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Fudge v. Phoenicia Times

August 19, 2009

ERNEST H. FUDGE, PLAINTIFF,
v.
THE PHOENICIA TIMES, ET AL., DEFENDANTS.



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

DECISION and ORDER

Plaintiff commenced the instant action against Defendants alleging violations of his constitutional rights arising out of his arrest and indictment. Plaintiff also asserts claims of defamation. Presently before the Court are Defendants' motions to dismiss pursuant to Fed. R. Civ. P. 12(b)(6).*fn1

I. FACTS

On March 4, 2008, Plaintiff was arrested on charges of sexual abuse in the first degree. Plaintiff also was charged with driving while intoxicated, arson, burglary, and assault. Plaintiff alleges that Defendant Detective Fred Holland and Defendant Police Chief William James McGrath released false information to the local newspaper concerning the facts surrounding Plaintiff's arrest, that the newspaper printed the false information, and the parties conspired against him to deprive him of his rights by printing false information. The articles contained the following information: (1) that Plaintiff was charged with first degree sexual abuse, a Class D felony; (2) that the arrest followed a complaint from a woman who claimed that Plaintiff held her against her will for several hours, raped her, and physically assaulted her; (3) that the victim was treated at a hospital for injuries and then released; (4) that it was claimed that Plaintiff "worked her [the victim] over pretty good;" (5) that "[a]ccording to police accounts, there is ample evidence to hold [Plaintiff] over for the grand jury where additional charges are likely to be lodged;" (6) that "[t]he evidence uncovered was enough to bring the charges and may lead to more serious counts of assault;" (7) that Plaintiff had "a long rap sheet, mostly for misdemeanors;" (8) that Plaintiff had been charged with providing alcohol to minors and endangering the welfare of a child; (9) that Plaintiff had been convicted of armed robbery and served time in state prison; and (10) that Plaintiff had been "picked up on two drunk driving charges in a single day."

Plaintiff was indicted on several counts of rape and several other counts. The charges against Plaintiff were dismissed before trial.

Presently before the Court are Defendants' motions to dismiss the Complaint pursuant to Fed. R. Civ. P. 12(b), Plaintiff's motion for leave to file an amended complaint, and Plaintiff's motion for the appointment of counsel.

II. STANDARD OF REVIEW

Because Plaintiff is proceeding pro se, the Court construes his pleadings liberally. Harris v. Mills, - F.3d -, -, 2009 WL 1956176, at *4 (2d Cir. 2009). In reviewing Defendants' motions to dismiss, the Court will address both the original Complaint and the Amended Complaint.

"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." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (internal quotations and citation omitted). "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. "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. "Where 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. at 1949-50 (internal quotations and citation omitted). "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not shown - that the pleader is entitled to relief." Id. at 1950 (internal citations and quotation omitted).

III. DISCUSSION*fn2

a. Claims Pursuant to 18 U.S.C. §§ 241 and 242

Plaintiff asserts claims pursuant to 18 U.S.C. §§ 241 and 242. These are criminal statutes and do not afford Plaintiff a private cause of action. See Andrews v. Heaton, 483 F.3d 1070, 1076 (10th Cir. 2007); Robinson v. Overseas Military Sales, Corp., 21 F.3d 502, 511 (2d Cir. 1994); Williams v. Halperin, 360 F. Supp. 556, 556 (S.D.N.Y. 1973). Accordingly, those claims must be DISMISSED.

b. Claim Pursuant to 42 U.S.C. § 14141

Plaintiff also asserts a claim pursuant to 42 U.S.C. ยง 14141. This statute does not create a private cause of action. See Rangel v. Reynolds, 607 F. Supp.2d 911, 925 n.6 (N.D. Ind. 2009); Davis v. Clearlake ...


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