MEMORANDUM-DECISION AND ORDER*fn1
Plaintiff Frederick Joseph Jennis ("Plaintiff" or "Jennis") brings this action against Defendants Duane Rood, et al., ("Defendants") alleging violations of 42 U.S.C. § 1983 and the First, Fourth, Fifth, Sixth and Fourteenth Amendments to the United States Constitution, as well as violations under the common law of the State of New York, and seeking money damages and return of property. See Second Amended Complaint (Dkt. No. 12) at ¶ 1.
Defendants have filed two Motions to dismiss, seeking dismissal pursuant to Federal Rules of Civil Procedure 8(a)(2), 12(b)(3), and 12(b)(6). See Defts' First & Second Motions to Dismiss (Dkt. Nos. 35 & 36). Plaintiff has filed a memorandum of law in opposition to Defendants' Motions. See Plntf's Opp. Papers (Dkt. No. 42).
For the reasons that follow, Defendants' Motions are granted, and this case is dismissed and closed.
The following are the general facts, as presented in Plaintiff's Complaint.
On Friday, June 23, 2000, at approximately five o'clock in the evening, Plaintiff was outside of his residence, located at 104 Mooney Avenue, in Syracuse, New York, when he saw Defendants Phinney and Rood. Second Amended Complaint (Dkt. No. 12) at ¶ 22. Plaintiff claims that he was "walking slowly and quietly down [his] driveway holding an axe in a non-threatening manner down at [his] right side and purposely maintaining at least 25 feet from officers as [he] was in a non-violent protesting state of mind...." Id. The officers told Plaintiff to drop the axe that he was carrying, but Plaintiff refused to comply, and Defendant officers shot at Plaintiff four times, hitting him twice. Id. Plaintiff alleges that Defendants should have and could have used a less harmful method of securing Plaintiff's compliance - such as using pepper spray. Id.
Plaintiff was arraigned by a Syracuse City Court judge while in his hospital room at University Hospital in Syracuse. Id. at ¶ 26. Plaintiff was arraigned on charges including attempted assault on a police officer. Id.
Plaintiff claims that both a Grand Jury investigation and a Syracuse Police Department inter-departmental investigation of the shooting occurred while he was in the hospital, and that because of his condition Plaintiff was unable to testify before the Grand Jury and present his side of the case. Id. at ¶ 27. Plaintiff was indicted in July 2000. Id.
Plaintiff claims that while he was in the hospital, he suffered from extreme pain, was under the effects of morphine and anesthesia, and that he was weak, unable to eat and losing weight. Id. Furthermore, Plaintiff claims that his movement was restricted by "invasive medical equipment", and by physical restraints placed on Plaintiff by Defendant Onondaga County Sheriff's Deputies. Id. at ¶¶ 27, 51.
Plaintiff claims that just after he had woken up from surgery, while he wanted to sleep, and asked to be left alone to recover, Defendant Officers Perrin and Werbeck questioned him; and that Defendants continued to question Plaintiff while shaking his left leg and causing pain, and while Plaintiff was in the condition described above, and shackled to the bed. Id. at ¶ 51.
Plaintiff further alleges that Defendant officers exceeded the scope and authority of the search warrant that had been issued (Defendant Detective Derby), failed to properly train officers in use of deadly force, failed to obtain Plaintiff's side of the story (Defendant Captain Heenan), and fabricated or lied about facts so as to ensure Plaintiff would not receive bail, would be indicted, and would be convicted - going so far as to report that Plaintiff's sister had stated that Plaintiff "had a 'bad temper'" (Defendant Officer Eggers), which Plaintiff claims is not true. See id. at ¶¶ 31-36. Plaintiff claims that when bail was imposed, he was also, inter alia, restricted from going to his home on Mooney Avenue. Id. at ¶ 37.
Plaintiff seeks, inter alia, several million dollars in damages and return of property.
Defendants' Motions seek relief pursuant to the provisions of Federal Rules of Civil Procedure 8(a)(2), 12(b)(3) and 12(b)(6). See Defts' First & Second Motions to Dismiss (Dkt. Nos. 35 & 36).
"Consistent with the pleading standards of Fed.R.Civ.P. 8, 'a complaint must include only "a short and plain statement of the claim showing that the pleader is entitled to relief,"'.... The complaint must '"give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests."'" Karas v. Katten Muchin Zavis Rosenman, A Partnership, No. 04 Civ. 9570(SHS), 2006 WL 20507, at *3 (S.D.N.Y. Jan. 3, 2006) (citing and quoting Swierkiewicz v. Sorema N. A., 534 U.S. 506, 512 (2002) (quoting FED. R. CIV. P. 8(a)(2)); Conley v. Gibson, 355 U.S. 41, 45-47 (1957)). In order for a plaintiff to maintain a claim under § 1983, the complaint must contain more than broad, simple or conclusory statements. The complaint must set forth specific allegations and facts which illustrate a violation of one's rights as protected by the Constitution. See Hall v. Dworkin, 829 F. Supp. 1403, 1412 (N.D.N.Y. 1993) (McAvoy, C.J.) (citing, inter alia, Spear v. Town of West Hartford, 954 F.2d 63 (2d Cir. 1992); Barr v. Abrams, 810 F.2d 358, 363 (2d Cir. 1987)). Therefore, general allegations or conclusions of law will not suffice in defeating a defendant's motion to dismiss. Plaintiff must, instead, "assert a cognizable claim and allege facts that, if true, would support such a claim." Boddie v. Schnieder, 105 F.3d 857, 860 (2d Cir. 1997). See also Smith v. Local 819 I.B.T. Pension Plan, 291 F.3d 236, 240 (2d Cir. 2002).
A Rule 12(b)(3) challenge "is the forum non conveniens analysis, and a district court may dismiss a case if an alternative forum exists where the case may be heard, and if trial in the present forum 'would be oppressive and vexatious to a defendant.'" Minibooster Hydraulics A/S v. Scanwill Fluid Power ApS, 315 F. Supp. 2d 286, 290 (W.D.N.Y. 2004) (citations omitted). Another forum is proper if: "(1) the defendants are subject to service of process there and (2) the forum permits litigation of the subject matter of the dispute." Id. But, the inquiry does not end there, for if an adequate alternative forum is found, the Court must also consider "public and private interest factors in deciding whether to give deference to the plaintiff's choice of forum." Id.
The public factors include court congestion in the chosen forum, the local interest in deciding local controversies at home, the interest in having the trial in a forum that is familiar with the governing law, the difficulties in applying foreign law, and the unfairness of burdening citizens in an unrelated forum with jury duty. Private factors include the ease of access to sources of proof and the ability and cost of procuring witnesses....
Id. Furthermore, 28 U.S.C. § 1404(a),... allows the Court in its discretion to transfer venue "[f]or the convenience of parties and witnesses, in the interest of justice." The burden is on the moving party to demonstrate entitlement to transfer on this ground.... In addressing the request, the Court must balance the following factors: "(1) the weight accorded the plaintiff's choice of forum; (2) the place where the operative facts took place; (3) the convenience of the parties; (4) the convenience of the witnesses; (5) the availability of process to compel unwilling witnesses; (6) the location of relevant documents and the relative ease of sources of proof; and (7) trial efficiency and the interests of justice."...
It is well established that a plaintiff's choice of forum should not be disturbed unless the balance of factors tips heavily in favor of transfer.
United Computer Capital Corp. v. Daidone, No. 5:02-CV-1431, 2005 WL 579565, at *4 (N.D.N.Y. Mar. 7, 2005) (Mordue, D.J.) (citing Fine Foods Int'l LP v. N. Am. Fine Foods, Inc., No. 99-CV-1062 (ILG), 1999 WL 1288681, *5 (E.D.N.Y. Nov. 12, 1999)).
Generally, a strong presumption exists in favor of the forum in which Plaintiff has chosen to bring suit. The party moving for change of venue bears the burden of "establish[ing] that the alternative forum is 'clearly more appropriate.'...Dismissal will generally be inappropriate unless 'the balance of convenience tilts strongly in favor of trial in the foreign forum.'" Minibooster Hydraulics, 315 F. Supp. 2d at 290 (citations omitted).
Upon consideration of a motion to dismiss pursuant to Rule 12(b)(3), the Court "must accept the facts alleged in the complaint as true and draw all reasonable inferences in the plaintiff's favor." Micromuse, Inc. v. Aprisma Mgmt. Tech., Inc., No. 05 Civ. 0894SAS, 2005 WL 1241924, at *2 (S.D.N.Y. May 24, 2005) (citations omitted). See also Matera v. Native Eyewear, Inc., 355 F. Supp. 2d 680, 681 (E.D.N.Y. 2005) (citations omitted); Meteoro Amusement Corp. v. Six Flags, 267 F. Supp. 2d 263, 266 (N.D.N.Y. 2003) (McCurn, Senior D.J.); Daou v. Early Advantage, LLC, 410 F. Supp. 2d 82, 89-90 (N.D.N.Y. 2006) (Kahn, D.J.) (discussing this same standard for Rule 12(b)(3) motions).
Upon a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), a court may dismiss a complaint "only if 'it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'"... Furthermore, "the court must accept as true the factual allegations in the complaint, and draw all reasonable inferences in favor of the plaintiff."... However, the court need not credit conclusory statements unsupported by assertions of facts or legal conclusions and characterizations presented as factual allegations.... Nevertheless, "[i]n assessing the legal sufficiency of a claim [under 12(b)(6)], the court may consider those facts alleged in the complaint, documents attached as an exhibit thereto or incorporated by reference... and documents that are integral to plaintiff's claims, even if not explicitly incorporated by reference."
Moreover, pleadings submitted by pro se litigants "should be 'construed liberally,'" and a complaint "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.'"... A "dismissal on the pleadings is never warranted unless the plaintiff's allegations are doomed to fail under any available legal theory."
Toney v. Goord, No. 04-CV-1174, 2006 WL 2496859, at *5 (N.D.N.Y. Aug. 28, 2006) (McAvoy, Senior D.J.; Treece, M.J.) (citing and quoting, inter alia, Equal Employment Opportunity Comm'n v. Staten Island Sav. Bank, 207 F.3d 144, 148 (2d Cir. 2000) (quoting Conley v. Gibson, 355 U.S. 41, 45- 46 (1957) & citing Drake v. Delta Air Lines, Inc., 147 F.3d 169, 171 (2d Cir. 1998)); Harris v. City of New York, 186 F.3d 243, 247 (2d Cir. 1999); Papasan v. Allain, 478 U.S. 265, 286 (1986)).
B. First Motion to Dismiss - By County of Onondaga Sheriff's Office (Dkt. No. 35)
1. Statute of Limitations
Defendants claim that because Plaintiff did not serve Defendants with the Complaint (and Amended Complaints) until the Second Amended Complaint was served on Defendants on January 4, 2005, the matter is time-barred because the incident(s) complained of occurred more than four years and five months before service on Defendants. See Defts' Mem. of Law (Dkt. No. 35, Attach. 3) at 4-5. However, Defendants are mistaken on the law in Federal court. As District Judge Colleen McMahon, of the Southern District of New York, has held:
[The federal complaint] was apparently never served on [Defendants], so as far as [Plaintiffs, who voluntarily withdrew the suit,] are concerned the lawsuit never existed. The Court sees it otherwise. Actions are commenced by filing, not by service, in federal court.... Moreover, the action was assigned to a district judge and a magistrate judge on the day it was filed. As far as we are concerned, a lawsuit begins the day it shows up on our docket. So the lawsuit was not a "phantom" one....
Spehar v. Fuchs, No. 02-Civ.9352-CM, 2003 WL 23353308, at *2 n.2 (S.D.N.Y. June 18, 2003) (emphasis added) (citing FED. R. CIV. P. 3). See also Henderson v. United States, 517 U.S. 654, 657 n.2 (1996) ("In a suit on a right created by federal law, filing a complaint suffices to satisfy the statute of limitations.") (citing West v. Conrail, 481 U.S. 35, 39 (1987)).
Although in Fuchs it was the plaintiffs (who had voluntarily withdrawn their lawsuit prior to service of the complaint upon defendants) who contended that the prior lawsuit never existed, the procedural mechanism for commencing a lawsuit in Federal court - as addressed by Judge McMahon - is the same for this case. The filing of the Complaint, not the service of ...