CURTIN, District Judge.
Plaintiff Arnold Wiggins, Jr. has filed this pro se action seeking relief under 42 U.S.C. § 1983 (Docket No. 1) and has requested permission to proceed in forma pauperis (Docket No. 2). Plaintiff claims that the defendants, the City of Buffalo, the Buffalo Police Department, and five Buffalo Police Officers, falsely arrested him and maliciously prosecuted him, and that the District Attorney, an Assistant District Attorney, the County of Erie and the Erie County Assigned Counsel Program conspired to deny him his rights to counsel, to be "present at any grand jury investigation" and not to be prosecuted based on false and perjured testimony. For the reasons discussed below, plaintiff's request to proceed as a poor person is granted, several of his claims are dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B), and unless plaintiff files an amended complaint as directed below, the remaining claims will be dismissed with prejudice pursuant to § 1915(e)(2)(B).
Because plaintiff has met the statutory requirements of 28 U.S.C. § 1915(a), he is granted permission to proceed in forma pauperis. Section 1915(e)(2)(B) of 28 U.S.C. provides that the Court shall dismiss a case in which in forma pauperis status has been granted if, at any time, the Court determines that the action (i) is frivolous or malicious; (ii) fails to state a claim upon which relief may be granted;
In evaluating the complaint, the Court must accept as true all factual allegations and must draw all inferences in plaintiff's favor. See King v. Simpson, 189 F.3d 284, 287 (2d Cir.1999). Dismissal is not appropriate "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). "This rule applies with particular force where the plaintiff alleges civil rights violations or where the complaint is submitted pro se." Chance v. Armstrong, 143 F.3d 698, 701 (2d Cir.1998).
Based on its evaluation of the complaint, the Court finds that several of plaintiff's claims must be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B), and unless plaintiff files an amended complaint as directed below, the remaining claims will be dismissed with prejudice pursuant to § 1915(e)(2)(B).
Plaintiff brings this action pursuant to 42 U.S.C. § 1983. In order to state a claim under § 1983, plaintiff must allege (1) that the challenged conduct was attributable at least in part to a person acting under color of state law, and (2) that such conduct deprived plaintiff of a right, privilege, or immunity secured by the Constitution or laws of the United States. Whalen v. County of Fulton, 126 F.3d 400, 405 (2d. Cir.1997) (citing Eagleston v. Guido, 41 F.3d 865, 875-76 (2d Cir.1994)).
A. Plaintiff's Allegations
Plaintiff alleges that on March 5, 2002, he was arrested by defendants Detective Munzo,
1.) Claims against County of Erie, Erie County District Attorney and Assistant District Attorney and Erie County Assigned Counsel Program
The claims against these defendants must be dismissed because (1) prosecuting attorneys are entitled to absolute judicial immunity from suits brought under 42 U.S.C. § 1983, see Imbler v. Pachtman, 424 U.S. 409, 427-28, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976), and (2) even assuming the Erie County Assigned Counsel Program is a "person" under § 1983, it is well-established that criminal defense attorneys, including public defenders and those assigned by the court, are not state actors for purposes of the "state action" requirement
2.) False Arrest and Malicious Prosecution Claims against Defendant Officers and City of Buffalo
As noted above, plaintiff claims that he was falsely arrested and maliciously prosecuted by the City of Buffalo, its Police Department and five of its officers. An initial question raised but not answered by the complaint is whether or not these claims are premature or barred by the United States Supreme Court's analysis in Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). See Covington v. City of New York, 171 F.3d 117, 119 (2d Cir.1999). In Heck, the Court held that:
Id. at 486-87, 114 S.Ct. 2364 (footnote omitted). Not all state convictions, however, bar § 1983 claims. As explained in Heck:
Id. at 487, 114 S.Ct. 2364.
The initial question, therefore, which plaintiff must address in the amended complaint, which he will be directed to file below, is whether "`a judgment in [his] favor ... would necessarily imply the invalidity of' any conviction or sentence that might have resulted from [plaintiff'] prosecution resulting from the arrest." Covington, 171 F.3d at 122; (quoting Heck, 512 U.S. at 487, 114 S.Ct. 2364). The amended complaint, therefore, must contain factual allegations regarding whether or not plaintiff was convicted and sentenced, the status of the conviction and whether or not the conviction has ever been invalidated. If the conviction has never been invalidated, then it would appear that this § 1983 false arrest and malicious prosecution action would be barred, unless plaintiff can show that a successful outcome in this action would not necessarily imply the invalidity of any conviction that may have occurred as a result of the arrest on March 5, 2002. See Heck, 512 U.S. at 487, 114 S.Ct. 2364; Covington, 171 F.3d at 122.
In addition to requiring an amended complaint with respect to the Heck analysis,
A § 1983 claim for false arrest, which derives from an individual's right under the Fourth Amendment to be free from unreasonable seizures, including arrest without probable cause, see, e.g., Lennon v. Miller, 66 F.3d 416, 423 (2d Cir.1995), is substantially the same as a claim for false arrest under New York law, see, e.g., Weyant v. Okst, 101 F.3d 845, 852 (2d Cir.1996); Posr v. Doherty, 944 F.2d 91, 96 (2d Cir.1991). Under New York law, a plaintiff claiming false arrest must show, inter alia, that the defendant intentionally confined him without his consent and without justification. See, e.g., Broughton v. State, 37 N.Y.2d 451, 456, 373 N.Y.S.2d 87, 335 N.E.2d 310 cert. denied, 423 U.S. 929, 96 S.Ct. 277, 46 L.Ed.2d 257 (1975). Justification may be established by showing that there was probable cause to arrest, and thus probable cause "is a complete defense to an action for false arrest," Bernard v. United States, 25 F.3d 98, 102 (2d Cir.1994), whether that action is brought under state law or under § 1983. See, e.g., Broughton v. State, 37 N.Y.2d at 458, 373 N.Y.S.2d 87, 335 N.E.2d 310 (under New York law, "[j]ustification may be established by showing that the arrest was based on probable cause"); Singer v. Fulton County Sheriff, 63 F.3d 110, 118 (2d Cir.) ("There can be no federal civil rights claim for false arrest where the arresting officer had probable cause"), cert. denied, 517 U.S. 1189, 116 S.Ct. 1676, 134 L.Ed.2d 779 (1996).
To establish a claim for malicious prosecution, the plaintiff must show (1) that the defendant initiated a prosecution against the plaintiff, (2) that the defendant lacked probable cause to believe the proceeding could succeed, (3) that the defendant acted with malice, and (4) that the prosecution was terminated in the plaintiff's favor. See, e.g., Fulton v. Robinson, 289 F.3d 188, 195 (2d Cir.2002) (citing Murphy v. Lynn, 118 F.3d 938, 947 (2d Cir.1997); Broughton, 37 N.Y.2d at 457, 373 N.Y.S.2d 87, 335 N.E.2d 310). The return of an indictment against the plaintiff, establishes a rebuttable presumption of probable cause, Fulton, 289 F.3d at 198, and the presumption is rebuttable by a showing "that the indictment was the product of fraud, perjury, the suppression of evidence by the police, or other police conduct undertaken in bad faith." Id. (internal quotation marks and citations omitted).
In this case, the plaintiff's complaint does not allege sufficient facts to support either a false arrest or malicious prosecution claim. First, he alleges that he was indicted, which creates a rebuttable presumption of probable cause and probable cause is a complete defense to both claims. Second, he does not allege how the charges were concluded, either in his favor or not and, if in his favor, how they were actually dismissed or resolved. Third, other than a conclusory allegation that the officers did not have probable cause to arrest and charge him with assault in the first degree, he does not allege facts which would establish that the officers lacked probable cause, a necessary element of both claims here. Lastly, he fails to allege, other than in conclusory terms, that the officers acted with malice when charging him with assault.
Accordingly, plaintiff's claims against the City of Buffalo, the Buffalo Police Department, and the arresting and charging officers, Munzo, Perez, Ltn., Lyon and Kruz, will be dismissed unless the plaintiff files an amended complaint as directed no later than August 18, 2004 against these defendants, and these defendants only, in
The amended complaint must allege, at the least, that the officers lacked probable cause to arrest and charge him, including the circumstances of the arrest and whether he was indicted for the crimes charged, that the officers acted with malice in charging him and that the charges were resolved in plaintiff's favor. See Fulton, 289 F.3d at 196 ("Where a prosecution did not result in an acquittal, it is generally not deemed to have ended in favor of the accused, for purposes of a malicious prosecution claim, unless its final disposition is such as to indicate the accused's innocence.") (citations omitted). Moreover, if plaintiff was indicted he must allege facts that would rebut the presumption of probable cause arising from the indictment; in other words, he must allege facts that would establish "that the indictment was the product of fraud, perjury, the suppression of evidence by the police, or other police conduct undertaken in bad faith." See Id. at 198. Lastly, the amended complaint must also include facts which explain what actually resulted from his arrest and prosecution, including whether or not he was convicted and, if so, whether the conviction has ever been invalidated.
With respect to the City of Buffalo and the Buffalo Police Department, plaintiff must also allege in the amended complaint that the acts of the officers were done pursuant to a policy of custom of the City or its Police Department. Monell v. New York City Dept. of Social Services, 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). To hold a municipality liable in a § 1983 action, a plaintiff is required to plead and prove three elements: (1) an official custom or policy that (2) causes the plaintiff to be subjected to (3) a denial of a constitutional right. Zahra v. Town of Southold, 48 F.3d 674, 685 (2d Cir.1995) (citations and quotations omitted); see Gottlieb v. County of Orange, 84 F.3d 511, 518 (2d Cir.1996) ("In order to establish the liability of a municipality in an action under § 1983 for unconstitutional acts by a municipal employee below the policymaking level, a plaintiff must show that the violation of his constitutional rights resulted from a municipal custom or policy."). Here, plaintiff does not contend that any of the alleged constitutional deprivations were caused by or occurred pursuant to an official custom or policy of the City of Buffalo or its Police Department, and thus plaintiff has failed to state a § 1983 claim against these defendants. Therefore, the amended complaint must allege that the alleged acts of the defendant Officers were done pursuant to a policy or custom of the City of Buffalo and its Police Department.
Because plaintiff has met the statutory requirements of 28 U.S.C. § 1915(a) his request to proceed in forma pauperis is granted. For the reasons set forth above, plaintiff's claims against the County of Erie, Frank Clark, the Erie County District Attorney, Michael McHale, an Assistant District Attorney, and the Erie County Assigned Counsel Program are dismissed with prejudice. In addition, plaintiff's claims against the City of Buffalo, the Buffalo Police Department, and the arresting and charging officers, Munzo, Perez, Ltn., Lyon and Kruz must be dismissed
Plaintiff is advised that an amended complaint is intended to completely replace the prior complaint in the action, and thus it "renders [any prior complaint] of no legal effect." International Controls Corp. v. Vesco, 556 F.2d 665, 668 (2d Cir.1977), cert. denied sub nom., Vesco & Co., Inc. v. International Controls Corp., 434 U.S. 1014, 98 S.Ct. 730, 54 L.Ed.2d 758 (1978); see also Shields v. Citytrust Bancorp, Inc., 25 F.3d 1124, 1128 (2d Cir.1994). Therefore, plaintiff's amended complaint must include all of the allegations against each of the defendants against whom the case is going forward so that the amended complaint may stand alone as the sole complaint in this action which the defendants must answer.
Plaintiff is forewarned that if he fails to file an amended complaint as directed, the complaint will be dismissed with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B) against defendants City of Buffalo, the Buffalo Police Department, and the arresting and charging officers, Munzo, Perez, Ltn., Lyon and Kruz. Plaintiff is further forewarned that his right to pursue further relief in federal court at public expense will be greatly curtailed if he has three actions or appeals dismissed under the provisions of 28 U.S.C. § 1915(e)(2)(B). See 28 U.S.C. § 1915(g).
IT HEREBY IS ORDERED, that plaintiff's motion to proceed in forma pauperis is granted and that the Clerk of the Court is directed to amend the caption and docket sheet to include the City of Buffalo and County of Erie as defendants;
FURTHER, that plaintiff's claims against the County of Erie, Frank Clark, the Erie County District Attorney, Michael McHale, an Assistant District Attorney, and the Erie County Assigned Counsel Program are dismissed with prejudice and the Clerk of the Court is directed to terminate these four defendants as parties to this action;
FURTHER, that plaintiff is granted leave to file an amended complaint regarding only his claims of false arrest and malicious prosecution against defendants the City of Buffalo, the Buffalo Police Department, Munzo, Perez, Ltn., Lyon and Kruz as directed above by
FURTHER, that the Clerk of the Court is directed to send to plaintiff with this order a copy of the original complaint, a blank § 1983 complaint form, and the instructions for preparing an amended complaint;
FURTHER, that in the event plaintiff fails to file an amended complaint as directed above by
FURTHER, that if plaintiff has not filed an amended complaint by
FURTHER, that in the event the complaint is dismissed because plaintiff has failed to file an amended complaint, the Court hereby certifies, pursuant to 28 U.S.C. § 1915(a), that any appeal from this Order would not be taken in good faith and leave to appeal to the Court of Appeals as a poor person is denied. Coppedge v. United States, 369 U.S. 438, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962). Further requests to proceed on appeal in forma pauperis