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Ash v. City of New York

United States District Court, S.D. New York

January 6, 2020

DAMON ASH, Plaintiff,



         Plaintiff Damon Ash brings this action pro se, alleging numerous violations of his statutory and constitutional rights. Most of Mr. Ash's claims relate to two incidents, the first of which he alleges occurred on May 16, 2013 and the second of which he alleges occurred on January 26, 2015. Because the dates of these incidents are apparent from the face of Mr. Ash's complaint, the Court dismisses these claims as time barred by the applicable three-year statute of limitations. Because Mr. Ash is proceeding pro se, the Court has also construed his complaint to raise claims for failure to investigate reports that he allegedly attempted to file with Lt. Leahy and other New York police officers, for religious discrimination, and for defamation. Because failure to investigate is not cognizable under federal law and Mr. Ash's religious discrimination and defamation claims are supported only by conclusory assertions, those claims are likewise dismissed. Accordingly, Defendants' motion to dismiss is GRANTED.

         I. BACKGROUND

         A. Facts[1]

         The FAC alleges that on May 16, 2013 Mr. Ash and his cousin were sitting a park when the men were approached by Defendant Lieutenant Leahy and another officer. FAC at 4. Lt. Leahy issued a citation to Mr. Ash and his cousin “for drinking” from an open container of alcohol. Id. The FAC alleges that the open container belonged to Mr. Ash's cousin, and that Mr. Ash informed Lt. Leahy of that fact. Id. Lt. Leahy or his partner then ran a search for Mr. Ash in a law enforcement database. See id.; Opposition to Motion to Dismiss (“Opp.”), Dkt No. 94, at 3 (“This means that [Lt.] Leahy had no probable cause to question me[, ] search me[, ] or run my I.D. through a data base to see if I had any warrants.”). The officers discovered that Mr. Ash had a warrant out for his arrest. FAC at 4. The FAC does not contest the validity of the warrant but suggests that it was for an insignificant offense because it was for a minor misdemeanor, was dated twenty years before the arrest, and was a “no extra[dition]” warrant. Id. Lt. Leahy's partner then arrested Mr. Ash. FAC at 4 (“Lt[.] Leahy had the officer arrest me.”).

         Mr. Ash alleges that he was then held in jail for “20 to 30 days without seeing a judge or being [arraigned.]” Id. He then allegedly received a “pink slip” from a corrections officer and was released. Id.

         The FAC also raises a separate incident in which Mr. Ash claims that his rights were violated. Mr. Ash alleges that his apartment door was “kicked in by the 7th Precinct[, ]” including Defendant Sergeant Lee and other officers on June 26, 2015. FAC at 4. Mr. Ash alleges that he was strapped into an ambulance and taken to a mental hospital, allegedly as part of a conspiracy between the police and his landlord to have him removed from his building. TAC at 4; see also FAC at 4 (alleging that Mr. Ash was “kidnapped against [his] will”). Mr. Ash alleges that he saw Defendant Laura Porschar-allegedly an employee of his landlords, who Mr. Ash appears to allege are Defendants Betty Jacobson and Norma Klein-speaking with Sgt. Lee and that “they both colluded to pretend that she was [his] doctor” so that they could convince medical professionals to take him to a mental hospital against his will. TAC at 4; see also FAC at 4 (alleging that Sgt. Lee “col[l]uded to assist [Defendant] Laura Pors[c]har” to have him “illegally committed” to “Bellevue Mental Ward”). Mr. Ash alleges that he spoke with an “ex[-employee of his] landlord” who gave him the details behind the alleged scheme between his landlord and the police. TAC at 4.

         In the TAC, Mr. Ash alleges that when he returned home, he found that his home had been “destroyed” and many of his possessions had been stolen. Id. Mr. Ash alleges that he attempted to file a police report but that “under the request of Lt[.] Leahy[, ] no one at the 7th precinct was to take any reports or complaints . . . pertaining to” Mr. Ash's address. Id. at 5. Elsewhere in his complaint, Mr. Ash alleges causes of action for “abuse of power, illegally searching [his apartment] without [a] warrant, kick[ing] in [his] door [and] causing dama[]ge to property without merit, warrant, or criminal charge . . . [c]ausing emotional and physical stress . . . [t]hreats, harassment and refus[ing] to protect, serve or take reports on [his] behalf” over an unspecified four year period. TAC at 6. He also alleges “def[a]mation of character through religious belief.” Id.

         B. Procedural History

         “On December 9, 2016, Ash filed his initial complaint in this action, naming the City of New York as the sole Defendant.” Ash v. City of New York (“Ash I”), 16-CV-9548(RJS), 2018 WL 3462514, at *1 (S.D.N.Y. July 18, 2018) (Sullivan, J.). Mr. Ash subsequently filed the Second Amended Complaint (“SAC”), Dkt No. 8, identifying as defendants ‘Lieutenant Leary,' ‘Officer McKenzie' with shield number 942888, and two John Doe detectives.” Id. at *2. The defendants filed a motion to dismiss the amended complaint. See id.

         In Ash I, the Court dismissed most of Mr. Ash's claims as alleged. The Court dismissed Mr. Ash's claim that “Defendant McKenzie ‘falsely arrested' him ‘for assault' on April 22, 2015” because the allegations undergirding that claim were “wholly conclusory and therefore cannot support a false arrest claim.” Id. at *3. The Court dismissed Mr. Ash's unlawful entry claim because the second amended complaint (“SAC”) “fail[ed] to identify which Defendants, if any, participated in the alleged unlawful entry.” Id. The Court also dismissed Mr. Ash's defamation claim. Id. The basis for this claim was that “Defendant McKenzie defamed him by recording his first name as ‘Demon' (instead of ‘Damon') on an arrest record.” Id. Because “no reasonable reader could have interpreted the misnomer as a statement of ‘objective fact, '” as required to support a defamation claim, the Court dismissed Mr. Ash's defamation claim. Id. Finally, the Court dismissed Mr. Ash's claim against the City of New York because the SAC did not allege “the required causal connection between his alleged injuries and any official policy of the City of New York.” Id. at *4 (citation omitted).

         The Court declined to dismiss the false arrest claim against Defendant Leahy, however. Defendants argued that the claimed was time-barred “because the City's arrest records show that Ash was arrested for an open-container violation on May 16, 2013, and that Ash did not file his original complaint in this action until December 2016, after the three-year statute of limitations had expired.” Id. at *2 (citation omitted). “If accurate, ” the Court noted “this chronology would surely justify dismissal of this false arrest claim with prejudice.” Id. However, “the Court decline[d] to dismiss the false arrest claim against Defendant Leahy at this stage of the proceedings . . . [b]ecause it is not clear from the face of the Complaint that the alleged open-container arrest falls outside of the applicable limitations period.” Id. Thus, the Court dismissed all of Mr. Ash's claims in the SAC “except for his first false arrest claim against Defendant Leahy.” Id. at *4. The Court did not specify whether it was granting Mr. Ash leave to replead the claims that it had dismissed.

         After the Court issued its decision in Ash I, Defendants answered the complaint. Dkt No. 55. By letter dated August 14, 2018, Mr. Ash requested leave to amend his complaint. Dkt No. 60. The Court granted Mr. Ash leave to amend on September 12, 2018. Dkt No. 64. On October 29, 2018, the case was reassigned to this Court's docket because Judge Sullivan was elevated to the Second Circuit. Mr. Ash filed the TAC on December 21, 2018. Dkt No. 75. Construed liberally, the TAC raises claims for unlawful entry in violation of the Fourth Amendment, damage to personal property, intentional and/or negligent infliction of emotional distress, defamation of character, and failure to investigate. Id.

         The TAC named “Sergeant Vasquez” as the officer who had illegally entered his home. In letters dated December 29, 2018 and January 10, 2019, Mr. Ash again sought leave to amend because he had learned that Sergeant Vazquez had been transferred out of the 7th Precinct before January 26, 2015, the date the alleged unlawful entry occurred. However, Defendants represented that another police officer-Defendant Sergeant Lee-responded to a complaint at Mr. Ash's address. Dkt Nos. 78, 80. In his December 29, 2018 letter, Mr. Ash also sought leave to amend to add Defendants Jacobson and Klein. On January 16, 2019, the Court granted Mr. Ash leave to amend “only with respect to: (i) the addition of the two parties that Mr. Ash identifies in his letter dated December 29, 2018 and any claims he intends to assert against them and (ii) the substitution of Sergeant Lee for Sergeant Vasquez in the allegations surrounding the January 26, 2015 incident as described in the third amended complaint.” Dkt No. 81 at 2. In the same order, the Court “remind[ed] Mr. Ash that an amended complaint replaces a previous complaint” and that “if Mr. Ash's forthcoming fourth amended complaint fails to include his false arrest claim against Lieutenant Leahy as well as the claims asserted in the third amended complaint, these claims will no longer be before the Court.” Id.

         Mr. Ash filed the FAC on February 6, 2019. Dkt No. 84. Construed liberally, the FAC raises a claim for false arrest. Id. at 4. The FAC also alleges that Mr. Ash was not timely arraigned after he was arrested. Id. On March 15, 2019, Defendants Leahy, Lee, and the City of New York (the “City Defendants”) filed a motion to dismiss with an accompanying memorandum of law and declaration in support of the motion. Dkt Nos. 90-92. Mr. Ash filed his opposition on February 28, 2019. Dkt No. 94. The City Defendants filed a reply memorandum of law and supporting declaration on April 18, 2019. Dkt Nos. 100-101.[2]


         A complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). However, a defendant may move to dismiss a plaintiff's claim for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). In deciding a motion to dismiss under Rule 12(b)(6), the Court must “accept[] all factual allegations [in the complaint] as true and draw[] all reasonable inferences in the plaintiff's favor.” DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 110-11 (2d Cir. 2010) (quoting Shomo v. City of New York, 579 F.3d 176, 183 (2d Cir. 2009)). To avoid dismissal, 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 Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A formulaic recitation of the elements of a cause of action, devoid of supporting facts, does not suffice. Id. To satisfy the “plausibility” requirement, the plaintiff must plead facts that permit the court “to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556).

         Because Mr. Ash is proceeding pro se, the Court must liberally construe his allegations and “interpret[] [them] to raise the strongest arguments that they suggest.” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (quotation omitted); see also Erickson v. Pardus, 551 U.S. 89, 94 (2007) (“A document filed pro se is to be liberally construed[.]” (quotation omitted)); Nielsen v. Rabin, 746 F.3d 58, 63 (2d Cir. 2014) (“Where . . . the complaint was filed pro se, it must be construed liberally to raise the strongest arguments it suggests.” (quotation omitted)). Courts must afford pro se plaintiffs “special solicitude” before granting motions to dismiss. Ruotolo v. I.R.S., 28 F.3d 6, 8 (2d Cir 1994). Nevertheless, “dismissal of a pro se complaint is . . . appropriate where a plaintiff has clearly failed to meet the minimum pleading requirements.” Rahman v. Schriro, 22 F.Supp.3d 305, 310 (S.D.N.Y. 2014) (citing Rodriguez v. Weprin, 116 F.3d 62, 65 (2d Cir. 1997)).

         When ruling on a motion to dismiss, “a court may consider only the complaint, any written instrument attached to the complaint as an exhibit, any statements or documents incorporated in it by reference, and any document upon which the complaint heavily relies.” In re Thelen LLP, 736 F.3d 213, 219 (2d Cir. 2013). In deciding this motion, the Court considered the “After Care Letter” issued by the New York City Correctional Health Services Division of Health Care Access and Improvement that is attached to Mr. Ash's Opposition. For a document to be integral to a complaint, “the plaintiff must have (1) ‘actual notice' of the extraneous information and (2) ‘relied upon th[e] documents in framing the complaint.'” DeLuca v. Access IT Group, Inc., 695 F.Supp.2d 54, 60 (S.D.N.Y. 2010) (quoting Chambers, 282 F.3d at 153). Mr. Ash had notice of this letter and has relied on it, as it is attached to this complaint. While the Court must accept the facts as alleged in the complaint, “[w]hen allegations contained within the complaint are contradicted by documents attached to the complaint, the documents control, and the Court need not accept the allegations contained within the complaint as true.” Rozsa v. May Davis Grp., Inc., 187 F.Supp.2d 123, 128 (S.D.N.Y. 2002).

         The Court has also considered Mr. Ash's allegations in the TAC in deciding this motion. “It is well established that an amended complaint ordinarily supersedes the original, and renders it of no legal effect.” Shields v. City trust Bancorp, Inc., 25 F.3d 1124, 1128 (2d Cir. 1994) (citations omitted). Therefore, the Court need only consider the FAC for purposes of this motion to dismiss. However, courts in this Circuit have exercised their discretion to consider allegations in prior iterations of pro se plaintiffs' complaints. See Austin v. Ford Models, Inc., 149 F.3d 148, 155-56 (2d Cir. 1998), abrogated on other grounds by Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002); see also Elliott v. City of Hartford, 649 Fed.Appx. 31, 32 (2d Cir. 2016); Lewis v. Weiss, No. 12-CV-07242 (ALC), 2016 WL 1718251, at *3 (S.D.N.Y. Apr. 27, 2016). This exercise of discretion is consistent with the principle that courts must afford “special solicitude” to pro se litigants before granting a motion to dismiss. Ruotolo, 28 F.3d at 8. Moreover, in the FAC, Mr. Ash appears to describe the FAC as an “add on” to the TAC. FAC at 5. Hence, in keeping with the principle that “[a] document filed pro se is to be liberally construed, ” Erickson, 551 U.S. at 94, the Court has construed Mr. Ash's FAC to incorporate the allegations made in the TAC.

         The Court has also considered factual allegations raised in Mr. Ash's opposition to the motion to dismiss. “[A]llegations made in a pro se plaintiff's memorandum of law, where they are consistent with those in the complaint, may also be considered on a motion to dismiss.” Braxton v. Nichols, No. 08 Civ. 8568, 2010 WL 1010001, at *1 (S.D.N.Y. Mar. 18, 2010); see also Rosado v. Herard, No. 12 Civ. 8943, 2013 WL 6170631, at *3 (S.D.N.Y. Nov. 25, 2013) (citation omitted). Further, to the extent claims alleged for the first time in motion papers could have been asserted based on the facts alleged in the complaint, the Court has considered them. See Finch v. New York, No. 10 Civ. 9691, 2012 WL 2866253 (S.D.N.Y. May 30, 2012) (finding that while “a plaintiff cannot amend her complaint through an opposition to a motion to dismiss, ” the court “should read the facts alleged in a pro se plaintiff's complaint for whatever claims may properly be based on such facts”). However, “[w]here a plaintiff's motion papers assert entirely new claims that do not arise out of the facts alleged in the complaint, the court need not consider ...

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