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DOVE v. FORDHAM UNIVERSITY

June 14, 1999

HORACE DOVE, PLAINTIFF,
v.
FORDHAM UNIVERSITY, THE CITY OF NEW YORK, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Sweet, District Judge.

    OPINION

The defendants Fordham University ("Fordham"), Fordham University School of Social Work (the "School"), Fordham University Security Officers Joseph O'Hare, Maryna Quaranta, Susan Egan, Elaine Gerald, Maxine Lynn, Bertram Beck, Wilma M. David, Doris Bronson, William S. Dolan, Shea, Mr. Carroll, Ms. Covello, George Henshaw and Mike Swikata (the "individual Fordham Defendants") and defendants The City of New York (the "City"), the New York City Police Department (the "Department"), Howard Safir as Commissioner of the New York City Police Department (the "Commissioner"), Commander of the 20th Precinct, New York City Police Department, Police Officer Michael Reddington, Police Officer John Rowell, and two (white) police officers of the 20th Precinct known here as John Does (the "individual City Defendants") (collectively, "the Defendants"), have moved under Rule 12(b)(6) to dismiss the First Amended Complaint of plaintiff Horace Dove ("Dove"). Dove has moved to file a Second Amended Complaint. For the reasons set forth below, the Defendants' motion is granted, and Dove's motion is denied.

Prior Proceedings

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 1985.*fn1

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.

The Facts

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 asked."

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.

Discussion

I. Defendants' Motion to Dismiss is Granted

A. Relevant Legal Standard

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 ...


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