UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK
January 7, 2013
CARLOS PETERSON, PLAINTIFF,
THE COUNTY OF ONONDAGA, DEFENDANT.
The opinion of the court was delivered by: Andrew T. Baxter, United States Magistrate Judge
ORDER and REPORT-RECOMMENDATION
The Clerk has sent to the court a civil rights complaint, together with an application to proceed in forma pauperis ("IFP"), filed by pro se plaintiff Carlos Peterson. (Dkt. Nos. 1, 3). Plaintiff, who is currently incarcerated at the Clinton Correctional Facility, has not paid the filing fee for this action.
I. IFP Application
A review of plaintiff's IFP application shows that he declares he is unable to pay the filing fee. (Dkt. No. 2). This court agrees, and finds that plaintiff is financially eligible for IFP status.
In addition to determining whether plaintiff meets the financial criteria to proceed IFP, the court must also consider the sufficiency of the allegations set forth in the complaint in light of 28 U.S.C. § 1915, which provides that the court shall dismiss the case at any time if the court determines that the action is (i) frivolous or malicious;
(ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B)(i) -(iii).
In determining whether an action is frivolous, the court must consider whether the complaint lacks an arguable basis in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). Dismissal of frivolous actions is appropriate to prevent abuses of court process as well as to discourage the waste of judicial resources. Neitzke, 490 U.S. at 327; Harkins v. Eldridge, 505 F.2d 802, 804 (8th Cir. 1974). Although the court has a duty to show liberality toward pro se litigants, and must use extreme caution in ordering sua sponte dismissal of a pro se complaint before the adverse party has been served and has had an opportunity to respond, the court still has a responsibility to determine that a claim is not frivolous before permitting a plaintiff to proceed. Fitzgerald v. First East Seventh St. Tenants Corp., 221 F.3d 362, 363 (2d Cir. 2000) (finding that a district court may dismiss a frivolous complaint sua sponte even when plaintiff has paid the filing fee).
To survive dismissal for failure to state a claim, the complaint must contain sufficient factual matter, accepted as true, to state a claim that is "plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (citing Bell Atl. Corp., 550 U.S. at 555). The court will now turn to a consideration of the plaintiff's complaint under the above standards.
In the complaint, plaintiff states that he is challenging "fraud imprisonment" and "fake child abuse." (Complaint ("Compl.") ¶ 7; Causes of Action). Plaintiff states that he was "wrongfully convicted," that he was the victim, and that "the truth . . . relies on all evidence for my defense . . . ." (Compl. at CM/ECF p.4).*fn1 Plaintiff states that the "County" charged him with child abuse, and he lost his job because of the "damage done to my name." (Id.) Plaintiff states that the County then just "dropped the charges." However, plaintiff also states that he is "still waiting to be overturned in the false conviction criminal case," but in the meantime he is bringing the "Truth" to the court's attention. (Id.) Plaintiff then states that he is demanding three million dollars and fifteen cents.
Attached as an exhibit to plaintiff's complaint is a form, signed by an assistant district attorney which indicates that misdemeanor charges of endangering the welfare of a child were dismissed because plaintiff was serving a ten year term on unrelated charges. (Compl. at CM/ECF p.5). Finally, plaintiff has attached two other documents to the complaint. The first is a type-written statement of facts,*fn2 including references to medical records and other court documents. (Compl. CM/ECF p.6). The second document is clearly a page from another Northern District of New York complaint, filed by this plaintiff in 2009.*fn3 (Compl. CM/ECF p.7). This page lists six police officers as defendants, and states that they "Committed Physical Brutality in Violation of Corrections Law 70.51.5." (Id.)
Plaintiff states that his causes of action are "fraud imprisonment" and "fake child abuse," and although the court interpreted his complaint as naming only Onondaga County as a defendant, the caption of the complaint lists "The County of Onondaga Syracuse N.Y. Defendant(s)." (Compl. at CM/ECF p.1).
Although it is unclear, plaintiff does not appear to be challenging the alleged excessive force used during his arrest. In fact, plaintiff has another pending case in the Northern District of New York in which he challenges the force used by the officers as excessive. Peterson v. Syracuse Police Dep't, No. 1:09-CV-00106 (LEK/RFT). Plaintiff also does not appear to be challenging the charge for which he is currently incarcerated. He states that he is "still waiting to be overturned [sic] in the false conviction criminal case."*fn4 (Compl. at CM/ECF p. 4).
Reading plaintiff's complaint as liberally as possible,*fn5
plaintiff appears to be claiming that the "child abuse"
charges that were dismissed by the "County" were false or "fake," and
he may be attempting to allege false arrest and/or malicious
prosecution relating to those charges.
A. Municipal Liability
Plaintiff names Onondaga County as the only defendant in this action. He also claims that the "County" dismissed the charges against him and submits an order of dismissal signed by an assistant district attorney.
1. Legal Standard
In Monell v. Dep't of Soc. Servs., 436 U.S. 658 (1978), the Supreme Court outlined the limited circumstances under which a municipality may be liable under Section 1983. Only when the municipality, through the execution of its policies, actually deprives an individual of his constitutional rights, is it liable for the injury.
Id. at 694. To establish municipal liability, the policy must actually cause the violation of constitutional rights, and it must be the moving force behind the violation. Id.; Dominguez v. Beame, 603 F.2d 337, 341 (2d Cir. 1979). The plaintiff must allege facts demonstrating
(1) the existence of an officially adopted policy, custom, or practice and (2) a direct and deliberate causal connection between that 'policy, custom, or practice' and the violation of plaintiff's federally protected rights.
Best v. City of New York, No. 11 Civ. 4475, 2012 WL 5458054, at *3 (S.D.N.Y. Nov. 2, 2012) (quoting Bd. of Cnty. Comm'rs of Bryan Cnty. v. Brown, 520 U.S. 397, 403-404 (1997)). A single incident involving an employee below the policy making level will generally not suffice to support the inference of a municipal policy. Id. (citing Davis v. Cnty. of Nassau, 355 F. Supp. 2d 668, 678 (S.D.N.Y. 2005).
There is absolutely no specific allegation by plaintiff, nor does any liberal reading of the complaint show, that a "policy or custom" of Onondaga County caused plaintiff any constitutional violation. Plaintiff states only the County "just dropped" the child neglect charges that he was "willing to take to trial." (Compl. at CM/ECF .4).
These facts do not come close to stating a claim against Onondaga County. There are no allegations of wrong doing and no allegations of any policy or custom. Thus, the case must be dismissed as against the only defendant. Even if plaintiff had named an appropriate defendant, this court would still recommend dismissal of this action.
B. Malicious Prosecution
1. Legal Standard
To state a claim under section 1983 for malicious prosecution, the plaintiff must establish the elements of a malicious prosecution claim under New York State law. Manganiello v. City of New York, 612 F.3d 149, 160-61 (2d Cir. 2010). To state a malicious prosecution claim under New York law, the plaintiff must allege that the defendant initiated or continued a criminal proceeding against him, without probable cause, out of malice, and that the criminal proceeding terminated in the plaintiff's favor. Swartz v. Insogna, No. 11-2846, __ F.3d __, 2013 WL 28364, at *5 (2d Cir. Jan. 3, 2013); Boyd v. City of New York, 336 F.3d 72, 76 (2d Cir. 2003). In Swartz, the Second Circuit stated that to be actionable under section 1983, there must also be a "post-arraignment seizure." Id. (citation omitted).
A "favorable termination" in accordance with state law is essential for purposes of a malicious prosecution claim. Russell v. Smith, 68 F.2d 33, 36 (2d Cir. 1995) (citing inter alia Hollender v. Trump Village Cooperative, Inc., 58 N.Y.2d 420 (1983)). The termination of the proceedings must be "indicative of innocence." Id. (citing Singleton v. City of New York, 632 F.2d 185, 193 (2d Cir. 1980)).
In this case, plaintiff has submitted the order of dismissal, signed
in October 2008 by an Assistant District Attorney of Onondaga County.
(Compl. at CM/ECF p.5). In the complaint, plaintiff alleges that the County "just
dropped the charges . . . simply because I didn't do know [sic] wrong
in none [sic] of the matters." (Compl. at CM/ECF p.4). Although the
order is difficult to read, it is clear that the only reason that the
child neglect charge*fn6 was dismissed was because
plaintiff was "serving a 10 year prison sentence on unrelated
charges," not because plaintiff was innocent of the charges. (Id.)
Plaintiff cannot establish favorable termination of the proceeding for
purposes of malicious prosecution. Thus, the complaint would be
subject to dismissal
for failure to state a claim of malicious prosecution*fn7
even if plaintiff had named a proper defendant or proper
C. False Imprisonment/False Arrest
1. Legal Standard
Under New York law, false imprisonment and false arrest are synonymous. Del Col v. Rice, No. 11-CV-5138, 2012 WL 6589839, at *10 n.13 (E.D.N.Y. Dec. 18, 2012) (citing Hickey v. City of New York, No. 01-CV-6506, 2004 WL 2724079, at *6 (E.D.N.Y. Nov. 29, 2004), aff'd 173 F. App'x 893 (2d Cir. 2006)). In order to state a claim for false imprisonment, plaintiff must allege that the defendant intended to confine the plaintiff; plaintiff was conscious of the confinement; plaintiff did not consent to the confinement; and the confinement was not otherwise privileged. Id. (quoting Savino v. City of New York, 331 F.3d 63, 75 (2d Cir. 2003)).
In this case, plaintiff states that he was arrested and charged with "many charges." (Compl. CM/ECF p.4). It is unclear whether he was "arrested" for the allegedly "fake child abuse" charges at the same time that he was arrested for the charges for which he is currently incarcerated. In any event, as stated above, the neglect charges were dismissed only because plaintiff was serving a ten year sentence on other charges. Thus, in addition to naming the incorrect defendant, he cannot show that the confinement "was not otherwise privileged." Any claims of false arrest or false imprisonment may be dismissed.
WHEREFORE, based on the findings above, it is
ORDERED, that plaintiff's motion for IFP status (Dkt. No. 3) is GRANTED only for purposes of filing this action, and it is
RECOMMENDED, that the complaint be DISMISSED WITHOUT PREJUDICE for FAILURE TO STATE A CLAIM pursuant to 28 U.S.C. § 1915 (e)(2)(B)(ii).
Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the parties have fourteen (14) days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993)(citing Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(e), 72.