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WASHINGTON v. KELLY

April 12, 2004.

WILLIAM WASHINGTON, Plaintiff, -against- COMMISSIONER RAYMOND KELLY, P.O. MBLUTINOVIC, in his official and individual capacities, NEW YORK CITY PORT AUTHORITY POLICE DEPARTMENT, and DISTRICT ATTORNEY ROBERT MORGENTHAU, Defendants


The opinion of the court was delivered by: SHIRA SCHEINDLIN, District Judge

MEMORANDUM OPINION AND ORDER
William Washington, proceeding pro se, brings this action under section 1983 of Title 42 of the U.S. Code ("section 1983") seeking damages for false arrest, wrongful imprisonment and malicious prosecution. Plaintiff alleges that on April 16, 2002, Police Officer Milutinovic arrested him at the Port Authority bus terminal in New York City and charged him with two felonies: robbery in the third degree and criminal possession of stolen property. After trial, plaintiff was acquitted of the more serious robbery charge but was found guilty of the stolen property charge. District Attorney Robert M. Morgenthau ("D. A. Morgenthau") moves to dismiss on the basis that plaintiff's allegations fail to state a claim against him upon which relief can be granted. For the following reasons, D. A. Morgenthau's motion is granted and he is dismissed from this lawsuit. I. BACKGROUND

  Plaintiff claims that his Fourth Amendment rights were violated when P.O. Milutinovic arrested him at the Port Authority bus terminal and charged him with robbery in the third degree and criminal possession of stolen property. Plaintiff admits that he stole a wallet containing $90 in cash but claims that he should only have been charged with petit larceny, a misdemeanor. See Complaint, Statement of Claim at 1-2. Plaintiff asserts that P.O. Milutinovic, working under the direct supervision of Police Commissioner Raymond Kelly, knew that the felony arrest was a "fraud" but nonetheless detained plaintiff and initiated a criminal proceeding. See id., Second Cause of Action at I. In addition, plaintiff claims that the State lacked probable cause to prosecute him for third-degree robbery and that the prosecution for that charge was motivated by "malice." See id., First Cause of Action. Plaintiff seeks compensatory damages from all defendants.

 II. LEGAL STANDARDS

  A. Motion to Dismiss

  Under Rules 12(b)(6) of the Federal Rules of Civil Procedure, a complaint should be dismissed if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Caiola v. Citibank, N.A., New York, 295 F.3d 312, 321 (2d Cir. 2002) (internal quotation marks and citation omitted); see also Sweet v. Sheahan, 235 F.3d 80, 83 (2d Cir. 2000). At the motion to dismiss stage, the issue "`is not whether a plaintiff is likely to prevail ultimately, but whether the claimant is entitled to offer evidence to support the claims. Indeed it may appear on the face of the pleading that a recovery is very remote and unlikely but that is not the test.'" Phelps v. Kapnolas, 308 F.3d 180, 184-85 (2d Cir. 2002) (per curiam) (quoting Chance v. Armstrong, 143 F.3d 698, 701 (2d Cir. 1998)). Therefore, the task of the court in ruling on a Rule 12(b)(6) motion is "`merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof" Pierce v. Marano, No. 01 Civ. 3410, 2002 WL 1858772, at *3 (S.D.N.Y. Aug. 13, 2002) (quoting Saunders v. Coughlin, No. 92 Civ. 4289, 1994 WL 98108, at *2 (S.D.N.Y. Mar. 15, 1994)).

  When deciding a motion to dismiss pursuant to Rule 12(b)(6), a court must accept all factual allegations in the complaint as true and draw all reasonable inferences in plaintiff's favor. See Chambers v. Time Warner. Inc., 282 F.3d 147, 152 (2d Cir. 2002). Courts may not consider matters outside the pleadings but may consider documents attached to the pleadings, documents referenced in the pleadings, or documents that are integral to the pleadings. See id. at 152-53. Of course, the allegations of a pro se plaintiff should be liberally construed. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Sims v. Artuz, 230 F.3d 14, 20 (2d Cir. 2000). However, if a liberally construed pro se complaint fails to meet these minimal standards, it must be dismissed like any other deficient complaint. See Rodriguez v. Weprin, 116 F.3d 62, 65 (2d Cir. 1997) ("Although less stringent standards apply where, as here, a litigant is pro se, dismissal is nevertheless appropriate where it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief) (internal quotation marks and citations omitted).

  B. False Arrest/Malicious Prosecution

  Under New York law, false arrest is synonymous with false imprisonment. See Posr v. Doherty, 944 F.2d 91, 96 (2d Cir. 1991). To establish a cause of action for false arrest or false imprisonment, a plaintiff must show that "(1) the defendant intended to confine him, (2) the plaintiff was conscious of the confinement, (3) the plaintiff did not consent to the confinement, and (4) the confinement was not otherwise privileged." Id. at 97.

  In order to state a claim for malicious prosecution, a plaintiff must establish the following elements: (1) the defendant either commenced or continued a criminal proceeding against him; (2) that the proceeding terminated in plaintiff's favor; (3) that there was no probable cause for the criminal proceeding; and (4) that the criminal proceeding was instituted with actual malice. See DiBlasio v. City of New York, 102 F.3d 654, 657 (2d Cir. 1996) (applying state tort law elements to a section 1983 malicious prosecution claim).

 III. DISCUSSION

  A. Plaintiff's Claims Must Be Dismissed for Lack of Personal Involvement

  "It is well settled in this Circuit that `personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983.'" Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994) (quoting Moffitt v. Town of Brookfield, 950 F.2d 880, 885 (2d Cir. 1991)). Because the general doctrine of responded superior does not apply in section 1983 actions, the defendant must be responsible for the alleged constitutional deprivation. See Al-Jundi v. Estate of Rockefeller, 885 F.2d 1060, 1065 (2d Cir. 1989); see also Ying Jing Can v. City of New York, 996 F.2d 522, 536 (2d Cir. 1993) ("[A] supervisory official cannot be held liable under § 1983 on a theory of respondeat superior.").

  A supervisory official may be personally involved in a section 1983 violation in several ways: (1) the official may have directly participated in the violation; (2) the official, after learning of the violation, may have failed to remedy the wrong; (3) the official may have created a policy or custom under which unconstitutional practices occurred; (4) the official may have been grossly negligent in managing subordinates who caused the unlawful condition or event; or (5) the official may have exhibited deliberate indifference by failing to act on information indicating that unconstitutional acts were occurring. See Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995); see also Williams v. Smith, 781 F.2d 319, 323-24 (2d Cir. 1986).

  Plaintiff has failed to plead any facts which would support the imposition of liability as to D.A. Morgenthau on any of the foregoing theories. With regard to his malicious prosecution and wrongful imprisonment claims, plaintiff does not assert that D.A. Morgenthau personally prosecuted the case against him. Rather, plaintiff seeks to hold D.A. Morgenthau liable on a respondeat superior theory for the actions of his employees. Given that the doctrine of respondeat superior is inapplicable to section 1983 claims, personal involvement is necessary for the imposition of liability. See Black v. Coughlin, 76 F.3d 72, 74 (2d Cir. 1996) ("[A] defendant in a § 1983 action may not be held liable for damages for constitutional violations merely because he held a high position of authority."); Colon v. Coughlin, 58 F.3d at 873. ...


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