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DANIEL v. SAFIR

November 28, 2001

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



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

  ORDER

Once again, Magistrate Judge Steven M. Gold has written a thorough and persuasive Report and Recommendation in this case. Plaintiff's objections to the Report rest principally on factual assertions as to the merits of his claims and an argument that the statute of limitations has not run because his claims are in effect fraud claims and therefore governed by a six-year statute of limitations. Plaintiffs objections are reviewed under the de novo standard of review provided by Rule 72(b) of the Federal Rules of Civil Procedure.

In sum, plaintiffs objections are rejected and the Report and Recommendation of November 1, 2001 is adopted in its entirety. The motion of the City defendants, as identified by name in the Report, is granted and the claims against those defendants are dismissed. In addition, for the reasons stated in the Report, the claims against the remaining defendants, Sanford L. Drob, Bellevue Hospital, Thomas Lamacchia, C. Krug and Neldra Zeigler are also dismissed. The Clerk of Court is directed to close this case.

SO ORDERED.

REPORT AND RECOMMENDATION

Introduction

Plaintiff, proceeding pro se, brings this action against several defendants claiming, among other things, that his constitutional rights were violated when he was arrested for criminal harassment on April 25, 1995. Plaintiffs claims against defendants Robert M. Baum, Gregg D. Weinstock, Esq., Garbarini & Scher, P.C., Verizon Corporation, the Legal Aid Society, Robert Friedman, Judge Stephen J. Rooney's law clerk, and Judge Karen B. Yellen and her law clerks have previously been ordered dismissed. See Daniel v. Safir, 135 F. Supp.2d 367 (E.D.N.Y. 2001).

Now pending before the Court is a motion to dismiss brought by defendants Howard Safir, former Commissioner of the New York City Police Department ("NYPD"), Thomas Van Essen, Commissioner of the New York City Fire Department ("FDNY"), Wayne A. Corbett, Wendell R. Williams, Dennis B. Guardino, and Walter McCarthy, FDNY employees, Sergeant Juliano of the NYPD, John Tumulty, Lonnie Mendolia, Anne Swern, Stacey Frigerio, Lori Noble, and John Theodorellis, Assistant District Attorneys, Michael D. Hess, Corporation Counsel for the City of New York, and Bellevue Hospital (collectively the "City defendants"). The motion has been referred to me for report and recommendation. For the reasons stated below, I respectfully recommend that the Court grant the City defendants' motion to dismiss, dismiss all remaining claims sua sponte, and direct the Clerk of Court to close this case.

Background

The following facts are drawn from plaintiffs amended complaint. Beginning in late 1994, plaintiff complained to the Mayor's Action Line and the FDNY about fire department alarms going off in the middle of the night and fire trucks driving through his neighborhood loudly and at excessive rates of speed. See Am. Compl., Docket Entry 7, ¶¶ 4-7. On April 6 and April 18, 1995, defendants Corbett and Williams of the FDNY visited plaintiff at his home to inquire about his complaints, and asked if plaintiff would be willing to come to their office and fill out a complaint form. See id., ¶¶ 8-9. Plaintiff declined to go with Corbett and Williams to their office. Plaintiff alleges that on these occasions, defendants Williams and Corbett trespassed on his property and assaulted and falsely imprisoned him. See id.

On April 25, 1995, while on the street near his home, plaintiff was approached by four FDNY employees, including defendants Corbett and Williams, who "unlawfully and unreasonably seized" him. Id., at ¶ 11. The arrest was apparently prompted by plaintiffs alleged threats to commit arson in response to the FDNY's failure to address his complaints. See Daniel, 135 F. Supp.2d at 370. Plaintiff was brought to the 84th Precinct, where he contends defendant NYPD Sergeant Juliano prolonged his unlawful detention by refusing to issue him a desk appearance ticket. Plaintiff further alleges that defendant Williams tightened his handcuffs, causing swelling and pain, and refused to allow him to obtain his medication. See id., ¶¶ 12-14. After being held overnight in a cell in conditions he describes as "deplorable," plaintiff was released the next day on his own recognizance. See id., ¶¶ 15-16. Based upon these allegations, plaintiff contends defendants Juliano, Corbett, and Williams violated his First, Fourth, Sixth, and Fourteenth Amendment rights, and asserts claims pursuant to 42 U.S.C. § 1981, 1982, 1983, 1985, and 1986, and for assault, battery, and false imprisonment. See id., ¶¶ 11-16.

Plaintiff was charged with aggravated criminal harassment in the second degree pursuant to New York Penal Law § 240.30. See Defendants' Notice of Motion, Ex. B. Judge Yellen presided over plaintiffs criminal case. According to the complaint, the prosecutors included defendants Tumulty, Theodorellis, Frigerio, Noble, Mendolia, and Swern. See Am. Compl. ¶¶ 24-26. Plaintiff contends that these Assistant District Attorneys misrepresented facts and presented false evidence against him, and asserts violations of his constitutional rights pursuant to Sections 1981, 1983 and 1985 of Title 42. See id. Plaintiff further complains that audiotapes of conversations he had with defendants Williams and Corbett were improperly and unfairly edited, and that the FDNY unlawfully obtained his private telephone records. See id., ¶¶ 17-18. In addition, plaintiff contends defendants Corbett and Drob, an employee of Bellevue Hospital, submitted false information to the court. See id., ¶¶ 18, 23.

Plaintiff's criminal case was resolved when the charges against him were adjourned in contemplation of dismissal on May 29, 1996. See Defendants' Notice of Motion, Ex. B; N.Y.C.P.L. ยง 170.55. Plaintiff filed his original complaint in this action on October 6, 1999. On December 30, 1999, plaintiff filed an amended complaint, adding a claim under the New York Civil Rights Law against the Corporation Counsel for the City of New York. Plaintiff alleges in support of his claim that the Corporation Counsel ...


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