Opinion
19-CV-11265 (AT) (RWL)
2022-02-15
Curtis MCDANIEL, Plaintiff, v. The CITY OF NEW YORK, et al., Defendants.
Curtis McDaniel, Malone, NY, Pro Se. John Anthony Passidomo, Richard Bahrenburg, City of New York Law Department, New York, NY, for Defendants Police Officer Christopher Zollino, Darion Brooks, The City of New York. John Anthony Passidomo, Melissa Wachs, City of New York Law Department, New York, NY, for Defendant The People of the City of New York.
Curtis McDaniel, Malone, NY, Pro Se.
John Anthony Passidomo, Richard Bahrenburg, City of New York Law Department, New York, NY, for Defendants Police Officer Christopher Zollino, Darion Brooks, The City of New York.
John Anthony Passidomo, Melissa Wachs, City of New York Law Department, New York, NY, for Defendant The People of the City of New York.
REPORT AND RECOMMENDATION TO HON. ANALISA TORRES: MOTION TO DISMISS
ROBERT W. LEHRBURGER, United States Magistrate Judge.
Plaintiff Curtis McDaniel ("McDaniel"), proceeding pro se, filed this lawsuit against the City of New York (the "City") and Police Officers Christopher Zollino and Darion Brooks (collectively, "Defendants") for false arrest, malicious prosecution, unlawful conditions of confinement, and other claims, all stemming from McDaniel's arrest on July 14, 2015. Defendants have moved to dismiss pursuant to Rule 12(b)(6) of the Federal Rules Of Civil Procedure for failure to state a claim. Additionally, Defendants argue that, for certain claims, McDaniel filed his action after the applicable statute of limitations had expired. For the following reasons, I recommend that Defendants’ motion be GRANTED in its entirety and that all of McDaniel's claims be dismissed with prejudice.
FACTS
The facts are drawn from the Third Amended Complaint ("TAC" ). As required on a motion to dismiss, the Court accepts as true all well-pled allegations of the TAC and draws all reasonable inferences in favor of McDaniel, the non-moving party. However, the TAC is by no means a model of clarity. The claims are presented in a scattershot manner and are at times difficult to follow. That said, applying a liberal reading afforded to pro se plaintiffs, McDaniel's allegations and claims can be coherently distilled to the following.
The TAC is filed at Dkt. 37.
On July 14, 2015, McDaniel was a passenger in a car that was pulled over by Defendants Zollino and Brooks, allegedly for a broken taillight. (TAC at ECF 1.) McDaniel asserts that he and the other passengers in the car were racially profiled, that the car's taillight was not broken, and a ticket was never issued for the alleged violation. (TAC at ECF 12.) McDaniel left the car and was followed by the officers, who stated that they saw McDaniel's hands outstretched as though he and the other passenger had thrown something. The officers "found guns on the street" and arrested McDaniel for possession of a loaded firearm; the other passenger ran away. (TAC at ECF 1, 4, 6.) McDaniel was arraigned and detained for 25 days in pretrial detention from July 14, 2015 to August 9, 2015. (TAC at ECF 1, 9.) A grand jury indicted McDaniel, but the criminal charges were ultimately dismissed. (TAC at ECF 2, 3.)
McDaniel alleges that he was falsely arrested and subsequently subjected to conspiratorial, malicious prosecution consisting of abuse of process, denial fair and speedy trial, and several other constitutional violations. Additionally, McDaniel asserts that while he was detained, he was subject to unconstitutional conditions of confinement, including being subjected to extreme temperatures, unnecessary strip searches, and being housed with other detainees with "bad diseases." (TAC at ECF 10, 11.)
McDaniel was arrested several times following his 2015 arrest and has filed multiple cases in this Court asserting a variety of claims. The instant case pertains only to claims arising out of McDaniel's arrest on July 14, 2015. As discussed below, all claims asserted from other arrests have been dismissed.
See Dkt. 13 at 9 n.2 (Judge Stanton's August 28, 2020 order citing McDaniel's similar filings: McDaniel v. City Of New York , ECF 1:20-CV-2832, 6 (S.D.N.Y. filed Apr. 2, 2020) (claims arising out of March 2019 arrest and 13-month pretrial detention; filed amended complaint after order to amend); McDaniel v. NYC Fire Department , ECF 1:20-CV-0995, 2 (S.D.N.Y. filed Feb. 5, 2020) (claims concerning destruction of property and injury to dog by the Fire Department and the NYPD); McDaniel v. People Of The State Of New York , ECF 1:20-CV-0254, 7 (S.D.N.Y. June 2, 2020) (claims dismissed as duplicate of those under case number 19-CV-7680); McDaniel v. Department Of Corrections. , ECF 1:19-CV-8735, 29 (S.D.N.Y. filed Sept. 20, 2019) (action asserting that he was assaulted by another inmate); McDaniel v. People Of The State Of New York , ECF 1:19-CV-8166, 12 (S.D.N.Y. Feb. 14, 2020) (claims dismissed as duplicate of those under case number 19-CV-3526); McDaniel v. People Of The State Of New York , ECF 1:19-CV-7680, 7 (S.D.N.Y. filed Aug. 14, 2019) (pending case concerning claims arising out of July 11, 2018 arrest); McDaniel v. People Of The State Of New York , ECF 1:19-CV-3526, (S.D.N.Y. filed Apr. 19, 2019) (pending claims of false arrest and imprisonment, malicious prosecution, and use of excessive force).
PROCEDURAL HISTORY
McDaniel filed his initial complaint on December 6, 2019. (Dkt. 2.) The Complaint originally named "The People of the City of New York," the Department of Corrections, several New York City police officers and detectives, several Assistant District Attorneys, and several Judges of the New York City Criminal Court. On January 28, 2020, then Chief Judge McMahon addressed several pleading deficiencies and dismissed several named defendants, including the People of the City of New York, the Department of Correction, the Assistant District Attorneys, and the Judges. (Dkt. 6.) Judge McMahon granted McDaniel leave to file an amended complaint, which McDaniel did on April 13, 2020. (Dkt. 9.)
On August 28, 2020, Judge Stanton, to whom the case had been reassigned, found that although McDaniel had complied with several of Judge McMahon's directives, he failed to abide by others. Judge Stanton also dismissed all claims concerning events arising from or related to arrests other than McDaniel's July 14, 2015 arrest. Judge Stanton granted McDaniel leave to file a second amended complaint and provided specific instructions for doing so. (Dkt. 13.)
McDaniel filed a second amended complaint on January 8, 2021. (Dkt. 20.) On January 28, 2021, the case was reassigned to Judge Torres. The same day, the case was referred to me for general pretrial management. (Dkt. 22.) On February 26, 2021, the Court held that the second amended complaint did not comply with Judge Stanton's August 28, 2020 order. (Dkt. 28.) Specifically, the second amended complaint referenced arrests other than the July 14, 2015 arrest. The Court directed McDaniel to file a third amended complaint and remove any allegations pertaining to conditions or events related to his arrest in 2019. McDaniel filed the operative TAC on April 28, 2021. (Dkt. 37.)
Defendants filed a motion to dismiss on July 12, 2021. (Dkts. 41-44.) On July 13, 2021, the previous order of reference was amended to include issuing a Report and Recommendation on the motion to dismiss. (Dkt. 46.) McDaniel filed an opposition to Defendants’ motion on September 17, 2021 (Dkt. 57), and Defendants filed their reply on October 13, 2021. (Dkt. 59.) The motion is now ripe for resolution.
LEGAL STANDARDS
A. Motion To Dismiss For Failure To State A Claim
Under Federal Rule Of Civil Procedure 12(b)(6), a pleading may be dismissed for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6) (" Rule 12(b)(6)"). To survive a Rule 12(b)(6) motion, a complaint must plead "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 570, 127 S. Ct. 1955, 1974, 167 L.Ed.2d 929 (2007). A claim is facially plausible when the factual content pleaded allows a court "to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S. Ct. 1937, 1949, 173 L.Ed.2d 868 (2009).
"Where a complaint pleads facts that are ‘merely consistent with’ a defendant's liability, it ‘stops short of the line between possibility and plausibility of entitlement to relief." Id. , 129 S. Ct. at 1949 (quoting Twombly , 550 U.S. at 557, 127 S. Ct. at 1966 ). In considering a motion to dismiss, a district court "accept[s] all factual claims in the complaint as true, and draw[s] all reasonable inferences in the plaintiff's favor." Lotes Co. v. Hon Hai Precision Industry Co. , 753 F.3d 395, 403 (2d Cir. 2014). However, this tenet is "inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal , 556 U.S. at 678, 129 S. Ct. at 1949. "[R]ather, the complaint's factual allegations must be enough to raise a right to relief above the speculative level ... i.e. , enough to make the claim plausible." Arista Records, LLC v. Doe 3 , 604 F.3d 110, 120 (2d Cir. 2010) (internal quotation marks and brackets omitted). A complaint is properly dismissed where, as a matter of law, "the allegations in [the] complaint, however true, could not raise a claim of entitlement to relief." Twombly , 550 U.S. at 558, 127 S. Ct at 1966.
For the purposes of considering a motion to dismiss pursuant to Rule 12(b)(6), a court generally is confined to the facts alleged in the complaint. See Cortec Industries v. Sum Holding L.P. , 949 F.2d 42, 47 (2d Cir. 1991). A court may, however, consider additional materials, including documents attached to the complaint, documents incorporated into the complaint by reference, public records, and documents that the plaintiff either possessed or knew about, and relied upon, in bringing the suit. See Kleinman v. Elan Corp. , 706 F.3d 145, 152 (2d Cir. 2013) (quoting ATSI Communications, Inc. v. Shaar Fund, Ltd. , 493 F.3d 87, 98 (2d Cir. 2007) ). In that regard, if "a document relied on in the complaint contradicts allegations in the complaint, the document, not the allegations, control, and the court need not accept the allegations in the complaint as true." Poindexter v. EMI Record Group Inc. , No. 11-CV-559, 2012 WL 1027639, at *2 (S.D.N.Y. March 27, 2012) (quoting Barnum v. Millbrook Care Ltd. Partnership , 850 F. Supp. 1227, 1232-33 (S.D.N.Y. 1994) ).
B. Section 1983 Claims
McDaniel brings several civil rights claims pursuant to § 1983. To state a cause of action under 42 U.S.C. § 1983, " ‘a plaintiff must allege that some person acting under color of state law deprived him of a federal right.’ " Ahlers v. Rabinowitz , 684 F.3d 53, 60-61 (2d Cir. 2012) (quoting Washington v. James , 782 F.2d 1134, 1138 (2d Cir. 1986) ). Because § 1983 does not provide its own substantive right, plaintiffs must identify the federally protected right that was allegedly violated. See Gonzaga University v. Doe , 536 U.S. 273, 285, 122 S. Ct. 2268, 2276, 153 L.Ed.2d 309 (2002) (plaintiffs cannot simply claim a violation of § 1983, because § 1983 " ‘by itself does not protect anyone against anything’ ") (quoting Chapman v. Houston Welfare Rights Organization , 441 U.S. 600, 617, 99 S. Ct. 1905, 1916, 60 L.Ed.2d 508 (1979) ). Accordingly, the plaintiff must show that (1) the defendant acted under color of state law and that (2) as a result of the defendant's actions, the plaintiff suffered a denial of federal statutory rights or constitutional rights or privileges. Annis v. County Of Westchester , 136 F.3d 239, 245 (2d Cir. 1998). Additionally, "in all § 1983 cases, the plaintiff must prove that the defendant's action was a proximate cause of the plaintiff's injury." Gierlinger v. Gleason , 160 F.3d 858, 872 (2d Cir. 1998) ; see also White v. City Of New York , No. 16-CV-6183, 2017 WL 3575700, at *5 (S.D.N.Y. Aug. 17, 2017).
C. Review Of Pro Se Pleadings
"Pro se complaints ‘must be construed liberally and interpreted to raise the strongest arguments that they suggest.’ " Sykes v. Bank Of America , 723 F.3d 399, 403 (2d Cir. 2013) (quoting Triestman v. Federal Bureau Of Prisons , 470 F.3d 471, 474 (2d Cir. 2006) ). "[T]he Second Circuit, as a general matter, is solicitous of pro se litigants, enforcing standards of procedural leniency rather than holding them to the rigidities of federal practice." Massie v. Metropolitan Museum Of Art , 651 F. Supp.2d 88, 93 (S.D.N.Y. 2009) ; see also Weixel v. Board. Of Education , 287 F.3d 138, 147-48 (2d Cir. 2002) (reversing dismissal where district court failed to construe pro se plaintiff's complaint liberally); Ortiz v. Cornetta , 867 F.2d 146, 148 (2d Cir. 1989) ("Once a pro se litigant has done everything possible to bring his action, he should not be penalized by strict rules which might otherwise apply if he were represented by counsel.").
That said, "even pro se plaintiffs cannot withstand a motion to dismiss unless their pleadings contain factual allegations sufficient to raise a ‘right to relief above the speculative level,’ " Martinez v. Ravikumar , 536 F. Supp. 2d 369, 370 (S.D.N.Y. 2008) (quoting Twombly , 550 U.S. at 555, 127 S. Ct. at 1965 ) and must allege " ‘enough facts to state a claim to relief that is plausible on its face.’ " Perry v. Mary Ann Liebert, Inc. , 765 F. App'x 470, 473 (2d Cir. 2019) (quoting Twombly , 550 U.S. at 570, 127 S. Ct. at 1960 ). DISCUSSION
McDaniel's claims should be dismissed for multiple reasons. His claims against the City should be dismissed as there are insufficient allegations of municipal liability. McDaniel's § 1983 claims are barred by the statute of limitations and fail on the merits. And, his remaining claims should be dismissed for failure to state a claim for which relief may be granted. The TAC largely consists of vague, conclusory allegations which, even liberally construed, do not provide the level of specificity required to state a claim that can withstand a motion to dismiss.
A. No Municipal Liability
Municipalities cannot be vicariously liable under Section 1983 for their employees’ acts. Monell v. Department of Social Services , 436 U.S. 658, 694, 98 S. Ct. 2018, 2037, 56 L.Ed.2d 611 (1978). Municipalities are only liable under Section 1983 for constitutional deprivations resulting from a governmental policy or custom. Id. , 98 S. Ct. at 2037-38. A plaintiff may demonstrate that such a policy or custom exists by introducing evidence of one of the following: "(1) a formal policy officially endorsed by the municipality; (2) actions taken by government officials responsible for establishing the municipal policies that caused the particular deprivation in question; (3) a practice so consistent and widespread that, although not expressly authorized, constitutes a custom or usage of which a supervising policy-maker must have been aware; or (4) a failure by policymakers to provide adequate training or supervision to subordinates to such an extent that it amounts to deliberate indifference to the rights of those who come into contact with the municipal employees." Jones v. Westchester County , 182 F.Supp.3d 134, 158 (S.D.N.Y. 2016) (quoting Brandon v. City of New York , 705 F.Supp.2d 261, 276–77 (S.D.N.Y. 2010) ). To prevail on a Monell claim, a plaintiff must also show that "there is a direct causal link between [the] municipal policy or custom and the alleged constitutional deprivation" he suffered. City of Canton, Ohio v. Harris , 489 U.S. 378, 385, 109 S. Ct. 1197, 1203, 103 L.Ed.2d 412 (1989).
The City is a municipality and therefore cannot be sued as a defendant absent a viable Monell claim. McDaniel has not provided particularized allegations of any policies, widespread practices, or customs related to the alleged violations. Nor has McDaniel claimed that a need for better monitoring and training was otherwise obvious. Rather, the facts as alleged concern only McDaniel's specific arrest and his subsequent criminal proceeding and detention. Those allegations are not enough to indicate a customary practice or existence of a particular policy. See City Of Oklahoma City v. Tuttle , 471 U.S. 808, 824-25, 105 S. Ct. 2427, 2436, 85 L.Ed.2d 791 (1985) ("Proof of a single incident of unconstitutional activity is not sufficient to impose liability under Monell , unless proof of the incident includes proof that it was caused by an existing, unconstitutional municipal policy, which can be attributed to a municipal policymaker"). Despite naming the City as a defendant, the TAC does not even address the City and contains no allegations connecting policymaking officials with the alleged misconduct or alleging failure to train or supervise.
Accordingly, the Complaint fails to state an actionable civil rights claim against the City, and the City should be dismissed as a Defendant.
B. Untimely Claims
Three of McDaniel's claims are barred by the statute of limitations – his § 1983 claims for false arrest, conditions of confinement, and abuse of process. When a plaintiff brings an action under Section 1983, courts look to state law for the applicable statute of limitations. See Wallace v. Kato , 549 U.S. 384, 387, 127 S. Ct. 1091, 1095, 166 L.Ed.2d 973 (2007) (" Section 1983 provides a federal cause of action, but ... federal law looks to the law of the State in which the cause of action arose. This is so for the length of the statute of limitations: It is that which the State provides for personal-injury torts"). In New York, the statute of limitations for claims brought pursuant to § 1983 is three years. See Peterec v. Hilliard, No. 12-CV-3944, 2013 WL 5178328, at *3 (S.D.N.Y. Sept. 16, 2013) ; N.Y. C.P.L.R. § 214(5).
McDaniel argues that the relevant statute of limitations is one year, which would make the claims timely. (Pl. Mem. at 7-8. ) But McDaniel incorrectly cites N.Y. C.P.L.R. §§ 215(3), (8)(a), which address the statute of limitations for certain intentional tort claims. N.Y. C.P.L.R. § 215(8)(a) provides a one-year extension for certain intentional torts, in cases where a criminal proceeding is commenced with respect to the underlying event from which the intentional tort claims arise. The Second Circuit has made clear, however, that N.Y. C.P.L.R § 214, and not § 215, provides the appropriate limitation for claims brought pursuant to § 1983. See Okure v. Owens , 816 F.2d 45, 49 (2d Cir. 1987), aff'd , 488 U.S. 235, 109 S. Ct. 573, 102 L.Ed.2d 594 (1989) ("We conclude that section 214(5) is the general personal injury statute most analogous to section 1983 claims.") Accordingly, the Court looks to N.Y. C.P.L.R. § 214 for the applicable limitations period.
"Pl. Mem." refers to the "Memorandum Of Law In Support Of The Plaintiff Opposition To Defendants Motion To Dismiss The Third Amended Complaint Pursuant To Federal Rule Of Civil Procedure 12(b)(6) And Rule 56 [sic]." (Dkt. 57.)
Although state law in § 1983 actions provides the statute of limitations, federal law, determines when a § 1983 action accrues. Id. at 47. Generally, "accrual occurs when the plaintiff knows or has reason to know of the injury which is the basis of his action." Rivera v. City Of New York , No. 16-CV-9709, 2019 WL 252019, at *4 (S.D.N.Y. Jan. 17, 2019) (quoting Hogan v. Fischer, 738 F.3d 509, 518 (2d Cir. 2013) ). As the accrual date differs for each of the three untimely claims, the Court addresses each in turn.
1. False Arrest
For false arrest claims, the statute of limitations begins to run "when the alleged false imprisonment ends." Wallace , 549 U.S. at 389, 127 S. Ct. at 1096. The Second Circuit has determined that "false imprisonment ends when ‘the victim becomes held pursuant to [legal] process – when, for example, he is bound over by a magistrate or arraigned on charges.’ " Lynch v. Suffolk County. Police Department, Inc. , 348 F. App'x 672, 675 (2d Cir. 2009) (quoting Wallace , 549 U.S. at 390, 127 S. Ct. at 1096. McDaniel was arraigned on July 16, 2015). (See Passidomo Decl., Ex. B ("Prisoner Arraignment Sheet"). ) Thus, McDaniel's alleged false imprisonment ended, and the statute of limitations for his false arrest claim began to run, on July 16, 2015. McDaniel's false arrest claim expired three years later on July 16, 2018. McDaniel filed the complaint in this action on December 6, 2019. Accordingly, his false arrest claim is time-barred.
"Passidomo Decl." refers to the Declaration Of John A. Passidomo In Support of Defendants’ Motion To Dismiss, filed on July 12, 2021. (Dkt. 43.) The Court may properly consider McDaniel's Prisoner Arraignment Sheet at this state of the proceeding because it is a public record. See Koch v. Christie's International PLC , 785 F. Supp. 2d 105, 112 (S.D.N.Y. 2011), aff'd , 699 F.3d 141 (2d Cir. 2012).
2. Conditions Of Confinement
Likewise, McDaniel's conditions of confinement claim is barred by the three-year statute of limitations for § 1983 actions. That claim began to accrue when McDaniel "[knew] or [had] reason to know of the injury which is the basis of his action." Jones v. City Of New York , No. 18-CV-1937, 571 F.Supp.3d 118, 128 (S.D.N.Y. Nov. 29, 2021). McDaniel was detained from July 14, 2015 until August 9, 2015. (See TAC at ECF 9.) The latest he could have become aware of unconstitutional conditions of confinement was August 9, 2015. The claim expired three years later on August 9, 2018, over a year before McDaniel filed the complaint.
3. Section 1983 Abuse of Process
McDaniel's § 1983 claim for abuse of process is also subject to the three-year statute of limitations and should be dismissed as untimely. See Anderson v. County Of Putnam , No. 14-CV-7162, 2016 WL 297737, at *2 (S.D.N.Y. Jan. 22, 2016) ("Under New York law, the statute of limitations for § 1983 claims, including false arrest and malicious abuse of process, is three years.") Like all § 1983 claims, the abuse of process claim accrues when the plaintiff knows of the injury on which the claim is based. See Singleton v. City Of New York , 632 F.2d 185, 192 (2d Cir. 1980) ("The crucial time for accrual purposes is when the plaintiff becomes aware that he is suffering from a wrong for which damages may be recovered in a civil action.") "Ordinarily, a claim for abuse of process accrues at such time as the criminal process is set in motion – typically at arrest – against the plaintiff." Anderson , 2016 WL 297737 at *3 (quoting Duamutef v. Morris , 956 F. Supp. 1112, 1118 (S.D.N.Y. 1997) ).
In some circumstances, a plaintiff may not know about the wrong related to an abuse of process claim until after the arrest. An example could be an inappropriate collateral objective, which, as discussed below in explaining why the TAC fails to state a claim, is a required element of an abuse of process claim that a plaintiff may not be aware of at the time of arrest. See Duamutef , 956 F. Supp. at 1118-19 (plaintiff's abuse of process claim was not time-barred because "plaintiff was unaware that he was being retaliated against until [after his arrest], when he received an affidavit detailing defendants’ intention to stifle his political activities through a criminal prosecution"); Ying Li v. City Of New York , 246 F. Supp. 3d 578, 617 (E.D.N.Y. 2017) (because "Plaintiff was not reasonably aware of that possible objective until the dismissal of her case," the court held that plaintiff's abuse of process claim did not accrue until the date her case was dismissed and her claim was not time-barred)
Here, McDaniel does not specifically allege a collateral objective. The TAC does make clear, however, that at the time of his arrest, McDaniel believed that the arrest was illegal and motivated by ulterior motives. (See TAC at ECF 12 ("We were racially profiled. There was no broken taillight or a ticket for any such violation given ... Also officer[s] had been arresting me for a while. They had [ulterior] motives because I told them who had the guns.")). Thus, McDaniel was, by his own allegation, aware of the facts providing the basis for his abuse of process claim on the day of his arrest. Accordingly, McDaniel's § 1983 abuse of process claim began to accrue on the day he was arrested, July 14, 2015, and expired three years later on July 15, 2018. As McDaniel did not commence this action until over a year later, his claim is untimely and, like his claims for false arrest and conditions of confinement, should be dismissed on that basis.
C. No Malicious Prosecution Claim
Defendants assert that McDaniel's claim for malicious prosecution should be dismissed because McDaniel is not able establish the requisite elements of the claim. Defendants are correct.
To prevail on a claim for malicious prosecution under § 1983, McDaniel must establish the elements of a malicious prosecution claim under New York law. See Manganiello v. City Of New York , 612 F.3d 149, 160-61 (2d Cir. 2010). In New York, a claim for malicious prosecution requires the plaintiff to show: "(1) the defendant initiated and continued a criminal proceeding against him; (2) the proceeding terminated in plaintiff's favor; (3) there was no probable cause for commencing the proceeding; and (4) the defendant commenced the criminal proceeding with malice." Smith v. City Of New York , 388 F. Supp. 2d 179, 186 (S.D.N.Y. 2005) ; see also Jocks v. Tavernier , 316 F.3d 128, 136 (2d Cir. 2003). In addition, "[t]o sustain a § 1983 malicious prosecution claim, there must be a seizure or other perversion of proper legal procedures implicating the claimant's personal liberty and privacy interests under the Fourth Amendment." Diop v. City Of New York , 50 F. Supp. 3d 411, 420-21 (S.D.N.Y. 2014) (quoting Washington v. County Of Rockland , 373 F.3d 310, 316 (2d Cir. 2004) (internal quotation marks omitted)); see also Rohman v. New York City Transit Authority , 215 F.3d 208, 215 (2d Cir. 2000) (a sufficient post-arraignment liberty restraint to implicate the plaintiff's Fourth Amendment rights is required). McDaniel's inability to establish any of these elements is "fatal to [his] malicious prosecution claim." Angevin v. City Of New York , 204 F. Supp. 3d 469, 480 (E.D.N.Y. 2016).
1. Initiation Of Criminal Proceeding Against Plaintiff
"A defendant initiates a proceeding when he play[s] an active role in the prosecution, such as giving advice and encouragement or importuning the authorities to act.’ " Buari v. City Of New York , 530 F. Supp. 3d 356, 383 (S.D.N.Y. 2021) (quoting Rohman , 215 F.3d at 215 ); see also Costello v. Milano , 20 F. Supp. 3d 406, 415 (S.D.N.Y. 2014) ("To initiate a prosecution, a defendant must do more than report the crime or give testimony. Rather, he must play an active role in the prosecution, which includes having the plaintiff arraigned ... filling out complaining and corroborating affidavits, and ... signing felony complaints." (internal citations and quotation marks omitted)).
Courts in this district have held that a police officer may initiate a proceeding "by having the plaintiff arraigned, by filling out complaining and corroborating affidavits, and by signing felony complaints." Mitchell v. Victoria Home , 434 F. Supp. 2d 219, 227 (S.D.N.Y. 2006) ; see also Nelson v. City Of New York , No. 18-CV4636, 2019 WL 3779420, at *11 (S.D.N.Y. Aug. 9, 2019) ("[u]nder New York law, police officers can ‘initiate’ prosecution by the filing charges or other accusatory instruments." (quoting Cameron v. City Of New York , 598 F.3d 50, 63 (2d Cir. 2010) ).)
Additionally, plaintiffs can satisfy this element by showing that the defendant police officer "distorted the process by which the plaintiff was brought to trial." Buari , 530 F. Supp. 3d at 383 (internal quotation marks and brackets omitted); see also Shabazz v. Kailer , 201 F. Supp. 3d 386, 392 (S.D.N.Y. 2016) ("[A]n arresting officer may be held liable for malicious prosecution when a police officer creates false information likely to influence a jury's decision and forwards that information to prosecutors, or when she withholds relevant and material information." (internal quotation marks omitted)); Bailey v. City of New York , 79 F. Supp. 3d 424, 449 (E.D.N.Y. 2015) ("Showing that the police failed to make a complete and full statement of facts to the District Attorney, misrepresented or falsified evidence, withheld evidence or otherwise acted in bad faith satisfies the initiation element of malicious prosecution" (internal quotation marks omitted)).
McDaniel does not allege that the Defendants completed any of the requisite paperwork to establish the initiation requirement. He does allege that Defendants Brooks and Zollino committed perjury during the grand jury proceedings. (TAC at ECF 12.) Similarly, in his opposition briefing, McDaniel states that "Officers Brooks and Zollino initiated the proceeding by providing false information [to] a grand jury twice and at suppression evidence hearing." (Pl. Mem. at 11.) Those allegations are entirely conclusory and without more do not plausibly state a claim that the officers did anything that would satisfy the initiation requirement for malicious prosecution.
2. Termination of Proceeding In Plaintiff's Favor
The second element requires that the proceeding terminate in the plaintiff's favor. While New York law does not require a malicious prosecution plaintiff to prove his innocence or even that termination indicates innocence, Rothstein v. Carriere , 373 F.3d 275, 286 (2d Cir. 2004), malicious prosecution claims under § 1983 do require affirmative indications of innocence to establish "favorable termination." Lanning v. City Of Glens Falls , 908 F.3d 19, 22 (2d Cir. 2018) ("a plaintiff asserting a malicious prosecution claim under § 1983 must still show that the underlying criminal proceeding ended in a manner that affirmatively indicates his innocence"); see also Demaitre v. City Of New York , No. 18-CV-12403, 2020 WL 6048192, at *4 (S.D.N.Y. Oct. 11, 2020) (dismissing malicious prosecution claim where "neither the Amended Complaint nor the Certificate of Disposition states the basis for the dismissal" and "Plaintiff has not shown that the underlying proceeding established his innocence." (internal quotation marks and brackets omitted)); Thompson v. City Of New York , No. 18-CV-4105, 2020 WL 2097622, at *3 (S.D.N.Y. May 1, 2020) ("termination of the proceeding does not indicate that Plaintiff was not guilty of criminal possession on the merits as required by federal law. Plaintiff's § 1983 malicious prosecution claim is dismissed." (internal citation omitted)).
Here, McDaniel alleges that "the investigation revealed a video showing I did not abandon the weapons, also a gun toss simulation, and DNA that establishes my innocence" and that "[u]ltimately, the case was dismissed in my favor" following suppression of the firearms he allegedly possessed. (TAC at ECF 8.) However, McDaniel does not specify the grounds for that dismissal. The proceeding could have been dismissed on any number of procedural or jurisdictional grounds, which may or may not suffice to indicate McDaniel's innocence, and thus favorable termination, under federal law. See Lanning , 908 F.3d at 28 (concluding that plaintiff had not demonstrated that the proceedings against him were terminated in a manner indicating innocence where plaintiff did not specify how or on what grounds his charges were dismissed). Plaintiff has not sufficiently alleged that the criminal prosecution was terminated in his favor.
3. Lack Of Probable Cause
It is undisputed that probable cause "is a complete defense to the [malicious prosecution] claim, and an indictment by a grand jury creates a presumption of probable cause, which 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.’ " Gannon v. City Of New York , 917 F. Supp. 2d 241, 244 (S.D.N.Y. 2013) (quoting Savino v. City Of New York , 331 F.3d 63, 69 (2d Cir. 2003) ); see also Manganiello , 612 F.3d at 161-62 (same).
McDaniel was indicted by a grand jury. (TAC at 1-2.) In order to overcome the presumption of probable cause and succeed on the malicious prosecution claim, McDaniel must "establish what occurred in the grand jury and ... further establish that those circumstances warrant a finding of misconduct sufficient to erode the ‘premise that the Grand Jury acts judicially.’ " Brandon v. City Of New York , 705 F. Supp. 2d 261, 272 (S.D.N.Y. 2010) (quoting Rothstein v. Carriere , 373 F.3d 275, 284 (2d Cir. 2004) ). "In the malicious prosecution context, probable cause is defined as the knowledge of facts, actual or apparent, strong enough to justify a reasonable man in the belief that he has lawful grounds for prosecuting the defendant in the manner complained of." Diop , 50 F. Supp. 3d at 421 (internal quotation marks omitted).
Although the Court accepts McDaniel's factual claims in the TAC as true and draws all reasonable inferences in his favor, the Court is also mindful that "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal , 556 U.S. 662, 678, 129 S. Ct. 1937, 1949, 173 L.Ed.2d 868. The TAC does exactly that. McDaniel alleges that "[t]he grand jury was allowed to indict with out [sic] corroborating statements by 2 or more officer [sic] or street cameras/body cameras to settle question of law"; "[d]ue process was violated to hide perjury by officer Brooks and Zillo [sic]"; and "[m]y grand jury and probable cause hearing transcripts were change/altered" without court authorization. (TAC at ECF 12, 16.)
At this stage in the proceeding, McDaniel "is not required to prove that the defendants lied before the grand jury or in their discussions with ... prosecutors; instead, he need only provide sufficiently specific factual allegations regarding the nature and content of their lies." Buari , 530 F. Supp. 3d at 388 (quoting Demosthene v. City Of New York , No. 18-CV-1358, 2019 WL 181305, at *5 (E.D.N.Y. Jan. 10, 2019) ). But McDaniel has not done even that. The TAC includes only conclusory statements without any supporting factual allegations. Without more, the Court cannot find that McDaniel has overcome the presumption of probable cause.
4. Malice
To satisfy the final element, McDaniel must show "actual malice as a motivation for the defendant's actions." Dettelis v. Sharbaugh , 919 F.3d 161, 164 (2d Cir. 2019) (quoting Murphy v. Lynn , 118 F.3d 938, 947 (2d Cir. 1997) ). McDaniel alleges that he was racially profiled by Defendants Brooks and Zollino and that the car's alleged broken taillight was merely a pretext to pull over the car and arrest him. (TAC at ECF 12). He states that Defendants Brooks and Zollino "had been arresting me for a while" and had ulterior motives for the instant arrest. (TAC at ECF 12.) Once again, such barebone allegations are insufficient to establish malice. See Fanelli v. City Of New York , No. 13-CV-1423, 2013 WL 6017904, at *6 (S.D.N.Y. Nov. 1, 2013) (dismissing plaintiff's malicious prosecution claim because plaintiff's allegation that defendants "caused criminal charges to be filed against plaintiff and that in doing so, they acted intentionally, maliciously, and without justification or probable cause" did not sufficiently allege malice) (internal citations and brackets omitted).
The TAC does not plausibly allege any of the requisite elements of a malicious prosecution claim. Accordingly, the claim should be dismissed.
D. No Abuse Of Process Claim
In addition to being barred by the statute of limitations as discussed above, McDaniel's abuse-of-process allegations should be dismissed for failure to state a claim. Under both § 1983 and New York law, plaintiffs alleging abuse of process must show that defendants "(1) employ[ed] regularly issued legal process to compel performance or forbearance of some act (2) with intent to do harm without excuse or justification, and (3) in order to obtain a collateral objective that is outside the legitimate ends of the process." Hershey v. Goldstein , 938 F. Supp. 2d 491, 518 (S.D.N.Y. 2013) (quoting Savino , 331 F.3d at 76 ). "The crux of a malicious abuse of process claim is the collateral objective element." Kraft v. City Of New York , 696 F. Supp. 2d 403, 416 (S.D.N.Y. 2010), aff'd , 441 F. App'x 24 (2d Cir. 2011). To establish a collateral objective, McDaniel must show "not that defendant acted with an improper motive, but rather an improper purpose – that is, he must claim that [the defendant] aimed to achieve a collateral purpose beyond or in addition to his criminal prosecution." Kanciper v. Lato , 989 F. Supp. 2d 216, 237 (E.D.N.Y. 2013) (quoting Douglas v. City Of New York, 595 F.Supp.2d 333, 344 (S.D.N.Y. 2009) ).
The TAC does not allege any facts to support the elements required for an abuse of process claim. Even construing the facts presented in the TAC in their most favorable light, McDaniel has not adequately alleged a collateral objective. See Duamutef, 956 F. Supp. at 1119 ("a complaint which alleges [a collateral motive] in wholly conclusory terms may safely be dismissed on the pleadings alone.") As such, the abuse of process claim should be dismissed.
E. No Denial Of Right To Fair Trial
The Second Circuit has "firmly established that a constitutional right exists not to be deprived of liberty on the basis of false evidence fabricated by a government officer." Zahrey v. Coffey , 221 F.3d 342, 355 (2d Cir. 2000). An individual's right to a fair trial is therefore violated when "a police officer creates false information likely to influence a jury's decision and forwards that information to prosecutors." Blue v. City Of New York , No. 16-CV-9990, 2018 WL 2561023, at *7 (S.D.N.Y. June 4, 2018) (quoting Ricciuti v. N.Y.C. Transit Authority , 124 F.3d 123, 130 (2d Cir. 1997)). To prevail on a claim for denial of the right to fair trial, McDaniel must show that "an (1) investigating official (2) fabricate[d] evidence (3) that is likely to influence a jury's decision, (4) forward[ed] that information to prosecutors, and (5) the [he] suffer[ed] a deprivation of liberty as a result." Id. (quoting Jovanovic v. City Of New York , 486 Fed. Appx. 149, 152 (2d Cir. 2012) (summary order)).
McDaniel alleges that on November 14, 2019, Defendant Brooks was impersonated by another officer at a probable cause hearing and that McDaniel was not permitted to testify that Defendant Brooks was not present at the hearing. (TAC at ECF 16.) McDaniel states that transcripts of the grand jury proceedings and the probable cause hearing "were changed/altered." (TAC at ECF 16.) With regard to his arrest, McDaniel asserts that "officers said that they saw hands out stretched like we both threw something without any corroboration requirements. Also because this was a lie." (TAC at ECF 6.) These allegations are insufficient to state a claim for denial of a fair trial for several reasons. As an initial matter, the TAC does not explain the connection between the alleged November 14, 2019 hearing and McDaniel's 2015 arrest. The 2019 hearing could well be, and likely is, related to one of his later arrests that are not the subject of this action. Even if the 2019 hearing is related to the 2015 arrest, however, McDaniel's allegations do not provide enough specific information regarding the alleged fabrication.
McDaniel alleges that the "officers" falsely testified that his hands were outstretched as though he had thrown the gun but does not allege which officer (or both) made this allegedly false statement. Likewise, McDaniel does not describe the manner in which the transcripts were allegedly "changed/altered" and provides no alleged facts to support the alleged impersonation of Defendant Brooks. As with his other causes of action, McDaniel states only conclusory allegations, even after having had multiple opportunities to amend.
Without more specific allegations, McDaniel fails to state a claim for denial of fair trial. See Longo v. Ortiz , No. 15-CV-7716, 2016 WL 5376212, at *6 (S.D.N.Y. Sept. 26, 2016) (dismissing plaintiff's fair trial claim because the "allegations fail to state with the requisite specificity the evidence that was purportedly fabricated"); Lewis v. City of New York , 591 F. App'x 21, 22 (2d Cir. 2015) (summary order) ("because [plaintiff] has provided no detail regarding the evidence purportedly fabricated by the defendant officers, he has not stated a plausible claim for denial of the right to a fair trial."); Bleiwas v. City Of New York , No. 15-V-10046, 2017 WL 3524679, at *7 (S.D.N.Y. Aug. 15, 2017) (dismissing fair trial claim against certain defendants because "Plaintiff's claim that ‘Defendants created false evidence’ and ‘utilized this evidence against ... Plaintiff in legal proceedings’ is too conclusory—and not supported by Plaintiff's other allegations—to assert a fair trial claim").
F. No Denial Of Right To Speedy Trial
McDaniel alleges that Defendants violated his right to a speedy trial "because my time was calculated wrong." (TAC at ECF 15.) To support this claim, McDaniel cites § 30.30(1)(a) of the New York Criminal Procedure Law ("N.Y.C.P.L."). This provision directs dismissal of an action where the people are not ready for trial within "six months of the commencement of a criminal action" where the defendant is accused of a felony. N.Y.C.P.L. § 30.30(1)(a). In opposition, Defendants point to a Decision and Order issued by Acting Supreme Court Justice Ann E. Scherzer issued on October 3, 2018 dismissing McDaniel's motion to dismiss for lack of speedy trial. (See Passidomo Decl., Ex. H. ) Justice Scherzer found that there were 60 days chargeable to the People and that dismissal would be appropriate under N.Y.C.P.L. § 30.30(1)(a) only if the People were not ready for trial within 184 days of the commencement of the action, absent excludable days. (See Passidomo Decl., Ex. H at 1.) Other than stating in conclusory fashion that his time was miscalculated, McDaniel does not specify how his right to a speedy trial was violated. McDaniel thus has not sufficiently alleged a violation of N.Y.C.P.L. § 30.30(1)(a).
The decision and order issued in connection with McDaniel's state court criminal proceeding is a public record and therefore may be considered by the Court. See Koch , 785 F. Supp. 2d at 112.
Construing the TAC liberally, the Court also considers McDaniel's allegation of denial of a right to speedy trial as a deprivation of his Sixth Amendment speedy trial rights raised pursuant to § 1983. See Blount v. Moccia , No. 16-CV-4505, 2017 WL 5634680, at *7 (S.D.N.Y. Nov. 21, 2017) (finding that plaintiff's allegation regarding violation of N.Y.C.P.L. § 30.30 "may also be read to raise a claim under the Sixth Amendment"). McDaniel's speedy trial claim, analyzed under federal law, also fails.
First, the claim fails for the same pleading deficiencies that are insufficient to state a claim under the N.Y.C.P.L. Additionally, it is well-settled that "the personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983." Victory v. Pataki , 814 F.3d 47, 67 (2d Cir. 2016) ; Brooks v. Panas , No. 14-CV-4835, 2016 WL 614684, at *4 (E.D.N.Y. Feb. 16, 2016) ("The absence of any facts alleging a defendant's personal involvement in the violation of a plaintiff's Sixth Amendment right to a speedy trial, therefore, dooms any such claim.") McDaniel has not alleged any facts suggesting that either Defendants Brooks or Zollino violated his right to a speedy trial. This claim should be dismissed. See Davila v. Johnson , No. 15-CV-2665, 2015 WL 8968357, at *4 (S.D.N.Y. Dec. 15, 2015) ("none of the named Respondents can be held responsible under § 1983 for violation of Petitioner's speedy trial rights and those claims must be dismissed").
G. No Conspiracy Claim
Affording a liberal reading to the TAC, Defendants have addressed claims for conspiracy under both 42 U.S.C. § 1983 and 18 U.S.C. § 1985. Defendants urge the Court to dismiss McDaniel's conspiracy claims under both statutes because McDaniel made only conclusory allegations that Defendants Brooks and Zollino have conspired together. The Court agrees.
1. No § 1983 Conspiracy Claim
A successful claim for conspiracy under § 1983 must show "(1) an agreement between two or more state actors or between a state actor and a private entity; (2) to act in concert to inflict an unconstitutional injury; and (3) an overt act done in furtherance of that goal causing damages." Chamberlain v. City Of White Plains , 986 F. Supp. 2d 363, 387 (S.D.N.Y. 2013) (quoting Pangburn v. Culbertson, 200 F.3d 65, 72 (2d Cir. 1999) ). It has been clearly established that "complaints containing only conclusory, vague, or general allegations that the defendants have engaged in a conspiracy to deprive the plaintiff of his constitutional rights are properly dismissed." Ciambriello v. County Of Nassau , 292 F.3d 307, 325 (2d Cir. 2002) (dismissing plaintiff's § 1983 conspiracy claim "[b]ecause [plaintiff's] factual allegations are inadequate"). Here, McDaniel does not provide any specific facts to suggest that Defendants Brooks and Zollino acted pursuant to an agreement to violate McDaniel's constitutional rights. For this reason alone, the § 1983 conspiracy claim should be dismissed.
2. No § 1985 Conspiracy Claim
Federal law provides redress for conspiracies to deprive persons of their constitutional rights, even in the absence of a state actor. The statutory vehicle for doing so is 18 U.S.C. § 1985. McDaniel generally alleges a conspiracy among Defendants Brooks and Zollino, but the TAC fails to allege a viable claim for a conspiracy claim grounded in federal law.
Section 1985 addresses three different types of conspiracies, namely those aimed at (1) interference with law enforcement, (2) obstruction of justice, and (3) deprivation of equal rights and privileges. 18 U.S.C. § 1985(1)-(3). The TAC does not plausibly allege any of those. To assert a viable claim under § 1985, a plaintiff must allege, among other elements, an agreement or meeting of the minds between the alleged conspirators to achieve an unlawful end. See Robinson v. Allstate Insurance. Co. , 508 F. App'x. 7, 9 (2d Cir. 2013) (quoting Webb v. Goord , 340 F.3d 105, 110 (2d Cir. 2003) ). The TAC makes no plausible allegations of such a meeting of the minds. Further, of the three types of conspiracies, the least inapt would be deprivation of rights and privileges under § 1985(3). But to establish a violation of § 1985(3), a plaintiff must establish, among other elements, that the conspiracy was motivated by "some racial or perhaps otherwise class-based, invidious discriminatory animus...." Id. (quoting Britt v. Garcia , 457 F.3d 264, 270 n. 4 (2d Cir. 2006) ) (internal quotation omitted); see also Blue , 2018 WL 2561023 at *9 ("A claim under § 1985(3) must be motivated by some racial or perhaps otherwise class-based, invidious discriminatory animus behind the conspirators’ action") (quoting Mian v. Donaldson, Lufkin & Jenrette Securities Corp. , 7 F.3d 1085, 1088 (2d Cir. 1993) ). The TAC provides no factual assertions that would establish the requisite discriminatory animus. Accordingly, any claims pursuant to § 1985 should be dismissed for failure to state a claim.
Defendants argue that McDaniel's claims for conspiracy under § 1985 also should fail as a matter of law under the intracorporate conspiracy doctrine, which provides that "officers, agents and employees of a single corporate entity are legally incapable of conspiring together and thus cannot be held liable for conspiracy under § 1985(3) or § 1983." Blue , 2018 WL 2561023 at *9 (internal quotation marks omitted). An exception to the doctrine arises where "the alleged conspirators are motivated by an improper personal interest separate and apart from that of their principal." Chamberlain , 986 F. Supp. 2d at 388. McDaniel does not allege any facts that could support an inference that either Officer Brooks or Zollino was motivated by an independent personal stake in McDaniel's prosecution. Therefore, McDaniel's claim does not fall under the exception to the intracorporate conspiracy rule, and both claims for conspiracy should be dismissed.
The Second Circuit recognizes the intracorporate conspiracy rule in the context of § 1985 conspiracy claims, but it has not ruled whether the doctrine applies to § 1983 claims. See Blue , 2018 WL 2561023 at *9 n. 10. District courts, however, have applied the doctrine to conspiracy claims brought pursuant to § 1983. See Chamberlain , 986 F. Supp. 2d at 388. ("Several District Courts in the Circuit have addressed the question, however, and have held that the rationale behind the intracorporate conspiracy rule – that there is no conspiracy if the conduct is essentially a single act by agents of a single entity acting with[in] the scope of their employment – applies with equal force in the Section 1983 context").
H. No Excessive Bail Claim
Defendants argue that the Court should dismiss McDaniel's § 1983 claim for excessive bail because neither Defendant Brooks nor Defendant Zollino played a role in setting the bail amount. Defendants are correct. The TAC makes no allegation that either Brooks or Zollino were involved in any way in setting the amount of McDaniel's bail. Accordingly, the excessive bail claim should be dismissed. See Jackson v. Marshall , No. 04-CV-3915, 2008 WL 800745, at *4 (S.D.N.Y. Mar. 25, 2008) ("A plaintiff cannot sustain a § 1983 claim for excessive bail against a defendant who played no role in setting the bail amount."); Shepler v. Collura , No. 17-CV-10254, 2020 WL 729763, at *5 (S.D.N.Y. Feb. 13, 2020) ("Police officers who arrest an individual cannot be liable for the bail required of that individual." (quoting Estes-El v. State Of N.Y. , 552 F. Supp. 885, 889 (S.D.N.Y. 1982) ).) I. State Law Claims
In addition to the Section 1983 claims, McDaniel asserts a state law negligent investigation claim: i.e., that Defendants’ negligent planning exposed him to an unreasonable risk of physical injury. McDaniel does not directly allege this claim, but it is included in the header of his false arrest, malicious prosecution, and due process claims. (TAC at ECF 4.)
That said, McDaniel's state law claims are time-barred. New York law requires that tort actions against the City "shall be commenced within one year and ninety days after the happening of the event upon which the claim is based." N.Y. Gen. Mun. L. § 50-i(1). McDaniel was arrested on July 14, 2015, arraigned on July 16, 2015, and released from custody on August 9. 2015. He filed the initial complaint on December 6, 2019 – far beyond the one year and 90 days statutory limit.
An additional reason for dismissal of McDaniel's state law claims is his failure to plead or file a notice of claim. Under New York law, a plaintiff suing a municipality, municipal agency, or its employees must file a notice of claim as required by N.Y. Gen. Mun. Law § 50-e ; see also Vyrkin v. Triboro Bridge & Tunnel Authority , No. 18-CV-12106, 2021 WL 797654, at *6 (S.D.N.Y. Mar. 2, 2021) (citing N.Y. Gen. Mun. L. §§ 50-k(6), 50-e(1)(a), 50-i(1) ). New York law requires that plaintiffs serve a notice of complaint "within ninety days after the claim arises," N.Y. Gen. Mun. L. § 50-e(1)(a), and that plaintiffs allege service of the notice of claim in their complaint. N.Y. Gen. Mun. L. § 50-i(1). Failure to do so is grounds for dismissal. See, e.g. , Berry v. Village Of Millbrook , 815 F. Supp. 2d 711, 724-25 (S.D.N.Y. 2011) (dismissing pro se plaintiff's state law claims asserted against the municipality where plaintiff mistakenly believed that filing of a summons notice satisfied the notice of claim requirement); Nunez v. Borough Of Manhattan Community College , No. 10-CV-2854, 2010 WL 5396079, at *2 (S.D.N.Y. Dec. 29, 2010) (dismissing case where "plaintiff has not complied with the notice-of-claim requirements of the New York General Municipal Law").
CONCLUSION
For the foregoing reasons, I recommend that the Court GRANT Defendants’ motions to dismiss in its entirety. Further, as McDaniel has now thrice amended his complaint, I recommend that McDaniel's claims be dismissed with prejudice. See Grimes v. Fremont Gen. Corp. , 933 F. Supp. 2d 584, 597 (S.D.N.Y. 2013) (dismissing plaintiff's third amended complaint and noting that "further amendment would be futile, and dismissal with prejudice is therefore appropriate"); Dyson v. New York Health Care, Inc. , 353 Fed. Appx. 502 (2d Cir. 2009) (district court's dismissal of plaintiff's third amended complaint with prejudice was proper where plaintiff had been afforded multiple opportunities to file an amended complaint but continued to ignore specific instructions from the court).
DEADLINE FOR OBJECTIONS AND APPEAL
Pursuant to 28 U.S.C. § 636(b)(1) and Rules 72, 6(a), and 6(d) of the Federal Rules Of Civil Procedure, the parties have fourteen (14) days to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of Court, with extra copies delivered to the Chambers of the Honorable Analisa Torres, United States Courthouse, 500 Pearl Street, New York, New York 10007, and to the Chambers of the undersigned, 500 Pearl Street, New York, New York 1007. FAILURE TO FILE TIMELY OBJECTIONS WILL RESULT IN WAIVER OF OBJECTIONS AND PRECLUDE APPELLATE REVIEW.