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Allen v. Hand

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK


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 his Complaint with regard to the remaining claims before those claims are dismissed. (Dkt. No. 4.)

C. Plaintiff's Objections

On May 21, 2010, after being granted an extension of time by the Court, Plaintiff filed his Objections to the Report-Recommendation. (Dkt. No. 6.) In his Objections, Plaintiff argues, inter alia, as follows: (1) he has been chilled in his efforts to question the activities of the Town of Virgil; (2) he intended to (and did properly) assert a claim that he was denied his constitutional right to remain silent; (3) his malicious prosecution claim should not be dismissed because he was detained, he has and continues to be required to appear at Court, and the criminal charges against him have not been resolved or otherwise terminated; (4) he was constitutionally entitled to contact an attorney before being questioned by Defendants Nicoletta, Trickey, and Roberts; (5) Defendant Corbitt has been grossly negligent in supervising Defendants Nicoletta and Trickey as evidenced by the fact that they arrested him without a warrant and without witnessing any unlawful activity; and (6) Defendant Hand is not a "lower echelon" employee at the Town of Virgil, but an employee who sets the customs and policies at the Town's offices. (Id.)

II. APPLICABLE LEGAL STANDARDS

A. Legal Standard Governing the Review of a Report-Recommendation

When specific objections are made to a magistrate judge's report-recommendation, the Court makes a "de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." See 28 U.S.C. § 636(b)(1)(C).*fn1

When only general objections are made to a magistrate judge's report-recommendation, the Court reviews the report-recommendation for clear error or manifest injustice. See Brown v. Peters, 95-CV-1641, 1997 WL 599355, at *2-3 (N.D.N.Y. Sept. 22, 1997) (Pooler, J.) [collecting cases], aff'd without opinion, 175 F.3d 1007 (2d Cir. 1999).*fn2 Similarly, when a party makes no objection to a portion of a report-recommendation, the Court reviews that portion for clear error or manifest injustice. See Batista v. Walker, 94-CV-2826, 1995 WL 453299, at *1 (S.D.N.Y. July 31, 1995) (Sotomayor, J.) [citations omitted]; Fed. R. Civ. P. 72(b), Advisory Committee Notes: 1983 Addition [citations omitted]. After conducing the appropriate review, the Court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C).

B. Legal Standard Governing the Review of Plaintiff's Complaint Pursuant to 28 U.S.C. § 1915(e)

Because Plaintiff has filed a motion to proceed in forma pauperis, it is appropriate for the Court to review the sufficiency of the allegations that he has set forth in his complaint in light of 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b). This is because Section 1915(e)(2)(B) directs that, when a plaintiff seeks to proceed in forma pauperis, "(2)... the court shall dismiss the case at any time if the court determines that--... (B) the action... (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B). Similarly, Section 1915A(b) directs that a court must review any "complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity" and must "identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint... is frivolous, malicious, or fails to state a claim upon which relief may be granted; or... seeks monetary relief from a defendant who is immune from such relief."

28 U.S.C. § 1915A(b); see also Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007) (stating that both Sections 1915 and 1915A are available to evaluate prisoner pro se complaints).

As for the legal standard applied during such a review, it has long been understood that a dismissal for failure to state a claim, pursuant to Fed. R. Civ. P. 12(b)(6), may be based on either or both of two grounds: (1) a challenge to the "sufficiency of the pleading" under Fed. R. Civ. P. 8(a)(2); or (2) a challenge to the legal cognizability of the claim. Jackson v. Onondaga County, 549 F. Supp.2d 204, 211, nn.15-16 (N.D.N.Y. 2008) (McAvoy, J., adopting Report-Recommendation on de novo review) [citations omitted].

With regard to the first such ground, Fed. R. Civ. P. 8(a)(2) requires that a pleading contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2) [emphasis added]. By requiring this "showing," Fed. R. Civ. P. 8(a)(2) requires that the pleading contain a short and plain statement that "give[s] the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Jackson, 549 F. Supp.2d at 212, n.17 [citations omitted]. The main purpose of this rule is to "facilitate a proper decision on the merits." Id. at 212, n.18 [citations omitted].*fn3

The Supreme Court has long characterized this pleading requirement under Fed. R. Civ. P. 8(a)(2) as "simplified" and "liberal," and has repeatedly rejected judicially established pleading requirements that exceed this liberal requirement. Id. at 212, n.20 [citations omitted].

However, even this liberal notice pleading standard "has its limits." Id. at 212, n.21 [citations omitted]. As a result, numerous Supreme Court and Second Circuit decisions exist holding that a pleading has failed to meet this liberal notice pleading standard. Id. at 213, n.22 [citations omitted]; see also Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949-52 (2009).

Most notably, in Bell Atlantic Corp. v. Twombly, the Supreme Court reversed an appellate decision holding that a complaint had stated an actionable antitrust claim under 15 U.S.C. § 1. Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955 (2007). In doing so, the Court "retire[d]" the famous statement by the Court in Conley v. Gibson, 355 U.S. 41, 45-46 (1957), that "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Twombly, 127 S.Ct. at 1968-69. Rather than turning on the conceivability of an actionable claim, the Court clarified, the "fair notice" standard turns on the plausibility of an actionable claim. Id. at 1965-74. The Court explained that, while this does not mean that a pleading need "set out in detail the facts upon which [the claim is based]," it does mean that the pleading must contain at least "some factual allegation[s]." Id. at 1965 [citations omitted]. More specifically, the "[f]actual allegations must be enough to raise a right to relief above the speculative level [to a plausible level]," assuming (of course) that all the allegations in the complaint are true. Id. [citations omitted].*fn4

As have other Circuits, the Second Circuit has recognized that the clarified plausibility standard that was articulated by the Supreme Court in Twombly governs all claims, including claims brought by pro se litigants (although the plausibility ofthose claims is to be assessed generously, in light of the special solicitude normally afforded pro se litigants).*fn5 It should be emphasized that Fed. R. Civ. P. 8's plausibility standard, explained in Twombly, was in no way retracted or diminished by the Supreme Court's decision (two weeks later) in Erickson v. Pardus, in which (when reviewing a pro se pleading) the Court stated, "Specific facts are not necessary" to successfully state a claim under Fed. R. Civ. P. 8(a)(2). Erickson v. Pardus, 127 S.Ct. 2197, 2200 (2007) [citation omitted; emphasis added]. That statement was merely an abbreviation of the often-repeated point of law--first offered in Conley and repeated in Twombly--that a pleading need not "set out in detail the facts upon which [the claim is based]" in order to successfully state a claim. Twombly, 127 S.Ct. 1965, n.3 (citing Conley, 355 U.S. at 47) [emphasis added]. That statement did not mean that all pleadings may achieve the requirement of "fair notice" without ever alleging any facts whatsoever. Clearly, there must still be enough fact set out (however set out, whether in detail or in a generalized fashion) to raise a right to relief above the speculative level to a plausible level.*fn6

Finally, in reviewing a complaint for dismissal under Fed. R. Civ. P. 12(b)(6), the court must accept the material facts alleged in the complaint as true and construe all reasonable inferences in the plaintiff's favor. This standard is applied with even greater force where the plaintiff alleges civil rights violations and/or where the complaint is submitted pro se. However, while the special leniency afforded to pro se civil rights litigants somewhat loosens the procedural rules governing the form of pleadings (as the Second Circuit has observed),*fn7 it does not completely relieve a pro se plaintiff of the duty to satisfy the pleading standards set forth in Fed. R. Civ. P. 8, 10 and 12.*fn8 Rather, as both the Supreme Court and Second Circuit have repeatedly recognized, the requirements set forth in Fed. R. Civ. P. 8, 10 and 12 are procedural rules that even pro se civil rights plaintiffs must follow.*fn9 Stated more plainly, when a plaintiff is proceeding pro se, "all normal rules of pleading are not absolutely suspended." Jackson, 549 F. Supp.2d at 214, n.28 [citations omitted].

III. ANALYSIS

After carefully reviewing all of the papers herein, including Magistrate Judge Lowe's thorough Report-Recommendation, the Court can find no error (clear or otherwise) in the Report-Recommendation.*fn10 Magistrate Judge Lowe employed the proper standards governing Plaintiff's claims, accurately recited the facts giving rise to those claims, and reasonably applied the law to those facts. As a result, Magistrate Judge Lowe's Report-Recommendation is accepted and adopted in its entirety. The Court would add only two points.

First, until Plaintiff is able to allege facts plausibly suggesting that he has been actually arraigned on charges related to the events of December 15, 2006, Plaintiff cannot make out a claim for malicious prosecution. See Day v. Morgenthau, 909 F.2d 75, 79 (2d Cir. 1990) (noting that a claim of false arrest "cover[s] the time of detention up until issuance of process or arraignment," and that "[f]rom that point on, any damages recoverable must be based on a malicious prosecution claim"); Grant v. City of New York, 500 F. Supp.2d 211, 216 (S.D.N.Y. 2007) (finding that, because "[t]here is no dispute that [plaintiff] was never arraigned before a judge or prosecuted in any way[,]... plaintiff's claim for malicious prosecution is baseless").

Second, in his Objections to Magistrate Judge Lowe's Report-Recommendation, Plaintiff asserts certain factual allegations not asserted in his Complaint.*fn11 Under the circumstances, the Court declines to exercise its discretion to construe Plaintiff's Complaint as effectively amended by those late-blossoming allegations. Setting aside the fact that Plaintiff has not explained why he failed to assert these factual allegations in his original Complaint, the Court finds that such a construction of Plaintiff's original Complaint would constitute an inefficient use of judicial resources, and would frustrate the purpose of the Magistrates Act, because Magistrate Judge Lowe did not have the benefit of those factual allegations when he prepared his thorough Report-Recommendation. Moreover, such a construction would result in piecemeal pleading. The fairer and more efficient solution would be, and is, for Plaintiff to simply file an Amended Complaint, asserting all of the factual allegations supporting his claims together.*fn12

ACCORDINGLY, it is

ORDERED that Magistrate Judge Lowe's Report-Recommendation (Dkt. No. 4) is ACCEPTED and ADOPTED in its entirety; and it is further

ORDERED that Plaintiff's Fourth Amendment false arrest claim SURVIVE the Court's sua sponte review of the Complaint pursuant to 28 U.S.C. § 1915(e); and it is further

ORDERED that Plaintiff's Fifth Amendment malicious prosecution claim against Defendants Nicoletta, Trickey, and Roberts is DISMISSED; and it is further

ORDERED that the remaining claims asserted in Plaintiff's Complaint (i.e., Plaintiff's First Amendment claim, Plaintiff's Sixth Amendment claim, Plaintiff's supervisory liability claim, and Plaintiff's municipal liabilityclaim) shall be sua sponte DISMISSED against Defendants Town of Virgil, Hand and Corbett in their entirety, without prejudice, and without further Order of this Court, unless, within THIRTY (30) DAYS of the filing of this Decision and Order, Plaintiff files an Amended Complaint that states a claim upon which relief may be granted;*fn13 and it is further

ORDERED that, upon Plaintiff's full compliance with this Decision and Order, the Clerk of the Court shall return the file to the Magistrate Judge for further review; and it is further

ORDERED that the Clerk issue summonses and forward them, along with copies of the Complaint, this Decision and Order, Magistrate Judge Lowe's Report-Recommendation, and packets containing General Order 25 to the United States Marshal for service upon Defendants Amanda Nicoletta, Diane Trickey, and Raymond T. Roberts; and it is further

ORDERED that a formal response to Plaintiff's Fourth Amendment claim be filed by Defendants Nicoletta, Trickey, Roberts, or their counsel as provided for in the Federal Rules of Civil Procedure subsequent to service of process on those Defendants; and it is further

ORDERED that the Clerk schedule a Rule 16 conference before Magistrate Judge Lowe.


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