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DUAMUTEF v. MORRIS

January 29, 1997

DUAUT A. DUAMUTEF, Plaintiff, against THOMAS MORRIS, Shield # 29501; VICTOR J. HERNANDEZ, Shield # 2443; DANIEL MULLINS, Shield # 27810, Defendants.


The opinion of the court was delivered by: SOTOMAYOR

 SONIA SOTOMAYOR, U.S.D.J.

 Pro se plaintiff, Duaut Duamutef, an inmate at Wende Correctional Facility, brings this action for monetary damages under 42 U.S.C. § 1983. He alleges that his state criminal conviction was based upon the wrongful conduct of the defendants, all New York City police officers, who orchestrated his arrest and coerced witnesses to testify against him falsely at trial in retaliation for his involvement with the New African Liberation Movement.

 Defendant Morris, the only defendant who has been served in this action, moves to dismiss the complaint under Fed. R. Civ. P. 12(b)(6) on the ground that the complaint fails to state a claim upon which relief can be granted.

 Plaintiff filed a "Memorandum of Law in Opposition to Defendants' Motion to Dismiss" ("Opp. Mem."). Thereafter, Morris filed a Reply Memorandum in which he raised two additional grounds for dismissal not contained in his original moving papers: (1) that the allegations against defendant Morris are conclusory, and (2) that plaintiff's claims are barred by the applicable statute of limitations. I remind defendant that "a reply brief is just that -- a reply -- and is not an occasion to raise issues for the first time ...." Kadic v. Karadzic, 1993 U.S. Dist. LEXIS 13428, 1993 WL 385757, at *1 (S.D.N.Y. Sept. 24, 1993). New issues raised in a reply may be treated as a nullity. Id. Nevertheless, the Prison Litigation Reform Act of 1995, which amends 28 U.S.C. § 1915A, permits me to review a complaint in its entirety and to determine, sua sponte, whether it fails to state a claim. *fn1" For the reasons discussed below, defendant's motion is GRANTED and the complaint is dismissed in its entirety.

 BACKGROUND

 The following information is set forth in plaintiff's complaint. Defendant Hernandez arrested plaintiff in 1982, charging him with the crime of murder. Complaint at 3. Plaintiff was subsequently tried and convicted on this charge. The "principal evidence against the plaintiff, the evidence the jury relied upon to find plaintiff guilty of the crime," was the testimony of defendants Morris and Mullins regarding the victim's deathbed identification of plaintiff as the man who had shot him. Id. at 4. The victim's stepfather, Joseph Wallace, also testified at the trial, identifying plaintiff as the man who shot his steps on. Id. In other testimony, Preston Hallman "claimed that he witnessed the shooting and that plaintiff was the shooter." Id.

 Both Hallman and Wallace later recanted their testimony, identifying another man as the shooter. Complaint at 4. Hallman indicated "that the ADA, Martin Fisher, paid him to frame[] plaintiff." Id. Plaintiff alleges that he received an affidavit from Wallace on September 28, 1995, which stated that Mullins and Hernandez told Wallace that plaintiff "was a reputed member of the New African Liberation and that the FBI were investigating plaintiff for his activities" and "coerced him into framing the plaintiff for the crime." Id. Wallace also indicated that he "went over [his] statements and testimonies [sic] with the ADA, Martin Fisher, at his office, to project the plaintiff as the perpetrator." Id.

 DISCUSSION

 When determining whether plaintiff's allegations state a claim, a district court must "assess the legal feasibility of the complaint." Smith v. O'Connor, 901 F. Supp. 644, 646 (S.D.N.Y. 1995) (citations omitted). The complaint should be dismissed only "if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Valmonte v. Bane, 18 F.3d 992, 998 (2d Cir. 1994) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957)).

 When considering defendant's motion to dismiss under Fed. R. Civ. P. 12(b)(6), I must accept as true the factual allegations in the complaint and construe all reasonable inferences in plaintiff's favor. See generally Leatherman v. Tarrant County Narcotics Intelligence & Coord. Unit, 507 U.S. 163, 164, 122 L. Ed. 2d 517, 113 S. Ct. 1160 (1993); Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir.), cert. denied, 513 U.S. 836, 130 L. Ed. 2d 63, 115 S. Ct. 117 (1994). I likewise apply this standard in evaluating plaintiff's claims under 28 U.S.C. § 1915A. Moreover, where, as here, plaintiff is proceeding pro se, I must "read the supporting papers liberally and...interpret them to raise the strongest arguments that they suggest." Soto v. Walker, 44 F.3d 169, 173 (2d Cir. 1995) (citations omitted). In so doing, I must hold plaintiff to a pleading standard which is "less stringent . . . than formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520-21, 30 L. Ed. 2d 652, 92 S. Ct. 594 (1972) (per curiam).

 To state a claim for relief under 42 U.S.C. § 1983, a plaintiff must allege that a person acting under color of state law, deprived him of a right, privilege or immunity secured by the Constitution, laws or treaties of the United States. 42 U.S.C. § 1983; Sykes v. James, 13 F.3d 515, 519 (2d Cir. 1993), cert. denied, 512 U.S. 1240, 129 L. Ed. 2d 867, 114 S. Ct. 2749 (1994). "Section 1983 itself creates no substantive rights; it provides only a procedure for redress for the deprivation of rights established elsewhere." Sykes, 13 F.3d at 519 (citations omitted).

 Plaintiff challenges the legitimacy of his conviction by claiming that defendants subjected him to a false arrest, perjured themselves at trial, and orchestrated a malicious prosecution against him. See Cook v. Sheldon, 41 F.3d 73, 79 (2d Cir. 1994) ("Section 1983 liability may ... be anchored in a claim for malicious prosecution, as this tort 'typically implicates constitutional rights secured by the fourteenth amendment, such as deprivation of liberty.'") (citations omitted). Plaintiff's contention that defendants acted in retaliation against him for his political activities, and in an effort to stifle those activities, suggests additional claims for retaliation in violation of plaintiff's first amendment rights, and for malicious abuse of criminal process. See Mozzochi v. Borden, 959 F.2d 1174, 1179 (2d Cir. 1992) ("it has long been established that certain adverse governmental action taken in retaliation against the exercise of free speech violates the First Amendment."); Cook v. Sheldon, 41 F.3d at 79 (holding that abuse ...


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