Dininny v. Trentanelli et al

Filing 20

DECISION AND ORDER granting in part and denying in part 9 Motion to Dismiss. For the foregoing reasons, Defendants motion to dismiss the following claims is granted: (1) all claims against the City of Corning; (2) all claims against Trentanelli in his official capacity; (3) the Equal Protection Federal Constitutional claim; (4) the State common law false arrest claim; and (5) the State common law abuse of process claim. The following claims may go forward against Trentanelli in his personal capacity as plead: (1) the Federal First Amendment retaliation claim; (2) the Federal Due Process claim; and (3) the State common law malicious prosecution claim.Signed by Hon. Charles J. Siragusa on 12/15/10. (KAP)

Dininny v. Trentanelli et al

Doc. 20

UNITED STATES DISTRICT COURT W E S T E R N DISTRICT OF NEW YORK

J A S O N M. DININNY, P la in t if f , -v s S A L V A T O R E J. TRENTANELLI, Individually and in H is Capacity as the Chief of the City of Corning P o lic e Department, and THE CITY OF CORNING, D e f e n d a n ts . D E C IS IO N & ORDER 0 9 -C V -6 5 6 1 -C J S

A P P E A R AN C E S F o r Plaintiff: R a ym o n d M. Schlather, Esq. L o P in to , Schlather, Solomon & Salk 2 0 0 East Buffalo Street P .O . Box 353 Ith a c a , NY 14851 (6 0 7 ) 273-2202 M ic h a e l P. McClaren, Esq. R ya n G. Smith, Esq. W e b s te r Szanyi, LLP 1 4 0 0 Liberty Building B u f f a lo , NY 14202 (7 1 6 ) 842-2800 IN T R O D U C T IO N S ir a g u s a , J. This civil rights case is before the Court on Defendants' motion to d is m is s (Docket No. 9) pursuant to Federal Rule of Civil Procedure 12. For the reasons s ta te d below, the motion is granted in part, denied in part.

F o r Defendants:

Dockets.Justia.com

FACTUAL BACKGROUND T h e complaint alleges that Plaintiff Jason M. Dininny ("Dininny") was a police officer w ith the City of Corning Police Department and president of the Crystal City Police B e n e v o le n c e Association, the union representing Corning police officers. The complaint f u rth e r alleges that defendant Salvatore J. Trentanelli ("Trentanelli"), chief of the Corning P o lic e Department, retaliated against Dininny "for Dininny's appropriate and lawful p a rtic ip a tio n and advocacy on behalf of the Union...." Dininny now sues for violation of his F e d e ra l constitutional rights, and further alleges State constitutional and common law c la im s . S T AN D AR D S OF LAW T h e U.S. Supreme Court, in Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007), clarified the standard to be applied to a 12(b)(6) motion: F e d e ra l Rule of Civil Procedure 8(a)(2) requires only a short and plain s ta te m e n t of the claim showing that the pleader is entitled to relief, in order to g iv e the defendant fair notice of what the claim is and the grounds upon which it rests. W hile a complaint attacked by a Rule 12(b)(6) motion to dismiss does n o t need detailed factual allegations, a plaintiff's obligation to provide the g ro u n ds of his entitlement to relief requires more than labels and conclusions, a n d a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the s p ec u la tiv e level, on the assumption that all the allegations in the complaint a re true (even if doubtful in fact). Id. at 1964-65 (citations and internal quotations omitted). See also, ATSI Communications, Inc . v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007) ("To survive dismissal, the plaintiff m u s t provide the grounds upon which his claim rests through factual allegations sufficient `to ra is e a right to relief above the speculative level.'") (quoting Bell Atl. Corp. v. Twombly) (fo o tn o te omitted); Iqbal v. Hasty, 490 F.3d 143 (2d Cir. 2007) (Indicating that Bell Atl. Corp.

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v. Twombly adopted "a flexible `plausibility standard,' which obliges a pleader to amplify a c la im with some factual allegations in those contexts where such amplification is needed to re n d e r the claim plausible[,]" as opposed to merely conceivable.) W h e n applying this standard, a district court must accept the allegations contained in the complaint as true and draw all reasonable inferences in favor of the nonmoving party. B u rn ette v. Carothers, 192 F.3d 52, 56 (1999), cert. denied, 531 U.S. 1052 (2000). On the o th e r hand, "[c]onclusory allegations of the legal status of the defendants' acts need not be a c c e pted as true for the purposes of ruling on a motion to dismiss." Hirsch v. Arthur Andersen & Co., 72 F.3d 1085, 1092 (2d Cir. 1995)(citing In re American Express Co. Shareholder L itig ., 39 F.3d 395, 400-01 n. 3 (2d Cir.1994)). In opposing Defendants' motion to dismiss, Dininny argues for the application of the S e c o n d Circuit's analysis in Iqbal v. Hasty, 490 F.3d 143 (2d Cir. 2007). (Pl.'s Mem. of Law, a t 7.) However, the U.S. Supreme Court, in Ashcroft v. Iqbal, _ U.S. _, 129 S. Ct. 1937, 1 9 5 4 (2009) specifically reversed and remanded Iqbal v. Hasty ("The judgment of the Court o f Appeals is reversed, and the case is remanded for further proceedings consistent with th is opinion."). In its decision, the Supreme Court clarified the standard to apply in a s s e s s in g the viability of complaints under the Federal Rules of Civil Procedure. Justice K e n n e d y wrote for the majority: "U n d e r Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a "s h o rt and plain statement of the claim showing that the pleader is entitled to re lie f . " As the Court held in Twombly, 550 U.S. 544, the pleading standard R u le 8 announces does not require "detailed factual allegations," but it d e m a n d s more than an unadorned, the-defendant-unlawfully-harmed-me a c c u s a tio n . Id., at 555 (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). A pleading that offers "labels and conclusions" or "a formulaic recitation of th e elements of a cause of action will not do." 550 U.S., at 555. Nor does a

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complaint suffice if it tenders "naked assertion[s]" devoid of "further factual e n h a n c e m e n t." Id., at 557. T o survive a motion to dismiss, a complaint must contain sufficient factual m a tte r , accepted as true, to "state a claim to relief that is plausible on its f a c e ." [Bell Atlantic v. Twombly, 550 U.S. 544], at 570. A claim has facial p la u s ib ility when the plaintiff pleads factual content that allows the court to d ra w the reasonable inference that the defendant is liable for the misconduct a lle g e d . Id., at 556. The plausibility standard is not akin to a "probability re q u ire m e n t ," but it asks for more than a sheer possibility that a defendant h a s acted unlawfully. Ibid. W h e re a complaint pleads facts that are "merely c o n s is te n t with" a defendant's liability, it "stops short of the line between p o s s ib ility and plausibility of `entitlement to relief.'" Id., at 557 (brackets o m it t e d ) . T w o working principles underlie our decision in Twombly. First, the tenet that a court must accept as true all of the allegations contained in a complaint is in a p p lic a b le to legal conclusions. Threadbare recitals of the elements of a c a u s e of action, supported by mere conclusory statements, do not suffice. Id ., at 555 (Although for the purposes of a motion to dismiss we must take a ll of the factual allegations in the complaint as true, we "are not bound to a c c e p t as true a legal conclusion couched as a factual allegation" (internal q u o ta tio n marks omitted)). Rule 8 marks a notable and generous departure f ro m the hyper-technical, code-pleading regime of a prior era, but it does not u n lo c k the doors of discovery for a plaintiff armed with nothing more than c o n c lu s io n s . Second, only a complaint that states a plausible claim for relief s u rv iv e s a motion to dismiss. Id., at 556. Determining whether a complaint s ta te s a plausible claim for relief will, as the Court of Appeals observed, be a context-specific task that requires the reviewing court to draw on its judicial e x p e rie n c e and common sense. 490 F.3d at 157­158. But where the w e ll-p le a d e d facts do not permit the court to infer more than the mere p o s s ib ility of misconduct, the complaint has alleged--but it has not "s h o w [n ]"-- "th a t the pleader is entitled to relief." Fed. Rule Civ. Proc. 8(a)(2). In keeping with these principles a court considering a motion to dismiss can c h o o s e to begin by identifying pleadings that, because they are no more than c o n c lu s io n s , are not entitled to the assumption of truth. W h ile legal c o n c lu s io n s can provide the framework of a complaint, they must be s u p p o rte d by factual allegations. W h e n there are well-pleaded factual

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allegations, a court should assume their veracity and then determine whether th e y plausibly give rise to an entitlement to relief. A s h c ro ft v. Iqbal, 129 S. Ct. 1937, 1949­50 (2009). AN AL Y S I S O ffic ia l Capacity Claims D in in n y has sued Trentanelli in both his official and personal capacities, as well as th e City of Corning, a municipality. W ith regard to "official capacity", the Supreme Court has s ta te d : P e rs o n a l-c a p a c ity suits seek to impose personal liability upon a government o f f ic ia l for actions he takes under color of state law. See, e.g., Scheuer v. R h o d e s , 416 U.S. 232, 237­238 (1974). Official-capacity suits, in contrast, "g e n e ra lly represent only another way of pleading an action against an entity o f which an officer is an agent." Monell v. New York City Dept. of Social S e rv ic e s , 436 U.S. 658, 690, n. 55 (1978). As long as the government entity re c e iv e s notice and an opportunity to respond, an official-capacity suit is, in a ll respects other than name, to be treated as a suit against the entity. B ra n d o n , supra, 469 U.S., at 471-472. K e n tu c k y v. Graham, 473 U.S. 159, 165-166 (1985). The Supreme Court also held that, [A ] governmental entity is liable under § 1983 only when the entity itself is a "`m o v in g force'" behind the deprivation, Polk County v. Dodson, 454 U.S. 3 1 2 , 326 (1981) (quoting Monell, supra, 436 U.S., at 694); thus, in an o f f ic ia l-c a p a c ity suit the entity's "policy or custom" must have played a part in the violation of federal law. Monell, supra; Oklahoma City v. Tuttle, 471 U .S . 808, 817­818 (1985); id., at 827­828 (BRENNAN, J., concurring in ju d g m e n t ) . G ra h a m , 473 U.S. at 166. Defendants contend that Dininny has not met this "policy or c u s to m " requirement in his complaint: H e re , because the complaint contains no allegations whatsoever concerning th e existence of a policy, practice or custom of the City--let alone allegations th a t a policy, practice or custom caused Plaintiff's alleged constitutional d e p riv a tio n s -- P la in tif f 's § 1983 claims must be dismissed against the City Page 5 of 19

and the Chief in his official capacity. Consequently, Plaintiff fails to plead a n yth in g other than a non-actionable theory of respondeat superior against th e City based on the Chief's alleged actions, and his claims under § 1983 m u s t therefore be dismissed in their entirety. (D e f .s ' Mem. of Law, at 18­19 (footnote omitted).) Dininny has made no argument c o n c e rn in g this point, and the Court finds nothing in the complaint alleging that Tretanelli's a c ts were pursuant to a policy or custom of the municipality. Accordingly, the claims against th e City of Corning and Tretanelli in his official capacity must be dismissed. F e d e r a l Constitutional Claims Under 42 U.S.C. § 1983 1 D in in n y raises several federal constitutional claims pursuant to 42 U.S.C. § 1983. In c lu d e d are allegations that Defendants violated his rights to free speech and association, h is right to due process, his right to equal protection "and other rights guaranteed by the U n ite d States' Constitution." (Compl. ¶ 18.) In order to state a claim pursuant to 42 U.S.C. § 1983, a plaintiff must allege (1) that th e challenged conduct was attributable at least in part to a person acting under color of s t a t e law, and (2) that such conduct deprived plaintiff of a right, privilege, or immunity s e c u re d by the Constitution or laws of the United States. Dwares v. City of New York, 985 F .2 d 94, 98 (2d Cir. 1993). W it h respect to the pleading standard for a § 1983 claim, c o m p lia n c e with Federal Rule of Civil Procedure 8 is required. Leatherman v. Tarrant C o u n ty Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164 (1993).

Defendants contend that "claims brought under New York's Constitution are governed by the same principles that apply under the Federal Constitution...." (Def. Mem. of Law, at 10.) Consequently, the Court conducts no separate analysis of Dininny's claims under the New York Constitution. Page 6 of 19

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First Amendment T h e Second Circuit, in the context of a civil rights case alleging a First Amendment re ta lia tio n claim, wrote that, [t]o survive summary dismissal, a plaintiff asserting First Amendment re t a lia tio n claims must advance non-conclusory allegations establishing: (1 ) that the speech or conduct at issue was protected, (2) that the defendant to o k adverse action against the plaintiff, and (3) that there was a causal c o n n e c tio n between the protected speech and the adverse action. D a w e s v. Walker, 239 F.3d 489, 492 (2d Cir. 2001), overruled on other grounds, S w ie rk ie w ic z v. Sorema N.A., 534 U.S. 506 (2002); see Gill v. Pidlypchak, 389 F.3d 379, 3 8 0 (2d Cir. 2004) (citing to Dawes for this principal). Here, Dininny alleges, inter alia, that, 4 . ...defendants engaged in an illegal course of conduct again [sic] Jason M. D in in n y (hereinafter "Dininny"), including but not limited to maliciously p ro s e c u tin g Dininny on unfounded charges, abuse of process in said p ro s e c u tio n , and otherwise, under color of law, retaliated against Dininny for h is lawful and proper union leadership activities in the Crystal City Police B e n e v o le n c e Association in violation of the U.S. Constitution and New York S ta te law.... 1 2 . Commencing in 2007, in retaliation for Dininny's appropriate and lawful p a rtic ip a tio n and advocacy on behalf of the Union, Trentanelli, under color of la w , individually and in his capacity as Chief of Police in the Corning City P o lic e Department, engaged in an illegal, improper and malicious course of c o n d u c t directed against Dininny. 1 3 . Trentanelli's actions and course of conduct, include but are not limited to th e following: (a ) Intentionally, maliciously and illegally commencing, advancing and p u rs u in g criminal and administrative charges against Dininny, when T re n ta n e lli knew that the charges and accusations against Dininny were b a s e le s s and false;

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(b) Under color of law, intentionally, maliciously and illegally providing in c o rre c t, misleading, improper and perjurious testimony at a Grand Jury p ro c e e d in g , thereby improperly inducing the Grand Jury to indict Dininny; (c) Illegally acquiring and procuring sealed information, documents and tra n s c rip ts , in order to advance his malicious actions delineated above. (d) Intentionally targeting Dininny for harassment and, upon information and b e lie f , performing other and further acts, actions or courses of conduct and o th e r retaliatory acts discoverable at trial. (C o m p l. ¶¶ 4, 12­13.) It is, of course, clear that, "retaliation against public employees solely f o r their union activities violates the First Amendment." Clue v. Johnson, 179 F.3d 57, 60 (2 d Cir. 1999). Here, the allegation is that Trentanelli retaliated against Dininny for his union a c tiv itie s and advocacy by "[i]ntentionally, maliciously and illegally commencing, advancing a n d pursuing criminal and administrative charges against Dininny, when Trentanelli knew th a t the charges and accusations against Dininny were baseless and false," and falsely te s tif yin g in the Grand Jury to obtain an indictment against him. Although Briscoe v. LaHue,

460 U.S. 325 (1983), grants Trentanelli absolute immunity regarding his allegedly false
te s tim o n y before the grand jury, San Vilippo v. U.S. Trust Co. of New York, 737 F.2d 246, 2 5 6 (2d Cir. 1984), such is not the case with respect to the accusation that Trentanelli b ro u g h t a false charge against Dininny. See McCormick v. City of Lawrence, Kansas, 253 F . Supp. 2d 1172, 1206 (D. Kan. 2003) ("Such prosecutions allegedly were undertaken w ith o u t probable cause and through the use of a materially false affidavit and sworn c rim in a l complaint. The court interprets this claim as a First Amendment retaliation claim. Like the other two claims, the court believes Mr. McCormick's allegations are sufficient to s h ow that his constitutional rights were violated."). Accordingly, Dinninny's First Amendment

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claim may go forward as it relates to his allegation that Trentanelli brought a false charge a g a in s t him in retaliation for his union activities. D u e Process A t oral argument, Dininny's counsel explicitly stated that he was not making a § 1983 c la im for malicious prosecution. In his memorandum of law, however, Dininny contends that h is due process claim is based on the Fourth Amendment,2 and refers to the discussion by th e Second Circuit of the Supreme Court case of Albright v. Oliver, 510 U.S. 266 (1994). (Pl.'s Mem. of Law, at 12 ("a claim pursuant to section 1983 based on deprivation of a lib e rty interest through malicious prosecution is still cognizable.").) Regardless, "it is a x io m a tic that the complaint may not be amended by the briefs in opposition to a motion to dismiss. Jacobson v. Peat, Marwick, Mitchell & Co., 445 F.Supp. 518, 526 (S .D .N .Y .1 9 7 7 ); Sansom Comm. v. Lynn, 366 F.Supp. 1271, 1278 (E.D.Pa.1973); C h a m b lis s v. Coca-Cola Bottling Corp., 274 F.Supp. 401, 409 (E.D.Tenn.1967), aff'd on o th e r grounds, 414 F.2d 256 (6th Cir.1969), cert. denied, 397 U.S. 916 (1970)." Car C a rrie rs , Inc. v. Ford Motor Co., 745 F.2d 1101, 1107 (7th Cir. 1984). A lth o u g h neither party has cited to Zahrey v. Coffey, 221 F.3d 342, 344 (2d Cir. 2 0 0 0 ), in that decision, the Court of Appeals wrote, "[w]e hold that there is a constitutional rig h t not to be deprived of liberty as a result of the fabrication of evidence by a government o f f ic e r acting in an investigatory capacity, at least where the officer foresees that he himself w ill use the evidence with a resulting deprivation of liberty." The complaint alleges that as

Dininny alleged in his First Claim that he was deprived of his constitutional rights "to free speech and association, the right to due process, the right to equal protection and other rights guaranteed by the United States' Constitution." (Compl. ¶ 18.) He argues that his Fourth Amendment theory is supported by the "other rights" allegation in his complaint. Page 9 of 19

2

a result of Trentanelli's actions, which include an allegation that he "[i]ntentionally, m a lic io u s ly and illegally commenc[ed], advanc[ed] and pursu[ed] [false] criminal and a d m in is tra tiv e charges against Dininny" (Compl. ¶ 13(a)), he has suffered, inter alia, a "d e p riv a tio n of liberty." (Compl. ¶ 19.) Consequently, Dininny, in his complaint sufficiently a lle g e s a cause of action for a due process violation through the illegal deprivation of his l i b e r t y. E q u a l Protection D in in n y alleges in his complaint that he was deprived of equal protection under the C o n s titu tio n , and argues in his memorandum of law that: "he has been treated differently f ro m other police officers because of his leadership activities in the Union--that is, he has b e e n subjected to a baseless criminal prosecution and an administrative disciplinary p ro c e e d in g ." (Pl.'s Mem. of Law, at 13.) In order to plead a facially valid equal protection c la im , Dininny must allege: (1) that he has been treated differently from similarly-situated o f f ic e rs , and (2) that the discrimination is based upon a constitutionally impermissible basis, s u c h as race, religion, national origin, or some other protected right. Nash v. McGinnis, 585 F . Supp. 2d 455, 462 (W .D .N .Y . 2008). "To be `similarly situated,' the individuals with whom [a plaintiff] attempts to compare [him]self must be similarly situated in all material respects." S h u m w a y v. UPS, 118 F.3d 60, 64 (2d Cir. 1997); see Latrieste Restaurant v. Village of P o rt Chester, 188 F.3d 65, 69 (2d Cir. 1999) (Shumway "similarly situated" language e m p lo ye d in Equal Protection claim). The complaint fails to raise a plausible claim of a violation of Dininny's Equal P ro te c tio n right. It does not allege with whom Dininny was similarly situated in all material re s p e c ts , or that he was treated differently from anyone similarly situated, or the constiPage 10 of 19

tutionally impermissible basis of the alleged discrimination. W ith regard to Dininny's "class of one" Equal Protection claim, the Supreme Court w ro te in Willowbrook v. Olech, 528 U.S. 562 (2000): O u r cases have recognized successful equal protection claims brought by a "c la s s of one," where the plaintiff alleges that she has been intentionally tre a te d differently from others similarly situated and that there is no rational b a s is for the difference in treatment.... In so doing, we have explained that "`th e purpose of the equal protection clause of the Fourteenth Amendment is to secure every person within the State's jurisdiction against intentional and a rb itra ry discrimination, whether occasioned by express terms of a statute or b y its improper execution through duly constituted agents.'" Sioux City Bridge C o ., supra, at 445 (quoting Sunday Lake Iron Co. v. Township of Wakefield, 2 4 7 U.S. 350, 352 (1918)). Id . at 564 (some citations omitted). Notwithstanding the Supreme Court's clear language in Engquist v. Or. Dep't of Agric., 128 S. Ct. 2146, 2151 (2008), that "the class-of-one th e o ry of equal protection does not apply in the public employment context," Dininny c o n te n d s that language does not preclude a class of one theory here. (Pl's Mem. of Law, a t 13­14.) He relies on the following language from Engquist to argue that a class of one th e o ry of Equal Protection is viable here: F irs t, although government employees do not lose their constitutional rights w h e n they accept their positions, those rights must be balanced against the re a litie s of the employment context. Second, in striking the appropriate b a la n c e , we consider whether the asserted employee right implicates the b a s ic concerns of the relevant constitutional provision, or whether the c la im e d right can more readily give way to the requirements of the g o v e rn m e n t as employer. W ith these principles in mind, we come to the q u e s tio n whether a class-of-one theory of equal protection is cognizable in th e public employment context. E n g q u is t, 128 S. Ct. at 2152. Even if this Court accepted the argument that Engquist does n o t preclude a class of one claim here, Dininny's complaint has not plead the "others

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similarly situated." Personal Involvement T re n ta n e lli contends that "Plaintiff's § 1983 claims for malicious prosecution, false a rre s t and abuse of process should be dismissed because the complaint fails to provide a n y specificity as to what personal involvement, if any, that the Chief had in these alleged c o n s titu tio n a l violations." (Def.s' Mem. of Law, at 19.) As described above, the complaint alleges that Trentanelli commenced and advanced false criminal and administrative c h a rg e s against Dininny; testified against Dininny falsely in the grand jury; acquired sealed in f o rm a tio n contrary to State law; and harassed him. (Compl. ¶¶ 4, 12­13.) The Court finds th e s e allegations are sufficient to withstand a motion to dismiss. Here, unlike the case re lie d upon by Trentanelli, Alvarez v. Doe, No. 03 Civ. 7740 JSR JCF, 2004 W L 1874972 (S .D .N .Y . Aug. 13, 2004), Dininny is not suing the police commissioner for violations of his rig h ts by agents of the police commissioner. In other words, Dininny is not relying on re s p o n d e a t superior to impute liability to Trentanelli--he is accusing Trentanelli of directly c o m m ittin g the alleged unconstitutional acts against him.

New York General Municipal Law Defendants contend that the claims against the City of Corning and Tretanelli in his official capacity must be dismissed for failure to comply with the requirements of New York General Municipal Law § 50-h. Since the Court has dismissed those claims for failure to plead that the alleged violations occurred pursuant to a policy or custom, it need not address Defendants' arguments under New York General Municipal Law.

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False Arrest Dininny concedes that the cause of action alleging false arrest should be dismissed for failure to comply with New York General Municipal Law § 50-e. Accordingly, Defendants' motion to dismiss the third cause of action is granted. (Pl.'s Mem. of Law, at 2, n.1 ("Plaintiff concedes that the Third Cause of Action of the Complaint (False Arrest) is subject to dismissal on the basis that the Notice of Claim, as it respects that Cause of Action, was not filed within ninety days of the accrual of that particular claim.").) Malicious Prosecution Defendants contend that Dininny's pleading is insufficient under New York law in that defendant Trentanelli did not personally prosecute Dininny in the underlying criminal action, and the complaint contains no allegation that the Chief regularly issued process against Dininny, nor any allegation describing a "collateral objective" that the Chief allegedly sought to accomplish. To establish a cause of action for malicious prosecution, plaintiff is required to show "four elements: (1) the initiation of a criminal proceeding by the defendant against the plaintiff, (2) termination of the proceeding in favor of the accused, (3) lack of probable cause, and (4) malice" (Brown v Sears Roebuck & Co., 297 AD2d 205, 208, 746 NYS2d 141 [2002]). Weiss v. Hotung, 26 A.D.3d 855, 856 (N.Y. App. Div. 4th Dep't 2006). As to the first requirement, [a] malicious prosecution defendant must do more than merely report a crime to the police and cooperate in its prosecution; rather, he or she must play an active role in the prosecution, such as by encouraging or importuning the authorities to act (Brown [v. Sears Roebuck & Co., 297 A.D.2d 205] at 209 [(N.Y. App. Div. 1st Dept. 2002)]). "[A] defendant may be said to have initiated a criminal proceeding by providing false evidence to the police or withholding evidence that might affect the determination by the police to make an arrest" (id. at 210).
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Maskantz v. Hayes, 39 A.D.3d 211, 213 (N.Y. App. Div. 1st Dep't 2007). Here, as indicated above, the complaint alleges that Trentanelli, "Intentionally, maliciously and illegally commenc[ed], advanc[ed] and pursu[ed] criminal and administrative charges against Dininny, when Trentanelli knew that the charges and accusations against Dininny were baseless and false..." and "Trentanelli, acting individually, and/or in his capacity as Chief of Police and/or on behalf of, or in concert with, the City of Corning, wrongfully set in motion judicial process against the plaintiff so as to subject him to an unjustifiable criminal prosecution, or maliciously caused the same." (Compl. ¶¶ 13, 32.) These allegations are sufficient to meet the first element. As to the second reqirement, the complaint sufficiently alleges the termination of the prosecution in favor of the accused. (Compl. ¶ 15 ("All criminal charges against Dininny were finally and fully disposed upon a jury verdict of acquittal and related judgments of dismissal made and entered in the Steuben County Court on November 6, 2008.").) As to the third requirement, Dininny alleges that, "[a]t all times pertinent herein, the instant criminal prosecution was without probable cause." (Compl. ¶ 33.) Dininny further alleged that, "[u]nder color of law, [Defendant Trentanelli] intentionally, maliciously and illegally provid[ed] incorrect, misleading, improper and perjurious testimony at a Grand Jury proceeding, thereby improperly inducing the Grand Jury to indict Dininny...." (Compl. ¶ 13(b).) Finally, as to the fourth requirement, Dininny alleges malice (Compl. ¶ 34 ("At all times pertinent herein, Trentanelli and the defendants acted intentionally, willfully and maliciously.") and Compl. ¶ 12 "Commencing in 2007, in retaliation for Dininny's
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appropriate and lawful participation and advocacy on behalf of the Union, Trentanelli, under color of law, individually and in his capacity as Chief of Police in the Corning City Police Department, engaged in an illegal, improper and malicious course of conduct directed against Dininny.").) Therefore, the Court concludes that the allegations of malicious prosecution are sufficient to withstand a motion to dismiss pursuant to Rule 12(b)(6). Abuse of Process Dininny's fourth claim is for the State common law tort of abuse of process. The elements of that tort were described by the New York Court of Appeals: First, there must be regularly issued process, civil or criminal, compelling the performance or forebearance of some prescribed act. Next, the person activating the process must be moved by a purpose to do harm without that which has been traditionally described as economic or social excuse or justification (cf. James v Board of Educ. of Cent. School Dist. No. 1 of Towns of Orangetown & Clarkstown, 37 NY2d 891). Lastly, defendant must be seeking some collateral advantage or corresponding detriment to the plaintiff which is outside the legitimate ends of the process. Board of Ed. of Farmingdale Union Free School Dist. v. Farmingdale Classroom Teachers Ass'n, Inc., Local 1889 AFT AFL-CIO, 38 N.Y.2d 397, 403 (1975). The complaint at issue here contains no allegation that Trentanelli sought "some collateral advantage or corresponding determent to the plaintiff which is outside the legitimate ends of the process." Consequently, this claim must be dismissed. Qualified Immunity Trentanelli argues for the application of qualified immunity to shield him from liability for allegedly violating Dininny's constitutional rights. The Court cannot address its application at this stage of the litigation, however.
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[B]ecause qualified immunity is an affirmative defense, it is incumbent upon the defendant to plead, and adequately develop, a qualified immunity defense during pretrial proceedings so that the trial court can determine which claims, if any, may be disposed of by summary judgment, or, at least, which facts material to the qualified immunity defense must be presented to the jury to determine its applicability once the case has gone to trial. Blissett v. Coughlin, 66 F.3d 531, 538 (2d Cir. 1995).
P u n itiv e Damages In City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 271 (1981), the Supreme C o u rt held that municipalities are immune from punitive damages under § 1983. Thus, even if the Court had not dismissed the lawsuit against the City of Corning and Tretenalli in his o f f ic ia l capacity, punitive damages would not be available from the municipaity, were it to b e found liable. J u d ic ia l Estoppel In a supplemental memorandum of law, and affidavit, Defendants state that, "On M a y 29, 2010, arbitrator Thomas N. Rinaldo issued his Findings and Recommendations in the grievance filed by Dininny. Dininny prevailed in the arbitration proceeding after a rg u in g that the charges against him were fabricated by Lt. Spaulding for personal and p o litic a l reasons." (Def.s' Suppl. Mem. of Law, at 1.) Defendants argue for the application o f judicial estoppel based on this information and the fact that in this lawsuit, Dininny alleges that the charges were initiated by Chief Trentanelli as re ta lia tio n for Dininny's union activity. Dininny's position in the arbitration is in c o n s is te n t with the allegations in the Complaint, and he must be ju d ic ia lly stopped from asserting claims against Chief Trentanelli that are in c o n s is te n t with the positions that he took during the arbitration. (Id.)

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As the district court explained in Mohammed v. Marriott Intern., Inc., 944 F. Supp. 2 7 7 (S.D.N.Y. 1996):

"The doctrine of judicial estoppel prevents a party from asserting a factual p o s itio n in a legal proceeding that is contrary to a position previously taken b y him in a prior legal proceeding." Bates v. Long Island R.R., 997 F.2d 1028, 1 0 3 7 (2d Cir.), cert. denied, 510 U.S. 992 (1993). Judicial estoppel serves tw o objectives: (1) preserving the sanctity of the oath by requiring c o n s is te n c y in sworn positions; and (2) protecting judicial integrity by avoiding in c o n s is te n t results in two proceedings. Id. at 1038.... Two conditions must b e satisfied before a court will apply judicial estoppel: (1) the party against w h o m estoppel is asserted must have argued an inconsistent position in a p rio r proceeding; and (2) the prior position must have been adopted by the c o u rt in the prior proceeding. Id . at 280­81. First, the Court is constrained on a motion pursuant to Rule 12(b)(6) to the f o u r corners of the complaint and any documents attached thereto, or in the possession of th e plaintiff and necessarily relied upon when the complaint was drafted. See Global N e tw o rk Commc'ns v. City of New York, 458 F.3d 150, 156-57 (2d Cir. 2006); Henschke v . New York Hosp.-Cornell Med. Ctr., 821 F.Supp. 166, 169 (S.D.N.Y. 1993). The complaint h e re was filed on November 5, 2009, more than twenty-nine weeks before the arbitration ru lin g . Thus, even if the Court were to view information from outside the complaint, it is u n lik e ly that it would apply judicial estoppel. Since the supposedly inconsistent position a d v a n c e d before this Court was posited weeks before the position adopted by the a rb itra to r, it would appear that the second condition, that the prior position be adopted by th e court in a prior proceeding, is not met. Nevertheless, the issue is not properly before th e Court since the extrinsic information required to properly adjudicate the matter is o u ts id e the pleadings.

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Leave to Amend In his memorandum of law,3 Dininny requests "leave to submit an Amended C o m p la in t if necessary." (Pl.'s Mem. of Law, at 16.) Ordinarily, a movant's failure to submit a proposed amended complaint constitutes sufficient grounds to deny a motion to amend. S e e , e.g., La Barbera v. Ferran Enterprises, Inc., No. Civ. 05-2678, 2009 U.S. Dist. LEXIS 9 6 1 5 , at *7, 2009 W L 367611, at *3 (E.D.N.Y. Feb. 10, 2009) ("In order to meet the re q u ire m e n ts of particularity in a motion to amend, a complete copy of the proposed a m e n d e d complaint must accompany the motion so that both the Court and the opposing p a rty can understand the exact changes sought") (internal quotation marks omitted); Team A ir Express, Inc. v. A. Heffco Technologies, Inc., No. 06 CV 2742, 2008 U.S. Dist. LEXIS 5 9 8 9 2 , at *30, 2008 W L 3165892, at *10 n. 10 (E.D.N.Y. Aug. 6, 2008) (stating that "the C o u r t could recommend denial of the motion [for leave to amend] solely on the basis of p la in tif f 's failure to submit a proposed amended Complaint," but denied the motion on the m e rits , as futile). If the movant's papers adequately explain the basis for, and nature of, the p ro p o s e d amendment, however, the failure to attach a proposed amended complaint to the m o tio n is not necessarily fatal. Segatt v. GSI Holding Corp., No. 07 Civ. 11413, 2008 U. S. D is t. LEXIS 93207, at * 10 (S.D.N.Y. Nov. 3, 2008). Dininny has not shown at all what he s e e k s to add to his complaint, making it impossible for the Court to determine whether any p ro p o s e d amendment would be futile. Accordingly, the Court denies the request at this time w ith leave to renew should Dininny choose to do so.

Contrary to Federal Rule of Civil Procedure 7, Dininny failed to make a motion in writing, and, instead, made an oral application for leave to amend during the oral argument of the motion to dismiss. Page 18 of 19

3

CONCLUSION F o r the foregoing reasons, Defendants' motion to dismiss the following claims is g ra n te d : (1) all claims against the City of Corning; (2) all claims against Trentanelli in his o ffic ia l capacity; (3) the Equal Protection Federal Constitutional claim; (4) the State c o m m o n law false arrest claim; and (5) the State common law abuse of process claim. The f o llo w in g claims may go forward against Trentanelli in his personal capacity as plead: (1 ) the Federal First Amendment retaliation claim; (2) the Federal Due Process claim; and (3 ) the State common law malicious prosecution claim. IT IS SO ORDERED. D a te d : D e c e m b e r 15, 2010 R o c h e s te r, New York ENTER: / s / Charles J. Siragusa CHARLES J. SIRAGUSA U n ite d States District Judge

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