The opinion of the court was delivered by: John G. Koeltl, District Judge:
MEMORANDUM OPINION AND ORDER
The plaintiff, Antonio Mallet, a prisoner incarcerated at Eastern Correctional Facility, brought this action pro se against Bronx County District Attorney Robert T. Johnson under 42 U.S.C. § 1983. The plaintiff seeks the release of fingerprint and ballistic evidence collected in connection with his 1999 criminal trial. The plaintiff also requests the release of records and reports prepared during the investigation, along with the personnel records for the investigation's lead detective. The defendant moves to dismiss for failure to state a claim upon which relief may be granted pursuant to Federal Rule of Civil Procedure 12(b)(6). The plaintiff also requests a copy of the transcript of another proceeding, as well as the appointment of counsel.
I. In deciding a motion to dismiss pursuant to Rule 12(b)(6), the allegations in the Complaint are accepted as true, and all reasonable inferences must be drawn in the plaintiff's favor. McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir. 2007). The Court's function on a motion to dismiss is "not to weigh the evidence that might be presented at a trial but merely to determine whether the complaint itself is legally sufficient." Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir. 1985). The Court should not dismiss the complaint if the plaintiff has stated "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (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, 129 S.Ct. 1937, 1949 (2009). While the Court should construe the factual allegations in the light most favorable to the plaintiff, "the tenet that a court must accept as true all of the allegations contained in the complaint is inapplicable to legal conclusions." Id.
When faced with a pro se complaint, the Court must "construe [the] complaint liberally and interpret it to raise the strongest arguments that it suggests." Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010) (brackets and internal quotation marks omitted). "Even in a pro se case, however, . . . threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (internal quotation marks omitted). Thus, although the Court is "obligated to draw the most favorable inferences" that the complaint supports, it "cannot invent factual allegations that [the plaintiff] has not pled." Id.; see also Benavides v. Grier, No. 09 Civ. 8600, 2011 WL 43521, at *1 (S.D.N.Y. Jan. 6, 2011).
II. The following allegations are assumed to be true for the purposes of this motion.
On September 23, 1999, following a jury trial, the plaintiff was convicted in the New York State Supreme Court, Bronx County, of murder in the second degree. He was sentenced to a term of twenty years to life imprisonment. On December 12, 2000, the Appellate Division, First Department, affirmed the plaintiff's conviction on appeal. People v. Mallet, 717 N.Y.S.2d 530 (App. Div. 2000). Leave to appeal to the New York Court of Appeals was denied. People v. Mallet, 750 N.E.2d 82 (N.Y. 2001). By motion to the Supreme Court, Bronx County, the plaintiff moved to vacate the judgment pursuant to New York Criminal Procedure Law § 440.10 based on the grounds of ineffective assistance of counsel. The court denied this motion, and leave to appeal to the Appellate Division denied.
The plaintiff sought relief in federal court by filing a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Judge Marrero denied the plaintiff's petition and rejected all of his claims. The plaintiff moved for reconsideration, and Judge Marrero denied that motion. The plaintiff moved a second time for reconsideration, this time on the basis on "newly obtained" evidence. Judge Marrero rejected this motion as repetitive of his previous motions, and the Second Circuit denied the plaintiff's subsequent motion for a certificate of appealability and dismissed his appeal. Mallet v. Miller, 432 F. Supp. 2d 366 (S.D.N.Y. 2006), recons. denied, 438 F. Supp. 2d 276 (S.D.N.Y. 2006), recons. denied, 442 F. Supp. 2d 156 (S.D.N.Y. 2006), appeal dismissed, No. 06-3255-pr (2d Cir. Dec. 26, 2006).
On August 17, 2006, the plaintiff returned to state court and submitted a second § 440.10 motion to vacate the judgment of conviction, this time on the basis of, among other things, allegedly newly-discovered evidence. (Aroubas Decl., Ex. B ("Second § 440.10 Order") at 3.) The plaintiff alleged that the ballistics detective who testified at trial was capable of performing microscopic analysis, and if the jury were given more information about the detective's ability to perform such analysis, it would have been evidence for the plaintiff. As relevant to this case, the Supreme Court denied the plaintiff's request on two grounds. First, it determined that the evidence of the detective's capabilities was available to the plaintiff before and during trial, which precluded a motion under § 440.10. Id. at 4. Second, it found plaintiff's argument that the evidence would have affected the outcome of the trial to be speculative at best. Id. at 4-5.
On March 5, 2008, the plaintiff returned to federal court and moved for an order vacating the denial of his habeas petition on the basis of newly-discovered evidence. Mallet v. Miller, 553 F. Supp. 2d 336 (S.D.N.Y. 2008). The plaintiff presented an article published in the New York Law Journal on September 15, 2005 that described a detective who used microscopic analysis to examine a bullet. Id. at 336. Judge Marrero rejected this motion on the grounds that the evidence was not "new," because it was published before the court's denial of the plaintiff's petition, and moreover, because the evidence "would not be sufficient to establish by clear and convincing evidence that no reasonable jury would have found [the plaintiff] guilty of the offense, given the substantial record otherwise supporting his conviction." Id. at 336-37.
On June 10, 2008, the plaintiff returned to state court and filed a third motion to vacate his judgment pursuant to CPL § 440.10, and a motion to release the fingerprints and ballistic evidence used in his case pursuant to CPL § 440.30(1-a). (Aroubas Decl., Ex. C ("Third § 440.10 Order") at 1.) The court denied the plaintiff's motion to vacate on all grounds. Id. at 7. The court also denied the plaintiff's request for access to evidence on the ground that the plaintiff had articulated this request in previous applications and had repeatedly failed to provide an exception for reviving the claim. Id. at 6-7.
Meanwhile, the plaintiff filed several Freedom of Information Law ("FOIL") requests to obtain evidence from his criminal investigation. On October 5, 2006, the plaintiff filed a FOIL request for the fingerprints and ballistic evidence collected at the crime scene. (Compl., Ex. D, ("FOIL Order") at 2.) On October 19, 2006, the plaintiff filed a FOIL request for the police reports and paperwork from the investigation. After receiving an insufficient response, the plaintiff appealed to the Records Access Appeals Officer ("RAAO"), who denied his appeal on May 11, 2007. After the appeal was denied, the plaintiff commenced an Article 78 proceeding. Id. at 3. On April 2, 2008, the Supreme Court denied a motion to dismiss the Article 78 petition. Id. at 9-10. On May 16, 2008, the Records Access Officer ("RAO") provided the plaintiff with photostatic copies of the fingerprint evidence. (Compl., Ex. H at 3.) The plaintiff was unable to retest these copies. (Compl. at 4.)
The RAO also certified that "police reports, photographs and audiotapes of all wiretaps and surveillance," which the plaintiff had requested, could not be located. (Compl., Ex. H at 3.)
On February 5, 2008, the plaintiff filed a FOIL request to obtain the personnel records of Detective Nieves, the lead detective in his criminal investigation. (Compl., Ex. K.) The request was denied pursuant to Public Officers Law §§ 87(2)(e) and (a), which exempts police officer personnel records from disclosure. (Compl., Ex. L.) The plaintiff appealed the decision, (Compl., Ex. M), and on April 25, 2008, the RAAO denied this appeal. (Compl., Ex. N.) The RAAO informed the plaintiff that he could seek judicial review of the decision by commencing an Article 78 proceeding within four months of the decision. Id. The plaintiff did not commence an Article 78 proceeding.
On October 5, 2009, the plaintiff filed this action pursuant to § 1983 alleging that he was wrongfully denied post-trial access to evidence. The plaintiff requests the following evidence: (1) the latent fingerprint lifts; (2) the seven Polaroid photos of the fingerprint lifts; (3) the fingerprint tape; (4) the white actual fingerprint cards; (5) the results from the fingerprints report; (6) the deformed lead bullet and fragments; (7) the crime scene color photographs of the ballistic evidence; (8) all ballistic work sheets; (9) audio and ...