MEMORANDUM-DECISION AND ORDER*fn2
To begin, it should be noted that the Court is addressing both the Motion to Dismiss by Defendants Roger A. Williams and John Dolan ("Defendants" or "Williams" or "Dolan"), Dkt. No. 22, and the Motion to Dismiss by Defendant Mike Studant ("Defendant" or "Studant"), Dkt. No. 25, in this Memorandum-Decision and Order.
The Court has taken pains to set forth the relevant facts herein in a light most favorable to Plaintiff on this motion to dismiss. See Section II.A, infra. The Court does, however, refer the parties to the pleadings for a fuller discussion of the factual background of this matter.
As alleged by Plaintiff Rayon Dawkins ("Plaintiff" or "Dawkins"), Plaintiff's criminal defense attorney - Frank Catalano, Esq. ("Attorney") (retained by Plaintiff on unrelated criminal matters) - committed a crime against Plaintiff, an alleged rape of Plaintiff's girlfriend Ms. Nicola Disant. Thereafter, the Attorney allegedly attempted to buy the silence of Plaintiff and Ms. Disant. See Amended Complaint (Dkt. No. 7)*fn3 ; Defts.' Mems. of Law (Dkt. Nos. 22 & 25, Attachs. 2) at 1-2; Plntf's Response to Defts.' Motions (Dkt. No. 28, Attach. 2) at 2. Plaintiff and his girlfriend went to the police to seek assistance. At different intervals, Plaintiff discussed the matter with Defendants Williams and Studant. Id. Plaintiff claims that Defendant Dolan, as Williams' partner, and as a friend and former client of Attorney Catalano, had informed Catalano of the investigation/allegations against him. See Amended Complaint (Dkt. No. 7) at ¶ 10-11; Plntf's Response to Defts.' Motions (Dkt. No. 28, Attach. 2) at 3. Plaintiff states that Williams and Dolan then became unavailable, and Plaintiff was unable to reach them at later intervals. See Amended Complaint (Dkt. No. 7) at ¶¶ 17-19, 21.
Plaintiff alleges that Attorney proposed a meeting, and offered Plaintiff and Plaintiff's girlfriend fifty thousand ($50,000.00) dollars if Plaintiff's girlfriend would not press charges/would withdraw the charges. Id. at ¶¶ 12-13. Furthermore, Plaintiff claims that Attorney informed Plaintiff that Attorney had represented Dolan, that Attorney and Dolan were friends, and that "Dolan owed [Attorney] a favor." Id. at ¶ 14. Plaintiff states that he did not agree to the $50,000, asking instead that Attorney return the money that had been paid to him as a retainer - a sum of five thousand ($5,000.00) dollars - for legal services with regard to the unrelated but contemporaneous criminal matter. Id. at ¶¶ 15-16.
Again, Plaintiff claims that he attempted to contact Defendants Williams and Dolan, "to let them know that [Attorney] was constantly offering the [Plaintiff] money", but that Plaintiff was told that Williams was on vacation and Dolan was in the field and unavailable. Id. at ¶¶ 17-19.
Plaintiff claims to have finally reached an agreement with Attorney for return of monies paid for criminal defense by Attorney, and that Attorney had told Plaintiff to meet him at the Saratoga County courthouse for return of the money - what Plaintiff alleges Attorney termed an "out of court settlement". Amended Complaint (Dkt. No. 7) at ¶¶ 28, 31-32.
Furthermore, Plaintiff claims that he called "911" and was directed to Studant, who instructed Plaintiff to meet Attorney at the Saratoga County courthouse for the alleged return of the money. See Amended Complaint (Dkt. No. 7) at ¶¶ 22-30. Plaintiff alleges that Studant provided a telephone number which permitted the recording of the conversation between Plaintiff and Studant. Id. at ¶¶ 24-25. Defendants also mention tape recordings of Plaintiff and Attorney Catalano (as alleged to exist by Plaintiff, as well) as a basis for probable cause for the subsequent arrest of Plaintiff, but they do not fully describe what this evidence shows. See Defts.' Mem. of Law (Dkt. No. 22, Attach. 2) at 7-8.
Upon Plaintiff meeting Attorney at the Saratoga County courthouse, undercover agents arrested Plaintiff, charging conspiracy, attempted grand larceny and extortion. See Amended Complaint (Dkt. No. 7) at ¶¶ 33, 37; Defts.' Mems. of Law (Dkt. Nos. 22 & 25, Attachs. 2) at 2.
The facts surrounding the arrest of Plaintiff, which is the basis for the present matter, are not entirely clear. According to the exhibits submitted by Plaintiff (Dkt. No. 28, Attach. 3), Exhibit V, the New York State Police Arrest Report ("Arrest Report"), it is indicated that Plaintiff's arrest was for "Grand Larceny...2nd...Attempt [a felony]...Defendant did attempt to steal $110,000 USC from victim by extortion". Plaintiff's arrest was made under authority pursuant to an arrest warrant. See Arrest Report (Dkt. No. 28, Attach. 3, Ex. V); Amended Complaint (Dkt. No. 7) at ¶ 40. Furthermore, the complainant on said Arrest Report was Frank Catalano. Id. Plaintiff claims that he was brought before Judge Jerry Scarano (who revoked Plaintiff's bail on an unrelated charge), and that "Plaintiff was placed in the Saratoga County Jail for thirteen (13) days without being finger printed [sic], arraigned or given legal representation." Amended Complaint (Dkt. No. 7) at ¶¶ 38-39. The Arrest Report further indicates that while the date of the underlying incident (extortion, larceny) was July 16, 2002, Plaintiff was apparently not arrested until July 30, 2002, at 2:30 in the afternoon, and arraigned before The Honorable John Egan, Albany City Court, on July 30, 2002, at 3:30 in the afternoon. Id. The Arrest Report also indicates that Plaintiff's photograph and fingerprints were taken as of the date of that arrest, on July 30, 2002. Id. In the supporting memoranda of law, however, Defendants assert that Plaintiff was actually arrested on July 18, 2002, at the Saratoga County courthouse, in Saratoga County, and charged with attempted grand larceny. See Defts.' Mems. of Law (Dkt. Nos. 22 & 25, Attachs. 2) at 1.
Taking the facts in a light most favorable to Plaintiff, it appears that Plaintiff was taken into custody on July 16, 2002, in Saratoga County, and that Defendant Williams did not appear at the jail with an arrest warrant until July 30, 2002, and that thereafter Plaintiff was arraigned before Judge Egan, in Albany County, and charged with attempted grand larceny. Amended Complaint (Dkt. No. 7) at ¶¶ 33-42. Plaintiff has provided a copy of the Felony Complaint, which was submitted by Defendant Williams on July 19, 2002, in support of a request for an arrest warrant. See Felony Complaint (Dkt. No. 28, Attach. 3, Ex. VI). Neither party, however, has provided a copy of any actual arrest warrant in this matter. And, to confuse matters, Defendants state both June 18 and July 18, 2002, as Plaintiff's date of arrest. See Defts.' Mems. of Law (Dkt. Nos. 22 & 25, Attachs. 2) at 1-2.
Plaintiff submitted a transcript of a hearing held before Judge Scarano on July 18, 2002. Transcript of July 18, 2002 Hearing (Dkt. No. 28, Attach. 3, Ex. IV). Although the transcript discusses the charges of Attempted Grand Larceny in the Second Degree, a Class D felony, in violation of New York Penal Law Section 110, and subsection 1 of Section 155.40, which are the charges arising out of the incidents involving Attorney Catalano, and are the charges set forth in the Arrest Report, it appears that the purpose of the hearing before Judge Scarano was solely to address a bail issue in an unrelated criminal matter. See Transcript of July 18, 2002 Hearing (Dkt. No. 28, Attach. 3, Ex. IV); Arrest Report (Dkt. No. 28, Attach. 3, Ex. V); Amended Complaint (Dkt. No. 7) at ¶ 38. Neither Plaintiff nor Defendants have provided any transcripts or other evidence to establish the exact dates of Plaintiff's arrest or arraignment on the charges related to the matter currently at bar, and thus this Court, taking the facts in the light most favorable to Plaintiff, reads the pleadings as stating that Plaintiff was taken into custody on July 16, 2002, but was not officially arrested or arraigned until July 30, 2002. The attempted grand larceny charges against Plaintiff were later dismissed in Albany County, on November 3, 2003. See Amended Complaint (Dkt. No. 7) at ¶ 43; Certificate of Disposition (Dkt. No. 28, Attach. 3, Ex. I).*fn4
Defendants'*fn5 Motions to Dismiss were filed in response to Plaintiff's Complaint and Amended Complaint, which allege violations of Plaintiff's constitutional rights under 42 U.S.C. § 1983. Plaintiff claims, inter alia, that he was falsely arrested, caused mental anguish, unlawfully imprisoned, and entrapped. See Amended Complaint (Dkt. No. 7). In reading Plaintiff's pleadings liberally, this Court also understands Plaintiff to be claiming a violation of his First, Fourth, Fifth, Sixth, Eighth and Fourteenth Amendment rights. See Amended Complaint (Dkt. No. 7) at ¶¶ 39-41; Plntf's Response to Defts.' Motions (Dkt. No. 28, Attach. 2) at 1, 4, 6-9; Plntf's Letter to Magistrate Judge Lowe (Dkt. No. 30) at 1. Although presently incarcerated in a correctional facility, Plaintiff's claims are not directly related to his current state of incarceration.
Having reviewed the briefing by the parties (Dkt. Nos. 22, 25, 28 & 30), and for the reasons that follow, the Court grants Defendant Studant's Motion and Defendant Dolan's Motion in their entirety, and grants in part and denies in part Defendant Williams' Motion.
When the Court considers a Motion to Dismiss under Federal Rule of Civil Procedure ("F.R.C.P." or "Rule") 12(b)(6) - "failure to state a claim upon which relief can be granted" -"[d]ismissal is appropriate only where 'it appears beyond doubt that the plaintiff can prove no set of facts in support of [plaintiff's] claim which would entitle [plaintiff] to relief,'... or where the complaint fails as a matter of law." Powell v. Bucci, No. 04CV1192 (TJM/DEP), 2005 WL 3244193, at *2 (N.D.N.Y. Nov. 30, 2005) (McAvoy, S.D.J.) (citing and quoting Phillip v. Univ. of Rochester, 316 F.3d 291, 293 (2d Cir. 2003); and citing Phelps v. Kapnolas, 308 F.3d 180, 187 (2d Cir. 2002)). See also Karas v. Katten Muchin Zavis Rosenman, No. 04 Civ. 9570(SHS), 2006 WL 20507, at *3 (S.D.N.Y. Jan. 3, 2006) (citing and quoting Davis v. Goord, 320 F.3d 346, 350 (2d Cir. 2003) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957))); Prieto v. Election.com, No. 04-CV-4413 (DRH)(MLO), 2005 WL 3560596, at *2 (E.D.N.Y. Dec. 29, 2005) (citing King v. Simpson, 189 F.3d 284, 286 (2d Cir. 1999); Bernheim v. Litt, 79 F.3d 318, 321 (2d Cir. 1996)). The Court must consider all facts alleged in the complaint as true - construing the complaint liberally - and draw all reasonable inferences in a light most favorable to the plaintiff -the non-moving party. See Bucci, 2005 WL 3244193, at *2 (citing cases); Election.com, 2005 WL 3560596, at *2 (citing, inter alia, King, 189 F.3d at 287).
Furthermore, courts have made clear that "[a]lthough a court in deciding a Rule 12(b)(6) motion is generally limited to considering the facts alleged in the complaint, a district court may also consider documents attached to the complaint or incorporated in it by reference.... In addition, a court may also consider documents outside the pleadings if they are 'integral' to the complaint and upon which the complaint relies." Election.com, 2005 WL 3560596, at *2 (citing Stuto v. Fleishman, 164 F.3d 820, 826 n.1 (2d Cir. 1999); Int'l Audiotext Network, Inc. v. Am. Tel. & Tel. Co., 62 F.3d 69, 72 (2d Cir. 1995)). See also Chapman v. New York State Div. for Youth, No. 1:04-CV-867, 2005 WL 2407548, at *4 (N.D.N.Y. Sept. 29, 2005) (Hurd, D.J.) ("[i]n considering a motion to dismiss for failure to state a claim under Fed.R.Civ.P. 12(b)(6), a district court must limit itself to facts stated in the complaint or in documents attached to the complaint as exhibits or incorporated in the complaint by reference.") (internal quotation marks omitted; citing and quoting Kramer v. Time Warner, Inc., 937 F.2d 767, 773 (2d Cir. 1991)).
The Court does not determine whether the plaintiff will ultimately prevail in the matter, but rather "whether [the plaintiff] is even entitled to offer any evidence in support of the allegations in the complaint." Bucci, 2005 WL 3244193, at *2 (internal quotation marks omitted; citing cases). And, in addition, when a pro se plaintiff is involved, the Court must give "special latitude" to the pro se plaintiff's response to a motion to dismiss, and, although applying the same standard, "may consider allegations that are contained in a pro se plaintiff's opposition papers." Id. (internal quotation marks omitted; citing cases).
B. Entrapment Under 42 U.S.C. § 1983
To the extent that Plaintiff alleges claims of entrapment against the Defendants under 42 U.S.C. § 1983 (see Plntf's Mem. of Law in Rebuttal (Dkt. No. 28, Attach. 2) at 5-7; Plntf's Letter to Magistrate Judge Lowe (Dkt. No. 30)), those claims are dismissed. Entrapment is a defense in a criminal matter, but it does not exist as a civil cause of action. Entrapment "is not a constitutional offense." DiBlasio v. City of New York, 102 F.3d 654, 656-657 (2d Cir. 1996) (Van Graafeiland, J.) (citing, inter alia, Hampton v. United States, 425 U.S. 484, 488-91 (1976) (plurality); Jones v. Bombeck, 375 F.2d 737, 738 (3d Cir. 1967)). See also Smith v. Garretto, 147 F.3d 91, 94-95 (2d Cir. 1998) (Newman, J.); Lehman v. Kornblau, 134 F. Supp. 2d 281, 293 (E.D.N.Y. 2001). Entrapment is not a cognizable claim under 42 U.S.C. § 1983, and Defendants' Motions to Dismiss as to these claims are granted.
C. Negligence Under 42 U.S.C. § 1983
To the extent that Plaintiff alleges negligence on the part of Defendants under 42 U.S.C. § 1983 (see, generally, Plntf's Response to Defts.' Motions (Dkt. No. 28) at 1, 3), those claims are dismissed. "The Supreme Court has flatly denied that negligence is a basis for a cause of action and recovery in § 1983 cases.... 'Where a government official's act causing injury to his life, liberty, or property is merely negligent, no procedure for compensation is constitutionally required.'" Jeffers v. Goord, No. 9:99 CV 0335 FJS/GHL, 2005 WL 928628, at *10 (N.D.N.Y. Apr. 4, 2005) (Lowe, M.J.) (emphasis in original), Report-Recommendation Adopted in its Entirety sub nom. by Jeffers v. Doe, No. 9:99CV335(FJS/GHL), 2005 WL 2240686 (N.D.N.Y. Sept. 13, 2005) (Scullin, C.J.), (citing and quoting Daniel v. Williams, 474 U.S. 327, 328, 330-31, 333 (1986) (Rehnquist, J.)). See also Iwachiw v. New York State Dept. of Motor Vehicles, 396 F.3d 525, 527, 530 (2d Cir. 2005) (per curiam) (affirming, inter alia, District Court's dismissal of "claims against State Defendants, because negligence is not a valid basis for liability under 42 U.S.C. § 1983...."). Thus, negligence claims are not cognizable under 42 U.S.C. § 1983, and Defendants' Motions to Dismiss as to these claims are granted.
D. Plaintiff's First Amendment Claims
To the extent that Plaintiff claims violations of his First Amendment rights (see Amended Complaint (Dkt. No. 7) at ¶¶ 44-54), those claims are dismissed. The First Amendment states that:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
U.S. CONST. amend. I. However, in reading Plaintiff's pleadings and motion papers (Dkt. Nos. 7, 28 & 30), this Court finds that Plaintiff has failed to plead any facts that show how Plaintiff's First Amendment rights have been allegedly violated. See FED. R. CIV. P. 8*fn6 ; Bucci, 2005 WL 3244193, at *2. ...