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Smith v. City of New York

United States District Court, S.D. New York

November 20, 2013

MARK A. SMITH, Plaintiff,
v.
CITY OF NEW YORK, et al., Defendants

Order Filed: December 16, 2013

Page 115

Mark A. Smith, Plaintiff, Pro se, Brooklyn, NY.

For The City of New York, PO Leonardo Nimo, Shield #5772, Defendants: Daniel Louis Passeser, LEAD ATTORNEY, New York City Law Department, New York, NY.

For Corporation Counsel of the City of New York, Interested Party: Daniel Louis Passeser, LEAD ATTORNEY, New York City Law Department, New York, NY.

OPINION

Page 116

OPINION AND ORDER

LORNA G. SCHOFIELD, UNITED STATES DISTRICT JUDGE.

This case is now before the Court on Defendants' Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(6). For the following reasons, the Court grants Defendants' Motion, but gives Plaintiff leave to further amend his complaint.

BACKGROUND

On or about November 12, 2008,[1] New York City Police Officer Leonardo Nimo arrested Plaintiff Mark A. Smith in Manhattan for allegedly selling untaxed cigarettes. On November 13, 2008, Plaintiff was arraigned and released on his own recognizance. On July 16, 2009, the criminal case against Plaintiff was dismissed on speedy trial grounds.

On June 20, 2012, Plaintiff, proceeding pro se, commenced this § 1983 action for false arrest against Defendants City of New York and Officer Nimo, whom he named as John Doe at the time. On September 12, 2012, the Court authorized the Clerk of the Court to issue a summons as to Defendant City, and directed Plaintiff to serve it within 120 days of the issuance of the summons. In the same order, the Court ordered Defendant City to provide the identity and address of Defendant Doe to Plaintiff and the Court within 60 days, pursuant to Valentin v. Dinkins, 121 F.3d 72 (2d Cir. 1997). The City was served on September 17, 2012. On October 4, 2012, in response to a letter from the City informing the Court that it could not access records containing Defendant Doe's identity without Plaintiff's consent, the Court ordered Plaintiff to provide the City with properly executed releases.

On November 26, 2012, Plaintiff filed the First Amended Complaint in which he identified Defendant Doe as Officer Nimo. On December 19, 2012, the Court authorized the Clerk of the Court to issue an amended summons as to Defendant Nimo, and directed Plaintiff to serve him within

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120 days. The Court thereafter extended the deadline for service twice, ultimately to August 11, 2013. Defendant Nimo was served on July 16, 2013.

On July 30, 2013, Plaintiff filed the currently operative Second Amended Complaint, adding a claim of malicious prosecution to the previous false arrest claim. The Second Amended Complaint alleges:

On November 8, 2008, Police Officer Leonardo Nimo Shield #5772 arrested Plaintiff for an alleged violation of the Tax Code without proof that a Tax Code violation had been committed by Plaintiff. Thereafter the City of New York, through the District Attorneys [sic] Office, maliciously prosecuted Plaintiff, in an attempt to force a guilty plea for a crime Plaintiff did not committ [sic].

The Court assumes for purposes of this Motion that Plaintiff intended to assert both claims against both Defendants.

On September 20, 2013, Defendants filed this Motion to Dismiss, arguing that Plaintiff's claims are barred by the statute of limitations and that Plaintiff fails to allege sufficient facts. Plaintiff claims that Defendants violated his Fourth, Eighth and Fourteenth Amendment rights and seeks compensatory damages.

DISCUSSION

I. Standard of Review

On a motion to dismiss, this Court accepts as true all well-pleaded factual allegations and draws all reasonable inferences in favor of the non-moving party. See Famous Horse Inc. v. 5th Ave. Photo Inc., 624 F.3d 106, 108 (2d Cir. 2010). To withstand dismissal, a pleading " must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). " Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. While " 'detailed factual allegations'" are not necessary, the pleading must be supported by more than mere " 'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action.'" Id. (quoting Twombly, 550 U.S. at 555). " Nor does a complaint suffice if it tenders 'naked assertion[s]' devoid of 'further factual enhancement.'" Id. (alteration in original) (quoting Twombly, 550 U.S. at 557). Rule 8 of the Federal Rules of Civil Procedure " requires factual allegations that are sufficient to 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Anderson News, L.L.C. v. Am. Media, Inc., 680 F.3d 162, 182 (2d Cir. 2012) (alteration in original) (quoting Twombly, 550 U.S. at 555), cert. denied, 133 S.Ct. 846, 184 L.Ed.2d 655 (2013). Moreover, " where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged -- but it has not shown -- that the pleader is entitled to relief." Iqbal, 556 U.S. at 679 (internal quotation marks omitted); see also Fed.R.Civ.P. 8(a)(2).

In construing complaints by plaintiffs proceeding pro se, the Court " appl[ies] a more flexible standard to evaluate their sufficiency than [it] would when reviewing a complaint submitted by counsel." Lerman v. Bd. of Elections in City of N.Y., 232 F.3d 135, 139-40 (2d Cir. 2000); see Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (" [A] pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." ). Thus, the Court is obligated

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to construe pro se pleadings with " 'special solicitude,' interpreting the complaint to raise the 'strongest [claims] that [it] suggest[s].'" Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011) (alterations in original) (quoting Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474-75 (2d Cir. 2006)).[2]

II. Statute of Limitations

Defendants argue that the statute of limitations bars Plaintiff's false arrest claim as to both Defendants and the malicious prosecution claim as to Defendant Nimo. The Court finds the false arrest claim ...


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