The opinion of the court was delivered by: Thomas J. McAVOY Senior United States District Judge
Plaintiff Tyrone N. Murphy commenced this action pro se asserting claims pursuant to 42 U.S.C. § 1983 sounding in false arrest in violation of the search and seizure provisions of the Fourth Amendment; a violation of the Equal Protection Clause of the Fourteenth Amendment; and a violation of the Due Process Clause of the Fourteenth Amendment. Presently before the Court is Defendants' motion pursuant to Fed. R. Civ. P. 12(b)(6) seeking dismissal of the complaint. Dkt. # 7. Plaintiff has not filed any papers in opposition to the motion, and the parties have been advised that the motion will be decided on the basis of the submissions. See 7/6/11 Text Notice.
The following facts are taken from Plaintiff's Complaint and, for purposes of the instant motion, are deemed to be true.
On August 30, 2010, Plaintiff was at his brother-in-law's property, located at 275 4th Street, Troy, New York, assisting a contracted electrician with cleaning and repairs. Plaintiff was working in the basement when the outside generator shut off. When Plaintiff and the electrician went upstairs to see what happened, they heard voices and asked who was there. Defendants Bartos and Johnson identified themselves as Troy City Police Officers and questioned what Plaintiff was doing on the property. Plaintiff told Defendants he was there to assist with some repairs on the property with the permission of the owner, his brother-in-law. Bertos told Plaintiff and the electrician that they were not allowed on the premises after four o'clock p.m. per orders from the Troy City Code Enforcement Officer. Plaintiff questioned the accuracy of this statement, and stated that he believed the owner of the property was not aware of the restriction. After further debate as to whether the Code Enforcement Officer had notified the owner of the property of the restriction, Plaintiff was placed under arrest for trespassing. Plaintiff asserts Bertos and Johnson placed a radio-call transmission to Defendant Officer Anderson, the supervising officer on duty, who authorized the arrest. Plaintiff was searched, handcuffed, placed in Johnson's patrol car and taken to the Troy Police Bureau. Plaintiff was eventually released on his own recognizance to appear in Troy City Police Court on August 31, 2010. At his appearance, the charge was dismissed in the interest of justice.
"Federal Rule of Civil Procedure 8(a)(2) requires only 'a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of what the. . . claim is and the grounds upon which it rests.' " Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations. . . a plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. at 1964--65. "Factual allegations must be enough to raise a right to relief above the speculative level. . . on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Id. at 1965. "'[T]he pleading must contain something more. . . than. . . a statement of facts that merely creates a suspicion [of] a legally cognizable right of action.' " Id. at 1965 (quoting 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235--236 (3d ed.2004)). "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) (quoting Twombly, 550 U.S. at 570). A complaint does not suffice "if it tenders naked assertions devoid of further factual enhancement." Ashcroft, 129 S.Ct. at 1949. Legal conclusions must be supported by factual allegations. Id. at 1950. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. at 1949. "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. "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. (quoting Twombly, 550 U.S. 557) (internal quotations omitted).
In reviewing the allegations in a complaint drafted by a pro se litigant, the Court construes the pleading liberally. See e.g.Boddie v. Schnieder, 105 F.3d 857, 860 (2d Cir. 1997).
Plaintiff contends that his arrest constitutes a violation of his right to due process. "While this contention may be legally correct, the remedy for such a violation is under the Fourth Amendment; not under generalized notions of due process." Devarnne v. City of Schenectay, No. 10-1037, 2011 WL 219722 (N.D.N.Y. Jan. 21, 2011) (citing Graham v. Connor, 490 U.S. 386, 395, (1989); Quinn v. City of Long Beach, No. 08-2736, 2010 WL 3893620, at *5 (E.D.N.Y. Sept. 15, 2010)). Accordingly, the due process claim is dismissed as duplicative of the Fourth Amendment false arrest claim.
Plaintiff also contends that his arrest constitutes a violation of his right to equal protection. To succeed on an equal protection claim, Plaintiff must "establish that (1) he was treated differently than others similarly situated, and (2) this differential treatment was motivated by an intent to discriminate on the basis of race, to punish or inhibit the exercise of constitutional rights, or by a malicious or bad faith intent to injure the person. Savatxath v. Stoeckel, No. 10-1089, 2011 WL 1790159 (N.D.N.Y. May 10, 2011) (citing Diesel v. Town of Lewisboro, 232 F.3d 92, 103 (2d Cir. 2000); Lovell v. Comsewogue Sch. Dist., 214 F. Supp. 2d 319, 321-11 (E.D.N.Y. 2003)). The Complaint fails to allege that Defendants treated Plaintiff differently than any similarly situated individuals. Moreover, and assuming arguendo that such an allegation could be implied, Plaintiff has failed to allege what race he is, or any facts that plausibly suggest that Defendants' actions were motivated by an ...