Ash v. City of N.Y.
| Decision Date | 06 January 2020 |
| Docket Number | 1:16-cv-9548-GHW |
| Parties | DAMON ASH, Plaintiff, v. CITY OF NEW YORK, LIEUTENANT LEAHY, OFFICER McKENZIE, BETTY JACOBSON, SERGEANT LEE, LAURA PORSCHAR, and NORMA KLEIN Defendants. |
| Court | U.S. District Court — Southern District of New York |
Plaintiff Damon Ash brings this action pro se, alleging numerous violations of his statutory and constitutional rights. Most of Mr. Ash's claims relate to two incidents, the first of which he alleges occurred on May 16, 2013 and the second of which he alleges occurred on January 26, 2015. Because the dates of these incidents are apparent from the face of Mr. Ash's complaint, the Court dismisses these claims as time barred by the applicable three-year statute of limitations. Because Mr. Ash is proceeding pro se, the Court has also construed his complaint to raise claims for failure to investigate reports that he allegedly attempted to file with Lt. Leahy and other New York police officers, for religious discrimination, and for defamation. Because failure to investigate is not cognizable under federal law and Mr. Ash's religious discrimination and defamation claims are supported only by conclusory assertions, those claims are likewise dismissed. Accordingly, Defendants' motion to dismiss is GRANTED.
The FAC alleges that on May 16, 2013 Mr. Ash and his cousin were sitting a park when the men were approached by Defendant Lieutenant Leahy and another officer. FAC at 4. Lt. Leahy issued a citation to Mr. Ash and his cousin "for drinking" from an open container of alcohol. Id. The FAC alleges that the open container belonged to Mr. Ash's cousin, and that Mr. Ash informed Lt. Leahy of that fact. Id. Lt. Leahy or his partner then ran a search for Mr. Ash in a law enforcement database. See id.; Opposition to Motion to Dismiss ("Opp."), Dkt No. 94, at 3 (). The officers discovered that Mr. Ash had a warrant out for his arrest. FAC at 4. The FAC does not contest the validity of the warrant but suggests that it was for an insignificant offense because it was for a minor misdemeanor, was dated twenty years before the arrest, and was a "no extra[dition]" warrant. Id. Lt. Leahy's partner then arrested Mr. Ash. FAC at 4 ().
Mr. Ash alleges that he was then held in jail for "20 to 30 days without seeing a judge or being [arraigned.]" Id. He then allegedly received a "pink slip" from a corrections officer and was released. Id.
The FAC also raises a separate incident in which Mr. Ash claims that his rights were violated. Mr. Ash alleges that his apartment door was "kicked in by the 7th Precinct[,]" including Defendant Sergeant Lee and other officers on June 26, 2015. FAC at 4. Mr. Ash alleges that he was strapped into an ambulance and taken to a mental hospital, allegedly as part of a conspiracy betweenthe police and his landlord to have him removed from his building. TAC at 4; see also FAC at 4 (). Mr. Ash alleges that he saw Defendant Laura Porschar—allegedly an employee of his landlords, who Mr. Ash appears to allege are Defendants Betty Jacobson and Norma Klein—speaking with Sgt. Lee and that "they both colluded to pretend that she was [his] doctor" so that they could convince medical professionals to take him to a mental hospital against his will. TAC at 4; see also FAC at 4 (). Mr. Ash alleges that he spoke with an "ex[-employee of his] landlord" who gave him the details behind the alleged scheme between his landlord and the police. TAC at 4.
In the TAC, Mr. Ash alleges that when he returned home, he found that his home had been "destroyed" and many of his possessions had been stolen. Id. Mr. Ash alleges that he attempted to file a police report but that "under the request of Lt[.] Leahy[,] no one at the 7th precinct was to take any reports or complaints . . . pertaining to" Mr. Ash's address. Id. at 5. Elsewhere in his complaint, Mr. Ash alleges causes of action for "abuse of power, illegally searching [his apartment] without [a] warrant, kick[ing] in [his] door [and] causing dama[]ge to property without merit, warrant, or criminal charge . . . [c]ausing emotional and physical stress . . . [t]hreats, harassment and refus[ing] to protect, serve or take reports on [his] behalf" over an unspecified four year period. TAC at 6. He also alleges "def[a]mation of character through religious belief." Id.
"On December 9, 2016, Ash filed his initial complaint in this action, naming the City of New York as the sole Defendant." Ash v. City of New York ("Ash I"), 16-CV-9548(RJS), 2018 WL 3462514, at *1 (S.D.N.Y. July 18, 2018) (Sullivan, J.). Mr. Ash subsequently filed the Second Amended Complaint ("SAC"), Dkt No. 8, identifying as defendants 'Lieutenant Leary,' 'Officer McKenzie' with shield number 942888, and two John Doe detectives." Id. at *2. The defendantsfiled a motion to dismiss the amended complaint. See id.
In Ash I, the Court dismissed most of Mr. Ash's claims as alleged. The Court dismissed Mr. Ash's claim that "Defendant McKenzie 'falsely arrested' him 'for assault' on April 22, 2015" because the allegations undergirding that claim were "wholly conclusory and therefore cannot support a false arrest claim." Id. at *3. The Court dismissed Mr. Ash's unlawful entry claim because the second amended complaint ("SAC") "fail[ed] to identify which Defendants, if any, participated in the alleged unlawful entry." Id. The Court also dismissed Mr. Ash's defamation claim. Id. The basis for this claim was that "Defendant McKenzie defamed him by recording his first name as 'Demon' (instead of 'Damon') on an arrest record." Id. Because "no reasonable reader could have interpreted the misnomer as a statement of 'objective fact,'" as required to support a defamation claim, the Court dismissed Mr. Ash's defamation claim. Id. Finally, the Court dismissed Mr. Ash's claim against the City of New York because the SAC did not allege "the required causal connection between his alleged injuries and any official policy of the City of New York." Id. at *4 (citation omitted).
The Court declined to dismiss the false arrest claim against Defendant Leahy, however. Defendants argued that the claimed was time-barred "because the City's arrest records show that Ash was arrested for an open-container violation on May 16, 2013, and that Ash did not file his original complaint in this action until December 2016, after the three-year statute of limitations had expired." Id. at *2 (citation omitted). "If accurate," the Court noted "this chronology would surely justify dismissal of this false arrest claim with prejudice." Id. However, "the Court decline[d] to dismiss the false arrest claim against Defendant Leahy at this stage of the proceedings . . . [b]ecause it is not clear from the face of the Complaint that the alleged open-container arrest falls outside of the applicable limitations period." Id. Thus, the Court dismissed all of Mr. Ash's claims in the SAC "except for his first false arrest claim against Defendant Leahy." Id. at *4. The Court did notspecify whether it was granting Mr. Ash leave to replead the claims that it had dismissed.
After the Court issued its decision in Ash I, Defendants answered the complaint. Dkt No. 55. By letter dated August 14, 2018, Mr. Ash requested leave to amend his complaint. Dkt No. 60. The Court granted Mr. Ash leave to amend on September 12, 2018. Dkt No. 64. On October 29, 2018, the case was reassigned to this Court's docket because Judge Sullivan was elevated to the Second Circuit. Mr. Ash filed the TAC on December 21, 2018. Dkt No. 75. Construed liberally, the TAC raises claims for unlawful entry in violation of the Fourth Amendment, damage to personal property, intentional and/or negligent infliction of emotional distress, defamation of character, and failure to investigate. Id.
The TAC named "Sergeant Vasquez" as the officer who had illegally entered his home. In letters dated December 29, 2018 and January 10, 2019, Mr. Ash again sought leave to amend because he had learned that Sergeant Vazquez had been transferred out of the 7th Precinct before January 26, 2015, the date the alleged unlawful entry occurred. However, Defendants represented that another police officer—Defendant Sergeant Lee—responded to a complaint at Mr. Ash's address. Dkt Nos. 78, 80. In his December 29, 2018 letter, Mr. Ash also sought leave to amend to add Defendants Jacobson and Klein. On January 16, 2019, the Court granted Mr. Ash leave to amend "only with respect to: (i) the addition of the two parties that Mr. Ash identifies in his letter dated December 29, 2018 and any claims he intends to assert against them and (ii) the substitution of Sergeant Lee for Sergeant Vasquez in the allegations surrounding the January 26, 2015 incident as described in the third amended complaint." Dkt No. 81 at 2. In the same order, the Court "remind[ed] Mr. Ash that an amended complaint replaces a previous complaint" and that "if Mr. Ash's forthcoming fourth amended complaint fails to include his false arrest claim against Lieutenant Leahy as well as the claims asserted in the third amended complaint, these claims will no longer be before the Court." Id.
Mr. Ash filed the FAC on February 6, 2019. Dkt No. 84. Construed liberally, the FAC raises a claim for false arrest. Id. at 4. The FAC also alleges that Mr. Ash was not timely arraigned after he was arrested. Id. On March 15, 2019, Defendants Leahy, Lee, and the City of New York (the "City Defendants") filed a motion to dismiss with an accompanying memorandum of law and declaration...
To continue reading
Request your trial
-
Ash v. Jacobson
...described the background and procedural history of this lawsuit in its prior opinion. See Ash v. City of New York (Ash II), No. 1:16-cv-9548-GHW, 2020 WL 58240, at *1-3 (S.D.N.Y. Jan. 6, 2020).2 In Ash II, the Court dismissed as untimely Mr. Ash's claims against former Defendants Lieutenant......