Pritzker v. City of Hudson

• Decision Date: 30 October 1998
• Docket Number: No. 1:97-CV-1405.,1:97-CV-1405.
• Citation: 26 F.Supp.2d 433
• Parties: Howard M. PRITZKER and Katherine L. Pritzker, individually and in behalf of all others similarly situated, Plaintiffs, v. CITY OF HUDSON, James L. O'Neil, James J. Dolan, Jr., Paul Kisselbrack, Glenn Martin, and Anthony Moon, as individuals and in their official capacities, Defendants.
• Court: U.S. District Court — Northern District of New York

26 F.Supp.2d 433

Howard M. PRITZKER and Katherine L. Pritzker, individually and in behalf of all others similarly situated, Plaintiffs, v. CITY OF HUDSON, James L. O'Neil, James J. Dolan, Jr., Paul Kisselbrack, Glenn Martin, and Anthony Moon, as individuals and in their official capacities, Defendants.

No. 1:97-CV-1405.

United States District Court, N.D. New York.

October 30, 1998.

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David Seth Michaels, Spencertown, NY (David Seth Michaels, of counsel), for Plaintiffs.

Bartlett, Pontiff Law Firm, Glens Falls, NY (John J. Poklemba, of counsel), for Defendants.

MEMORANDUM-DECISION & ORDER

McAVOY, Chief Judge.

Plaintiffs commenced this action against defendants pursuant to 42 U.S.C. § 1983 alleging claims of malicious prosecution, excessive force, and denial of due process of law and the right of privacy. Before the Court is defendants' motion pursuant to FED.R.CIV.P. 12(b)(6) seeking dismissal of plaintiffs'¹ complaint in its entirety.

I. BACKGROUND

In 1988, Plaintiff Howard Pritzker ("plaintiff") cooperated with law enforcement officials regarding the investigations of certain members of the City of Hudson Police Department ("HPD"). Plaintiff alleges that certain members of the HPD became aware of his cooperation and instituted a campaign of retaliation against him.

Plaintiff alleges that the campaign of retaliation began on January 10, 1990, when Defendant James L. O'Neil, a detective with the HPD, signed two misdemeanor complaints alleging that plaintiff had made false statements violating N.Y. PENAL LAW § 210.45. Oneil's complaints charged that plaintiff falsely signed a deposition stating that he was the victim of a theft. The Complaint further alleges that, in March 1990, Defendant James J. Dolan, Jr., then Chief of the HPD, requested a copy of plaintiff's military records "[i]n order to verify Mr. Pritzker's military record, and establish his credibility." See Complaint, ¶ 12. The Army Reserve Personnel Center in St. Louis, Missouri, sent a copy of plaintiff's military records to Dolan. Plaintiff asserts that the Assistant District Attorney withdrew the false statement charges in April 1990, and the Hudson City Court dismissed the charges on April 17, 1990.

Plaintiff further alleges that in April 1990, Defendant O'Neil signed a new complaint alleging that Pritzker violated Hudson City Code § 78-31 by turning in a false alarm. According to plaintiff, this new complaint was based upon the same underlying conduct as the false statement charge and was signed by O'Neil after he learned that the District Attorney's office declined to prosecute the false statement charges. Plaintiff claims that the Hudson City Court dismissed this complaint on September 24, 1990.

Plaintiff asserts that, upon the favorable termination of these charges against him, defendants were required to seal or return plaintiff's military records in accordance with N.Y.CRIM.PRO.LAW § 160.50 ("CPL § 160.50"). Instead, according to plaintiff, defendants retained the records pursuant to their "custom and practice of ignoring the requirements of CPL § 160.50 and developing dossiers about various individuals from all available materials." See Complaint, ¶¶ 23-24.

On February 13, 1996, plaintiff testified as a witness in a tort case in Supreme Court, Columbia County. According to plaintiff, he described his twenty-year military career. O'Neil became aware of plaintiff's testimony and believed it to be false. O'Neil allegedly obtained a copy of the transcribed testimony from the civil trial and compared it with the military records on file with the police department. The Complaint further alleges that in January 1997, Defendant Paul Kisselbrack, a detective with the HPD, signed and filed a felony complaint against plaintiff charging him with first degree perjury arising from his state court testimony in violation of N.Y.PENAL LAW § 210.15.

Judge Russell Ballor signed a warrant for plaintiff's arrest. Plaintiff voluntarily surrendered at the police department on March 24, 1997. Plaintiff claims that, at that time, he informed Defendant Anthony Moon, an officer with the HPD, that he had sustained injuries to his wrists and that the handcuffs should not be too tight. Plaintiff claims that Moon placed the handcuffs tightly on plaintiff's wrists and chained him to a bench in a holding cell, causing him serious and permanent injury.

According to plaintiff, on July 1, 1997, the Grand Jury returned a "no bill" on the perjury charge, indicating that "the evidence was not of sufficient credible worth to warrant a prosecution." See People v. Dykes, 86 A.D.2d 191, 449 N.Y.S.2d 284 (2d Dept.1982). Thus, in July 1997, the Hudson City Court allegedly entered an order pursuant to CPL § 160.50 requiring that plaintiff's files be sealed and/or returned to plaintiff. Plaintiff alleges that he has not yet received those files.

Plaintiff commenced this action alleging malicious prosecution (first cause of action), excessive use of force (second cause of action), and violation of due process and the right of privacy (third and fifth causes of action).² Defendants now move pursuant to FED.R.CIV.P. 12(b)(6) to dismiss the Complaint.

II. DISCUSSION

A. Local Rule 7.1(b)

Local Rule 7.1(b) governs pre-trial dispositive motions and provides that "[o]pposition papers shall be prepared and served on the moving party within TWENTY-ONE CALENDAR DAYS from the date on which the motion papers were served by the original moving party.... The parties may agree to a reasonable extension of time in which to serve opposition papers." (emphasis in original).

On June 12, 1998, defendants served plaintiff with a notice of motion pursuant to FED. R.CIV.P. 12(b)(6) seeking dismissal of the Complaint. Not having received timely opposition papers, defendants filed their motion papers with the Court on July 8, 1998. Plaintiff served opposition papers on defendants on July 15, 1998, thirty-three days after being served with the moving papers.³

There is nothing in the record evidencing that the parties agreed to grant plaintiff an extension of time to serve opposition papers. Similarly, plaintiff did not request and this Court did not grant an extension of time to serve the opposition papers. Accordingly, plaintiff's reply papers are untimely.

The Local Rules are clear: "Any papers required under this Rule that are not timely filed ... shall, unless for good cause shown, not be considered. Failure to file or serve any papers as required by this Rule shall unless for good cause shown, be deemed by the court as consent to the granting or denial of the motion, as the case may be." N.D.N.Y. Local R. 7.1.(b)(3). The Local Rules further provide that "failure to comply with Local Rule 7.1, subjects the offender to discipline as the court shall deem appropriate including sanctions and the imposition of costs and attorneys' fees to opposing counsel." N.D.N.Y. LOCAL R. 7.1(k).

In an effort to show "good cause", plaintiff's attorney, Mr. Michaels, asserts that he is a sole practitioner, had prior court dates, and miscalculated the time within which he was required to serve opposition papers. After consideration, the Court accepts the opposition papers. However, sanctions are appropriate against Michaels for filing untimely papers. See N.D.N.Y. LOCAL R. 7.1(k). Michaels is, therefore, Ordered to Show Cause, within fourteen days of the date of this Memorandum — Decision and Order, why the Court should not impose sanctions, monetary and/or otherwise. Michaels' showing will be taken on submit only and shall consist of either an affidavit or memorandum of law not to exceed five pages. The Court will now address the merits of defendants' motion.

B. Standard Under Rule 12(b)(6)

"A complaint may not be dismissed under Rule 12(b)(6) unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. In reviewing a Rule 12(b)(6) motion, this Court must accept the factual allegations of the complaint as true and must draw all reasonable inferences in favor of the plaintiff. The review of such a motion is limited, and the issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.... Furthermore, the standard is applied with even greater force where the plaintiff alleges civil rights violations." Bernheim v. Litt, 79 F.3d 318, 321 (2d.Cir.1996) (internal quotations and citations omitted). "In order to survive dismissal, a plaintiff must assert a cognizable claim and allege facts that, if true, would support such a claim." Boddie v. Schnieder, 105 F.3d 857, 860 (2d Cir.1997). With this standard in mind, the Court now addresses defendants' motion.

C. Section 1983 Claims — Individual Liability

1. Violation of Right of Privacy

Plaintiff contends that his military records should have been returned to him or sealed in accordance with CPL § 160.50 after the false statement and false alarm charges were dismissed in 1990. Plaintiff asserts that defendants' retention and use of the military records to support the 1997 perjury charge violated his Constitutional rights of privacy and due process of law guaranteed by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments. Defendants respond that an alleged violation of CPL § 160.50 does not implicate a Constitutional violation and that military records do not fall within the scope of "official records and papers" contemplated by this section.

To state a claim under section 1983, "a plaintiff must allege a violation of the rights secured by the Constitution or laws of the United States, and that such violation was committed by a person acting under color of state law." Kern v. City of Rochester, 93 F.3d 38, 43 (2d Cir.1996), cert. denied, ___ U.S. ___, 117 S.Ct. 1335, 137 L.Ed.2d 494 (1997) (citing Greenwich Citizens Committee,...