95 F. Supp. 3d 293
E.D.N.Y2015Background
- Pro se plaintiff Malek Harrison sued under § 1983 (construed as Bivens against federal actors) alleging false arrest, malicious prosecution, racial profiling, conspiracies and ineffective assistance of counsel based on a 2011 arrest and subsequent criminal prosecution that was later dismissed.
- Defendants who moved to dismiss: State of New York; U.S. Secret Service and Agent Joseph Gerbino; TJX and two employees (Renner, Grimaudo); Schlissel law firm; attorney Geoffrey Prime. Nassau County defendants answered and did not move.
- Magistrate Judge Tomlinson recommended dismissal of virtually all federal claims: state and official-capacity federal defendants dismissed on sovereign immunity; TJX and counsel dismissed for lack of state action or as time-barred; but recommended denying dismissal of claims against Agent Gerbino in his individual capacity and granting 30 days for service.
- Agent Gerbino objected only to the service-extension and the decision not to reach Rule 12(b)(6) merits; the District Court reviewed those objections de novo.
- District Court adopted the R&R in full: dismissed claims against the State, the Secret Service and Agent Gerbino in official capacity, TJX, Schlissel, and Prime (federal claims with prejudice); declined supplemental jurisdiction over remaining state-law claims; granted plaintiff 30 days to serve Agent Gerbino individually.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether State of New York is subject to §1983 suit | Harrison seeks damages under §1983 against the State | State invoked Eleventh Amendment sovereign immunity | Dismissed: Eleventh Amendment bars §1983 suits against NY State |
| Whether Bivens/official-capacity claims against Secret Service/Agent Gerbino survive | Harrison seeks damages for federal actors' conduct | Federal sovereign immunity bars suits against agency and officials in official capacity | Dismissed: Bivens claims against Secret Service and official-capacity Gerbino barred by sovereign immunity |
| Whether claims against Agent Gerbino in his individual capacity should be dismissed for insufficient service | Harrison had not shown service but requested more time (pro se) | Fed. Defs. argued Rule 4(m) was not satisfied and prior court deadline passed | Denied dismissal for now: court granted discretionary 30-day extension to effectuate service; Rule 12(b)(6) merits to be revisited if served |
| Whether private defendants (TJX, Renner, Grimaudo, counsel) are liable under §1983 | Harrison alleges conspiracy/joint action with police and ineffective assistance by counsel | Defendants argued lack of state action, failure to plead conspiracy with specificity, and statute of limitations | Dismissed: TJX and Grimaudo - no state action; Renner narrowly pled as alleged co-conspirator but all TJX claims time-barred; Schlissel and Prime not state actors and §1983 claims dismissed; state-law malpractice claims dismissed without prejudice (court declined supplemental jurisdiction) |
Key Cases Cited
- Thomas v. Arn, 474 U.S. 140 (procedural standard for review of magistrate judge R&R)
- Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (establishes implied damages remedy against federal officers)
- Will v. Michigan Dep’t of State Police, 491 U.S. 58 (states/official-capacity suits under §1983 and limits on suing states)
- Wallace v. Kato, 549 U.S. 384 (accrual rule for false arrest §1983 claims)
- Owens v. Okure, 488 U.S. 235 (state statute of limitations governs §1983 actions)
- Ashcroft v. Iqbal, 556 U.S. 662 (pleading standard for plausibility under Rule 12(b)(6))
- Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (pleading standard and requirement to plead facts supporting agreement/conspiracy)