Opinion

McCullough v. Graves

Court
District Court, N.D. New York
Filed
Feb 9, 2024
Cited by
0 cases
Authority
More cited than 27.0%

The opinion

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

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JOHN H. MCCULLOUGH, JR.,

Plaintiff,

-v- 5:23-CV-1028

OFFICER BRIAN GRAVES,

Oswego City Police Officer,

OFFICER MICHAELA FROST,

Oswego City Police Officer, and

OFFICER PRITCHARD, Oswego

City Police Officer,

Defendants.

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APPEARANCES: OF COUNSEL:

JOHN H. MCCULLOUGH, JR.

Plaintiff, Pro Se

29 East 9th Street

Oswego, NY 13126

GOLDBERG, SEGALLA, LLP JONATHAN M.

Attorney for Defendants BERNSTEIN, ESQ.

8 Southwoods Boulevard, Suite 300

Albany, NY 12211

DAVID N. HURD

United States District Judge

DECISION and ORDER

I. INTRODUCTION

On August 22, 2023, pro se plaintiff John H. McCullough, Jr. (“plaintiff”)

filed this civil case using the N.D.N.Y.’s form complaint for 42 U.S.C. § 1983

actions. Dkt. No. 1. Broadly speaking, plaintiff’s form complaint alleged that

three law enforcement officers from the City of Oswego’s Police Department

violated his constitutional rights during a police encounter that began with a

traffic stop but ripened into an arrest and then a prosecution for drugs.1 Id.

On October 11, 2023, defendants Graves, Frost, and Pritchard (collectively

“defendants”) moved under Federal Rule of Civil Procedure (“Rule”) 12(b)(6)

to dismiss plaintiff’s complaint in its entirety. Dkt. No. 19. That motion was

fully briefed, Dkt. Nos. 24, 25, 28, and then granted in part and denied in

part on December 5, 2023, Dkt. No. 30.

As relevant here, the December 5 Order concluded that plaintiff’s initial

complaint was subject to dismissal because he had failed to plausibly allege

actionable claims against the named defendants. Dkt. No. 30. However, in

light of plaintiff’s pro se status, plaintiff was given a thirty-day window in

which to replead his § 1983 claims for false arrest, malicious prosecution,

1 Plaintiff sought permission to “supplement” his complaint with certain additional exhibits,

Dkt. No. 14, but the assigned Magistrate Judge denied that request, Dkt. No. 15. Plaintiff was

advised at that time that he could still amend his complaint, but to do so he would have to comply

with the relevant rules of civil procedure governing amendments to pleadings. Id.

and/or the fabrication of evidence. Id. Thereafter, plaintiff filed an amended

complaint. Dkt. No. 32.

On January 11, 2024, defendants moved under Rule 12(b)(6) to dismiss

plaintiff’s amended complaint in its entirety. Dkt. No. 36. The motion has

been fully briefed, Dkt. Nos. 38–40, 42, and will be considered on the basis of

the submissions without oral argument.

II. BACKGROUND

For reasons that will be explained below, the following facts are taken

from the December 5, 2023 Order that dismissed plaintiff’s initial complaint

rather than from plaintiff’s amended pleading. Dkt. No. 30; McCullough v.

Graves, 2023 WL 8435032 (N.D.N.Y.).

Around midnight on September 3, 2020, Police Officer Michaela Frost

stopped plaintiff’s car. Defendant Frost claimed that she had received some

information from Investigator Graves, who warned her that he had observed

plaintiff violate various traffic laws. Plaintiff alleged that defendant Frost

could not have possibly coordinated with defendant Graves. Instead, plaintiff

claimed that a non-party named “Charles Kangah,” a drug dealer who is

“best friends” with defendant Graves, helped to get plaintiff arrested.

In any event, Officer Frost approached plaintiff’s car, questioned him, and

then instructed him to step out of the vehicle. As plaintiff exited his car,

defendant Frost claimed that she saw a small baggie of marijuana drop onto

the ground nearby. Thereafter, Investigator Graves arrived at the scene,

searched plaintiff’s vehicle and patted down his person, and claimed that he

discovered some cocaine, too. Defendants arrested plaintiff for the drugs and

a grand jury indicted him. Plaintiff later filed an omnibus motion to suppress

the evidence against him.

On April 24, 2023, after an evidentiary hearing at which defendant Frost

testified, Oswego County Court Judge Karen M. Brandt Brown concluded

that defendant Frost had “probable cause” to stop plaintiff’s car based on

Frost’s observation that plaintiff had committed traffic infractions. However,

the state court judge suppressed the cocaine because she concluded that

defendant Graves’s search of plaintiff’s person was improper under state law.

III. LEGAL STANDARD

To survive a Rule 12(b)(6) motion to dismiss, the complaint’s factual

allegations must be enough to elevate the plaintiff’s right to relief above the

speculative level. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). So

while legal conclusions can provide a framework for the complaint, they must

be supported with meaningful allegations of fact. Ashcroft v. Iqbal, 556 U.S.

662, 679 (2009). In short, a complaint must contain “enough facts to state a

claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570.

To assess this plausibility requirement, the court must accept as true all of

the factual allegations contained in the complaint and draw all reasonable

inferences in the non-movant’s favor. Erickson v. Pardus, 551 U.S. 89, 94

(2007). In doing so, the court generally confines itself to the facts alleged in

the pleading, any documents attached to the complaint or incorporated into it

by reference, and matters of which judicial notice may be taken. Goel v.

Bunge, Ltd., 820 F.3d 554, 559 (2d Cir. 2016) (quoting Concord Assocs., L.P.

v. Ent. Props. Tr., 817 F.3d 46, 51 n.2 (2d Cir. 2016)).

IV. DISCUSSION

As an initial matter, plaintiff is still pro se. So his filings must be held to

less stringent standards. Ahlers v. Rabinowitz, 684 F.3d 53, 60 (2d Cir.

2012). As the Second Circuit has repeatedly warned, documents filed pro se

“must be construed liberally with ‘special solicitude’ and interpreted to raise

the strongest claims that [they] suggest[ ].” Hogan v. Fischer, 738 F.3d 509,

515 (2d Cir. 2013) (quoting Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011)).

But even accounting for his pro se status, defendants’ second motion to

dismiss must be granted. When plaintiff’s initial complaint was dismissed,

the Court gave him an opportunity to try to replead his § 1983 claims for

false arrest, malicious prosecution, and/or the fabrication of evidence. At that

time, the Court observed that plaintiff’s initial complaint was just a jumble of

disjointed filings, non-chronological conclusory accusations, and state-court

documents with some handwritten statements and claims scribbled into the

margins. Although the Court was willing to cobble these materials together

to try to get a sense of whether plaintiff might have been able to state one or

more § 1983 claims, it cautioned him that it would expect a much more

coherent showing in a single, complete, amended pleading:

If plaintiff chooses to take advantage of this

opportunity, plaintiff is advised that he must include

sufficient factual detail to enable the Court to

determine whether he has plausibly alleged one or

more of his § 1983 claims against one or more of the

named defendants under the law governing claims for

false arrest, malicious prosecution and/or fabricated

evidence. To do so, plaintiff must clearly set forth the

facts that give rise to his claims, including the dates,

times, and places of the alleged acts, and an

explanation of how each individual committed each

allegedly wrongful act.

Plaintiff is cautioned that any amended pleading will

replace the previous existing complaint. In other

words, the amended complaint must be a single

document that does not rely upon any other materials

that have previously been filed with the Court

(although he can certainly attach exhibits to the new

pleading, as he has previously done with this one).

As for any exhibits he might attach to his amended

pleading, plaintiff is advised that, instead of scribbling

handwritten narrative statements into certain

highlighted portions of these documents, he should

write a pleading that contains a single, clear history of

the events that occurred and describe, with supporting

factual detail (preferably in a sequential series of

numbered individual paragraphs) how each defendant

was involved in the alleged violation of his

constitutional rights.

McCullough, 2023 WL 8435032, at *8.

Plaintiff did not follow these instructions. Instead of supporting his

accusations with more factual detail he might be able to provide, plaintiff’s

amended complaint seems to offer even less information than before (and

continues to set out the facts in non-chronological order to boot). Dkt. No. 32.

However, the biggest problem with plaintiff’s amended complaint is that it

remains phrased in conclusory terms: Investigator Graves “lied”; Investigator

Graves “relentlessly harassed” him; Officer Frost “falsified” her grand jury

testimony; “fabricated” her arrest reports and “every statement” she made in

the courts; Pritchard “lied” and gave “false” testimony.; etc. Dkt. No. 32.

These assertions are not nearly enough to unlock discovery, even for a pro

se litigant. As the Court explained the last time around:

Pro se status confers on an unrepresented party

several direct and indirect benefits, typically in the

form of extra procedural latitude and a substance-

over-form approach to a lawyer-less litigant’s less-

than-perfect pleading, briefing, and argumentation.

However, pro se status does not exempt a party from

compliance with relevant rules of procedural and

substantive law. This includes the baseline

procedural requirement imposed by our federal

plausibility pleading regime, which tests the legal

sufficiency of a pleading by asking whether the

plaintiff has alleged “sufficient factual matter” to state

a plausible claim for relief. Iqbal, 556 U.S. at 678.

As the [ ] discussion serves to demonstrate, the Court

has been left to speculate about basically all of the

salient historical facts. Indeed, the whole analysis is

lousy with tentative qualifiers such as “appears,”

“seems,” and “likely.” Of course, adding some measure

of solicitude to the mix is par for the course in cases

with pro se plaintiffs. But the Court cannot make up

all the necessary facts for the plaintiff or assume the

existence of a whole set of facts that would state a

plausible claim.

This is because, even for pro se plaintiffs, the federal

plausibility standard requires more than “an

unadorned, the-defendant-unlawfully-harmed-me

accusation.” Iqbal, 556 U.S. at 678. But as of right

now, that is all plaintiff has offered . . . .

McCullough, 2023 WL 8435032, at *4–*5. Measured against the appropriate

legal standards, plaintiff’s § 1983 claims must be dismissed.2

False Arrest. The December 5, 2023 Order dismissed plaintiff’s § 1983

false arrest claims because the judicial documents he had submitted with his

pleading strongly indicated that he was, in fact, in possession of marijuana at

the time of the traffic stop. As the Court noted at the time, that fact would

have established probable cause for the arrest, which would have defeated

this claim as a matter of law.

Even so, the December 5 Order gave plaintiff an opportunity to amend

this claim because of the possibility that he could plead some non-conclusory

facts that might give rise to a legitimate factual dispute over the probable

cause question. But the amended complaint has not done so. Although the

2 The detailed legal standards governing plaintiff’s § 1983 claims were set forth in the December

5, 2023 Order, Dkt. No. 30, and will not be repeated here.

second pleading re-alleges that defendant Frost “fabricated” arrest reports, it

does not plausibly allege a § 1983 false arrest claim against any of the named

defendants.

As before, plaintiff does not anywhere allege that he was not in possession

of the drugs (whether marijuana or cocaine) at the time of the stop. In fact,

the amended complaint does not mention anything about the marijuana or

the cocaine. Now, the pleading just says defendant Frost stopped his car

when she shouldn’t have. Because the amended complaint does not plausibly

allege that plaintiff’s warrantless arrest occurred in the absence of probable

cause, defendants’ motion to dismiss this claim must be granted.

Malicious Prosecution. The December 5, 2023 Order dismissed plaintiff’s

§ 1983 malicious prosecution claims because the judicial documents that he

had submitted with his pleading indicated that a state-court grand jury had

indicted him for drug possession. As the Court noted at the time, this created

a rebuttable presumption of probable cause. And although plaintiff accused

one or more of the defendants of testifying falsely to the grand jury, the Court

explained that grand jury witnesses are immune for their testimony.

Even so, the December 5 Order gave plaintiff an opportunity to amend

this claim because of the possibility that he could plead some non-conclusory

facts that might give rise to a legitimate factual dispute over the probable

cause question and some allegations that might satisfy the other elements of

this claim. But the amended complaint has not done so. Although the second

pleading again suggests that one or more of the named defendants testified

falsely to a grand jury, this is not actionable under § 1983 because grand jury

witnesses are absolutely immune from claims based on their testimony, even

if the testimony is alleged to be false or perjurious. And as before, it would be

“total guesswork” to figure out what, if anything, the named defendants did

that would meet the other elements of a § 1983 malicious prosecution claim.

Fabricated Evidence. The December 5, 2023 Order dismissed plaintiff’s

§ 1983 fabricated-evidence claims because plaintiff’s accusations were framed

in wholly conclusory terms. Even so, the December 5 Order gave plaintiff an

opportunity to amend this claim because of the possibility that he could add

some level of basic factual detail that might support an inference that one or

more of the defendants did, in fact, fabricate material information. But the

amended complaint has not done so. Instead, the second pleading again just

indicates in conclusory terms that defendants fabricated evidence, such as

certain arrest reports.

This is not enough to warrant discovery. Plaintiff’s amended complaint

does not offer any supporting facts or other details that might nudge one or

more of these § 1983 claims against one or more of the defendants over the

line from “theoretically possible” to “plausible.” Accordingly, defendants’

motion to dismiss must be granted.

The final question is whether plaintiff should be given leave to further

amend. The December 5, 2023 Order gave plaintiff an opportunity to try to

replead these § 1983 claims “because plaintiff is pro se and this is his first

attempt at pleading these claims against these defendants.” McCullough,

2023 WL 84350382, at *8.

Plaintiffs second attempt at pleading these § 1983 claims against these

defendants has gotten worse, not better. After reviewing both pleadings and

the other materials that have so far been filed by plaintiff, it seems unlikely

that a further amendment would lead to any plausible claims. Accordingly,

leave to amend will be denied this time around. See, e.g., Lucente v. Intl Bus.

Machines Corp., 310 F.3d 2438, 258 (2d Cir. 2002).

Therefore, it is

ORDERED that

1. Defendants’ motion to dismiss is GRANTED; and

2. Plaintiff's amended complaint is DISMISSED with prejudice.

The Clerk of the Court is directed to terminate the pending motion, enter

a judgment accordingly, and close the file.

IT IS SO ORDERED.

Dated: February 9, 2024 PUG

Utica, New York. U.S. District Judge

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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