Opinion
5:22-cv-435 (BKS/TWD)
05-31-2022
DARO C. WEILBURG, Plaintiff, v. JOHN S. RODGERS, ETHAN C. KOSS, NORMAN BUTTON, JANE DOE, and JOHN DOE, Defendants.
DARO C. WEILBURG, Plaintiff, pro se
DARO C. WEILBURG, Plaintiff, pro se
REPORT-RECOMMENDATION AND ORDER
THERESE WILEY DANCKS, UNITED STATES MAGISTRATE JUDGE
On May 4, 2022, Daro C. Weilburg (“Plaintiff”), proceeding pro se, filed a Complaint against John S. Rodgers, Ethan C. Koss, Norman Button, Jane Doe, and John Doe. (Dkt. No. 1.) Plaintiff simultaneously moved to proceed in forma pauperis (“IFP”). (Dkt. No. 2.) Having reviewed Plaintiff's motion to proceed IFP, the undersigned GRANTS the motion. See id. For the reasons discussed below, the undersigned recommends that the Court conclude Plaintiff's first cause of action survives initial review under 28 U.S.C. § 1915(e) and requires a response. (See Dkt. No. 1.) The undersigned further recommends that the Court dismiss Plaintiff's second cause of action with leave to amend. See id.
On the same day, May 4, 2022, Weilburg and his wife, Maria T. Weilburg, filed another complaint. See Case No. 5:22-cv-432-DNH-ATB, Dkt. No. 1.
I. SUMMARY OF THE COMPLAINT
Invoking this Court's jurisdiction under 28 U.S.C. § 1331, Plaintiff appears to assert two causes of action under 28 U.S.C. § 1983. (See Dkt. No. 1.) Through what appears to be the first cause of action, Plaintiff claims New York State Trooper Ethan C. Koss “knowingly and intentionally placed [him] under arrest under false pretenses.” Id. at 5. On March 12, 2022, Trooper Koss arrested Plaintiff for criminally trespassing on the property of Richard Castellane. See id.; see also Dkt. No. 1-1 at 1. According to Plaintiff, Trooper Koss “knew Richard Castellane and Norman Button provided false information” in support of the arrest but arrested him anyway because “Koss was driven by his personal relationship with Norman Button.” (Dkt. No. 1 at 5.) Plaintiff further alleges Trooper Koss arrested him and charged him “with a Class A Misdemeanor of being a Jehovah's Witness.” Id. at 8.
Through what appears to be the second cause of action, Plaintiff claims John S. Rodgers, the Assistant District Attorney for Stockbridge Township, County of Madison, is engaged in malicious prosecution. Id. at 7-8. According to Plaintiff, ADA Rodgers has no evidence to support the charge of criminal trespass, has failed to honor his discovery obligations, and is prosecuting Plaintiff “because [he is] a Jehovah's Witness.” Id.
Plaintiff does not appear to advance any causes of actions against the other individuals named in the caption of his Complaint. See generally id. at 1-8.
II. STANDARD OF REVIEW
This Court must conduct an initial review of complaints filed in forma pauperis, and “complaints in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity.” 28 U.S.C. § 1915(e)(2)(B) (governing complaints filed in forma pauperis); 28 U.S.C. § 1915A (governing complaints filed by prisoners against the government). When reviewing these types of complaints, this Court must “identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint . . . is frivolous, malicious, or fails to state a claim upon which relief may be granted; or . . . seeks monetary relief from a defendant who is immune from such relief.” 28 U.S.C. § 1915A; 28 U.S.C. § 1915(e)(2)(B); see also Allen v. Stringer, No. 20-3953, 2021 WL 4472667, at *1 (2d Cir. Sept. 30, 2021) (applying Section 1915(e)(2)(B)); Carr v. Dvorin, 171 F.3d 115, 116 (2d Cir. 1999) (applying Section 1915A).
Unless otherwise indicated, in quoting cases, all alterations, internal quotation marks, emphases, footnotes, and citations are omitted. See, e.g., Sczepanski v. Saul, 946 F.3d 152, 157 n.4 (2d Cir. 2020).
This Court must exercise caution when determining whether to sua sponte dismiss a pro se complaint on the grounds that it is frivolous. See Thomas v. Scully, 943 F.2d 259, 260 (2d Cir. 1991); Anderson v. Coughlin, 700 F.2d 37, 41 (2d Cir. 1983). “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). “A claim is based on an indisputably meritless legal theory when either the claim lacks an arguable basis in law, or a dispositive defense clearly exists on the face of the complaint.” Id.
When undertaking this initial review, the Court must construe pro se pleadings with the utmost leniency. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (holding that a pro se litigant's complaint is to be held “to less stringent standards than formal pleadings drafted by lawyers”); see also Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008). To survive dismissal for failure to state a claim, a complaint must contain a short and plain statement of the claim showing that the pleader is entitled to relief. Fed.R.Civ.P. 8(a)(2). This short and plain statement of the claim must be “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). The statement of the claim must do more than present “an unadorned, the-defendant-harmed-me accusation.” Iqbal, 556 U.S. 662, 678. It must “give the defendant fair notice of what the claim is and the grounds upon which it rests.” Twombly, 550 U.S. 544, 555; see also Fed.R.Civ.P. 8(a)(2).
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. 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.
III. SUFFICIENCY OF THE COMPLAINT
Construing Plaintiff's pro se pleading liberally, the undersigned concludes Plaintiff has stated a claim for false arrest but has failed to state a claim for malicious prosecution. See Sealed Plaintiff, 537 F.3d at 191. First, “[t]o establish a false arrest or imprisonment claim under either New York State law or section 1983, a plaintiff must show that: (1) the defendant intended to confine the plaintiff, (2) the plaintiff was conscious of his confinement, (3) the plaintiff did not consent to the confinement and (4) the confinement was not otherwise privileged.” Albergottie v. New York City, No. 08 CIV. 8331 (SHS), 2011 WL 519296, at *7 (S.D.N.Y. Feb. 15, 2011); see also Arrington v. City of New York, No. 14-CV-3023 (ARR) (VMS), 2014 WL 11350821, at *3 (E.D.N.Y. Dec. 22, 2014). “The existence of probable cause is a complete defense to a Section 1983 claim for false arrest, and constitutes justification for the arrest.” Williams v. Suffolk Cnty., 284 F.Supp.3d 275, 284-85 (E.D.N.Y. 2018); see also Stansbury v. Wertman, 721 F.3d 84, 89 (2d Cir. 2013); see generally Arrington, 2014 WL 11350821, at *3-4 (discussing the “two limited scenarios . . . in which an individual's claim of innocence or assertion of a defense will negate probable cause.”). Moreover, “[i]f, following the arrest, the plaintiff was convicted of the charges against him, that conviction normally would be conclusive evidence of probable cause.” Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996); see also Cameron v. Fogarty, 806 F.2d 380, 387 (2d Cir. 1986).
Construing Plaintiff's allegations liberally and taking his factual allegations as true, the undersigned concludes Plaintiff's first cause of action for false arrest survives initial review. See 28 U.S.C. § 1915(e)(2)(B). Plaintiff alleges that on March 12, 2022, “Trooper Koss knowingly and intentionally placed [him] under arrest under false pretenses.” (Dkt. No. 1 at 5.) According to Plaintiff, “Trooper Koss knew Richard Castellane and Norman Button provided [him] with false information” about the alleged trespass, but Trooper Koss arrested him anyway. Id. The undersigned accordingly recommends that the Court conclude Plaintiff's false arrest claim against Trooper Koss survives initial review under 28 U.S.C. § 1915(e) and requires a response. In so recommending, the undersigned expresses no opinion regarding whether the claim could survive a properly filed motion to dismiss or motion for summary judgment.
Second, “[t]o state a § 1983 claim for malicious prosecution, a plaintiff must show (1) that the defendant commenced or continued a criminal proceeding against him; (2) that the proceeding was terminated in the plaintiff's favor; (3) that there was no probable cause for the proceeding; and (4) that the proceeding was instituted with malice.” Ramos v. City of New York, No. 1:18-CV-04938 (ALC), 2020 WL 4041448, at *5 (S.D.N.Y. July 16, 2020); see also Thompson v. Clark, 142 S.Ct. 1332, 1338 (2022); Marshall v. Randall, 719 F.3d 113, 118-19 (2d Cir. 2013). Relevant here, “[t]o demonstrate a favorable termination of a criminal prosecution for purposes of the Fourth Amendment claim under § 1983 for malicious prosecution, a plaintiff [must] show that his prosecution ended without a conviction.” Thompson, 142 S.Ct. at 1335. Plaintiff has failed to allege facts in support of each element of a malicious prosecution claim, including that the criminal prosecution for trespass ended without a conviction. (See Dkt. No. 1; see also Thompson, 142 S.Ct. at 1335.) The undersigned accordingly recommends that the Court dismiss Plaintiff's second cause of action with leave to amend. See id.
Finally, because the Complaint fails to allege any facts reflecting that Norman Button, Jane Doe, and John Doe were involved in any violation of Plaintiff's rights under 28 U.S.C. § 1983, those individuals should be dismissed for failure to state a claim upon which relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). See Cipriani v. Buffardi, No. 9:06-CV-0889 (LEK) (DRH), 2007 WL 607341, at *1 (N.D.N.Y. Feb. 20, 2007) (“Dismissal is appropriate where a defendant is listed in the caption, but the body of the complaint fails to indicate what the defendant did to the plaintiff.”) (collecting cases).
IV. CONCLUSION
For the foregoing reasons, the undersigned recommends that the Court conclude Plaintiff's false arrest claim against Trooper Koss survives initial review and requires a response. (See Dkt. No. 1.) The undersigned also recommends that the Court dismiss Plaintiff's malicious prosecution claim against ADA Rodgers with leave to amend. See id. The undersigned further recommends that Norman Button, Jane Doe, and John Doe be dismissed because the Complaint fails to allege they violated Plaintiff's rights under 28 U.S.C. § 1983.
ACCORDINGLY, it is hereby
ORDERED that Plaintiff's motion to proceed in forma pauperis (Dkt. No. 2) is GRANTED, and it is
Plaintiff should note that although his motion to proceed IFP has been granted, he will still be required to pay fees that he may incur in this action, including copying and/or witness fees.
RECOMMENDED that Plaintiff's false arrest claim against Trooper Koss survive sua sponte review; and it is further
RECOMMENDED that Trooper Koss be ORDERED to file a formal response to Plaintiff's Complaint (Dkt. No. 1) as provided for in the Federal Rules of Civil Procedure subsequent to service of process; and it is further
RECOMMENDED that Plaintiff's malicious prosecution claim against ADA Rodgers be DISMISSED WITH LEAVE TO AMEND, and it is further
RECOMMENDED that Norman Button, Jane Doe, and John Doe be DISMISSED; and it is further
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 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. Sec'y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1) (Supp. 2013); Fed.R.Civ.P. 72, 6(a).
If you are proceeding pro se and are served with this Order and Report-Recommendation by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date the Order and Report-Recommendation was mailed to you to serve and file objections. Fed.R.Civ.P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. Fed. R. Civ. 6(a)(1)(C).