Plaintiff filed this action in November of 1997 against the State of
New York, the Riverbank State Park, and officer Hardison. Defendants have
now moved for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c).
Defendants contend that the Eleventh Amendment precludes this suit
against all three defendants. The parties have fully briefed this
motion, including the submission of a sur reply by plaintiff dated
January 8, 1999.
The standard governing a motion for judgment on the pleadings is
equivalent to the standard governing a motion to dismiss for failure to
state a claim upon which relief can be granted. See Sheppard v. Beerman,
18 F.3d 147, 150 (2d Cir. 1994), cert. denied, 513 U.S. 816, 115 S.Ct.
73, 130 L.Ed.2d 28 (1994). Accordingly, in evaluating a Rule 12(c)
motion, a court must accept as true the allegations of the complaint and
must view the pleadings in the light most favorable to, and draw all
reasonable inferences in favor of, the nonmoving party. See, e.g., Id.;
Madonna v. United States, 878 F.2d 62, 65 (2d Cir. 1989); New York
Criminal Bar Ass'n v. Newton, 1999 WL 14015, *1 (S.D.N Y Jan.13, 1999).
The Court "may not dismiss the complaint `unless it appears beyond doubt
that plaintiff can prove no set of facts in support of his claim which
would entitle him to relief.'" Madonna, 878 F.2d at 65 (quoting Conley
v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). In
other words, "[j]udgment on the pleadings is appropriate if, from the
pleadings, the moving party is entitled to judgment as a matter of law."
Burns Intern. Sec. Servs. Inc. v. International Union, United Plant Guard
Workers of America, 47 F.3d 14, 16 (2d Cir. 1995).
Moreover, as a pro se litigant, plaintiff is entitled to significant
liberality in how his pleadings are construed. A pro se plaintiffs
pleadings are held "to less stringent standards than formal pleadings
drafted by lawyers." Haines, 404 U.S. at 520-21, 92 S.Ct. 594; see Ortiz
v. Cornetta, 867 F.2d 146, 148 (2d Cir. 1989). Nevertheless, for the
following reasons, defendants' motion is granted.
I. The Eleventh Amendment Bars the Action Against the State of New York
The claim against the State of New York must be dismissed because the
Eleventh Amendment bars from federal court all section 1983 suits for
legal or equitable relief brought by citizens against unconsenting states
and agencies of those states. Alabama v. Pugh, 438 U.S. 781, 782, 98
S.Ct. 3057, 57 L.Ed.2d 1114 (1978) (per curiam); Edelman v. Jordan,
415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974); see also Quern v.
Jordan, 440 U.S. 332, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979) (section 1983
does not override the immunity granted to states by the Eleventh
Amendment); Trotman v. Palisades Interstate Park Comm'n, 557 F.2d 35, 40
(2d Cir. 1977) (New York is an unconsenting state).*fn2
II. Riverbank State Park is not a "Person" and Cannot be Sued Pursuant
to 42 U.S.C. § 1983
The claim against Riverbank State Park must be dismissed because
1983 provides that an action may be maintained against a "person" who has
deprived another of rights under the "constitution and laws."
42 U.S.C. § 1983. A park is not a "person" within the meaning of
section 1983. Cf. Spencer v. Doe, 139 F.3d 107, 111 (2d Cir. 1998) (state
agency is not a "person" under section 1983); Seergy v. Kings County
Republican County Committee, 459 F.2d 308, 313 (2d Cir. 1972) (New York
City Board of Elections is not a "person"); Zuckerman v. Appellate
Division, Second Dep't, Supreme Court, 421 F.2d 625, 626 (2d Cir. 1970)
(a court is not a "person"); Mathis v. Clerk of First Dep't, Appellate
Div., 631 F. Supp. 232, 235 (S.D.N.Y. 1986) (same).
III. False Arrest and Malicious Prosecution
No claim may be brought pursuant to 42 U.S.C. § 1983 for false
arrest or malicious prosecution if the plaintiff was convicted of the
offense for which he was arrested. Heck v. Humphrey, 512 U.S. 477, 489,
114 S.Ct. 2364, 129 L.Ed.2d 383 (1994) ("[A] section 1983 cause of action
for damages attributable to an unconstitutional conviction or sentence
does not accrue until the conviction or sentence has been
invalidated."); Cameron v. Fogarty, 806 F.2d 380, 386-88 (2d Cir. 1986),
cert. denied. 481 U.S. 1016, 107 S.Ct. 1894, 95 L.Ed.2d 501 (1987)
(citations omitted); see also Dukes v. New York, 743 F. Supp. 1037,
1040-41 (S.D.N.Y. 1990). Because plaintiff has not alleged that the state
court proceedings terminated in his favor, the false arrest and malicious
prosecution claims must be dismissed.
An ACD is not considered a termination of prosecution in plaintiffs
favor under New York law. Johnson v. Bax, 63 F.3d 154, 159 (2d Cir. 1995)
(pro se plaintiff could not maintain a section 1983 suit for false arrest
or malicious prosecution after accepting an ACD, but could maintain a
suit based on violations of his First Amendment rights); see also Roesch
v. Otarola, 980 F.2d 850, 852 (false imprisonment claim not cognizable
after acceptance of an ACD under Connecticut law); Singleton v. City of
New York, 632 F.2d 185, 193 (2d Cir. 1980) (malicious prosecution claim
not cognizable after acceptance of an ACD under New York law); Rivera v.
City of Rochester, 21 F. Supp.2d 230, 233 (W.D.N.Y. 1998) (same).
Plaintiff alleges that one of the two summonses he was issued for
disorderly conduct was dismissed on November 17, 1997. Liberally
construed, plaintiff contends that he can maintain an action for false
arrest and malicious prosecution based on the charge that was dismissed.
Amended Complaint at "seventh". However, "[w]here . . . the criminal
prosecution has resulted in acquittal on some, but not all charges, the
Court must determine whether the charges are sufficiently distinct to
allow a malicious prosecution claim to proceed on the charge for which
there was an acquittal." Pichardo v. New York Police Dept., 1998 WL
812049, *3 (S.D.N Y Nov.18, 1998) (citing Janetka v. Dabe, 892 F.2d 187,
190 (2d Cir. 1989)).
In order to determine if charges are distinct the "[c]ourt shall
examine whether the elements of each charge are different, whether one
charge is a lesser included offense of the other, and whether the alleged
actions were directed at different people." Id. at *3 (citing Janetka,
892 F.2d at 190). In the instant case, plaintiff was issued two summonses
— both for disorderly conduct — for the same incident at the
same time on the same day.*fn3 Copies
of the two summonses are annexed to the original complaint. The two
charges brought against plaintiff were not distinct.
Therefore, because an ACD is not considered termination of prosecution
in plaintiffs favor under New York law and the two charges against
plaintiff were not distinct, plaintiffs action against defendants for
malicious prosecution and for false arrest must be dismissed.
IV. Excessive Force During Search
Liberally construed, plaintiff alleges that Officer Hardison used
excessive force by "push[ing] and shov[ing]" him during the search
incident to his arrest. "Where an excessive force claim arises in the
context of an arrest, the claim should be evaluated on a reasonableness
standard." Houston v. New York State Troopers, 1997 WL 639256, *3
(S.D.N.Y. Oct.15, 1997) (citing Roundtree v. City of New York,
778 F. Supp. 614, 621-22 (E.D.N.Y. 1991)). A court should determine
whether the officer's actions were objectively reasonable in light of the
facts and circumstances surrounding the arrest. Id. (citing Graham v.
Connor, 490 U.S. 386, 397, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989)). A
court must therefore adopt the perspective of a reasonable officer on the
scene of the arrest and be mindful that "`[n]ot every push or shove, even
if it may later seem unnecessary in the peace of a judge's chambers,'
violates the Fourth Amendment." Graham, 490 U.S. 386, 397, 109 S.Ct.
1865, 104 L.Ed.2d 443 (1989) (quoting Johnson v. Glick, 481 F.2d 1028,
1033 (2d Cir. 1973)).
In determining whether the use of force was reasonable, a court should
look to the need for the use of force, the relationship between the need
and the amount of force used, the extent of injury inflicted, and whether
the force was applied in good faith or maliciously and sadistically.
Johnson, 481 F.2d at 1033. "A complaint that fails to allege an
unreasonable excessive use of force may be dismissed for failure to state
a claim. Such a dismissal would be proper only `if it is absolutely
certain that plaintiff can establish no facts to show that he was
subjected to an unreasonable use of force by the arresting officers.'"
Houston, 1997 WL 639256, at *3 (quoting Roundtree, 778 F. Supp. at 621).
In this case, accepting as true the allegations in the amended
complaint, and drawing all reasonable inferences in favor of plaintiff,
the Court finds that the plaintiff has not alleged that officer Hardison
used unreasonable excessive force. Therefore, plaintiff's claim of
excessive force is dismissed. See Roundtree, 778 F. Supp. at 622 (court
dismissed excessive force claim based only on plaintiffs allegation that
he was pushed into a car); Mandina v. The City of Yonkers, 1998 WL
637471, *9 (S.D.N.Y. Sept.16, 1998) (granting summary judgment against
pro se plaintiff who alleged, inter alia, that during his arrest,
defendant police officer used excessive force by pushing and shoving him
into a police car); see also Landy v. Irizarry, 884 F. Supp. 788, 798
(S.D.N.Y. 1995) (granting summary judgment where pro se plaintiff alleged
that officer used excessive force by kicking him and pushing a gun
against his head during arrest; force was reasonable because the
plaintiff resisted arrest and attempted to flee); Hamilton v. Broomfield,
1998 WL 17697, *1 (S.D.N Y Jan.20, 1998) (dismissing pro se complaint
which alleged that officer used excessive force during arrest by
bloodying the plaintiffs lip and placing handcuffs too tightly around his
wrists; officer acted reasonably because the plaintiff resisted arrest);
Odom v. Bruno, 1994 WL 132286, *3-4 (S.D.N.Y. April 14, 1994) (court
granted summary judgment where force alleged was removal of a soft arm
cast in order to handcuff the plaintiff, who had attempted to flee).
V. Verbal Harassment
To the extent Bowles seeks to assert a claim of verbal abuse against
Hardison, this Court notes that verbal harassment or threats alone do not
constitute a violation of any federally protected, right and are
therefore not actionable pursuant to 42 U.S.C. § 1983. Arce v.
Banks, 913 F. Supp. 307 (S.D.N.Y. 1996); Zeno v. Cropper, 650 F. Supp. 138,
141 (S.D.N.Y. 1986). Thus, plaintiffs claims of verbal harassment must be
dismissed. See Jermosen v. Coughlin, 878 F. Supp. 444, 449 (N.D.N Y 1995)
("Although indefensible and unprofessional, verbal threats or abuse are
not sufficient to state a constitutional violation cognizable under
For the reasons set forth above, defendant's motion for judgment on the
pleadings is granted and the Clerk of Court is directed to enter judgment
dismissing the amended complaint in its entirety.