Harvey v. Town of Greenwich

          RULING ON PENDING MOTIONS

          Stefan R. Underhill United States District Judge

         Russel Harvey (“Harvey”) initiated this 42 U.S.C. § 1983 action pro se against defendants Town of Greenwich (“Greenwich”), Police Officer Mark Kordick (“Kordick”), and State's Attorney Steven Weiss (“Weiss”), in which he brings allegations stemming from an incident in August of 1996. Am. Compl., Doc. No. 11. He alleges that Kordick, among other non-party Officers, “illegally entered [his] apartment, wrongfully arrested [him], used excessive force to beat [him, ] … threatened [him] with additional bodily injury and death, wrongfully jailed [him], and through perjurious statements in their police reports and complaints, brought criminal charges against [him].” Id. at ¶ 1. The defendants moved to dismiss Harvey's claims, which I granted in part. Conf. Memo. and Order, Doc. No. 38. The only claims remaining are: (1) malicious prosecution against Weiss; (2) false arrest against Kordick; and (3) malicious prosecution against Kordick.

         I denied without prejudice Weiss' original Motion to Dismiss (Doc. No. 19) and directed Harvey to provide the document to Weiss upon which his claims against Weiss are premised. Conf. Memo. and Order, Doc. No. 38. After receiving the document, Weiss filed a Renewed Motion to Dismiss (Doc. No. 40). For the reasons set forth below, Weiss' motion is granted.

         I also held open Kordick's Motion to Dismiss (Doc. No. 26) and requested supplemental briefing about whether Harvey's claims of false arrest and malicious prosecution were time-barred. Conf. Memo. and Order, Doc. No. 38. Kordick filed a supplemental memorandum in support of his motion to dismiss in which he alleges that Harvey's false arrest claim is time-barred and that he failed to adequately plead his malicious prosecution claim. See Supp. Mem. in Supp. Mot. to Dism., Doc. No. 39. For the reasons set forth below, Kordick's Motion to Dismiss (Doc. No. 26) is granted in part and denied in part.

         Further, Harvey moves to add defendants to the case. See Mot. to Add Def., Doc. No. 43. He seeks to add some named defendants, multiple John and Jane Doe defendants, as well as “each and every Town of Greenwich Police Officer employed by the Town of Greenwich in August, 1996.” Id. at 1, 9. For the reasons set forth below, Harvey's Motion to Add Defendants (Doc. No. 43) is denied.

         I. Background

         Harvey alleges the following facts in his Amended Complaint (Doc. No. 11). Harvey moved to Greenwich in February of 1996 from his hometown of Mamaroneck, New York. Id. at ¶ 9. When he lived in New York the Police failed to stop an attack against him, and when he spoke out against the police's handling of the situation, he was beaten and detained by the police. Id. He filed suit against the department and received a substantial settlement. Id. He then moved from Mamaroneck to avoid the harassment by the police that followed his lawsuit, but as soon as he moved to Greenwich, Kordick and other Greenwich officers began harassing him in retaliation for his lawsuit against the Mamaroneck Police. Id. at ¶¶ 9, 11-12. Kordick and other Greenwich Police Officers harassed him multiple times in July and August of 1996, both at his home and in public and although Harvey complained to supervisors at the Police Department, nothing was ever done to stop the harassment. Id. at ¶ 15, 18. Further, the Police broke into Harvey's house at one point while he was not home, and on two occasions, August 13 and 19, 1996, police came to his house in the middle of the night to investigate an alleged noise complaint made by one of his neighbors. Id. at ¶ 16, 19, 25.

         On August 13, Harvey woke up around 4:00 in the morning to find Greenwich Police Officers inside his home, and on August 19, Kordick and others came to his front door but would not leave after Harvey repeatedly asked them to because he was not making any noise and he did not want them to come inside. Id. at ¶¶ 16, 19, 25-37, 39-44. Harvey was fearful at the time and Kordick threatened him with a gun. Id. at ¶ 40-41, 31. The Officers then left Harvey's home but returned twenty minutes later, pushed open the door, grabbed Harvey and pulled him out of the house. Id. at ¶ 45. The Officers “choked … and handcuffed” him, “tossed [him] around like a rag doll, ” and “threw [him] to the ground, ” even though Harvey was not resisting and said he would cooperate. Id. He “begged them to stop” because he was in pain but the officers “hit [him] with their fists and their flashlights” and kicked and spit on him, and Kordick “held [Harvey] down with the full weight of his body, first with his knee in [Harvey's] back, and then, by laying on top of” him. Id. The “beating caused [him] to have great pain, and resulted in contusions, scrapes, pain in [his] back and arm, etc.” and required him to go to the emergency room for treatment. Id. The officers then “[took] turns going in and out of [his] apartment” without permission. Id. at ¶ 46. He “feared for [his] life” and “thought [the officers] were going to kill” him, and Kordick threatened him when he was in the police car on the way to the station. Id. at ¶ 45, 47.

         Harvey was charged with Disorderly Conduct and Interfering with Officers/Resisting Arrest for the August 19 incident, and Kordick was listed as the “Arresting Officer.” Id. at ¶ 49. Further, Harvey was given a “Notice of Rights” and “Uniform Arrest Report, ” and states that “[n]either of these papers, nor any reports that [he] ever received or [saw], remotely satisfie[d] the [Sixth] Amendment Right ‘to be informed of the nature and cause of the accusation.'” Id. at ¶ 50. Further, Harvey was never made aware “in any way whatsoever … which of the six (6) subsections of the Disorderly Conduct statute [he] was alleged to have committed.” Id. at ¶ 53. Harvey also states that he could not have committed the crime of Interfering with Officers because “the officers were acting illegally” and Kordick and others “fabricated the charge.” Id. at ¶ 54-55. He alleges multiple times that the officers “violated [his] Fourth Amendment rights by making an unlawful entry into [his] home without a warrant, to arrest [him] without a warrant in the dead of night, for the (false) allegation that [he] had committed the most trivial of misdemeanors: a noise violation that they did not hear (and which they fabricated).” Id. at ¶ 54. When Harvey returned home after being released from jail, his door was open and a “valuable and irreplaceable book was missing, ” though he does not allege that the police took it. Id. at ¶ 56. The Greenwich Post reported on his arrest on Friday, August 23, and Harvey alleges that “all the statements by the police about [his] behavior in the report (as repeated and published by the Greenwich Post), were completely false, malicious, and defamatory.” Id. at ¶ 58.

         When Harvey appeared with counsel in court on August 26, 1996, he entered a not guilty plea and the prosecutor “indicated he was willing to admit that the police acted improperly in entering [his] apartment and arresting [him] in the middle of the night without a warrant and would dismiss” the charges. Id. at ¶ 60. Harvey's attorney (unnamed), though, suggested that he sign up for Accelerated Pretrial Rehabilitation, but Harvey did not want to pursue that option. Id. Throughout the pendency of Harvey's criminal case, Kordick and others continued to harass him and his attorney told him “it was likely Kordick and the others would follow through on their threats” and “might even kill” Harvey and encouraged Harvey to move because he, Harvey's lawyer, “didn't want to feel responsible if [Harvey] stayed in Greenwich and the police killed [him].” Id. at ¶ 62. Harvey then moved and his attorney appeared on his behalf on a number of court dates. Id. at ¶ 65-66.

         Harvey states that Weiss “made a terrible decision to prosecute” him and Weiss knew or should have known the following: “the charges were bogus and the police had engaged in misconduct, entered [Harvey's] home and arrested [him] without a warrant or probable cause, lied and fabricated the charges;” “the police were wrong to violate [Harvey's Fourth] Amendment rights by entering [his] apartment in the middle of the night to arrest [him] for something as trivial as making too much noise, even if it were true;” “even if [Harvey] had resisted such an arrest, under those circumstances, it would have been [his] common law right to protect [himself] and [his] home;” and Harvey “had never been arrested, charged, or convicted of any crime.” Id. at ¶ 69. Harvey acknowledges that Weiss is protected by prosecutorial immunity in his role as a prosecutor, but sues him for malicious prosecution for allegedly signing his name on the charging documents as the “Complaining Witness.” Id.

         Harvey's criminal case was not dismissed until August 20, 2015 because of “the misconduct by the Greenwich Police and the Prosecutor.” Id. at ¶ 1, 87. While the case was pending, Harvey was subjected to other hardships including an arrest in California, requested by Greenwich for extradition purposes; defamatory statements made to California authorities that led to further harassment; an eight-month incarceration in California; and being told he could not remain in Canada. Id. at ¶ 87-93.

         In the “Conclusion and Claims” section of his Amended Complaint, Harvey states that he is suing Kordick and Greenwich “[i]n their roles as ‘State Actors' … for violating [his] Constitutional [r]ights.” Id. at ¶ 95. Harvey alleges that Kordick violated his Fourth, Fifth, and Fourteenth Amendment rights by: (a) entering his home without a warrant; (b) arresting him without a warrant; (c) using excessive force against him; and (d) threatening him. Id. at ¶ 96. Further, he alleges that Kordick defamed him to his neighbors and to other jurisdictions, stating that Harvey was a criminal, dangerous, and mentally ill. Id. at ¶ 97, 102. Harvey alleges that Greenwich violated his Fourth, Fifth, and Fourteenth Amendment rights because it “failed to train, supervise and/or set policy for its police officers, including” Kordick. Id. at ¶ 98. Further, Harvey alleges that Greenwich defamed him by “communicat[ing] to other jurisdictions false and defamatory statements” regarding the alleged charges. Id. at ¶ 102. Lastly, Harvey alleges that Weiss violated his Fourth, Fifth, and Fourteenth Amendment rights by maliciously prosecuting him. Id. at ¶ 103. Harvey seeks $2, 000, 000 in damages. Id. at ¶ 106.

         Weiss moved to dismiss the malicious prosecution claim against him on the grounds of prosecutorial immunity. See Weiss Mot. to Dism., Doc. No. 19. Harvey sues Weiss only for his act of signing a charging document as the “Complaining Witness” in which he “complains, deposes, and alleges that he has reason to believe and does believe that [Harvey] committed the two crimes” as charged. Am. Compl., Doc. No. 11 at ¶ 69. Harvey did not submit the form to which he was referring. In a hearing on the Motion to Dismiss on July 17, 2018, I denied Weiss' motion “because Weiss's actions as alleged in the complaint, taken as true, are not entitled to immunity.” Conf. Memo. and Order, Doc. No. 38. Further, I directed Harvey to provide Weiss' attorney with the relevant court document signed by Weiss, and stated that “after reviewing the document, [Weiss' attorney] can file an additional motion challenging the claim against Weiss, should he feel that is necessary.” Id. Harvey provided Weiss' attorney with the operative document, and Weiss filed a Renewed Motion to Dismiss. Weiss Mot. to Dism., Doc. No. 40.

         With respect to Greenwich, I dismissed with prejudice all of the claims against it^[1] “as each claim was either time-barred by the applicable statute of limitations and/or Harvey failed to state a claim under Monell v. Department of Social Services of the City of New York, 436 U.S. 658 (1978).” Conf. Memo. and Order, Doc. No. 38.

         With respect to Kordick, I dismissed with prejudice two of Harvey's claims against him because they were time-barred: Excessive Force (Count Two); and Slander (Count Seven). Id. at 2. I held open two claims against Kordick and requested supplemental briefing: False Arrest (Count One); and Malicious Prosecution (Count Three). Id. Kordick filed a supplement to his original motion to dismiss (Doc. No. 39), which Harvey has opposed (Doc. No. 51).

         Accordingly, the only remaining counts are: Malicious Prosecution against Weiss; False Arrest and Malicious Prosecution against Kordick. Further, Harvey has moved to add defendants to the case. See Mot. to Add Def., Doc. No. 43.

         II. Motions to Dismiss

         A. Stand ...