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FOX v. CITY OF NEW YORK

April 19, 2004.

ANTHONY FOX, Plaintiff,
v.
THE CITY OF NEW YORK, et al., Defendants



The opinion of the court was delivered by: FRANK MAAS, Magistrate Judge

MEMORANDUM DECISION

I. Introduction

In this pro se civil rights action pursuant to 42 U.S.C. § 1983, plaintiff Anthony Fox ("Fox") alleges that the defendants violated both federal and state law in connection with his arrests on March 6 and June 8, 2001, and subsequent prosecution. Defendant Robert Morgenthau ("Morgenthau"), the District Attorney of New York County, has filed a motion to dismiss the amended complaint, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, for failure to state a claim upon which relief can be granted.*fn1 The remaining defendants ("City Defendants") also have filed their own motion seeking the same relief. Finally, as part of his papers opposing the defendants' motions, Fox has cross-moved for summary judgment. In September 2003, the parties consented to the assignment of this case to me in accordance with 28 U.S.C. § 636(c). (See Docket No. 22). Pursuant to that grant of jurisdiction, for the reasons set forth below, the defendants' motions are granted in part and denied in part. Additionally, the cross-motion for summary judgment is denied.

 II. Facts*fn2

  Because Fox is a pro se litigant, the Court may rely on both his amended complaint and his motion papers in assessing the legal sufficiency of his claims. See Burgess v. Goord, No. 98 Civ. 2077 (SAS), 1999 WL 33458, at *1 n.1 (S.D.N.Y. Jan. 26, 1999); Gadson v. Goord, No. 96 Civ. 7544 (SS), 1997 WL 714878, at *1 n.2 (S.D.N.Y. Nov. 17, 1997): Donahue v. United States Dep't of Justice, 751 F. Supp. 45, 49 (S.D.N.Y. 1990). The Court may also consider any other documents which are referenced in his papers or which are properly the subject of judicial notice. See Tarshis v. Riese Org., 211 F.3d 30, 39 (2d Cir. 2000), abrogated on other grounds, Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002); Kramer v. Time Warner. Inc., 937 F.2d 767, 773 (2d Cir. 1991). Thus construed, Fox's pleadings allege as follows:
A. First Arrest
  On March 3, 2001, Fox's girlfriend, Annie Gardner ("Gardner"), placed a "911" call during which she stated that Fox had threatened her with a weapon. (See Am. Compl. ¶ IV(2); Pl.'s D.A. Opp. at l;Pl.'s City Opp. at 2). Several police officers went to the scene, where they spoke with Fox and Gardner, but made no arrests. (Pl's City Opp. at 2). Instead, the officers advised Gardner that they would file her complaint with the precinct. (Id.).

  On March 6, 2001, Detective Patricia McGovern ("Det. McGovern"), who was assigned to the Police Department's "Domestic [V]iolence [I]nvestigative [U]nit," questioned Fox and Gardner at their residence. (Id.). Although Gardner told Det. McGovern that "she no longer wanted to pursue [the] complaint," Det. McGovern directed Fox to "accompany her and her partner to the [precinct] in order for her to call the district attorney and have the charges dropped." (Id.). Once at the precinct, Det. McGovern arrested Fox without a warrant pursuant to Morgenthau's directive. (Id.; Pl.'s D.A. Opp. at 7).

  Later that day, Det. McGovern signed a misdemeanor complaint, which stated that Gardner had reported that Fox "c[a]me at [Gardner] while pointing a long metal rod" and threatened "GET OFF THE CORNER OR I'LL KICK YOUR ASS, thereby placing [her] in fear of serious physical injury." (See Gugel Decl. Ex. B). The complaint charged Fox with with Menacing in the Second Degree and Criminal Possession of a Weapon in the Fourth Degree. (Id.). Fox was released from custody the following day, and the charges against him were dismissed on April 21, 2001. (See Am. Compl. ¶ IV(4)).

  B. Second Arrest

  On June 8, 2001, Theresa Woody ("Woody"), another acquaintance of Fox, called "911" to report that Fox had assaulted her. (Pl.'s D.A. Opp. at 2; Pl's City Opp. at 3). When Officer Michael Palombo ("Palombo") arrived at the scene, Woody told him that Fox had caused her to have a swollen left cheek by punching her in the face, had scratched her neck while choking her, and had used her cane to hit her on her back. (See Gugel Decl. Ex. C). A police report concerning the incident indicated that Woody's allegations were confirmed by Albert Soto, a bystander who had attempted to come to her aid.*fn3 (See id. Ex. D).

  After speaking to Woody and Soto, (see id.). Officer Palombo arrested Fox without a warrant. (Am. Compl. ¶¶ IV(1), IV(4)). Following the arrest, Officer Rubin Tejada ("Tejada") recovered a glassine envelope from Fox's bag. (Id. ¶ IV(4)). Fox alleges that he was arrested on June 8th pursuant to a custom and practice initiated by Morgenthau which "denies defendant's [sic] [the] possibilit[y] of being exonerated before [their] arrest in light of discovering exculpatory evidence." (Id. ¶ IV(1)). More specifically, Fox contends that he asked to file a cross-complaint against Woody because she had stolen his cell phone before calling "911." (Id.; Pl.'s City Opp. at 3). Although Fox showed the officers a "receipt" in an effort to verify this allegation, Officer Palombo allegedly declined to arrest Woody, stating that Woody was a personal acquaintance of his and that "there was a policy implemented by the District Attorney's office that was adhered to by the N.Y.P.D. forbid[d]ing the filing of cross-complaints." (See Pl.'s City Opp. at 1, 13).

  Following Fox's arrest, Officer Palombo signed a criminal complaint, dated June 8, 2001, which charged Fox with two counts of Assault in the Third Degree and one count each of Criminal Possession of a Weapon in the Fourth Degree, Criminal Possession of a Controlled Substance in the Seventh Degree, and Attempted Assault in the Third Degree. (See Gugel Decl. Ex. C at 1-2). In that complaint, Palombo alleged, on the basis of his training and experience, that the glassine envelope seized from Fox's bag by Tejada contained crack cocaine residue. (Id. at 2). After the complaint was filed, Fox was detained for one week before he was able to post bail. (Pl's D.A. Opp. at 2). The charges against him arising out of the June 8th arrest eventually were dismissed on September 4, 2001. (See Am. Compl. ¶ IV(4)). The glassine envelope that Tejada had recovered from Fox's bag subsequently was tested and found not to contain any controlled substances. (Pl's City Opp. at 4). Although Fox alleges that "there was no documentation of verified actual injuries of [the] complainant" and that no property was vouchered according to the On Line Booking Sheet, (see Am. Comp. ¶¶ IV(1), IV(5)), the Property Clerk's Invoice related to the June 8th arrest indicates that Officer Palombo submitted photographs of the "wooden cane used as a weapon" and Woody's swollen cheek and scratched neck. (Gugel Decl. Ex. E). The invoice further indicates that certain "narcotics residue" was vouchered under a related invoice number. (Id.).

  C. Complaint

  Fox's unsigned amended complaint is dated "July ___, 2003," and was received by the Pro Se Office of this Court on July 10, 2003. (See Docket No. 11). In the amended complaint, Fox raises a host of federal and state claims, contending that his rights under the Fourth Amendment were violated because he was falsely arrested and imprisoned in connection with both of the criminal cases brought against him, that he was the victim of malicious prosecution by the District Attorney's Office, and that Officers Palombo and Tejada conspired to falsify the June 8th drug charges against him. (Am. Compl. ¶¶ IV(1), IV(2), IV(4), IV(5)). Fox further contends that he was denied his Fourteenth Amendment equal protection rights because of Morgenthau's policy against "counter complaints" and because defendants with prior criminal records are treated differently, that he was denied his Fourteenth Amendment due process rights because of a custom and practice pursuant to which criminal defendants are not afforded an opportunity to exonerate themselves before being arrested, and that the City is liable to him on a respondeat superior theory because it failed to train its police officers not to follow Morgenthau's illegal policy concerning cross-complaints. (Id. ¶¶ IV(1)-IV(4)).

  Fox has named as defendants, in both their personal and official capacities, Morgenthau, Officers Palombo and Tejada, and Det. McGovern. (See id. ¶ V). He also has named the City as a defendant. (See id. ¶ IV(3)). The sole relief that he seeks is the award of $5 million in compensatory and punitive damages. (Id. ¶ V).

  Insofar as he seeks to bring state law claims against Morgenthau or the City Defendants in their official capacities, Fox has not alleged that he filed any notice of claim. Additionally, the City has represented — albeit, on information and belief — that no such notice was filed. (Gugel Decl. ¶ 8).

 III. Discussion

  A. Standard of Review

  A court reviewing a motion to dismiss a complaint pursuant to Rule 12(b)(6) must accept the material factual allegations of the complaint as true and draw all reasonable inferences in the plaintiff's favor. See Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164 (1993); Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994). A claim may be dismissed only when it has been established "beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957).

  When a plaintiff is proceeding pro se, as here, the complaint must be held "to less stringent standards than formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam). Thus, the plaintiff's allegations must be read "liberally" and interpreted "to raise the strongest arguments that they suggest." Soto v. Walker, 44 F.3d 169, 173 (2d Cir. 1995) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)). This principle applies with particular force in cases such as this in which a pro se plaintiff alleges civil rights violations. See, e.g., Sykes v. James, 13 F.3d 515, 519 (2d Cir. 1993); Contes v. City of New York, No. 99 Civ. 1597 (SAS), 1999 WL 500140, at *2 (S.D.N.Y. July 14, 1999).

  B. Section 1983 Claims

  Section 1983 provides a means by which a person alleging a constitutional deprivation may bring a claim, but does not itself create any substantive rights. Sykes, 13 F.3d at 519. Accordingly, to state a claim under Section 1983, a plaintiff must allege that a defendant acting under color of state law has deprived him of a right, privilege, or immunity guaranteed by the United States Constitution. 42 U.S.C. § 1983; Barnes v. City ...


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