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CLOYCE v. MACY'S DEPARTMENT STORE

August 29, 2005.

EDWARD CLOYCE, Plaintiff,
v.
MACY'S DEPARTMENT STORE, ET AL., Defendants.



The opinion of the court was delivered by: KEVIN FOX, Magistrate Judge

REPORT and RECOMMENDATION

I. INTRODUCTION

Plaintiff Edward Cloyce ("Cloyce"), proceeding pro se, commenced this action pursuant to 42 U.S.C. § 1983 against Macy's Department Store ("Macy's") and Kenneth Scarborough ("Scarborough"), a security guard employed by Macy's. Cloyce alleges that he sustained injuries caused by Scarborough during an unlawful arrest.

  Before the Court is the defendants' motion, made pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, to dismiss the claim on the ground that the court lacks subject matter jurisdiction. The plaintiff opposes the motion. It is addressed below.

  II. BACKGROUND

  According to an incident report prepared by Scarborough, on July 11, 2004, he was notified by store security personnel that they had observed Cloyce concealing merchandise in two large gift bags. When Scarborough approached him, Cloyce put down the gift bags and fled. Scarborough retrieved the bags and returned the merchandise to store security. Scarborough then received a call from another Macy's employee, who had continued to follow Cloyce. The employee informed Scarborough that Cloyce had gone to the store's luggage department and that he was armed with a knife. When Scarborough arrived at the scene, he found Cloyce with the knife in his hand. Scarborough identified himself as a security officer and three times commanded Cloyce to drop the knife. When Cloyce refused to obey the commands, Scarborough knocked the knife out of his hands, handcuffed him and escorted him to store security. Cloyce was searched but no additional weapons were found. The merchandise taken by Cloyce was returned to the store's stock.

  Cloyce alleges that when he handed Scarborough the knife in surrender, Scarborough forcefully disarmed him. As a result, Cloyce maintains, he suffered an injury to his right hand and continues to suffer emotional distress. Cloyce commenced the instant action on October 23, 2004. He claims that Scarborough attacked him with "malice and vindictiveness." In addition, Cloyce appears to claim that the defendants were negligent and that he was unlawfully arrested and falsely imprisoned. He seeks compensatory damages.

  III. DISCUSSION

  A court may dismiss an action pursuant to Fed.R.Civ.P. 12(b)(1), for lack of subject matter jurisdiction, only if "it appears beyond doubt that the plaintiff can prove no set of facts which would entitle him or her to relief." Raila v. United States, 355 F.3d 118, 119 (2d Cir. 2004). In considering a motion made pursuant to Fed.R.Civ.P. 12(b)(1), "the court must take all facts alleged in the complaint as true and draw all reasonable inferences in favor of the plaintiff." Id. Further, in any analysis of such a motion, "the plaintiff bears the burden of proving by a preponderance of evidence that jurisdiction exists." Chayoon v. Chao, 355 F.3d 141, 143 (2d Cir. 2004).

  The court may consider all papers and exhibits appended to the complaint, as well as any matters of which judicial notice may be taken. See Hirsch v. Arthur Andersen & Co., 72 F.3d 1085, 1092 (2d Cir. 1995). Additionally, where, as here, the plaintiff is pro se, his or her pleadings "are [to be] held `to less stringent standards than formal pleadings drafted by lawyers,'" Hughes v. Rowe, 449 U.S. 5, 9, 101 S. Ct. 173, 175 (1980) (quoting Haines v. Kerner, 404 U.S. 519, 520, 92 S. Ct. 594, 595 [1972]), and should be interpreted "to raise the strongest arguments that they suggest." McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 [2d Cir. 1994]). This liberal pleading standard is particularly applicable where a pro se plaintiff alleges a violation of his or her civil rights. See Jacobs v. Ramirez, 400 F.3d 105, 106 (2d Cir. 2005).

  Section 1983 Claims

  In order to bring a claim under § 1983, the plaintiff must allege that (1) the challenged conduct was attributable at least in part to a person who was acting under color of state law and (2) the conduct deprived the plaintiff of a right guaranteed under the Constitution of the United States." Snider v. Dylag, 188 F.3d 51, 53 (2d Cir. 1999) (citing Dwares v. City of New York, 985 F.2d 94, 98 [2d Cir. 1993]). "Allegations which are nothing more than broad, simple, and conclusory statements are insufficient to state a claim under § 1983." Alfaro Motors, Inc. v. Ward, 814 F.2d 883, 887 (2d Cir. 1987).

  In the case at bar, Cloyce fails to allege that his injuries are the result of state action or that the conduct complained of deprived him of his constitutional rights. Indeed, although the standardized form upon which the complaint is written contains the heading, "Complaint under the Civil Rights Act, 42 U.S.C. § 1983," the claims presented in the complaint, even liberally construed, do not appear to be cognizable under § 1983. ...


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