Opinion
5:16-CV-00601 (NAM/TWD)
06-21-2016
WILLIE MORRIS, Plaintiff, v. JASON MARTIN, et al., Defendants.
APPEARANCES: WILLIE MORRIS 14-A-0894 Plaintiff, pro se Auburn Correctional Facility P.O. Box 618 Auburn, New York 13021
APPEARANCES: WILLIE MORRIS
14-A-0894
Plaintiff, pro se
Auburn Correctional Facility
P.O. Box 618
Auburn, New York 13021 THÉRÈSE WILEY DANCKS, United States Magistrate Judge ORDER AND REPORT-RECOMMENDATION
The Clerk has sent to the Court for initial review the complaint in this 42 U.S.C. § 1983 civil rights action brought by Plaintiff Willie Morris against Defendants Jason Martin, Police Officer; Jason Seward, Police Officer; David Soares, District Attorney; Steve Korkoff, Chief of Police; City of Albany; and Albany County. (Dkt. No. 1.) Also before the Court is Plaintiff's application for leave to proceed in forma pauperis ("IFP Application"). (Dkt. No. 2.)
I. PLAINTIFF'S IFP APPLICATION
A court may grant in forma pauperis status if a party "is unable to pay" the standard fee for commencing an action. 28 U.S.C. § 1915(a)(1) (2006). After reviewing Plaintiff's IFP Application (Dkt. No. 2), the Court finds that Plaintiff meets this standard. The Court further finds that Plaintiff has filed the required Inmate Authorization Form. (Dkt. No. 3.) Therefore, Plaintiff's IFP Application (Dkt. No. 2) is granted.
II. LEGAL STANDARD FOR INITIAL REVIEW OF COMPLAINT
Even when a plaintiff meets the financial criteria for in forma pauperis, 28 U.S.C. § 1915(e) directs that when a plaintiff proceeds in forma pauperis, "the court shall dismiss the case at any time if the court determines that . . . the action . . . (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B)(i)-(iii).
In determining whether an action is frivolous, the court must look to see whether the complaint lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). "An action is frivolous when either: (1) the factual contentions are clearly baseless such as when the claims are the product of delusion or fantasy; or (2) the claim is based on an indisputably meritless legal theory." Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998) (citations and internal quotation marks omitted). Although extreme caution should be exercised in ordering sua sponte dismissal of a pro se complaint before the adverse party has been served and the parties have had an opportunity to respond, Anderson v. Coughlin, 700 F.2d 37, 41 (2d Cir. 1983), the court still has a responsibility to determine that a claim is not frivolous before permitting a plaintiff to proceed. See, e.g., Thomas v. Scully, 943 F.2d 259, 260 (2d Cir. 1991) (per curiam) (holding that a district court has the power to dismiss a complaint sua sponte if the complaint is frivolous).
To survive dismissal for failure to state a claim, a complaint must plead enough facts to state a claim that is "plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While Rule 8(a) of the Federal Rules of Civil Procedure, which sets forth the general rules of pleading, "does not require detailed factual allegations, . . . it demands more than an unadorned, the-defendant-harmed-me accusation." Id. In determining whether a complaint states a claim upon which relief may be granted, "the court must accept the material facts alleged in the complaint as true and construe all reasonable inferences in the plaintiff's favor." Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir.), cert. denied, 513 U.S. 836 (1994) (citation omitted). "[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Iqbal, 556 U.S. at 678. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id.
Where a plaintiff proceeds pro se, the pleadings must be read liberally and construed to raise the strongest arguments they suggest. Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008) (citation omitted). A pro se complaint should not be dismissed "without giving leave to amend at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated." Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999) (citation and internal quotation marks omitted). An opportunity to amend is not required where "the problem with [the plaintiff's] causes of action is substantive" such that "better pleading will not cure it." Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000).
III. COMPLAINT
On or about August 4, 2012, Albany Police Officer Milton Johnson ("Johnson") received a call falsely claiming that Plaintiff had been in the vicinity of the Port Tavern Bar brandishing a loaded firearm, and that he had left in a gold color Nissan. (Dkt. Nos. 1 at ¶ 12 and 1-1 at 3.) Defendant Albany Police Officers Jason Martin ("Martin") and Jason Seward ("Seward") allegedly pursued Plaintiff but did not bring him in for questioning or charge him in connection with the information received by Johnson. (Dkt. No. 1 at ¶ 13.)
Page references to documents identified by docket number are to the numbers assigned by the CM/ECF docketing system maintained by the Clerk's Office.
Subsequently, at approximately 2:07am on August 9, 2012, Plaintiff was the subject of what he describes as a "not-so-routine" traffic stop by Defendant Martin. Id. at ¶ 14. Out of fear for his life, Plaintiff fled from the unwarranted traffic stop and ultimately crashed his automobile. Id. Plaintiff alleges in his complaint that Defendants Martin and Seward "planted and conspired in tampering with drug proceeds evidence near [his] crashed vehicle." Id. at ¶ 15. According to Plaintiff, Defendants Martin and Seward "acted in furtherance of planting the false evidence by falsifying business records and [f]iling false charges against [him] causing him to be unlawfully confined." Id.
A felony complaint annexed as an exhibit to Plaintiff's Complaint charged Plaintiff with criminal possession of a controlled substance in the third degree, N.Y. Penal Law § 220.16-12, a Class B felony, on August 9, 2012. (Dkt. No. 1-1 at 5.) The felony complaint, on which Defendant Martin appears to have been the complainant, states that:
ON 08/09/2012 AT 0217 HRS WHILE AT 79 LEXINGTON AVE THE DEFENDANT DID KNOWINGLY AND UNLAWFULLY HAVE IN HIS POSSESSION AND UNDER HIS CONTROL, WHICH HE THREW TO THE GROUND, (2) PLASTIC BAGS CONTAINING CRACK COCAINE, ONE BAG CONTAINED 6 INDIVIDUAL PIECES OF CRACK COCAINE AND THE
SECOND CONTAINED 37 INDIVIDUAL PIECES OF CF CRACK COCAINE WITH AN AGGREGATE WEIGHT OF 16.5 GRAMS, SAID CRACK COCAINE WAS FIELD TESTED POSITIVE AND WEIGHED BY PO SEWARD.(Dkt. No. 1-1 at 5.)
Plaintiff was arrested on the charge and released on bond approximately two weeks later. (Dkt. No. 1 at ¶ 16.) On January 6, 2013, Plaintiff was targeted by non-defendant Albany Police Officers Johnson and Michael Fargione and coincidentally was charged on weapons possession stemming from the August 9, 2012, incident. Id.
On July 31, 2013, Plaintiff sent a formal complaint regarding the August 9, 2012, traffic stop and the alleged planting of drugs and filing of false charges by Defendants Martin to, inter alia, Korkoff and Soares. (Dkt. No. 1-1 at 11-15.) Plaintiff was subsequently found not guilty on the drug possession charge in a jury trial that ended October 5, 2013. Id. at ¶ 17. On December 16, 2013, the Albany Supreme Court allegedly found in favor of Plaintiff on a Criminal Procedure Law ("CPL") § 330.30 motion "due to the evidence being insufficient, a position holding that the August 9th 2012 'Stop and Frisk' of plaintiff's arrest, lacked probable cause violating plaintiff's rights pursuant to the New York State Constitution, Article I, §§ 5, 6 and 11." Id. at ¶ 18.
CPL § 330.30 deals with motions to set aside a guilty verdict prior to the imposition of sentence. The relationship, if any, between the possession of a controlled substance in the third degree charge and Plaintiff's CPL § 330.30 motion is unclear from the complaint. If, as Plaintiff has alleged, he was acquitted on the possession of a controlled substance charge on October 5, 2013, there would appear to be no need for a motion to set aside the verdict following the acquittal. It is unclear from the complaint whether the CPL § 330.30 motion involved another charge or charges on which Plaintiff had been found guilty. It is also unclear whether any of the claims in this lawsuit relate to the weapons possession conviction for which Plaintiff is presently incarcerated.
IV. ANALYSIS
A. Heck v. Humphrey
In Heck v. Humphrey, 512 U.S. 477, 486-87 (1994), the Supreme Court held that
in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus, 28 U.S.C. § 2254. A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizant under § 1983. (emphasis in original).
According to the docket maintained by the Clerk's Office, Plaintiff is presently confined in Auburn Correctional Facility. The Department of Corrections and Community Supervision online inmate lookup indicates that Plaintiff was incarcerated on March 6, 2014, on a criminal weapons possession conviction. Plaintiff has alleged in his complaint that on January 6, 2013, he was arrested on a weapons possession charge stemming from the August 9, 2012, incident. (Dkt. No. 1 at ¶ 16.) Because the relationship, if any, between the January 6, 2013, arrest, the claims asserted in this lawsuit, and Plaintiff's present incarceration is unclear, the Court finds that any determination as to the applicability of Heck is premature and has undertaken its initial review of the sufficiency of Plaintiff's claims without regard to Heck.
See http://nysdocssslookup.doccs.ny.gov/GCA00P00/W1Q1/WINQ000 (last visited on June 16, 2016).
B. City of Albany and Albany County
1. Plaintiff's Claims
Plaintiff has alleged in conclusory fashion that the City of Albany and Albany County exercised deliberate indifference to his false arrest by: (1) "enforcing a blanket policy created by the prosecutor to allow the Albany Police to conduct stop-frisks, and file perjured arrest reports without conducting a thorough investigation to determine whether the actions taken by their arresting agents were lawful" resulting in Plaintiff being frisked unlawfully and arrested on false charges by the Defendants (Dkt. No. 1 at ¶ 26); and (2) failing to adequately train police officers employed by them, specifically Martin and Seward "to the significance of the oath of duty not to commit perjury or plant evidence on a crime scene." Id. at ¶ 35.
The Court has construed Plaintiff's § 1983 claim against the City and County as one for false arrest in violation of his Fourth Amendment rights. See Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996).
2. Scope of Municipal Liability under § 1983
In Monell v. Dep't of Soc. Servs. of the City of New York, 436 U.S. 658, 691 (1978), the Supreme Court found that "the language of [section] 1983, read against the background of the legislative history, compels the conclusion that Congress did not intend municipalities to be held liable unless action pursuant to official municipal policy of some nature caused a constitutional tort." Municipalities may only be held liable when the municipality itself deprives an individual of a constitutional right; it "may not be held liable on a theory of respondeat superior." Jeffes v. Barnes, 208 F.3d 49, 56 (2d Cir. 2000); accord Monell, 436 U.S. at 691. Courts apply "rigorous standards of culpability and causation" to ensure that the municipality is not held liable solely for the actions of its employees. Jeffes, 208 F.3d at 61 (quoting Board of County Comm'rs v. Brown, 520 U.S. 397, 405 (1997)). Thus, in order for an individual whose constitutional rights have been violated to have recourse against a municipality under § 1983, he must show that he was harmed by a municipal "policy" or "custom." Monell, 436 U.S. at 690-91. A "policy" or "custom" cannot be shown by pointing to a single instance of unconstitutional conduct by a mere employee of the State. See Oklahoma City v. Tuttle, 471 U.S. 808, 831 (1985) (Brennan, J., concurring in part and concurring in the judgment) ("To infer the existence of a city policy from the isolated misconduct of a single, low-level officer, and then to hold the city liable on the basis of that policy, would amount to permitting precisely the theory of strict respondeat superior liability rejected in Monell . . . .").
A municipal "policy" can include an officially promulgated policy, i.e., a formal act by a municipality's governing body, Monell, 436 U.S. at 690, or an act taken by a municipal employee who, as a matter of State law, has final policy making authority in the area in which the action was taken. See Pembaur v. City of Cincinnati, 475 U.S. 469, 479-81 (1986); Walton v. Safir, 122 F. Supp. 2d 466, 477 (S.D.N.Y. 2001) ("[T]he act of an official with final decision-making authority, if it wrongfully causes the plaintiff's constitutional injury, may be treated as the official act of the municipality."). A municipal "custom" need not receive formal approval by the appropriate decisionmaker: "[A]n act performed pursuant to a 'custom' that has not been formally approved by an appropriate decisionmaker may fairly subject a municipality to liability on the theory that the relevant practice is so widespread as to have the force of law ." Brown, 520 U.S. at 404 (emphasis added).
3. Analysis of Plaintiff's Claims
Plaintiff has failed to allege facts plausibly showing an official policy promulgated by either the City of Albany or Albany County allowing the Albany Police to conduct stop-frisks and then file perjured arrest reports without conducting a thorough investigation to determine whether the actions taken by their arresting agents were lawful. (Dkt. No. 1 at ¶ 26.) The Court takes judicial notice that the Albany County District Attorney, who is alleged to have created the "blanket policy" authorizing the conduct, id. at ¶ 26, is an elected official, not a municipal employee. Plaintiff has also failed to plausibly allege that conducting stop-frisks and filing perjured arrest reports without conducting a thorough investigation to determine whether the actions taken by the arresting agents were lawful was so widespread as to have the force of law, as required to show a municipal custom. Plaintiff has complained only about actions allegedly taken against him by Martin and Seward.
See Article 17, Section 1701 of the Albany County Charter, providing that "[t]here shall be a District Attorney elected from the County at large."
A municipality may be liable for deprivation of constitutional rights under § 1983 for policies or customs resulting in inadequate training, supervision, or hiring when the failure to train, supervise, or hire amounts to deliberate indifference to the rights of those with whom municipal employees will come into contact. See City of Canton, Ohio v. Harris, 489 U.S. 378, 388-89 (1989). To establish causation, there must "at the very least be an affirmative link between the policy and the particular constitutional violation alleged." Tuttle, 471 U.S. at 823. Plaintiff has failed to allege facts stating a plausible claim against the City of Albany and County of Albany for failure to adequately train police officers employed by them, specifically Martin and Seward, as to the significance of the oath of duty not to commit perjury or plant evidence on a crime scene. Id. at ¶ 35. There are no allegations in the complaint showing that Seward and Martin were members of an Albany County law enforcement agency or suggesting that Albany County had any involvement whatsoever in the training of City of Albany police officers. Moreover, Plaintiff's complaint includes only conclusory allegations regarding the City and County's failure to train and does not identify municipal policies or customs regarding training as required for municipal liability under § 1983. See Straker v. Metropolitan Transit Auth., 333 F. Supp. 2d 91, 100 (E.D.N.Y. 2004) ("[C]onclusory allegations, unsupported by facts will be rejected as insufficient to state a claim under the Civil Rights Act.") (quoting Price v. State of Hawaii, 939 F.2d 702, 708 (9th Cir. 1991) (internal punctuation omitted)).
Based upon the foregoing, the Court finds that Plaintiff has failed to state a municipal liability claim under § 1983 against the City of Albany or Albany County and recommends dismissal of those claims without prejudice and with leave to amend.
C. District Attorney David Soares
1. Plaintiff's Claims
Plaintiff has sued District Attorney Soares for malicious prosecution (Dkt. No. 1 at ¶ 44) because he allegedly: (1) acted in a discriminatory manner towards Plaintiff by refusing to accept any cross-complaints, either oral or in writing, against Martin and Seward for falsifying business records, making false official statements, and filing false charges, and instead pursued the false complaint against Plaintiff after investigating the evidence, including the police dash camera video footage showing that drugs were planted on the scene and forged false criminal reports, id. at ¶¶ 27, 38; (2) created the policies and practices of the county and city which Martin and Seward used to pursue Plaintiff and falsely charge him, id. at ¶ 37; (3) exercised indifference towards Plaintiff by failing to supervise and discipline the agents Soares used to investigate criminal charges against Plaintiff, id. at ¶ 38; and (4) demonstrated actual malice against Plaintiff in commencing and continuing criminal proceedings against him in the absence of reasonable cause to stop-and-search, after having been notified of the mishandling of evidence, and having been placed on notice that the conduct leading up to Plaintiff's arrest was in clear violation of State Police Rules and Regulations and the Fourteenth Amendment. Id. at ¶ 43.
To state a claim for malicious prosecution for violation of a Plaintiff's Fourth Amendment rights under § 1983 or under New York law, a plaintiff must allege that (a) a proceeding was initiated against him, (b) the proceeding was terminated in his favor, (c) there was a lack of probable cause to initiate the proceeding, and (d) the prosecution was motivated by malice. See Murphy v. Lynn, 118 F.3d 938, 947 (2d Cir. 1997).
2. Scope of Prosecutorial Immunity
"Because a public prosecutor cannot zealously perform the prosecutorial duties of the office if compelled to work under the constant threat of legal reprisals, such official is shielded from liability for civil wrongs by the doctrine of absolute immunity." Hill v. City of New York, 45 F.3d 653, 656 (2d Cir. 1995). The Second Circuit explained in Hill, id. at 660-61, that:
In determining whether absolute immunity obtains, we apply a "functional approach," looking at the function being performed rather than to the office or identity of the defendant. See Buckley v. Fitzsimmons, 509 U.S. 259, 268-69 (1993). State prosecutors are entitled to absolute immunity for that conduct "intimately associated with the judicial phase of the criminal process." Imbler [v. Pachtman, 424 U.S. 409, 430 (1976)]. Thus, a district attorney is absolutely immune from civil liability for initiating a prosecution and presenting the case at trial. Id. at 430-31; Buckley, 509 U.S. at 273. Such official is also immune for conduct in preparing for those functions; for example, evaluating and organizing evidence
for presentation at trial or to a grand jury, Buckley, 509 U.S. at 273, or determining which offenses are to be charged. See Ying Jing Gan v. City of New York, 996 F.2d 522, 530 (2d Cir. 1993). Prosecutorial immunity from § 1983 liability is broadly defined, covering "virtually all acts, regardless of motivation, associated with [the prosecutor's] function as an advocate." Dory v. Ryan, 25 F.3d 81, 83 (2d Cir. 1994).
"A prosecutor . . . has absolute immunity in connection with the decision whether or not to commence a prosecution." Imbler v. Pachtman, 424 U.S. 409, 430 (1976); see also Broam v. Bogan, 320 F.3d 1023, 1029 (9th Cir. 2003) ("A prosecutor is absolutely immune from liability for failure to investigate the accusations against a defendant before filing charges."); Johnson v. City of New York, No. 00CIV.3626(SHS), 2000 WL 1335865, at *2 (S.D.N.Y. Sept. 15, 2000) (prosecutorial functions that are protected by absolute immunity "include the decision to bring charges against a defendant"); Halpern v. City of New Haven, 489 F. Supp. 841, 843 (D. Conn. 1980) (prosecutorial immunity found where the prosecutor undertook no independent investigation of the charges and continued prosecution even after finding insufficient evidence to support the charges). Absolute immunity has been found to extend to such acts as falsification of evidence, coercion of witnesses, solicitation and subornation of perjured testimony, withholding of evidence, and the introduction of illegally-seized evidence. Taylor v. Kavanagh, 640 F.2d 450, 452 (2d Cir. 1981).
Copies of all unpublished decisions cited herein will be provided to Plaintiff in accordance with LeBron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam). --------
A prosecutor is entitled only to qualified immunity when engaged in conduct independent of prosecution such as investigative or administrative activity, rather than as the official charged with initiating and pursuing criminal prosecutions. Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993); Bernard v. County of Suffolk, 356 F.3d 495, 502-03 (2d Cir. 2004). Thus, a prosecutor is not entitled to absolute immunity in situations such as those where he "supervises, conducts, or assists in the investigation of a crime, or gives advice as to the existence of probable cause to make a warrantless arrest that is when he performs functions normally associated with a police investigation." Richards v. City of New York, No. 97 Civ. 7990(MBM), 1998 WL 567842, at *2 (S.D.N.Y. Sept. 3, 1998) (citing Burns v. Reed, 500 U.S. 478, 493 (1991).
3. Analysis of Plaintiff's Claims
The Court finds that Plaintiff's claim that Soares is liable for malicious prosecution under § 1983 because he maliciously refused to accept Plaintiff's complaints against Martin and Seward for falsifying business records, making false official statements, and filing false charges, and instead pursued the false complaint against Plaintiff after investigating evidence showing lack of reasonable cause for a stop-and-search and being notified that evidence was mishandled falls within the scope of absolute prosecutorial immunity as discussed above.
Plaintiff also claims that Soares created the policies and practices of the county and city which Martin and Seward used to pursue and falsely charge him, and that he exercised indifference towards Plaintiff by failing to supervise and discipline the agents used to investigate criminal charges against Plaintiff. Those claims arguably may fall into the category of administrative functions with respect to which Soares would only be entitled to qualified immunity.
The Court finds with respect to those claims, however, that Plaintiff has failed to allege facts plausibly stating a claim for malicious prosecution under § 1983. Plaintiff's allegations that Soares created policies and practices of the city and county which Martin and Seward used to falsely pursue charges against him and that Soares failed to supervise and discipline agents used to investigate Plaintiff are wholly conclusory. In fact, the complaint is devoid of a single factual allegation supporting those claims. See Straker, 333 F. Supp. 2d at 100 (conclusory allegations unsupported by facts are insufficient to state a claim under § 1983).
In light of the foregoing, the Court recommends that Plaintiff's § 1983 malicious prosecution claim against Soares be dismissed, and that the dismissal be with prejudice on absolute immunity grounds except as to Plaintiff's claims with regard to policies and practices allegedly created by Soars and his alleged failure to supervise and discipline the agents he used to investigate criminal charges against Plaintiff. As to those claims, the Court recommends that the dismissal be without prejudice and with leave to amend.
D. Martin, Seward, and Korkoff
Plaintiff has alleged that Defendants Martin and Seward planted false evidence during a warrantless stop and filed false arrest reports causing him to be arrested on false felony charges and confined for two weeks until he posted bond. (Dkt. No. 1 at ¶¶ 19-21.) Police Chief Korkoff is alleged to have been made aware of the arrest on false charges supported by planted evidence through reports submitted to him and nonetheless allowed Plaintiff to be arrested, charged, and confined in jail. Id. at ¶¶ 24, 28.
The Court construes Plaintiff's claims against Defendants Martin, Seward, and Korkoff under § 1983 as claims for false arrest and false imprisonment in violation of Plaintiff's rights under the Fourth Amendment. To state a claim for false arrest under § 1983 or New York law, a plaintiff must allege that (1) the defendant intended to confine him; (2) plaintiff was conscious of the confinement; (3) plaintiff did not consent to the confinement; and (4) the confinement was not otherwise privileged. See Posr v. Doherty, 944 F.2d 91, 96 (2d Cir. 1991). "False arrest is simply an unlawful detention or confinement brought about by means of an arrest rather than in some other way and is in all other respects synonymous with false imprisonment." Vasquez v. City of New York, No. 99 Civ. 4606(DC), 2000 WL 869492, at *3 (S.D.N.Y. June 29, 2000) (quoting Covington v. City of New York, 171 F.3d 117, 125 (2d Cir. 1999) (Glasser, J. dissenting)).
Mindful of the Second Circuit's direction that a pro se plaintiff's pleadings must be liberally construed, Sealed Plaintiff, 537 F.3d at 191, the Court recommends that Plaintiff's § 1983 claims for false arrest and false imprisonment against Defendants Martin, Seward, and Korkoff be found to survive initial review and require a response. In so recommending, the Court expresses no opinion as to whether the claims can withstand a properly filed motion to dismiss or for summary judgment.
ACCORDINGLY, it is hereby
ORDERED that Plaintiff's IFP Application (Dkt. No. 2) be GRANTED; and it is
RECOMMENDED that the complaint (Dkt. No. 1) be DISMISSED WITHOUT PREJUDICE AND WITH LEAVE TO AMEND against Defendants City of Albany and Albany County; and it is further
RECOMMENDED that the complaint be DISMISSED as against Defendant District Attorney Soares, and that the DISMISSAL BE WITH PREJUDICE ON ABSOLUTE IMMUNITY GROUNDS EXCEPT as to Plaintiff's claims that Soares created practices and policies Martin and Soares used to pursue and falsely charge him, and that Soares failed to supervise and discipline the agents he used to investigate criminal charges against Plaintiff, and as to those claims, the Court RECOMMENDS THAT THE DISMISSAL BE WITHOUT PREJUDICE AND WITH LEAVE TO AMEND; and it is further
RECOMMENDED that the action be allowed to proceed against Defendants Martin, Seward, and Korkoff, and that Defendants, or their counsel, be required to file a response as provided for in Rule 12 of the Federal Rules of Civil Procedure; and it is further
RECOMMENDED that in the event the District Court allows Plaintiff to file an amended complaint, he be instructed that any amended complaint be a complete pleading that supersedes his original complaint in all respects (and does not incorporate by reference any portion of his original complaint); and that he not attempt to reassert any claims that have been dismissed with prejudice by the District Court; and it is hereby
ORDERED, that the Clerk provide Plaintiff with a copy of this Order and Report-Recommendation, along with copies of the unpublished decisions cited herein in accordance with the Second Circuit decision in Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72. Dated: June 21, 2016
Syracuse, New York
/s/_________
Tnérèse Wiley Dancks
United States Magistrate Judge