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May 14, 1991


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 individuals.

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 ¶ 20.

While observing and waiting in the gallery of the courtroom, Day was arrested. The arrest, apparently undertaken by Murray on Moscow's direction, was warrantless and not in response to a misdemeanor complaint. Following the arrest, Murray searched a briefcase and billfold in Day's possession. Amended Complaint ¶ 22. After various papers were removed from Day's briefcase, Moscow allegedly instructed Murray to swear out a complaint for Criminal Trespass in the Third Degree. Amended Complaint ¶¶ 26, 37.

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 ...

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