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Vitola v. City of New York

September 25, 2007

MARIA VITOLA, PLAINTIFF,
v.
THE CITY OF NEW YORK, NEW YORK POLICE DEPARTMENT AND "JOHN DOES," THE NAME BEING FICTITIOUS, REPRESENTING UNKNOWN POLICE OFFICERS, INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITIES AS POLICE OFFICERS, DEFENDANTS.



The opinion of the court was delivered by: John Gleeson, District Judge

FOR ONLINE PUBLICATION ONLY

MEMORANDUM AND ORDER

Maria Vitola brings this pro se action alleging violations under 42 U.S.C. §§ 1981, 1983 and 1985. Vitola seeks $20 million in damages, declaratory and injunctive relief. For the purposes of this disposition, I grant Vitola's request to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. I now dismiss the action with leave to amend for the reasons set forth below.

BACKGROUND

Vitola alleges that police officers from the 123rd Precinct in Richmond County have "an explicit and humiliating tape of [Vitola] and a former boyfriend" which "is being viewed on a regular basis." Compl. ¶ 18. Vitola generally alleges "ongoing harassment and misconduct from the 123rd Precinct starting from late 2001 when [she] went there to report a drugging and a rape" which they failed to investigate. Compl. ¶ 19. Vitola claims that a man named Frank Conte and a physician who used to employ Vitola conspired to drug her into unconsciousness while she was at Conte's apartment for dinner, Compl. ¶ 20; that the physician raped her during her unconsciousness, causing a dead fetus to fall out of her at a later date, Compl. ¶ 26; and that subsequently unknown people would harass her with telephone calls regarding that incident, Compl. ¶ 20. She alleges as well that a man named George Lotito, related through marriage to the physician, threatened her with death several times. Compl. ¶ 21. She alleges that her employer Peter Albano represented to her that he was an initiated member of the Genovese Crime family, Compl. ¶¶ 20, 22, and that he had some knowledge of the incident, Compl. ¶ 22, and also asked her if she loved her mother in a way that Vitola found threatening, id.

She further claims that the police did not act on the various reports she made of these incidents, Compl. ¶¶ 21, 23-24, and that one detective, Dennis Hanson, disseminated her claim that she had been celibate for six months prior to her meeting with Frank Conte throughout the precinct, Compl. ¶ 24. This information spread through the precinct to the neighborhood. Id. On one occasion two males accosted her on the street and harassed her by relating this information to her, and an hour after she screamed at them to ask where they heard this information, three police cars drove to outside her place of work and waited there for 20-30 minutes to intimidate her. Compl. ¶ 25. Additionally, a police officer took off his clothes in the bathroom of her workplace. Id. Finally, police officers from the 123rd Precinct apparently denied to Internal Affairs that she had made any reports to them, and "tried to sabotage" an unspecified claim Vitola made to the city. Compl. ¶ 27. This claim might be an unspecified action Vitola states that she initiated in compliance with New York State's notice-of-claim statute. Compl. ¶¶ 4-7.

DISCUSSION

A. Standard of Review

In reviewing the complaint, I am mindful that Vitola is proceeding pro seand that her pleadings should be held "to less stringent standards than formal pleadings drafted by lawyers." Hughes v. Rowe, 449 U.S. 5, 9 (1980); see also McEachin v. McGuinnis, 357 F.3d 197, 200 (2d Cir. 2004) ("[W]hen the plaintiff proceeds pro se . . . a court is obliged to construe his pleadings liberally, particularly when they allege civil rights violations." (citation omitted)). However, pursuant to the in forma pauperisstatute, I must dismiss a complaint if I determine that the action "(i) is frivolous or malicious, (ii) fails to state a claim upon which relief may be granted, or (iii) seeks monetary relief from a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B). A claim is frivolous if its "factual contentions are clearly baseless, such as when allegations are the product of delusion or fantasy," or if it is "based on an indisputably meritless legal theory"-- that is, when it "lacks an arguable basis in law . . . , or [when] a dispositive defense clearly exists on the face of the complaint." Livingston v. Adirondack Bev. Co., 141 F.3d 434, 437 (2d Cir. 1998) (internal quotations omitted).

B. Factual Frivolousness

The Supreme Court has observed that "a finding of factual frivolousness is appropriate when the facts alleged rise to the level of the irrational or the wholly incredible, whether or not there are judicially noticeable facts available to contradict them." Denton v. Hernandez, 504 U.S. 25, 33 (1992); see also Miller v. Silverstein, 122 F.3d 1056, at *1-*2 (2d Cir.) (unpublished) (finding factually frivolous claim that several disparate public figures were engaged in decades-long conspiracy to import heroin); Jones v. City of New York, No. 99-8281, 2000 WL 516889, at *3 (E.D.N.Y. Mar. 15, 2000) (dismissing sua sponte pro se plaintiff's complaint of being the target of sexual obsession and blackmail by two separate female correctional officers as factually frivolous).

Several of Vitola's claims may rise to this level. For example, Vitola makes the following allegation:

I had a dead fetus fall out of me while I was going to the bathroom. A DEAD FETUS that the former physician I worked for shoved inside me after he drugged and raped me.

Compl. ΒΆ 26 (emphasis in original). I need not decide, however, whether this or Vitola's other allegations are so incredible as to be factually frivolous, as she fails to state a claim on which relief can be ...


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