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McCord v. City of New York

United States District Court, S.D. New York

June 6, 2014

ANTHONY McCORD, Plaintiff,
v.
THE CITY OF NEW YORK, et al., Defendants.

MEMORANDUM & ORDER

ALISON J. NATHAN, District Judge.

Before the Court is Defendant the City of New York's (the "City's") unopposed motion to dismiss prose Plaintiff Anthony McCord's complaint for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). Dkt. No. 15. For the reasons that follow, the City's motion is granted in part and denied in part.

I. Background

The following facts are taken from Plaintiff's complaint or judicially noticeable court documents. See Shmueli v. City of New York, 424 F.3d 231, 233 (2d Cir. 2005).

Plaintiff is currently incarcerated at Sing Sing Correctional Facility. In March 2010, two female witnesses informed New York City Police Department ("NYPD") Detective Patrick Angst that Plaintiff had entered their apartment, assaulted them, raped one of them, and stolen two laptop computers. Angst then swore out a criminal complaint against Plaintiff and arrested him following his identification by one of the witnesses. Def. Ex. B. Plaintiff was indicted by a Kings County grand jury, and on December 2, 2011, he was convicted of second-degree robbery, second-degree assault, first-degree burglary, and fourth-degree possession of stolen properly. He was sentenced to a prison term of twenty-one years to life. Def. Ex. F.

On September 27, 2012, a panel of New York's Appellate Division, Second Department, granted Plaintiff's application for leave to prosecute an appeal in the form of a poor person and assigned him appellate counsel. Def. Ex. G. His appeal remains pending.

In this action, brought under 42 U.S.C. § 1983, Plaintiff raises constitutional challenges to several aspects of his arrest and prosecution. His complaint, which was filed on March 25, 2013, names as Defendants the City, the NYPD, Angst, and Detective Gary Denezzo. Plaintiff claims that Angst and Denezzo entered and searched his dwelling and seized his property without a warrant. Compl. ¶¶ 2-4.[1] He also claims that they ignored his repeated requests to have counsel present during his post-arrest interrogation and coerced him to sign a Miranda waiver. Id. ¶¶ 6. He further alleges that Angst and Denezzo induced the two witnesses to falsely accuse and testify against him, tampered with or failed to collect evidence of their search and seizure of his dwelling, and struck him in the head "without cause or justification for the use of such force." Id. ¶¶ 7-11. Plaintiff seeks $10 million in compensatory damages and $3 million in punitive damages.

Plaintiff's case was initially assigned to Judge Ramos, who granted Plaintiff leave to proceed in forma pauperis and dismissed his claims against the NYPD because the NYPD is not a suable entity. Dkt. Nos. 4, 7. Plaintiff submitted forms requesting that service on the remaining Defendants be effectuated by the U.S. Marshals; the ECF docket sheet indicates that the Marshals were able to successfully serve the City, but not Angst and Denezzo. Dkt. Nos. 9-11; see also Def. Br. at 1 n.1 (indicating that "[o]n information and belief, as of the date of this Motion, Detectives Angst and Denezzo have not yet been served"). The case was reassigned to the undersigned on August 6, 2013.

The City moved to dismiss on October 1, 2013, and the Court directed Plaintiff to either oppose the motion or amend his complaint by October 28, 2013. Dkt. No. 18. After that deadline passed without any submissions from Plaintiff, the Court gave him a final chance to amend or oppose by December 16, 2013. Dkt. No. 19. Plaintiff again failed to submit an opposition brief or amended complaint, and the Court deemed the City's motion fully submitted by order dated January 6, 2014. Dkt. No. 21.

II. Legal Standard

Although Plaintiff has not opposed the City's motion, that failure alone is not grounds for dismissal; "the sufficiency of a complaint is a matter of law that the court is capable of detennining based on its own reading of the pleading and knowledge of the law." McCall v. Pataki, 232 F.3d 321, 322-23 (2d Cir. 2000). The Court must therefore evaluate Plaintiff's complaint and determine whether it survives the City's motion. Because Plaintiff is proceeding prose, his submissions "must be construed liberally and interpreted to raise the strongest arguments that they suggest.'" Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (emphasis omitted) (quoting Pabon v. Wright, 459 F.3d 241, 248 (2d Cir. 2006)).

"To survive a motion to dismiss, a complaint 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 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). While well-pleaded factual allegations must be accepted as true, "a plaintiff's obligation to provide the grounds' of his entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555 (alteration in original) (quoting Fed.R.Civ.P. 8(a)(2)). Therefore, in assessing whether a pleading states a plausible claim to relief, courts disregard legal conclusions and "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements." Iqbal, 556 U.S. at 678.

III. Discussion

Construed broadly in Plaintiff's favor, the Complaint contains four claims. The first is an unlawful search and seizure claim: Plaintiff alleges that Defendants entered his home, searched it, and seized his property, all without a warrant. The second is a Miranda claim: Plaintiff alleges that Defendants coerced him into making incriminating post-arrest statements without an attorney present. The third claim alleges that Defendants tampered with crime-scene evidence and coerced the two witnesses to testify against him. ...


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