Lamore v. State of Vermont et al
Filing
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OPINION AND ORDER denying 30 Motion to Appoint Counsel ; denying 17 Motion to Appoint Counsel ; granting 19 Motion to Dismiss; denying 20 Motion for Judgment; denying 21 Motion for Judgment; denying 22 Motion for Court Orders; denying 24 Motion for Judgment; denying 29 Motion for Arrest Warrant; pltf is granted leave to file an Amended Complaint within 30 days. Signed by Judge William K. Sessions III on 7/11/2013. (jam)
UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
Clarence W. Lamore, Jr.,
Plaintiff,
v.
State of Vermont, UVM
Police Department,
Jennifer M. McMahon,
Franklin County Guardian
Mary Beth, Christina
Johnson,
Defendants.
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Case No. 2:12-cv-59
OPINION AND ORDER
(Docs. 17, 19, 20, 21, 22, 24, 29, 30)
Plaintiff Clarence Lamore, proceeding pro se, brings
this action claiming that he was mistreated by officers of
the University of Vermont (“UVM”) Police Department, and
that he has been wrongfully deprived of his parental rights
with respect to his two daughters.
Pending before the Court
are several motions, including: Lamore’s requests for
appointment of counsel; his motions for final judgment; his
motion for an arrest warrant; and a motion to dismiss filed
by the UVM Police Department.
For the reasons set forth
below, the UVM Police Department’s motion is GRANTED,
Lamore’s motions are DENIED, and Lamore is granted leave to
file an Amended Complaint.
Factual Background
Lamore’s Complaint consists of three separate
pleadings, each of which bears a state court caption and is
accompanied a motion “to transfer case to the United States
District Court.”
(Doc. 4 at 2, 17, 20.)1
In the first,
Lamore alleges that in May 2011 he was seated outside the
UVM library when he was approached by two men, one of whom
was an officer of the Chittenden County Sheriff’s
Department.
The officer asked Lamore his name, and
attempted to serve Lamore with a complaint for relief from
abuse.
The complaint was reportedly based upon an argument
that occurred earlier that month between Lamore and his
daughter.
Lamore refused to sign the service papers and
departed.
A few days later, Lamore was again at the UVM library
1
While these motions could be construed as notices of removal,
it is not clear that removal would be proper. The first two motions
pertain to criminal cases, and while it is possible to remove a
criminal prosecution to federal court under 28 U.S.C. § 1443, Lamore
has not alleged whether, in the course of those proceedings, he is
being denied a right “under any law providing for the equal civil
rights of citizens of the United States” as required by that statute.
28 U.S.C. § 1443; see Johnson v. Mississippi, 421 U.S. 213, 219
(1975). The third motion pertains to a Family Court proceeding.
Again, it is not clear that the requirements for removing a civil case
have been met with regard to that proceeding. See 28 U.S.C. § 1446
(requiring timely removal by the defendant, as well as notice to
adverse parties and the state court). The Court will therefore treat
these filings as part of a unified, original Complaint, and not a
series of removed actions.
2
when he was placed under arrest by three UVM police officers
on a charge of unlawful trespass.
Lamore alleges in his
Complaint that he protested the arrest, claiming “I do not
have no trespassing on me here.”
(Doc. 4 at 3.)
In the
course of the arrest, the officers allegedly “plant[ed]
[Lamore’s] head into the flower bed,” then walked him to
their police car, “took all [his] property . . . and
[h]umiliated [him] in public and took off [his] shoes and
tr[ied] to force [his] pants down and feeling [his]
privies.”
Id.
Once arrested, Lamore was transported to the UVM Police
Department, and thereafter to the Chittenden County
Correctional Center.
At the Correctional Center, Lamore
again protested his arrest and threatened to file a lawsuit
“over this putting no trespassing on me like this with[]out
me knowing about it.”
Id.
He is now suing for “putting
unlawful trespassing on Clarence Lamore Jr. with[]out
Clarence knowing about this and [h]umiliat[ing] Clarence
like this in public.”
Id. at 4.
Lamore’s second pleading depicts an argument he had
with his daughter via telephone regarding information on his
daughter’s Facebook account.
For relief on this claim, he
3
seeks monetary damages from Defendants “Mary Beth” and
Christina Johnson, at least one of whom appears to be a
“guardian” in Franklin County, for “keeping [Lamore’s]
daughter away from her Father and her sister . . . .”
Id.
at 18-19.
The third pleading, bearing the caption of the
Chittenden County Family Court, claims that testimony
provided in a Family Court proceeding was false.
Specifically, Lamore alleges that “[R]obin Mc[M]ahon
[testified] about a black Pontiac Fiero[.
I] don’t own this
car[.] [S]he made all this up to take my two daughters.”
In
the concluding paragraph, Lamore states that he is filing a
civil action against “the Chittenden [C]ounty Family
children social services State of Vermont.”
Id. at 21-22.
Discussion
I.
UVM Police Department’s Motion to Dismiss
The UVM Police Department construes Lamore’s cause of
action against it as a claim of unlawful arrest, and argues
for dismissal pursuant to Fed. R. Civ. P. 12(b)(6).
To
survive a Rule 12(b)(6) motion to dismiss, the Complaint
must contain “enough facts to state a claim to relief that
is plausible on its face.”
Bell Atl. Corp. v. Twombly, 550
4
U.S. 544, 570 (2007).
Although the Complaint’s factual
allegations are presumed true, this tenet is “inapplicable
to legal conclusions.”
(2009).
Ashcroft v. Iqbal, 556 U.S. 662, 678
Further, while pro se complaints must contain
sufficient factual allegations to meet the plausibility
standard, see Harris v. Mills, 572 F.3d 66, 71–72 (2d Cir.
2009), the Court must review pro se submissions with
“special solicitude” and interpret them to raise the
“strongest [claims] that they suggest,” Triestman v. Fed.
Bureau of Prisons, 470 F.3d 471, 474–75 (2d Cir. 2006)
(emphasis in original) (internal quotation marks omitted).
Lamore is suing the UVM Police Department for “putting
unlawful trespassing on” him, and for “humiliat[ing]” him in
public.
(Doc. 4 at 4.)
For relief, he seeks damages for
the two days he spent at the Chittenden County Correctional
Center after his arrest.
The Court agrees with the UVM
Police Department that, at least with respect the “putting
unlawful trespass” claim, Lamore is alleging false arrest.
In order to prevail on a claim for false arrest under 42
U.S.C. § 1983, Lamore must show that (1) the police intended
to confine him, (2) he was conscious of the confinement, (3)
he did not consent to the confinement, and (4) the
5
confinement was not otherwise privileged.
Singer v. Fulton
Cnty. Sheriff, 63 F.3d 110, 118 (2d Cir. 1995)
An arrest is
privileged if the officer had probable cause to believe that
the person arrested committed a crime.
See Escalera v.
Lunn, 361 F.3d 737, 743 (2d Cir. 2004) (“[P]robable cause to
arrest constitutes justification” for an arrest, precluding
a false arrest claim).
A person who has been convicted of
the crime for which he was arrested cannot state a claim for
false arrest because his conviction establishes that his
confinement was grounded on probable cause.
See Cameron v.
Fogarty, 806 F.2d 380, 388–89 (2d Cir. 1986).
The UVM Police Department has submitted to the Court a
certified copy of the criminal docket from Lamore’s unlawful
trespass case, which shows that Lamore was ultimately
convicted on the trespass charge.
(Doc. 19-1 at 2.)
While
a court generally cannot review documents outside the
pleadings on a Rule 12(b)(6) motion, it may nonetheless
consider “matters of which judicial notice may be taken.”
See Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d
Cir. 2002).
Federal Rule of Evidence 201(b) provides that
“[a] judicially noticed fact must be one not subject to
reasonable dispute in that it is either (1) generally known
6
within the territorial jurisdiction of the trial court or
(2) capable of accurate and ready determination by resort to
sources whose accuracy cannot be reasonably questioned.”
Fed. R. Evid. 201(b).
The Second Circuit has observed that
court records, such as a court docket, qualify for judicial
notice.
See Mangiafico v. Blumenthal, 471 F.3d 391, 398 (2d
Cir. 2006) (“[D]ocket sheets are public records of which the
court could take judicial notice.”); see also Shmueli v.
City of N.Y., 424 F .3d 231, 233 (2d Cir. 2005) (“The New
York State . . . prosecution of Shmueli is a matter of
public record, of which we take judicial notice.”).
The
Court may therefore consider the state court criminal
docket.
The docket sheet from the Chittenden Criminal Division
indicates that Lamore was arrested for misdemeanor criminal
trespass on May 24, 2011.
Judge Levitt found probable
cause, and on May 25, 2011, Lamore entered a guilty plea.
(Doc. 19-1 at 2.)
Because Lamore was ultimately convicted
on the charge of unlawful trespass, his claim of false
arrest cannot stand.
See Cameron, 806 F.2d at 388–89;
Corbett v. Dwyer, 345 F. Supp.
2d 237, 241 (N.D.N.Y. 2004)
(dismissing a § 1983 false arrest claim after plaintiff pled
7
guilty and was convicted on underlying criminal charges);
Johnston v. Town of Greece, 983 F. Supp. 348, 359 (W.D.N.Y.
1997) (dismissing plaintiff’s false arrest claim because he
pled guilty to the crime for which he was arrested).
The
UVM Police Department’s motion to dismiss Lamore’s false
arrest claim is therefore GRANTED.
Lamore also claims that he was humiliated in the course
of his arrest when UVM police allegedly searched him, forced
him to remove his shoes, felt his “privies,” and tried to
pull down his pants.
(Doc. 4 at 3.)
Construing the
Complaint liberally, these claims challenge the scope and
manner of the search.
Perhaps because they are not plainly
alleged, the UVM Police Department has not addressed such
potential claims.
”Under the Fourth . . . Amendment[ ], an arresting
officer may, without a warrant, search a person validly
arrested.”
Michigan v. DeFillippo, 443 U.S. 31, 35 (1979).
“The fact of a lawful arrest, standing alone, authorizes a
search.”
Id.; see also United States v. Guadalupe, 363 F.
Supp. 2d 79, 83 (D. Conn. 2004).
However, the scope and
manner of the search is not unlimited.
See Bell v. Wolfish,
441 U.S. 520, 559 (1979); see also Tennessee v. Garner, 471
8
U.S. 1, 8 (1985) (reasonableness of a search under the
Fourth Amendment “depends on not only when a seizure is
made, but also how it is carried out”); Swain v. Spinney,
117 F.3d 1, 6 (1st Cir. 1997) (observing that “not . . . all
possible searches of an arrestee’s body are automatically
permissible as a search incident to arrest”).
For instance,
a strip search of a misdemeanor arrestee is likely unlawful
absent “reasonable suspicion that the arrestee is concealing
weapons or other contraband based on the crime charged, the
particular characteristics of the arrestee, and/or the
circumstances of the arrest.”
802 (2d Cir. 1986); see also
Weber v. Dell, 804 F.2d 796,
Hartline v. Gallo, 546 F.3d
95, 100 (2d Cir. 2008); Wilson v. Aquino, 233 F. App’x 73,
76 (2d Cir. 2007) (noting that a strip search requires
“particular justification”).2
Less intrusive searches do
not require such additional justification.
See United
States v. Robinson, 414 U.S. 218, 235 (1973) (holding that a
“full search of the person” during a custodial arrest “based
2
The Supreme Court recently held that officials may strip search
any arrestee before admitting her to jail, even absent any reasonable
suspicion. Florence v. Board of Chosen Freeholders of County of
Burlington, 132 S. Ct. 1510 (2012). The Court’s holding has been
characterized as “narrow,” and “the Second Circuit has yet to announce
the impact (if any) Florence has on the individualized suspicion
requirement.” Ellsworth v. Wachtel, 2013 WL 140342, at *5 (N.D.N.Y.
Jan. 11, 2013).
9
on probable cause is a reasonable intrusion under the Fourth
Amendment; that intrusion being lawful, a search incident to
the arrest requires no additional justification.”).
The search described by Lamore was not a strip search,
and was more in the nature of a standard pat-down.
The
search, conducted prior to Lamore’s transport to the UVM
Police Department, required removal of his shoes and
allegedly involved contact with his genitals.
It has been
held that “routine pat-down searches, even if they include
the groin area, do not violate the Constitution . . . .”
Cherney v. City of Burnsville, 2008 WL 108964, at *7 (D.
Minn. Jan. 8, 2008).
Indeed, the Supreme Court has long
recognized that a search of a suspect may consist of “a
careful exploration of the outer surfaces of a person’s
clothing all over his or her body . . . [including] arms and
armpits, wasteline and back, the groin area about the
testicles, and entire surface of the legs down to the feet.”
Terry v. Ohio, 392 U.S. 1, 16, 17 n.13 (1968).
The Terry
decision also acknowledged that such searches may be
“humiliating.”
Id. at 25.
However, “[n]ot every
embarrassment, humiliation, or psychological discomfort
amounts to a constitutional violation.”
10
Arnold v.
Westchester Cnty., 2012 WL 336129, at *11 (S.D.N.Y. Feb. 3,
2012).
Accordingly, the facts alleged in the Complaint may
not rise to the level of a Fourth Amendment claim.
The Court next considers whether Lamore should be given
an opportunity to re-plead.
The Second Circuit has
emphasized that a “court should not dismiss [a pro se
complaint] without granting leave to amend at least once
when a liberal reading of the complaint gives any indication
that a valid claim might be stated.”
Cuoco v. Moritsugu,
222 F.3d 99, 112 (2d Cir. 2000) (citations and internal
quotation marks omitted).
Under Rule 15(a) of the Federal
Rules of Civil Procedure, the “court should freely give
leave [to amend] when justice so requires.”
15(a).
Fed. R. Civ. P.
Although Lamore’s false arrest allegation does not
currently state a plausible claim, and his contentions about
an illegal search are questionable, there is some
“indication” that “a valid claim might be stated.”
222 F.3d at 112.
Cuoco,
The Court will therefore allow Lamore
thirty days in which to submit an Amended Complaint, as more
fully set forth below.
II. Lamore’s Motions for Entry of Final Judgment
Also before the Court are Lamore’s two motions for
11
final judgment.
The first such motion seeks a final
judgment against “Skyler Genest 554, Robert Bailey 545,
Mandy Wooster 555.”
(Doc. 20 at 1.)
The motion states that
“[b]y agreement of the parties, the Final Judgment provides
for the payment of a civil penalty totaling $100,000 by
defendant pursuant to 42 U.S.C. § 1983 . . . [for] unlawful
arrest.”
Id.
The UVM Police Department has filed an
opposition, stating that “the University has not stipulated
to the entry of a final judgment in Plaintiff’s favor, nor
has the University agreed to any other settlement offer.
In
fact, the University has not engaged in any communication
with Plaintiff regarding settlement or any other resolution
of Plaintiff’s claims.”
original).
(Doc. 23 at 2) (emphasis in
The Court also notes that Genest, Bailey and
Wooster are not parties in this case.
In light of the
University’s representations to the Court, the lack of any
filed stipulation, and the fact that Lamore is moving for a
judgment against non-parties, his first motion for entry of
final judgment (Doc. 20) is DENIED.
Lamore’s second motion for entry of final judgment is
brought against “Jennifer, State of Vermont.”
1.)
(Doc. 21 at
The “Jennifer” referenced in Lamore’s pleading appears
12
to be Lamore’s daughter.
Lamore again claims in his motion
that “[b]y agreement of the parties, the Final Judgment
provides settlement for . . . and payment of a civil penalty
totaling $1,500,000, by defendant . . . .”
Id.
However, no
stipulation has been filed with the Court, and Lamore has
not established any other legal basis for entering a
judgment against “Jennifer.”
Therefore, the second motion
for final judgment (Doc. 21) is also DENIED.
III.
Motions for Appointment of Counsel
Lamore has filed two motions for appointment of
counsel.
(Docs. 17, 30.)
In each motion, he states that
has “made a diligent effort” to obtain counsel by contacting
legal aid organizations and various attorneys.
Id.
There
is no constitutional right to appointment of counsel for
litigants in civil cases.
Cooper v. A. Sargenti Co., 877
F.2d 170, 172–74 (2d Cir. 1989).
District courts
nevertheless have “[b]road discretion . . . in deciding
whether to appoint counsel.”
Hodge v. Police Officers, 802
F.2d 58, 60 (2d Cir. 1986); see also 28 U.S.C. § 1915(e)(1)
(providing district courts may “request an attorney to
represent any person unable to afford counsel.”).
In
considering a motion for appointment of counsel, a district
13
court “should first determine whether the indigent’s
position [is] likely to be of substance.”
Cooper, 877 F.2d
at 172 (internal quotation marks omitted).
Upon satisfying
this threshold requirement, the district court considers
secondary factors, including the “plaintiff’s ability to
obtain representation independently, and his ability to
handle the case without assistance in . . . light of the
required factual investigation, the complexity of the legal
issues, and the need for expertly conducted
cross-examination to test veracity.”
Id.
No single factor
is controlling in a particular case, as “each case must be
decided on its own facts.”
Hodge, 802 F.2d at 61.
In this case, it is not clear that Lamore’s claims have
sufficient merit to warrant consideration of the secondary
factors.
His allegations against the UVM Police Department
may not set forth viable constitutional claims, as discussed
above.
The second portion of his Complaint brings suit
against two defendants, one of whom is alleged to be a
“guardian,” for “keeping my daughter Jennifer [a]way from
her father and her sister Christina.”
(Doc. 4 at 19.)
It
is not clear whether either of the Defendants named in this
portion of Lamore’s pleadings is a state actor subject to
14
suit under 42 U.S.C. § 1983.
Elmasri v. England, 111 F.
Supp. 2d 212, 221 (E.D.N.Y. 2000) (“[G]uardians ad litem,
although appointed by the court, exercise independent
professional judgment in the interests of the clients they
represent and are therefore not state actors for the
purposes of Section 1983.”).
Furthermore, revisiting issues
related to Lamore’s rights with respect to his daughter may
be barred by the domestic relations exception to federal
court jurisdiction.
See Neustein v. Orbach, 732 F. Supp.
333, 339 (E.D.N.Y. 1990) (action barred by domestic
relations exception if, “in resolving the issues presented,
the federal court becomes embroiled in factual disputes
concerning custody and visitation matters . . .”).
These
claims thus do not support the appointment of pro bono
counsel.
The final portion of the Complaint calls into question
the credibility of evidence presented in a Vermont family
court proceeding.
The defendant on this claim appears to be
“the Chittenden [C]ounty Family [C]hildren [S]ocial
[S]ervices State of Vermont.”
(Doc. 4 at 22.)
If the sole
Defendant is, in fact, a state agency, it is entitled to
dismissal under the Eleventh Amendment as set forth in the
15
State of Vermont’s prior motion to dismiss, which was
granted by the Court on November 6, 2012.
(Doc. 12); see
Alabama v. Pugh, 438 U.S. 781, 781 (1978) (“[T]he Eleventh
Amendment prohibits federal courts from entertaining suits
by private parties against States and their agencies.”).
Even if Lamore were able to demonstrate that his claims
have sufficient merit for the court to request pro bono
counsel, he has not demonstrated an inability to handle his
case without assistance, or that the legal issues being
presented are so complex as to warrant a free attorney.
Nor
has he shown that cross-examination will be an important
part of his case.
The motions for appointment of counsel
(Docs. 17, 30) are therefore DENIED.
IV. Remaining Motions
Lamore has three other motions pending before the
Court: a motion “for court orders”; a motion entitled “I
motion the Court”; and a motion for an arrest warrant.
(Docs. 22, 24, 29.)
The first of these motions asks the
Court to compel the state court to provide Lamore with “case
papers” from a state family court proceeding, including “all
Jennifer McMahon case records and financial records.”
22 at 1.)
(Doc.
Lamore cites no federal law ground for accessing
16
such records.
More specifically, he offers no authority by
which this Court might compel a state court to produce
records, particularly financial records of a third party.
The first motion (Doc. 22) is therefore DENIED.
The second motion, entitled “I Motion The Court,”
explains that “plaintiff seeks a legal remedy, and if
successful, the court will issue judgment in favor of the
plaintiff and make the appropriate court order (e.g. an
order for damages).”
(Doc. 24 at 1.)
The motion then sets
forth a series of rules pertaining to appeals.
As this case
is not on appeal, those rules do not yet apply, and the
motion (Doc. 24) is DENIED.
The final motion seeks an arrest warrant for Robin
Bryant on a charge of perjury.
A private person has no
right to obtain an arrest warrant, or to compel the
prosecution of another.
See Town of Castle Rock v.
Gonzales, 545 U.S. 748, 766 n.12 (2005) (noting that
“needless to say, a private person would not have the power
to obtain an arrest warrant”); Leeke v. Timmerman, 454 U.S.
83, 86–87 (1981) (“a private citizen lacks the judicially
cognizable interest in the prosecution or nonprosecution of
another”); see also McCrary v. County of Nassau, 493 F.
17
Supp. 2d 581, 588 (E.D.N.Y. 2007) (“A private citizen does
not have a constitutional right to compel government
officials to arrest or prosecute another person.”).
The
motion for an arrest warrant (Doc. 29) is therefore DENIED.
V.
Amending the Complaint
As discussed above, Lamore’s claim against the UVM
Police Department is being dismissed with leave to amend, in
part for the purpose of clarifying any claim he may be
bringing with respect to the scope of the search incident to
arrest.
Lamore is also now on notice that his remaining
claims are of questionable merit, in part because the basis
for federal court jurisdiction over non-state actors and
state Family Court proceedings has not been established.
All remaining claims in this case, if not amended, may be
subject to dismissal either on a motion by a Defendant or by
the Court sua sponte.
See Mallard v. United States District
Court, 490 U.S. 296, 307–08 (1989) (“Section 1915(d) [of
Title 28] . . . authorizes courts to dismiss a ‘frivolous or
malicious’ action, but there is little doubt they would have
power to do so even in the absence of this statutory
provision.”); Transatlantic Marine Claims Agency, Inc. v.
Ace Shipping Corp., 109 F.3d 105, 107–08 (2d Cir. 1997)
18
(court may raise the issue of subject matter jurisdiction
sua sponte at any time); see also, e.g., Univ. of South
Alabama v. American Tobacco Co., 168 F.3d 405, 410 (11th
Cir. 1999) (“it is well settled that a federal court is
obligated to inquire into subject matter jurisdiction sua
sponte whenever it may be lacking”).
If Lamore chooses to file an Amended Complaint, he must
do so within thirty days.
The Amended Complaint must comply
with Rules 8 and 10 of the Federal Rules of Civil Procedure,
and will completely replace the initial Complaint.
See Arce
v. Walker, 139 F.3d 329, 332 n.4 (2d Cir. 1998) (“It is well
established that an amended complaint ordinarily supersedes
the original and renders it of no legal effect.”).
Accordingly, the Amended Complaint must include all of the
allegations Lamore intends to bring against each of the
Defendants.
If Lamore fails to file an Amended Complaint
within thirty days, his false arrest claim against the UVM
Police Department will be dismissed with prejudice, and the
Court may dismiss any and all remaining claims for lack of
jurisdiction or on their merits.
See Transatlantic Marine
Claims Agency, Inc., 109 F.3d at 107–08; see also Mallard,
490 U.S. at 307–08.
19
Conclusion
For the reasons set forth above, the UVM Police
Department’s motion to dismiss (Doc. 19) is GRANTED with
respect to Lamore’s false arrest claim, and Lamore’s pending
motions (Docs. 17, 20, 21, 22, 24, 29, 30) are DENIED.
Lamore is granted leave to file an Amended Complaint within
thirty days of this Opinion and Order.
Dated at Burlington, in the District of Vermont, this
11th day of July, 2013.
/s/ William K. Sessions III
William K. Sessions III
Judge, United States District Court
20
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