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Michael Marcus v. Frederick Bush

May 17, 2013

MICHAEL MARCUS, PLAINTIFF,
v.
FREDERICK BUSH, SUPERVISOR PAROLE OFFICER, IN HIS INDIVIDUAL CAPACITY, AND SPENCE, PAROLE OFFICER, IN HIS INDIVIDUAL CAPACITY, DEFENDANTS.



The opinion of the court was delivered by: Seybert, District Judge:

MEMORANDUM & ORDER

Presently pending before the Court is Defendants Supervisor Parole Officer Frederick Bush ("Bush") and Parole Officer Spence's ("Spence" and together, "Defendants") second motion to dismiss pro se Plaintiff Michael Marcus's ("Plaintiff") Complaint. For the following reasons, Defendants' motion is GRANTED.

BACKGROUND

I. Factual Background

The factual background of this case is set forth in more detail in the Court's Orders dated September 26, 2011 (the "September 2011 Order," Docket Entry 5) and August 10, 2012 (the "August 2012 Order," Docket Entry 16), with which the Court presumes familiarity. Briefly, Plaintiff alleges that during a scheduled visit to the New York State Division of Parole ("Parole Division") on August 18, 2009, Plaintiff met with Defendant Spence. (Compl. at 3.) Spence, however, was not Plaintiff's assigned parole officer as the assigned parole officer, Parole Officer Burns, was not available. (Compl. at 3.) Spence took Plaintiff to a cubicle, "pat frisk[ed]" him, and handcuffed him. (Compl. at 3.)

At approximately 7:00 p.m., Plaintiff was placed into a holding cell and handcuffed to a bench railing. (Compl. at 4.) Defendant Bush spoke with Plaintiff and informed him that detectives from the New York Police Department, 105th Precinct were on their way to speak with Plaintiff. (Compl. at 4.) Plaintiff asked to speak to an attorney, but Bush responded that the detectives would speak to Plaintiff and decide whether he could call counsel. (Compl. at 4.) Approximately one hour later, New York Police Department officers transported Plaintiff to the 105th Precinct and placed Plaintiff in a line-up that led to his arrest. (Compl. at 4.)

Plaintiff asserts civil rights claims under Section 1983 of Title 42 of the United States Code ("Section 1983"). He alleges (1) unreasonable search and seizure; (2) false arrest; and (3) an Eighth Amendment claim that he was subjected to cruel and unusual punishment when he was denied access to a telephone, food, and the bathroom at the Parole Division.

II. Procedural Background

Plaintiff initially commenced this action on August 2,

2011 against Defendants Bush and Spence as well as Parole Officer Burns and the Parole Division. Upon commencement of this action, Plaintiff simultaneously moved for leave to proceed in forma pauperis. (Docket Entry 2.)

In the September 2011 Order, the Court granted Plaintiff in forma pauperis status but sua sponte dismissed Plaintiff's claims against (1) the Parole Division, (2) the parole officers in their official capacities, and (3) Defendant Burns in his individual capacity. (September 2011 Order at 2.) The Court left intact Plaintiff's claims against Defendants Bush and Spence in their individual capacities.

Shortly thereafter, however, Defendants Bush and Spence moved under Federal Rule of Civil Procedure 12(b)(6) to dismiss Plaintiff's Complaint. (First Mot. to Dismiss, Docket Entry 11.) Notably, Bush and Spence did not address Plaintiff's unreasonable search or Eighth Amendment claims, and therefore the Court did not consider them. Rather, Bush and Spence argued that Plaintiff's Complaint was deficient under Federal Rules of Civil Procedure 8 and 10 and that Plaintiff's eventual conviction of the crimes for which he was arrested barred his false arrest claim.

In the August 2012 Order, the Court held that the Complaint met minimal pleading standards. Further, the Court denied Defendants' motion to dismiss Plaintiff's false arrest claim because Defendants had not supplied any evidence of Plaintiff's conviction. Thus, although a valid conviction for the crime for which a plaintiff is arrested is conclusive evidence of probable cause defeating a false arrest claim, Defendants had merely asserted conviction and did not adequately make out a defense. (August 2012 ...


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