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Myers v. Rowell

United States District Court, N.D. New York

June 13, 2017

SCOTT MYERS, Plaintiff,
v.
PATROLMAN ROWELL, Defendant.

          SCOTT MYERS Plaintiff Pro Se.

          BAILEY, JOHNSON PC Attorneys for Defendant.

          OF COUNSEL: CRYSTAL R. PECK, ESQ.

          MEMORANDUM, DECISION AND ORDER

          DAVID N. HURD, UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         Presently 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. 46).

         II. FACTUAL BACKGROUND

         Pro 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.

         With 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.

         It is 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 § 30.30.

         III. LEGAL STANDARDS

         (A) Failure to State a Claim.

         To 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).

         Dismissal 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).

         A pro 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 no ...


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