United States District Court, N.D. New York
MYERS Plaintiff Pro Se.
BAILEY, JOHNSON PC Attorneys for Defendant.
COUNSEL: CRYSTAL R. PECK, ESQ.
MEMORANDUM, DECISION AND ORDER
N. HURD, UNITED STATES DISTRICT JUDGE
under consideration is: (a) a motion to dismiss pursuant to
Federal Rule of Civil Procedure 12(b)(6) filed by defendant
Patrolman Rowell (“Rowell” or
“defendant”) (ECF No. 42) and (b) a cross motion
for Reconsideration filed by plaintiff Scott Myers
(“Myers” or “plaintiff”) (ECF No.
se plaintiff Scott Myers brought this civil rights
action pursuant to 42 U.S.C. § 1983. He has since
amended such complaint twice, with the July 17, 2015 Amended
Complaint being the operative pleading (the “Amended
Complaint”). See ECF No. 9. On January 14,
2016, upon the recommendation of the Honorable Andrew T.
Baxter, all claims contained in the plaintiff's Amended
Complaint but for a malicious prosecution claim against
defendant Rowell were dismissed. See ECF No. 23.
respect to such claim, the Amended Complaint indicates that
Myers was arrested by Rowell on February 14, 2010 for Driving
While Intoxicated (“DWI”). See
Complaint, ECF No. 9, at 4-5. Plaintiff alleges that Rowell
fabricated probable cause to pull over plaintiff's
vehicle. Further, plaintiff alleges that defendant was not
qualified or licensed to provide a “chemical
test”, did not perform a field sobriety test, did not
provide plaintiff with Miranda warnings and lied about
plaintiff's refusal to perform a breath test. Defendant
allegedly also lied about plaintiff's request for
attorney representation and “made up” the
sobriety results at the police station.
alleged that Myers was subsequent charged and
convicted of DWI in Athens Town Court before Judge
Constance Pazen on or about April 19, 2012. However, the
conviction was reversed by Columbia County Court Judge
Richard M. Koweek in 2014 on speedy trial grounds
pursuant to New York State Criminal Procedure Law §
Failure to State a Claim.
survive a Rule 12(b)(6) motion to dismiss, the
"[f]actual allegations must be enough to raise a right
to relief above the speculative level." Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007). Although a
complaint need only contain "a short and plain statement
of the claim showing that the pleader is entitled to relief,
" Fed.R.Civ.P. 8(a)(2), more than mere conclusions are
required. Indeed, "[w]hile legal conclusions can provide
the framework of a complaint, they must be supported by
factual allegations." Ashcroft v. Iqbal, 556
U.S. 662, 679 (2009).
is appropriate only where the plaintiff has failed to provide
some basis for the allegations that support the elements of
his claims. See Twombly, 550 U.S. at 570 (requiring
"only enough facts to state a claim to relief that is
plausible on its face"). When considering a motion to
dismiss, the pleading is to be construed liberally, all
factual allegations are deemed to be true, and all reasonable
inferences must be drawn in the plaintiff's favor.
See Chambers v. Time Warner, Inc., 282 F.3d 147, 152
(2d Cir. 2002).
se litigant's submissions are held to “less
stringent standards than [those] drafted by lawyers.”
Haines v. Kerner. 404 U.S. 519, 520 (1972). Courts
“liberally construe pleadings and briefs submitted by
pro se litigants, reading such submissions to raise the
strongest arguments they suggest.” Bertin v. United
States, 478 F.3d 489, 491 (2d Cir.2007) (internal
quotation marks and citation omitted). Nevertheless, this
Court need not accept as true “conclusions of law or
unwarranted deductions of fact.” First Nationwide
Bank v. Gelt Funding Corp., 27 F.3d 763, 771 (2d Cir.
1994). “[H]owever inartfully pleaded, a pro se
complaint may not be dismissed under Rule 12(b)(6) unless
‘it appears beyond doubt that the plaintiff can prove