Opinion
04 CV 7335 (TPG).
March 14, 2007
OPINION
This is a pro se action against the District Attorney of Greenburgh, the Assistant District Attorney of Greenburgh, and a third defendant described as the "Arresting Officer in the Town of Greenburgh." The names are not given, but the "Doe" designation is used. Service of the summons and complaint was accepted by an Assistant District Attorney on behalf of the first two defendants. Service was accepted by the Greenburgh Police Department with respect to the third defendant.
Possibly due to a misunderstanding about the service of process, an answer has been filed only with respect to the Arresting Officer. This answer was filed by the Town Attorney of the Town of Greenburgh. At the same time a motion was filed by the Town Attorney on behalf of the Arresting Officer to dismiss the complaint under Fed.R.Civ.P. 12(b)(6) or, in the alternative, for summary judgment.
Both the answer and the motion are filed only in the name of the Arresting Officer, and not in the name of an identified individual, although it may be that at least one of the documents filed in support of the motion contains the name of such officer. However, for reasons which will appear, it is perfectly satisfactory to deal with the motion as being made on behalf of the Arresting Officer.
Plaintiff Joyce Parks claims that defendants engaged in selective prosecution. It is undisputed that Parks and one Gregory Martin were arrested in Greenburgh, New York, for possession of stolen property on June 6, 2002. The complaint alleges that while Parks was prosecuted "to the fullest extent of the law," Martin was not prosecuted at all following the arrest. Parks further alleges that while she is African American and has very dark skin, Martin is half African American and half Jewish with very light skin. As a result, she claims that in selectively prosecuting her and not Martin, defendants discriminated against her on the basis of race, sex and national origin.
Defendant Arresting Officer has introduced un-rebutted evidence that both Parks and Martin were charged, in an information, with possession of stolen property in the fifth degree. Parks pled guilty to a lesser charge of disorderly conduct in 2002 and was sentenced to a one year conditional discharge with a fine of $100. For reasons which are not clear, the processing of Martin's case was delayed. But Martin pled guilty to possession of stolen property in the fifth degree in June 2005 and was sentenced to time served. The record reflects this disposition but doesn't say how much time this was.
In her opposition to the motion, Parks states, without supporting documentary evidence, that Martin was arrested in the City of New York nine months after his arrest in Greenburgh and that the Town of Greenburgh, after receiving notice from the City of New York, failed to issue a warrant. However, Parks admits that Martin did appear in the Greenburgh court in 2005 and entered the guilty plea. She argues that he was not prosecuted until after she filed the instant lawsuit.
To prevail on an equal protection selective prosecution claim, Parks must show that (1) she was treated differently from a similarly situated individual — i.e. Martin, and (2) that the differential treatment was based on impermissible considerations, such as race. Cobb v. Pozzi, 352 F.3d 79, 99 (2d Cir. 2003).
Parks apparently claims that she was treated differently from Martin because she was prosecuted immediately in 2002, while Martin was only prosecuted in 2005. But the court concludes that this is not a material difference. As a result, Parks cannot prevail on her claim of selective prosecution.
This action is without substance. It is dismissed as to all defendants.