The opinion of the court was delivered by: Amon, United States District Judge
Defendants move pursuant to Federal Rule of Civil Procedure 12(b)(6) to dismiss plaintiff's 42 U.S.C. § 1983 claim that he was a victim of false arrest, malicious prosecution, and a conspiracy*fn1 on the ground that the statute of limitations for plaintiff's claims expired prior to the filing of his complaint.*fn2 For the forgoing reasons, defendants' motion is granted and the case is dismissed.
On April 17, 1999, detectives Frank Gramarossa and Ramon Munoz witnessed plaintiff, Guy McEachin, holding and smoking what appeared to be a marijuana cigarette in a fenced-in lot behind buildings in Queens, New York. (Compl. at ¶ IV. 3.) The detectives also claimed that they smelled a marijuana odor in the vicinity. (Tr.*fn3 401.) When approached by the detectives, plaintiff discarded the marijuana cigarette and attempted to flee. (Tr. 516.) The detectives apprehended the plaintiff, placed him under arrest, and recovered the discarded remains of the marijuana cigarette. (Tr. 403.) The subsequent search of the plaintiff's person executed incident to the arrest produced 79 bags of cocaine, a beeper, a razor blade and assorted empty ziplock bags. (Tr. 404.) On May 18, 1999, a grand jury indicted plaintiff in a nine count indictment with two counts of Unlawful Possession of Marijuana (N.Y. PENAL LAW § 221.05), Criminal Possession of Marijuana in the Fifth Degree (N.Y. PENAL LAW § 221.10), two counts of Criminal Possession of a Controlled Substance in the Third Degree (N.Y. PENAL LAW §§ 220.16-1 & -12), two counts of Criminal Possession of a Controlled Substance in the Seventh Degree (N.Y. PENAL LAW § 220.03), Criminally Using Drug Paraphernalia in the Second Degree (N.Y. PENAL LAW § 220.50-2) and Resisting Arrest (N.Y. PENAL LAW § 205.30-1).
Assistant District Attorneys Golia and Chu, defendants in this action, prosecuted plaintiff's resulting criminal trial. At trial, the plaintiff and defendant Gramarossa and his partner, detective Munoz, testified. Plaintiff alleged that defendants Donna Golia and Daniel Chu conspired with defendant Gramarossa by assisting in the preparation of allegedly perjurious testimony. (Compl. at ¶ IV. 3.) On August 30, 2000, plaintiff was acquitted of the marijuana charges, but was convicted of the cocaine-related offenses.*fn4 (Cert. of Disp. of Indict.)*fn5
On December 17, 2003, plaintiff filed a civil complaint under 42 U.S.C. § 1983 alleging false arrest; malicious prosecution stemming from his April 1999 arrest and subsequent trial; and conspiracy by an officer and two Assistant District Attorneys to present false testimony on the witness stand. Plaintiff argued that his arrest was unlawful for lack of probable cause to arrest him and that the prosecution knowingly relied on false trial testimony to secure his conviction. Plaintiff named as defendants, the City of New York; the New York Police Department ("NYPD"); former NYPD Commissioner, Howard Safir; Queens District Attorney, Richard Brown; Queens Assistant District Attorneys, Donna Golia and Daniel Chu; and NYPD detective, Frank Gramarossa.
On January 12, 2004, the Court initially ordered McEachin to show cause why his petition should not be dismissed as untimely. McEachin responded on February 13, 2004 ("2004 Declaration"), arguing that he was entitled to equitable tolling because of court visits and his mental health. The Court never ruled on the issue of timeliness at that stage in the litigation.
Subsequently, defendants filed a motion to dismiss the complaint on August 13, 2004. Defendants moved to dismiss all claims pursuant to Rule 12(b)(6) of the Federal Rule of Civil Procedure on the grounds that (1) plaintiff's cause of action is barred due to the expiration of the statute of limitations on August 30, 2003; (2) probable cause existed to arrest plaintiff and therefore the false arrest claim is void; (3) plaintiff fails to state a claim for malicious prosecution; (4) the District Attorney defendants Brown, Golia and Chu are entitled to absolute immunity; (5) Detective Gramarossa is entitled to qualified immunity; (6) plaintiff fails to state a claim for municipal liability by defendant City; (7) the NYPD is not a suable entity; (8) plaintiff has not sufficiently alleged a conspiracy among the defendants to deprive him of his constitutional rights; (9) defendants Brown and Safir were not personally involved in the alleged deprivation of plaintiff's constitutional rights; and (10) with respect to any alleged state law claims, plaintiff failed to sufficiently state a cause of action against defendants.
On November 8, 2004, plaintiff filed a memorandum of law in opposition to defendants' motion to dismiss ("Plaintiff's Opposition"). In Plaintiff's Opposition, McEachin argues that because he was ordered on January 12, 2004 to show cause why his complaint should not have been dismissed as untimely and he has replied to that order, then his claims cannot be dismissed for lack of timeliness at this stage.*fn6 Defendants submitted a reply to Plaintiff's Opposition on December 7, 2004, arguing that the 2004 Declaration does not support an equitable tolling defense.*fn7 Plaintiff submitted a letter dated March 4, 2007 as his surreply ("Surreply").*fn8
III. Standard for a Motion to Dismiss
On a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure, the Court must accept as true the factual allegations in the complaint and draw all reasonable inferences in favor of the plaintiff. The District Court should grant such a motion only if, after viewing plaintiff's allegations in this favorable light, it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Harris v. City of New York, 186 F.3d 243, 247 (2d Cir. 1999).
The statute of limitations imposes upon the potential plaintiff a duty to seek redress for wrongs done to him in a timely fashion, or else forfeit those claims. McEachin has brought his claims under 42 U.S.C. § 1983,*fn9 which does not contain a statute of limitations provision. However, the Supreme Court has mandated that federal courts considering § 1983 claims borrow the relevant state's general or residual statute of limitations for personal injury. Owens v. Okure, 488 U.S. 235, 250 (1989). Accordingly, New York's general statute of limitations for personal injury, which is three years, applies to cases brought pursuant to § 1983. Curto v. Edmundson, 392 F.3d 502, 504 (2d Cir. 2004) (finding N.Y. ...