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Allen v. Hand

July 2, 2010

WILLIAM M. ALLEN, JR., PLAINTIFF,
v.
BONNIE P. HAND; TOWN OF VIRGIL; AMANDA NICOLETTA; DIANE TRICKEY; RAYMOND T. ROBERTS; AND HARRY J. CORBITT, DEFENDANTS.



The opinion of the court was delivered by: Hon. Glenn T. Suddaby, United States District Judge

DECISION and ORDER

Currently before the Court, in this pro se civil rights action filed by William M. Allen, Jr. ("Plaintiff"), are Plaintiff's Objections to the Report-Recommendation of United States Magistrate Judge George H. Lowe recommending that (a) Plaintiff's false arrest claim against Defendants Nicoletta, Trickey, and Roberts survive the Court's sua sponte review for failure to state a claim upon which relief can be granted, (b) Plaintiff's malicious prosecution claim against Defendants Nicoletta, Trickey and Roberts be dismissed for failure to state a claim, and (c) the remainder of Plaintiff's claims be conditionally dismissed. (Dkt. Nos. 4, 6.) For the reasons set forth below, the Report-Recommendation is accepted and adopted in its entirety; Plaintiff's false arrest claim against Defendants Nicoletta, Trickey, and Roberts survives sua sponte review; Plaintiff's malicious prosecution claim against Defendants Nicoletta, Trickey, and Roberts is dismissed; and the remaining claims in the Complaint shall be dismissed, unless, within thirty (30) days of the filing date of this Decision and Order, Plaintiff files an Amended Complaint that states a claim upon which relief can be granted.

I. RELEVANT BACKGROUND

A. Plaintiff's Complaint

Plaintiff filed his Complaint on December 14, 2009. (Dkt. No. 1.) Construed with the utmost of liberality, Plaintiff's Complaint asserts the following claims against the following individuals based on their treatment of him during his review of public records at the Town of Virgil office on December 15, 2006:

(1) the violation of his right to free speech under the First Amendment by Defendant Hand when he verbally abused Plaintiff and interfered with his right to review public records;

(2) the violation of his right to be free from false arrest under the Fourth Amendment by Defendants Nicoletta and Trickey when they refused to allow Plaintiff to leave the Town of Virgil conference room and arrested him;

(3) the violation of his right to be free from false arrest under the Fourth Amendment by Defendant Robert when he charged Plaintiff with felony robbery without a warrant, continued to hold him at the office in Homer, and transported him to Homer Town Court;

(4) the violation of his right to be free from unlawful and malicious prosecution under the Fifth Amendment by Defendants Nicoletta, Trickey, and Roberts when they arrested Plaintiff and subsequently charged him with a more serious offense after he refused to answer their questions; and

(5) the violation of his right to contact an attorney under the Sixth Amendment by Defendants Nicoletta, Trickey, and Roberts when they refused Plaintiff's his repeated requests to be allowed to contact an attorney. (Id.)

Plaintiff's Complaint also asserts a claim against the Superintendent of New York State Police, Harry J. Corbitt, for failing to train and supervise his employees, as well as a claim against the Town of Virgil for supervisory liability under Monell v. Dept. of Social Servs., 436 U.S. 658 (1978), based on a failure to properly train and supervise its staff. (Id.)

For a more detailed recitation of the factual allegations supporting these claims in Plaintiff's Complaint, the Court refers the reader to Plaintiff's Complaint in its entirety, and to Magistrate Judge Lowe's Report-Recommendation. (Dkt. Nos. 1, 4.)

B. Magistrate Judge Lowe's Report-Recommendation

On March 4, 2010, Magistrate Judge Lowe issued a Report-Recommendation in which he (1) granted Plaintiff's request to proceed in forma pauperis, (2) recommended that Plaintiff's false arrest claim survive the Court's sua sponte review, (3) recommended that Plaintiff's malicious prosecution claim be dismissed with prejudice, and (4) recommended that Plaintiff be afforded leave to amend ...


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