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Damon O. Jones v. Michael King

September 28, 2011


The opinion of the court was delivered by: P. Kevin Castel, District Judge:


Plaintiff Damon O. Jones, proceeding pro se, asserts claims arising out of his arrest and conviction for Endangering the Welfare of an Incompetent Person, NY Penal Law § 260.25. He seeks damages pursuant to 42 U.S.C. § 1983 and New York law and also alleges the existence of a conspiracy in violation of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. 1965(d). Plaintiff has moved for a default judgment against two of the defendants, and certain defendants have moved to dismiss the complaint. Plaintiff has not submitted papers opposing the motions to dismiss, and has not written the Court to request a further extension. As a result, I consider those motions unopposed.


Plaintiff is a former employee of the New York Developmental Disabilities Service office. He alleges that at 11:45 p.m. on April 11, 2008, his co-worker Michael Harrison accused him of sodomizing a mentally disabled resident of the facility. Mr. Harrison informed another co-worker, Shirlynn Thomas, who telephoned the police to report a rape. NYPD officers Michael King and Jason Kinella, among others, responded to the call and arrested the plaintiff.

Plaintiff alleges that, after his arrest, he was placed in a small room and two NYPD detectives and one officer beat, tased, and verbally harassed him, and attempted to coerce a confession from him. He claims that he was then processed through central booking, but was pulled out shortly before arraignment on the orders of Assistant District Attorney Jim Zaleta, who required him to make a videotaped confession before arraignment.

Plaintiff was arraigned, and later indicted by a Grand Jury on six counts: Criminal Sexual Act in the First Degree, New York Penal Law § 130.50(1); Criminal Sexual Act in the Second Degree, § 130.45(2); Sexual Abuse in the First Degree, § 130.65(1); Assault in the Second Degree, § 120.05(6); Endangering the Welfare of an Incompetent or Physically Disabled Person, § 260.25; and Sexual Abuse in the Second Degree, § 130.60(1). The trial court dismissed the charge of Assault in the Second Degree, and plaintiff went to trial on the remaining counts. He was convicted of Endangering the Welfare of an Incompetent or Physically Disabled Person, and sentenced to one year in jail, but was acquitted of the remaining charges.

Plaintiff filed a complaint against defendants Police Officer Michael King, Detectives David Pagan, Drew Howard, and Daniel Boggiano, Nurse Barbara Schnoor, Assistant District Attorney Jim Zaleta, Medical Examiner Amy Baldwin. Plaintiff asserts various state and federal claims stemming from his arrest and prosecution, and seeks a total of $25,900,063,787.00 in compensation. Plaintiff has filed a motion for default judgment against defendants Pagan and Boggiano. All defendants who were served with the summons and complaint have now moved to dismiss, asserting various defenses. The complaint also names Police Officer Jason Kinella, a "John Doe" police officer and Michael Harrison, a co-worker of plaintiff's, but none of these defendants have been served, nor have they joined in any of the motions to dismiss.


I. Legal Standard Rule 8(a)(2), Fed. R. Civ. P., requires "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)) (ellipsis in original). To survive a motion to dismiss under Rule 12(b)(6), a plaintiff must provide the grounds upon which the claims rest, through factual allegations sufficient to "raise a right to relief above the speculative level." ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007) (quoting Twombly, 550 U.S. at 555). "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, ___ U.S. ____, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). "The plausibility standard . . . asks for more than a sheer possibility that a defendant has acted unlawfully." Id. Legal conclusions and "[t]hreadbare recitals of the elements of a cause of action" do not suffice to state a claim, as "Rule 8 . . . does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions." Id. at 1949--50. The Supreme Court has described the motion to dismiss standard as encompassing a "two-pronged approach" that requires a court first to construe a complaint's allegations as true, while not bound to accept the veracity of a legal conclusion couched as a factual allegation. Id. Second, a court must then consider whether the complaint "states a plausible claim for relief," which is "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id.

Because plaintiff is proceeding pro se, the Court must "construe his complaint liberally and interpret it 'to raise the strongest arguments that [it] suggest[s].'" Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010) (quoting Harris v. City of N.Y., 607 F.3d 18, 24 (2d Cir. 2010)). "Even in a pro se case, however, although a court must accept as true all of the allegations contained in a complaint, that tenet is inapplicable to legal conclusions, and threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (internal quotations omitted).

II. Plaintiff's Motion for Default Judgment against David Pagan and Daniel Boggiano Plaintiff has moved for a default judgment against defendants David Pagan and Daniel Boggiano. The docket reflects that plaintiff served Pagan on December 12, 2010, and Boggiano on December 21, 2010. The United States Marshal's Service served both defendants with the summons and complaint by delivery of copies to each officer's place of work. The returns of service show that Boggiano's summons was delivered to Sergeant Boening, and Pagan's to Sergeant McInnis, at the officers' respective precincts.

Neither defendant responded to the complaint, and on March 9, 2011, Magistrate Judge Fox directed plaintiff to review the default judgment rules and make such application to the Court as he deems appropriate. (Docket No. 31.) The same day, both defendants submitted an Answer to the Amended Complaint. (Docket No. 32.) Plaintiff subsequently moved for entry of default judgment against both defendants. (Docket No. 38.) The defendants oppose this motion, arguing that plaintiff did not obtain a Clerk's Certificate of Default, as required by Local Rule 55.2(b), and that there is good cause to set aside any default.

Plaintiff cannot obtain a default judgment, because no default has been entered against the defendants. As the Second Circuit has explained:

Rule 55 of the Federal Rules of Civil Procedure provides a two-step process for obtaining a default judgment. The first step is to obtain a default. When a party against whom affirmative relief is sought has failed to plead or otherwise defend, a plaintiff may bring that fact to the court's attention, and Rule 55(a) empowers the clerk of the court to enter a default against a party that has not appeared or ...

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