The opinion of the court was delivered by: Kevin Thomas Duffy, District Judge.
Plaintiff Christopher C. Day, Ph.D., proceeding pro se,
commenced this action pursuant to 42 U.S.C. § 1983, seeking a
declaratory judgment and money damages against defendants
Robert M. Morgenthau, District Attorney for New York County,
John W. Moscow, Assistant District Attorney, Joseph B. Murray,
a court officer who purportedly arrested Day, and other
On March 29, 1989, Moscow moved pursuant to Fed.R.Civ.P.
12(b)(6) to dismiss the complaint, which I granted on October
23, 1989, dismissing all claims against Moscow, on
prosecutorial immunity grounds. In addition, the complaint was
dismissed against all remaining defendants for various reasons.
A final judgment was entered on October 24, 1989. On November
13, 1989, Day moved for reconsideration and leave to file an
amended complaint. This request was denied on December 13,
1989. Day thereafter appealed the decision as against
defendants Moscow and Joseph B. Murray, a court officer who
purportedly arrested Day.
On August 29, 1990, the Second Circuit affirmed the dismissal
of the complaint, concluding that the malicious prosecution
claim against Moscow was barred by principles of prosecutorial
immunity. With regard to Day's false arrest and illegal search
and seizure claims, the Court held that Day should be permitted
an opportunity to file an amended complaint. The panel rejected
Murray's argument that false arrest and illegal search and
seizure claims were barred by the statute of limitations.
See Day v. Morgenthau, 909 F.2d 75, 77-78 (2d Cir. 1990).
Murray petitioned the Second Circuit for rehearing of the
appeal, which was granted on August 29, 1990. After
reconsidering Murray's application, the Second Circuit reversed
its prior decision and affirmed my dismissal of the complaint
against Murray, stating that unlawful arrest and search claims
as to Murray were barred because the complaint was untimely.
Day v. Morgenthau, 909 F.2d at 78. On November 19, 1990, Day
filed an amended complaint against Moscow, Murray, and other
individuals pursuant to 42 U.S.C. § 1983 and 1985(2), seeking
equitable relief as well as compensatory and punitive damages.
It alleges numerous claims including conspiracy to: (1) prevent
Day from testifying in court; (2) injure him for attempting to
enforce a Black person's right to equal protection of the laws;
(3) chill Day's first amendment rights; (4) arrest Day
unlawfully; (5) conduct an illegal search and seizure; and (6)
prosecute maliciously. In addition, Day claims that he was not
timely arraigned, nor were his post- arrest fingerprint cards,
photographs, and property seized returned to him. Murray now
moves pursuant to Fed.R.Civ.P. 12(f) to strike the Amended
Complaint as against him. Additionally, Moscow moves pursuant
to Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon
which relief can be granted.
On December 11, 1985, Day, with written authorization from
the New York City Department of Correction ("DOC"), accompanied
an attorney to the 9th floor of a New York State Courthouse,
located at 111 Centre Street in the borough of Manhattan.
Amended Complaint ¶¶ 18-19. They were "delivering a message to
a prisoner, a Black man, regarding legal counsel. . . ."
Amended Complaint ¶ 18. Almost twenty four hours later, Day
returned to that same courtroom "taking notes on the
arraignment of the aforesaid prisoner, a Black person, at which
[sic] Defendant MOSCOW was the prosecutor." Amended Complaint ¶
Day was then handcuffed and removed to the Fifth Precinct. At
the precinct house, Day was allegedly given a desk "appearance
ticket," released and told to return at a future time. Amended
Complaint ¶ 23. Instead, Day alleges that he was held at
Central Booking, photographed, and twice fingerprinted. Amended
Complaint ¶¶ 24, 25. Moscow then swore out a criminal complaint
against Day, initiating a case for Criminal Trespass in the
Third Degree. Amended Complaint ¶ 26. On December 13, 1985,
thirty one hours after Day's arrest, he was arraigned and bail
was set.*fn1 Amended Complaint ¶ 28. The prosecution against
Day was dismissed on May 14, 1986. Amended Complaint ¶ 36.
After prosecution was terminated, Day demanded that his
photographs and fingerprints be returned to him. Amended
Complaint ¶ 41.
Murray maintains that an amended complaint was filed against
him in an attempt to have a second bite at the apple, despite
the Second Circuit's opinion on rehearing. Thus, Murray claims
entitlement to an order striking the amended complaint as
against him. I agree, he is so entitled to have the amended
complaint stricken. In moving to dismiss the original
complaint, Murray alleged that it failed to state a claim upon
which relief may be granted and that in any event it was barred
by the applicable three year statute of limitations. See Owens
v. Okure, 488 U.S. 235, 109 S.Ct. 573, 102 L.Ed.2d 594 (1989)
(three year statute of limitations applies as to false arrest
claims as prescribed by New York law.) I held that the
complaint alleged only two claims against Murray — false
arrest and unlawful search and seizure — and that Day failed
to state sufficient elements for any cognizable § 1983 claims.
On appeal, the Second Circuit agreed that those were the only
two claims as against Murray, and on rehearing the court
determined that the false arrest and search and seizure claims
were time-barred as against Murray. Affirming my dismissal of
the complaint against Murray, the court stated: "The petition
is granted and we now affirm the dismissal of the complaint
against Murray on the ground that the claims pleaded therein
are time barred. . . . [i]t follows that leave to replead the
claims asserted against Murray also must be denied." In light
of the Second Circuit's mandate denying the plaintiff leave to
amend, Day has not succeeded in convincing me that he has
pleaded any non-time-barred cognizable claims sufficient to
withstand Murray's motion to strike.
Claims brought against Assistant District Attorney Moscow for
false arrest and illegal search and seizure were deemed viable
and the Second Circuit has allowed Day to replead only those
claims. The implication being that Moscow acted outside his
prosecutorial function, choosing to involve himself in extra-
judicial, law-enforcement activities. However, Day's first
complaint, which asserted claims for malicious prosecution, was
dismissed outright by me and later unequivocally affirmed.
See Day v. Morgenthau, 909 F.2d 75, 77 (2d Cir. 1990) ("While
there are no `bright lines between quasi-judicial absolutely
immune conduct, on the one hand, and investigative and
administrative qualified immune behavior on the other,' Powers
v. Coe, 728 F.2d 97, 104 (2d Cir. 1984), the allegation that
Moscow engaged in malicious prosecution of the charge against
Day is clearly within the `judicial phase of the criminal
process,' Imbler v. Pachtman, 424 U.S. 409 at 430, 96 S.Ct. 984
at 995, 47 L.Ed.2d 128 (1976), and we therefore affirm [its]
dismissal.") The Second Circuit allowed Day to amplify only the
two surviving claims by amended complaint. Thus, any claims
arising from allegedly malicious prosecution, or conspiracy
to do the same, must be rejected outright.
The Second Circuit was clear in limiting Day's amended
complaint to "amplifying" only those claims for false arrest
and illegal search and seizure. Day, however, "amplifies" his
pleading by reasserting claims for, inter alia, malicious
prosecution. By asserting that a conspiracy arising out of the
false arrest and illegal search, he attempts to revive the
malicious prosecution claim. Alleging a conspiracy at this
juncture does not serve to resurrect dead claims. I further
disagree with Day's assertion that any matters left open by the
Second Circuit's mandate are thus fair ground and appropriate
to be explored in an amended complaint. This remand does not
give Day the unfettered right to file a wholly new complaint,
reasserting claims already dismissed on appeal, in the name of
amplifying the very narrow claims which survive. All claims
that do not ...