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Schwamborn v. County of Nassau

September 16, 2008

FRANK SCHWAMBORN, PLAINTIFF,
v.
COUNTY OF NASSAU; THOMAS SUOZZI, COUNTY EXECUTIVE; EDWARD REILLY, NASSAU COUNTY SHERIFF; LT. MICHAEL GOLIO, LEGAL UNIT; NASSAU COUNTY CORRECTIONAL CENTER; UNITED STATES MARSHALS SERVICE; AND BURTON T. RYAN, ASSISTANT UNITED STATES ATTORNEY, DEFENDANTS.



The opinion of the court was delivered by: Feuerstein, J.

OPINION & ORDER

I. Introduction

Plaintiff Frank Schwamborn ("Plaintiff" or "Schwamborn") commenced this action against the United States Marshals Service ("USMS") and Assistant United States Attorney Burton T. Ryan ("Ryan") (collectively the "federal Defendants"), and against the County of Nassau ("Nassau County"), Nassau County Correctional Center ("NCCC"), Nassau County Executive Thomas Suozzi ("Suozzi"), Nassau County Sheriff Edward Reilly ("Reilly"), and Lieutenant Michael Golio ("Golio") of the Nassau County Sheriffs' Legal Unit (collectively, the "County Defendants") claiming violations of 42 U.S.C. §§1983 and 1985.

The federal Defendants have moved for dismissal pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12 (b)(6). The County Defendants have moved for dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6). Plaintiff has cross-moved to amend his complaint.

For the reasons stated herein, the federal Defendants' Motion to Dismiss is GRANTED, the County Defendants' Motion to Dismiss is GRANTED, and the Plaintiff's Motion to Amend is DENIED.

II. Background

The Plaintiff is a federal pretrial detainee pursuant to the indictment filed in criminal case number 06-cr-0328. See United States of America v. Schwamborn, No. 2:06-cr-0328, Indictment (E.D.N.Y. 2006) (doc. #1). Pursuant to its contract with Nassau County, authorized by 18 U.S.C. § 4013, the Justice Department*fn1 originally committed Plaintiff to the NCCC in May 2006. In March 2007, Plaintiff was transferred to the Private Detention Center in Queens, New York.

In December 2006, Plaintiff moved for "legal visit" privileges for his sister, whom he claims is a certified paralegal.*fn2 (See doc. #4.) While that motion was pending, on February 5, 2007, Plaintiff moved to compel the Nassau County Sheriff to permit "legal visits" by his sister. (See doc. #7.) On February 21, 2007, Plaintiff moved this Court for a "temporary Order of Injunctive Relief" seeking the same relief. (See doc. #10.) On March 7, 2007, this Court denied Plaintiff's motions. (See doc. #11.) On March 19, 2007, Plaintiff was transferred to the Queens facility.

III. Discussion

A. Standard of Review for a Motion to Dismiss

1. Under Rule 12(b)(1)

Rule 12(b)(1) permits a defendant to raise the defense of lack of subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). When a district court lacks statutory or constitutional authority to adjudicate a case, it is proper for it to dismiss a case pursuant to Rule 12(b)(1) for lack of subject matter jurisdiction. See Luckett v. Bure, 290 F.3d 493, 496 (2d Cir. 2002); Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). "In resolving the question of jurisdiction, the district court can refer to evidence outside the pleadings and the plaintiff asserting subject matter jurisdiction has the burden of proving by a preponderance of the evidence that it exists." Id. (citing Makarova, 201 F.3d at 113; further citation omitted).

2. Under Rule 12(b)(6)

Rule 8(a) of the Federal Rules of Civil Procedure provides that a pleading shall contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). Recently, the Supreme Court clarified the pleading standard applicable in evaluating a motion to dismiss under Rule 12(b)(6). See Bell Atlantic Corporation v. Twombly, ___ U.S. ___, 127 S.Ct. 1955 (2007). The previous standard that "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief," Conley v. Gibson, 355 U.S. 41, 45-46 (1957), was replaced to require that a plaintiff must allege "only enough facts to state a claim to relief that is plausible on its face." Twombly, 127 S.Ct. at 1974. However,

While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right of relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).

Id. at 1964-65 (citations and internal quotation marks omitted).

The Second Circuit has stated that Twombly does not require a universally heightened standard of fact pleading, but "instead requir[es] a flexible 'plausibility standard,' which obliges a pleader to amplify a claim with some factual allegations in those contexts where such amplification is needed to render the claim plausible." Iqbal v. Hasty, 490 F.3d 143, 157-58 (2d Cir. 2007). In other words, Twombly "'require[s] enough facts to 'nudge [a plaintiff's] claim across the line from conceivable to plausible.'" In re Elevator Antitrust Litig., 502 F.3d 47, 50 (2d Cir. 2007)(quoting Twombly, 127 S.Ct. at 1974)).*fn3

A court must view the allegations in a complaint in the light most favorable to the plaintiff, see Scheur v. Rhodes, 416 U.S. 232, 236 (1974), construing pro se complaints liberally. See Elliot v. Bronson, 872 F.2d 20, 21 (2d Cir. 1989). And, a complaint alleging a civil rights violation must contain specific factual allegations "indicting a deprivation of rights, instead of a litany of ...


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