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Klein v. Zugabie

United States District Court, S.D. New York

January 24, 2017

SHMUEL KLEIN, Plaintiff,
v.
THOMAS P. ZUGABIE, in his official capacity as ROCKLAND COUNTY DISTRICT ATTORNEY, UNITED PARCEL SERVICE, INC., DAVID P. ABNEY, RICHARD SMITH, GEORGE KELLIN, D. SCOTT DAVIS, DEMEZA DELHOMME, in his official capacity as Mayor of the Village of Spring Valley, PAUL MODICA, in his official capacity as a Police Chief for the Village of Spring Valley Police Department, Police Officer JOHN BELTEMPO, individually and in his official capacity as a Police Officer for the Village of Spring Valley Police Department, and Police Officer LOUIS SCORZIELLO, individually and in his official capacity as a Police Officer of the Village of Spring Valley Police Department, JOHN DOE, and JANE ROE, and XYZ, Defendants.

          OPINION & ORDER

          NELSON S. ROMAN, UNITED STATES DISTRICT JUDGE

         Plaintiff Shmuel Klein, proceeding/vo se, initiated this fee-paid action pursuant to 42 U.S.C. § 1983, the New York State Constitution, and New York common law against Rockland County District Attorney Thomas P. Zugabie ("District Attorney Zugabie"); Mayor Demeza Delhomme of the Village of Spring Valley ("Mayor Delhomme"), Police Chief Paul Modica of the Village of Spring Valley Police Department ("Chief Modica"), Spring Valley Police Department Officers John Beltempo ("Officer Beltempo") and Louis Scorziello ("Officer Scorziello”) (the “Spring Valley Defendants, ” collectively); the United Parcel Service, Inc. (“UPS”), and UPS current and former employees David P. Abney, Richard Smith, George Kellin, and D. Scott Davis (the “UPS Defendants, ” collectively), alleging claims of false arrest, detention and confinement, excessive force, assault, battery, intentional infliction of emotional distress, negligence, failing to provide due process, malicious prosecution, abuse of process, refusing or neglecting to prevent the alleged violations, and conspiracy to commit the alleged violations in derogation of his federal and state constitutional rights. Defendants have moved to dismiss the complaint pursuant to either Federal Rule of Civil Procedure 12(b)(1) or 12(b)(6) on various and alternative grounds, including that the action is procedurally barred by res judicata or that the causes of action alleged in the complaint are time-barred by the applicable statutes of limitations and fail to state a claim. For the following reasons, Defendants' motions are GRANTED IN PART and DENIED IN PART.

         BACKGROUND [1]

         Plaintiff's allegations in this action concern the same set of events at issue in his prior pro se litigation, Klein v. United Parcel Service, et al., No. 11 Civ. 2044 (Ramos, J.) (S.D.N.Y.) (“Klein I”), which was dismissed on procedural grounds. (Compare Compl. at 1, ECF No. 1, with Compl. at 1-2, Klein I (No. 11 Civ. 2044, ECF No. 1).) To better understand the posture of the current action, the Court takes judicial notice of Plaintiff's filings in the prior litigation and his state court criminal proceedings, both of which are referenced in his current complaint. (Compl. ¶¶21-23); see Rothman v. Gregor, 220 F.3d 81, 92 (2d Cir. 2000).

         I. Plaintiff's Allegations

         Plaintiff is the trustee for SK Trust, which owns property at 268 Route 59 in Spring Valley, New York. (Compl. ¶ 10.) During the years 2006 through 2007, SK Trust rented a room at 268 Route 59 to Israel Kraus, an individual doing business as EZP Labels. (Id. ¶ 11.) But, when EZP failed to make monthly rent payments in late 2006, Plaintiff began an eviction proceeding. (Id. ¶ 11.) On May 9, 2007, SK Trust was granted a warrant of eviction and awarded a judgment of $4, 216.00 against EZP. (Id. ¶ 12.) EZP vacated the premises, but never satisfied the judgment. (Id. ¶ 12.)

         In early 2010, Defendant UPS delivered a package[2] to 268 Route 59 for Israel Kraus and EZP Labels. (Id. ¶ 13.) When Plaintiff's secretary told him that the package had been delivered for Israel Kraus and EZP Labels, which was the first time he had heard of the delivery, Plaintiff directed his staff to call Kraus to let him know the package had arrived. (Id.) Kraus came to Plaintiff's office, at which point Plaintiff's staff demanded payment of the outstanding judgment. (Id.) Kraus told Plaintiff's staff he would return with payment and would pick up the package then. (Id.) Kraus apparently did not return.

         Instead, a short time later, a UPS delivery employee came to Plaintiff's office and requested the package. (Id. ¶ 14.) Plaintiff told the UPS employee he had a possessory lien on the package until the judgment was satisfied. (Id.) The UPS employee left without the package. (Id.) About a week later, UPS sent another employee, Defendant Richard Smith, who again asked Plaintiff for the package. (Id. ¶¶ 15-16.) Plaintiff told Smith he had a lien on the package, and Smith left without the package. (Id.) Smith appears to have come again to request the package with the same result. (Id.)

         On March 24, 2010, after UPS filed a criminal complaint against Plaintiff with the Village of Spring Valley Police Department, Defendant Police Officer Beltempo, accompanied by Smith and a retired police officer, [3] entered 268 Route 59 and demanded the package. (Id. ¶ 17.) Officer Beltempo had no arrest or search warrant, and Plaintiff explained to him that SK Trust had a possessory lien on the package until the outstanding judgment was satisfied. (Id.)

         In response, Officer Beltempo screamed at Plaintiff, shook his fist, and yelled, “Give me th[at] package[].” (Id.) Plaintiff calmly repeated his assertion of the lien and said this was a civil, not a criminal, matter. (Id.) Officer Beltempo declined Plaintiff's offer to go to Justice Court to allow a judge to determine whether Plaintiff had a valid lien. (Id.) Instead, Officer Beltempo twisted Plaintiff's arms behind his back and handcuffed him, assaulting and battering Plaintiff in front of his 77 year-old mother. (Id. ¶ 18-19.) At that point, Plaintiff offered the officers the package, but Officer Beltempo told Plaintiff it was “too late.” (Id. ¶ 19.)

         Plaintiff asserts there was “no basis” for his arrest and that Officer Beltempo did not provide a justification. (Id. ¶ 30, ¶ 64.) Officer Beltempo placed Plaintiff in the back of a police car. (Id.) He then handed the sealed and unopened package to the UPS employee, Defendant Smith, who had encouraged the officers' activities during the altercation. (Id. ¶¶ 17, 19)

         The police transported Plaintiff to the Spring Valley police station, where police searched, finger printed, photographed, and handcuffed Plaintiff to a bench in a holding cell. (Id.) He was released several hours later and told to walk back to his office. (Id.) Later, the Defendant Rockland County District Attorney charged Plaintiff with felony larceny and resisting arrest. (Id. ¶ 20) After he was arraigned on these charges, and after several court hearings, the District Attorney reduced the charges to petit larceny and resisting arrest. (Id.) Plaintiff asserts he never “attempt[ed] to resist arrest or offer violence” against the officers. (Id. ¶ 33.)

         Shortly after Plaintiff was convicted, [4] he filed his prior civil lawsuit in this Court. (See Id. ¶ 21); see Compl., Klein I (No. 11 Civ. 2044). He also appealed his conviction. (Id.)

         Plaintiff claims UPS and its employees “played an active part in the initiation of the criminal proceedings” to “gain advantage” in recovering the package. (Id. ¶ 71(a), ¶ 77.) Moreover, he claims Richard Smith and George Kellin “recklessly made categorical statements to [sic] accusing [him] of violating the law” and “press[ed] police to arrest” him. (Id. ¶ 72(c-d).) These acts were part of an alleged conspiracy against Plaintiff on the part of UPS, the District Attorney, and the Officers. In furtherance of that conspiracy, Jane Doe, an Assistant District Attorney, “advis[ed] the police officers how to arrest Plaintiff without cause or justification[.]” (Id. ¶ 71(b).) The officers “ulterior motive” for participating in the plot and “essentially doing the bidding of Defendant UPS” was “personal financial benefit, ” ostensibly realized after arresting Plaintiff and charging him. (Id. ¶ 36.)

         II. Prior Litigation: Klein I

         Plaintiff's prior action, based on similar allegations against the UPS Defendants[5] and the Spring Valley Defendants, [6] was filed on March 24, 2011. Compl., Klein I (No. 11 Civ. 2044). The Court issued a summons the same day allowing Plaintiff to serve the Defendants. See Klein I, 2014 WL 4637493, at *1 (S.D.N.Y. Sept. 17, 2014) (providing an overview of the procedural dismissal of Plaintiff's prior litigation). During the next eleven months, however, Plaintiff did not effectuate service or communicate with the Court. Id. On February 6, 2012, the Court (Ramos, J.) gave Plaintiff thirty days to file proof of service or provide a justification for an extension of time to serve. Id. Plaintiff did not respond. Id. On March 27, 2012, the Court dismissed the action without prejudice for failure to serve the Defendants under the period of time prescribed by Federal Rule of Civil Procedure 4(m). Id. (at that time, 120 days).

         III. Plaintiff's Criminal Conviction

         On February 6, 2014, a New York state appellate court reversed Plaintiff's convictions for resisting arrest and petit larceny. (Compl. ¶ 21); People v. Klein, No. 2012-1424, 42 Misc.3d 141(A) (Sup. Ct. App. Term. 2d Dep't Feb. 6, 2014). The court reversed the petit larceny conviction on technical grounds due to the failure to convert the felony complaint in Plaintiff's state court criminal proceedings to an information as required by New York's Criminal Procedure Law when “[a] charge is ‘reduced' from a felony to a non-felony offense[.]” See Klein, 42 Misc.3d 141(A), at *1; N.Y. C.P.L. § 180.50(3)(a)(iii). In contrast, the court found the “information charging defendant with resisting arrest . . . failed to allege facts sufficient to establish, if true, the lawfulness of the arrest, i.e., thatthe arrest was premised on probable cause, '” and dismissed that charge. Klein, 42 Misc.3d 141(A), at *1 (citations omitted and emphasis added). After the case was remanded, Plaintiff alleges that “[a]fter nearly six months”-or sometime around August 2014-the District Attorney dropped the pending larceny charge. (See Compl ¶ 21.)

         IV. Plaintiff's Request to Reopen Klein I

         On September 3, 2014, Plaintiff asked the Court to reopen his prior action. (Compl. ¶ 22); Letter Request, Klein I (No. 11 Civ. 2044, ECF No. 8).[7] Judge Ramos construed this request as a motion for relief from the final judgment entered on March 27, 2012 that dismissed Klein I without prejudice pursuant to Rule 4(m). See Fed. R. Civ. P. 60(b); Klein I, 2014 WL 4637493, at *1. The Court denied the motion based on “Plaintiff's failure to effect service, request an extension from the Court[, ] or pursue his claims, ” as well as the “significant duration” of his “dilatory conduct, ” for which Plaintiff had not shown “good cause” or “extraordinary circumstances” warranting relief from the dismissal. Klein I, 2014 WL 4637493, at *2-3 (noting that, by the text of Rule 60(c)(1), Plaintiff's more than three-year delay in seeking such relief foreclosed all potential avenues except for Rule 60(b)(6)). The Court also indicated that the analysis would be the same if the dismissal was considered under Rule 41(b). Id. at *3 n.4.

         On August 25, 2015, the Second Circuit issued a summary order affirming that decision. (Compl. ¶ 23); Klein v. Smith et al., 613 F. App'x 86 (2d Cir. 2015) (the “court did not exceed its allowable discretion in denying Klein's Rule 60(b) motion for the reasons stated in its well-reasoned and thorough opinion and order”).

         V. Procedural History

         On November 19, 2015, Plaintiff proceeding pro se commenced this action by filing the current complaint against generally the same UPS and Spring Valley Defendants, along with the addition of the Rockland County District Attorney. (Compl., ECF No. 1.) Defendants' motions to dismiss were fully submitted as of June 14, 2016. (ECF Nos. 26, 30, 39.)

         STANDARD ON A MOTION TO DISMISS

         Under Rule 12(b)(6), the inquiry is whether the complaint “contain[s] 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)); accord Hayden v. Paterson, 594 F.3d 150, 160 (2d Cir. 2010). “While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.” Id. at 679. To survive a motion to dismiss, a complaint must supply “factual allegations sufficient ‘to raise a right to relief above the speculative level.'” ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007) (quoting Twombly, 550 U.S. at 555). The Court must take all material factual allegations as true and draw reasonable inferences in the non-moving party's favor, but the Court is “‘not bound to accept as true a legal conclusion couched as a factual allegation, '” or to credit “mere conclusory statements” or “[t]hreadbare recitals of the elements of a cause of action.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555).

         In determining whether a complaint states a plausible claim for relief, a district court must consider the context and “draw on its judicial experience and common sense.” Id. at 662. A claim is facially plausible when the factual content pleaded allows a court “to draw a reasonable ...


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