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Scretching v. Schlosser

United States District Court, S.D. New York

May 6, 2014

TERRENCE SCRETCHING, Plaintiff
v.
DETECTIVE SCHLOSSER, et al, Defendants.

REPORT AND RECOMMENDATION

JAMES L. COTT, Magistrate Judge.

Pro se Plaintiff Terrence Scretching, currently incarcerated at Mid-State Correctional Facility, has brought this action under 42 U.S.C. § 1983 against Defendants, four officers of the New York City Police Department ("NYPD") and the City of New York, alleging false arrest, malicious prosecution, and excessive force in violation of his constitutional rights. Defendants have moved for judgment on the pleadings under Rule 12(c) of the Federal Rules of Civil Procedure, arguing that Scretching's claims are without merit because (1) he never challenged the validity of the conviction that resulted from the alleged false arrest and malicious prosecution, and (2) he fails to meet minimum pleading standards as to his excessive force claim. For the reasons set forth below, I recommend that Defendants' motion be granted but that Scretching be given permission to file an amended complaint.

I. BACKGROUND

A. Scretching's Allegations

Scretching initiated this action by using the Court's form complaint for pro se litigants raising civil rights claims under Section 1983. See Complaint dated October 23, 2012 ("Compl.") (Dkt. No. 2). The facts presented here are drawn from that form complaint. At 6:30 a.m. on August 23, 2012, "the warrant squad, " its members unspecified, came to Scretching's Bronx apartment "looking for an Hispanic person." Compl., at 5.[1] After Scretching and his wife produced identification and their apartment lease, the officers called the 43rd Precinct and then told Scretching that he was "wanted for questioning." Id. At the precinct, Defendants Schlosser and Pastor put Scretching in a lineup, after which Pastor showed Scretching a text message that Pastor was writing to Assistant District Attorney ("ADA") Marc Brown stating that Scretching had been "picked out." Id. According to the complaint, Brown was the prosecutor on "numerous" cases against Scretching, including one in which Scretching was "out on bail" and others that had been dismissed. Id.

The complaint further alleges that on "numerous occasions" over "a stretch of almost 3 years, " Schlosser and Pastor, as well as Defendants Garrity and Swanson, all identified as detectives working at the 43rd Precinct, violated his Fourth Amendment rights. Id. at 6. Three months prior to Scretching's August 23, 2012 arrest, Garrity and Swanson allegedly "picked [Scretching] up" three times and put him in lineups, released him when he was not identified, and "voided the action from the precinct computer which is illegal." Id. at 5. According to Scretching, the 43rd Precinct "has been under fire as of late for such practices and this precinct has an ongoing investigation by the Internal Affairs Department of the [NYPD]." Id. at 6.

Finally, Scretching alleges that he was beaten by the four individually named detectives, and that he has "scars on [his] back to prove it!!" Id., ¶ III. The complaint contains no other facts regarding an alleged beating. In compensation for his alleged injuries, including "constant harassment and mental anguish put upon" him and his family. Scretching seeks money damages and the termination of the four detectives' employment. Id., ¶ V.

B. Procedural History

Scretching filed his complaint on October 26, 2012 and was granted in forma pauperis ("IFP") status, allowing him to proceed without prepaying the filing fee. See Order dated Nov. 16, 2012 (Dkt. No. 3). In his complaint, Scretching initially named as Defendants the four detectives, the 43rd Precinct, the NYPD, then-New York City Mayor Michael Bloomberg, and ADA Brown. Compl., at 1-3. By order dated December 4, 2012, the Court dismissed the claims against the NYPD, which is an entity that cannot be sued, and instead substituted the City of New York as the appropriate defendant under Rule 21 of the Federal Rules of Civil Procedure, Order (Dkt. No. 8), at 2 (citing N.Y. City Charter ch. 17, § 396). The Court also dismissed all claims against Bloomberg because the complaint failed to state any facts as to his involvement in the alleged constitutional violations. Id. at 2-3 (citing Wright v. Smith , 21 F.3d 496, 501 (2d Cir. 1994)). Finally, claims against ADA Brown were dismissed based on prosecutorial immunity. Id. at 3 (citing Corneio v. Bell. 592 F.3d 121 , 127 (2d Cir. 2010)).

After the Court ordered Scretching to show cause for failing to serve Defendants, Order dated April 17, 2013 (Dkt. No. 9), service was effected by means of the U.S. Marshals Service on July 5, 2013. See Process Receipts (Dkt. Nos. 16-19).[2] Defendants answered on September 17, 2013 (Dkt. No. 22). On December 20, 2013, Defendants filed their motion for judgment on the pleadings (Dkt. No. 29), supported by a Memorandum of Law ("Def. Mem.") (Dkt. No. 31), and a Declaration by the Assistant Corporation Counsel representing Defendants ("Horton Decl.") (Dkt. No. 30).

The motion was subsequently referred to me for preparation of this Report and Recommendation by order dated December 29, 2013 (Dkt. No. 32). After Scretching failed to submit any opposition papers to the motion, I issued an order allowing him a further opportunity to do so by February 18, 2014 (Dkt. No. 33), To date, no opposition has been filed and consequently Defendants' motion will be considered unopposed.

II. DISCUSSION

A. Standard of Review

1. Motion for Judgment on the Pleadings and Pro Se Litigants

The standard for evaluating a motion for judgment on the pleadings under Rule 12(c) of the Federal Rules of Civil Procedure is the same as the standard for a motion to dismiss for failure to state a claim under Rule 12(b). See, e.g., Huyden v. Paterson, 594 F.3d 150, 160 (2d Cir, 2010) (citing Johnson v. Rowley, 569 F.3d 40, 43 (2d Cir. 2009))[3] The Court must accept all factual allegations in the complaint as true, and draw all reasonable inferences in the plaintiffs favor. Tellabs, Inv. v. ...


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