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.
`
`At a stated term of the United States Court of Appeals for the Second Circuit, held
`at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of
`New York, on the 23rd day of November, two thousand eleven.
`
`PRESENT:
`
`ROGER J. MINER,
`ROSEMARY S. POOLER,
`BARRINGTON D. PARKER,
`Circuit Judges.
`_____________________________________
`
`Sharon Jackson,
`
`Plaintiff-Appellant,
`
`v.
`
`10-3968-pr
`
`County of Rockland, Village of Spring Valley,
`Department of Justice, (DET.) Pete Thom,
`(RCTFO) Kevin Halligan, (RCTFO) Chris
`Goldrick, (GS) David Polos, (SA) Dennis
`Peterson, (SA) Daniel Parson, (SA) Michael
`Guidetti, (SA) Michael Clifford, (SA) William
`Dolinsky, (SA) Jason Daus, (SA) Matthew Ryan,
`(SA) Carolyn Porras, Joe Tokarz, (ET) D.
`Michael, (ET) Robin Powell, (AUSA)
`Christopher Cornniff, (AUSA) Mark A.
`Racanelli, (AUSA) Stanley Okula, (AUSA)
`Andrew M. McNella, James M. Parkison, Clerk
`of Court and several unknown judicial officers in
`their individual and professional capacities, (SA,
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`NYFD) Edgar Domenech, (LNU) Richard G.,
`(SA in Charge) Willi G. McMahon, (Forensic
`Chemists) L. Kinscherf, Cindy Nevello, and
`others unknown Lab Personnel in their
`individual and professional capacities, ESQ.
`Larry Sheehan, in his individual and
`professional capacities, (AD) William Stewart,
`(Attorney Advisor) D J. Stearns, (CIDUSM)
`Brian McHugh, and several unknown U.S.
`Marshals in their individual and professional
`capacities, (ET) L.S. Palminteri,
`
`Defendants-Appellees.
`
`_____________________________________
`
`FOR PLAINTIFF -APPELLANT:
`
`Sharon Jackson, pro se, Spring Valley, N.Y.
`
`FOR FEDERAL DEFENDANTS
` -APPELLEES:
`
`Joseph N. Cordaro, Benjamin H. Torrance,
`(Assistant United States Attorneys, of counsel), for
`Preet Bharara, United States Attorney for the
`Southern District of New York, New York, N.Y.
`
`FOR DEFENDANT-APPELLEE
`LARRY SHEEHAN:
`
`Lawrence John Sheehan, Esq., pro se, Bronx, N.Y.
`
`FOR DEFENDANTS-APPELLEES
`Sheila S. Rosenrauch, Alan B. Brill, P.C., Suffern,
`COUNTY OF ROCKLAND AND N.Y.
`(RCTFO) CHRIS GOLDRICK:
`
`FOR DEFENDANTS-APPELLEES Brian S. Sokoloff, Mark A. Radi, Sokoloff Stern,
`VILLAGE OF SPRING VALLEY,
` LLP, Westbury N.Y.
`(DET.) PETE THOM, (RCTFO)
` AND
`KEVIN HALLIGAN (RCTFO):
`
`Appeal from a judgment of the United States District Court for the Southern District of
`
`New York (Karas, J.).
`
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`
`

`
`UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
`DECREED that the judgment of the district court is AFFIRMED.
`
`Appellant Sharon Jackson, pro se, appeals from a July 28, 2010 judgment entered in the
`United States District Court for the Southern District of New York, dismissing her civil rights
`action on the Appellees’ Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6) motions to
`dismiss her second amended complaint. In her second amended complaint, Jackson asserted
`claims of false arrest, false imprisonment, and other violations under 42 U.S.C. §§ 1981, 1983,
`1985, and the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1961-
`1968 against numerous state and federal agencies and officials. These claims arise from
`Jackson’s December 2001 conviction in the District Court for the Southern District of New York
`for conspiracy to distribute narcotics. We assume the parties’ familiarity with the underlying
`facts, the procedural history of the case, and the issues on appeal.
`
`We review district court determinations on Rule 12(b)(1) and 12(b)(6) motions to
`dismiss de novo. See Jaghory v. N.Y. State Dep’t of Educ., 131 F.3d 326, 329 (2d Cir. 1997).
`Dismissal for lack of subject matter jurisdiction under Rule 12(b)(1) is proper “when the district
`court lacks the statutory or constitutional power to adjudicate it.” Makarova v. United States,
`201 F.3d 110, 113 (2d Cir. 2000). With regard to pro se complaints, the court construes the
`complaint liberally, accepting all factual allegations in the complaint as true, and drawing all
`reasonable inferences in the plaintiff’s favor. See Triestman v. Fed. Bureau of Prisons, 470 F.3d
`471, 474 (2d Cir. 2006). To survive a Rule 12(b)(6) motion to dismiss, the complaint must plead
`“enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly,
`550 U.S. 544, 570 (2007); see also Ashcroft v. Iqbal, 556 U.S. 662, __, 129 S. Ct. 1937, 1949
`(2009). As explained by the Supreme Court, a “plausible” claim is “more than a sheer
`possibility that a defendant has acted unlawfully” but is less than a “probability requirement.”
`Iqbal, 129 S. Ct. at 1949 (internal quotation marks omitted). Determining whether a complaint
`states a plausible claim is a “‘context-specific task that requires the reviewing court to draw on
`its judicial experience and common sense.’” Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009)
`(quoting Iqbal, 129 S. Ct. at 1950). Thus, plausibility “depends on a host of considerations: the
`full factual picture presented by the complaint, the particular cause of action and its elements,
`and the existence of alternative explanations so obvious that they render [the] plaintiff’s
`inferences unreasonable.” L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419, 430 (2d Cir. 2011)
`(citation omitted). Additionally, even after Iqbal and Twombly, we remain obligated to construe
`pro se complaints liberally, see Harris, 572 F.3d at 72, and therefore we look to see whether a
`pro se complaint contains sufficient factual allegations to meet the plausibility standard by
`reading the complaint with “special solicitude” and interpreting it to raise the strongest claims it
`suggests, Triestman, 470 F.3d at 474-075 (quoting Ruotolo v. I.R.S., 28 F.3d 6, 8 (2d Cir. 1994)).
`
`We conclude that the second amended complaint fails to state claims upon which the
`relief Jackson seeks can be granted, even under the liberal standard of review for pro se
`pleadings.
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`At its heart of Jackson’s second amended complaint sets forth claims of false arrest and
`false imprisonment based on her allegations that local and federal law enforcement officials,
`aided by the prosecuting Assistant United States Attorneys (“AUSAs”) and Jackson’s appointed
`defense counsel, falsified documents and fabricated evidence in order to arrest her on false
`charges of drug distribution. The defendants then conspired to present this falsified evidence,
`and to conceal exculpatory evidence, at her 2001 federal trial, which led to her conviction.
`Finally, the AUSAs, in an effort to keep Jackson in prison, conspired with United States
`Marshals to falsely accuse Jackson of threatening the life of a federal judge. According to the
`complaint, these actions were taken in order to discriminate against Jackson on account of her
`race, cover up “Operation Spring Cleaning,” a joint federal-local operation designed to further
`the prosecution of “Blacks and Latinos within the Village of Spring Valley and the County of
`Rockland,” and to retaliate against Jackson for refusing to cooperate in the prosecution of her co-
`defendant.
`
`Jackson argues on appeal that these allegations were sufficient “to raise a plausible
`inference [that the Appelles engaged in] multiyear conspiratorial conduct and establish plausible
`claims that Appellees personally participated in the constitutional torts alleged.” We disagree
`for several reasons. First, while the second amended complaint alleges that the defendants
`“falsified evidence” and conducted “illegal surveillance,” nowhere does the complaint specify
`the actual evidence Jackson believes was falsified, why she believes the surveillance was illegal,
`or how either was used to convict her at trial. As these assertions lack any factual foundation,
`they are merely conclusory allegations “masquerading as factual conclusions,” which are
`insufficient to defeat a motion to dismiss. Kirch v. Liberty Media Corp., 449 F.3d 388, 398 (2d
`Cir. 2006) (quoting Smith v. Local 819 I.B.T. Pension Plan, 291 F.3d 236, 240 (2d. Cir.2002)).
`Second, while the second amended complaint provides instances of federal-local law
`enforcement cooperation in her arrest, Jackson’s allegations that this cooperation was a
`conspiracy designed to deprive her and others of their constitutional rights are “conclusory,
`vague, [and] general” and therefore are also insufficient to withstand a motion to dismiss. Gallop
`v. Cheney, 642 F.3d 364, 369 (2d Cir. 2011) (finding allegations of conspiracy “baseless” where
`the plaintiff “offer[ed] not a single fact to corroborate her allegation of a ‘meeting of the minds’
`among the conspirators”). The same is true of the alleged conspiracy between the AUSAs and
`the United States Marshals.
`
`Finally, Jackson’s reliance on Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511 (2002),
`for the proposition that, to survive a motion to dismiss, she was not required to provide “direct
`evidence of discrimination at the time of [her] complaint,” is misplaced. In Swierkiewicz, a pre-
`Iqbal/Twombly decision, the Supreme Court held that a plaintiff alleging workplace
`discrimination and retaliation need not plead facts sufficient to set forth a prima facie case of
`discrimination and, instead, “the ordinary rules for assessing the sufficiency of a complaint
`apply.” Swierkiewicz, 534 U.S. at 511. Here, applying these “ordinary rules” we find that
`Jackson’s bald assertions of discrimination and retaliation, unsupported by any comments,
`actions, or examples of similarly-situated individuals outside of Jackson’s protected class being
`treated differently, from which we could infer that the defendants possessed a discriminatory or
`retaliatory motive, are implausible and insufficient to survive a motion to dismiss. See Iqbal,
`
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`

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