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February 27, 2001


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


Presently before the Court is a motion to dismiss brought by defendants Hines, Vardine, and Mercado ("Defendants") For the reasons stated herein, Defendants' motion is granted.


On or about December 20, 1996, defendants Vardine and Mercado were allegedly involved in an undercover operation conducted by members of the New York State Police ("NYSP") wherein they posed as drug purchasers and bought drugs from an unidentified suspect. According to the alleged standard procedure of the operation, the suspect was not arrested at the time of sale. Despite numerous attempts to return to the scene and complete the arrest, Defendants allegedly never saw the suspect again

Plaintiff alleges that defendants Mercado and Vardine then sent the Troy City Police Department ("TPD") a still photograph from a video tape taken from the officer's vehicle on the night in question. Plaintiff alleges that a TPD officer identified Plaintiff as the individual in the picture. Defendants Mercado and Vardine were then allegedly informed of the officer's identification by other employees of the TPD.

Plaintiff alleges that defendant Mercado, without any further attempt to confirm the suspect's identity, testified to a Rensselaer County Grand Jury that Plaintiff had sold drugs to him on the night of the operation. Moreover, Plaintiff alleges that, before testifying, defendant Mercado had been made aware of the possible existence of a photograph of Plaintiff on file which could be used either to confirm that Plaintiff was the suspect or to exonerate him.

On the basis of defendant Mercado's testimony, an indictment was voted against Plaintiff and a warrant was issued for his arrest. Pursuant to the warrant, Plaintiff was arrested on or about February 5, 1997. Plaintiff alleges that defendants Mercado and Vardine, despite being put on notice of the fact that he had been taken into custody, still did not make any effort to confirm that he was the suspect. On February 6, 1996, Plaintiff was arraigned in Rensellaer County Court and bail was set. Because Plaintiff was allegedly unable to post bail, he was forced to remain in jail until March 24, 1997.

Plaintiff alleges that, at a hearing on or about March 24, 1997, the County Court judge, during an inquiry into the strength of the government's proofs made a comparison between the still photograph and Plaintiff and determined that it was obvious that the "wrong person" was in custody. At the same hearing, Plaintiff alleges that defendant Mercado, having finally viewed Plaintiff, informed defendant Lovell, the prosecuting district attorney, that Plaintiff was not the suspect who had sold him drugs on the night in question.

Following the hearing, Plaintiff alleges that he was subject to further prosecution until April 14, 1997, when, upon application of the Office of the Rensselaer County District Attorney, the case was ordered dismissed by the County Court.

On June 12, 1998, Plaintiff filed an action in the New York State Court of Claims alleging malicious prosecution.*fn1 Following a trial, Plaintiffs claims were dismissed by the court on May 31, 2000. Plaintiff filed the present action on April 12, 2000, seeking damages for "deprivations of his constitutional rights as secured by 42 U.S.C. § 1981, 1983, and 1985, and by the Fourth Amendment, and the Equal Protection and Due Process Clauses of the Fourteenth Amendment of the United States Constitution." Defendants Hines, Vardine, and Mercado move to dismiss Plaintiffs claims against them on the following grounds. (1) claims are barred by the doctrines of collateral estoppel and res judicata; (2) Plaintiffs complaint fails to state a cause of action against defendant Hines; (3) the claims against Defendants in their of official capacities are barred by the Eleventh Amendment;*fn2 (4) the complaint fails to state a cause of action under the equal protection or due process clauses: and (5) the claims are barred by the statute of limitations.*fn3


A. Motion to Dismiss

A motion to dismiss pursuant to Federal Rule of Civil Procedure 12 (b)(6), for "failure to state a claim upon which relief can be granted," must be denied "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim [that] would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). In assessing the sufficiency of a pleading, "all factual allegations in the complaint must be taken as true," LaBounty v. Adler, 933 F.2d 121, 123 (2d Cir. 1991), and all reasonable inferences must be construed in favor favor the plaintiff, Scheuer v. Rhodes, 416 U.S. 232, 286, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); see also Bankers Trust Co. v. Rhoades, 859 F.2d 1096, 1099 (2d Cir. 1988) (applying the principle of construing inferences in favor of plaintiff).

[C]onsideration is limited to the factual allegations in [the] complaint, which are accepted as true, to documents attached to the complaint as an exhibit or incorporated in it by reference, to matters of which judicial notice may be taken, or to) documents either in plaintiffs' ...

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