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