         10-3968-pr
         Jackson v. County of Rockland


                                UNITED STATES COURT OF APPEALS
                                    FOR THE SECOND CIRCUIT

                                           SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
     FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
     PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
     DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY
     ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1              At a stated term of the United States Court of Appeals for the Second Circuit, held
 2       at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of
 3       New York, on the 23rd day of November, two thousand eleven.
 4
 5       PRESENT:
 6                   ROGER J. MINER,
 7                   ROSEMARY S. POOLER,
 8                   BARRINGTON D. PARKER,
 9                               Circuit Judges.
10       _____________________________________
11
12       Sharon Jackson,
13
14                                  Plaintiff-Appellant,
15
16                         v.                                           10-3968-pr
17
18       County of Rockland, Village of Spring Valley,
19       Department of Justice, (DET.) Pete Thom,
20       (RCTFO) Kevin Halligan, (RCTFO) Chris
21       Goldrick, (GS) David Polos, (SA) Dennis
22       Peterson, (SA) Daniel Parson, (SA) Michael
23       Guidetti, (SA) Michael Clifford, (SA) William
24       Dolinsky, (SA) Jason Daus, (SA) Matthew Ryan,
25       (SA) Carolyn Porras, Joe Tokarz, (ET) D.
26       Michael, (ET) Robin Powell, (AUSA)
27       Christopher Cornniff, (AUSA) Mark A.
28       Racanelli, (AUSA) Stanley Okula, (AUSA)
29       Andrew M. McNella, James M. Parkison, Clerk
30       of Court and several unknown judicial officers in
31       their individual and professional capacities, (SA,
 1   NYFD) Edgar Domenech, (LNU) Richard G.,
 2   (SA in Charge) Willi G. McMahon, (Forensic
 3   Chemists) L. Kinscherf, Cindy Nevello, and
 4   others unknown Lab Personnel in their
 5   individual and professional capacities, ESQ.
 6   Larry Sheehan, in his individual and
 7   professional capacities, (AD) William Stewart,
 8   (Attorney Advisor) D J. Stearns, (CIDUSM)
 9   Brian McHugh, and several unknown U.S.
10   Marshals in their individual and professional
11   capacities, (ET) L.S. Palminteri,
12
13                           Defendants-Appellees.
14
15   _____________________________________
16
17
18   FOR PLAINTIFF -APPELLANT:                   Sharon Jackson, pro se, Spring Valley, N.Y.
19
20   FOR FEDERAL DEFENDANTS
21   -APPELLEES:                                 Joseph N. Cordaro, Benjamin H. Torrance,
22                                               (Assistant United States Attorneys, of counsel), for
23                                               Preet Bharara, United States Attorney for the
24                                               Southern District of New York, New York, N.Y.
25
26   FOR DEFENDANT-APPELLEE
27   LARRY SHEEHAN:                              Lawrence John Sheehan, Esq., pro se, Bronx, N.Y.

28   FOR DEFENDANTS-APPELLEES                    Sheila S. Rosenrauch, Alan B. Brill, P.C., Suffern,
29   COUNTY OF ROCKLAND AND                      N.Y.
30   (RCTFO) CHRIS GOLDRICK:
31
32   FOR DEFENDANTS-APPELLEES                    Brian S. Sokoloff, Mark A. Radi, Sokoloff Stern,
33   VILLAGE OF SPRING VALLEY,                   LLP, Westbury N.Y.
34   (DET.) PETE THOM, (RCTFO)
35    AND
36   KEVIN HALLIGAN (RCTFO):
37

38          Appeal from a judgment of the United States District Court for the Southern District of

39   New York (Karas, J.).

40

                                                     2
 1       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
 2   DECREED that the judgment of the district court is AFFIRMED.
 3
 4            Appellant Sharon Jackson, pro se, appeals from a July 28, 2010 judgment entered in the
 5   United States District Court for the Southern District of New York, dismissing her civil rights
 6   action on the Appellees’ Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6) motions to
 7   dismiss her second amended complaint. In her second amended complaint, Jackson asserted
 8   claims of false arrest, false imprisonment, and other violations under 42 U.S.C. §§ 1981, 1983,
 9   1985, and the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1961-
10   1968 against numerous state and federal agencies and officials. These claims arise from
11   Jackson’s December 2001 conviction in the District Court for the Southern District of New York
12   for conspiracy to distribute narcotics. We assume the parties’ familiarity with the underlying
13   facts, the procedural history of the case, and the issues on appeal.
14
15            We review district court determinations on Rule 12(b)(1) and 12(b)(6) motions to
16   dismiss de novo. See Jaghory v. N.Y. State Dep’t of Educ., 131 F.3d 326, 329 (2d Cir. 1997).
17   Dismissal for lack of subject matter jurisdiction under Rule 12(b)(1) is proper “when the district
18   court lacks the statutory or constitutional power to adjudicate it.” Makarova v. United States,
19   201 F.3d 110, 113 (2d Cir. 2000). With regard to pro se complaints, the court construes the
20   complaint liberally, accepting all factual allegations in the complaint as true, and drawing all
21   reasonable inferences in the plaintiff’s favor. See Triestman v. Fed. Bureau of Prisons, 470 F.3d
22   471, 474 (2d Cir. 2006). To survive a Rule 12(b)(6) motion to dismiss, the complaint must plead
23   “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly,
24   550 U.S. 544, 570 (2007); see also Ashcroft v. Iqbal, 556 U.S. 662, __, 129 S. Ct. 1937, 1949
25   (2009). As explained by the Supreme Court, a “plausible” claim is “more than a sheer
26   possibility that a defendant has acted unlawfully” but is less than a “probability requirement.”
27   Iqbal, 129 S. Ct. at 1949 (internal quotation marks omitted). Determining whether a complaint
28   states a plausible claim is a “‘context-specific task that requires the reviewing court to draw on
29   its judicial experience and common sense.’” Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009)
30   (quoting Iqbal, 129 S. Ct. at 1950). Thus, plausibility “depends on a host of considerations: the
31   full factual picture presented by the complaint, the particular cause of action and its elements,
32   and the existence of alternative explanations so obvious that they render [the] plaintiff’s
33   inferences unreasonable.” L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419, 430 (2d Cir. 2011)
34   (citation omitted). Additionally, even after Iqbal and Twombly, we remain obligated to construe
35   pro se complaints liberally, see Harris, 572 F.3d at 72, and therefore we look to see whether a
36   pro se complaint contains sufficient factual allegations to meet the plausibility standard by
37   reading the complaint with “special solicitude” and interpreting it to raise the strongest claims it
38   suggests, Triestman, 470 F.3d at 474-075 (quoting Ruotolo v. I.R.S., 28 F.3d 6, 8 (2d Cir. 1994)).
39
40            We conclude that the second amended complaint fails to state claims upon which the
41   relief Jackson seeks can be granted, even under the liberal standard of review for pro se
42   pleadings.
43
44

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 1           At its heart of Jackson’s second amended complaint sets forth claims of false arrest and
 2   false imprisonment based on her allegations that local and federal law enforcement officials,
 3   aided by the prosecuting Assistant United States Attorneys (“AUSAs”) and Jackson’s appointed
 4   defense counsel, falsified documents and fabricated evidence in order to arrest her on false
 5   charges of drug distribution. The defendants then conspired to present this falsified evidence,
 6   and to conceal exculpatory evidence, at her 2001 federal trial, which led to her conviction.
 7   Finally, the AUSAs, in an effort to keep Jackson in prison, conspired with United States
 8   Marshals to falsely accuse Jackson of threatening the life of a federal judge. According to the
 9   complaint, these actions were taken in order to discriminate against Jackson on account of her
10   race, cover up “Operation Spring Cleaning,” a joint federal-local operation designed to further
11   the prosecution of “Blacks and Latinos within the Village of Spring Valley and the County of
12   Rockland,” and to retaliate against Jackson for refusing to cooperate in the prosecution of her co-
13   defendant.
14
15           Jackson argues on appeal that these allegations were sufficient “to raise a plausible
16   inference [that the Appelles engaged in] multiyear conspiratorial conduct and establish plausible
17   claims that Appellees personally participated in the constitutional torts alleged.” We disagree
18   for several reasons. First, while the second amended complaint alleges that the defendants
19   “falsified evidence” and conducted “illegal surveillance,” nowhere does the complaint specify
20   the actual evidence Jackson believes was falsified, why she believes the surveillance was illegal,
21   or how either was used to convict her at trial. As these assertions lack any factual foundation,
22   they are merely conclusory allegations “masquerading as factual conclusions,” which are
23   insufficient to defeat a motion to dismiss. Kirch v. Liberty Media Corp., 449 F.3d 388, 398 (2d
24   Cir. 2006) (quoting Smith v. Local 819 I.B.T. Pension Plan, 291 F.3d 236, 240 (2d. Cir.2002)).
25   Second, while the second amended complaint provides instances of federal-local law
26   enforcement cooperation in her arrest, Jackson’s allegations that this cooperation was a
27   conspiracy designed to deprive her and others of their constitutional rights are “conclusory,
28   vague, [and] general” and therefore are also insufficient to withstand a motion to dismiss. Gallop
29   v. Cheney, 642 F.3d 364, 369 (2d Cir. 2011) (finding allegations of conspiracy “baseless” where
30   the plaintiff “offer[ed] not a single fact to corroborate her allegation of a ‘meeting of the minds’
31   among the conspirators”). The same is true of the alleged conspiracy between the AUSAs and
32   the United States Marshals.
33
34           Finally, Jackson’s reliance on Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511 (2002),
35   for the proposition that, to survive a motion to dismiss, she was not required to provide “direct
36   evidence of discrimination at the time of [her] complaint,” is misplaced. In Swierkiewicz, a pre-
37   Iqbal/Twombly decision, the Supreme Court held that a plaintiff alleging workplace
38   discrimination and retaliation need not plead facts sufficient to set forth a prima facie case of
39   discrimination and, instead, “the ordinary rules for assessing the sufficiency of a complaint
40   apply.” Swierkiewicz, 534 U.S. at 511. Here, applying these “ordinary rules” we find that
41   Jackson’s bald assertions of discrimination and retaliation, unsupported by any comments,
42   actions, or examples of similarly-situated individuals outside of Jackson’s protected class being
43   treated differently, from which we could infer that the defendants possessed a discriminatory or
44   retaliatory motive, are implausible and insufficient to survive a motion to dismiss. See Iqbal,

                                                      4
 1   129 S. Ct. at 1951 (allegations that the defendants “willfully and maliciously agreed to subject”
 2   the plaintiff to harsh conditions of confinement “solely on account of...religion, race, and/or
 3   national origin” found conclusory (internal quotation marks omitted)). Accordingly, we find that
 4   the district court did not err in dismissing Jackson’s second amended complaint for failure to set
 5   forth plausible claims and therefore affirm on this ground.
 6
 7            Further, Jackson’s argument that the district court improperly rejected any claims brought
 8   pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2671 et seq., is without merit as
 9   it is undisputed that Jackson did not exhaust her FTCA claims in administrative proceedings, and
10   therefore the district court lacked jurisdiction to consider them. See Adeleke v. United States,
11   355 F.3d 144, 153 (2d Cir. 2004) (failure to exhaust administrative remedies is a jurisdictional
12   bar to FTCA claims).
13
14            Finally, Appellee Lawrence John Sheehan, an attorney who has represented himself
15   throughout these proceedings, moves for attorney’s fees. 42 U.S.C. § 1988 governs the award of
16   attorney’s fees for actions, like the present one, brought under, inter alia, Sections 1981, 1983,
17   and 1986 of Title 42. The Supreme Court has spoken clearly that a pro se litigant, whether or not
18   he is a lawyer, may not receive attorney’s fees under Section 1988. Kay v. Ehrler, 499 U.S. 432,
19   438 (1991). Attorney’s fees must then be denied for his defense of those claims. Further, by its
20   own terms, attorney’s fees are available in RICO actions only where a person is “injured in his
21   business or property by reason of a violation of [RICO].” 18 U.S.C. § 1964(c). Nothing about
22   Sheehan’s motion suggests that, as the prevailing defendant in a RICO action, he has suffered by
23   such a violation. Attorney’s fees are, accordingly, unavailable to him.
24
25           We have considered all of Jackson’s remaining arguments and find them to be without
26   merit. Accordingly, we AFFIRM the judgment of the district court. Appellee Sheehan’s motion
27   for attorney’s fees is DENIED.
28
29                                                FOR THE COURT:
30                                                Catherine O’Hagan Wolfe, Clerk
31
32




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