bearing the number 1292828, which purportedly showed the sale of
Winters' newly acquired vehicle by Malick's dealership to Rosalie
Gryszkiewicz, affirmed not only that he did not sell the vehicle
to her, but also that the signature allegedly bearing his name
was a forgery and made without his knowledge or consent; (4)
Malick also affirmed that a Vehicle Registration Title
Application Batch Filed numbered 41018-660 in Gryszkiewicz's name
bore his forged signature; (5) Gryszkiewicz affirmed she had
purchased the disputed automobile from plaintiff for $850, and
that he gave her the forms containing the forged signatures
(which she ultimately used to register this vehicle). See Id. at
¶¶ 9, 11, Exs. B-G.
The investigators spoke with Alvin Smith, operator of A & C
Auto Sales, who indicated in a voluntary sworn statement that
plaintiff had requested him to fill out an MV-50 in the name of
Empire Auto. Smith did, but swore he did not sign the dealer's
name on the signature line. He identified the MV-50 containing
the forged signature as the form he had filled out for plaintiff.
With the investigation completed, Lisi believed there was
sufficient evidence to believe that plaintiff had possessed a
forged instrument when he sold the disputed car to Gryszkiewicz.
See Id. at ¶ 11. The court concurs. Plaintiff's Fourth Amendment
claim is dismissed.
Given that Lisi had probable cause to arrest plaintiff,
"defendants" — whoever they are — enjoyed the right to
prosecute him. Nor has plaintiff shown any evidence his
prosecution was actuated by impermissible discrimination. A grand
jury refused to indict him, but this inference alone hardly
warrants a conclusion that discrimination motivated his
prosecution. His equal protection claim is dismissed.
Plaintiff's claim that "defendants" violated his Fourteenth
Amendment due process rights by instituting the Article 75
proceeding in bad faith, "impair[ing] Plaintiff's interest in his
good name, reputation, honor and integrity" amounts to a
constitutional claim for defamation. It is not actionable. The
Supreme Court has declined to include state tort-law as a basis
to actions under federal civil rights statutes based on an
asserted violation of the Fourteenth Amendment. See generally
Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976)
(holding plaintiff, whose name and photograph impermissibly
appeared on flyer captioned "Active Shoplifters" distributed
among merchants by local police, failed to allege deprivation of
liberty or property interest sufficient to invoke protection of
Due Process Clause of Fourteenth Amendment).
Plaintiff's claim defendants retaliated against him with the
Article 75 proceeding may have merit. Although plaintiff refers
to "defendants" — a term he often invokes indiscriminately — it
appears he means Paravati, who was responsible for initiating the
proceeding against him.*fn14 To state a retaliation claim under §
1983, plaintiff must show the conduct at issue was
constitutionally protected and that it must have been "a
substantial or motivating factor" in the decision to discipline
him. Mount Healthy Sch. Dist. Bd. of Educ. v. Doyle,
429 U.S. 274, 287, 97 S.Ct. 568, 576, 50 L.Ed.2d 471 (1977). Retaliation
claims may be fabricated easily, so plaintiff bears a heightened
burden of proof. See Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir.
1995). If plaintiff meets this heightened standard, Paravati
still may prevail if he demonstrates by a preponderance of the
evidence that he would have taken
the same action against plaintiff "even in the absence of the
protected conduct." Graham v. Henderson, 89 F.3d 75, 79 (2d Cir.
1996) (citing Mount Healthy, 429 U.S. at 287, 97 S.Ct. at 576).
Here plaintiff has met his burden. As the court discussed
earlier, filing a notice of claim is a constitutionally protected
activity under the First Amendment. Reasonable factfinders could
differ, based upon the temporal proximity of the instigation of
the proceeding, as to whether Paravati's decision was motivated
by retaliation. Whether Paravati has demonstrated by a
preponderance of the evidence that he would have taken the same
action against plaintiff "even in the absence of the protected
conduct" is a question of fact.
Paravati maintains he is entitled to qualified immunity, but
whether he is so entitled also is a question of fact. "Once
qualified immunity is pleaded, plaintiff's complaint will be
dismissed unless defendant's alleged conduct, when committed,
violated `clearly established statutory or constitutional rights
of which a reasonable person would have known.'" Williams v.
Smith, 781 F.2d 319, 322 (2d Cir. 1986) (quoting Harlow v.
Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d
396 (1982)). The contours of the right that defendants are
alleged to have violated "must be sufficiently clear that a
reasonable official would understand that what he is doing
violates that right." Maguire v. Coughlin, 901 F. Supp. 101, 106
(N.D.N.Y. 1995) (McAvoy, C.J.) (quoting Anderson v. Creighton,
483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987)).
In determining whether a statutory or constitutional right was
clearly established, three factors come into play: (1) whether
the right in question was defined with reasonable specificity;
(2) whether the decisional law of the Supreme Court and the
applicable circuit court support the existence of the right in
question; and (3) whether under preexisting law a reasonable
defendant official would have understood that his or her acts
were unlawful. See Jermosen v. Smith, 945 F.2d 547, 550 (2d Cir.
1991), cert. denied, 503 U.S. 962, 112 S.Ct. 1565, 118 L.Ed.2d
211 (1992). If plaintiff's retaliation allegations ring true,
Paravati surely would know his commencing the Article 75
proceeding was unlawful.
There is a caveat, however: Paravati, if liable, cannot be
liable in his official capacity. To the extent a state official
is sued for damages in his official capacity, the suit is deemed
to be a suit against the state, and the official is entitled to
invoke the Eleventh Amendment immunity belonging to the state.
See, e.g., Will v. Michigan Department of State Police,
491 U.S. 58, 64, 71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989) (neither a
state agency nor a state official sued in his official capacity
is a "person" within the meaning of § 1983); Kentucky v. Graham,
473 U.S. 159, 166-67, 105 S.Ct. 3099, 3105, 87 L.Ed.2d 114
(1985); Hafer v. Melo, 502 U.S. 21, 25, 112 S.Ct. 358, 362, 116
L.Ed.2d 301 (1991). See also HR v. Orleans County Sheriff's
Dept., No. Civ. A. 2:97-CV-052, 1998 WL 560036, at *3 (D.Vt.
Jul. 28, 1998) (Eleventh Amendment prohibits sheriff and deputy
defendants from suit in their official capacities). With any
claim brought against him in his individual capacity, however,
the state official has no Eleventh Amendment immunity. See Hafer,
502 U.S. at 30, 112 S.Ct. at 365.
Finally, the court turns to plaintiff's claim against Oneida
County. Oneida County argues plaintiff has alleged no county
policy that could subject it to § 1983 liability. The court
agrees. A § 1983 plaintiff cannot sustain a claim against a
municipality absent proof of a municipal policy. See Liffiton v.
Keuker, 850 F.2d 73, 76 (2d Cir. 1988). Plaintiff is long on
conclusory statements, but has offered absolutely no evidence of
a county policy or practice that caused the alleged deprivation
of his civil rights. Individual prosecutorial actions, such as
the initiation of an Article 75 proceeding, are not policies
of the county. See Baez v. Hennessy, 853 F.2d 73, 77 (2d Cir.
1988), cert. denied, 488 U.S. 1014, 109 S.Ct. 805, 102 L.Ed.2d
All of plaintiff's § 1983 claims, save his claim against
Paravati for retaliation, are without merit and dismissed.
VI. Plaintiff's Section 1981 Claims
Under 42 U.S.C. § 1981:
all persons within the jurisdiction of the United
States shall have the same right in every State and
Territory to make and enforce contracts, to sue, be
parties, give evidence, and to the full and equal
benefits of all laws and proceedings for the
security of persons and property as is enjoyed by
white citizens, and shall be subject to like
punishment, pains, penalties, taxes, licenses, and
exaction of every kind, and to no other.
To state a § 1981 claim, plaintiff must allege facts to
establish: (1) membership in a racial minority group; (2) an
intent to discriminate on the basis of race by the defendant; and
(3) discrimination concerning one or more of the activities
enumerated in the statute. See Mian v. Donaldson, Lufkin &
Jenrette Sec. Corp., 7 F.3d 1085, 1087 (2d Cir. 1993), cert.
denied, 516 U.S. 824, 116 S.Ct. 88, 133 L.Ed.2d 45 (1995).
Conclusory allegations do not support a § 1981 claim. See Yusuf
v. Vassar College, 35 F.3d 709, 713-14 (2d Cir. 1994).
In its general application, § 1981 has been construed as a
prohibition against racial discrimination. Saint Francis College
v. Al-Khazraji, 481 U.S. 604, 608-10, 107 S.Ct. 2022, 2025-27, 95
L.Ed.2d 582 (1987). Any discrimination must have been intentional
and purposeful and the plaintiff's race must have been the
motivating factor behind the defendant's discriminatory acts. See
Albert v. Carovano, 851 F.2d 561, 571 (2d Cir. 1988). Naked
assertions by a plaintiff that race was a motivating factor —
without a fact-specific allegation of a causal link between
defendant's conduct and the plaintiff's race — are too
conclusory to allege a § 1981 violation. Yusuf v. Vassar College,
827 F. Supp. 952, 955 (S.D.N.Y. 1993), aff'd in part and rev'd in
part, 35 F.3d 709 (2d Cir. 1994).
Plaintiff's § 1981 charge is that "[d]efendants deprived
[him] of his right to make and enforce contracts and to the full
and equal benefit of all regulations and laws and proceedings for
the security of [his] person and property[.]" Amend.Compl. at ¶
40. The court has found already the only defendant who may have
violated plaintiff's rights based upon a theory of race
discrimination is Paravati. Accordingly, he is the only defendant
who potentially may be held liable under this statute.*fn15
Plaintiff's other § 1981 claims are meritless and amenable to
VII. Plaintiff's Section 1982 Claims
Generally speaking, 42 U.S.C. § 1982 prohibits private racial
discrimination in the sale or rental of real or personal
property. See 42 U.S.C. § 1982 ("All citizens of the United
States shall have the same right, in every State and Territory,
as is enjoyed by white citizens thereof to inherit, purchase,
lease, sell, hold, and convey real and personal property"). The
record is devoid of any evidence that would allow plaintiff to
pursue any § 1982 action. It is dismissed.
VIII. Plaintiff's Section 1985 and 1986 claims
The claims plaintiff brings under §§ 1985 and 1986 are
likewise meritless. To establish a viable claim under § 1985(3),
which the court assumes is the basis for his claims, plaintiff
must allege and prove four things: (1) a conspiracy;
(2) for the purpose of depriving, either directly or indirectly,
any person or class of persons of the equal protection of the
laws, or of equal privileges and immunities under the laws; and
(3) an act in furtherance of the conspiracy; (4) whereby a person
is either injured in his person or property or deprived of any
right or privilege of a citizen of the United States. See United
Bhd. of Carpenters and Joiners v. Scott, 463 U.S. 825, 828-29,
103 S.Ct. 3352, 3356, 77 L.Ed.2d 1049 (1983). Any conspiracy must
be motivated by "`some racial or perhaps otherwise class-based
invidious discriminatory animus behind the conspirators'
action.'" Mian, 7 F.3d at 1088 (quoting United Bhd. of
Carpenters, 463 U.S. at 829, 103 S.Ct. at 3356). Section 1985(3)
should not be interpreted as a "general federal tort law."
Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S.Ct. 1790, 29
L.Ed.2d 338 (1971).
The defendants have clearly conspired in their
attempt to injure the Plaintiff because he has sought
to enforce his rights to be free from a work
environment which is alternatively hostile and
retaliatory. Documentary evidence demonstrates the
concerted efforts of Defendants Lisi, Paravati,
Chappel [sic], and others to trump up the charges
against the Plaintiff and to try and discredit him or
punish him after he filed suit. The proof in this
also case [sic] shows that the Defendants sought to
impede, obstruct, and defeat the due course of
justice[,] intending to deny the plaintiff equal
protection of the laws by subjecting him to different
standards of performance and enforcement than white
Plf's Mem. of Law at 9.