Cuthbert v. The Town of East Hampton New York

UNITED STATES DISTRICT COURT

BASTERN DISTRICT OF NEW YORK

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WILLIAM E. CULBERTH,

Plaintiff,

MEMORANDUM & ORDER

-against- 18-CV-4796 (JS) (AYS)

THE TOWN OF EAST HAMPTON NEW YORK,

FRANK TROTTA, and BARRY JOHNSON

Defendants.

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APPEARANCES

For Plaintiff: William E. Cuthbert, pro se

183 Hog Creek Road

East Hampton, New York 11937

For Defendants: Mark A. Radi, Esq.

Sokoloff Stern

179 Westbury Avenue

Carle Place, New York 11514

SEYBERT, District Judge:

Pro se plaintiff William E. Cuthbert! (“Plaintiff”)

commenced this action on August 23, 2018 against defendants the

Town of Hast Hampton New York (the “Town”), Town Police Officer

Frank Trotta (“Trotta”), and Town Police Officer Barry Johnson

(“Johnson”) (collectively, “Defendants”), asserting claims for

malicious prosecution, municipal liability, and conspiracy, under

42 U.S.C. $$ 1983 and 1985. (Compl., D.E. 1.) On

February 21, 2020, Magistrate Judge Anne Y. Shields issued a

1 As pointed out by Judge Shields, Plaintiff appears to have

misspelled his last name as “Culberth” in the Complaint and

“Cuthbert” is the correct spelling. (R&R, D.E. 23, at 1 n.1.)

Report and Recommendation (“R&R”) recommending that the Court

dismiss Plaintiff’s Complaint in its entirety.* (R&R.) Plaintiff

filed objections to the R&R. (Pl. Obj., D.E. 28; Defs. Reply,

D.E. 29.) For the reasons that follow, Plaintiff’s objections are

OVERRULED and Judge Shields’ R&R is ADOPTED in its entirety.

BACKGROUND?

Trotta and Johnson are Town police officers, who, on

January 23, 2014, arrested Plaintiff and charged him with

disorderly conduct, harassment, and resisting arrest. (Compl .

Gi 1, 4, 11.) A jury acquitted Plaintiff of the harassment charge

but convicted him of the disorderly conduct and resisting arrest

charges. See People v. Cuthbert, 56 Misc. 3d 140(A), 65 N.Y.S.3d

492 (2d Dep’t 2017).4 Plaintiff appealed and on August 24, 2017,

the New York State Appellate Division, Second Department, reversed

2 Judge Shields also found that “good cause exists to excuse

Plaintiff’s mistake in not properly serving Trotta” and

recommended that the Court deny the portion of Defendants’

motion to dismiss against Trotta for insufficient process.

(R&R at 5.)

The allegations in the Complaint are assumed to be true for the

purposes of this motion to dismiss. Dick v. Enhanced Recovery

Co., LLC, No. 15-CV-2631, 2016 WL 5678556, at *2 (E.D.N.Y. Sept.

28, 2016).

4 The Court is permitted to take judicial notice of facts

contained in publicly available documents, including, in this

case, the filings in the State court criminal proceedings. See

Person v. White, No. 09-CV-3920, 2010 WL 2723210, at *3

(E.D.N.Y. July 2, 2010) (quoting Commer v. McEntee, No. O0-CV-

7913, 2006 WL 3262494, at *23 (S.D.N.Y. Nov. 9, 2006)).

Plaintiff’s convictions and dismissed the accusatory instruments

on the grounds that they were “jurisdictionally defective.”

Cuthbert, 56 Misc. 3d 140(A), 65 N.Y.S.3d 492.

ANALYSIS

I. Legal Standard

A “district judge must determine de novo any part of the

magistrate judge’s disposition that has been properly objected to.

The district judge may accept, reject, or modify the recommended

disposition; receive further evidence; or return the matter to the

magistrate judge with instructions.” FED. R. CIV. P. 72(b)(3).

“The objections of parties appearing pro se are ‘generally accorded

leniency’ and should be construed ‘to raise the strongest arguments

that they suggest.’” Brown v. Smith, No. 09-CV-4522, 2012 WL

511581, at *2 (E.D.N.Y. Feb. 15, 2012) (quoting Milano v. Astrue,

No. 05–CV–6527, 2008 WL 4410131, at *2 (S.D.N.Y. Sept. 26, 2008)).

II. Discussion

By letter dated April 6, 2020, Plaintiff indicated that

he intended to engage the help of an attorney to assist him with

“ghost writing” his objections. (Apr. 6, 2020 Ltr., D.E. 26.) On

April 10, 2020, the Court granted Plaintiff’s request for an

extension to file his objections, directed Plaintiff to “clearly

indicate whether he received assistance from an attorney in

drafting or ‘ghost writing’ the objections,” and warned him that

“the Court will not afford the objections the special solicitude

normally afforded to pro se submissions in the event pro bono

counsel assists him in drafting or ghost writing the objections.”

(Apr. 10, 2020 Elec. Order (citing Price v. City of N.Y., 2018 WL

3117507, at *5 n.5 (S.D.N.Y. June 25, 2018).) Plaintiff does not

indicate whether he received assistance with drafting the

objections. Nonetheless, for the reasons stated herein, the Court

adopts Judge Shields’ R&R when considering Plaintiff’s pro se

status.

A. The Objections

Plaintiff does not appear to object to Judge Shields’

recommendation that the Court dismiss Plaintiff’s claims for

(1) malicious prosecution arising out of the harassment charge;

(2) municipal liability; and (3) conspiracy. (R&R at 6-13.)

“There is no need to review de novo the portions of the R&R to

which [Plaintiff] does not object. Nonetheless, this Court has

reviewed these portions for clear error, and concurs” with Judge

Shields’ recommendation. Rodriguez v. Perez, No. 09-CV-2914, 2012

WL 3288116, at *1 (E.D.N.Y. Aug. 9, 2012). Accordingly, these

claims are DISMISSED.°

° Further, Plaintiff’s malicious prosecution claim arising out of

the harassment charge is properly dismissed because it is

indisputably time-barred. (See R&R at 6.) The Court also

agrees with Judge Shields that Plaintiff abandoned his municipal

liability and conspiracy claims because Plaintiff does not

reference or make any arguments as to those claims in his

opposition or his objections. (See R&R at 11 n.3 € 13 n.4);

Jennings v. Hunt Companies, Inc., 367 F. Supp. 3d 66, 69

Plaintiff purportedly objects to Judge Shields’

recommendation that the Court dismiss his malicious prosecution

claim arising out of the disorderly conduct and resisting arrest

convictions. Judge Shields found that “Plaintiff cannot

demonstrate that his underlying criminal proceeding terminated in

his favor” and therefore recommended that the Court dismiss this

claim. (R&R at 6-8.) Plaintiff argues that “[t]he Disorderly

Conduct Information failed to allege any unlawful conduct” and

that the “phrase jurisdictional technicality was the basis for

[Plaintiff] being railroaded by systemic corruption and misconduct

in our Criminal Justice System” because there was no probable cause

to arrest him. (Pl. Obj. II 29-32.)

The Court construes this objection as arguing that the

charges against Plaintiff terminated in his favor, and in light of

the uncertainty surrounding Plaintiff’s pro se status, considers

it under de novo review. To state a claim for malicious

prosecution under Section 1983, a plaintiff must “show that the

underlying criminal proceeding ended in a manner that

affirmatively indicates his innocence.” Lanning v. City of Glens

Falls, 908 F.3d 19, 22 (2d Cir. 2018); Jones v. City of N.Y., No.

(S.D.N.Y. 2019) (collecting cases); Randall v. Dish Network,

LLC, No. 17-CV-5428, 2018 WL 3235543, at *5 (E.D.N.Y. July 2,

2018) (collecting cases); Verdi v. City of N.Y., 306 F. Supp. 3d

532, 552 (S.D.N.Y. 2018) (dismissing abandoned claims with

prejudice).

19-CV-9126, 2019 WL 6529303, at *3–4 (S.D.N.Y. Dec. 3, 2019) (“A

malicious prosecution claim under § 1983 requires four elements:

(1) the initiation or continuation of a criminal proceeding;

(2) termination of the proceeding in the plaintiff’s favor;

(3) lack of probable cause for commencing the proceeding; and

(4) actual malice as a motivation for the defendants’ actions.”)

(citations omitted). Thus, “where a dismissal in the interest of

justice leaves the question of guilt or innocence

unanswered, . . . it cannot provide the favorable termination

required as the basis for [that] claim.” Thompson v. Clark, 364

F. Supp. 3d 178, 195 (E.D.N.Y. 2019) (quoting Lanning, 908 F.3d

28-29) (alteration in original).

Plaintiff’s objections are overruled. Even if Plaintiff

were to sufficiently satisfy the “lack of probable cause” element

for a malicious prosecution claim, Plaintiff’s claim still fails

as a matter of law where, as here, the underlying criminal

proceeding did not terminate in his favor. In Lanning, “the Second

Circuit reaffirmed the longtime requirement that favorable

termination under federal law requires that ‘the prosecution

terminated in some manner indicating that the person was not guilty

of the offense charged,’ based on the ‘merits’ rather than ‘on any

number of procedural or jurisdictional grounds.’” Rosario v. City

of N.Y., No. 18-CV-4023, 2019 WL 4450685, at *4 (S.D.N.Y. Sept. 16,

2019) (quoting Lanning, 908 F.3d at 28). “No single type of

disposition is necessary or sufficient, but the termination must

be ‘measured in objective terms by examining the totality of the

circumstances.’” Id. (quoting Lanning, 908 F.3d at 28). Under

this standard, the Lanning plaintiff’s “‘vague allegations’ of

favorable termination were insufficient, because

the . . . plaintiff agreed the dismissals were based at least in

part on lack of jurisdiction; and a state court had explicitly

stated that there was no ‘determination of the merits’ upon

dismissal.” Id. (quoting Lanning, 908 F.3d at 28).

Here, Plaintiff’s disorderly conduct and resisting

arrest convictions were reversed and the accusatory instruments

were dismissed as a result of jurisdictional defects. See

Cuthbert, 56 Misc. 3d 140(A), 65 N.Y.S.3d 492. Although Plaintiff

argued on appeal that “the evidence was legally insufficient to

establish his guilt of disorderly conduct and resisting arrest

beyond a reasonable doubt” and the “verdicts of guilt were against

the weight of the evidence,” the Second Department did not pass on

the merits of the charges. Id. (“In light of our determination,

this court need not review defendant’s other contentions.”).

Therefore, the Second Department’s decision reversing the

disorderly conduct and resisting arrest convictions is not a

termination in Plaintiff’s favor. As such, Plaintiff’s objections

are OVERRULED and his claims for malicious prosecution are

DISMISSED. See Mhina v. Colavita, No. 15-CV-0327, 2020 WL 224743,

at *4 (N.D.N.Y. Jan. 15, 2020) (collecting cases).

B. Leave to Amend

The “court should freely give leave [to amend] when

justice so requires.” FED. R. CIV. P. 15(a)(2). “[I]t is within

the sound discretion of the district court to grant or deny leave

to amend,” and a “district court has discretion to deny leave for

good reason, including futility, bad faith, undue delay, or undue

prejudice to the opposing party.” McCarthy v. Dun & Bradstreet

Corp., 482 F.3d 184, 200 (2d Cir. 2007) (citations omitted).

However, “a futile request to replead should be denied.” Cuoco v.

Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (citation omitted).

“An amendment to a pleading is futile if the proposed claim could

not withstand a motion to dismiss pursuant to Fed. R. Civ. P.

12(b)(6).” Lucente v. Int’l Bus. Machines Corp., 310 F.3d 243,

258 (2d Cir. 2002) (citation omitted). Moreover, while amendments

to pro se complaints should be granted “fairly freely,” even pro

se litigants are not entitled to unlimited opportunities to amend

their pleadings. Holmes v. Goldin, 615 F.2d 83, 85 (2d Cir. 1980)

(citation omitted); Best v. City of N.Y., No. 12-CV-7874, 2014 WL

163899, at *3 (S.D.N.Y. Jan. 15, 2014).

Given the Second Circuit’s guidance that a pro se

complaint should not be dismissed without leave to amend unless

amendment would be futile, the Court has carefully considered

whether leave to amend is warranted here. Because the defects in

the Complaint are substantive and could not be cured if afforded

an opportunity to amend, leave to amend the Complaint is DENIED.

CONCLUSION

For the reasons stated, Defendants’ motion to dismiss

(D.E. 15) is GRANTED, Judge Shields’ R&R (D.E. 23) is ADOPTED, and

Plaintiff’s objections (D.E. 28) are OVERRULED. Plaintiff’s

Complaint is DISMISSED and the Clerk of the Court is directed to

mark this case CLOSED. Prior to closing the case, the Clerk of

the Court is directed to amend the caption to correct Plaintiff’s

last name to read “Cuthbert,” instead of “Culberth.” Defendants

are directed to mail a copy of this Order to the pro se Plaintiff

and file proof of service on ECF within ten (10) days from the

date of this Memorandum and Order.

The Court certifies pursuant to 28 U.S.C. § 1915(a)(3)

that any appeal would not be taken in good faith and therefore in

forma pauperis status is denied for purpose of an appeal. Coppedge

v. United States, 269 U.S. 438, 444-45 (1962).

SO ORDERED.

/s/ JOANNA SEYBERT ___

Joanna Seybert, U.S.D.J.

Dated: May 19 , 2020

Central Islip, New York