest and the March 6, 2007 arrest fail
as a matter of law.
existence
of
probable
cause
to
arrest
constitutes
justification and is a complete defense to an action for false
arrest, whether that action is brought under state law or under
§ 1983.” Weyant, 101 F.3d at 852 (internal quotation and quotation
marks omitted) Furthermore, probable cause is a complete defense to
a false arrest claim, even where the plaintiff is ultimately
acquitted
of
the
criminal
charges.
Weyant,
101
F.3d
at
852
(citation omitted). Probable cause is presumed where, as here, a
grand jury has handed down an indictment. Bernard v. United States,
25 F.3d 98, 104 (2d Cir. 1994). The plaintiff can overcome the
presumption “by a showing that the indictment was procured by
‘fraud, perjury, the suppression of evidence or other police
conduct undertaken in bad faith.’” Id. (quotation omitted). Here,
however, Plaintiff’s allegations of wrongdoing on the part of
Defendants are too vague and conclusory to state a claim to relief
that is “plausible on its face.” Twombly, 550 U.S. at 570.
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For the foregoing reasons, the court dismisses Plaintiff’s
claims for false arrest arising from the 2005 and 2007 arrests
against all Defendants.
B.
Plaintiff’s claims of conspiracy fail as a matter of law.
In her third claim, Plaintiff asserts that the “County
Crime
Task Force” and the Niagara Falls Police Department conspired
against her to effectuate her two arrests and made false statements
against her to stain her reputation. As an initial matter, it does
not appear that the “County Crime Task Force” was ever served or is
an actual legal entity. The City Defendants have affirmatively pled
that the Niagara Falls Police Department is department of the City
of Niagara Falls and not a separate legal entity that may be sued.
In addition to these jurisdictional defects, Plaintiff’s claim has
other fatal flaws.
First, Plaintiff fails to set forth specific facts in support
of her claim that any Defendant engaged in a conspiracy. A claim of
conspiracy brought pursuant to § 1983 must be supported by more
than conclusory allegations. Leon v. Murphy, 988 F.2d 303, 311
(2d Cir. 1993); Polur v. Raffe, 912 F.2d 52 (2d Cir. 1990). A
plaintiff must allege “with at least some degree of particularity
overt acts which defendants engaged in which were reasonably
related to the promotion of the alleged conspiracy.” Powell v.
Workmen’s Compensation Bd. of State of N.Y., 327 F.2d 131, 137
(2d Cir. 1964).
Failure to allege any facts in support of a
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conspiracy claim results in dismissal. See id. Plaintiff seems to
suggest that the fact that members of the Crime Task Force and the
Niagara
Falls
Police
Department
participated
in
her
arrest
demonstrates the existence of a conspiracy. This is insufficient.
See Moffett v. Town of Poughkeepsie, No. 11–CV–6243 (ER), 2012 WL
3740724, at *7 (S.D.N.Y. Aug. 29, 2012) (“Plaintiff merely alleges
one communication between the Cornwall Police Department and the
Poughkeepsie
Police
Department—Gebert’s
Poughkeepsie
Police
Department
reporting
communication
Plaintiff's
to
the
domestic
dispute with Bachman, stating that Plaintiff threatened to commit
‘suicide by cop,’ and advising that Plaintiff might be on his way
to Fritz’s home in Poughkeepsie. This allegation, without more,
lacks a ‘factual basis supporting a meeting of the minds, such that
defendants entered into an agreement, express or tacit, to achieve
the unlawful end.’”) (quoting Webb v. Goord, 340 F.3d 105, 110
(2d Cir. 2003) (internal citations and quotation marks omitted)).
Moreover, Plaintiff’s attempt to allege that members of the
Niagara Falls Police Department conspired together fails due to the
“legal impossibility of pleading conspiracy by exclusive reference
to actions of employees of a single corporation.” Farbstein v.
Hicksville Pub. Library, 254 F. App'x 50, 51 (2d Cir. 2007) (citing
Herrmann v. Moore, 576 F.2d 453, 459 (2d Cir. 1978)).
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D.
Plaintiff’s claims of perjury, slander, destruction of
property, harassment, duress, and embarrassment fail as
a matter of law.
Throughout Plaintiff’s Complaint are suggestions of claims
that fall outside the ambit of
§ 1983. In her first claim,
Plaintiff alleges that Defendants committed slander, perjury, and
destruction of her property. In the second claim, she again alleges
perjury on the part of Defendants. In the third claim, she claims
harassment, duress, and “public embarrassment.”
“Although perjury and subornation of perjury can be filed as
criminal
charges,
they
are
not
cognizable
civil
claims
[for
purposes of § 1983] under either New York State or federal law.”
Sash v. City of N.Y., No. 05 Civ. 1544 DAB JCF, 2006 WL 2474874, at
*6 n.5 (S.D.N.Y. Aug. 11, 2006) (citing See Luckett v. Bure, 290
F.3d 493, 497 (2d Cir. 2002) (“We affirm the district court’s
dismissal of Luckett’s claims of sabotage, forgery, and perjury,
which are crimes and therefore do not give rise to civil causes of
action.”)). Although they could be cognizable as Fourth Amendment
violations that occurred in connection with the October 2005 arrest
and search, see Malley v. Briggs, 475 U.S. 335, 339-45 (1986)
(police officer not entitled to absolute immunity for damages under
§ 1983 where he sought an arrest warrant without probable cause),
they are time-barred as discussed above. With regard to the alleged
perjury in connection with her 2007 arrest, Plaintiff has failed to
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set
forth
allegations
that
are
“plausible
on
[their]
face.”
Twombly, 550 U.S. at 570.
With
respect
to
Plaintiff’s
allegations
of
“public
embarrassment”, “harassment”, and “duress”, none of these are
cognizable constitutional claims. A tort, such as slander, is not
actionable under § 1983 unless it implicates a liberty interest.
See Donato v. Plainview-Old Bethpage Cent. School Dist., 96 F.3d
623, 630-31 (2d Cir. 1996). In general, consequently, Plaintiff’s
claims are not actionable under § 1983. “. ; see also Savage v.
Snow, 575 F. Supp. 828, 837 (S.D.N.Y. 1983) (“The averment that a
tort was committed under color of state law is not enough.”)
(citing Gittlemacker v. Prasse, 428 F.2d 1, 6 (3d Cir. 1970)).
Plaintiff has not alleged that the embarrassment, duress, and
harassment she allegedly suffered implicated a liberty interest.
Accordingly,
these
claims
do
not
present
a
cognizable
constitutional claim and must be dismissed. See Savage, 575 F.
Supp. at 837 (dismissing claims for harassment and slander brought
by inmate against corrections officer under § 1983; stating that
“[n]either
harassment
nor
slander
rises
to
the
level
of
a
constitutional claim” and “[t]herefore, plaintiff’s tort action, if
any, must lie in state court”).
With regard to the alleged destruction of Plaintiff’s property
by defendants, such a claim is not cognizable under § 1983 because
“adequate state post-deprivation remedies are available.” Hudson v.
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Palmer, 468 U.S. 517, 533 (1984). In New York, these remedies are
in the form of an action before the New York Court of Claims. See
N.Y. Ct. Cl. Act § 9. Therefore, Plaintiff does not have a
constitutional claim against Defendants for the alleged destruction
of her property.
D.
State Law Claims
Defendants
have
interpreted
a
number
of
Plaintiff’s
allegations as asserting causes of action under New York state law
(e.g., duress, “public embarrassment”, harassment). They argue that
all of Plaintiff’s state-law claims must be dismissed because
Plaintiff failed to comply with N.Y. General Municipal Law §§ 50e(1) and 50-i(1) by timely filing a notice of claim. Assuming that
Plaintiff has raised
should
be
state-law claims, the Court finds that they
dismissed
since
the
Court
has
dismissed
all
of
Plaintiff’s federal claims with prejudice. See Marcus v. AT & T
Corp.,
138
F.3d
46,
57
(2d
Cir.
1998)
(Under
28
U.S.C.
§ 1367(c)(3), it is well settled that “[i]n general, where the
federal claims are dismissed before trial, the state claims should
be dismissed as well.”).
V.
Conclusion
Plaintiff’s Motion for Judgment on the Pleadings (Dkt #11) is
denied.
Defendants’
Motion
to
Dismiss
Plaintiff’s
Complaint
(Dkt #23) is granted. Plaintiff’s Complaint is dismissed in its
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entirety as to all defendants. The Clerk of the Court is directed
to close this case.
SO ORDERED.
S/Michael A. Telesca
HONORABLE MICHAEL A. TELESCA
United States District Judge
DATED:
October 16, 2012
Rochester, New York
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