Opinion
19-CV-10967 (PAE) (BCM)
01-19-2022
BAHSID MCLEAN, Plaintiff, v. HAZEL JENNINGS, et al., Defendants.
REPORT AND RECOMMENDATION TO THE HON. PAUL A. ENGELMAYER
BARBARA MOSES, UNITED STATES MAGISTRATE JUDGE.
On October 16, 2014, Rikers Island correction officers discovered contraband hidden in detainee Bahsid McLean's mattress. On February 25, 2015, McLean was indicted for promoting prison contraband. However, on May 15, 2017, the People recommended that the indictment be dismissed, explaining that the contraband recovered from the mattress was never properly vouchered and that other evidence had been lost or inadequately documented. In this action, McLean - now serving a lengthy sentence for other crimes - alleges that the correction officers involved in the discovery of the contraband, and their supervisors, violated his civil rights by failing to preserve the evidence underlying the contraband charge. Now before me for report and recommendation (Dkt. No. 74) is defendants' motion (Dkt. No. 66) to dismiss this action in its entirety pursuant to Fed.R.Civ.P. 12(b)(6). As discussed in more detail below, plaintiff has failed to state any claim upon which relief may be granted. In addition, certain of his claims are time-barred. I therefore recommend, respectfully, that defendants' motion be granted.
I. BACKGROUND
A. Facts
On October 16, 2014, Correction Officer (CO) Samantha Brown searched plaintiff's cell in the Anna M. Kross Center on Rikers Island. Second Amended Complaint (SAC) (Dkt. No. 49) at 4; see also Gosling Decl. Ex. C, at ECF page 2. At that time, defendant was in custody awaiting trial for murdering and dismembering his mother. Gosling Decl. Ex. C, at ECF page 2. CO Brown inspected plaintiff's mattress, noticed a hole in it, opened the mattress further, and discovered three sharpened pieces of plastic. Gosling Decl. Ex. C, at ECF page 2. She then "turned over the alleged items but they were not vouchered." SAC at 4. Additionally, Brown failed to "document" the hole in the mattress before it was "ripped open," and Brown's supervisor, Captain Frederick, "did not take the proper precautions to secure [the] alleged contraband." Id.
Defendants support their motion to dismiss with a Memorandum of Law (Def Mem.) (Dkt. No. 67) and the Declaration of William T. Gosling (Dkt. No. 68), which attaches and authenticates three exhibits: (a) plaintiff's indictment for promoting prison contraband, dated February 25, 2015 (Dkt. No. 68-1); (b) plaintiff's arrest report, dated May 19, 2015, together with the underlying arrest warrant (Dkt. No. 68-2); and (c) the People's Recommendation for Dismissal of the prison contraband indictment, dated May 15, 2017 (Dkt. No. 68-3).
On February 25, 2015, plaintiff was indicted for Promoting Prison Contraband in the First Degree, in violation of N.Y. Penal Law § 205.25(2). Gosling Decl. Ex. A. Plaintiff was arrested on that charge on May 19, 2015. Id. Ex. B. On November 4, 2016, defendant was found guilty of Murder in the Second Degree, in violation of N.Y. Penal Law § 125.25, and Unlawful Dissection of a Human Body, in violation of N.Y. Pub. Health Law § 4210-A. Gosling Decl. Ex. C, at ECF page 3. He was sentenced to 25 years to life on the murder conviction and 1-1/3 to 4 years on the dissection conviction. Id.; see also Darcel D. Clark, District Attorney, Bronx County, "Bronx Man Sentenced to Maximum for Murder, Dismemberment of his Mother," Dec. 5, 2016, https://www.bronxda.nyc.gov/html/newsroom/press-releases-2016.shtml (last visited January 19, 2022).
On May 15, 2017, the People recommended that the indictment for promoting prison contraband be dismissed. Gosling Decl. Ex. C. The Recommendation for Dismissal, signed by Assistant District Attorney James Brennan, explained that "the three sharpened pieces of plastic that were recovered by C.O. Samantha Brown were not vouchered and their whereabouts are not known." Id. at ECF page 3. Additionally, the only photographic evidence of the items was "grainy black and white photocopies"; the hole in the mattress "was not documented before the mattress was ripped open"; the mattress itself "was not preserved"; and neither was the video evidence of the search, believed to have been captured on a handheld camera. Id. The People concluded that it would be "difficult" for them to "meet their burden of proof at trial," and noted that given McLean's murder conviction, any sentence he received for promoting prison contraband "would not likely result in additional incarceration time." Id.
Oddly, defendants have not submitted any dismissal order or certificate of disposition documenting the formal end of the contraband prosecution. Plaintiff alleges, however, that "the charges were dismissed" on May 15, 2017. Compl. (Dkt. No. 1) at 4.
B. Procedural Background
Plaintiff filed his initial Complaint, pro se, on October 2, 2019, and filed an Amended Complaint on February 24, 2020, naming as defendants Joseph Ponte, a former Commissioner of the New York City Department of Corrections (DOC); Hazel Jennings, former DOC Chief of Department, and CO Clifton, identified by plaintiff as the officer who searched his cell. Am. Compl. (Dkt. No. 16) at 1, 2.
After all three defendants answered (Dkt. Nos. 26, 35), and served their initial disclosures (Dkt. No. 39), plaintiff sought leave to file what appeared to be a supplemental complaint naming three additional defendants. (Dkt. No. 44.) On September 16, 2020, I denied the motion without prejudice to renewal, and instructed plaintiff that if he wished to "replace his current pleading - in toto - with the proposed Second Amended Complaint," he could do so no later than October 23, 2020, by filing a pleading that "will completely replace, not supplement, any earlier complaints." (Dkt. No. 48.) On October 5, 2020, plaintiff filed his Second Amended Complaint, naming as defendants Commissioner Ponte; Chief Jennings; CO Brown; "Captain Frederick," later identified as Darron Frederick; Scott Frank; and "Captain Brown." SAC at 1, 3.
In the SAC, plaintiff identifies CO Brown, rather than CO Clifton, as the officer who searched his cell. SAC at 4. Plaintiff suggests (but does not explicitly allege) that Caption Frederick was CO Brown's supervisor with regard to the search. Id. He identifies Scott Frank as his "arresting officer." Id. However, the arrest report lists the arresting officer as Gerard O'Dwyer, see Gosling Decl. Ex. B, and does not mention Frank. "Captain Brown" was never identified, never served, and never appeared. (See Dkt. Nos. 62, 65.)
The SAC, which closely follows the Recommendation for Dismissal, alleges that after CO Brown searched his cell, she "bypassed all protocols" for the preservation of evidence and failed to document "the hole in the mattress that [CO] Brown claimed to have seen." SAC at 4. Additionally, plaintiff alleges, the photographic evidence was "too grainy to see properly," the alleged items were "not vouchered," the camera used to videotape the search "was apparently not preserved," and "Captain Frederick did not take the proper precautions to secure this alleged contraband." Id. Plaintiff further alleges that "[t]he arresting officer, Scott Frank, did not seek the proper evidence or documentation before carrying out my arrest[]," and that Chief Jennings violated her "duty to secure the evidence before any charges were filed and I was arrested." Id. at 4-5. There are no specific allegations regarding Commissioner Ponte. See id. at 1, 3, 4-5.
Plaintiff seeks damages for "mental anguish," SAC at 5, but does not otherwise articulate the nature of his legal claims. Reading his submission liberally, as required, I construe the SAC as asserting claims for false arrest and malicious prosecution pursuant to 42 U.S.C. § 1983 and New York common law. I have also considered whether plaintiffs' allegations could support a due process claim pursuant to § 1983.
In his prior complaint, after alleging similar facts, plaintiff wrote that had defendants employed proper evidence preservation procedures it would have prevented him "from being maliciously prosecuted and also being falsely arrested." Am. Compl. at 3.
On April 5, 2021, defendants Ponte, Jennings, Brown, Frederick, and Frank filed their motion to dismiss the SAC and served their moving papers on plaintiff, who by then was serving his murder sentence in the Auburn Correctional Facility. (Dkt. No. 70.) No opposition papers were filed. On August 23, 2021, I deemed defendants' motion fully briefed. (Dkt. No. 77.)
II. LEGAL STANDARDS
Fed. R. Civ. P. 8(a)(2) requires that a complaint contain "a short and plain statement of the claim showing that the pleader is entitled to relief." If a complaint fails to present "sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face," the deficient claims must be dismissed pursuant to Fed.R.Civ.P. 12(b)(6). Absolute Activist Value Master Fund Ltd. v. Ficeto, 677 F.3d 60, 65 (2d Cir. 2012) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). A claim is facially plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678. If the plaintiff has not "nudged [his] claims across the line from conceivable to plausible, [the] complaint must be dismissed." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).
Presented with a Rule 12(b)(6) motion, the trial court must "accept as true all factual statements alleged in the complaint and draw all reasonable inferences in favor of the non-moving party." McCarthy v. Dunn & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir. 2007). However, those factual allegations "must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555. Thus, "a pleading that offers 'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action will not do.' Nor does a complaint suffice if it tenders 'naked assertion[s]' devoid of 'further factual enhancement.'" Iqbal, 556 U.S. at 678 (internal citations omitted) (quoting Twombly, 550 U.S. at 555, 557). The courts will not "unlock the doors of discovery for a plaintiff armed with nothing more than conclusions." Id. at 678-79.
In addition to the facts alleged in the complaint itself, a court faced with a Rule 12(b)(6) motion may consider "'any written instrument attached to it as an exhibit, materials incorporated in it by reference, and documents that, although not incorporated by reference, are 'integral' to the complaint.'" L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419, 422 (2d Cir. 2011) (quoting Sira v. Morton, 380 F.3d 57, 67 (2d Cir. 2004)). The court may also consider any matters of which it may take judicial notice, including the proceedings of other courts of record - "not for the truth of the matters asserted in the other litigation, but rather to establish the fact of such litigation and related filings." Kramer v. Time Warner Inc., 937 F.2d 767, 774 (2d Cir. 1991); see also Staehr v. Hartford Fin. Servs. Grp., Inc., 547 F.3d 406, 426 (2d Cir. 2008) ("Matters judicially noticed by the District Court are not considered matters outside the pleadings.").
As relevant here, the Court may take judicial notice of plaintiff's indictment for promoting prison contraband and subsequent state court proceedings on that indictment. See, e.g., Perkins v. New York City, 2019 WL 4736950, at *2 (E.D.N.Y. Sept. 27, 2019) ("[t]he Court will take judicial notice of the fact that, on August 23, 2015, [a defendant officer] signed a Criminal Court complaint charging" the plaintiff with robbery, assault, and other offenses); Cuevas v. City of New York, 2009 WL 4773033, at *2 n.2 (S.D.N.Y. Dec. 7, 2009) ("This Court takes judicial notice of the fact that the criminal charges against Plaintiff were dismissed on October 11, 2005."). It may also consider his arrest report. See McLennon v. New York City, 2015 WL 1475819, at *4 (E.D.N.Y. Mar. 31, 2015) ("It is well established that a court considering a motion pursuant to Rule 12(b)(6) may take judicial notice of arrest reports, certificates of disposition, criminal complaints, DD5s, and indictments."); accord Pinero v. Casey, 2012 WL 832509, at *5 n.7 (S.D.N.Y. Mar. 13, 2012), report and recommendation adopted, 2012 WL 1059674 (S.D.N.Y. Mar. 29, 2012); Harris v. Howard, 2009 WL 3682537, at *2 (S.D.N.Y. Oct. 30, 2009).
B. Pro Se Parties
A pro se plaintiff is "'entitled to special solicitude, '" and the court must "read his pleadings 'to raise the strongest arguments that they suggest.'" Fowlkes v. Ironworkers Local 40, 790 F.3d 378, 387 (2d Cir. 2015) (quoting Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 477 (2d Cir. 2006) (per curiam)). Pro se status, however, "does not exempt a party from compliance with relevant rules of procedural and substantive law." Maisonet v. Metro. Hosp. & Health Hosp. Corp., 640 F.Supp.2d 345, 348 (S.D.N.Y. 2009). A pro se plaintiff, like any other, "must state a plausible claim for relief," Walker v. Schult, 717 F.3d 119, 124 (2d Cir. 2013), and the court cannot "invent factual allegations that [the plaintiff] has not pled." Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010).
C. Section 1983
Section 1983 permits civil suits against those who, acting "under color" of state law, have deprived a plaintiff of" any rights, privileges, or immunities s ecu re d by the Constitution" or la ws of the United States. 42 U.S.C. § 1983. "Section 1983 does not create any federal rights; rather, it provides a mechanism to enforce rights established elsewhere." Soberanis v. City of New York, 244 F.Supp.3d 395, 400 (S.D.N.Y. 2017) (citing Gonzaga Univ. v. Doe, 536 U.S. 273, 285 (2002)). To state a claim under § 1983, "a plaintiff must allege that (1) the defendant was a state actor, i.e., acting under color of state law, when he committed the violation and (2) the defendant deprived the plaintiff of 'rights, privileges or immunities secured by the Constitution or laws of the United States.'" Milan v. Wertheimer, 808 F.3d 961, 964 (2d Cir. 2015) (citation omitted).
D. False Arrest
To state a claim for false arrest under New York law, a plaintiff must show that "(1) the defendant intended to confine the plaintiff, (2) the plaintiff was conscious of the confinement, (3) the plaintiff did not consent to the confinement, and (4) the confinement was not otherwise privileged." Bernard v. United States, 25 F.3d 98, 102 (2d Cir. 1994). "With respect to the fourth element, a confinement is privileged if the officer had probable cause to arrest the plaintiff." Manley v. Utzinger, 2011 WL 2947008, at *4 (S.D.N.Y. July 21, 2011) (citing Bernard, 25 F.3d at 102). A § 1983 claim for false arrest "is substantially the same as a claim for false arrest under New York law," Kee v. City of New York, 12 F.4th 150, 158 (2d Cir. 2021) (citing Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996)), and likewise "may not be maintained if there was probable cause for the arrest." Fulton v. Robinson, 289 F.3d 188, 195 (2d Cir. 2002). Thus, "[t]he existence of probable cause to arrest constitutes justification and is a complete defense to an action for false arrest, whether that action is brought under state law or under § 1983." Weyant, 101 F.3d at 852 (internal quotation marks omitted).
Although the existence of probable cause is commonly described as a "defense" to a false arrest claim, "[w]here a § 1983 plaintiff pleads false arrest, the lack of probable cause must be pleaded in the complaint." Chepilko v. Bushuyev, 2016 WL 6407479, at *3 (S.D.N.Y. Oct. 28, 2016) (collecting cases), report and recommendation adopted sub nom. v. P.O. Yevgeniy Bushuyev, 2016 WL 7106235 (S.D.N.Y. Dec. 5, 2016).
Where, as here, the plaintiff was indicted by a grand jury, probable cause is presumed. Fulton, 289 F.3d at 198. In order to rebut the presumption, the plaintiff must show "that the indictment was the product of fraud, perjury, the suppression of evidence by the police, or other police conduct undertaken in bad faith." Id. (internal quotation marks and citations omitted).
E. Malicious Prosecution
"To establish a malicious prosecution claim under New York law, a plaintiff must prove (1) the initiation or continuation of a criminal proceeding against plaintiff; (2) termination of the proceeding in plaintiff's favor; (3) lack of probable cause for commencing the proceeding; and (4) actual malice as a motivation for defendant's actions." Manganiello v. City of New York, 612 F.3d 149, 161 (2d Cir. 2010).
A plaintiff asserting a Fourth Amendment malicious prosecution claim under § 1983 must "establish the elements of a malicious prosecution claim under state law," Fulton, 289 F.3d at 195, and is also "required to show 'a seizure or other perversion of proper legal procedures implicating [his] personal liberty and privacy interests under the Fourth Amendment.'" Lanning v. City of Glens Falls, 908 F.3d 19, 24 (2d Cir. 2018) (quoting Washington v. County of Rockland, 373 F.3d 310, 316 (2d Cir. 2004)).
III. ANALYSIS
A. Plaintiff Has Failed to State a Claim for False Arrest or Malicious Prosecution
In the SAC, as in his prior pleadings, plaintiff complains that he suffered "mental anguish" as a result of defendants' failure to properly preserve the evidence found in his cell. SAC at 4; see also Amend. Compl. at 3 ("I sustained mental distress, stress, and had trouble sleeping because I was so worried"); Compl. at 4 (plaintiff suffered "severe mental stress as well as panic attacks"). His theory appears to be that having failed to voucher the contraband, document the hole in the mattress, or otherwise take the "proper precautions" to ensure a successful prosecution on charges of promoting prison contraband, defendants should not have arrested him or charged him with that crime. See SAC at 4-5 (alleging that the arresting officer did not "seek the proper evidence or documentation before carrying out my arrest" and that Chief Jennings "had a duty to secure the evidence before any charges were filed and I was arrested").
However, plaintiff fails to allege - or even suggest - that the contraband did not exist or that the evidence was insufficient to furnish probable cause for his arrest and prosecution, much less that his indictment was the product of fraud, perjury, or other law enforcement misconduct. He has therefore failed to state any claim, whether under § 1983 or under state law, for false arrest or malicious prosecution. See Walker v. Sankhi, 494 Fed.Appx. 140, 142 (2d Cir. 2012) (summary order) (affirming dismissal of plaintiff's false arrest and malicious prosecution claim, on the pleadings, "because he has not overcome the presumption of probable cause created by the grand jury indictment"); Jones v. Trump, 71 Fed.Appx. 873, 875 (2d Cir. 2003) (summary order) (affirming dismissal of plaintiff's claims for malicious prosecution, false arrest and unlawful imprisonment because he "failed to establish the requisite lack of probable cause to arrest and prosecute [him] for harassment"); McLennon v. City of New York, 171 F.Supp.3d 69, 93 (E.D.N.Y. 2016) (dismissing malicious prosecution claim because plaintiff "fails to allege that his prosecution was not supported by probable cause"); Jackson v. Ramirez, 2016 WL 796854, at *8 (S.D.N.Y. Feb. 22, 2016) (dismissing false arrest claim where complaint "fails to plausibly allege a lack of probable cause"); Lowery v. City of New York, 2014 WL 2567104, at *4 (S.D.N.Y. June 6, 2014) (dismissing complaint that offered "absolutely no factual allegations whatsoever from which the Court could infer that [plaintiff's] arrest lacked probable cause or was otherwise without justification").
Plaintiff's § 1983 malicious prosecution claim fails for the additional reason that he was in state custody throughout the pendency of the contraband case. Thus, "even if he could overcome the presumption of probable cause, [plaintiff] could not have suffered a deprivation of liberty as a result of the [contraband] charge because, throughout the pendency of that charge, he was already in custody, and remained in custody, for a completely separate . . . charge, of which he was ultimately convicted." Walker v. Sankhi, 494 Fed.Appx. 140, 143 (2d Cir. 2012); see also Holmes v. Grant, 2006 WL 851753, *13-14 (S.D.N.Y. Mar. 31, 2006) ("An inmate already incarcerated has not suffered any unconstitutional deprivation of liberty as a result of being charged with new criminal offenses and being forced to appear in court to defend himself.").
Nor has he stated a Fourteenth Amendment due process claim. The failure to preserve exculpatory evidence can constitute a due process violation, but only where there is "bad faith," as opposed to negligence, "on the part of the government," and where "the acts complained of [are] of such quality as necessarily prevents a fair trial." United States v. Williams, 205 F.3d 23, 29-30 (2d Cir. 2000) (cleaned up). Here, plaintiff does not allege bad faith, and cannot allege that defendants' conduct prevented a "fair trial," as there was no trial. Even more fundamentally, plaintiff does not allege that the unpreserved evidence was "exculpatory." As defendants point out, the "failure to preserve inculpatory evidence, ultimately leading to the pretrial dismissal of plaintiff's prosecution," does not give rise to any constitutional or common-law claim. Def. Mem. at 1 (emphasis added).
B. Plaintiff's False Arrest Claims are Time-Barred
In New York, the statute of limitations for § 1983 claims is three years. Pearl v. City of Long Beach, 296 F.3d 76, 79 (2d Cir. 2002); Pauk v. Bd. of Trustees of City Univ. of New York, 654 F.2d 856, 861-66 (2d Cir. 1981). Where the claim is for false arrest, the three-year statute accrues "when the plaintiff knew or had reason to know of the injury," Garcia v. City of New York, 2017 WL 1169640, at *6 (S.D.N.Y. Mar. 28, 2017), which is ordinarily the date of the arrest. See Covington v. New York City Police Dep't, 471 Fed.Appx. 28, 29 (2d Cir. 2012) (summary order) (three-year statute of limitations for Covington's § 1983 false arrest claim "accrued on February 19, 1990, the date he was arrested and formally charged"); Rashid v. City of New York, 2015 WL 405438, at *4 (S.D.N.Y. Jan. 30, 2015) ("the statutes of limitations for false arrest accrues at the time of the arrest"). The statute of limitations for a common-law false arrest claim in New York is one year, Garcia, 2017 WL 1169640, at *6, and accrues "upon the subject's 'release[] from confinement.'" Bellissimo v. Mitchell, 122 A.D.3d 560, 560, 995 N.Y.S.2d 603, 605 (2d Dep't 2014) (quoting Charnis v. Shohet, 2 A.D.3d 663, 768 N.Y.S.2d 638 (2d Dep't 2003).
Where a limitations defense "appears on the face of the complaint" or is apparent from judicially noticeable documents, it may be adjudicated pursuant to Rule 12(b)(6). Pani v. Empire Blue Cross Blue Shield, 152 F.3d 67, 74 (2d Cir. 1998); accord Ellul v. Congregation of Christian Bros., 774 F.3d 791, 798 n.12 (2d Cir. 2014); McKenzie v. Dow Jones & Co., Inc., 355 Fed.Appx. 533, 535 (2d Cir. 2009). Here, plaintiff's arrest report shows that he was arrested on May 19, 2015. Gosling Decl. Ex. B. Since he was already a pretrial detainee at Rikers Island, it is not clear whether he was ever subject to any additional or different "confinement" as a result of the contraband arrest. Any such "confinement," however, presumably came to an end when the People sought dismissal of the indictment on May 15, 2017. Id. Ex. C. Plaintiff did not file this action until October 2, 2019, which was more than four years after his contraband arrest and more than two years after the People abandoned that prosecution. Consequently, his false arrest claims are time-barred. See Walters v. City Dep't of Correction, 517 F. App'x. 41 (2d Cir. 2013) (summary order) (affirming dismissal of false arrest claims are time-barred due to three-year statute of limitations); Covington v. City of New York, 916 F.Supp. 282 (S.D.N.Y. 1996) (dismissing false arrest claim as time-barred).
C. No Leave to Amend Should be Granted
While leave to amend a complaint should be freely given "when justice so requires," Fed.R.Civ.P. 15(a)(2), it is "within the sound discretion of the district court to grant or deny leave to amend." McCarthy, 482 F.3d at 200. Here, plaintiff has already amended his complaint twice, but did not oppose plaintiff's motion to dismiss, does not seek leave to amend again, and has never described any facts that, if pled, would render viable any of his claims. See Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (affirming denial of leave to amend where the pro se plaintiff "suggested no new material she wishes to plead"). Moreover, given the presumption of probable cause flowing from his indictment, coupled with the insurmountable obstacles posed by the statute of limitations (as to his false arrest claim) and his continuous incarceration (as to his § 1983 malicious prosecution claim), it is difficult to imagine that plaintiff could successfully amend. Consequently, no leave to amend should be granted.
IV. CONCLUSION
For the reasons set forth above, I recommend, respectfully, defendants' motion (Dkt. No. 66) be GRANTED and that this action be DISMISSED WITH PREJUDICE.
The Clerk of Court is respectfully directed to mail a copy of this Report and Recommendation to the pro se plaintiff.