The opinion of the court was delivered by: Michael A. Telesca United States District Judge
Plaintiff Femi Akinwale Olowosoyo ("plaintiff" and/or "Olowosoyo") has filed this pro se action against numerous defendants including the City of Rochester (the "City"), Anthony Mittiga ("Mittiga"), Joe Strocko ("Strocko") (the "City defendants"), Chris Mueller ("Mueller") and the New York State Insurance Fund ("SIF") (the "New York defendants") (collectively "Defendants") claiming that Olowosoyo's civil rights were violated in connection with several actions by the Defendants. Specifically, plaintiff claims Mueller and Mittiga knowingly made false statements against him to the state police which resulted in his arrest. In addition, plaintiff alleges that Strocko harassed and threatened him as well as prevented him from doing any more construction work in the city of Rochester. As a result, plaintiff asserts that he lost his business in Rochester. He brings this action under 42 U.S.C. § 1983 claiming that his constitutional and civil rights were violated.
Defendant SIF moves to dismiss on the grounds that plaintiff is barred by the Eleventh Amendment from bringing an action for damages against the New York State Insurance Fund. Defendant Mueller also moves to dismiss on grounds that plaintiff has failed to state a viable cause of action against him. The City defendants join in the motion of the New York defendants and request that the plaintiff's Complaint be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6). Plaintiff does not oppose the Defendants' motions.*fn1 For the reasons that follow, I grant both Defendants' motions to dismiss plaintiff's Complaint.
Plaintiff alleges that on July 5, 2002, Strocko, the Head of the Demolition Department for the City, harassed, threatened and prevented him from doing any more demolition work in the city of Rochester. See Complaint ("Compl."), ¶ C. Accordingly, plaintiff asserts that Strocko caused plaintiff to lose his business in Rochester. See id. Thereafter, on July 22, 2002, Olowosoyo claims that Mittiga, a Zoning and Building clerk for the City knowingly made false statements to the State Police causing his ultimate arrest. See id., ¶ A. In addition, on August 27, 2002, plaintiff alleges that Mueller, an employee of the SIF, knowingly made false statements against him resulting in his arrest. See id. ¶ B. The arrest was made on April 3, 2004 by the Darien, Connecticut Town Police on instructions from the New York State Police. See id. ¶ D.*fn2 On January 7, 2005, plaintiff claims he was acquitted after a trial in the Rochester City Court. See id., ¶ H. Plaintiff filed the Complaint on January 4, 2008.
In reviewing a motion to dismiss pursuant to Rule 12(b)(6), the Court must accept the factual allegations set forth in the complaint as true, and draw all reasonable inferences in favor of the plaintiff. See ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir.2007); Cleveland v. Caplaw Enters., 448 F.3d 518, 521 (2d Cir.2006). The plaintiff must satisfy "a flexible 'plausibility standard.'" See Iqbal v. Hasty, 490 F.3d 143, 157 (2d Cir.2007). A claim that is not plausible on its face must be "supported by an allegation of some subsidiary facts to survive a motion to dismiss."
See Benzman v. Whitman, 523 F.3d 119, 129 (2d Cir.2008). "[O]nce a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint." See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1969 (2007). The Court, therefore, does not require "heightened fact pleading of specifics, but only enough facts to state a claim to relief that is plausible on its face." See id. at 1974.
Moreover, as the Second Circuit recently emphasized in Sealed Plaintiff v. Sealed Defendant, "[o]n occasions too numerous to count, we have reminded district courts that when [a] plaintiff proceeds pro se,...a court is obliged to construe his pleadings liberally....This obligation entails, at the very least, a permissive application of the rules governing the form of pleadings....This is particularly so when the pro se plaintiff alleges that her civil rights have been violated. Accordingly, the dismissal of a pro se claim as insufficiently pleaded is appropriate only in the most unsustainable of cases." See 537 F.3d 185, 191 (2d Cir.2008) (citations and quotation marks omitted); see also Weixel v. Bd. of Educ. of the City of N.Y., 287 F.3d 138, 146 (2d Cir.2002) (holding that when plaintiff is appearing pro se, the Court shall "'construe [the complaint] broadly, and interpret [it] to raise the strongest arguments that [it] suggests.'") (quoting Cruz v. Gomez, 202 F.3d 593, 597 (2d Cir.2000).*fn3
B. Motion to Dismiss by City Defendants
The City defendants join in the New York defendants' motion pursuant to Fed.R.Civ.P. 12(b)(6). Rule 12(b)(6) provides that "a motion making any of these defenses [e.g. failure to state a claim ] shall be made before pleading if a further pleading is permitted." In the present action the City defendants filed their answer on October 24, 2008, before their motion to dismiss. Technically, the City defendants' Rule 12(b) motion is untimely. However, the City defendants' 12(b) defense is not one which is waivable, (see Fed.R.Civ.P. 12(h)), and the City defendants have raised the failure to state a claim and statute of limitations defenses in their answer. Under these circumstances, the court may consider the City defendants' motion to dismiss.*fn4 See Jennings Oil, Co. v. Mobil Oil Corp., 80 F.R.D. 124 (S.D.N.Y.1978) (where a party has included specific defenses in its answer, as the City has done, a subsequent motion to dismiss based upon those defenses may be allowed); Stonehill v. Security Nat'l Bank, 68 F.R.D. 24, 44 (S.D.N.Y.1975) (a motion based upon a purported failure to state a claim upon which relief can be granted may be made even though an answer has already been filed); Zebrowski v. Denckla, 630 F.Supp. 1307, 1309 n.1 (E.D.N.Y.1986); Canadian St. Regis Band of Mohawk Indians by Francis v. State of New York, 640 F.Supp. 203, ...