214 F.Supp.2d 310

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

Donald D. DAVIS, Barbara A. Davis, Steven D. Myhand, Plaintiffs,

v.

Parole Officer Anthony COTOV # 1316, Parole Officer Mrs. Clemente, Police Officer Bill Walsh of Suffolk County, Police Officer Steven Bardak # 5021 of Suffolk County, Police Officer Christopher Craven, the Suffolk County Police Department, Command 310, Defendants.

01 CV 3993(ADS)(ARL).

Aug. 14, 2002.

*312 Donald Davis, Romulus, NY, Pro Se.

Barbara A. Davis, Steven Myhand, Huntington Station, NY, Pro Se.
Eliot Spitzer, Attorney General of the State of New York, By: Toni E. Logue, Assistant Attorney General, Mineola, NY, Attorney for Defendants Parole Officer Anthony Cotov and Parole Officer Mrs. Clemente.

Robert J. Cimino, Suffolk County Attorney, By: Donnamarie Kopping, Assistant County Attorney, Hauppauge, NY, Attorney for Defendants Police Officer Bill Walsh, Police Officer Steven Bardak, Police Officer Christopher Craven, and the Suffolk County Police Department, Command 310.

MEMORANDUM OF DECISION AND ORDER


SPATT, District Judge.

In this action, brought pursuant to 42 U.S.C. § 1983 ("Section 1983"), the complaint alleges false arrest, excessive force, and the deprivation of due process by two parole officers, several police officers, and the County of Suffolk. Presently before the Court are (1) a motion by the parole officers to dismiss the complaint as against them pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure ("Fed.R.Civ.P."); (2) a motion by Donald Davis ("Davis" or a "plaintiff") Davis for a default judgment against the defendants; and (3) a motion by Davis for the appointment of counsel.

I. BACKGROUND

The following facts are taken from the complaint and are accepted as true for the purpose of deciding the motions presently before the Court. In or about April 2000, one Angela Decarmine ("Decarmine"), Davis' stepdaughter, stabbed him in the chest with a six-inch knife because Davis would not allow Decarmine to invite her friends into his house at 4:00 a.m. Davis, who is paraplegic and confined to a wheelchair, suffered a chest wound that required twenty stitches and the insertion of a chest tube. The complaint indicates that following this incident, Davis obtained an order of protection against Decarmine.

Approximately one month later, on May 5, 2000, at 12:00 p.m., at 556 Wilson Boulevard in Central Islip, New York, Decarmine attempted to cut Davis with two knives. Barbara Davis ("Barbara Davis" or a "plaintiff"), Davis' wife, took the knives away from Decarmine, and Davis called "911". Police Officers Bill Walsh ("Walsh" or a "defendant") and Steven Bardak ("Bardak" or a "defendant") responded to the 911 call. When the officers arrived at the scene, Davis asked them to arrest Decarmine for attempted assault and violating an order of protection.

Walsh and Bardak then spoke to Decarmine. She told the officers that Davis was the brother of one Larry Davis, an individual who had killed a police officer. Walsh *313 and Bardak arrested Davis, transported him to the precinct, and charged him with second-degree menacing. Davis told Bardak that he was "going to sue him for false arrest." Bardak picked Davis up and slammed him onto a table. Bardak caused the plaintiff to suffer injuries to his back. He was treated at Huntington Hospital and released to police custody that night.

At an unspecified point during the evening, Davis told Police Officer Christopher Craven ("Craven" or a "defendant") that Bardak was prejudiced. Upon hearing this statement, Craven jumped up, opened Davis' cell, dragged Davis on the floor, and kicked Davis while he was lying on the ground. The following morning, Davis was arraigned and released on his own recognizance.

Barbara Davis picked Davis up at the courthouse and told him that he could not go back to the house in Central Islip because police officers were waiting there. The officers had told Barbara Davis that if they saw Davis at the house again, they would arrest him. Thus, on May 6, 2000, Davis "went back to the Bronx."

On May 7, 2000, Barbara Davis visited Davis in the Bronx and told him that Bardak repeatedly drove by her house in Central Islip and harassed her sons. She called the third precinct and complained about Bardak's behavior.

On May 8, 2000, Bardak and Walsh called the defendants' parole officers Anthony Cotov ("Cotov" or a "defendant") and Mrs. Clemente ("Clemente" or a "defendant") (collectively, "parole officers"), whose first name does not appear in the complaint. Bardak and Walsh told Cotov and Clemente that Davis had been arrested and that while he was being booked, he threatened a police officer.

On or about May 8, 2000, Cotov and Clemente issued a warrant for Davis' arrest based on a parole violation. Cotov and Clemente spoke with Barbara Davis on the telephone and asked her questions about the incident with Decarmine that had led to Davis' arrest. Barbara Davis told Cotov and Clemente that Davis had been with her on the day in question. Cotov demanded that Barbara Davis produce photographs that depict Davis trying to stand up in an attempt to demonstrate that Davis could ride a bicycle.

On May 9, 2000, at 5:30 a.m., Cotov, Clemente and an unidentified officer arrived at Davis' house in the Bronx while Davis, Barbara Davis, and Davis' three grandchildren were sleeping. Davis climbed into his wheelchair and moved toward the front door. When Davis reached the front door, Clemente and Cotov pushed it open, knocking Davis out of his wheelchair. Clemente told Davis that he was going to jail, and Cotov told him, "You like [to] threaten officers? I got a witness this time." Clemente and Cotov dragged Davis to the car. When Davis asked the parole officers to bring his wheelchair, the officers told him that he did not need the wheelchair because they had seen him riding a bicycle the previous day.

Although Davis' allegations are vague, he appears to contend that he received two notices of a parole violation that were void. The first notice was void because the plaintiff did not receive it until after the hearing and because it contained the incorrect time, date, and location of the violation hearing. In addition, the location in which the first hearing was to have been held was not accessible to wheelchairs, and the plaintiff has required the use of a wheelchair for the past 15 years.

The second notice was void because it did not contain a time, and the location mentioned was incorrect. As such, the plaintiff contends that he was deprived of the right to present a defense and was *314 unable to inform his seven witnesses when to appear. Davis alleges that Cotov intentionally provided him with incorrect information about the parole violation hearing so that Davis would be unable to prepare an adequate defense.
Barbara Davis did not appear at the parole violation hearing to testify on Davis' behalf. After she did not appear, Cotov required Davis to sign a "special condition" directing him to stay away from Barbara Davis.

Davis alleges that Cotov telephoned the "hospital within side of North Infirmary Command of the Correctional Facility" and informed the medical director that Davis did not require a wheelchair. According to Davis, Cotov told the medical director that he had seen Davis riding a bicycle.

The complaint further alleges that defendant Bardak falsely arrested Steven Myhand ("Myhand" or a "plaintiff"), Davis' son. Bardak beat Myhand in the back of the car and then told Myhand that, "[I]f I can't get your nigger father, I'll get the next best thing and """ every time [I] see [you][I] will arrest [you]." Myhand is now afraid to go outside or to school.

II. DISCUSSION

A. Pro Se Standard

At the outset, the Court is mindful that the plaintiffs' pro se status means that their submissions should be held " 'to less stringent standards than formal pleadings drafted by lawyers.' " Hughes v. Rowe, 449 U.S. 5, 9, 101 S.Ct. 173, 176, 66 L.Ed.2d 163 (1980) (quoting Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972)); Fleming v. United States, 146 F.3d 88, 90 (2d Cir.1998) (citations omitted). The Court recognizes that it must make reasonable allowances so that a pro se plaintiff does not forfeit rights by virtue of her lack of legal training. See Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir.1983). Indeed, courts should "read the pleadings of a pro se plaintiff liberally and interpret them 'to raise the strongest arguments that they suggest.' " McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir.1999) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir.1994)). Nevertheless, the Court is also aware that pro se status " 'does not exempt a party from compliance with relevant rules of procedural and substantive law.' " Traguth, 710 F.2d at 95 (quoting Birl v. Estelle, 660 F.2d 592, 593 (5th Cir.1981)).

The complaint consists of a completed "Form To Be Used By Prisoners in Filing a Complaint Under the Civil Rights Act, 42 U.S.C. § 1983" with attached handwritten pages entitled, "Statement of Facts," and "Relief Requested." Therefore, although the complaint does not specify claims, causes of action, or statutes allegedly violated, the Court construes the complaint as raising claims that the defendants violated 42 U.S.C. § 1983. Further, a liberal reading of the complaint suggests that Davis, Barbara Davis, and Myhand are claiming that (1) Walsh and Bardak falsely arrested Davis; (2) Bardak used excessive force against Davis during his arrest of the plaintiff; (3) Craven used excessive force when he beat Davis in a jail cell the night before Davis was arraigned; (4) Cotov and Clemente improperly arrested Davis for a parole violation; (5) Cotov and Clemente deprived Davis of his right to procedural due process in connection with the parole revocation proceedings; and (6) a Bardak falsely arrested Myhand.

B. The Motion by the Parole Officers to Dismiss the Complaint

1. The Claims by Davis

Defendants Cotov and Clemente move to dismiss Davis' Section 1983 claims *315 against them pursuant to Rule 12(b)(6) of the Fed.R.Civ.P. on the ground that the claims against them are barred by Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). On a motion to dismiss for failure to state a claim, the Court should dismiss the complaint pursuant to Rule 12(b)(6) if it appears beyond doubt that the plaintiff can prove no set of facts in support of his complaint which would entitle him to relief. See King v. Simpson, 189 F.3d 284, 286 (2d Cir.1999); Bernheim v. Litt, 79 F.3d 318, 321 (2d Cir.1996). As noted above, the Court must confine its consideration "to facts stated on the face of the complaint, in documents appended to the complaint or incorporated in the complaint by reference, and to matters of which judicial notice may be taken." Leonard F. v. Israel Discount Bank of N.Y., 199 F.3d 99, 107 (2d Cir.1999); Hayden v. County of Nassau, 180 F.3d 42, 54 (2d Cir.1999). The Court must accept all factual allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff. See Koppel v. 4987 Corp., 167 F.3d 125, 127 (2d Cir.1999); Jaghory v. New York State Dep't of Educ., 131 F.3d 326, 329 (2d Cir.1997). The issue to consider is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims. See Villager Pond, Inc. v. Town of Darien, 56 F.3d 375, 378 (2d Cir.1995). Indeed, it is not the Court's function to weigh the evidence that might be presented at trial; instead, the Court must merely determine whether the complaint itself is legally sufficient. See Villager Pond, at 378.