P. KEVIN CASTEL, District Judge

MEMORANDUM AND ORDER

:

Plaintiff Benjamin Waters, who is pro se, asserts that defendant Mario Douglas violated his civil rights by using excessive force during plaintiff's intake at Rikers Island. Plaintiff brings his claim pursuant to 42 U.S.C. § 1983, though he does not specify which Constitutional protection he believes was violated. The defendant moves to dismiss the Amended Complaint (the "Complaint") pursuant to Rule 12(b)(6), Fed. R. Civ. P., arguing that this action is barred by three prior stipulations of settlement in which plaintiff released all then-existing claims against the City of New York and its employees.

Subsequent to the claim in this action having arisen, the plaintiff executed a formal release of any and all claims against the employees of the City of New York, of which defendant is one. Accordingly, plaintiff waived his right to file suit prior to commencing this action, and the motion to dismiss is granted. BACKGROUND

For the purposes of this motion, all non-conclusory factual allegations are accepted as true, see Ashcroft v. Iqbal, 556 U.S. 662 (2009), and all reasonable inferences are drawn in favor of the plaintiff. See In re Elevator Antitrust Litig., 502 F.3d 47, 50 (2d Cir. 2007).

Plaintiff alleges that at approximately 1:40 p.m. on September 12, 2011, he was being escorted through intake at the George Motchan Detention Center at Rikers Island when the defendant injured him. (Compl't at 2-3.) As described in the Complaint, the defendant "violently and forcefully grab [sic] my arm twisting it while squeezing it repeatly [sic]." (Compl't at 3.) Plaintiff alleges that he saw "someone I knew" and "attempt[ed] to pass my Book and case number" to this individual. (Compl't at 3.) Plaintiff states: "I have witness[ed] officers give detainees outside fast food, ciggerates [sic] and hair products that they personally brought from home among other many contraband items . . . . There was nothing illegal with giving my information." (Compl't at 3.) Plaintiff contends that the defendant previously displayed hostility toward him: "Earlier that day Captain Douglas had an [sic] negative attitude with this writer. This was a hateful act of violence." (Compl't at 3.) He states that the defendant was "trying to provoke a confrontation then had me go back in the bullpin to stay longer although the other detainees from mental observation was being escorted back. I would not argue with her." (Compl't at 3.) Plaintiff states that the incident was captured by surveillance video, and that he received medical treatment for his injuries, including a bandage and pain medication. (Compl't 3.) In his prayer for relief, plaintiff seeks $2,500 and an apology. (Compl't at 5.)

As noted, the Complaint does not allege which Constitutional protection the plaintiff believes was violated. Reviewing the Complaint with the special solicitude afforded to a pro se plaintiff, see, e.g., Weixel v. Bd. of Educ. of City of N.Y., 287 F.3d 138, 141-42 (2d Cir. 2002), plaintiff appears to assert that he was subjected to excessive force. It is unclear from the face of the Complaint whether the plaintiff was a pretrial detainee at the time of the incident or whether he was instead an incarcerated individual. If he was being processed through intake as a pretrial detainee, the excessive force claim arises pursuant to the due process clause of the Fourteenth Amendment. See, e.g., United States v. Walsh, 194 F.3d 37, 47 (2d Cir. 1999). If the plaintiff was incarcerated, his claim of excessive force arises under the Eight Amendment's prohibition against cruel and unusual punishment. See, e.g., Witkins v. Gaddy, 130 S. Ct. 1175, 1178 (2010). The legal standard for the two claims is identical. Walsh, 194 F.3d at 53.

The Complaint also states that he has two pending actions related to his incarceration: Waters v. Slack, et al., 11 Civ. 3263 (S.D.N.Y.) (JGK), and Waters v. Epps, et al., 09 Civ. 3770 (S.D.N.Y.) (BSJ). (Compl't at 6.) In addition, the defendant asserts that plaintiff previously filed three other actions, which terminated with stipulations of settlement in which plaintiff released all then-existing claims against the City of New York, its employees and agents: Waters v. Mestre, et al., 10 Civ. 4376 (S.D.N.Y.) (BSJ), Waters v. Thomas, et al., 10 Civ. 5425 (E.D.N.Y.) (RRM), and Waters v. Officer # 18363, et al., 10 Civ. 9208 (S.D.N.Y.) (ALC). The defendant has submitted copies of the settlement stipulations, each of which was executed on February 17, 2012. (Weingarten Dec. Ex. C.)

Lastly, in a letter of September 17, 2012, defense counsel contends that the Court should disregard plaintiff's opposition memorandum because plaintiff failed to submit an affidavit of service and because the memorandum was belatedly filed with the Court. Defense counsel has not identified any resulting prejudice, and in light of the plaintiff's pro se status, the Court has considered all of plaintiff's submissions, drawing every reasonable inference in his favor. RULE 12(b)(6) STANDARD.

To withstand a motion to dismiss under Rule 12(b)(6), a complaint must "contain sufficient factual matter . . . to 'state a claim to relief that is plausible on its face.'" Iqbal, 556 U.S. at 678 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Plausibility exists "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. Nevertheless, "'a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.'" Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). Courts continue to afford special solicitude for pro se complaints after Iqbal and Twombly. See Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009). DISCUSSION.

A motion to dismiss under Rule 12(b)(6) may incorporate "information of which this Court can take judicial notice." Bryant v. N.Y. State Dep't of Educ., 692 F.3d 202, 208 (2d Cir. 2012). Judicial notice is properly taken "of a document filed in another court . . . to establish the fact of such litigation and related filings." Int'l Star Class Yacht Racing Ass'n v. Tommy Hilfiger U.S.A., Inc., 146 F.3d 66, 70 (2d Cir. 1998). Publicly filed stipulations of settlement are subject to judicial notice. See Henry v. City of N.Y., 2007 WL 1062519, at *2 (E.D.N.Y. Mar. 30, 2007). In considering defendant's motion, I review the release provisions contained in stipulations of settlement that were filed in three other actions in which this plaintiff brought claims.

A Stipulation of Settlement and Order of Dismissal was filed in Waters v. Mestre, 10 Civ. 4376 (S.D.N.Y.) (BSJ) (Docket # 38) on March 20, 2012. The stipulation is executed by plaintiff, an attorney for the Corporation Counsel and was entered as an order of the Court by Judge Jones. (Id.) In the stipulation, plaintiff dismissed all claims in exchange for $300. (Id.) The stipulation includes the following provision:

In consideration for the payment of this sum, plaintiff agrees to dismissal of all the claims against the defendants and to release the defendants, the City of New York, and any present or former employees and agents of the City of New York or any entity represented by the Office of the Corporation Counsel, from any and all liability, claims, or rights of action alleging a violation of plaintiff's civil rights, from the beginning of the world to the date of the General Release, including claims for costs, expenses, and attorneys' fees.

"It is well established that settlement agreements are contracts and must therefore be construed according to general principles of contract law." Collins v. Harrison-Bode, 303 F.3d 429, 433 (2d Cir. 2002) (internal quotation marks and alteration omitted). "'Where the language of [a] release is clear, effect must be given to the intent of the parties as indicated by the language employed.'" Wang v. Paterson, 2008 WL 5272736, at *4 (S.D.N.Y. Dec. 18, 2008) (quoting Shklovskiy v. Khan, 273 A.D.2d 371 (2d Dep't 2000)). General releases are enforceable as to civil rights claims. See, e.g., Tromp v. City of N.Y., 465 Fed. Appx. 50 (2d Cir. Mar. 8, 2012) (summary order); Wang, 2008 WL 5272736, at *4-7.

Here, plaintiff executed three settlement stipulations and a general release, all of which contained the same unambiguous release provision. He released the City of New York, its agents and employees from "any and all claims" asserting a violation of plaintiff's civil rights "from the beginning of the world to the date of the General Release . . . ." (Weingarten Dec. Exs. C, D.) As consideration, the City of New York agreed to pay plaintiff sums of $300, $350 and $300. (Weingarten Dec. Ex. C.) The incident that gave rise to the present action allegedly occurred on September 12, 2011, five months prior to plaintiff's execution of the general release on February 17, 2012 and six months before the settlement stipulations were filed.

I have reviewed plaintiff's submissions in opposition, construing them in the light most favorable to the plaintiff as a pro se litigant. Plaintiff contends that he signed an initial complaint on November 11, 2011, but that prison officials destroyed his outgoing mail. (Docket # 18.) He contends that he intended the previously executed releases to apply only to those actions and that he "did not clearly understand the trickery" underlying their terms. (Id.) Plaintiff also contends that video footage of his encounter with the defendant is probative evidence of the defendant's liability. (Id.) He asserts that, as a pro se litigant, the defendant's motion is "confusing." (Id.)

Separately, in a letter dated July 6, 2012, plaintiff requested that the Court order the George Motchan Detention Center to produce video evidence of the incident in which he was allegedly harmed. Plaintiff also asserts that officials have been destroying and/or tampering with his mail. He argues that the previously executed stipulations of settlement do not govern this case, stating: "These professional, trained lawyers want to play with words and take advantage of the plaintiff who is a Brad H detainee under mental health care who has been denied legal representation repeat[ed]ly." He argues that in yet another action, Waters v. Epps, et al., 09 Civ. 3720 (BSJ) (JCF), he never received payment in the agreed-upon settlement, which was executed in October, 2010. He cites this non-performance as an example of the tactics used by Corporation Counsel, although the defendant does not rely on the release provision in Waters v. Epps in moving to dismiss.

Plaintiff's submissions do not defeat the motion to dismiss. The text of the stipulations of settlement and the general release expressly release all then-existing claims against the City of New York, its agents and employees. The plaintiff's assertion of "trickery" is conclusory, and sets forth no supporting facts as to how he was misled by counsel. Similarly, plaintiff's assertions as to his difficulties with submitting papers via the mail do not speak to the scope of the release. Plaintiff's assertion concerning video evidence of the incident with the defendant goes to the evidence in support of his claim, which is not a subject of this motion. Construing the Complaint and opposition papers in the light most favorable to the plaintiff, he has not set forth any basis to conclude that the settlement stipulations should not be enforced.

Because the Complaint fails to state a claim in light of the previously executed release provisions, the defendant's motion is granted and the case is dismissed. CONCLUSION

The defendant's motion to dismiss is GRANTED. (Docket # 13.) The Clerk is directed to terminate the motion and enter judgment for the defendant.

Counsel for defendant is directed to transmit copies of all unreported decisions cited herein to plaintiff. The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this Order would not be taken in good faith, and therefore in forma pauperis status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).

SO ORDERED. Dated: New York, New York

November 14, 2012

/s/_________

P. Kevin Castel

United States District Judge