Second Amended Complaint. For the reasons set forth below, the
Defendants' motion is granted, and Dove's motion is denied.
Dove filed his complaint in this action on October 8, 1998. He
filed his First Amended Complaint on October 18, 1998, alleging
that as a black person with an asthma disability and an allergy
to smoke, the Defendants' action constituted civil rights
violations in contravention of 42 U.S.C. ¶¶ 1981, 1983 and
The City, the Commissioner, and the individual City Defendants
moved under Rule 12(b)(6), Fed.R.Civ.P., on December 15, 1998 to
dismiss the First Amended Complaint on statute of limitations as
well as other grounds. On January 28, 1999, Fordham, the School
and the individual Fordham Defendants, made a similar motion.
On February 2, 1999, Dove moved to file a Second Amended
Complaint. All motions were deemed submitted on March 10, 1999.
In considering a motion to dismiss, the factual allegations of
the complaint are presumed to be true and all factual inferences
must be drawn in the plaintiff's favor and against the
defendants. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct.
1683, 40 L.Ed.2d 90 (1974); Atlantic Mutual Ins. Co. v. Balfour
Maclaine Int'l Ltd., 968 F.2d 196, 198 (2d Cir. 1992); Rubin v.
Tourneau, Inc., 797 F. Supp. 247, 248 (S.D.N.Y. 1992).
Accordingly, the factual allegations considered here and set
forth below are taken from Dove's First Amended Complaint and do
not constitute findings of fact by the Court. They are presumed
to be true only for the purpose of deciding the present motion.
Dove enrolled as a graduate student in social work at Fordham
in 1993 and at the beginning of the fall 1994 semester demanded
to be transferred to another field placement. The University
refused this request, and determined that because of Dove's
failure to attend his initial field placement, he had failed to
meet the academic requirements applicable to all students in the
graduate program in Social Service and, accordingly, on October
18, 1994, Dove was academically dismissed.
On October 27, 1994, Dove entered the University campus, was
stopped by security guards, refused to leave, and a confrontation
occurred. Dove was arrested by New York City police officers and
removed from the premises. On December 12, 1994, Dove again
attempted to enter the campus and again was arrested and removed
by the New York City Police when he "refused to leave when
Dove also alleges that in or about 1995, charges against him on
October 27, 1994 and December 12, 1994 were dismissed and sealed
in Criminal Court, but also states that he "spent six months in
jail from December 1994 until May 1995."
In April 1996, after obtaining permission from the police, Dove
staged three protests against the Defendants for violating his
civil rights, "false, evil and malicious arrests and denying
[him] an education.". (Complaint ¶ 56). During the second
protest, defendant Henshaw and other security officers allegedly
assaulted Dove and hurled racial epithets at him. Dove alleges
that the false arrests, false imprisonment, and malicious
prosecution caused him to seek psychiatric treatment in 1997.
I. Defendants' Motion to Dismiss is Granted
A. Relevant Legal Standard
A court should dismiss a complaint for failure to state a claim
under Rule 12(b)(6),
Fed.R.Civ.P., only if it appears beyond doubt that the plaintiff
can prove no set of facts supporting its claim that entitles it
to relief. See H.J. Inc. v. Northwestern Bell Tel. Co.,
492 U.S. 229, 109 S.Ct. 2893, 2906, 106 L.Ed.2d 195 (1989); Hishon
v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d
59 (1984); Dahlberg v. Becker, 748 F.2d 85, 88 (2d Cir. 1984).
A court must construe the complaint's allegations in the light
most favorable to the plaintiff and accept those allegations as
true. See Scheuer v. Rhodes, 416 U.S. at 236, 94 S.Ct. 1683;
Dacey v. New York County Lawyers' Assoc., 423 F.2d 188, 191 (2d
In considering this motion, the Court is cognizant of the
principle that the Second Circuit "ordinarily require[s] the
district court to give substantial leeway to pro se litigants."
Gomes v. Avco Corp., 964 F.2d 1330, 1335 (2d Cir. 1992);
accord Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30
L.Ed.2d 652 (1972) (per curiam) (allegations of pro se
complaint held to "less stringent standards than formal pleadings
drafted by lawyers."); LaBounty v. Adler, 933 F.2d 121, 122 (2d
Cir. 1991) ("We are obliged to construe [pro se] pleadings and
papers liberally."). A pro se litigant's submissions are to be
interpreted "to raise the strongest arguments they suggest."
Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994).
B. The Complaint Fails to Allege Specific Wrongdoing Against
Although Joseph O'Hare, Susan Egan, Elaine Gerald, Wilma M.
David, Doris Bronson, Shea, Mr. Carroll and Ms. Covello are named
in the caption, there is no reference to these defendants in the
body of the complaint. It is well-settled that "where the
complaint names a defendant in the caption but contains no
allegations indicating how the defendant violated the law or
injured the plaintiff, a motion to dismiss the complaint in
regard to that defendant should be granted." Morabito v. Blum,
528 F. Supp. 252, 262 (S.D.N.Y. 1981) (citing Gutierrez v.
Vergari, 499 F. Supp. 1040, 1052 (S.D.N.Y. 1980)); Holloway v.
Carey, 482 F. Supp. 551, 553 (S.D.N.Y. 1979); see also Kirkland
v. Bianco, 595 F. Supp. 797, 799 (S.D.N.Y. 1984).
C. The Complaint Fails to State a Claim as to the Remaining
1. Section 1983