United States District Court, N.D. New York
DAVID PARKER, Cape Vincent Correctional Facility, Cape Vincent, NY, Plaintiff pro se.
OFFICE OF CORPORATION COUNSEL CITY OF ROME, TIMOTHY A. BENEDICT, ESQ., GERARD F. FEENEY, II, ESQ., Rome, NY, Attorney for Defendants Robenski, Race, Yoxall, & Williams.
HON. RICHARD S. HARTUNIAN, CHARLES E. ROBERTS, ESQ., Ass't United States Attorney, United States Attorney for the Northern District of New York, Syracuse, NY, Attorney for Defendant Doyle.
KERNAN PROFESSIONAL GROUP LLP, DAVID A. BAGLEY, ESQ., Oriskany, NY, Attorneys for Defendant Oneida County.
MEMORANDUM-DECISION AND ORDER
DAVID N. HURD, District Judge.
On June 18, 2012, plaintiff David Parker ("Parker" or "plaintiff"), proceeding pro se, commenced this action alleging violations of his constitutional rights. Plaintiff's claims, brought pursuant to 42 U.S.C. § 1983 and state law, arise from a traffic stop while he was on probation, his ensuing detention, and a search of his home affecting his son. Plaintiff asserts his claims against defendants Investigator Fred Robenski, Detective Jeff Race, Investigator Yoxall, and Police Officer Williams all of the Rome Police Department; Federal Probation Officer Rebecca Doyle; and Oneida County (collectively "defendants").
Defendant Oneida County has filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) ("Rule ____"). Plaintiff opposed and Oneida County replied. Plaintiff also filed a sur-reply without permission which was not considered. The motion is fully briefed and was considered on its submissions without oral argument.
II. FACTUAL BACKGROUND
The following facts, taken from the complaint, are assumed true for purposes of the motion to dismiss. See Chambers v. Time Warner, Inc. , 282 F.3d 147, 152 (2d Cir. 2002).
On July 20, 2011, Parker was intentionally stopped by defendant Police Officer Williams of the Rome Police Department. Officer Williams approached plaintiff's vehicle and asked plaintiff if he knew why he was being pulled over to which plaintiff responded he did not know. Officer Williams responded that Parker's driver's license was suspended. Plaintiff advised that there must be a mistake; he then provided his license and informed Officer Williams that he was on federal probation. Officer Williams returned to his police vehicle with plaintiff's license. At that point, defendants Investigator Robenski and Detective Race approached plaintiff's vehicle with their guns out, despite Officer Williams advising that Parker's license was not suspended. Investigator Robenski and Detective Race ordered plaintiff to exit his vehicle and proceeded to search his person. Defendant Federal Probation Officer Doyle then asked Parker a series of questions regarding his probation and then drove his car away. Plaintiff was thereafter handcuffed and taken to the police station, where his vehicle was also driven. He was never advised why he was arrested despite making multiple inquiries.
Plaintiff was strip searched when he arrived at the police station. Throughout all of the searches, nothing illegal was found. He requested to make a telephone call to an attorney but his request was denied for six hours. He eventually called his fourteen year old son who informed him that the police came to their residence with guns drawn and searched the house and his personal property without presenting a warrant. Plaintiff's son was extremely afraid, humiliated, and experienced extreme anguish.
Parker contends that these acts were part of a conspiracy by defendants to maliciously and deliberately deprive him and his son of their constitutional rights. He asserts the following four causes of action: (1) violations of constitutional rights pursuant to 42 U.S.C. § 1983 based on unconstitutional policies and customs; (2) conspiracy to violate constitutional rights pursuant to 42 U.S.C. § 1983; (3) malicious abuse of process; and (4) negligence.
Defendant Oneida County argues the second amended complaint must be dismissed because it fails to state a claim ...