United States District Court, W.D. New York
DECISION AND ORDER
RICHARD J. ARCARA, District Judge.
This civil rights action alleges Defendant Ben Campbell abused his authority as a New York State Trooper. The action is before the Court on objections filed by Plaintiff Joanne Smith and Plaintiff Edward Lilly to a Report and Recommendation of Magistrate Judge Leslie G. Foschio, Dkt. No. 44, recommending pursuant to 28 U.S.C. § 636(b)(1)(B) that the Court partially grant Defendant Campbell's motion to dismiss Plaintiffs' Amended Complaint.
For the reasons that follow, the Report and Recommendation is adopted as modified. Plaintiff Smith's allegations of First Amendment violations are dismissed because they are untimely. Plaintiff Lilly's allegations of unlawful detention under the Fourth Amendment are dismissed for failure to state a claim, with leave to replead. Plaintiffs' intentional infliction of emotional distress claims are also dismissed as untimely.
The Court assumes the parties' familiarity with the facts and the prior proceedings. The factual allegations of the Amended Complaint, Dkt. No. 31, briefly summarized here, are presumed to be true, and do not constitute findings of the Court. See, Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002).
On November 22, 2007, Defendant Campbell was driving his personal vehicle when Plaintiff Smith allegedly failed to yield the right of way to him at a stop sign. Amend. Compl. ¶¶ 13, 29. Defendant Campbell followed Plaintiff Smith to her destination and questioned her about her condition and her driving. Id. ¶¶ 22-41. After an argument, Plaintiff's son, Tom Smith, took out his cell phone and threatened to call a New York State Trooper supervisor to complain about Defendant Campbell's treatment of his mother. Id. ¶ 42. Defendant Campbell left without issuing a traffic ticket. Id. ¶ 45.
Four days later, Plaintiff Smith visited the local New York State Trooper barracks and complained about Defendant Campbell's behavior. Amend. Compl. ¶ 42. A few hours later, Defendant Campbell personally delivered to Plaintiff Smith three traffic tickets based on the earlier events. Id. ¶ 47. Plaintiff Smith was found guilty on all three tickets. Id. ¶¶ 52. However, two of the tickets were later reversed. Id. ¶ 55.
On July 12, 2008, Defendant Campbell and another officer went to Plaintiff Smith's house looking for Tom Smith. Amend. Compl. ¶ 75. Plaintiff Smith's sonin-law, Plaintiff Lilly, arrived a short time later, but was told to leave. Id. ¶ 77. Plaintiff Lilly did not leave, and argued that he had a right to visit his family. Id. ¶ 78. Defendant Campbell and the other officer surrounded Plaintiff Lilly, while also directing him to leave and threatening to arrest him. Id. ¶ 55. Plaintiff Lilly left some time later. Id. ¶ 82.
Plaintiffs first filed suit on June 24, 2011. Dkt. No. 1. On October 3, 2012, the Court dismissed their complaint with leave to amend. Dkt. No. 30, p. 18. On November 5, 2012, Plaintiffs filed the Amended Complaint asserting: (1) "deprivation of rights under 42 U.S.C. § 1983, " (2) "deprivation of rights under the Fourth Amendment, " and (3) "intentional infliction of emotional distress." Dkt. No. 31, pp. 17-18.
The action was referred to Magistrate Judge Foschio for pretrial proceedings. Dkt. No. 33. Defendant Campbell moved to dismiss the Amended Complaint for failure to state a claim and lack of subject matter jurisdiction. Dkt. No. 37. In ruling on the motions to dismiss, the Magistrate Judge construed the Amended Complaint as alleging four distinct claims. Dkt. No. 44. The Magistrate Judge construed Plaintiffs' first claim, "deprivation of rights under 42 U.S.C. § 1983, " as alleging: (1) "retaliatory prosecution based on Defendant's issuance of the traffic ticket to Smith, " and (2) "a claim for interference with Lilly's right to peaceable assembly based on Defendant's direction to Lilly to leave the premises." Dkt. No. 44, at 18.
Magistrate Judge Foschio construed the Plaintiffs' second claim, deprivation of rights under the Fourth Amendment, " as a Fourth Amendment unlawful seizure claim stemming from the incident where Defendant Campbell and another officer surrounded Plaintiff Lilly and threatened to arrest him. He construed it as if it were alleged under § 1983, and not directly under the Fourth Amendment.
The Magistrate Judge accepted plaintiffs' characterization of their last claim, a state-law claim for intentional infliction of emotional distress. Dkt. No. 44, at 29. The Magistrate Judge recommended granting Defendant Campbell's motion to dismiss the intentional infliction of emotional distress claim. Dkt. No. 44, at 32. He recommended denying the motion to dismiss the retaliatory prosecution and unlawful seizure claims. Dkt. No. 44, p. 32.
STANDARD OF REVIEW
The Court reviews de novo the portions of a magistrate judge's report and recommendation that have been objected to. 28 U.S.C. 636(b)(1)(B). The Court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. 636(b)(1)(B). The Court need not "review the factual findings or legal conclusions of the magistrate judge as to which no proper objections are interposed, " Armstrong Pump, Inc. v. ...