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DANIEL v. SAFIR

February 15, 2001

ELRIDGE DANIEL, JR., PLAINTIFF,
v.
HOWARD SAFIR, ET AL., DEFENDANTS.



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

  ORDER

SO ORDERED.

ORDER

On February 15, 2001, the court reviewed de novo Magistrate Judge Gold's report and plaintiff's objections to it, and adopted Judge Gold's report in its entirety. In granting the motions to dismiss of various defendants, including Garbarini & Sober, P.C., the court inadvertently did not include Gregg Weinstock, an attorney with that law firm who also was named as a defendant. Plaintiff's claims against Mr. Weinstock are the same as his claims against Garbarini & Scher, P.C. For the reasons stated in Judge Gold's report and recommendation, the motion to dismiss brought by Gregg Weinstock is granted in its entirety and all claims against him are dismissed. All motions for sanctions are denied for the reasons stated by Judge Gold.

SO ORDERED.

REPORT AND RECOMMENDATION

Introduction

Plaintiff, Elridge Daniel, Jr., proceeding pro se, brings this action asserting Various civil rights violations. Most, but not all of his claims, appear to arise from his arrest and prosecution for criminal harassment in 1995. Although the precise nature of the circumstances giving rise to this lawsuit are unclear, the following facts may be culled from the papers submitted by the parties. On April 25, 1995, plaintiff was arrested for allegedly threatening to commit arson in retaliation for the New York City Fire Department's purported failure to address complaints he lodged with the F.D.N.Y. Action Line. Plaintiff was charged with criminal harassment and was appointed a Legal Aid Society attorney. A letter from the Law Department of the City of New York indicates that the criminal action was adjourned in contemplation of dismissal on May 29, 1996. See Letter from Lisa J. Black, Asst. Corp. Counsel to Steven M. Gold, United States Magistrate Judge (May 12, 2000). No other information regarding the outcome of the action has been submitted to this Court.

Plaintiff now brings this lawsuit against various individuals and entities, some of which were connected with the criminal proceedings. The defendants include Legal Aid attorney Richard Baum, who represented plaintiff in the criminal action, the Legal Aid Society, Garbarini & Scher, P.C., counsel for Baum in this action, the Honorable Karen B. Yellen, who presided at the criminal proceedings, Judge Yellen's law clerks, Judge Stephen J. Rooney's law clerk, and Verizon Corporation ("Verizon") (formerly, and sued as, Bell Atlantic Telephone Corporation), which produced plaintiff's phone records in the criminal trial pursuant to subpoena.*fn1 Plaintiff claims that these individuals and entities deprived him of his constitutional rights, and seeks relief under the civil rights statutes, 42 U.S.C. § 1981, 1982, and 1983. Plaintiff also claims that a computer salesperson, Robert Friedman, damaged plaintiff's computer equipment in violation of his constitutional rights. The claims asserted against Friedman appear unconnected to the underlying criminal matter. In addition to these claims, plaintiff alleges that defendants violated a number of criminal and civil state and federal laws. Defendants now move separately to dismiss plaintiff's claims pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief may be granted.

The Honorable Nina Gershon has referred defendants' motions to me for a report and recommendation. For the reasons discussed below, I respectfully recommend that defendants' motions to dismiss be granted and plaintiff's claims as to these defendants be dismissed.

Discussion

A. Standard of Review

A court may grant a motion to dismiss for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6) 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, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957). A court must take as true all the facts alleged in the complaint and draw all reasonable inferences in the plaintiff's favor. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974); DeJesus v. Sears, Roebuck & Co., Inc., 87 F.3d 65, 69 (2d Cir. 1996). Moreover, pro se complaints are held to "less stringent standards than formal pleadings drafted by lawyers," and are to be construed liberally. Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 596, 30 L.Ed.2d 652 (1972) (per curiam); see also Boddie v. Schnieder, 105 F.3d 857, 860 (2d Cir. 1997). Nevertheless, to survive a Rule 12(b)(6) motion, a civil rights complaint must contain "more than naked improbable unsubstantiated assertions without any specifics." Neustein v. Orbach, 732 F. Supp. 333, 346 (E.D.N Y 1990). Similarly, a ...


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