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Darryl Sullivan v. the City of New York

August 29, 2011

DARRYL SULLIVAN, PLAINTIFF,
v.
THE CITY OF NEW YORK, POLICE OFFICER JEFFREY SCALF (SHIELD #28910), DETECTIVE NOBERTO TIRADO (SHIELD # 6650) AND "JOHN DOE" POLICE OFFICERS 1-10 DEFENDANTS.



The opinion of the court was delivered by: Naomi Reice Buchwald United States District Judge

MEMORANDUM AND ORDER

Plaintiff Darryl Sullivan ("Plaintiff" or "Sullivan"), now proceeding pro se, brings this action against Police Officer Jeffrey Scalf ("Scalf"), Detective Noberto Tirado ("Tirado"), John Does 1-10, and the City of New York ("City" and together with Tirado and Scalf, "defendants"), asserting claims for false arrest, malicious prosecution, municipal liability, excessive force, assault and battery, and intentional infliction of emotional distress.

Pending before the Court is defendants' motion to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(c). Specifically, defendants assert that: (1) plaintiff fails to state a claim with regard to any cause of action in the complaint; (2) plaintiff failed to comply with the New York General Municipal Law; and (3) defendants Scalf and Norberto are entitled to qualified immunity. For the reasons set forth below, the motion is granted and the complaint is dismissed in its entirety.

BACKGROUND*fn1

I. Factual Background

On March 9, 2008, plaintiff was arrested and accused of robbery, assault, grand larceny, menacing and possession of a deadly weapon in connection with an incident that occurred on or around February 10, 2008. Complaint ("Compl.") ¶¶ 13-15. The defendants interrogated the plaintiff and "obtained his statement and alibi." Id. at ¶¶ 17, 21. Plaintiff contends that "defendants were provided with exculpatory evidence" and knew or should have known that plaintiff was not guilty of the charges against him. Id. at ¶¶ 17-22.

On March 17, 2008, a grand jury indicted plaintiff on eleven counts. See Indictment in the Matter of People of the State of New York v. Darryl Sullivan, Silverberg Decl. Ex. F).*fn2

Plaintiff was thereafter incarcerated for approximately ten months, until all criminal charges against him were dismissed on February 11, 2009. (Id. at ¶¶ 20, 26.)

II. Procedural History

Plaintiff commenced this action, with the representation of counsel, on December 31, 2009. Plaintiff's counsel subsequently moved to withdraw his representation, and we granted his motion on June 1, 2010. Plaintiff has proceeded pro se since that time.

The parties appeared before this Court for a status conference on October 4, 2010. Thereafter, on December 23, 2010, defendants filed a motion to dismiss based on plaintiff's alleged failure to prosecute his claims. Plaintiff requested a 30 day extension of time to respond to defendants' motion, which was approved with the caveat that no further extensions would be granted. Nonetheless, after plaintiff failed to oppose defendants' motion by the February 11, 2011 deadline, and despite the earlier warning, this Court allowed "one final extension until March 11, 2011 to respond to defendants' motion to dismiss for failure to prosecute this case and failure to comply with the Court's orders." On March 11, 2011, plaintiff filed an opposition but did not address the merits of defendants' motion. Instead, plaintiff merely re-alleged the factual allegations contained in the complaint.

By letter dated March 25, 2011, defendants requested leave to file a motion to dismiss this case pursuant to Rule 12(c).

To avoid an unnecessary round of motion practice, the Court allowed plaintiff the opportunity to amend his complaint within fourteen days, and stated that, "having been afforded this opportunity, plaintiff should not anticipate being granted further opportunity to amend, should the court find that there is merit in some or all of defendants' arguments." Letter from the Court to plaintiff, dated March 30, ...


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