Opinion
23 Civ. 3018 (DEH)
07-22-2024
GLENN JOHNSON, Plaintiff, v. CITY OF NEW YORK, et al., Defendants.
OPINION AND ORDER
DALE E. HO, UNITED STATES DISTRICT JUDGE:
Plaintiff Glenn Johnson (“Plaintiff”), who is appearing pro se, brings federal, state, and municipal liability claims against the City of New York, and Individual Defendants Lorenzo Valente (“Valente”); DiCarlos Martinez (“Martinez”), Tenzin Penpa (“Penpa”); and Daniel Delacruz (“Delacruz”) (collectively, “Defendants”). Before the Court is Defendants' motion to dismiss Plaintiff's claims. For the reasons discussed herein, Defendants' motion to dismiss is GRANTED.
See Third Am. Compl. (“TAC”) 2-4, ECF No. 29; Pl.'s Opp'n to Def.'s Mot. to Dismiss (“Opposition” or “Pl.'s Opp'n”) 2-3, ECF No. 51. Plaintiff labels the latter document as an opposition to Defendants' “motion for summary judgment.” The Court assumes this was in error and that Plaintiff filed his motion in opposition to Defendants' motion to dismiss.
See ECF No. 47.
MATERIALS CONSIDERED
Ordinarily, a court does not consider any materials outside of the pleadings, such as a plaintiff's complaint, in considering a motion to dismiss. But a court may consider materials such as “documents attached to, or incorporated by reference in the Complaint,” as well as other “matters of which judicial notice may be taken.” Courts may take judicial notice of “[r]ecords of prior litigation”-including the parties' “settlement agreements and releases.” Courts are particularly inclined to take judicial notice “if the Settlement Agreement would dispose of th[e] matter” at hand. Courts may also take judicial notice of public records of, among other things, a party's indictment. Additionally, where a party proceeds pro se, courts may consider facts raised by a plaintiff's opposition brief as supplementing the pleadings.
See, e.g., Kiss v. Torres, No. 21 Civ. 10391, 2024 WL 1210941, at *2 (S.D.N.Y. Mar. 19, 2024). All references to Rules are to the Federal Rules of Civil Procedure. In all quotations from cases, the Court omits citations, alterations, emphases, internal quotation marks, and ellipses, unless otherwise indicated.
Thomas v. Westchester Cnty. Health Care Corp., 232 F.Supp.2d 273, 275 (S.D.N.Y. 2002).
Johnson v. City of New York, No. 21 Civ. 10535, 2023 WL 5629232, at *3 (S.D.N.Y. Aug. 31, 2023) (hereinafter, “Johnson I”); see also In re Nine W. LBO Sec. Litig., 505 F.Supp.3d 292, 302-03 (S.D.N.Y. 2020) (taking judicial notice of settlement agreement and release provisions); Deylii v. Novartis Pharms. Corp., No. 13 Civ. 6669, 2014 WL 2757470, at *4 (S.D.N.Y. Jun. 16, 2014) (“Settlement agreements are documents of which a court may take judicial notice in order to determine whether future claims are barred by a previous settlement.”); Smith v. DADA Ent., LLC, No. 11 Civ. 7066, 2012 WL 4711414, at *2 & n.1 (S.D.N.Y. Sept. 27, 2012) (taking judicial notice of settlement agreement in state court action and its release of future claims).
Deylii, 2014 WL 2757470, at *4.
See, e.g., May v. Levy, 659 F.Supp.3d 323, 336 (E.D.N.Y. 2023) (“The Court takes judicial notice that Plaintiff was subject to an indictment.”); Smith v. City of New York, No. 13 Civ. 2395, 2014 WL 4904557, at *1 (E.D.N.Y. Sept. 30, 2014) (taking judicial notice of an indictment).
See Nielsen v. Rabin, 746 F.3d 58, 63 (2d Cir. 2014) (considering additional facts alleged in a pro se plaintiff's opposition brief); Gadson v. Goord, No. 96 Civ. 7544, 1997 WL 714878, at *1 n.2 (S.D.N.Y. Nov. 17, 1997) (same).
With these guiding principles in mind, the Court considers or takes judicial notice of various materials outside of the Complaint. Specifically, the Court considers or takes judicial notice of the following materials:
First, “[b]ecause Plaintiff is proceeding pro se, the Court will [] consider the factual assertions raised for the first time in his Opposition briefs to the extent they are consistent with” Plaintiff's operative complaint, the Third Amended Complaint (“TAC”).
Kiss, 2024 WL 1210941, at *2.
Second, the Court will take judicial notice of materials in the public record. Specifically, it notices “Plaintiff's indictment paperwork in his underlying criminal matter,” which is attached to Defendant's motion to dismiss, because it is in the public record. The Court additionally takes judicial notice of Plaintiff's Certificate of Acquittal, which is attached to Plaintiff's Opposition.
Anderson Decl. ¶ 5; see id. Ex. C (hereinafter, “Grand Jury Indictment”), ECF No. 49-3.
See Blount v. Moccia, No. 16 Civ. 4505, 2017 WL 5634680, at *2 n.5 (S.D.N.Y. Nov. 21, 2017) (taking “judicial notice of the grand jury indictment-attached as an exhibit to Defendants' motion-as a public record”).
See Pl.'s Opp'n at 7.
Third, the Court will take judicial notice of the general release signed by the parties in a prior lawsuit. In so doing, the Court places significant weight on several factors. First, it is clear from Plaintiff's Opposition that Plaintiff has knowledge of the General Release and its terms and that he does not dispute its existence. Second, the “General Release will help [the Court] determine whether Plaintiff's entrance into that agreement bars his current claims,” which weighs further in favor of taking judicial notice of the document. Finally, the General Release is a record of prior litigation, as it was at issue in at least two prior lawsuits brought by Johnson against the City of New York.
See Anderson Decl. Ex. B (hereinafter, “General Release”), ECF No. 49-2.
See Pl.'s Opp'n 3 (explaining Plaintiff's understanding of the General Release's terms).
Johnson I, 2023 WL 5629232, at *4; see also Deylii, 2014 WL 2757470, at *4 (noting that it is appropriate to take judicial notice “if the Settlement Agreement would dispose of this matter”).
See Johnson I, 2023 WL 5629232, at *4 (taking judicial notice of the general release in part because it had been previously raised “in Glenn Johnson v. City of New York, et al., 19-CV-9664”).
BACKGROUND
The following facts are drawn from Plaintiff's TAC, as supplemented by Plaintiff's Opposition, and are assumed true for the purposes of resolving this motion. As discussed supra, the Court takes judicial notice of additional materials. “When the Court takes judicial notice of a document, it takes notice of the document's existence, not the truth of the statements asserted in the document.”
See Buon v. Spindler, 65 F.4th 64, 76 (2d Cir. 2023); Kiss, 2024 WL 1210941, at *2 (considering the plaintiff's opposition).
Bloomingburg Jewish Educ. Ctr. v. Vill. of Bloomingburg, N.Y., 111 F.Supp.3d 459, 477 (S.D.N.Y. 2015) (citing Global Network Commc'ns, Inc. v. City of New York, 458 F.3d 150, 157 (2d Cir. 2006)).
A. Factual History
1. The Incident
Plaintiff was falsely arrested on November 7, 2019, at 2085 Lexington Avenue, New York, New York. Police officers had been called to the area because a woman “was touching people in the store” where Plaintiff was purchasing items. “[T]he lady that was touching people in the store could not be found.” Notwithstanding that Plaintiff “did not commit any sex crime nor did he endanger the welfare of a child,” Plaintiff was arrested by Defendants Valente and Martinez; “held at the store” by Defendant Delacruz; and “imprisoned and maliciously prosecuted based on ‘lies' told by the N.Y.P.D. officers.” Video footage from the store “shows [Plaintiff] purchasing items from the store.”
TAC 5.
Id.
Id.
Id. at 4.
Id. at 5. While Plaintiff does not expressly describe Defendant Penpa's involvement in the incident, the Court assumes that Plaintiff intended to include Penpa in his discussion of the actions of NYPD officers generally.
Id. at 6.
After his arrest, Plaintiff was “tak[en] ¶ 100 Centre Street Court and arraigned on criminal charges,” with “bail [] set at arraignment.” Plaintiff was “detained for nearly (12) months” and “attended multiple court appearances[,] including two (2) trials.”
Id.
Id.
2. Grand Jury Indictment
Plaintiff was indicted by a grand jury on December 6, 2019. An Assistant District Attorney in the County of New York certified that a grand jury “heard evidence [in the underlying criminal matter, People of the State of New York v. Johnson] and . . . voted an indictment charging [Plaintiff] with one or more crimes.”
See Grand Jury Indictment.
Id.
3. General Release
On July 7, 2021, Plaintiff executed a General Release stating in relevant part as follows:
Know that I, Glenn Johnson . . . plaintiff in the action entitled Glenn Johnson v. Correction Officer Aldo Cruz De La Cruz, Correction Officer Aroldo Rodriguez, Captain Maria Camacho, and The City of New York, 19-CV-9564 (VSB) (SN), as “RELEASOR,” in consideration of the payment of Twenty-five Thousand ($25,000) DOLLARS to me by the City of New York, do hereby release and discharge defendants Correction Officer Aldo Cruz De La Cruz, Correction Officer Aroldo Rodriguez, Captain Maria Camacho, and The City of New York; their successors or assigns; and all past and present officials, employees, representatives, and agents of the City of New York or any entity represented by the Office of the Corporation Counsel, collectively, the “RELEASEES,” from any and all liability, claims, or rights of action alleging a violation of my civil rights and any and all
related state law claims, from the beginning of the world to the date of this General Release, including claims for costs, expenses, and attorneys' fees.
General Release.
By signing the General Release, Plaintiff agreed that he “READ THE FOREGOING RELEASE AND FULLY UNDERSTANDS IT.”
Id. (emphasis in original).
4. Acquittal
On June 23, 2023, Plaintiff was found “NOT GUILTY OF ALL PENDING CRIMINAL CHARGES” in the underlying criminal case, People of the State of New York v. Johnson.
Pl.'s Opp'n 7 (emphasis in original).
B. Procedural History
Plaintiff filed suit on April 10, 2023. On April 12, 2023, the Court issued an order granting Plaintiff's application for leave to file in forma pauperis. On April 18, 2023, the Court issued an Order of Service that, among other things, dismissed Plaintiff's claims against then-named Defendant New York City Police Department (“NYPD”) and ordered the NYPD to provide the name and contact information of the John/Jane Doe officers that had been listed as named Defendants in Plaintiff's original Complaint.
See Compl., ECF No. 1.
See Order Granting IFP Appl., ECF No. 4.
See Order of Service 3-5, ECF No. 6.
On May 4, 2023, Plaintiff filed an Amended Complaint, in which he named as an additional defendant a police officer with the surname Martinez, along with John and Jane Doe defendants.
See First Am. Compl. 3, ECF No. 11.
On August 18, 2023, Plaintiff filed a Second Amended Complaint in which he named as additional defendants NYPD Officers DiCarlos Martinez, Tenzin Penpa, and Daniel Delacruz.
See Second Am. Compl. 3, ECF No. 25.
On September 1, 2023, Plaintiff filed the TAC, the operative pleading in this case. The TAC named as an additional defendant NYPD Officer Lorenze Valente. Given that Plaintiff has named Individual Defendants, all John/Jane Doe defendants have been terminated from the docket.
See TAC.
Id. at 3. On October 16, 2023, the case was reassigned to the undersigned. See Oct. 16, 2023, Min. Entry.
On January 23, 2024, Defendants filed the motion to dismiss that is now fully briefed before the Court.
See ECF No. 47.
LEGAL STANDARDS
A. Motion to Dismiss
To survive a motion to dismiss under Rule 12(b)(6), a plaintiff must plead “enough facts to state a claim to relief that is plausible on its face.” A complaint need not contain “detailed factual allegations,” but it must offer something “more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” A plaintiff must plead “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” In resolving a motion to dismiss, the Court must accept as true all well-pleaded factual allegations in the complaint, “drawing all reasonable inferences in favor of the plaintiff.” However, the court must disregard any “conclusory allegations, such as ‘formulaic recitations of the elements of a cause of action.'”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Id. (citing Twombly, 550 U.S. at 556).
Koch v. Christie's Int'l PLC, 699 F.3d 141, 145 (2d Cir. 2012).
Sacerdote v. N.Y. Univ., 9 F.4th 95, 107 (2d Cir. 2021) (quoting Twombly, 550 U.S. at 555).
“It is well established that the submissions of a pro se litigant must be construed liberally and interpreted to raise the strongest arguments that they suggest.” “Nonetheless, a pro se complaint must state a plausible claim for relief.” In other words, “the duty to liberally construe a plaintiff's complaint is not the equivalent of a duty to re-write it.”
Meadows v. United Servs., Inc., 963 F.3d 240, 243 (2d Cir. 2020).
Id.; accord Walker v. Kosann, No. 23 Civ. 4409, 2024 WL 922642, at *7 (S.D.N.Y. Feb. 16, 2024) (“[E]ven pro se plaintiffs' claims cannot withstand a motion to dismiss unless their pleadings contain factual allegations sufficient to raise a right to relief above the speculative level.”), report and recommendation adopted, 2024 WL 923314 (S.D.N.Y. Mar. 4, 2024).
Geldzahler v. N.Y. Med. Coll., 663 F.Supp.2d 379, 387 (S.D.N.Y. 2009).
B. Leave to Amend
“Although district judges should, as a general matter, liberally permit pro se litigants to amend their pleadings, leave to amend need not be granted when amendment would be futile.”“Where the problems with a claim are ‘substantive' rather than the result of an ‘inadequately or inartfully pleaded' complaint, an opportunity to replead would be ‘futile' and ‘should be denied.'”
Terry v. Inc. Vill. of Patchogue, 826 F.3d 631, 633 (2d Cir. 2016).
In re Sanofi Sec. Litig., 87 F.Supp.3d 510, 548-49 (S.D.N.Y. 2015) (quoting Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000)), aff'd sub nom. Tongue v. Sanofi, 816 F.3d 199 (2d Cir. 2016).
DISCUSSION
A. Federal Claims
Plaintiff brings various federal claims under § 1983. To state a claim under § 1983, a plaintiff must allege both that: (1) a right secured by the Constitution or laws of the United States was violated, and (2) the right was violated by a person acting under the color of state law. Here, Plaintiff alleges that NYPD officers either perpetrated or “failed to intervene to prevent the deprivation of [Plaintiff's Eighth and Fourteenth Amendment] constitutional . . . rights” on and around November 7, 2019.
See generally TAC (bringing claims under 42 U.S.C. § 1983).
See West v. Atkins, 487 U.S. 42, 48 (1988).
TAC 2, 4; see also Pl.'s Opp'n 2.
For ease of reference, the Court divides its analysis of Plaintiff's federal claims into two sections. It first analyzes the “November 2019 claims”-which Defendants argue are barred by the July 7, 2021, General Release-and next turns to Plaintiff's § 1983 malicious prosecution claim, which Defendants argue fails as a matter of law. For the reasons explained further below, the Court agrees with Defendants. Accordingly, Plaintiff's federal claims are dismissed.
See Def.s' Br. 4-6, ECF No. 48; Def.s' Reply 7, ECF No. 54.
See Def.s' Br. at 6-8; Def.s' Reply at 2-3.
1. The November 2019 § 1983 Claims
Plaintiff's various federal claims stemming from the alleged violation of his rights in November 2019 (that is, all of his federal claims other than his malicious prosecution claim) are barred by the General Release.
General releases are “a species of contract. . . governed by principles of contract law.”“Words of general release are clearly operative not only as to all controversies and causes of action between the releasor and releasees which had, by that time, actually ripened into litigation, but to all such issues which might then have been adjudicated as a result of pre-existent controversies.” “Where the language of a release is clear, effect must be given to the intent of the parties as indicated by the language employed” by the release. Accordingly, “[c]ivil rights claims may be dismissed when a plaintiff has released a defendant from liability for those claims.”
Golden Pac. Bancorp v. FDIC, 273 F.3d 509, 514 (2d Cir. 2001).
Tromp v. City of New York, 465 Fed.Appx. 50, 52 (2d Cir. 2012).
Mateo v. Carinha, 799 Fed.Appx. 51, 53 (2d Cir. 2020).
Johnson I, 2023 WL 5629232, at *4.
In Johnson I, the Court determined that the clear and unambiguous language of the General Release at issue in this case
“release[d] and discharge[d]” any civil rights claim made by Plaintiff against “the City of New York; their successors or assigns; and all past and present officials, employees, representatives, and agents of the City of New York or any entity represented by the Office of the Corporation Counsel” . . . “from the beginning of the world to the date of [the] General Release.”The “employees” of the City of New York described by the General Release include the Individual Defendants. As the Johnson I Court explained, “this language mirrors language found to be unambiguous in the releases in” at least two other cases:
In Walker v. Corizon, the Second Circuit affirmed dismissal of a pro se plaintiff's civil rights claims against “the City, its employees, and its agents” because the plaintiff had signed a release waiving all future claims against those parties. Walker held that, since the language releasing such claims was unambiguous and the release involved the same defendants, the plaintiff's claims were barred by his signing the release. In Dinkins v. Decoteau, the plaintiff signed a release in a separate case that released “the City of New York, and all of its past and present
employees” from liability for any claims alleging violations of the plaintiff's civil rights. Because this release language was unambiguous, the Dinkins court granted the defendants' motion for summary judgment and dismissed the case. Other courts in this District have consistently reached the same conclusion.
Id. (quoting the General Release).
Id.
The Court sees no reason why it should interpret the General Release differently from how another Court in this District interpreted the same release, nor from how “[o]ther courts in this District” have interpreted similarly worded releases. Accordingly, following Johnson I, this Court determines that where “events giving rise to Plaintiff's [claims] occurred . . . before the date of the General Release,” any such claims are barred.
Id.
See, e.g., Mateo, 799 Fed.Appx. at 54 (determining that the “notably broad[, similarly worded] General Release is clear on its face” and released defendant of liability); Bolling v. City of New York, No. 18 Civ. 5406, 2020 WL 8671940, at *4 (S.D.N.Y. Nov. 19, 2020) (determining that a similarly-worded agreement “released the City and all past and present City employees and agents from any and all of [plaintiff's] potential claims that may have occurred prior to the date [the plaintiff] signed the release.”), report and recommendation adopted, No. 18 Civ. 540 2021 WL 961758 (S.D.N.Y. Mar. 15, 2021); Arzu v. City of New York, No. 13 Civ. 5980, 2015 WL 4635602, at *4 (S.D.N.Y. Aug. 3, 2015) (determining that a similarly-worded release was “clear and unambiguous; by its plain meaning, it applies to any claim by [the plaintiff] arising during the relevant period against the City and its employees”).
See 2023 WL 5629232, at *5.
Here, Plaintiff claims that Defendants violated his constitutional rights on or around November 7, 2019. Plaintiff executed the General Release on July 7, 2021. Thus, Plaintiff's November 2019 claims are barred by the General Release.
See TAC 4.
See General Release.
This includes Plaintiff's false imprisonment claim, as a false imprisonment claim under § 1983 accrues “once the victim becomes held pursuant to legal process - when, for example, he is . . . arraigned on charges.” McQueen v. City of New York, 176 N.Y.S.3d 28, 29 (App. Div. 2022) (quoting Wallace v Kato, 549 U.S. 384, 389 (2007)). Plaintiff was arraigned on or around November 7, 2019. See TAC 6 (stating that Plaintiff was arraigned after being arrested). Accordingly, Plaintiff's false imprisonment claim, which accrued before the date of the General Release, is also dismissed.
Plaintiff's primary response is that he believed that the General Release would have no impact on the present action, or on any action raised after the effectuation of that agreement.Even so, the Court has no choice but to apply general principles of contract law, which require the Court to enforce an agreement that is facially clear and unambiguous, and into which the parties voluntarily entered. The Court therefore adopts the Johnson I Court's well-reasoned analysis and determines that Plaintiff's misunderstanding “does not change [the Court's] analysis or the outcome” of this case, as the General Release is “not rendered ambiguous just because [Plaintiff] attaches a different, subjective meaning to one of its terms.” The terms of the General Release are clear and unambiguous, and they “release and discharge” Defendants “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 th[e] General Release,” i.e., July 7, 2021.
See Pl.'s Opp'n 3.
Plaintiff does not allege that he was forced to sign the General Release. He argues only that he failed to fully appreciate its terms. See generally Pl.'s Opp'n.
Johnson I, 2023 WL 5629232, at *5; see also Dinkins, 2016 WL 3637169, at *3 (rejecting the plaintiff's argument that he did not understand the release to waive the underlying claims in that case because “the unambiguous language of the [release], rather than [the plaintiff's] subjective understanding, controls.”); Bolling, 2020 WL 8671940, at *5 (“Plaintiff's pro se status in the instant case does not alter his accountability for his end of the bargain. Courts have consistently enforced similar general releases in civil rights actions brought by pro se litigants against the City and its agents.”).
General Release. Plaintiff additionally argues that he was “illegally stopped [and] searched,” TAC 4, and subjected to “unconstitutional conditions of confinement,” id. at 7, but does not allege any facts related to these charges. See generally TAC. At any rate, because these incidents occurred before July 7, 2021, the Court concludes that they, too, are dismissed.
2. Malicious Prosecution Claim
“To allege a [§] 1983 claim for malicious prosecution, a plaintiff must allege the four elements of a malicious prosecution claim under New York law . . . as well as a violation of the plaintiff's rights under the Fourth Amendment.” The four elements of a malicious prosecution claim in New York are: “(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” (“the Murphy factors”).
Ying Li v. City of New York, 246 F.Supp.3d 578, 604 (E.D.N.Y. 2017).
Murphy v. Lynn, 118 F.3d 938, 947 (2d Cir. 1997).
Here, Plaintiff states that he was “maliciously prosecuted based upon lies told by the NYPD police officers.” In support of this claim, Plaintiff alleges that he was arraigned on criminal charges, “detained for nearly (12) months,” and ultimately acquitted. Plaintiff easily alleges the first two Murphy factors-namely, that a criminal proceeding was initiated against him and that he was ultimately acquitted. But-as further explained below-Plaintiff fails to allege facts establishing the last two Murphy factors, and his malicious prosecution claim must therefore be dismissed.
TAC 5.
Id. at 6; see also Pl.'s Opp'n 7.
a. Factor Three: Probable Cause
Probable cause to prosecute consists of “facts and circumstances [that] would lead a reasonably prudent person to believe the plaintiff guilty.” Probable cause to prosecute is evaluated “in light of the facts known or reasonably believed at the time the prosecution was initiated, as opposed to at the time of arrest.” “[T]he existence of probable cause is a complete defense to a claim of malicious prosecution.” “Moreover, where a grand jury has issued an indictment, the indictment creates a presumption of probable cause that may only be rebutted by evidence that the indictment was procured by fraud, perjury, the suppression of evidence, or other police conduct undertaken in bad faith.” Courts have found bad faith sufficiently alleged where, for example, a plaintiff accused officer defendants of failing to obtain or disclose evidence inconsistent with the plaintiff's guilt, or of failing to inform the district attorney's office of exculpatory evidence. “[I]t is the plaintiff who bears the burden of proof in rebutting the presumption of probable cause that arises from the indictment.”
Boyd v. City of New York, 336 F.3d 72, 76 (2d Cir. 2003).
Drummond v. Castro, 522 F.Supp.2d 667, 677-78 (S.D.N.Y. 2007).
Savino v. City of New York, 331 F.3d 63, 72 (2d Cir. 2003).
Demaitre v. City of New York, No. 18 Civ. 12403, 2020 WL 6048192, at *2 (S.D.N.Y. Oct. 11, 2020) (emphasis added).
See McLennon v. New York City, No. 13 Civ. 128, 2015 WL 1475819, at *8 (E.D.N.Y. Mar. 31, 2015).
Savino, 331 F.3d at 73.
Plaintiff was indicted for the underlying criminal matter. There is therefore a presumption of probable cause in this case. And Plaintiff does not set forth any factual allegations sufficient to overcome that presumption. He does not, for example, identify any specific misconduct by Defendants that could support the conclusion that his indictment was procured by fraud. A plaintiff's “conjecture” that “an indictment was procured as a result of conduct undertaken by the defendants in bad faith is not sufficient,” even at the motion to dismiss stage. Plaintiff's conclusory assertion that he was maliciously prosecuted “based upon lies told by the NYPD,” cannot save his claim. “Because Plaintiff offers no allegation to rebut the presumption of probable cause” based on the indictment, “Plaintiff cannot prevail in h[is] challenge to Defendants' complete defense” to his malicious prosecution claim.
See Grand Jury Indictment.
See generally TAC (failing to allege that Defendants committed any form of fraud, perjury, suppression of evidence, or other bad faith conduct).
See Demaitre, 2020 WL 6048192, at *2.
TAC 5.
See Zietek v. Pinnacle Nursing & Rehab Ctr., No. 21 Civ. 5488, 2024 WL 243436, at *4 (S.D.N.Y. Jan. 23, 2024) (“[E]ven the pleadings of pro se plaintiffs must contain factual allegations sufficient to raise a right to relief above the speculative level.”).
May v. Levy, 659 F.Supp.3d 323, 336-37 (E.D.N.Y. 2023).
b. Factor Four: Malice
A plaintiff may satisfy the fourth Murphy factor, actual malice, by alleging “that the prosecution complained of was undertaken from improper or wrongful motives, or in reckless disregard of the rights of the plaintiff.” Here, Plaintiff pleads no facts demonstrating that Defendants commenced the underlying criminal proceeding against him due to a wrong or improper motive. Once again, Plaintiff makes a conclusory statement that Defendants told unspecified lies about him, which cannot save his claim.
Manganiello v. City of New York, 612 F.3d 149, 163 (2d Cir. 2010); see also TADCO Const. Corp. v. Dormitory Auth. of State of New York, 700 F.Supp.2d 253, 271 (E.D.N.Y. 2010) (“Actual malice requires pleading facts that show the defendant commenced the prior criminal proceeding due to a wrong or improper motive, something other than a desire to see the ends of justice served.”).
See generally TAC.
See id. at 5.
See Zietek, 2024 WL 243436, at *4.
Because Plaintiff fails to allege the third and fourth Murphy prongs of a § 1983 malicious prosecution claim, the claim must be dismissed.
Plaintiff's malicious prosecution claim may be dismissed for the additional reason that Plaintiff appears to abandon it. “A court may, and generally will, deem a claim abandoned when a plaintiff fails to respond to a defendant's arguments that the claim should be dismissed.” Elias v. City of New York, No. 19 Civ. 11411, 2021 WL 411435, at *1 (S.D.N.Y. Feb. 5, 2021). Here, Defendants argue that Plaintiff fails to plausibly plead a malicious prosecution claim under § 1983. See Def.s' Br. 6-8. Plaintiff does not respond to this argument in his Opposition. See generally Pl.'s Opp'n. Accordingly, this claim is abandoned and properly dismissed.
B. State and City Claims
Defendants request that the Court decline to exercise supplemental jurisdiction over the state and city claims raised by the TAC. Because all federal § 1983 claims in this action are dismissed, the Court grants Defendants' request. Accordingly, all claims raised by Plaintiff under state and city law are dismissed, without prejudice to refiling in state court. To be clear- without making any holding or otherwise commenting on the viability of Plaintiff's claims under state and city law-the Court's opinion in this case does not prohibit Plaintiff from re-filing his state and city law claims in state court.
See Def.s' Br. 11.
See 28 U.S.C. § 1367(c)(3) (“The district courts may decline to exercise supplemental jurisdiction over a claim . . . if . . . the district court has dismissed all claims over which it has original jurisdiction.”); Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988) (“[I]n the usual case in which all federal-law claims are eliminated before trial, the balance of factors to be considered . . . will point toward declining to exercise jurisdiction over the remaining state-law claims.”); Cohen v. Postal Holdings, LLC, 873 F.3d 394, 404 (2d Cir. 2017) (Calabresi, J., concurring) (“[A]fter all federal claims have been dismissed, the default rule is that federal courts should not decide related state-law claims unless there is good reason for doing so.”).
C. Leave to Amend
“Generally, leave to amend should be freely given, and a pro se litigant in particular should be afforded every reasonable opportunity to demonstrate that he has a valid claim.” Here, however, Plaintiff has already amended his pleadings three times. “[R]epeated failure to cure deficiencies” weighs against granting further leave to amend. Moreover, Plaintiff has not requested leave to amend, and therefore has not identified how further amendment would cure any deficiencies with his pleadings. At any rate, amendment would be futile here, where the problems with Plaintiff's federal claims are substantive, and not merely the result of “inartfully pleaded” allegations. Accordingly, leave to amend is denied.
Matima v. Celli, 228 F.3d 68, 81 (2d Cir. 2000).
See ECF Nos. 11, 25, 29.
See Vasquez v. Reece Sch., No. 22 Civ. 5986, 2024 WL 497433, at *2 (S.D.N.Y. Feb. 8, 2024).
See id.
In re Sanofi Sec. Litig., 87 F.Supp.3d at 548-49.
CONCLUSION
For the reasons discussed herein, Defendant's motion to dismiss is GRANTED. Specifically, Plaintiff's federal claims are dismissed with prejudice while Plaintiff's state and city claims are dismissed without prejudice to refiling in state court.
The Clerk of Court is respectfully requested to terminate ECF No. 47 and to close the case.
SO ORDERED.