The opinion of the court was delivered by: I. LEO GLASSER
GLASSER, United States District Judge:
On or about September 15, 1993, Woodard filed a complaint alleging violations of Sections 1981, 1983, and 1985 of Title 42 of the United States Code and Sections 241 and 242 of Title 18 of the United States Code, stemming from his arrest and conviction for burglary, robbery, criminal possession of a weapon and grand larceny, and a separate arrest for burglary and possession of burglar's tools.
Plaintiff named as defendants Officers Robert Hardenfelder, Andrew Hurtle and Pablo Ortiz, and Detective Joanne Simone of the New York City Police Department (the "Police Defendants").
Also named as defendants were District Attorney Charles J. Hynes and Assistant District Attorneys Eric Buchvar and Michael F. Madden (the "District Attorney Defendants"), and the Honorable Justices Gerges and Feldman. On November 5, 1993, this court dismissed the complaint against Justices Gerges and Feldman based on the protection afforded judges for acts performed in their judicial capacity. Stump v. Sparkman, 435 U.S. 349, 356, 55 L. Ed. 2d 331, 98 S. Ct. 1099 (1978); Pierson v. Ray, 386 U.S. 547, 553-55, 18 L. Ed. 2d 288, 87 S. Ct. 1213 (1967). Woodard did not appeal this decision nor did he move for its reconsideration.
On or about November 12, 1993, the remaining defendants also moved to dismiss the complaint. In a Memorandum and Order dated January 7, 1994 (the "Order"), this court granted defendants' motion and dismissed the complaint based on the following analysis.
1. The District Attorney Defendants. In the complaint Woodard alleged that the District Attorney Defendants instituted criminal charges against him; submitted motions to consolidate; introduced identification testimony; and furnished to plaintiff's attorney a copy of unidentified latent prints. Therefore, accepting all of the allegations as true, and construing them in favor of plaintiff, this court held that the District Attorney Defendants were protected from personal liability pursuant to the doctrine of absolute prosecutorial immunity. Imbler v. Pachtman, 424 U.S. 409, 431, 47 L. Ed. 2d 128, 96 S. Ct. 984 (1976). In so holding, this court rejected plaintiff's argument that absolute immunity is not applicable for these defendants because "even prosecutors cloaked with absolute civil immunity could be punished criminally for willful deprivation of constitutional rights on strength of 18 U.S.C. Section 242, the criminal analog of Section 1983." Affidavit of Victor Woodard, December 1, 1993 ("Woodard Aff'd") at 8.
2. The Police Defendants. As stated above, plaintiff's civil rights complaint stemmed from two separate arrests and an alleged conspiracy involving the Police Defendants. The court analyzed plaintiff's complaint as follows.
a. Indictment No. 14364/92. Plaintiff was charged with and convicted of burglary, robbery, criminal possession, and grand larceny in connection with an October 17, 1992 attack on a Ms. Ruth Griffin in her home at 1547 East 66th Street in Brooklyn, New York. Plaintiff was arrested for these crimes when fingerprints found at the scene were compared with his own. Because a conviction gives a police officer a complete defense to a false arrest claim, Cameron v. Fogarty, 806 F.2d 380, 386 (2d Cir. 1986), cert. denied, 481 U.S. 1016, 95 L. Ed. 2d 501, 107 S. Ct. 1894 (1987), this court held that plaintiff could prove no set of facts in support of his claim which would entitle him to relief on this Section 1983 cause of action. In so holding, the court rejected plaintiff's argument that a motion to dismiss was not appropriate because (i) "plaintiff did not have a full and fair opportunity to litigate his Fourth Amendment claim in said court of conviction"; and (ii) "he was not convicted of the offenses for which he was arrested." Woodard Aff'd, at 7.
b. Indictment No. 12320/92. Plaintiff alleged a violation of 42 U.S.C. § 1983 based on his arrest by Officers Hardenfelder and Hurtle on October 22, 1992, in connection with the attempted forced entry into the home of a Mr. Eric Gutzlaff at 1730 East 46th Street in Brooklyn, New York. In the complaint Woodard stated that Officers Hardenfelder and Hurtle,
in their official capacities as police officers of the Police Department of the City of New York, 63rd precint [sic], with racial discrimination and with deprivation of the plaintiff's rights secured and protected by the constitution and laws of the United States, illegally arrested the plaintiff after an unidentified citizen informant stated "he just seen a suspicious black male on a white bicycle riding down E. 46th St., then he ran into a driveway" and after inspection, the defendants allegedly observed the plaintiff attempting to gain access to the rear window of 1730 East 46th St., with a screwdriver . . . .
Noting its obligation to interpret pro se complaint's liberally, the court nevertheless determined that the Section 1983 cause of action, as it related to Indictment No. 12320/92, must be dismissed because (i) the return of the grand jury indictment created at the very least a presumption of probable cause, Varanelli v. County of Suffolk, 130 A.D.2d 653, 654, 515 N.Y.S.2d 584, 585 (2d Dep't 1987); and (ii) the complaint failed to allege any facts indicating a lack of probable cause for this arrest. In so holding, the court rejected plaintiff's argument that "his complaint against the 'Police Defendants' for illegally arresting him on October 22, 1992 . . . was/is sufficient to state a cause of action under federal statute rendering every person who deprives any United States citizen under color of any state statute, regulation, etc., of any constitutional right liable to party injured." Woodard Aff'd at 7.
In his motion for reargument plaintiff contends that "the court should have given plaintiff an opportunity to amend his pro se complaint to state his claim more clearly," Pl.'s Mem. at 11, and acknowledges that he only alleged, in connection with Indictment No. 12320/92, that the officers "with racial discrimination . . . illegally arrested him," Pl.'s Mem. at 9 n.9. Plaintiff does not attach to his papers a proposed amended complaint, but in his memorandum of law plaintiff offers facts in connection with this arrest which were not contained in his original complaint. Woodard now adds that Officers Hardenfelder and Hurtle "responded to a radio run from a off duty MOS that there was a 10-10Y3 possible perpetrator and a possible burglary in progress at 1724 E. 46th St." Pl.'s Mem. at 1-2. Woodard notes that neither a description of the plaintiff nor the address of the complainant (1730 East 46th St.) was included in the "sprint report of the radio run." Pl.'s Mem. at 2 n.1 and 3 n.3. Woodard also states that the officers "without contacting the owner of 1724 E. 46th St., trespassed in the backyard of 1730 E. 46th St., and illegally arrested the plaintiff solely for the purpose of ascertaining his identity." Pl.'s Mem. at 3 n.2. Plaintiff notes that Mr. Todd Gutzlaff made a 911 telephone call to the police to report an attempted break-in, but that the officers had already arrested him (plaintiff) when they responded to the 911 call. Pl.'s Mem. at 4 n.4. Woodard states that he was given his Miranda warnings by the officers but "he refused," Pl.'s Mem. at 5, and that the officers "without probable cause and without the plaintiff's consent transported him to the 63rd precinct," Pl.'s Mem. at 5. Plaintiff also adds that Officer Hardenfelder "with official misconduct invented the male passerby and the story that he observed the plaintiff attempting to gain access to the rear window at 1730 E. 46th St., with a screwdriver, to justify the said illegal arrest." Pl.'s Mem. at 5 n.5. Woodard also adds the allegation that the complainant, Mr. Todd Gutzlaff, "did not have any basis of knowledge for the information he transmitted to the police and the information was unreliable." Pl.'s Mem. at 6 n.6.
c. Conspiracy to Forward Plaintiff's Prints. The complaint alleged that Officers Hardenfelder and Ortiz had conspired to forward a copy of plaintiff's fingerprints to the New York State Division of Criminal Justice Service and the Brooklyn Latent Print Unit after his October 22, 1992 arrest. If construed as a Section 1985(3) allegation, the court concluded that it must be dismissed because plaintiff did not allege that he was deprived of his rights as a result of any racial, ethnic, or class-based animus on the part of defendants. Zemsky v. City of New York, 821 F.2d 148, 151 (2d Cir.), cert. denied, 484 U.S. 965, 98 L. Ed. 2d 396, 108 S. Ct. 456 (1987). If construed as a Section 1983 allegation, the court also concluded that it must be dismissed because it contained only vague and conclusory allegations of a conspiracy to deprive plaintiff of his constitutional rights. Sommer v. Dixon, 709 F.2d 173, 175 (2d Cir.) (per curiam), cert. denied, 464 U.S. 857, 78 L. Ed. 2d 158, 104 S. Ct. 177 (1983). The court also noted that citizens of the United States do not have a right to have their fingerprints withheld after being lawfully arrested. Unlike the allegations regarding his October 22, 1992 arrest, or the actions of District Attorney Michael F. Madden, plaintiff offers no new facts in his memorandum of law in connection with this cause of action.
d. Qualified Immunity. The court dismissed the complaint as against Officer Ortiz who recovered plaintiff's unidentified latent prints and forwarded them to the latent print unit on October 20, 1992, based on the doctrine of qualified immunity. Harlow v. Fitzgerald, 457 U.S. 800, 818, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982). The court also dismissed the complaint against Detective Joanne Simone for the same reason; it was alleged that she had compared plaintiff's prints found at the scene of the October 22, 1992 robbery with prints taken from plaintiff at an earlier time. In so holding, the court rejected plaintiff's argument that "the 'Police Defendants[']' claim for qualified immunity must be defeated because they knew or reasonably should have known that the malicious action they took within their sphere of official responsibility would violate the constitutional rights of the plaintiff." Woodard Aff'd at 7-8.
Woodard did not make a cross-motion to amend his complaint pursuant to Rule 15(a) of the Federal Rules of Civil Procedure. However, in his affidavit in opposition to defendants' motion to dismiss, he asked that the motion be denied, or, in the alternative, that he be allowed to file an amended complaint. Woodard Aff'd at 8. In granting defendants' motion to dismiss without prejudice, the court did not ...