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HILI v. SCIAROTTA

February 22, 1997

CHARLES HILI, Plaintiff, against JOSEPH L. SCIAROTTA, Director of Nassau County Department of Probation and DIANE EICH, Probation Officer, Defendants.


The opinion of the court was delivered by: SPATT

 SPATT, District Judge.

 The Pro Se plaintiff, Charles Hili ("Hili" or the "plaintiff"), commenced this lawsuit pursuant to 42 U.S.C. ยง 1983, alleging that Joseph L. Sciarotta, Director of Nassau County Department of Probation, and Diane Eich, a Probation Officer (the "defendants"), under orders from the Nassau County Department of Probation, deprived him of his constitutional rights by filing an inaccurate presentence report. As a result, the plaintiff claims he has been denied, among other things, parole, good behavior benefits, and temporary release due to the alleged incorrect presentence report. Presently before the court is the defendants' motion to dismiss the complaint for failure to state a claim upon which relief can be granted pursuant to Fed. R. Civ. P. 12(b)(6).

 I. Background

 On April 7, 1989, Nassau County Court Judge Raymond Harrington requested that the defendants prepare a presentence report to aid the court in sentencing Hili. The presentence report was submitted to the court on May 26, 1989. Upon receipt and review of the presentence report, the court sentenced Hili to periods of incarceration of four to twelve years for attempted possession of a dangerous weapon in the first degree, and one and one-third to four years for conspiracy in the fourth degree.

 Hili claims that the defendants, "acting under color of state law, did not properly investigate the allegations presented to [them] and relied knowingly on hearsay and false information in [delivering the presentence] report to the court, [thereby] depriving [the] plaintiff of equal protection of the laws." (Compl. at 3).

 On January 24, 1996, Hili commenced this action seeking correction of the presentence report, distribution of the updated report to those in possession of the 1989 presentence report, and monetary damages. The defendants move to dismiss the cause of action on the grounds that: (1) the defendants have absolute immunity because they are probation officers involved in quasi-judicial activity, and (2) the claims are barred by the applicable statute of limitations.

 II. Discussion

 A. The Motion to Dismiss Standard

 Upon a motion for dismissal of a complaint pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim, the court should dismiss the complaint 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." Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957); see International Audiotext Network, Inc. v. AT&T, 62 F.3d 69, 71 (2d Cir. 1995). The Second Circuit stated that in deciding a Rule 12(b)(6) motion a court may consider "only the facts alleged in the pleadings, documents attached as exhibits or incorporated by reference in the pleadings and matters of which judicial notice may be taken." Samuels v. Air Transp. Local 504, 992 F.2d 12, 15 (2d Cir. 1993); see also Cortec Industries, Inc. v. Sum Holding L.P., 949 F.2d 42, 47 (2d Cir. 1991), cert. denied, 503 U.S. 960, 112 S. Ct. 1561, 118 L. Ed. 2d 208 (1992).

 It is not the duty of the court "to weigh the evidence that might be presented at a trial but merely to determine whether the complaint itself is legally sufficient." Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir. 1985). In doing so, the court must construe all reasonable inferences in favor of the plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974); Bankers Trust Co. v. Rhoades, 859 F.2d 1096, 1099 (2d Cir. 1988), cert. denied sub nom., Soifer v. Bankers Trust Co., 490 U.S. 1007, 104 L. Ed. 2d 158, 109 S. Ct. 1642 (1989), and accept as true all factual allegations in the complaint. See LaBounty v. Adler, 933 F.2d 121, 123 (2d Cir. 1991); Procter & Gamble Co. v. Big Apple Industrial Buildings, Inc., 879 F.2d 10, 14 (2d Cir. 1989), cert. denied, 493 U.S. 1022, 107 L. Ed. 2d 743, 110 S. Ct. 723 (1990). "The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Villager Pond, Inc. v. Town of Darien, 56 F.3d 375, 378 (2d Cir. 1995), cert. denied, Villager Pond, Inc. v. Danen, 136 L. Ed. 2d 14, 117 S. Ct. 50 (1996)(quoting Scheuer v. Rhodes, 416 U.S. 232, 235-36, 40 L. Ed. 2d 90, 94 S. Ct. 1683 [1974]).

 The Court is mindful that under the modern rules of pleading, a plaintiff need only provide "a short and plain statement of the claim showing that the pleader is entitled to relief," Fed.R.Civ.P. 8(a)(2), and that "all pleadings shall be so construed as to do substantial justice." Fed.R.Civ.P. 8(f).

 Additionally, because the plaintiff is proceeding without an attorney, the Court must give wide latitude to the papers filed by the pro se litigant. See Haines v. Kerner, 404 U.S. 519, 520, 30 L. Ed. 2d 652, 92 S. Ct. 594 (1972) (Pro se papers are to be held "to less stringent standards than formal pleadings drafted by lawyers."). The Court recognizes that it must make reasonable allowances so that a pro se plaintiff does not forfeit his rights by virtue of his lack of legal training. Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983). However, the Court is also aware that "'self representation does not ...


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