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United States District Court, S.D. New York

August 13, 2004.

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


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.


  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.


  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 have filed his case within three years of the accrual of each cause of action.

  While state law provides the limitations period under § 1983, identification of when the federal cause of action accrued is a matter of federal law. Connolly v. McCall, 254 F.3d 36, 41 (2d Cir. 2001); Jaghory v. New York State Department of Education, 131 F.3d 326, 331 (2d Cir. 1997); Eagleston v. Guido, 41 F.3d 865, 871 (2d Cir. 1994). Under federal law, a § 1983 action accrues "when the plaintiff knows or has reason to know of the harm." Eagleston, 41 F.3d at 871 (internal quotation marks and citation omitted).

  The defendants argue that Mr. Alvarez's claim of false arrest should be dismissed as time-barred. Under federal law, a claim of false arrest accrues either: (1) at the time of the arrest, if the false arrest did not provide the prosecution with evidence that would have been key to a conviction, or (2) on the date the criminal proceeding was dismissed, if a favorable determination on the false arrest claim would in fact have undermined the validity of any potential conviction in the criminal proceedings. See Covington v. City of New York, 171 F.3d 117, 119, 123 (2d Cir. 1999). Id. According to this standard, Mr. Alvarez's claim for false arrest accrued either on October 18, 1999, the date on which he was arrested and taken into custody, or on May 30, 2000, the date on which the criminal proceeding against him was dismissed.*fn1 Reading the complaint liberally and drawing all inferences in favor of the plaintiff, it is improper to dismiss Mr. Alvarez's false arrest claims as untimely. When the plaintiff is incarcerated, a pro se complaint is deemed filed when the documents are delivered to prison officials for mailing. Dory v. Ryan, 999 F.2d 679, 682 (2d Cir. 1993); see Houston v. Lack, 487 U.S. 266, 270-76 (1988). This is commonly known as the "mailbox rule." See Houston, 487 U.S. at 274 n. 2. It is unclear from the existing record exactly when Mr. Alvarez delivered his complaint to the proper officials at the Altona Correctional Facility. His complaint was signed on May 14, 2003; however, it was not mailed until August 28, 2003, and was not received by the Pro Se Office until September 2, 2003. Viewed in the light most favorable to the plaintiff, it is possible that the complaint was delivered to prison officials as early as May 14, 2003, the day on which it was signed. If this is the case, and if the false arrest claim accrued on May 30, 2000, that claim would be timely.

  The defendants also argue that Mr. Alvarez's malicious prosecution claim should be dismissed as time-barred. Under federal law, a claim of malicious prosecution accrues when the underlying criminal proceedings are conclusively terminated, in this case, May 30, 2000. See Singleton v. City of New York, 632 F.2d 185, 189, 193 (2d Cir. 1980); Rowe v. City of Rochester, No. 00 Civ. 6333, 2002 WL 31974537, at *13 (W.D.N.Y. Dec. 23, 2002). Again, it is unclear when the complaint was delivered to the proper prison officials, and, under the mailbox rule, the complaint could be deemed to have been filed before the three-year statute of limitations expired on May 30, 2003. See Houston, 487 U.S. at 270-76; Dory, 999 F.2d at 682. As such, based on the pleadings and the evidence adduced thus far, dismissal of Mr. Alvarez's malicious prosecution claim on statute of limitations grounds would be premature at this stage of the litigation.

  C. Eleventh Amendment and Absolute Prosecutorial Immunity

  Nevertheless, the claims against District Attorney Morgenthau should be dismissed on grounds of Eleventh Amendment immunity and absolute prosecutorial immunity.*fn2 Eleventh Amendment immunity bars suits against a state official acting in his official capacity, and the doctrine of absolute prosecutorial immunity bars suits against a state official acting in his individual capacity. Because Mr. Alvarez does not specify in what capacity he is suing District Attorney Morgenthau, I will address both. See Ippolito v. Meisel, 958 F. Supp. 155, 160 (S.D.N.Y. 1997) (both official and individual capacity may be inferred when pro se plaintiff's pleadings are ambiguous).

  Read liberally, Mr. Alvarez's complaint alleges that because defendant Morgenthau was the District Attorney of New York County during the plaintiff's prosecution and because the charges against him were later dismissed, District Attorney Morgenthau is therefore liable under § 1983 for malicious prosecution. Insofar as Mr. Alvarez alleges a civil rights claim against defendant Robert Morgenthau for actions taken in his official capacity as District Attorney, this action is barred by the Eleventh Amendment. When prosecuting a criminal matter, a district attorney in New York represents the state, not the county. Ying Jing Gan v. City of New York, 996 F.2d 522, 529-30 (2d Cir. 1993). To the extent that a state official is sued for damages in his official capacity, such a suit is deemed to be a suit against the state, and the official is entitled to invoke the Eleventh Amendment immunity belonging to the state. See, e.g., Kentucky v. Graham, 473 U.S. 159, 166-67, 169 (1985). Therefore, because Mr. Alvarez's malicious prosecution claim against defendant Morgenthau pertains solely to his activities as District Attorney, this claim is barred by the Eleventh Amendment.

  Alternatively, a prosecutor who faces a § 1983 suit in his individual capacity may claim absolute immunity. See Ying Jing Gan, 996 F.2d at 530. It is well settled that prosecutors performing prosecutorial functions that are "intimately associated with the judicial phase of the criminal process" are entitled to absolute immunity from an action for damages under § 1983. Imbler v. Pachtman, 424 U.S. 409, 430 (1976). A prosecutor thus has absolute immunity in connection with the decision whether or not to commence a prosecution. Id.; see Buckley v. Fitzsimmons, 509 U.S. 259, 269 (1993). Mr. Alvarez does not allege, and there is nothing in the papers to indicate, that District Attorney Morgenthau had any further role in the prosecution beyond authorizing the initial decision to commence a prosecution against Mr. Alvarez.*fn3 As such, Mr. Alvarez's malicious prosecution claim against District Attorney Morgenthau should be dismissed because the defendant's prosecution of the plaintiff clearly involved the "initiation and pursuit of a criminal prosecution," Buckley, 509 U.S. at 269, and was "intimately associated with the judicial phase of the criminal process." Imbler, 424 U.S. at 430.

  D. Lack of Personal Involvement of Defendant Kelly

  Personal involvement by the defendant in any alleged constitutional violation is a prerequisite to an award of damages under § 1983. Hernandez v. Keane, 341 F.3d 137, 144 (2d Cir. 2003); Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994); Williams v. Smith, 781 F.2d 319, 323 (2d Cir. 1986). A supervisory official may be personally involved in a § 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); Washington v. Kelly, 03 Civ. 4638, 2004 WL 830084, at *3 (S.D.N.Y. April 13, 2004).

  Mr. Alvarez has failed to plead any facts that would support the imposition of liability against defendant Kelly on any of the foregoing theories. Mr. Alvarez's complaint simply states that this defendant "maliciously prosecuted [him]" and "falsely arrested him." (Compl., ¶ 5). He does not allege any specific acts perpetrated by defendant Kelly. This lack of specificity and the failure to allege personal involvement are fatal defects in a § 1983 claim. See Blyden v. Mancusi, 186 F.3d 252, 264 (2d Cir. 1999) (personal involvement in alleged constitutional violation is a prerequisite for award of damages in § 1983 claim). Since Mr. Alvarez has not sufficiently alleged personal involvement by defendant Kelly, and because there is nothing in the record to indicate that this defendant was in fact personally involved, dismissal of the claims against him is appropriate. However, because it is at least conceivable that the plaintiff could allege facts demonstrating Commissioner Kelly's direct involvement, he should be given the opportunity to amend the complaint to do so. See, e.g., Ortiz v. City of New York, No. 97 Civ. 1596, 1998 WL 78288, at *3-4 (S.D.N.Y. Feb. 24, 1998).


  For the reasons stated above, I recommend that Mr. Alvarez's complaint be dismissed with prejudice as to defendant Morgenthau. As to defendant Kelly, I recommend that the complaint be dismissed without prejudice and that Mr. Alvarez be afforded the opportunity to submit an amended complaint alleging personal involvement by defendant Kelly, to the extent that he can do so consistent with the legal standards outlined above. Pursuant to 28 U.S.C. § 636(b)(1) and Rules 72, 6(a), and 6(e) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from this date to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of the Court, with extra copies delivered to the chambers of the Honorable Jed S. Rakoff, U.S.D.J., Room 1340, and to the chambers of the undersigned, Room 1960, 500 Pearl Street, New York, New York 10007. Failure to file timely objections will preclude appellate review.

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