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Cox v. National Railroad Passenger Corp.

February 13, 2009


The opinion of the court was delivered by: P. Kevin Castel, District Judge


Plaintiff Keith Thomas Cox brings this pro se action for monetary damages under section 1983 of the Civil Rights Act, 42 U.S.C. § 1983. Plaintiff alleges that defendants violated his constitutional rights during his arrest and prosecution for two separate thefts that occurred in September and October 2006. Defendants Scotto and Munusky (the "prosecutor defendants") have moved for judgment on the pleadings pursuant to Rules 12(b)(1) and 12(b)(6), Fed. R. Civ. P. For the reasons outlined below, defendants' motion is granted under Rule 12(b)(6).*fn1

I. Background

The facts set forth below are alleged in plaintiff's Amended Complaint and accepted as true for purposes of the instant motion. All reasonable inferences have been drawn in plaintiff's favor as the non-movant.

On September 28, 2006, plaintiff entered a Hudson News store located in Pennsylvania Station. (Amended Complaint ("AC"), ¶ II.D. (attachment).) Some time thereafter, Store Manager defendant Rifat Rizvi accused plaintiff of stealing store merchandise and summoned Amtrak Police Officer defendant Ron Hunte to the scene. (Id.) Officer Hunte, acting with the assistance of an unidentified National Guard reservist, detained plaintiff and searched him for "approximately forty-five (45) minutes." (Id.) Officer Hunte later stated under oath that he recovered thirty-two maps from plaintiff's bag and person during this search. (Def. Mem. of Law, at Ex. A (New York County Misdemeanor Complaint No. 2006/NY066029), p. 1.)*fn2 Following the search, plaintiff was arrested. (AC, ¶ II.D. (attachment).) According to plaintiff, Officer Hunte agreed, during the arrest, to review the store's surveillance videos and confirm defendant Rizvi's account. (Id.)

Plaintiff was arraigned under New York County Misdemeanor Complaint 2006/NY066029 on September 29, 2006. (Id.; Def. Mem. of Law, at Ex. A.) During the arraignment, plaintiff's counsel requested that "both" surveillance videos be preserved for defense review. (AC, ¶ II.D. (attachment).)*fn3 Plaintiff posted bail following his arraignment and was released from custody. (Id.)

Three weeks later, on October 20, 2006, plaintiff was arrested for stealing merchandise from a Duane Reade pharmacy located at 4 Times Square, New York, New York. (Id.; Def. Mem. of Law, at Ex. B (New York County Misdemeanor Complaint No. 2006/NY071879), p. 1.) The Criminal Court consolidated this second case with plaintiff's pending case. (AC, ¶ II.D. (attachment).) Some time after plaintiff's second arrest, plaintiff's counsel repeated his prior preservation request. (AC, ¶ II.D. (attachment).)

On November 22, 2006 and December 4, 2006, plaintiff was offered an opportunity to plead guilty to the offenses listed in the October 21 complaint -- Petit Larceny and Criminal Possession of Stolen Property in the Fifth Degree -- in exchange for dismissal of the September 29 Complaint. (Id.) Plaintiff declined the plea offer on both occasions and, following his second refusal on December 4, defendant Scotto requested an adjournment of both cases in order to present the events of October 20 to a grand jury for indictment. (Id.) Plaintiff claims that he made several oral motions of his own to the court on December 4, including an objection to the adjournment request, and that these motions were denied. (Id.) On December 28, 2006, defendant Munusky presented the October 20 case to a grand jury and the grand jury indicted plaintiff for Petit Larceny and Burglary in the Third Degree. (Id.; Def. Mem. of Law, at Ex. C (Indictment), p. 1.)

The September 29 Complaint was dismissed on February 7, 2007. (AC, ¶ II.D. (attachment).) Plaintiff proceeded to trial in the Duane Reade case and was found guilty of Burglary in the Third Degree on April 17, 2007. (Id.)

Procedural History

Plaintiff commenced the instant action in May 2007. See Complaint, Dkt. No. 2; Order dated August 28, 2007, Dkt. No. 3, at 1 n.1 (noting that the Court's Pro Se Office received plaintiff's original complaint on May 14, 2007). By Order dated August 28, 2007, Chief Judge Kimba Wood granted plaintiff leave to proceed in forma pauperis but instructed plaintiff to submit an amended complaint within sixty days of the date of her Order. (Aug. 28, 2007 Order, at 2.) Chief Judge Wood outlined the recommended contents of plaintiff's revised pleading in her Order; she emphasized that plaintiff had failed to allege facts demonstrating that a New York County Assistant District Attorney was personally involved in the alleged violation of his federal constitutional rights and she advised plaintiff to correct this defect in his Amended Complaint. (Aug. 28, 2007 Order, at 2-3, 6-7.) Plaintiff filed an Amended Complaint on October 17, 2007. (Dkt. No. 5.)

Defendants Scotto and Munusky moved to dismiss the Amended Complaint on April 1, 2008. (Dkt. Nos. 21-23.) Plaintiff filed a Memorandum of Law In Response to Defendants' Motion to Dismiss on April 14, 2008. (Dkt. No. 25.) Defendants have not filed a Reply to plaintiff's Memorandum of Law and have not indicated any intention or desire to do so in their recent correspondence with the Court. See Letter dated January 5, 2009 from Olivia Sohmer, Esq. The Court will deem defendants' motion fully submitted without a Reply.

II. Discussion

Rule 8(a)(2), Fed. R. Civ. P., requires only "a short and plain statement of the claim showing that the pleader is entitled to relief, in order to give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Bell Atl. Corp. v. Twombly, 550 U.S. 544, ___, 127 S.Ct. 1955, 1964 (2007) (internal quotation marks omitted, alteration in original). To survive dismissal under Rule 12(b)(6), plaintiff must provide the grounds upon which his claims rest through factual allegations sufficient to raise a right to relief above the speculative level. See ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007) (quoting Twombly, 127 S.Ct. at 1965). Plaintiff's Amended Complaint is measured against 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), cert. granted, 128 S.Ct. 2931 (2008) (emphasis in original). This "does not require heightened fact pleading of specifics, [but] it does require enough ...

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