The opinion of the court was delivered by: JAMES FRANCIS, Magistrate Judge
REPORT AND RECOMMENDATION
Derrick Alvarez brings this action pro se pursuant to
42 U.S.C. § 1983, alleging false arrest and malicious prosecution.
Defendant Robert Morgenthau, the New York County District
Attorney, and defendant Raymond Kelly, the New York City Police
Commissioner, have moved to dismiss the complaint pursuant to
Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the
reasons set forth below, I recommend that the motion be granted
with respect to defendant Morgenthau and the action dismissed
with prejudice. As to defendant Kelly, I recommend that the
motion be granted and the complaint dismissed with leave to
The complaint alleges that on October 18, 1999, Mr. Alvarez was
arrested by Jane Doe One, John Doe One, and John Doe Two for Criminal Sale of a Controlled Substance in the Third Degree (N.Y.
Penal Law § 220.39) and Criminal Sale of a Controlled Substance
in or Near School Grounds (N.Y. Penal Law §§ 220.34, 220.44).
(Complaint ("Compl."), ¶ 5). He was prosecuted for these offenses
under New York County Criminal Complaint Number 99NO91752.
(Compl., ¶ 5). The plaintiff subsequently stated to the
defendants, either "directly or through their agencies," that he
was innocent of the crimes charged. (Compl., ¶ 5). On October 23,
1999, Mr. Alvarez filed a grievance claiming unlawful arrest and
malicious prosecution. He requested that the charges against him
be dismissed and that he be compensated for his physical and
mental suffering. (Compl., ¶ 3). On November 1, 1999, Mr. Alvarez
filed a complaint with the New York City Department of
Correction, requesting that it investigate and respond to his
October 23, 1999 grievance, but he received no response. (Compl.,
¶ 3). On May 30, 2000, the charges against the plaintiff were
dismissed, and the record of his case was sealed by the New York
City Criminal Court. (Compl., ¶ 5).
Mr. Alvarez signed the instant complaint on May 14, 2003
(Compl., ¶ 6), but the postmark on the envelope indicates that it
was mailed from the Altona Correctional Facility on August 28,
2003. The complaint was received by the Pro Se Office of this
Court on September 2, 2003, and the action was formally filed on
October 1, 2003. Asserting a cause of action under 42 U.S.C. § 1983, Mr. Alvarez seeks money damages against the named
defendants in the amount of one million dollars for false arrest
and one million dollars for malicious prosecution. (Compl., ¶ 6).
He also seeks two million dollars in punitive and compensatory
damages for past and future physical and mental suffering
associated with the alleged violations of his rights. (Compl., ¶
Defendants Kelly and Morgenthau argue that the complaint should
be dismissed because Mr. Alvarez's claims are time-barred and
because Mr. Alvarez has failed to allege personal involvement by
either defendant in the alleged violations. Defendant Morgenthau
also contends that the claims against him must be dismissed
because he is protected by Eleventh Amendment immunity and by
absolute prosecutorial immunity.
1. Standard for a Motion to Dismiss
In considering a motion to dismiss, the court must accept as
true all factual allegations in the complaint and draw all
inferences in favor of the plaintiff. Leatherman v. Tarrant
County Narcotics Intelligence and Coordination Unit,
507 U.S. 163, 164 (1993); Scheuer v. Rhodes, 416 U.S. 232, 236 (1974);
Todd v. Exxon Corp., 275 F.3d 191, 197 (2d Cir. 2001). The
complaint should be read generously, and dismissal is not
warranted "unless it appears beyond doubt that the plaintiff can
prove no set of facts in support of his claim which would entitle him to relief." Todd,
175 F.3d at 197-98 (quoting Conley v. Gibson, 355 U.S. 41,
45-46 (1957)). Additionally, the complaint must be liberally
construed where the litigant alleges civil rights violations or
where the complaint is submitted pro se. See Chance v.
Armstrong, 143 F.3d 698, 701 (2d Cir. 1998). However, if a pro
se plaintiff's complaint fails to meet these minimal standards,
it must be dismissed like any other deficient pleading. See
Rodriguez v. Weprin, 116 F.3d 62, 65 (2d Cir. 1997) ("Although
less stringent standards apply where . . . 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 & citations omitted).
2. Elements of False Arrest and Malicious Prosecution
To make out a claim for false arrest, a plaintiff must prove
that: (1) the defendant intended to confine him; (2) the
plaintiff was conscious of the confinement; (3) the plaintiff did
not consent to confinement; and (4) the confinement was not
otherwise privileged. See Bernard v. United States,
25 F.3d 98, 102 (2d Cir. 1994); see also Savino v. City of New
York, 168 F. Supp. 2d 172, 177 (S.D.N.Y. 2001) (elements of
state law claim of false arrest apply to § 1983 claim), rev'd in
part on other grounds, 331 F.3d 63 (2d Cir. 2003). To establish liability for malicious prosecution under New York
law, a plaintiff must establish the following elements: (1) that
the defendant either commenced or continued a prosecution against
him; (2) that the proceeding terminated in the plaintiff's favor;
(3) that there was no probable cause for the criminal proceeding;
and (4) that the proceeding was instituted with actual malice.
See Posr v. Court Officer Shield No. 207, 180 F.3d 409, 417
(2d Cir. 1999); DiBlasio v. City of New York, 102 F.3d 654, 657
(2d Cir. 1996). To qualify for relief under § 1983, the plaintiff
must also show that there was "a sufficient post-arraignment
liberty restraint to implicate the plaintiff's Fourth Amendment
rights." Rohman v. New York City Transit Authority (NYCTA),
215 F.3d 208, 215 (2d Cir. 2000) (citations omitted).
B. Statute of Limitations
New York's three-year statute of limitations governing personal
injury actions applies to suits brought pursuant to § 1983.
Jackson v. Suffolk County Homicide Bureau, 135 F.3d 254, 256
(2d Cir. 1998) (citing Owens v. Okure, 488 U.S. 235, 251
(1989)). Thus, to be timely, Mr. Alvarez must ...