United States District Court, S.D. New York
MEMORANDUM OPINION AND ORDER
GREGORY H. WOODS, UNITED STATES DISTRICT JUDGE
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.
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.”).
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.
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.
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 damage 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
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.
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).
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.
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.
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.”
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.
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).
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.
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).
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
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