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Hill v. U.S. Attorney's Office

August 14, 2009


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


Plaintiff Demitrius Hill ("Plaintiff"), proceeding pro se, commenced this action on March 7, 2008, alleging violations of his constitutional rights pursuant to Title III of the Ominbus Crime Control and Safe Streets Act of 1968, as amended (the "Wiretap Act" or "Title III"), 18 U.S.C. §§ 2510-2522, Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed. 2d 619 (1971), the Fourth and the Fourteenth Amendments of the United States Constitution, and the New York State Constitution and statutory provisions. Pending before the Court is Defendant Nassau County Correctional Center's ("NCCC" or "Defendant") motion to dismiss the Complaint. For the reasons stated below, Defendant's motion is GRANTED.


The relevant facts set forth in this Order are taken from the Complaint and are presumed true for the purpose of deciding the motion to dismiss. See King v. American Airlines, 284 F.3d 352, 356 (2d Cir. 2002).

Plaintiff claims that he was deprived of his constitutional rights while incarcerated at NCCC. Plaintiff alleges that in 2006, Assistant United States Attorney Richard Donoghue ("A.U.S.A. Donoghue"), with the consent of the United States Attorney's Office, contacted NCCC and arranged to have Plaintiff's phone calls recorded. (Compl. ¶ A.)

Plaintiff maintains that A.U.S.A. Donoghue had a device placed in the phone at the NCCC to record Plaintiff's conversations with Magdalena Sanchez ("Sanchez"), a prison psychologist, and that this was done without Plaintiff's knowledge or consent and without a warrant "or other legal justification." (Id. ¶ C.) Plaintiff claims that A.U.S.A. Donoghue used Plaintiff's taped telephone conversations to allege a sexual affair between Plaintiff and Sanchez, and to influence Judge Denis Hurley's sentencing determination in Plaintiff's case. (Id. ¶ D.) Plaintiff alleges that A.U.S.A. Donoghue committed libel in alleging a sexual affair with Sanchez, and that A.U.S.A. Donoghue committed a federal tort by taping Plaintiff's calls without a warrant. (Id. ¶ E.)

In his second claim, Plaintiff avers that A.U.S.A. Donoghue provided the phone recordings to A.U.S.A. Sarah Coyne, and used the tapes to secure a grand jury indictment against Sanchez. (Id. ¶ 7.) Plaintiff states that someone from the U.S. Attorney's Office or "the BOP or Department of Justice" or some "federal employee with the U.S. Attorney's acquiescence" provided false information to the media concerning the alleged affair between Plaintiff and Sanchez, as well as Plaintiff's alleged cooperation with the government. (Id. ¶ G.)

On October 23, 2008, Defendant NCCC moved to dismiss on two grounds.*fn1 First, Defendant argues that Plaintiff's action is barred because Plaintiff did not exhaust his administrative remedies; second, Defendant contends that NCCC is an administrative arm of Nassau County and, therefore, cannot be sued. (Id. 6.)


I. Rule 12(b)(6) Standard of Review

To survive a motion to dismiss pursuant to Rule 12(b)(6), a complaint must put forth enough factual allegations to "raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544,555, 127 S.Ct. 1955, 1965, 167 L.Ed. 2d 929 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, __ U.S. __, 129 S.Ct. 1937, 1949, __ L.Ed. 2d. __ (2009). "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. Thus, "[w]here a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief." Id. (internal citations and quotations omitted). "But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct," a complaint fails to state a claim. Id. The plaintiff's factual allegations, in short, must show that the plaintiff's claim is "plausible," not merely "conceivable." Id. at 1951.

When considering a motion to dismiss, a court can first identify pleadings that are not entitled to the assumption of truth because they are mere conclusions unsupported by factual allegations. See Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1950, 173 L.Ed. 2d 868 (2009). After locating the well-pleaded factual allegations, the court should assume their truthfulness and "then determine whether they plausibly give rise to an entitlement to relief." Id. at 1950.

The Court recognizes that pro se plaintiffs are entitled to a more liberal pleading standard. See Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197; 167 L.Ed. 2d 1081 (2007) ("a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers") (quoting Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 292 (1976)) (internal quotation marks omitted); Boykin v. KeyCorp, 521 F.3d 202, 214 (2d Cir. 2008). Nonetheless, pro se plaintiffs must still comport with the ...

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