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Tyrone Maye v. State of New York et al

September 29, 2011

TYRONE MAYE, PLAINTIFF,
v.
STATE OF NEW YORK ET AL., DEFENDANTS.



The opinion of the court was delivered by: Gary L. Sharpe District Court Judge

MEMORANDUM-DECISION AND ORDER

I. Introduction

Plaintiff pro se Tyrone Maye commenced this action against the defendants,*fn1 asserting claims pursuant to 42 U.S.C. § 1983 and New York law for violations of his civil rights. Pending are Maye's motion to clarify portions of the 50-h hearing transcript, motion for reconsideration, and motion to deny relief sought; and defendants' evidentiary and dispositive motions. (Dkt. Nos. 5, 24, 28, 30, 59, 66, 73, 74.) For the reasons that follow, Maye's motions are denied, and defendants' motions to dismiss are granted.*fn2

II. Background*fn3

On August 11, 2005 plaintiff pro se Tyrone Maye was the passenger in a vehicle during a traffic stop in Glens Falls, New York. (Am. Compl. ¶ 7, Dkt. No. 9.) Maye was approached by Detectives Frettoloso and Conine, questioned, and then "forcibly removed" from the car. (Id. ¶¶ 8-9.) Conine handcuffed Maye, and proceeded to search him in broad daylight. (Id. ¶¶ 11-12.) Although the search uncovered only money, Maye was placed in the back of a patrol car driven by P.O. Habshi and transported to the police station. (Id. ¶ 13.) When he arrived at the station, Maye was taken to an interrogation room and "ankle cuffed" to the wall. (Id.)

Conine entered the interrogation room and directed Maye to stand up; as Maye did so, his jeans slid down. (Id. ¶ 15.) Maye attempted to pull his jeans back up, but Conine "rushed [him] into the wall" and prevented him from raising his jeans. (Id.) With Maye pressed up against the wall, Frettoloso conducted a manual body cavity search which uncovered a "single baggie" in Maye's rectum. (Id. ¶ 16.)

Following the search, Maye was arraigned and remanded to the custody of C.O. Stockdale for transfer to the Warren County Jail. (Id. ¶¶ 17-18.) Maye arrived at the jail in the afternoon of August 11, 2005, and was immediately taken to the booking area and searched again. (Id.) C.O. Harpp conducted a strip search which uncovered seven packets of heroin in Maye's right sock. (Id. ¶ 19.) The heroin was handed over to Investigator Lail, who re-finger printed and photographed Maye. (Id. ¶ 20.) When Lail was finished, Harpp processed Maye and took him to the reception dorm. (Id. ¶ 21.) On September 9, 2005, C.O. Alison transported Maye to the Queensbury Town Court for arraignment on the additional heroin possession charges. (Id. ¶ 22.)

Maye's allegations against the remaining defendants arose out of his subsequent criminal prosecution. In sum, Maye alleges that as a result of the inadequate representation by public defender John P.M. Wappett, false testimony by Frettoloso, and various ethical violations by members of the District Attorney's Office, he was convicted of the drug offenses and sentenced to nine and one half years in prison. (Id. ¶¶ 23, 26-35.)

Although Maye's conviction was originally affirmed by the Third Department of the New York State Supreme Court Appellate Division, the New York Court of Appeals reversed the Appellate Division, finding the evidence was unlawfully seized.*fn4 (Id. ¶ 36.) On February 25, 2009, the indictment against Maye was dismissed. (Id. ¶ 37.)

III. Standard of Review

The standard of review under Fed. R. Civ. P. 12 is well established and will not be repeated here.*fn5 For a full discussion of the standard, the court refers the parties to its decision in Ellis v. Cohen & Slamowitz, LLP, 701 F. Supp. 2d 215, 218 (N.D.N.Y. 2010).

IV. Discussion

As a preliminary matter, there are several pending procedural motions filed by Maye which need to be resolved. Thus, before discussing the dispositive motions, the court will address Maye's motion to clarify portions of the 50-h hearing transcript, motion for reconsideration, and motion to deny relief sought. (See Dkt. Nos. 5, 59, 73.)

A. Miscellaneous Motions

First, Maye seeks permission to provide clarification to portions of his testimony from his Rule 50-h hearing in July 2006. (See Dkt. No. 5.) After reviewing Maye's submission, the court is unpersuaded that a clarification is germane. Thus, Maye's motion to clarify is denied.

Next, Maye filed a motion for reconsideration of the court's order denying his request to file a surreply to defendants' motion to dismiss. (See Dkt. Nos. 52, 55, 59.) Although not explicitly stated in the court's previous order, "a surreply is not permitted" to a dispositive motion under Northern District of New York Local Rule 7.1(b). Because Maye has not satisfied ...


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