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Michel Toliver v. the City of New York

October 18, 2011

MICHEL TOLIVER, PLAINTIFF,
v.
THE CITY OF NEW YORK, ET AL., DEFENDANTS.
MICHEL TOLIVER, PLAINTIFF,
v.
THE CITY OF NEW YORK, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Honorable Paul A. Crotty, United States District Judge:

USDC SDNY DOCUMENT

DATE FILED: October 18, 2011

ORDER ADOPTING R&R

Prose petitioner Michel Toliver ("Toliver") brings these 42 U.S.C. § 1983 ("Section 1983") actions against the New York City Police Department ("NYPD"), the NYPD's 20th Precinct, the NYPD's Sex Offender Monitoring Unit ("SOMU"), and NYPD Detectives Ellen Seeliger Chang, Patrick Perri, Jose Olmo, Lisa-Marie Newkirk, James Donohue, Carlos Sanchez, George Foutoulakis, and multiple John/Jane Does (collectively, the "City Defendants"); the State of New York and the New York State Division of Criminal Justice Services (the "State Defendants"); and the New York County District Attorney's Office, along with Assistant District Attorneys Marcy Chelemow, Jennifer Lowry, Florence Chapin, Heather Buchanon, and Amy Belger (the "DA Defendants"). Toliver alleges that he was subject to false arrest and malicious prosecution on four separate occasion-in 1998, 2004, 2005, and 2009-arising out of his alleged failure to register as a sex offender in violation of the Sex Offender Registration Act, N.Y. Correct. Law § 168 et seq. ("SORA").

Each group of defendants moved to dismiss Toliver's complaints. Toliver made three requests to amend his complaints. On September 15, 2011, Magistrate Judge James C. Francis IV issued a Report and Recommendation ("R&R") recommending that the State Defendants and DA Defendants' motions to dismiss be granted in their entirety and that the City Defendants' motion to dismiss and Toliver's requests to amend each be granted in part and denied in part. Toliver and the City Defendants filed timely objections to the R&R.

The Court has reviewed the R&R and parties' objections. For the reasons that follow, the Court adopts Magistrate Judge Francis's Report and Recommendation in its entirety. The State Defendants and DA Defendants' motions to dismiss are GRANTED in their entirety, and the City Defendants' motion to dismiss and Toliver's requests to amend, are each GRANTED IN PART and DENIED IN PART.

BACKGROUND*fn1

I. Facts

Following an earlier conviction, Toliver initially appeared in the sex offender registry in 1995. On August 18, 1998, Toliver pled guilty in New York Criminal Court to charges of possessing burglar's tools in violation of New York Penal Law § 140.35 and failing to register as a sex offender in violation of N.Y. Correct. Law § 168-t. Toliver disputes the validity of this conviction for failure to register as a sex offender. In 2004 and 2005, Toliver was again arrested and charged with failure to register as a sex offender, but these charges were dismissed.

In June 2005, the Honorable Edward J. McLaughlin of New York Supreme Court determined that Toliver was a "Risk Level 3 (High)" sex offender, a designation that requires him to maintain his listing in the sex offender registry for the rest of his life.

In February or March, 2009, Detectives Sanchez and Olmo of the SOMU came to Toliver's apartment and arrested him for failure to register as a sex offender. Toliver alleges that during this arrest the detectives seized documents from his apartment that were later destroyed. Following this arrest, Toliver was indicted on four counts of failing to register as a sex offender in violation of N.Y. Correct. Law § 168-f. He was tried and convicted on all four counts. Toliver was sentenced to a combined term of twenty-eight months to seven years, which he is currently serving.

II. Procedural History

Toliver's first complaint, filed in 10 Civ. 3165 (the "3165 Complaint"), is dated February 21, 2009.*fn2 On September 7, 2010, Toliver filed a second complaint in 10 Civ. 6619 (the "6619 Complaint"). In these Complaints, Toliver alleges that he was subject to false arrest and malicious prosecution on four occasions in 1998, 2004, 2005, and 2009, in violation of Section 1983. Toliver has since filed three proposed amended complaints-one in 10 Civ. 3165 and two in 10 Civ. 6619; he seeks to add both charges and defendants.

On April 28, 2011, Toliver requested that his actions in 10 Civ. 3165 and 10 Civ. 6619 be consolidated. Magistrate Judge Dolinger granted Toliver's request and held that the defendants' motions to dismiss would be considered with respect to both of Toliver's Complaints. On July 28, 2011, both cases were transferred to Magistrate Judge Francis, who issued a report and recommendation on September 15, 2011.

III. Magistrate Judge Francis's R&R

Magistrate Judge Francis first considered the defendants' motions to dismiss and then considered Toliver's requests to amend his Complaints.

A. Defendants' Motions To Dismiss

1.Statute of Limitations

Section 1983 has a three-year limitation period. See Patterson v. County of Oneida, 375 F.3d 206, 225 (2d Cir. 2004).

Magistrate Judge Francis found that because Toliver dated his first complaint February 21, 2009, that only events occurring on or after February 21, 2006 can be used in support of his Section 1983 claims. (R&R 9.) He found that Toliver failed to allege any acts relating to his arrests or prosecutions in 1998, 2004, and 2005 that occurred within this period. (Id. 10.)

In an attempt to cure this defect, Toliver sought to consolidate his Complaints with an action he filed in this Court in December 2006. In the 2006 action, Toliver asserted similar claims against similar defendants arising out of his 2004 and 2005 arrests, but the action was dismissed on March 27, 2007 for failure to "comply with the requirements of the Prison Litigation Reform Act of 1995." It has remained closed since that date. Magistrate Judge Francis determined that Toliver could not consolidate his current claims with his earlier 2006 complaint. (Id. 11.) Accordingly, Magistrate Judge Francis recommended dismissal of Toliver's Section 1983 claims arising out of his arrests and prosecutions in 1998, 2004, and 2005. (Id.)

2.Improper Parties

Magistrate Judge Francis found that some of the parties named in Toliver's Complaints were not amenable to suit under Section 1983. (R&R 11-12.) Specifically, the NYPD, its 20th Precinct, the SOMU, the State of New York, the New York State Division of Criminal Justice Services, and the New York County District Attorney's Office are not amenable to suit under Section 1983. See Jenkins v. City of New York, 478 F.3d 76, 93 n.19 (2d Cir. 2007) (the NYPD cannot be sued under Section 1983);

Emerson v. City of New York, 740 F. Supp. 2d 385, 395-96 (NYPD Precincts cannot be sued under Section 1983); Caroselli v. Curci, 371 Fed. Appx. 199, 202 (2d Cir. 2010) (the State of New York cannot be sued under Section 1983); Abascal v. Bellamy, No. 10 Civ. 1406(LTS)(AJP), 2011 WL 2436931, at *2 (S.D.N.Y. June 8, 2011) (the Division of Criminal Justice Services cannot be sued under Section 1983); White v. Vance, No. 10 Civ. 6142(NRB), 2011 WL 2565476 , at *4 (S.D.N.Y. June 21, 2011) (the New York County District Attorney's Office cannot be sued under Section 1983).*fn3

Accordingly, Magistrate Judge Francis recommended that these parties be dismissed ...


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