McCord v. The City of New York et al
| Anthony McCord |
| The City of New York, Patrick Angst and Denezzo |
| 1:2013cv02008 |
| March 25, 2013 |
| US District Court for the Southern District of New York |
| Foley Square Office |
| XX Out of State |
| James L. Cott |
| Alison J. Nathan |
| Civil Rights |
| 42 U.S.C. ยง 1983 |
| None |
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Filing
26
ORDER: The motion to dismiss for failure to prosecute is GRANTED. This action is dismissed with prejudice. The Court certifies, pursuant to 28 U.S.C. § 1915 (a)(3), that any appeal from its order would not be taken in good faith and, therefore, that in forma pauperis status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). (Signed by Judge Alison J. Nathan on 9/4/2014) (djc)
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Filing
22
MEMORANDUM & ORDER: granting in part and denying in part 15 Motion to Dismiss. For the foregoing reasons, the City's motion is granted in part and denied in part. Plaintiffs claims are dismissed insofar as they center on (1) Defendants' ; alleged tampering with evidence and coercion of witnesses, (2) Plaintiffs interrogation, and (3) Defendants' alleged use of force. Plaintiff's Fourth Amendment search and seizure claim survives. Three final notes. First, to the extent th at Plaintiff's claims are dismissed, dismissal is without prejudice. With respect to his evidence-tampering and witness-coercion (Brady) claim, Heck permits only without-prejudice dismissal because the claim may be reinstated should Plaintiff� 39;s conviction eventually be invalidated. See Amaker, 179 F.3d at 52. Similarly, the collateral estoppel bar to Plaintiff's Miranda claim may dissolve if the Second Department disagrees with the trial court's disposition of Plaintiffs moti on to suppress his post-arrest statements. This Court will "retain jurisdiction... in order to act on any motion arising from a reversal of the supreme court's judgment by the appellate division." Petrella v. Siegel, 843 F.2d 87, 90 (2 d Cir. 1988); see also Chi. Ins. Co. v. Fasciana, No. 04 Civ. 7934 (LAP), 2006 WL 3714310, at *4 (S.D.N.Y. Dec. 13, 2006). And although Plaintiff's bare-bones excessive force allegations currently fail to state a claim, he may be able to " contextualize his claim with facts that bolster this particular allegation's plausibility." Betts, 2013 WL 311124, at *11. The Court will therefore allow Plaintiff an opportunity to re-plead his excessive force claim. Second, as noted above , it appears that the individual Defendants in this case, Angst and Denezzo, have not been served. This action cannot proceed against those Defendants if they have not been served. Notably, to the extent that Plaintiff's claims survive against t he City alone, and not the individual Defendants, they are subject to the standards for § 1983 municipal liability set forth in Monell v. Department of Social Services, 436 U.S. 658 (1978). Third, the Court notes that it may be appropriate to s tay this action pending resolution of Plaintiff's criminal appeal. If Plaintiff's appeal challenges the same conduct that forms the basis of his search and seizure claim, the possibility that the Second Department will dispose of that chall enge counsels hesitation before proceeding further on that claim in this Court. The Second Circuit has suggested that a stay may be appropriate under similar circumstances, "with a view to avoiding wasteful duplication of judicial resources and having the benefit of the state court's views." Giulini v. Blessing, 654 F.2d 189, 193 (2d Cir. 1981); see also Kirschner v. Klemons, 225 F.3d 227, 237-39 (2d Cir. 2000); Jackson, 135 F.3d at 257. However, this Court is currently unable to ascertain whether the Second Department will, in fact, be addressing the same Fourth Amendment issues that Plaintiff raises here; if not, there would seem to be no reason to stay the litigation of his remaining claim. In light of the foregoing, it i s hereby ORDERED that Plaintiff must submit a letter to the Court by July 7, 2014. His letter should indicate whether he wishes to file an amended complaint or instead rest on his original complaint without re-pleading his excessive force claim. If Plaintiff wishes to file an amended complaint, he should include a proposed amended complaint with his letter. Plaintiff's letter should also indicate whether he wishes to maintain his claims against Angst and Denezzo. The Court will consider ex tending his time to serve those Defendants if he demonstrates good cause for his failure to serve them within 120 days of the summons being issued. See Fed. R. Civ. P. 4(m). Plaintiff is cautioned that, in light of his prior lack of communication reg arding the City's motion to dismiss, failure to submit a letter by the July 7 deadline may result in dismissal of his remaining claim for failure to prosecute. See, e.g., Robinson v. Sposato, No. 13 Civ. 3334 (JFB) (WDW), 2014 WL 1699001, at *2 (E.D.N.Y. Apr. 24, 2014) (dismissing prisoner's suit for failure to prosecute because "plaintiff has shown no interest in continuing with this action"). It is further ORDERED that the City shall submit, by June 27, 2014, a letter rega rding whether a stay of this action would be appropriate in light of the above-cited cases and any other relevant authority. Plaintiff may respond by letter on or before July 7. This resolves Docket No. 15. (Signed by Judge Alison J. Nathan on 6/6/2014) (djc) Modified on 6/6/2014 (djc).
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