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Tylicki v. Schwartz

August 19, 2009

RAYMOND TYLICKI, PLAINTIFF,
v.
JOHN R. SCHWARTZ, DEFENDANT.



The opinion of the court was delivered by: Thomas J. McAVOY Senior United States District Judge

DECISION and ORDER

Plaintiff Raymond Tylicki, appearing pro se, commenced the instant action asserting various state law and constitutional claims against Defendant John Schwartz. Presently before the Court is Defendant's motion to dismiss the Complaint pursuant to Fed. R. Civ. P. 12(b)(6).*fn1

I. FACTS

According to the Complaint, Defendant is the Chief of the University Police at the State University of New York at Binghamton. The Complaint alleges that Defendant "falsified government documents by entering misleading and false information by entering false information on Offcial [sic] Police reports and composine a dociarere [sic] and file on Mr Tylicki as well as directing his subordinates to do the same that contained misleading and sladerouse [sic] information." Comp. at ¶ 1. It is alleged that Defendant shared this information with other police departments and faculty and students at the State University of New York at Binghamton and other SUNY campuses. The Complaint alleges that this conduct was done in retaliation for Plaintiff having criticized "the Binghamton University in the recent past for unsafe conditions on its bus system and its lack of access in it facilitys [sic] for the public with disabilities at meetings of the University Senate and has pending actions against SUNY in Federal Court that are not related in nature to the complaint at hand." Id. at ¶ 3.

Plaintiff asserts state law claims of invasion of privacy, defamation, and claims pursuant to § 1983 sounding in substantive and procedural due process violations and a violation of the Ninth Amendment. The substantive due process violation is founded upon Defendant's refusal "to amend the records" or "redact any false information" thereby harming Plaintiff's reputation. Id. at ¶ 6A. The procedural due process claim is predicated upon Defendant's assertion that certain records requested by Plaintiff through a Freedom of Information Law request were non-existent, Defendant's refusal "to ID the fact that the police file existed," and that there is no procedure in place to challenge false records. Id. at ¶ 6B. The Ninth Amendment claim is based on his claim that the Ninth Amendment protects a right of privacy, which right was violated by Defendant entering false information onto a public record and not allowing Plaintiff a means by which to challenge or correct such information. Id. at ¶ 6C.

Together with his Complaint, Plaintiff also filed a document entitled "Brief In Support of Maintaining 42 USC 1983 Action." In this document, Plaintiff asserts that Defendant retaliated against him for using a federally funded library that receives government documents and for his anti-war activity (which consisted of placing "a peace sticker on the window of a recruiting station in Vestal NY)." Br. in Support at p. 3. Later in the document, however, Plaintiff writes:

But putting this all aside the question at hand here and the only question that he asks this court to consider is . . . .

When a Public Official such as a police officer falsifies records and does so with malice and just because he thinks he can arbitrary [sic] do so. . . . does the subject of such records have the right to file for a civil rights action as per 1983?

Br. in Support at p. 5.

Presently before the Court is Defendant's motion to dismiss the Complaint on the ground that the Complaint fails to state a claim upon which relief can be granted.

II. STANDARD OF REVIEW

A motion under FED. R. CIV. P. 12(b)(6) tests the legal sufficiency of the claims pleaded in the case. The Supreme Court recently elaborated on the standard to be used in addressing a Rule 12(b)(6) motion, and again explained Rule 12(b)(6)'s interrelationship with the federal pleading standard under FED. R. CIV. P. 8. See Ashcroft v. Iqbal, --- S.Ct. ----, 2009 WL 1361536, at *12 -*13 (May 18, 2009). In this regard, the Court explained:

Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." As the Court held in [Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007]], the pleading standard Rule 8 announces does not require "detailed factual allegations," but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation. Id., at 555, 127 S.Ct. 1955 (citing Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986)). A pleading that offers "labels and conclusions" or "a formulaic recitation of the elements of a cause of action will not do." 550 U.S., at 555, 127 S .Ct. 1955. Nor does a complaint suffice if it tenders "naked assertion[s]" devoid of "further factual enhancement." Id., at 557, 127 S.Ct. 1955.

To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to "state a claim to relief that is plausible on its face." Id., at 570, 127 S.Ct. 1955. 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. Id., at 556, 127 S.Ct. 1955. 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. Ibid. Where a complaint pleads facts that are "merely consistent with" a ...


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