The opinion of the court was delivered by: KEVIN FOX, Magistrate Judge
REPORT and RECOMMENDATION
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
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
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 ), 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).
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. ...