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ALVAREZ v. DOE

August 13, 2004.

DERRICK ALVAREZ, Plaintiff,
v.
JANE DOE #1, Police Officer; JOHN DOE #1, Police Officer; JOHN DOE #2, Police Officer; ROBERT MORGENTHAU, District Attorney, New York County; AND RAYMOND KELLY, Police Commissioner of New York City Police Department, Defendants.



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 replead.

Background

  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., ¶ 6).

  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.

  Discussion

  A. Legal Framework

  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 ...


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