United States District Court, N.D. New York
August 11, 2005.
DONA J. JACKSON, Plaintiff,
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
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, supra, 416 U.S. at 236,
94 S.Ct. at 1686). The court must allow plaintiff to develop his/her case at
this stage of the proceedings. United States v. City of Redwood
City, 640 F.2d 963, 966 (9th Cir. 1981).
Furthermore, this standard is applied with even greater force
where the plaintiff alleges civil rights violations or where the
complaint is submitted pro se. Easton v. Sundram,
947 F.2d 1011, 1015 (2d Cir. 1991) cert. denied, 504 U.S. 911,
112 S.Ct. 1943, 118 L.Ed.2d 548 (1992). As the Supreme Court has stated, "[b]y the plain terms of § 1983,
two and only two allegations are required in order to state a
cause of action under that statute. First, the plaintiff must
allege that some person has deprived him of a federal right.
Second, he must allege that the person who has deprived him of
that right acted under color of state or territorial law." Gomez
v. Toledo, 446 U.S. 635, 640, 100 S.Ct. 1920, 1923,
64 L. Ed.2d 572 (1980).
The Second Amended Complaint:
The proscription on "technical forms of pleading" lies at the
heart of our system's approach toward so-called notice pleading.
Fed.R.Civ.P. 8(e)(1). The Supreme Court has held that the
simplified pleading standard set forth in Rule 8(a) of the
Federal Rules of Civil Procedure applies generally to all civil
actions. Swierkiewicz v. Sorema N.A., 534 U.S. 506,
512,122 S.Ct. 992, 152 L. Ed.2d 1 (2002).
The Second Circuit has frequently noted that the pleadings of
pro se litigants should be "construed liberally," Tapia-Ortiz
v. Doe, 171 F.3d 150, 152 (2d Cir. 1999) (per curiam), and
should not be dismissed unless "it is clear that the plaintiff
would not be entitled to relief under any set of facts that could
be proved consistent with the allegations," Boddie v.
Schnieder, 105 F.3d 857, 860 (2d Cir. 1997). It also held that,
when reviewing pro se submissions, a district court should look
at them "with a lenient eye, allowing borderline cases to
proceed." Fleming v. United States, 146 F.3d 88, 90 (2d Cir.
1998) (per curiam). In fact, these exhortations are not at all
unique to pro se cases. All complaints must be read liberally;
dismissal on the pleadings never is warranted unless the
plaintiff's allegations are doomed to fail under any available
legal theory. Warren v. District of Columbia, 353 F.3d 36, 37
(D.C. Cir. 2004); Hishon v. King & Spalding, 467 U.S. 69, 73,
104 S.Ct. 2229, 81 L. Ed.2d 59 (1984). But as low as the
requirements are for a complaint drafted by competent counsel, we hold pro se
complaints to an even lower standard. Haines v. Kerner,
404 U.S. 519, 520, 92 S.Ct. 594, 30 L. Ed.2d 652 (1972) (per
Basically, the Rules command courts to never exalt form over
substance. Fed.R.Civ.P. 8(f). ("All pleadings shall be so
construed as to do substantial justice."). Thus, technical
pleading irregularities may be excused as long as they neither
undermine the purpose of notice pleading nor prejudice the
adverse party. Wynder v. McMahon, 360 F.3d 73, 79 (2d Cir.
2004); Kelly v. Schmidberger, 806 F.2d 44, 46 (2d Cir. 1986).
Particularly disregarded may be harmless violations of Rule
10(b), which requires a complaint to contain separate, numbered
paragraphs for each averment. Fed.R.Civ.P. 10(b). That rule was
designed to "facilitate the clear presentation of the matters set
forth," so that allegations might easily be referenced in
subsequent pleadings. Id.; O'Donnell v. Elgin, Joliet & Eastern
Railway Co., 338 U.S. 384, 392 & n. 6, 70 S.Ct. 200,
94 L. Ed. 187 (1949). Rule 10 should therefore not be read as an exception
to the rule against technical forms of pleading.
It follows that, where the absence of numbering or succinct
paragraphs does not interfere with one's ability to understand
the claims or otherwise prejudice the adverse party, the pleading
should be accepted. Original Ballet Russe, Ltd. v. Ballet
Theater, Inc., 133 F.2d 187, 189 (2d Cir. 1943). And even where
a violation of Rule 10(b) is not harmless, dismissal is not
typically the appropriate course of action. Once a defendant has
been served with a complaint that is defective in this way, it
should be met with a motion for a more definite statement under
Rule 12(e) or a motion to strike under Rule 12(f), rather than a
motion to dismiss under Rule 12(b). Anderson v. District Bd. of
Trustees of Cent. Florida Community College, 77 F.3d 364, 366-67
(11th Cir. 1996); International Tag & Salesbook Co. v. American
Salesbook Co., 6 F.R.D. 45, 47 (S.D.N.Y. 1943).
Addressing violations of Rule 10(b) in this particular context,
has long been the approach taken by courts in this Circuit.
Merrin Jewelry Co. v. St. Paul Fire & Marine Ins. Company,
301 F. Supp. 479, 481 (S.D.N.Y. 1969); Leon v. Hotel & Club
Employees Union Local 6, 26 F.R.D. 158, 159 (S.D.N.Y. 1960);
Hernandez-Avila v. Averill, 725 F.2d 25, 28 (2d Cir. 1984)
(affirming dismissal of complaint for violations at Rule 10(a)
and 11 where such violations "were not mere technical flaws").
With these standards in mind, the court examined the Second
Amended Complaint. This single spaced document, while lengthy,
contains explicit descriptions of 50 odd defendants, their
official positions, and their alleged roles in the alleged
denials of plaintiff's rights, as well as a surfeit of details
concerning when and where each of the denials took place. Despite
its length, it is neither vague nor incomprehensible, and it
clearly pleads some claims that cannot be termed frivolous on
their face. For example, plaintiff asserts that while she was
engaged in lawful conduct, various defendants combined and
conspired to deprive her of due process rights on numerous
occasions by, inter alia, 11 false arrests while she was
engaged in lawful conduct, false imprisonments, using excessive
force, and causing her mental and physical distress. She also
maintains that despite several timely written requests to several
state and local officials, defendants' illegal conduct continued
unabated. These allegations are clear and specific enough to give
the defendants notice of the ways in which they are claimed to
have violated plaintiff's rights, and it cannot be said that in
support of such a pleading that plaintiff can prove no set of
facts that would entitle her to relief. Consequently, the
complaint cannot be dismissed for failing to comply with the
pertinent requirements of Federal Rules of Civil Procedure 8 and
10. The Statute of Limitations:
Defendants contend that because the original Complaint in this
action was filed on May 9, 2003, only claims which arose since
May 9, 2000 are timely for § 1983 purposes. Moreover, given that
each constitutional violation of which plaintiff complains could
have been a constitutional claim in its own right, plaintiff
cannot rely on the "continuing violation theory to evade the
applicable statute of limitations, citing, Konigsberg v.
Lefevre, 267 F. Supp. 2d 255, 262 (N.D.N.Y. 2003).
Under the continuing violation doctrine, if a plaintiff has
experienced a "`continuous practice and policy of discrimination,
. . . the commencement of the statute of limitations period may
be delayed until the last discriminatory act in furtherance of
it.'" Gomes v. Avco Corp., 964 F.2d 1330, 1333 (2d Cir. 1992)
(quoting Miller v. International Telephone & Telegraph Corp.,
755 F.2d 20, 25 (2d Cir.), cert. denied, 474 U.S. 851,
106 S.Ct. 148, 88 L. Ed.2d 122 (1985)). "If a continuing violation is
shown, a plaintiff is entitled to have a court consider all
relevant actions allegedly taken pursuant to a defendant's
discriminatory policy or practice, including those that would
otherwise be time barred." Van Zant v. KLM Royal Dutch
Airlines, 80 F.3d 708, 713 (2d Cir. 1996); Lambert v. Genesee
Hospital, 10 F.3d 46, 53 (2d Cir. 1993) (Under the continuing
violation exception, a charge that is timely as to any incident
of discrimination in furtherance of an ongoing policy of
discrimination, all claims of acts of discrimination under that
policy will be timely even if they would be untimely standing
alone.), cert. denied, 511 U.S. 1052, 114 S.Ct. 1612,
128 L.Ed.2d 339 (1994). Although the continuing violation exception is
usually associated with a discriminatory policy, rather than with
individual instances of discrimination, and although acts so
"isolated in time . . . from each other . . . [or] from the
timely allegations? as to break the asserted continuum of
discrimination" will not suffice, Quinn v. Green Tree Credit
Corp., 159 F.3d at 766, a continuing violation may be found
"where specific and related instances of discrimination are
permitted by the defendant to continue unremedied for so long as
to amount to a discriminatory policy or practice." Cornwell v.
Robinson, 23 F.3d 694, 704 (2d Cir. 1994).
§ 1983 claims are governed by state statutes of limitations.
Wilson v. Garcia, 471 U.S. 261, 266-67, 105 S.Ct. 1938,
85 L.Ed.2d 254 (1985); Eagleston v. Guido, 41 F.3d 865, 871 (2d Cir.
1994). In New York, such claims are governed by the general three
year personal injury limitations period. Owens v. Okure,
488 U.S. 235, 251, 109 S.Ct. 573, 102 L. Ed.2d 594 (1989); Ormiston
v. Nelson, 117 F.3d 69, 71 (2d Cir. 1997); N.Y.Civ.Prac.L. & R.
§ 214(5) (McKinney 1996). Accrual of the claim, however, is a
question of federal law. Ormiston v. Nelson, 117 F.3d at 71. A
§ 1983 claim accrues "when the plaintiff knows or has reason to
know of the injury which is the basis of his action." Pearl v.
City of Long Beach, 296 F.3d 76, 80 (2d Cir. 2002) As noted
above, this action was commenced on May 9, 2003. Accordingly, all
conduct occurring within three years of that date is timely for
purposes of plaintiff' § 1983 claims.
The applicability of the continuing violation doctrine to §
1983 civil rights actions is unclear. The doctrine is largely a
creature of Title VII employment discrimination law and courts
have been reluctant to apply it outside that context. LRL
Properties v. Portage Metro Housing Authority, 55 F.3d 1097,
1105 n. 3 (6th Cir. 1995); McGregor v. Louisiana State
University Board of Supervisors, 3 F.3d 850, 866 n. 27 (5th Cir.
1993); Oyler v. Finney, 870 F. Supp. 1018, 1023 (D. Kan. 1994)
(citing cases), aff'd, 52 F.3d 338, 1995 WL 225270 (10th Cir.
1995); but see Gutowsky v. County of Placer, 108 F.3d 256, 259
(9th Cir.) (applying doctrine to a § 1983 case), cert. denied, 522 U.S. 914,
118 S.Ct. 298, 139 L. Ed.2d 229 (1997); Redding v. Anne Arundel
County, 996 F. Supp. 488, 490-91 (D. Md. 1998) (suggesting
doctrine applies); Bremiller v. Cleveland Psychiatric
Institute, 879 F. Supp. 782, 790 (N.D. Ohio 1995) (applying
In Cornwell v. Robinson, 23 F.3d 694, 704 (2d Cir. 1994) the
Second Circuit applied the doctrine to a § 1983 claim without any
discussion. Kim v. Dial Service International, Inc., 1997 WL
5902, at *5 (S.D.N.Y. Jan. 8, 1997). It must be concluded from
Cornwell, however, that the doctrine applies to § 1983 claims
in this circuit. Applying the same analysis used above, plaintiff
has established a continuing violation with respect to her claims
under § 1983.
Eleventh Amendment Immunity:
Defendants are correct when they state that the Eleventh
Amendment bars suits against the state for money damages to be
paid from the state's treasury, even if an individual officer is
named as a defendant. Ford Motor Company v. Department of the
Treasury, 323 U.S. 459, 464, 65 S. Ct. 347, 350, 89 L. Ed.2d 389
This does not mean, however, that individual capacity claims
are also barred. Although the Second Amended Complaint may not
contain an expressed individual capacity pleading, "we have
traveled too far in the direction of modern pleading to return to
the rigid pleading rules of the past. Conley v. Gibson,
355 U.S. 41, 47-48, 78 S.Ct. 99, 102-103, 2 L. Ed.2d 80 (1957). In
place of express pleading, we look to the totality of the
complaint as well as the course of proceedings to determine
whether the defendants were provided with sufficient notice of
potential exposure to personal liability. The following aspect of
the present case attests to defendants' notice of individual
capacity claims: [plaintiff's] Second Amendment Complaint seeks
punitive damages, which are only available in individual capacity suits."
Yorktown Medical Laboratory, Inc. v. Perales, 948 F.2d 84,
88-89 (2d Cir. 1991); Smith v. Wade, 461 U.S. 30, 35-36 & n. 5,
103 S.Ct. 1625, 1629-30 & n. 5, 75 L.Ed.2d 632 (1983); Shabazz,
852 F.2d 697, 700 (2d Cir. 1988).
State Police Not Obliged to Arrest Plaintiff's Neighbors:
Defendants contend that the State Police had no duty to
investigate or make arrests in plaintiff's contentious property
boundary dispute with her neighbors. Plaintiff points out,
however, that the boundary dispute was legally settled by a
survey made in March 1993, and it was never the basis for the
continuous unlawful harassment and other misdeeds inflicted by
her neighbors which are the foundation for her lawsuit.
There were several court issued orders of protection in place
forbidding criminal harassment of her and her family by her
neighbors. New York Criminal Procedure Law 530(13) provides:
6. In any proceeding in which an order of protection
or temporary order of protection or a warrant has
been issued under this section, the clerk of the
court shall issue to the victim and the defendant and
to any other person affected by the order, a copy of
the order of protection or temporary order of
protection. The presentation of a copy of such order
or a warrant to any police officer or peace officer
acting pursuant to his special duties shall
constitute authority for him to arrest a person who
has violated the terms of such order and bring such
person before the court and, otherwise, so far as
lies within his power, to aid in securing the
protection such order was intended to afford.
Plaintiff alleges that, when the unrelenting criminal
harassment continued, she complied with the above statute,
presented the order of protection to the State Police, told them
that it had been violated, and requested that the order be
enforced, but no action was taken, and the criminal harassment
continued unabated. Retaliation Claim:
To establish a First Amendment retaliation claim, a "plaintiff
must prove: (1) he/she has an interest protected by the First
Amendment; (2) defendants' actions were motivated or
substantially caused by his exercise of that right; and (3)
defendants' actions effectively chilled the exercise of his First
Amendment right." Curley v. Village Of Suffern, 268 F.3d 65, 73
(2d Cir. 2001) (citing Connell v. Signoracci, 153 F.3d 74, 79
(2d Cir. 1998)). Defendants claim that the allegations in the
Second Amended Complaint fail to satisfy any of the three
requirements of this test.
Initially, the court will consider whether plaintiff's filing
of many complaints with New York State Police and State
officials, and her alleged unsuccessful efforts in seeking to
have the defendants arrest the violators of her court orders of
protection brought and before the issuing court constituted
conduct protected by the First Amendment, and "The rights to
complain to public officials and to seek administrative and
judicial relief are protected by the First Amendment." Gagliardi
v. Village of Pawling, 18 F.3d 188, 194. (2d Cir. 1994). Indeed,
"[t]he Supreme Court has described the right to petition
government for redress of grievances as `among the most precious
of the liberties safeguarded by the Bill of Rights.'" Franco v.
Kelly, 854 F.2d 584, 589 (2d Cir. 1988) (quoting United Mine
Workers v. Illinois State Bar Association, 389 U.S. 217, 222,
88 S.Ct. 353, 19 L. Ed.2d 426 (1967)). It is axiomatic "that filing
a criminal complaint with law enforcement officials constitutes
an exercise of the First Amendment right" to petition government
for the redress of grievances. Lott v. Andrews Center, 259 F.
Supp.2d 564, 568 (E.D. Tex. 2003) (stating that there is "no
doubt" as to the existence of this right). This right applies
equally to the victims of crimes. Id. at 570-71. The court
concludes that plaintiff's actions in seeking enforcement of her orders of protection were protected by
the First Amendment.
The second element to be considered is whether "defendants'
actions were motivated or substantially caused by his exercise of
that [First Amendment] right," has been met.
"The ultimate question of retaliation involves a defendant's
motive and intent, which are difficult to plead with specificity
in a complaint." Gagliardi, 18 F.3d at 195. Indeed, "[w]hile a
bald and uncorroborated allegation of retaliation might prove
inadequate to withstand a motion to dismiss, it is sufficient to
allege facts from which a retaliatory intent on the part of the
defendants reasonably may be inferred." Id. Nevertheless, "[t]o
survive a motion to dismiss, such claims must be `supported by
specific and detailed factual allegations,' not stated `in wholly
conclusory terms.' Friedl v. City of New York, 210 F.3d 79,
85-86 (2d Cir. 2000) (quoting Flaherty v. Coughlin,
713 F.2d 10, 13 (2d Cir. 1983)).
The Second Amended Complaint indicates that plaintiff has
sufficiently alleged the "requisite nexus," Gagliardi,
18 F.3d at 195, between plaintiff's exercise of her First Amendment
rights and the alleged retaliatory actions of the defendants. The
complaint states in specific details how plaintiff was arrested
by named New York State Police personnel eleven times but was
never convicted of committing any crime, was falsely imprisoned 4
times and twice involuntarily in a psychiatric center, and that
on four occasions, four separate quorums of psychiatrists found
that plaintiff was not suffering from any psychological disease
and/or disorder. The plaintiff has alleged sufficient facts to
satisfy the second element of the retaliation claim.
In the third element, the "plaintiff must show . . . that his
First Amendment rights were `actually chilled.'" Curley v.
Village of Sufferen, 268 F.3d 65, 73 (2d Cir. 2001) (quoting
Davis v. Village Park II Realty Co., 578 F.2d 461, 464 (2d Cir. 1978)
and Laird v. Tatum, 408 U.S. 1, 13-14, 92 S.Ct. 2318,
33 L.Ed.2d 154 (1972)). "`Allegations of a subjective "chill" are not
an adequate substitute for a claim of specific present objective
harm or a threat of specific future harm.'" Id. Indeed, "[w]here
a party can show no change in his behavior, he has quite plainly
shown no chilling of his First Amendment right to free speech."
Id.; Kerman v. City of New York, 261 F.3d 229, 242 (2d Cir.
2001) (police officers' transportation of plaintiff to
psychiatric ward in retaliation for his derogatory remarks and
threats to sue them "has an obvious chilling effect").
Defendants contend that plaintiff's use of her First Amendment
rights were not chilled because she was able to institute this
lawsuit. However, that the requirement of a chilling effect is
inappropriate in the unusual circumstances of the present case,
where the exercise of First Amendment rights allegedly caused the
person exercising them to be subjected to severe punishment,
specifically, the above mentioned eleven arrests, none of which
led to a conviction and her involuntary transport to
psychological evaluations where it was determined that she was
not suffering from any psychological disease and/or disorder.
Indeed, the fact that plaintiff resisted these tactics by
defendants and continued to insist that defendants enforce her
judicial issued orders of protection should not constitute a free
pass for alleged police conduct that was constitutionally
deficient. The court finds that the allegations in the Second
Amended Complaint state a legally sufficient First Amendment
To survive a motion to dismiss, a § 1983 conspiracy claim must
allege: "(1) an agreement between two or more state actors or
between a state actor and a private entity; (2) to act in concert to inflict an unconstitutional injury; and (3) an overt
act done in furtherance of that goal causing damages." Pangburn
v. Culbertson, 200 F.3d 65, 72 (2d Cir. 1999); Ciambriello v.
County of Nassau, 292 F.3d 307, 324-25 (2d Cir. 2002).
Plaintiffs' conspiracy claim will be dismissed because it does
not allege an agreement between a state actor and a private
entity, and because all of the alleged co-conspirators are
employees of the New York State and are members of the New York
State Police. "Where the individual defendants are all employees
of the institutional defendant, a claim of conspiracy will not
stand." Burrell v. City University of New York,
995 F. Supp. 398, 414 (S.D.N.Y. 1998) (citing Everston v. State of New York
Mortgage Agency, 1992 WL 6190, at *6 (S.D.N.Y. Jan. 3, 1992)
(conspiracy claim failed as a matter of law where all of the
individual defendants were employees of SONYMA at the time of the
alleged conspiracy)). Capital Imaging Associates., P.C. v.
Mohawk Valley Medical Associates., Inc., 996 F.2d 537, 542 (2d
Cir. 1993) (unilateral conduct on the part of a single enterprise
falls outside the purview of the Sherman Act, prohibiting
conspiracies in restraint of trade); Ritzie v. City University
of New York, 703 F. Supp. 271, 277 (S.D.N.Y. 1989) (conspiracy
requires participation by an external party).
A defendant presenting an immunity defense on a Rule 12(b)(6)
motion instead of a motion for summary judgment must accept the
more stringent standard applicable to this procedural route. Not
only must the facts supporting the defense appear on the face of
the complaint, Pani v. Empire Blue Cross Blue Shield,
152 F.3d 67, 74, (2d Cir. 1998) but, as with all Rule 12(b)(6) motions,
the motion may be granted only where "it appears beyond doubt
that the plaintiff can prove no set of facts in support of his
claim that would entitle him to relief." Citibank, N.A. v. K-H Corp., 968 F.2d 1489, 1494 (2d Cir.
1992). Thus, the plaintiff is entitled to all reasonable
inferences from the facts alleged, not only those that support
his claim, but also those that defeat the immunity defense.
Qualified immunity is available only if the defendant's actions
were objectively reasonable under the legal rules that were
clearly applicable at the time of his actions. Harlow v.
Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738,
73 L. Ed.2d 396 (1982). A defense of qualified immunity cannot ordinarily
support dismissal under Fed.R.Civ.P. 12(b)(6). Green v. Maraio,
722 F.2d 1013, 1018 (2d Cir. 1983). Plaintiff alleges violations
of her constitutional rights and, based on the complaint alone,
it does not appear that defendants' actions were objectively
reasonable. Further factual information is necessary, therefore,
to determine whether defendants are entitled to qualified
immunity. Lifiton v. Keuker, 850 F.2d 73, 76 (2d Cir. 1988).
Accordingly, plaintiff's cross motion to disqualify the New
York State Attorney General's Office from acting as counsel for
the defendants in this lawsuit is DENIED; defendants' motion
pursuant to Rule 12(b)(6) is GRANTED as to plaintiff's RICO
claim, the claims asserted on behalf of her son and the
conspiracy claim, and these claims are DISMISSED; the motion is
DENIED in all other aspects.
IT IS SO ORDERED.
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