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COGSWELL v. STATE

January 24, 2004.

RITA A. COGSWELL, Plaintiff, -against- STATE OF NEW YORK HEARING EXAMINER WILLIAM RODRIQUEZ, ESQ., COUNTY OF SUFFOLK DEPUTY SHERIFF'S DEPT. DEPUTY J. BOLLETERI, G. LYNN, and E. KENNEDY, Defendants


The opinion of the court was delivered by: ARTHUR SPATT, District Judge Page 2

MEMORANDUM OF DECISION AND ORDER

Pending before the Court is a motion by the defendant State of New York Hearing Examiner William Rodriquez, Esq. ("Rodriquez") to dismiss the complaint for failure to comply with Rule 8 of the Federal Rules of Civil Procedure ("Fed.R. Civ. P."). In the alternative, Rodriquez moves to dismiss the complaint pursuant to Rules 12(b)(1) and 12(b)(6) of the Fed.R.Civ.P.

  I. BACKGROUND

 A. Procedural History

  On July 30, 2002, Rita Anne Cogswell ("Cogswell" or the "plaintiff"), proceeding pro se, commenced this action against Suffolk County, Hearing Examiner Rodriquez, Suffolk County Sheriff's Department, Deputy J. Bolliterri, and E. Kennedy. On October 2, 2002, the plaintiff filed an amended complaint, asserting claims for malicious prosecution, conspiracy to commit fraud, conspiracy to commit perjury, conspiracy to deceive, violation of civil rights, violation of the right to privacy, malfeasance, slander, harassment, prejudice, discrimination, breaking and entering, false arrest, defamation, illegal search and seizure and bias.

  In a memorandum of decision and order, dated April 22, 2003, the Court dismissed the amended complaint because of Cogswell's failure to comply with Fed.R.Civ.P. 8(a). The Court granted the plaintiff leave to file a second amended complaint and directed her to (1) allege and number each cause of action separately; Page 3 (2) include sufficient factual information for each cause of action to put each defendant on notice of the allegedly wrongful conduct with which the defendant is charged, including places, dates, times and the names of persons allegedly involved; and (3) include simple and clear factual allegations of wrongdoing without including excess verbiage. The Court advised the plaintiff that, if the second amended complaint merely substantially repeated and reiterated the present amended complaint, it would be dismissed with prejudice and that sanctions may be imposed.

  On May 8, 2003, the plaintiff filed a second amended complaint against Rodriquez, Deputy Bolleteri, G. Lynn, and E. Kennedy. On July 14, 2003, the defendants Bolleteri, Lynn, and Kennedy filed their answer.

 B. The Second Amended Complaint

  In the second amended complaint, the plaintiff describes various incidents arising out of a child support hearing in the Suffolk County Family Court. On July 16, 2001, the plaintiff appeared for a child support hearing before Hearing Examiner Rodriquez, who was assigned to preside. Upon meeting the plaintiff and the father of her child, Rodriquez "told [the parties] to fight out in the hallway [sic] because he did not want to get involved." The plaintiff claims that Rodriquez refused to meet with her.

  Cogswell claims that, on July 17, 2001, Rodriquez made a request to the Family Court judge that the plaintiff be arrested for her failure to appear for the Page 4 hearing that was scheduled the previous day. On August 1, 2001, pursuant to the warrant, the plaintiff waited several hours in the Family Court to meet with Rodriquez. The complaint does not make clear whether she ever met with Rodriquez that day. In any event, on the same day, another warrant for her arrest was issued by the Family Court judge based on "erroneous information" provided by Rodriquez. Although Rodriquez had her arrested for failing to appear at a scheduled child support hearing, the plaintiff asserts that it was Rodriquez who "refused to see [her] until December of 2001."

  Cogswell further asserts that, on August 31, 2001, Deputies Bolliterri, Lynn, and Kennedy broke into her home and falsely arrested her. While she was being arrested, the plaintiff's boyfriend informed the officers that the arrest was being recorded. The plaintiff claims that the officers seized the tape and that her boyfriend was arrested for obstructing justice. At the Suffolk County Sheriff's Office, Lynn informed the plaintiff that she was arrested for failing to appear for a child support hearing and for failing to pay child support.

  The plaintiff also claims that, in January 2002, Rodriquez had her vehicle towed and auctioned off without a hearing or any notice due to late payments on her child support. In addition, she asserts that "Mr. Rodriquez, Esq. has also notified the CSEB that my name is Rita Morales, and adjudged, again numerous money judgments under this name. . . ." Due to the numerous judgments against the plaintiff, Cogswell Page 5 alleges that her drivers license was suspended.

  Although the second amended complaint is not a model of clarity, it appears that the plaintiff claims that she was denied due process and equal protection under the Fourteenth Amendment and that she was falsely arrested. Rodriquez now moves to dismiss that plaintiff's second amended complaint for failure to comply with Rule 8. In the alternative, he moves to dismiss the complaint pursuant to Rules 12(b)(1) and 12(b)(6) based on, ...


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