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holding that "without an allegation that the process has been improperly perverted `after' its issuance, a claim of abuse of process must be dismissed, even though the defendant acted maliciously in initiating the process"
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98 Civ. 7132 (SHS)
February 26, 2002
OPINION ORDER
Charles Jones brings this civil rights action pro se against a host of private and public defendants. He seeks more than one half billion dollars in damages. The gravamen of his complaint is that Donald Trump and Marla Maples instigated a conspiracy amongst all of the defendants, including Manhattan District Attorney Robert Morgenthau, to falsely arrest and prosecute him for harassment and violating protective orders that had been issued against him. The complaint also contains several unrelated contract and conversion claims. Defendants have moved pursuant to Fed.R.Civ.P. 12(b)(6) to dismiss the complaint for failure to state a claim upon which relief can be granted. For the reasons set forth below, that motion is granted and the complaint is dismissed.
BACKGROUND
I. The Alleged Conspiracy
For purposes of this motion only, the Court assumes the truth of Jones's version of events, which is as follows:
Jones claims he began working for Marla Maples as a personal assistant, publicist, accountant, and "all-around-crying towel" in 1986. (Compl. ¶ 18; references to "Compl." or "complaint" are to the second amended complaint.) For compensation, Maples promised to pay Jones a commission if he obtained employment for her in the entertainment industry. (Compl. ¶ 18.) In early 1992, however, Jones fell out of Maples's favor because Donald Trump wanted to take over as her personal manager. (Compl. ¶ 18.) Maples ultimately refused to pay Jones the commissions which he had earned. (Compl. ¶ 18.) Indeed, Maples and Trump told Jones that they would not pay him unless he signed a nondisclosure agreement regarding his inside knowledge of Maples's relationships with a variety of men. (Compl. ¶ 18.) Jones refused to sign. (Compl. ¶ 18.)
In June of 1992, Jones was arrested for allegedly breaking into Maples's apartment and taking her shoes, underwear, photographs and private papers, as well as for illegal possession of a weapon. See Jones v. Maples, 257 A.D.2d 53, 54, 691 N.Y.S.2d 429, 430 (1st Dep't 1999). In 1993, a jury convicted Jones of burglary, criminal possession of stolen property, and criminal possession of a weapon. See Jones v. Newman, No. 98 Civ. 7460, 1999 WL 493429, at *1 (S.D.N.Y. June 30, 1999).
That same year, while those criminal charges were pending, Jones filed a breach of contract action against Maples in New York Supreme Court.See Jones v. Maples, 257 A.D.2d at 54. Jones claims that Maples and Trump responded to that lawsuit and Jones's refusal to sign the non-disclosure agreement by conspiring with the other defendants in this action to intimidate Jones into remaining silent about their affairs and dealings. (Compl. ¶¶ 18, 48.)
Jones initiated several other lawsuits concerning the events surrounding his 1992 arrest. In July 1994, he filed three libel actions against newspapers that had published stories about the arrest. See Jones v. Globe International, Inc., Nos. 3 94 CV-01468, 3:94:CV-1511, 3:94:CV-01512, 1995 WL 819177 (D. Conn. Sept. 26. 1995) Jones also filed a lawsuit against the Plaza Hotel, where the arrest was made. See Jones v. Plaza Hotel, 249 A.D.2d 31, 671 N.Y.S.2d 231 (1st Dep't 1998). In 1995 and 1996, he filed two omnibus lawsuits in federal court against other parties connected to the arrest, including, among others, Maples, Trump, and Morgenthau. See Jones v. Trump, Nos. 96 Civ. 2995 96 Civ. 6927, 1997 WL 277375, at *2 (S.D.N.Y. May 27, 1997), amended by 971 F. Supp. 783 (S.D.N.Y. 1997). aff'd, (2d Cir. Sept. 21, 1998). All of these lawsuits have been dismissed. See Newman, 1999 WL 493429, at *2.
The conspiracy allegedly commenced in 1995 after Jones faxed a nude photograph of Maples to various individuals and the media. (Compl. ¶ 44.) Maples and Trump falsely alleged that the nude photo was not that of Maples. (Compl. ¶ 44.) To retaliate, Maples and Trump enlisted the help of District Attorney Morgenthau who allegedly agreed to use his office and the New York City Police Department to bring harassment charges against Jones. (Compl. ¶ 43.) See Jones v. Maples, 257 A.D.2d at 55. Judge Cataldo of the Criminal Court of New York City issued an arrest warrant and Jones was arrested on October 5, 1995. See Trump, 971 F. Supp. at 788-89. When Maples and Trump refused to testify, the charges were dismissed. (Compl. ¶ 46.)
In the meantime, Jones unsuccessfully appealed his 1993 criminal convictions through the state court system. See People v. Jones, 227 A.D.2d 195, 642 N.Y.S.2d 246 (1st Dep't 1996), appeal denied, 88 N.Y.2d 937, 670 N.E.2d 455. 647 N.Y.S.2d 171 (1996). In September 1996, however, a federal judge, Shira A. Scheindlin, granted Jones's habeas corpus petition for a new trial. See Jones v. Vacco, No. 96 Civ. 4907. 1996 WL 535544 (S.D.N.Y. Sept. 19, 1996), aff'd, 126 F.3d 408 (2d Cir. 1997). Judge Scheindlin held that Jones's Sixth Amendment right to counsel had been violated when the state trial judge ordered him to refrain from consulting with his attorney during a prolonged break in the prosecution's cross-examination of him. See Jones v. Vacco, 944 F. Supp. 229, 230 (S.D.N.Y. 1996).
In the spring of 1997, while Jones awaited re-trial, Judge Scheindlin dismissed two consolidated civil suits that Jones had brought against Maples, Trump, Morgenthau, and others. See Trump, 1997 WL 277375, at *2. The suits focused on Jones's 1992 arrest for burglary, but claims for false arrest and unlawful imprisonment arising out of Jones's 1995 arrest for harassment were also dismissed. See Trump, 971 F. Supp. at 788. Leave to replead was denied because the claims were not even arguably meritorious, but rather "fantastic and delusional," and "an attempt to use the courts to harass defendants through a continued course of vexatious litigation." Trump, 1997 WL 277375, at *9. When a panel of the United States Court of Appeals for the Second Circuit affirmed that decision, Jones sued Judge Scheindlin and the Second Circuit judges for conspiring to deprive him of his constitutional rights. See Newman, 1999 WL 493429, at *5. That suit was dismissed and Jones was enjoined "from filing any civil lawsuit in a court of the United States, except a petition for habeas corpus, without leave of such court." Id. at *14. By that time, however, Jones had already filed the instant suit.
The alleged conspiracy against Jones continued in February 1998, when Jones sought to videotape his deposition of Maples for one of his lawsuits against her. (Compl. ¶¶ 52-53.) Maples's attorney, defendant Jeffrey Goldman, attempted to prevent the deposition by submitting to the presiding judge nude photographs of Maples and Trump which he said Jones had faxed to their friends and family. (Compl. ¶¶ 52, 20, 22-23, 68.) Goldberg allegedly falsely represented to the judge that the photographs resembled Maples and Trump only because they had been altered by Jones. (Compl. ¶ 52.) The Appellate Division ultimately concluded that, in light of evidence that Jones was motivated by a desire to embarrass and harass Maples, such a deposition was "a frightening prospect" and limited him to written interrogatories. See Jones v. Maples, 257 A.D.2d at 54.
Soon thereafter, in March 1998, the conspirators allegedly engineered Jones's second arrest for harassment. (Compl. ¶ 19.) According to Jones, they did this to prevent him from faxing unflattering material about Maples and Trump to various individuals and the media. (Compl. ¶ 34.) Maples and Trump allegedly "induced and enlisted" Morgenthau, Assistant District Attorney Kevin Woods, the Trump Organization, Matthew Calamari, International Creative Management, CBS Entertainment, Edgar Bronfman, Jr., Mary Trump, Lisa Roina, and others to accuse Jones of altering the photographs which he had faxed to them by superimposing the faces of Maples and Trump on the bodies of nude models. (Compl. ¶¶ 24-26.) Morgenthau directed his office's spokesperson, defendant Barbara Thompson, to disseminate this allegedly baseless charge to other members of the media. (Compl. ¶ 39.) Thompson agreed, and the The New York Times published her comments. (Compl. ¶ 40.) See Charlie LeDuff,Press Agent is Charged with Harassing Trump Family, N.Y. Times, March 5, 1998, at B3. All the while, the defendants knew that the photographs were in fact genuine pictures of Maples and Trump, and that they had not been altered by Jones. (Compl. ¶¶ 25-26.)
On March 4, 1998, Police Officer Deborah McLaughlin, who was assigned to the District Attorney's office, arrested Jones as he exited the state courthouse in Manhattan. (Compl. ¶ 21.) See Jones v. Maples, 257 A.D.2d at 55. In a misdemeanor criminal complaint, Jones was charged with menacing, harassment, and criminal contempt. (State Defs.' Mem. Ex. A.) The criminal contempt charges arose out of Jones's alleged violation of various protection orders which directed him to "refrain from harassing, intimidating, threatening and otherwise interfering with [Maples, Trump, and] any member of their families and household" and not to "telephone, fax, send or mail letters" to Maples, Trump, Tiffany Trump, and Janie Elder, "or to have anyone else communicate with them on his behalf" (State Defs.' Mem. Ex. A.) McLaughlin recounted in the complaint that she had been informed by numerous individuals associated with Maples and Trump that they had received obscene letters and faxes between December 1996 and February 1998 and that Bell Atlantic telephone records indicated that the faxes originated from Jones's home telephone line in Greenwich, Connecticut. (State Defs.' Mem. Ex. A.)
After the arrest, McLaughlin allegedly seized Jones's property, including a tape recorder, nine audio cassette tapes, and a briefcase containing various documents which Jones does not identify. (Compl. ¶ 29.) McLaughlin then jailed Jones for approximately two days before he was released on bail. (Compl. ¶¶ 32, 70.) When the property that McLaughlin seized was returned to Jones a year later, the tape recorder and one cassette were damaged, and a portion of another cassette had been erased. (Compl. ¶ 31.) The erased portion had contained conversations that Jones had surreptitiously recorded between McLaughlin, Woods, and an unidentified police officer in which someone allegedly admitted that Morgenthau's personal relationship with Trump was behind the charges against Jones. (Compl. ¶ 31.)
Jones filed a motion seeking dismissal of the criminal complaint on the grounds that (1) it was facially insufficient, (2) the court lacked jurisdiction, (3) venue was improper, (4) the harassment counts violated the First Amendment, (5) and the criminal contempt counts were based upon invalid orders of protection. On February 2, 1999, New York City Criminal Court Judge Eileen Rakower denied Jones's motion in its entirety. (State Defs.' Mem. Ex. B.)
In May 1999, Jones was re-tried on the criminal charges stemming from the 1992 break-in of Maples's apartment. The jury convicted him of burglary and possession of a weapon, but acquitted him of possession of stolen property. See Jones v. Maples, No. 131739, 1999 WL 1427659, at *1 (N.Y.Sup.Ct. July 12, 1999). State appellate courts have since affirmed the conviction. See People v. Jones, 281 A.D.2d 283, 722 N.Y.S.2d 138 (1st Dep't 2001), appeal denied, 96 N.Y.2d 831, 754 N.E.2d 211, 729 N.Y.S.2d 451 (2001), reconsideration denied, 96 N.Y.2d 903, 756 N.E.2d 88, 730 N.Y.S.2d 800 (2001).
In June 1999, defendant ADA Woods successfully sought dismissal of the 1998 harassment charges. (Pl.'s Reply at 17; State Defs.' Mem. Ex. C. at 8-14.) The court dismissed the charges "without any finding on the merits one way or the other." (State Defs.' Mem. Ex. C at 14.)
II. Procedural History and the Second Amended Complaint
Jones filed this action in October 1998. In the original complaint, Jones named, in addition to the current defendants, the Plaza Hotel, CDL Hotels, CBS Entertainment, Lisa Roina, Edgar Bronfman, Jr., and International Creative Management. Jones has stipulated to those parties' dismissal from the case and filed a first amended complaint and second amended complaint incorporating the stipulated dismissals as well as new malicious prosecution claims.
The thirty-three page second amended complaint, which invokes both federal question and diversity jurisdiction, contains 194 paragraphs and fifteen "causes of action." Jones makes federal constitutional and/or state claims of malicious prosecution, false arrest, unlawful search and seizure, malicious use and abuse of process, retaliatory prosecution, conspiracy, violation of the New York Constitution, intentional infliction of emotional distress, "prima facie tort of harassment," "services rendered and expenses," breach of contract, and conversion of property.
As noted above, the defendants have now moved to dismiss the second amended complaint for failure to state a claim upon which relief can be granted. See Fed.R.Civ.P. 12(b)(6). In opposing that motion, Jones has withdrawn all claims for damages against defendant Thompson (Pl.'s Reply at 11) and his malicious prosecution claims against defendant Woods (Pl.'s Reply at 4).
DISCUSSION
I. Standard of Review
A court may grant a Rule 12(b)(6) motion to dismiss for failure to state a claim only if "`it appears beyond doubt that the plaintiff can prove no set of facts in support of [her] claim which would entitle [her] to relief'" Tarshis v. Riese Org., 211 F.3d 30, 35 (2d Cir. 2000) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). The court must accept as true all of the factual allegations set out in plaintiff's complaint, draw inferences from those allegations in the light most favorable to plaintiff, and construe the complaint liberally. See id. (citing Desiderio v. National Ass'n of Sec. Dealers, Inc., 191 F.3d 198, 202 (2d Cir. 1999)). These rules apply "with greater force where the complaint is submitted pro se." Flaherty v. Lang, 199 F.3d 607, 612 (2d Cir. 1999).
In applying these principles, the district court "must confine its consideration to facts stated on the face of the complaint, in documents appended to the complaint or incorporated in the complaint by reference, and to matters of which judicial notice may be taken." Tarshis, 211 F.3d at 39 (citing Allen v. WestPoint-Pepperell, Inc., 945 F.2d 40, 44 (2d Cir. 1991)). It is proper to take judicial notice of pleadings from other lawsuits attached to a defendant's motion to dismiss, "not for the truth of the matters asserted in the other litigation, but rather to establish the fact of such litigation and related filings." Ezra Charitable Trust v. Frontier Ins. Group, Inc., No. 00 Civ. 5361, 2002 WL 87723, at *3 n. 1 (S.D.N.Y. Jan. 23, 2002) (citing Kramer v. Time Warner, Inc., 937 F.2d 767, 774 (2d Cir. 1991)); Rothman v. Gregor, 220 F.3d 81, 92 (2d Cir. 2000). Moreover, the mandate to construe pro se pleadings liberally makes it appropriate to look outside the four corners of the complaint to consider the facts set forth in a pro se plaintiff's opposition papers. See Samuels v. Stone, No. 98 Civ. 776, 1999 WL 624549, at *5 n. 1 (S.D.N.Y. Aug. 17, 1999) (citing Gill v. Mooney, 824 F.2d 192, 195 (2d Cir. 1987)).
II. Claim Preclusion
Jones makes allegations against Trump, Maples, and Morgenthau concerning his arrest for harassment in 1995. Jones, however, has already litigated — and lost — a lawsuit against those defendants concerning that arrest. See Trump, 971 F. Supp. at 788. Therefore, with the exception of his malicious prosecution claims, which were premature at the time the first lawsuit was filed, all present claims arising out of the 1995 arrest are precluded by the doctrine of res judicata. See Maharaj v. Bankamerica Corp., 128 F.3d 94, 97 (2d Cir. 1997) (citingFederated Dep't Stores, Inc. v. Moitie, 452 U.S. 394, 398 (1981)). Day v. Moscow, 955 F.2d 807, 811 (2d Cir. 1992). Moreover, the 1995 federal and state malicious prosecution claims cannot stand against District Attorney Morgenthau because he enjoys absolute prosecutorial immunity with respect to those claims. See Day v. Morgenthau, 909 F.2d 75, 77 (2d Cir. 1990); Rodrigues v. City of New York, 193 A.D.2d 79, 86, 602 N.Y.S.2d 337 (1st Dep't 1993) (citing Arteaga v. New York, 72 N.Y.2d 212, 217 n. 1, 527 N.E.2d 1194, 532 N.Y.S.2d 57 (1988)).
Both Morgenthau and Woods also enjoy immunity from the 1998 malicious prosecution claims. See Day, 909 F.2d at 77; Rodrigues, 193 A.D.2d at 86.
III. Section 1983 Claims
Jones's federal claims arise under 42 U.S.C. § 1983 which provides that an individual may sue any person who, under color of state law, deprives him of "any rights, privileges, or immunities secured by the Constitution and laws of the United States." 42 U.S.C. § 1983. In order to state a claim under this provision, "a plaintiff must allege (1) that the challenged conduct was attributable at least in part to a person acting under color of state law, and (2) that such conduct deprived the plaintiff of a right, privilege, or immunity secured by the Constitution or laws of the United States." Dwares v. City of New York, 985 F.2d 94, 98 (2d Cir. 1993).
A. State-Action Requirement
Because of the first requirement — the state action requirement — all of the section 1983 claims in the complaint which arise out of the 1995 and 1998 arrests — false arrest, malicious prosecution, unlawful search and seizure, malicious abuse of process, retaliatory prosecution, and conspiracy to engage in all of the foregoing — must be dismissed as against Trump, Maples, the Trump Organization, Calamari, Donald Trump, Jr., and Goldman. The only concrete factual allegation in the complaint related to the arrests concerning these individuals is that they supplied false information to the government. (Compl. ¶¶ 24-26.) However, a private party's "`providing false information to an arresting officer is not, by itself, sufficient to state a claim against that private party under § 1983.'"D'Agostino v. New York State Liquor Auth., 913 F. Supp. 757, 770 (W.D.N.Y.) (quoting Moore v. Marketplace Rest., Inc., 754 F.2d 1336, 1352 (7th Cir. 1985)), aff'd, 104 F.3d 351 (2d Cir. 1996); see also Adickes v. S.H. Kress Co., 398 U.S. 144, 152 (1970).
Jones also alleges that Goldman furthered the conspiracy on behalf of Maples and Trump by providing false information to the presiding judge in one of Jones's civil suits. (Compl. ¶ 52.) This allegation is likewise insufficient to satisfy the state action requirement. See D'Agostino, 913 F. Supp. at 770.
B. Deprivation of Right
Thus, the only defendants against whom Jones could even possibly state valid section 1983 claims are the state defendants — District Attorney Morgenthau, Assistant District Attorney Woods, Police Officer McLaughlin, and the City of New York. Even so, Jones must still plead the second element of a section 1983 claim — that the conduct of those defendants deprived him of a right, privilege, or immunity secured by the Constitution or laws of the United States. As explained in the remainder of section III of this opinion, Jones does not adequately plead this second element, and the complaint's (1) substantive section 1983 claims, (2) conspiracy claims, and (3) claim against the City of New York, must be dismissed as against all defendants.
1. Substantive Section 1983 Claims
The Court reads the complaint as an attempt to allege five deprivations of right normally cognizable in federal court pursuant to section 1983: false arrest, malicious prosecution, unlawful search and seizure, malicious abuse of process, and retaliatory prosecution. For the following reasons, none of these claims survive a motion to dismiss.
Jones has withdrawn his federal and state malicious prosecution claims against Assistant District Attorney Woods. (Pl.'s Reply at 4.)
a. False Arrest and Malicious Prosecution
Jones complains that the defendants falsely arrested and maliciously prosecuted him for harassment stemming from his 1995 and 1998 faxing activities. As explained above, all of the 1995 claims are barred by the combined effect of the res judicata doctrine, the state-action doctrine, and absolute prosecutorial immunity. The remaining 1998 malicious prosecution claim against McLaughlin and 1998 false arrest claims against Morgenthau, Woods, and McLaughlin fail because they do not adequately plead a lack of probable cause.
There "can be no federal civil rights claim for false arrest where the arresting officer had probable cause." Singer v. Fulton County Sheriff, 63 F.3d 110, 118 (2d Cir. 1995); Posr v. Court Officer Shield #207, 180 F.3d 409, 414 (2d Cir. 1999); Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996). Likewise, to establish a claim for malicious prosecution, a plaintiff must allege "that the defendant lacked probable cause to believe the proceeding [against the plaintiff] could succeed." Posr, 180 F.3d at 417 (citing Ricciuti v. N.Y.C. Transit Auth., 124 F.3d 123, 130 (2d Cir. 1997)). However, "even if there was probable cause to arrest an individual, that does not necessarily mean there is probable cause to prosecute him." Coleman v. City of New York, No. 98 Civ. 8761, 2001 WL 474204, at *4 (S.D.N.Y. May 3, 2001). New facts might arise which make it apparent at the time prosecution is initiated that the charges were groundless. See id.
"The question of whether or not probable cause existed may be determinable as a matter of law if there is no dispute as to the pertinent events and the knowledge of the officers." Weyant, 101 F.3d at 852; cf. Posr, 180 F.3d at 416-417. Even where factual disputes exist, a section 1983 claim may fail if the plaintiff's version of events establishes probable cause to arrest. See Mistretta v. Prokesch, 5 F. Supp.2d 128, 133 (E.D.N.Y. 1998). Moreover, in assessing whether there was probable cause, the motivations of the arresting or prosecuting officers are "not a consideration." Singer, 63 F.3d at 119 (citingMozzochi v. Borden, 959 F.2d 1174, 1179-80 (2d Cir. 1992)); Broughton v. State, 37 N.Y.2d 451, 458-459, 335 N.E.2d 310, 373 N.Y.S.2d 87 (1975).
Although probable cause to arrest and probable cause to prosecute are not necessarily interchangeable, see Posr, 180 F.3d at 417; Coleman, 2001 WL 474204, at *4. Jones's own version of events, as set forth in the complaint and supporting papers, establishes that probable cause existed to both arrest and prosecute him for harassment in 1995 and 1998. Jones vigorously denounces as "false" the allegations that he doctored photographs, (Compl. ¶¶ 20, 23, 25, 44, 68, 93), but even in the face of a direct challenge from the defendants, (State Defs.' Memo at 15-16), Jones never denounces as "false" the allegation that he faxed what he considers to be real nude photos, (Pl.'s Reply at 13-15). To the contrary, a main theme of Jones's complaint is that defendants curtailed speech protected by the First Amendment when they acted to stop him from sending out the pictures. (Compl. ¶¶ 22, 34, 35, 36, 38, 43, 44, 67, 90, 98, 99, 136.) In this way, Jones's concedes that he did fax what he believed to be nude pictures of Trump and Maples, and that the recipients relayed this fact to the authorities.
Moreover, in addition to having received reports that Jones was transmitting the photos, the arresting and prosecuting authorities were also aware of the indisputable fact that Jones had been arrested, tried, and convicted for burglarizing Maples's apartment, taking her shoes and underwear, and possessing a firearm, and that there were court-issued protective orders lodged against him. (State Defs.' Mem. Ex. B at 2 n. 1.) Taken together, all of this information is the same quantum of information contained in the misdemeanor complaint filed against Jones in 1998. (State Defs.' Mem. Ex. A.) As New York City Criminal Court Judge Eileen Rakower decided, that amount of information was sufficient to sustain an arrest and subsequent prosecution for the most serious of the misdemeanors with which Jones was charged in either 1995 or 1998 — menacing in the second degree in violation of N.Y. Penal Law § 120.14. (State Defs.' Mem. Ex. B at 7-8.)
Fully crediting Jones's insistence that the defendants have falsely accused him of doctoring the photos does not detract from the probative value of his admitted conduct in terms of probable cause to arrest and prosecute him. In other words, probable cause existed regardless of whether the defendants lied about Jones altering or doctoring the photographs. Moreover, Jones's allegation that the defendants were motivated by a desire to silence him, accepted as true for purposes of this motion, does not erase the fact that, through his admitted conduct, he had supplied them with probable cause.
b. Unlawful Search and Seizure
Jones alleges at various points in the complaint that defendants conspired to violate his Fourth Amendment right to be free of unreasonable searches and seizures. (Compl. ¶¶ 29-33, 77, 79.) As explained above, however, the complaint pleads facts which establish that there was probable cause to arrest Jones. Therefore, that arrest, and the ensuing search and seizure of his person and belongings, did not violate the Fourth Amendment.
c. Malicious Use and Abuse of Process
Jones's second cause of action asserts, in part, "malicious use and abuse of process." (Compl. ¶ 24.) Malicious use of process is the same claim as malicious prosecution; therefore, Jones's claim of the former must be dismissed along with the latter. See Coleman, 2001 WL 474204, at *4 n. 4. Nevertheless, Jones is correct that section 1983 liability may lie separately for the tort of malicious abuse of criminal process. See Cook v. Sheldon, 41 F.3d 73, 79-80 (2d Cir. 1994) (citingCuriano v. Suozzi, 63 N.Y.2d 113, 116, 469 N.E.2d 1324, 480 N.Y.S.2d 466 (1984)).
Not every use of process motivated by selfishness or maliciousness gives rise to an abuse of process claim. See Curiano, 63 N.Y.2d at 117 (citing Hauser v. Bartow, 273 N.Y. 370, 374, 7 N.E.2d 268 (1937) ("Every one has a right to use the machinery of the law, and bad motive does not defeat that right.")). There must be an abuse of process which has as its direct object an effect outside the intended scope of operation of the process employed. Compare Curiano, 63 N Y2d at 116 (no abuse of process where defendant initiated libel action with dual purpose of punishing free speech and electoral participation and inflicting expense and burden), and Hauser, 273 N.Y. at 374 (no abuse of process where the defendant initiated incompetency proceeding with dual purpose of damaging the alleged incompetent and enriching herself), with Board of Educ. v. Farmingdale Classroom Teachers Ass'n, 38 N.Y.2d 397, 404, 343 N.E.2d 278, 380 N.Y.S.2d 635 (1975) (abuse of process where the defendant subpoenaed 87 of school district's teachers to testify on the same day with purpose of inflicting economic harm on the school district)and Dean v. Kochendorfer, 237 N.Y. 384, 390, 143 N.E. 229 (1924) (abuse of process where magistrate issued an arrest warrant for disorderly conduct with purpose of bringing arrested person into court for an unrelated disciplinary rebuke). Thus, without an allegation that the process has been improperly perverted "after" its issuance, a claim of abuse of process must be dismissed, even though the defendant acted maliciously in initiating the process. Curiano, 63 N.Y.2d at 117.
Jones alleges that defendants abused process by bringing harassment charges against him to settle a personal vendetta held by Trump and Maples, to prevent him from writing a book about their "nefarious lifestyle," to "silence plaintiff's criticism of defendants," to undermine his credibility, to harm his business, reputation, and person, and to "extort a non-disclosure agreement." (Compl. ¶¶ 85-90.) In other words, Jones alleges only that defendants acted vengefully or maliciously in bringing the charges. See Curiano, 63 N.Y.2d at 117. Because he does not also allege that the charges were improperly used "after" they were brought; i.e., that the perverted operation of the process itself tended to effect the defendants' malicious objectives, his section 1983 claim for abuse of process must be dismissed. See id.;Hauser, 273 N.Y. at 373-74.
d. Retaliatory Prosecution
The remainder of Jones's second cause of action and his third cause of action allege that the defendants arrested and prosecuted him in order to halt his exercise of First Amendment rights. (Compl. ¶¶ 82-104.) "To state a § 1983 claim for retaliation for the exercise of First Amendment rights, a plaintiff must show that his activity was protected by the First Amendment and the defendant's conduct complained of was in response to that protected activity." Posr, 180 F.3d at 418. When retaliation comes in the form of arrest and prosecution, however, there is no need to examine the motive of the defendant if there were reasonable grounds to believe that probable cause existed to arrest the plaintiff "independent of the defendants' motive." Mozzochi, 959 F.2d at 1180 (citing Magnotti v. Kuntz, 918 F.2d 364, 368 (2d Cir. 1990)); Posr, 180 F.3d at 418. In such a case, a complaint which alleges only conclusory and speculative chilling of First Amendment rights should be dismissed. See Spear v. Town of West Hartford, 954 F.2d 63, 67 (2d Cir. 1992).
Judge Rakower has already determined that prosecution of Jones for his faxing did not run afoul of the First Amendment. (Defs.' Reply Mem. Ex. B.) See generally Mozzochi, 959 F.2d at 1178 ("A criminal prosecution solely in response to a threatening communication does not violate the First Amendment."). Jones also claims, however, that defendants prosecuted him in order to stifle his non-threatening criticism of Trump, Maples, and Morgenthau. As explained above, the complaint establishes that there were in fact reasonable grounds to believe that probable cause existed to arrest and prosecute Jones for his sending out of the pictures. This constitutes "an intervening and sufficient independent ground" for arrest and prosecution that precludes Jones from establishing the required retaliatory connection between the exercise of his free speech rights and his arrest and prosecution. Cf. Posr, 180 F.3d at 418. "Thus, the defendants' motive need not be examined." Mozzochi, 959 F.2d at 1180. Indeed, because the allegation in the complaint offers nothing beyond a bare assertion that the harassment charges chilled Jones's protected speech, it must be dismissed. See Spear, 954 F.2d at 67. Jones "does not have a right under the First Amendment to be free from a criminal prosecution supported by probable cause that is in reality an unsuccessful attempt to deter or silence criticism.'" Singer, 63 F.3d at 120 (quoting Mozzochi, 959 F.2d at 1180).
2. Section 1983 Conspiracy Claims
Jones alleges in his fourth cause of action that the defendants conspired to violate his constitutional rights. (Compl. ¶¶ 105-112.) Section 1983, however, "is only a grant of a right of action; the substantive right giving rise to the action must come from another source." Singer, 63 F.3d at 119. A section 1983 conspiracy claim "will stand only insofar as the plaintiff can prove the sine qua non of a § 1983 action: the violation of a federal right." Id. (citing Adickes v. S.H. Kress Co., 398 U.S. 144 (1970)). As set forth in the previous section of this opinion, Jones's complaint does not plead an "actual violation" of any constitutional right. His section 1983 conspiracy allegations, therefore, must be dismissed.
3. Section 1983 Claim Against the City of New York
Jones's fifth cause of action is a section 1983 claim against the City of New York. (Compl. ¶¶ 113-23.) The City, he alleges, caused the conspiracy against him through its "hands-off" policy or custom of ignoring illegal acts committed by police officers and employees of the District Attorney's office, see Monell v. Department of Social Services, 436 U.S. 658 (1978), and through the decision-making of District Attorney Morgenthau, see Pembaur v. City of Cincinnati, 475 U.S. 469 (1986). (Compl. ¶ 119; Pl.'s Reply at 20.) However, "[t]o hold a city liable under § 1983 for the unconstitutional actions of its employees, a plaintiff is required to plead and prove . . . a denial of a constitutional right." Batista v. Rodriguez, 702 F.2d 393, 397 (2d Cir. 1983); Dukes v. City of New York, 879 F. Supp. 335, 344 (S.D.N.Y. 1995). Because, as explained above, Jones's complaint does not allege the violation of a constitutional right, he can prove no set of facts whereby the City of New York can be held liable under section 1983. Jones's fifth cause of action, therefore, is dismissed.
IV. State Law Claims
The complaint contains a gallimaufry of state law claims, some arising out of the 1995 and 1998 arrests, and others out of Jones's previous dealings with Trump and Maples. Defendants urge the Court to dismiss the supplemental state law claims pursuant to 28 U.S.C. § 1367 (c). That would be a possibility if jurisdiction in this case were based solely on the presence of a federal question. However, the complaint invokes diversity jurisdiction as well by asserting that Jones is a citizen of Connecticut. (Compl. ¶¶ 1, 6.) Thus, the Court will not dismiss the state law claims on that ground. Nevertheless, as explained below, Jones has not alleged any state law claim that can survive a motion to dismiss.
Jones's citizenship is unclear. See Newman, 1999 WL 493429, at *1 (Jones is a resident of New York).
A. False Arrest, Malicious Prosecution, Malicious Abuse of Process
In his sixth and seventh causes of action, Jones asserts state law claims of false arrest, malicious prosecution, and abuse of process. (Compl. ¶¶ 124-34.) With the exception of the state action requirement, these state causes of action have the same elements as their counterpart section 1983 claims. See Posr, 180 F.3d at 414 (false arrest) and 417 (malicious prosecution); Cook, 41 F.3d at 80 (abuse of process). Thus, they must be dismissed, as the federal claims were, for failure to state a claim upon which relief can be granted.
B. Violation of the Constitution of the State of New York
The complaint's eighth cause of action alleges that the arrest, imprisonment, and search of Jones "interfer[ed] with [his] exercise and enjoyment of rights to freedom of speech and expression as secured by [Article I, Section 8] of the Constitution of the State of New York." (Compl. ¶ 136.) This claim is a restatement of either (1) Jones's retaliatory prosecution claim, which this Court has already rejected, or (2) his claim that prosecution for harassment violated his free speech rights, which Judge Rakower rejected. (State Defs.' Mem. Ex. B at 6-8),see 28 U.S.C. § 1738; Allen v. McCurry, 449 U.S. 90, 105 (1980). Thus, this claim is dismissed as well.
C. Intentional Infliction of Emotional Distress
For his ninth cause of action, Jones alleges that the defendants intentionally inflicted emotional distress on him. (Compl. ¶¶ 141-45.) "[T]he standard for stating a valid claim of intentional infliction of emotional distress is `rigorous, and difficult to satisfy.'" Conboy v. ATT Corp., 241 F.3d 242, 258 (2d Cir. 2001) (quoting Howell v. New York Post Co., 81 N.Y.2d 115, 122, 612 N.E.2d 699, 596 N.Y.S.2d 350 (1993)). The conduct at issue must be "`so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized society.'"Stuto v. Fleishman, 164 F.3d 820, 827 (2d Cir. 1999) (quoting Howell, 81 N.Y.2d at 122). Nothing in the complaint rises to this level; accordingly, this claim must be dismissed.
D. Prima Facie Tort
Jones's tenth cause of action is "prima facie tort of harassment." (Compl. ¶¶ 146-49.) With respect to this claim, Jones contends that his false arrest, unlawful imprisonment, and malicious prosecution were "intentionally designed" by defendants to harass and silence him. (Compl. ¶¶ 147, 149.) In connection with this claim, Jones seeks $10,000,375 in compensatory damages and $10,000,000 in punitive damages.
Under the common law of New York, when a traditional tort remedy exists for a certain factual pleading, a party may plead in the alternative to that tort a cause of action for prima facie tort. See Freihofer v. Hearst Corp., 65 N.Y.2d 135, 143, 480 N.E.2d 349, 490 N.Y.S.2d 735 (1985) (citing Farmingdale Classroom Teachers, 38 N.Y.2d at 405-06); Burns, Jackson, Miller, Summit Spitzer v. Lindner, 59 N.Y.2d 314, 333, 451 N.E.2d 459, 464 N.Y.S.2d 712 (1983). However, "prima facie tort may not be invoked as a basis to sustain a pleading which otherwise fails to state a cause of action in conventional tort." Freihofer, 65 N.Y.2d at 143; see also Belsky v. Lowenthal, 47 N.Y.2d 820, 392 N.E.2d 560, 418 N.Y.S.2d 573 (1979).
Here, Jones's "prima facie tort of harassment" claim must be dismissed. The complaint seeks to make the concept of prima facie tort a "`catch-all' alternative for every cause of action which cannot stand on its own legs." Freihofer, 65 N.Y.2d at 143; Curiano, 63 N.Y.2d at 118;Butler v. Delaware Otsego Corp., 203 A.D.2d 783, 784, 610 N.Y.S.2d 664 (3rd Dep't 1994). Moreover, the claim fails to allege that defendants' "sole motivation was `disinterested malevolence,'" Burns Jackson, 59 N.Y.2d at 333, and fails to allege special damages, Freihofer, 65 N.Y.2d at 143; Curiano, 63 N.Y.2d at 117, which are prerequisites to such a claim.
E. "Services Rendered and Expenses" and Breach of Contract
In the twelfth cause of action, Jones seeks remuneration for public relations services allegedly rendered to Trump and for out-of-pocket expenses incurred in connection with those services, including the cost of sending flowers to Maples, a tab at a London disco, and tips advanced to various individuals. (Compl. ¶¶ 158-64.) This claim is barred by the applicable statute of limitations. See N.Y.C.P.L.R. § 213(2). The excuse that Jones did not sue Trump in a timely fashion because "Trump at one point indicated payment would . . . be made" (Pl.'s Reply at 28) does not change this result. The fourteenth cause of action — Maples's alleged "breach of contract" — is similarly time-barred by section 213(2) of the C.P.L.R.
F. Conversion of Property by Maples and Regan
The thirteenth cause of action is an allegation of conversion arising out of Maples's alleged 1992 theft of Jones's property, including an answering machine, pocket money, a $94 pair of size 6½ tennis shoes, private papers, diaries, and a journal. (Compl. ¶¶ 165-81.) This claim is time-barred by the three year statute of limitations. See N.Y.C.P.L.R. § 214. Jones's allegation that Maples did not "confess" that she was the thief until 1999 does not change this result. For the same reason, Jones's cross-motion for summary judgment on this claim is denied.
G. Conversion of Property by Morgenthau, Woods, and McLaughlin
Jones alleges in his eleventh cause of action that after Morgenthau, Woods, and McLaughlin arrested him, they damaged or destroyed a tape recorder and nine audio tapes worth $319.50 and unspecified "intellectual property" worth $1,000,000. Inasmuch as this claim alleges conversion of intellectual property, it must be stricken because it does not allege conversion of a "specific identifiable piece of property." Gilman v. Abagnale, 235 A.D.2d 989, 991, 653 N.Y.S.2d 176 (3d Dep't 1997). The allegation that remains — conversion of a tape recorder and nine audio tapes — does not suffer from this infirmity. However, it puts only $319.50 in controversy. (Compl. ¶ 156.) Because all of Jones's other claims have been dismissed, this $319.50 state law claim provides an insufficient basis for diversity jurisdiction, which requires an amount in controversy in excess of $75,000. See 28 U.S.C. § 1332 (a). Moreover, the Court declines to exercise supplemental jurisdiction.See 28 U.S.C. § 1367 (c)(3). This claim, therefore, is dismissed along with the rest of the complaint, and Jones's motion for summary judgment on the claim is denied.
CONCLUSION
For the reasons set forth above, the defendants' motion to dismiss the complaint is granted. Moreover, leave to amend is denied. Jones is an experienced pro se litigator, and his twice-amended thirty-three page complaint, containing 194 rambling and often scandalous paragraphs, and his thirty-one page reply brief in opposition to defendants' motion, employ every factual and legal argument at his disposal. Further amendment of these pleadings would be futile and unfair to the defendants, especially in light of the injunction issued by Chief Judge Mukasey, see Newman, 1999 WL 493429, at *14. Accordingly, the Clerk of Court is directed to enter judgment in favor of defendants with prejudice. The only claim that is being dismissed without prejudice is plaintiff's claim for conversion of a $319.50 tape recorder and nine audio tapes.