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JACKSON v. NEW YORK STATE

August 11, 2005.

DONA J. JACKSON, Plaintiff,
v.
NEW YORK STATE; NEW YORK STATE POLICE; NEW YORK STATE POLICE TROOP E; JAMES W. McMAHON, New York State Police Superintendent, Et Al., Defendants.



The opinion of the court was delivered by: HOWARD MUNSON, Senior District Judge

BACKGROUND

Plaintiff's pro se Second Amended Complaint sets forth claims that, at several times over the past 12 years, various defendants violated her due process rights by: (1) refusing to intervene in an ongoing property dispute between plaintiff and her neighbors, and by not taking adequate measures to protect her and her family from harassment at the hands of those neighbors, (Second Amended Complaint, pp. 7-26, ¶¶ 1-20, 28, 32-34); (2) improperly and falsely arresting plaintiff's son (Second Amended Complaint pp. 7-26, ¶¶ 21-23, 35-66, 71); (3) using excessive force while arresting plaintiff's son (Second Amended Complaint pp. 7-26, ¶ 24); (4) retaliating against plaintiff by subjecting her to numerous false arrests and traffic citations after she exercised her First Amendment right to file complaints about the State Police (Second Amended Complaint, pp. 7-26, ¶¶ 67-77, pp. 27-41, 43-44); falsely arresting plaintiff on numerous occasions (Second Amended Complaint, pp. 27-41, 44, 53-54); (6) retaliating against her for engaging in a protest by "verbally attacking her". (Second Amended Complaint, p. 42); and, (7) using excessive force against plaintiff (Second Amended Complaint, pp. 45-46).

  Plaintiff alleges that the aforesaid behavior was part of a large conspiracy to deprive plaintiff of her constitutional rights, and to cloak the alleged illegal conduct of the State Police, that all of the numerous defendants took part in for over 10 years. (Second Amended Complaint, p. 17, ¶ 48, p. 67, ¶ 75).

  The complaint sets forth twelve causes of action: Violation of 42 U.S.C. § 1983 and the 14th Amendment by public authorities assaulting and detaining plaintiff; Failure of defendants to protect from unconstitutional harm; Police Officers Conspiracy to cover up misconduct and obstruction of justice; a Monell claim against the Municipal defendants; seven New York State common law claims for Assault and Battery; False Imprisonment; Intentional Infliction of Emotional Distress; Negligent Inflection of Emotional Distress, Negligent Hiring, Screening and Retention of police officers; Fraud and Perjury, and Respondeat Superior; and a claim under the Racketeer Influenced and Corrupt Organizations Act (RICO) 18 U.S.C. § 1961, et seq. The requested relief sought is injunctive, compensatory and punitive damages, sanctions, costs and fees.

  Defendants claim that plaintiff's RICO claim should be dismissed because she has failed to provide a required RICO Statement. They also claim that plaintiff had no standing to assert claims on behalf of her son. In her reply papers, plaintiff states that defendants have misinterpreted her intentions with regard to her references to these two matters, because it was never her intention to file claims under RICO or on behalf of her son. In any event, the court will not consider these alleged claims, deem them abandoned, and they will be dismissed.

  Currently before the court is defendants' motion to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief may be granted. Plaintiff has entered opposition to this motion, and has cross moved for an order for the production of documents and to disqualify the New York State Office of the Attorney General from representing defendant state employees in any capacity in this action. Defendants have controverted both of these motions.

  DISCUSSION

  The court will first consider plaintiff's cross motion to disqualify the Office of the New York State Attorney General from acting as counsel for the defendants.

  § 17 of the New York Public Officers Law provides for the defense and indemnification of a state employee who is sued under 42 U.S.C. § 1983 for acts within the scope of his employment. The statute states that such an employee is entitled to representation by the Attorney General.

  Plaintiff asserts that the Attorney General's Office did not respond to her correspondences, 15 Notices of Intention to File a Claim, or to her original Complaint and First Amended complaints. These allegations are insufficient to disqualify the Attorney General's Office from defending this lawsuit. While the Attorney General is not compelled to answer every letter or complaint his office receives, the record shows that he did reply to plaintiff in 1995 and 1997 advising her that his office did not have jurisdiction in the matters mentioned in her mailings.

  The state is not required to serve any response to a notice of Intention to File a Claim, even if it appears to be jurisdictionally defective. DeHart v. State of New York, 92 Misc.2d 631; 401 N.Y.S.2d 417 (Ct.Cl. 1977). Quite simply, because a Notice of Intention to File a Claim is not a pleading, no response is required, it merely notifies the State that a claim against it may, in the future, be filed. Id. Additionally, the Notice of Intent to File a Claim requirement is not applicable to federal claims under § 1983. Felder v. Casey, 487 U.S. 131, 138-40, 108 S. Ct. 2302, 101 L. Ed.2d 123 (1988): (Day v. Moscow, 955 F.2d 807, 814 (2d Cir. 1992) (noting inapplicability of New York notice of claim requirements to § 1983 suits).

  Defendants did not reply to plaintiff's original Complaint because on March 24, 2004, plaintiff's then attorney, advised Magistrate Judge Peebles that he was going to file an Amended Complaint. On October 21, 2004, when plaintiff, then proceeding per se, advised the same Magistrate Judge that she would be filing the Second Amended Complaint, defendants' counsel stated that he would move to dismiss this complaint thereafter.

  Defendants' Motion to Dismiss:

  Motions to dismiss are governed by Federal Rule of Civil Procedure 12. Under Rule 12(b)(6), a defendant may seek to dismiss the complaint for "failure to state a claim upon which relief can be granted." The Court's analysis under Rule 12(b)(6) requires it to determine whether the facts alleged in the complaint would entitle the plaintiff to a legal remedy. As a primary objective of the legal system is to obtain a determination on the merits, rather than a dismissal based on the pleadings, motions to dismiss for failure to state a claim pursuant to Rule 12(b)(6) are generally viewed with disfavor, and the standard for dismissal under Rule 12(b)(6) is quite narrow, that is, "to dismiss a complaint for failure to state a claim upon which relief can be granted, a court must accept plaintiff's allegations at face value, . . . must construe the allegations in the complaint in plaintiff's favor, . . . and must dismiss the complaint only if it appears beyond a doubt that the plaintiff can prove no set of facts in support of this claim which would entitle him to relief." Rapf v. Suffolk County of New York, 755 F.2d 282, 290 (2d Cir. 1985); Conley v. Gibson, 355 U.S. 41, 45, 78 S.Ct. 99, 102, 2 L. Ed.2d 80 (1957).

  The task of the court in ruling on a Rule 12(b)(6) motion is not to determine whether plaintiff will prevail in the action, but "merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof." Ryder Energy Distribution Corp. v. Merrill Lynch Commodities Inc., 748 F.2d 774, 779 (2d Cir. 1984). In undertaking this task, the court must assume that plaintiff's allegations are true and must draw all reasonable inferences in plaintiff's favor. Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987). Recovery may appear remote and unlikely on the face of the pleading, but that is not the test for dismissal. Gant v. Wallingford Board of Education, 69 F.3d 669, 673 (2d Cir. 1995) (citing Scheuer, ...


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