Opinion
5:24-cv-0573 (DNH/TWD)
06-11-2024
CHARLES WILLIAMS, JR., Plaintiff, v. ATKINS, et al., Defendants.
CHARLES WILLIAMS, JR. Plaintiff, pro se Cayuga County Jail
CHARLES WILLIAMS, JR. Plaintiff, pro se Cayuga County Jail
REPORT-RECOMMENDATION AND ORDER
THERESE WILEY DANCKS, UNITED STATES MAGISTRATE JUDGE
I. INTRODUCTION
The Clerk has sent to the Court for review a complaint submitted by pro se plaintiff Charles Williams, Jr. (“Plaintiff”) asserting claims pursuant to 42 U.S.C. § 1983. Dkt. No. 1. Plaintiff, who is currently confined at the Cayuga County Jail, has not paid the filing fee for this action and seeks leave to proceed in forma pauperis (“IFP”). Dkt. Nos. 2, 3.
II. IFP APPLICATION
“28 U.S.C. § 1915 permits an indigent litigant to commence an action in a federal court without prepayment of the filing fee that would ordinarily be charged.” Cash v. Bernstein, No. 1:09-CV-1922, 2010 WL 5185047, at *1 (S.D.N.Y. Oct. 26, 2010). “Although an indigent, incarcerated individual need not prepay the filing fee at the time of filing, he must subsequently pay the fee, to the extent he is able to do so, through periodic withdrawals from his inmate accounts.” Id. (citing 28 U.S.C. § 1915(b); Harris v. City of New York, 607 F.3d 18, 21 (2d Cir. 2010)); see also 28 U.S.C. § 1915A(c) (“As used in this section, the term ‘prisoner' means any person incarcerated or detained in any facility who is accused of, convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms and conditions of parole, probation, pretrial release, or diversionary program.”).
Upon review, Plaintiff's IFP application demonstrates economic need. Dkt. No. 2. Because Plaintiff has met the statutory requirements of 28 U.S.C. § 1915(a) and has filed the inmate authorization form required in this District, Dkt. No. 3, he is granted permission to proceed IFP.
Although his IFP application has been granted, Plaintiff will still be required to pay fees that he may incur in this action, including copying and/or witness fees.
III. BACKGROUND
Plaintiff alleges, on or about May 19, 2021, he entered an “all American mart” store with four others. Dkt. No. 1 at 6-7. Upon entering the establishment, he “was assaulted severely with pepper spray, a knife, a baton, fist, brass knuckles and a tazor by store owner and two (2) of his employees.” Id. at 6. The “Auburn Police Department . . . responded later than anticipated following a 911 call and the state police arrived sooner, despite A.P.D. headquarters being located directly across the street from” the store. Id. at 7.
Citations to Plaintiff's submissions will refer to the pagination generated by CM/ECF, the Court's electronic filing system. Unless otherwise indicated, excerpts from the record are reproduced exactly as they appear in the original and errors in spelling, punctuation, and grammar have not been corrected.
On or about June 20, 2021, Plaintiff was charged with assault in the second degree and criminal possession of a weapon in the third degree. Id. On or about June 25, 2021, “Plaintiff attended a preliminary hearing at the Cayuga County City Court building.” Id. at 8. “In the court's corridor officer Atkins, head investigator of said case was clearly overheard directing and orchestrating several members of A.P.D. to remember to say, ‘he had a baton in his hand' while demonstrating a downward swing.” Id. “Officer Atkins informed Spinelli, Rivers, Augello, amung others to follow a script, and plaintiff was unsuccessful at his hearing.” Id. at 8-9.
Following the hearing, Plaintiff remained in custody at the Cayuga County Jail. Id. at 9. On or about August 11, 2021, “Plaintiff attended the Grand Jury against the advice of his assigned attorney Jarrod Smith.” Id. “Multiple A.P.D. members testified before the grand jury while conspiring with Jon E. Budlemann to fabricate an entire case, falsely accusing plaintiff of previously mentioned trumped up offenses.” Id. at 9-10. “Budlemann emphasized to the members of the grand jury that plaintiff was acting in retaliation and assaulted the store owner with a weapon, ie. baton” and “revealed enlarged photoshopped pictures of plaintiff with a baton in hand, yet said hand attached to plaintiff's arm & wrist was apparently white (of caucasian origin) moreover, the sleeve was blue, consistent to the blue shirt in which said store owner was wearing.” Id. at 10-11. The prosecutor also “failed to produce the video footage of the ‘all American mart', in light of said material evidence having exonerating potentiality.” Id. at 11.
Plaintiff alleges Budlemann and “A.P.D.'s ‘computer technician' produced self manufactured still frames (ie. altered images) to present his case.” Id. at 11-12. Therefore, “clearly the defendants maliciously conspired to frame plaintiff, unethically for crimes never committed.” Id. at 12. Additionally, “one of the registered nurses at upstate university hospital downsized plaintiff's injuries as ‘superficial' wounds to appease and corroberate Atkins intent to charge him.” Id.
“After viewing Emily Douglass' video, which captures the commencement of this bloody incident the falsified photographs presented by the defendants, along with plaintiffs testimony a ‘no bill' was declared on August 25, 2021. Soon thereafter, Plaintiff was released from Cayuga County Jail on or around August 30, 2021.” Id. at 13. However, as a result of this incident, “Plaintiff has lost employment at giovanni food where his payrate averaged $900.00 per week.” Id. at 14. The complaint also includes a document from Upstate University Hospital indicating Plaintiff was assessed for injuries to the head, eyes, chest/lungs, abdomen, hand, and back/spine on May 19, 2021. See id. at 15.
The complaint contains seven claims: (1) failure to protect and serve, (2) false imprisonment, (3) malicious prosecution, (4) defamation of character, (5) false arrest, (6) emotional suffering, and (7) falsifying documentation, filing false instruments, and false reports via producing untrue accusations. Id. at 16-19. Plaintiff has identified 42 U.S.C. § 1983 as the basis of his claims and listed the following individuals as defendants: (1) Atkins, police officer/detective, (2) Augello, police officer/detective, (3) Rivers, police officer/detective, (4) Spinelli, police officer (5) Jon Doe, computer technician officer, (6) Jane Doe, registered nurse, (7) Jon Budlemann, district attorney. Id. at 2-5. He requests thirteen million dollars in relief, as well as “a protective order from retaliation from districts attorney office & A.P.D.....” Id. at 20.
IV. LEGAL STANDARD
Section 1915 of Title 28 requires a district court to dismiss an in forma pauperis complaint if the action is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1)-(2); § 1915(e)(2)(B)(i)-(iii); Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998). The Court must also dismiss a complaint, or portion thereof, when the Court lacks subject matter jurisdiction. See Fed.R.Civ.P. 12(h)(3) (“If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.”).
While the law mandates dismissal on any of these grounds, the Court is obliged to construe pro se pleadings liberally, Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), and interpret them to raise the “strongest arguments that they suggest.” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474-75 (2d Cir. 2006) (internal quotation marks and citation omitted). A claim is frivolous when it “lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989), abrogated on other grounds Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007); see also Denton v. Hernandez, 504 U.S. 25, 33 (1992) (“[A] finding of factual frivolousness is appropriate when the facts alleged rise to the level of the irrational or the wholly incredible”); Livingston, 141 F.3d at 437 (“[A]n action is ‘frivolous' when either: (1) the factual contentions are clearly baseless . . . or (2) the claim is based on an indisputably meritless legal theory.”).
Additionally, when reviewing a complaint, a court may look to the Federal Rules of Civil Procedure. 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.” Twombly, 550 U.S. at 570. “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).
See also Fed.R.Civ.P. 10(b) (“A party must state its claims or defenses in numbered paragraphs, each limited as far as practicable to a single set of circumstances. A later pleading may refer by number to a paragraph in an earlier pleading. If doing so would promote clarity, each claim founded on a separate transaction or occurrence--and each defense other than a denial--must be stated in a separate count or defense.”).
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) (citations omitted). However, “the 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.
Moreover, a court should not dismiss a pro se complaint “without granting 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). However, 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).
V. ANALYSIS
“To state a valid claim under 42 U.S.C. § 1983, the plaintiff must allege that the challenged conduct (1) was attributable to a person acting under color of state law, and (2) deprived the plaintiff of a right, privilege, or immunity secured by the Constitution or laws of the United States.” Whalen v. Cnty. of Fulton, 126 F.3d 400, 405 (2d Cir. 1997) (citing Eagleston v. Guido, 41 F.3d 865, 875-76 (2d Cir. 1994)); see also Bennett v. Bailey, No. 5:20-CV-0903 (GTS/ATB), 2020 WL 5775940, at *2 (N.D.N.Y. Aug. 17, 2020) (“The requirement that the defendant acted under ‘color of state law' is jurisdictional.”) (citation omitted), report and recommendation adopted, 2020 WL 5775231 (N.D.N.Y. Sept. 28, 2020). “Section 1983 itself creates no substantive rights; it provides only a procedure for redress for the deprivation of rights established elsewhere.” Thomas v. Roach, 165 F.3d 137, 142 (2d Cir. 1999) (citing City of Oklahoma City v. Tuttle, 471 U.S. 808, 816 (1985)) (additional citation omitted).
A. Auburn Police Department Officers
The Court liberally construes Plaintiff's complaint as alleging false arrest, false imprisonment, falsified evidence, and malicious prosecution claims against the Auburn Police Officers Atkins, Augello, Rivers, Spinelli, and a John Doe computer technician.
A § 1983 claim for false arrest or false imprisonment “rest[s] on the Fourth Amendment right of an individual to be free from unreasonable seizures, including arrest without probable cause ....” Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996) (citing Lennon v. Miller, 66 F.3d 416, 423 (2d Cir. 1995)). Such claims are one and the same because “[f]alse arrest and false imprisonment overlap; the former is a species of the latter.” Wallace v. Kato, 549 U.S. 384, 388 (2007); see also Jenkins v. City of New York, 478 F.3d 76, 88 n. 10 (2d Cir. 2007) (“False arrest is simply false imprisonment accomplished by means of an unlawful arrest.”) (citation omitted).
“A section 1983 claim for false arrest is substantially the same as a claim for false arrest under New York law.” Jenkins, 478 F.3d at 84 (citing Weyant, 101 F.3d at 852). Accordingly, to state a claim for false arrest and imprisonment, “a plaintiff must show that (1) the defendant intended to confine the plaintiff, (2) the plaintiff was conscious of the confinement, (3) the plaintiff did not consent to the confinement, and (4) the confinement was not otherwise privileged.” Savino v. City of New York, 331 F.3d 63, 75 (2d Cir. 2003) (citing Bernard v. United States, 25 F.3d 98, 102 (2d Cir. 1994)) (internal quotations omitted). “Reflective of the fact that false imprisonment consists of detention without legal process, a false imprisonment ends once the victim becomes held pursuant to such process-when, for example, he is bound over by a magistrate or arraigned on charges.” Wallace, 549 U.S. at 389 (emphasis in original). “Thereafter, unlawful detention forms part of the damages for the entirely distinct' tort of malicious prosecution ....” Id. at 390 (internal quotations and citations omitted).
“In order to prevail on a § 1983 claim against a state actor for malicious prosecution, a plaintiff must show a violation of his rights under the Fourth Amendment . . . and must establish the elements of a malicious prosecution claim under state law ....” Manganiello v. City of New York, 612 F.3d 149, 160-61 (2d Cir. 2010) (citations omitted). To support a malicious prosecution claim “[u]nder New York law, a plaintiff must establish . . . (1) the initiation or continuation of a criminal proceeding against plaintiff; (2) termination of the proceeding in plaintiff's favor; (3) lack of probable cause for commencing the proceeding; and (4) actual malice as a motivation for defendant's actions.” Butler v. Hesch, 286 F.Supp.3d 337, 355 (N.D.N.Y. 2018) (internal quotations omitted) (citing Manganiello, 612 F.3d 149, 161; Dufort v. City of New York, 874 F.3d 338, 350 (2d Cir. 2017)).
Further, “[i]t is 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) (citing Ricciuti v. N.Y.C. Transit Authority, 124 F.3d 123, 130 (2d Cir. 1997)) (additional citations omitted). “To support this sort of due process claim, a plaintiff must show, inter alia, that an investigating official fabricated evidence that caused a deprivation of life, liberty, or property.” Westley v. Burdo, No. 8:16-CV-1102 (NAM/DJS), 2018 WL 6703564, at *4 (N.D.N.Y. Dec. 20, 2018) (citing Garnett v. Undercover Officer C0039 , 838 F.3d 265, 279 (2d Cir. 2016)).
Plaintiff alleges, at his preliminary hearing, Officer Adkins directed Auburn Police Department members to state Plaintiff “‘had a baton in his hand . . . '” during the incident, which was not true. See Dkt. No. 1 at 8. He also claims an Auburn Police Department computer technician manufactured or altered images to depict Plaintiff with a baton in his hand, to support the assault and criminal possession of a weapon charges against him. See id. at 10-11. Mindful of the Second Circuit's instruction that a pro se plaintiff's pleadings must be liberally construed, see, e.g., Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008), the undersigned recommends the Court find Plaintiff's false arrest, false imprisonment, and malicious prosecution claims against Officer Adkins and his falsified evidence, false arrest, false imprisonment, malicious prosecution claims against the John Doe computer technician survive sua sponte review and require a response. The Court expresses no opinion as to whether these claims can withstand a properly filed dispositive motion.
Plaintiff's seventh claim alleges, “falsifying documentation, filing false instruments, and false reports via producing untrue accusations, making a plethora of fabricated reports and using photoshopped images with plaintiffs using a baton was egregious & unethical.” Dkt. No. 1 at 19-20. However, his factual contentions fail to identify the author or content of any such fabricated reports. Therefore, insofar as he seeks to assert a claim based on the falsification of evidence other than the images allegedly created by John Doe in violation of his federal due process rights, the undersigned recommends dismissal of such a claim.
By contrast, Plaintiff's complaint fails to explain in what allegedly unlawful actions Officers Augello, Rivers, and Spinelli engaged. His sole contention concerning these individuals is his conclusory assertion that “Officer Atkins informed Spinelli, Rivers, Augello, amung others to follow a script ....” See Dkt. No. 1 at 8-9 (emphasis added). In its current state, Plaintiff's complaint is insufficient to provide Augello, Rivers, and Spinelli notice of the claims against them. Accordingly, the undersigned recommends dismissal of the complaint as to these defendants without prejudice and with leave to amend. See Ying Li v. City of New York, 246 F.Supp.3d 578, 598 (E.D.N.Y. 2017) (“Pleadings that do not differentiate which defendant was involved in the unlawful conduct are insufficient to state a claim.”) (citations omitted); see also, e.g., Ali v. Oneida Cnty. District Attorney, No. 6:23-CV-1115 (GTS/ATB), 2023 WL 7124513, at *6 (N.D.N.Y. Oct. 30, 2023) (recommending dismissal of the plaintiff's claims against police officers where he “failed to articulate how each of the named law enforcement defendants was individually, personally involved in the purported interrogations, or any other actions, that led to the alleged fabrication of evidence.”), report and recommendation adopted, 2023 WL 8798116 (N.D.N.Y. Dec. 20, 2023).
Plaintiff also states “multiple A.P.D. members testified before the grand jury” in an effort “to fabricate an entire case, falsely accusing plaintiff” of assault and criminal possession of a weapon, Dkt. No. 1 at 9-10, but he does not specify which members.
B. Jane Doe Registered Nurse
The sole factual allegation against defendant “Jane Doe Registered Nurse” is Plaintiff's claim that “one of the registered nurses at Upstate University Hospital downsized Plaintiffs injuries as ‘superficial' wounds to appease and corroberate Atkins intent to charge him.” Dkt. No. 1 at 12. Assuming, arguendo, Jane Doe acted under color of state law, Plaintiff fails to explain, and the Court is unable to glean from his complaint, how Jane Doe's conduct violated any right, privilege, or immunity secured by the U.S. Constitution. Therefore, the undersigned recommends dismissal of the complaint as to Jane Doe for failure to state a claim without prejudice and with leave to amend.
C. District Attorney Jon Budelmann
Prosecutors enjoy “absolute immunity from § 1983 liability for those prosecutorial activities ‘intimately associated with the judicial phase of the criminal process.'” Barr v. Abrams, 810 F.2d 358, 360-61 (2d Cir. 1987) (citing Imbler v. Pachtman, 424 U.S. 409, 430 (1976)). This immunity encompasses “virtually all acts, regardless of motivation, associated with [the prosecutor's] function as an advocate.” Hill v. City of New York, 45 F.3d 653, 661 (2d Cir. 1995) (internal quotations and citation omitted). Absolute immunity applies when a prosecutor's conduct, acting as an advocate during the judicial phase of the criminal process, “involves the exercise of discretion.” Flagler v. Trainor, 663 F.3d 543, 547 (2d Cir. 2011) (citing Kalina v. Fletcher, 522 U.S. 118, 127 (1997)).
Accordingly, absolute immunity extends to functions such as “deciding whether to bring charges and presenting a case to a grand jury or a court, along with the tasks generally considered adjunct to those functions, such as witness preparation, witness selection, and issuing subpoenas.” Simon v. City of New York, 727 F.3d 167, 171 (2d Cir. 2013) (citing Imbler, 424 U.S. at 431 n. 33); see also Flagler, 663 F.3d at 547 (explaining, “the Supreme Court has found prosecutors absolutely immune from suit for alleged misconduct during a probable cause hearing, in initiating a prosecution, and in presenting the State's case . . . [but] withheld absolute immunity for conduct unrelated to advocacy, such as giving legal advice, holding a press conference, or acting as a complaining witness.”). “[O]nce a court determines that challenged conduct involves a function covered by absolute immunity, the actor is shielded from liability for damages regardless of the wrongfulness of his motive or the degree of injury caused ....” Bernard v. Cnty. of Suffolk, 356 F.3d 495, 503 (2d Cir. 2004) (citing Cleavinger v. Saxner, 474 U.S. 193, 199-200 (1985)).
Here, Plaintiff alleges District Attorney Jon Budelmann conspired with members of the Auburn Police Department “to fabricate an entire case” against him, and presented testimony and photographs to a grand jury. Dkt. No. 1 at 10-12. These allegations fall squarely within the scope of prosecutorial immunity. See, e.g., Wilson v. Cnty. of Onondaga, No. 5:20-CV-1489 (GTS/TWD), 2021 WL 5971316, at *7 (N.D.N.Y. Apr. 21, 2021) (“To the extent Plaintiff claims” various Assistant District Attorneys and District Attorneys “knew at the time of Plaintiff's case being presented to the grand juries that evidence and testimony was false and, nevertheless, conspired to present the same, such allegations relate to their roles in presenting the case to the grand jury; conduct for which they are entitled to absolute prosecutorial immunity.”) (citations omitted), report and recommendation adopted, 2021 WL 5967130 (N.D.N.Y. Dec. 16, 2021). Therefore, the undersigned also recommends dismissal of the complaint with prejudice, insofar as Plaintiff seeks to hold District Attorney Jon Budelmann liable under 42 U.S.C. § 1983.
D. Additional Claims
Plaintiff's also purports to assert claims for “failure to protect and serve,” “defamation,” and “emotional suffering.” Dkt. No. 1 at 16-19. For the reasons stated below, the undersigned recommends dismissal of these claims without prejudice and with leave to amend.
In support of his failure to protect claim, he avers “on May 19, 2021 members of A.P.D. responded late to an incident which left plaintiff severly injured A.P.D. members arrested and charged plaintiff, when plaintiff is the victim.” Id. at 16. “However, a police officer's alleged failure to protect one citizen from another does not violate due process, absent the existence of a special relationship between the police officer and the victim such as a custodial relationship (which is not present here).” Israel v. City of Syracuse, No. 5:21-CV-0915 (DNH/ML), 2021 WL 7161914, at *6 (N.D.N.Y. Dec. 9, 2021) (citing DeShaney v. Winnebago Cnty. Dep't of Soc. Servs., 489 U.S. 189, 195-96 (1989); Ying Jing Gan v. City of New York, 996 F.2d 522, 533 (2d Cir. 1993)), report and recommendation adopted, 2022 WL 18587 (N.D.N.Y. Jan. 3, 2022). Accordingly, the undersigned recommends dismissal of Plaintiff's failure to protect claim.
In support of his defamation claim, Plaintiff avers his “name was smeared negatively throughout public records, media, word of mouth & statements. Plaintiff lost his job at giovanni food, lost of friends and family relationships over his reputation being tarnished by above captioned defendants.” Dkt. No. 1 at 18. “Generally, defamation is an issue of state, not of federal constitutional, law.” Vega v. Lantz, 596 F.3d 77, 81 (2d Cir. 2010) (citations omitted).
Under limited circumstances, a constitutional violation may be found when the defamation is committed by a government official . . . . A defamation claim can be brought as a civil rights violation pursuant to 42 U.S.C. § 1983 when a plaintiff can demonstrate “a stigmatizing statement plus a deprivation of a tangible interest.”Gerrard v. Burns, No. 7:14-CV-1235, 2015 WL 1534416, at *3 (N.D.N.Y. Apr. 6, 2015) (citing Vega, 596 F.3d at 81).
To prevail on a “stigma plus” claim, a plaintiff must show (1) the utterance of a statement “sufficiently derogatory to injure his or her reputation, that is capable of being proved false, and that he or she claims is false,” and (2) a material state-imposed burden or state-imposed alteration of the plaintiff's status or rights.Sadallah v. City of Utica, 383 F.3d 34, 38 (2d Cir. 2004) (citations omitted). “Burdens that can satisfy the ‘plus' prong under this doctrine include the deprivation of a plaintiff's property . . . and the termination of a plaintiff's government employment ....” Id. (emphasis added) (citing Greenwood v. New York, Office of Mental Health, 163 F.3d 119, 124 (2d Cir.1998); Patterson v. City of Utica, 370 F.3d 322, 330 (2d Cir. 2004)). “However, ‘deleterious effects [flowing] directly from a sullied reputation,' standing alone, do not constitute a ‘plus' under the ‘stigma plus' doctrine.” Id. (citing Valmonte v. Bane, 18 F.3d 992, 1001 (2d Cir. 1994)). Here, even assuming, arguendo, the presence of defamatory statements, Plaintiff has not alleged harms “in addition to” the alleged deprivation, but only the “deleterious effects” of that defamation. See id. at 39. Therefore, even afforded a liberal construction, Plaintiff has failed to state a defamation claim under § 1983.
Further, Plaintiff has failed to sufficiently plead claim of defamation under state law.“Under New York law a [libel] defamation plaintiff must establish five elements: (1) a written defamatory statement of and concerning the plaintiff, (2) publication to a third party, (3) fault, (4) falsity of the defamatory statement, and (5) special damages or per se actionability.” Palin v. New York Times Co., 940 F.3d 804, 809 (2d Cir. 2019) (citation omitted).
“Generally, spoken defamatory words are slander; written defamatory words are libel.” Albert v. Loksen, 239 F.3d 256, 265 (2d Cir. 2001).
The elements of a cause of action for slander under New York law are (i) a defamatory statement of fact, (ii) that is false, (iii) published to a third party, (iv) “of and concerning” the plaintiff, (v) made with the applicable level of fault on the part of the speaker, (vi) either causing special harm or constituting slander per se, and (vii) not protected by privilege.Albert v. Loksen, 239 F.3d 256, 265-66 (2d Cir. 2001) (citations omitted). Plaintiff's conclusory assertion that his “name was smeared negatively throughout public records, media, word of mouth & statements” by the defendants, without more, is insufficient to state a claim under state law. In any event, because the complaint relates to an incident which occurred in 2021, any defamation claim under New York law is likely time barred. See Israel, 2021 WL 7161914, at *7 n.5 (“The statute of limitations for defamation claims under New York law is one year.”) (citing N.Y. C.P.L.R. § 215(3)).
See Dkt. No. 1 at 18.
Plaintiff's final remaining claim alleges “emotional suffering plaintiff has been battling mental anguish, nightmares, paranoia, distrust of law enforcement & society.” Dkt. No. 1 at 19. “There is no recognized claim for intentional infliction of emotional distress [(“I.I.E.D.”)] under section 1983.” Schisler v. City of Rome, No. 6:17-CV-0312 (GTS/ATB), 2017 WL 1418296, at *4 (N.D.N.Y. Mar. 22, 2017) (citation omitted), report and recommendation adopted, 2017 WL 1411533 (N.D.N.Y. Apr. 20, 2017). Alternatively, to the extent Plaintiff seeks to pursue this claim under New York law, “the New York Court of Appeals . . . has cautioned that a claim for IIED may not be sustainable ‘where the conduct complained of falls well within the ambit of other traditional tort liability.'” Turley v. ISG Lackawanna, Inc., 774 F.3d 140, 159 (2d Cir. 2014) (citing Fischer v. Maloney, 43 N.Y.2d 553, 557-58 (1978)). Here, Plaintiff's assertion of emotional suffering falls “within the ambit of his claims” for false arrest, false imprisonment, falsified evidence, and malicious prosecution, therefore, the undersigned recommends dismissal of his emotional distress claim. See, e.g., Delaney v. City of Albany, No. 1:18-CV-1259 (LEK/ATB), 2019 WL 125769, at *5 (N.D.N.Y. Jan. 7, 2019) (“The conduct of which Plaintiff complains falls within the ambit of his claims for false arrest and unreasonable search; accordingly, the Court dismisses the related IIED claim.”) (citing Yang Feng Zhao v. City of New York, 656 F.Supp.2d 375, 405 (S.D.N.Y. 2009) (“In this case the alleged conduct fits well within the traditional tort theories of false arrest, malicious prosecution, and assault and battery. Accordingly, the claim of intentional infliction of emotional distress will not fly.”); Murphy v. City of Rochester, 986 F.Supp.2d 257, 271 (W.D.N.Y. 2013) (“the allegedly outrageous conduct complained of by [the plaintiff] falls within the scope of the other traditional torts he has pleaded (i.e., false arrest; malicious prosecution; abuse of process; negligent hiring, supervision and training; and defamation by libel and slander).”).
VI. CONCLUSION
WHEREFORE, it is hereby
ORDERED that Plaintiff's motion to proceed in forma pauperis (Dkt. No. 2) is
GRANTED, and it is
RECOMMENDED that Plaintiff's complaint be ACCEPTED for filing to the extent it asserts the following claims: (1) false arrest against defendants Atkins and John Doe; (2) false imprisonment against defendants Atkins and John Doe; (3) malicious prosecution against defendants Atkins and John Doe; and (4) falsified evidence against defendant John Doe; and it is further
RECOMMENDED that Plaintiff's complaint be DISMISSED WITH PREJUDICE as to defendant Jon Budelmann; and it is further
RECOMMENDED that except as to the foregoing, the remaining claims asserted in the complaint be DISMISSED WITHOUT PREJUDICE AND WITH LEAVE TO AMEND; and it is further
ORDERED that the Clerk provide to Plaintiff a copy of this Report-Recommendation and Order, 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 (14) 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 (14) 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); Fed.R.Civ.P. 72.
If you are proceeding pro se and are served with this Report-Recommendation and Order by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date the Report-Recommendation and Order 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.P. 6(a)(1)(C).
IT IS SO ORDERED.