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June 27, 2002


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


Pro se plaintiff Oscar Preston Jr. ("Preston") commenced this action asserting claims under 42 U.S.C. § 1983 against all defendants, as well as assorted state law claims against certain defendants. Defendants City of New York, on behalf of the Administration of Children's Services ("ACS"), including its employees Lisette Matos ("Matos") and Anthony White ("White"), the New York City Police Department ("NYPD"), including employees Det. Michael Marchman ("Marchman") and Police Officer Nancy Quintana ("Quintana"), as well as Mimi Mares ("Mares"), Laurie Sobel ("Sobel") and Calvin Woo ("Woo") of the Bronx District Attorney's Office (collectively, the "City Defendants") answered the complaint. Defendants Dr. R.S. Bailey ("Dr.Bailey") and Dr. Olga Jimmenez ("Jimmenez") have not been served. Although served, Dr. Caroline Garcia ("Garcia") and the State of New York did not answer. Defendants Crystal Bailey ("Bailey") and Bronx Lebanon Hospital Center ("Bronx Lebanon") filed motions to dismiss pursuant to Fed.R.Civ.P. 12(b). Preston opposed the motions. For the reasons set forth below, the Court grants Bailey's and Bronx Lebanon's motions to dismiss. The Court also takes this opportunity to review the pleadings under 28 U.S.C. § 1915 and determine each defendant's status in this litigation.


According to the Second Amended Complaint, filed on April 26, 2001 (the "Second Am.Compl."),*fn1 Preston claims that defendants violated his constitutional rights and committed torts under state law by instigating and continuing false and retaliatory prosecutions against him.*fn2 The first prosecution was begun on January 5, 1998, when a minor (the "Minor") and her mother, along with Matos and White, filed a criminal complaint against Preston alleging that he raped the Minor on December 21, 1997. Quintana contacted Preston's parole officer on January 5, 1998 to request that Preston voluntarily submit to questioning. When Preston voluntarily surrendered, he was put under arrest and informed that he was being charged with rape, sodomy, sexual abuse and acting in a manner injurious to a child. He was denied bail and remained in custody through his trial.

After Preston's arrest, the Minor was taken to Bronx Lebanon for a medical examination that was performed by Garcia.*fn3 According to Preston, Garcia's examination revealed "no cause" for any investigation of Preston. He claims that Garcia had a duty to communicate such information to the police.

The first indictment on the original charges against Preston was dismissed. Preston was re-indicted on lesser charges. The case went to trial and on July 1, 1999, a jury acquitted him of the lesser charges (the "Acquittal"). Preston was released from custody after having spent 543 days in jail.

Preston asserts that the Minor's statements were patently false, that the City Defendants knew her allegations were based in fantasy, and that the medical examinations demonstrated that there was no crime. Preston argues that the City Defendant's persistence in prosecuting such a meritless case is due to their malicious intent and deliberate indifference for his rights.

Four days after the Acquittal, on July 5, 1999, Preston was again arrested, this time for aggravated harassment (the "Harassment Charges") based on a telephone call he admitted to making to the Minor's mother. At trial, the judge dismissed the Charges, and sua sponte found him guilty of violating New York Penal Law 240.25 (the "Misdemeanor"). He was sentenced to time served. Preston asserts that this prosecution was instituted in retaliation for his having obtained the Acquittal.

Preston was later charged with violating his parole on July 6, July 16 and November 12, 1999 in preparation for the Parole Revocation Hearing, held by the New York State Division of Parole on November 26, 1999 (the "Hearing"), Woo submitted a Certificate of Disposition ("Certificate") that had been certified by Bailey, who then served as a Principal Office Assistant in the Bronx County Criminal Court.*fn4 The Certificate was inaccurate in that it stated Preston had been convicted of the Harassment Charges as well as the Misdemeanor. Preston raised this point during the Hearing. (See Transcript In the Matter of the Parole Revocation Hearing of Oscar Preston, dated November 26, 1999, attached to the Affirmation [of David Nowve] in Support of Motion to Dismiss Complaint Pursuant to Fed.R.Civ.P. 12(b)(6), dated July 31, 2001 ("Nowve Aff,") as Ex, Ex. E, ("Tr."), at 33-36, 41-43,) Preston's parole was revoked. The written decision acknowledged that, as Preston had objected, the Certificate was incorrect, and determined that the revocation of parole was based on unrelated "charges of criminal contempt and disrupting the criminal court proceedings." (Parole Revocation Decision Notice, attached as Ex. D to the Nowve Aff. (the "Parole Decision"), at 2-3.) Preston contested those charges during the proceeding. (See Tr., at 16, 2631, 36, 38.)

Although he raised the issue in his pleadings, (see Compl., at ¶ 20), Preston does not contend that the inaccurate Certificate caused the judge to revoke his parole. (See Affirmation in Opposition to Defendant's Motion to Dismiss Defendant Crystal Bailey ("Opposition Aff."), at ¶ 13.) Rather, Preston argues that by providing false information in the Certificate, Bailey deprived him of due process during the Hearing. (See id.)

Preston asserts that as a result of these deprivations of constitutional rights, he has been subjected to various forms of mental distress, loss of potential income and liberty. Furthermore, although he believes the events ended on November 15, 2000,*fn5 he continues to suffer injuries to his reputation, a decline in his physical health, and loss of property.

Preston initially filed two actions which were consolidated and dismissed with leave to replead by Chief Judge Michael B. Mukasey on August 21, 2000 (the "Dismissal Decision"). Preston then filed the Amended Complaint, which forms the basis of this action, on October 13, 2000. The case was reassigned to this Court. The action was again dismissed for Preston's failure to comply with Federal Rule of Civil Procedure 4(m), which requires that a plaintiff serve the complaint on defendants within 120 days of filing.

By Order dated April 3, 2001, the Court granted Preston's request to reinstate the matter and granted Preston an extension of time to serve the defendants and identify the John Doe defendants. Preston filed the Second Amended Complaint on May 4, 2001 and initiated service through the United States Marshal (the "Marshal"). See 28 U.S.C. § 566; Romandette v. Weetabix Co., 807 F.2d 309 (2d Cir. 1986) (a plaintiff who has provided the Marshal with sufficient service information is entitled to rely on the Marshal to serve the complaint in a timely manner). On behalf of pro se plaintiffs, the Marshal typically will serve defendants by mail, or, if service cannot be effected by mail, by personal service. See District Executive's Office, United States District Court for the Southern District of New York, A Manual for Pro Se Litigants Appearing Before the United States District Court for the Southern District of New York (1993), at 47. Preston requested another extension of time to serve the Second Amended Complaint on defendants.

Proofs of service were filed for defendants Bailey, Bronx Lebanon, Garcia, and the City Defendants, including ACS, Matos, White, NYPD, Marchman and Quintana. No proofs of service were filed for Dr. Bailey or Jimmenez. Defendants Garcia and the State of New York never filed an answer or other response. The City Defendants filed an answer. Bailey and Bronx Lebanon filed motions to dismiss.



Defendants seek dismissal of the Complaint on several grounds pursuant to Federal Rule of Civil Procedure 12(b). The Court considers the jurisdictional issues first, because a dismissal for lack of jurisdiction renders all other claims moot. Ruhrgas A.G. v. Marathon Oil Co., 526 U.S. 574, 583, 119 S.Ct. 1563, 143 L.Ed.2d 760 (1999) ("Article III generally requires a federal court to satisfy itself of its jurisdiction over the subject matter before it considers the merits of a case."); Calero v. Immigration and Naturalization Service, 957 F.2d 50 (2d Cir. 1992); Da Silva v. Kinsho Int'l Corp., 229 F.3d 358 (2d Cir. 2000).

1. Federal Rule of Civil Procedure 12(b)(1)

Because federal courts are courts of limited jurisdiction, courts must police subject matter delineations on their own initiative. See Fed.R.Civ.P. 12(h); Ruhrgas, 526 U.S. at 583, 119 S.Ct. 1563; Lyndonville Savings Bank & Trust Co. v. Lussier, 211 F.3d 697, 700 (2d Cir. 2000) ("[F]ailure of subject matter jurisdiction is not writable and may be raised at any time by a party or the court sua sponte."). When motion to dismiss pursuant to Rule 12(b)(1) is brought, it is the Court's duty to resolve disputed jurisdictional facts. See Cargill International S.A. v. M/T Pavel Dybenko, 991 F.2d 1012, 1019 (2d Cir. 1993); see also Ruhrgas, 526 U.S. at 583, 119 S.Ct. 1563. The Court may fulfill its duty by reference to evidence outside the pleadings. See Zappia Middle East Construction Co. v. Emirate of Abu Dhabi, 215 F.3d 247, 253 (2d Cir. 2000). Furthermore, in resolving a challenge to subject matter jurisdiction, the Court does not draw inferences in favor of the plaintiff. See Newsom-Lang v. Warren International, 129 F. Supp.2d 662, 663-64 (S.D.N.Y. 2001).

2. Federal Rule of Civil Procedure 12(b)(6)

A district court may grant a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) only if it appears beyond doubt that the non-moving party could prove no set of facts that would entitle it to relief. See Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984); Valmonte v. Bane, 18 F.3d 992, 998 (2d Cir. 1994). In reviewing the pleadings, a court must accept the non-moving party's well-pleaded allegations as true. See Hishon, 467 U.S. at 73, 104 S.Ct. 2229.

A court may consider documents attached to the complaint as exhibits, or incorporated by reference, as well as any documents that are integral to, or explicitly referenced in, the pleading. See I. Meyer Pincus & Associates v. Oppenheimer & Co., Inc., 936 F.2d 759, 762 (2d Cir. 1991). In addition, a Court may consider "matters of which judicial notice may be taken." Brass v. American Film Technologies, 987 F.2d 142, 150 (2d Cir. 1993); see also Tsai v. Rockefeller University, 137 F. Supp.2d 276, n. 2 (S.D.N.Y. 2001) (a court "may take judicial notice of reports of administrative bodies without converting a motion to dismiss into one for summary judgment."); Fed.R.Evid. 201(b).

Where a party appears pro se, the Courts are required to broadly construe that party's pleadings and interpret them "to raise the strongest argument they suggest." Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996). Furthermore, in this situation, "the factual allegations raised in the [pro se] plaintiffs Opposition to Defendant's Motion to Dismiss . . . will be treated as part of [his] complaint." Tsai, 137 F. Supp.2d at 280 (citations omitted.)

3. 28 U.S.C. § 1915(e)(2) and 28 U.S.C. § 1915A

A district court must dismiss a complaint filed in forma pauperis "at any time if the court determines that . . . (B) the action or appeal (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2). Moreover, a district court is to review, as soon as practicable, "a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity." 28 U.S.C. § 1915A(a). If that review reveals that the complaint is "(1) frivolous, malicious or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief" it must dismiss the complaint, or those portions of the complaint. 28 U.S.C. § 1915A(b). The Court's § 1915A review may be conducted sua sponte without notice to the prisoner. See Neal v. Goord, 267 F.3d 116, 119 (2d Cir. 2001).

On August 17, 2000, Preston obtained leave to proceed in forma pauperis. Accordingly, § 1915 applies to his case. Furthermore, Preston is currently incarcerated at Wende Correctional Facility, serving a sentence on an unrelated charge. It is not clear on what conviction he is incarcerated. Accordingly, § 1915A also applies. Thus, the Court now reviews Preston's Complaint to determine whether the Court lacks subject matter jurisdiction or whether the pleadings are frivolous, malicious or fail to state a claim.

An action is frivolous "where it lacks an arguable basis either in law or fact." Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989)*fn6; see also Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998). A complaint may be dismissed as malicious where it "was not to rectify any cognizable harm, but only to harass and disparage" the defendant. Tapia-Ortiz v. Winter, 185 F.3d 8, 11 (2d Cir. 1999) (dismissing complaint against federal prosecutor who obtained conviction against the plaintiff as frivolous and malicious). And finally, a court evaluates whether a complaint "fails to state a claim upon which relief may be granted" under 28 U.S.C. § 1915A under the same standard as a motion to dismiss brought under Rule 12(b)(6). See Duamutef v. Morris, 956 F. Supp. 1112, 1115 (S.D.N.Y. 1997).

4. Leave to Amend

Typically, a dismissal pursuant to Rule 12 is made with leave to replead the deficient complaint. See Fed.R.Civ.P. 15(a); see also Ronzani v. Sanofi, S.A., 899 F.2d 195, 198 (2d Cir. 1990). However, "where it appears that granting leave to amend is unlikely to be productive, . . . it is not an abuse of discretion to deny leave to amend." Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir. 1993). The Court, therefore, has discretion to deny Preston leave to file a third amended pleading.


Bailey argues that Preston's claims against her should be dismissed at this stage pursuant to the doctrine of qualified immunity.*fn7 Preston opposes Bailey's motion on the grounds that her actions render her ineligible for immunity from suit because of her "deliberate indifference".

Qualified immunity shields state officials from liability under § 1983; however, because their immunity is only qualified, their conduct is not always shielded. A factual inquiry may be necessary to determine if immunity is available. See Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982); Krause v. Bennett, 887 F.2d 362, 368 (2d Cir. 1989). A court first asks, "[t]aken in the light most favorable to the party asserting the injury, do the facts alleged show the officer's conduct violated a constitutional right?" Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). If not, the inquiry is over and qualified immunity applies. If so, a court must consider "whether the right was clearly established," such that "it would be clear to a reasonable officer that the conduct was unlawful in the situation he confronted." Id. Thus, a defendant will have established a right to qualified immunity by showing that:

it was not clear at the time of the official acts that the interest asserted by the plaintiff was protected by a federal statute or the Constitution; [or that] it was not clear at the time of the acts at issue that an exception did not permit those acts; [or that] it was objectively reasonable for ...

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