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
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;
(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
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
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