DiProjetto v. Allen et al, No. 6:2008cv06430 - Document 15 (W.D.N.Y. 2009)

Court Description: DECISION AND ORDER granting 3 Motion to Dismiss; granting 14 Motion to Strike. This action is dismissed,without prejudice. Signed by Hon. Charles J. Siragusa on 5/15/08. (KAP)

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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK __________________________________________ NICHOLAS J. DIPROJETTO, Plaintiff DECISION AND ORDER -vs08-CV-6430 CJS JASON W. ALLEN, IRONDEQUOIT POLICE DEPARTMENT, TOWN OF IRONDEQUOIT, Defendants __________________________________________ INTRODUCTION This is an action in which Nicholas DiProjetto ( Plaintiff ), proceeding pro se, alleges that Jason W. Allen ( Allen ), a police officer employed by the Town of Irondequoit, New York, assaulted him. Now before the Court is Defendants motion to dismiss. For the reasons that follow, the application is granted and this action is dismissed without prejudice. BACKGROUND This action was commenced on September 19, 2008. The caption of the form complaint lists Nicholas J. DiProjetto as the plaintiff. However, the body of the complaint indicates that the first plaintiffs in the action are John and Kim DiProjetto, and that the second plaintiff is Nicholas J. DiProjetto. The complaint describes the claim, in relevant part, as follows: Police brutality, assault and battery and pain and suffering . . . . On August 23, 2008, Officer Jason W. Allen intentionally beat Nicholas J. DiProjetto to the ground and continually punched him while Nicholas s vehicle was in the driveway of 302 Washington Ave., Rochester, NY 14617. The complaint does not 1 contain a demand for relief. The complaint appears to be signed by John DiProjetto pro se. The summons that was served along with the complaint lists Nicholas J. DiProjetto as the plaintiff, and directs that any answer or motion be served on plaintiff s attorney, John P. DiProjetto, pro se. Based on documents attached to the complaint and statements made in court during oral argument of the subject motion, Nicholas DiProjetto is a twenty-one year old adult, and John DiProjetto and Kim DiProjetto are Nicholas s parents. On October 10, 2008, Defendants filed the subject motion to dismiss, purportedly made pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure ( FRCP ). Defendants maintained that the complaint must be dismissed because if fails to comply with FRCP 8(a) and FRCP 11(a), because it was not signed by Nicholas, fails to identify a basis for subject matter jurisdiction, fails to demand relief, and sues an improper party. On December 15, 2008, the Court issued a Motion Scheduling Order (Docket No. [#9]), which directed Plaintiff to file and serve a response to the motion by January 23, 2009. Plaintiff did not file a response. Instead, on or about March 3, 2009, Plaintiff delivered various documents to the offices of the Irondequoit Police Department. These unsworn documents consist of a letter from Nicholas DiProjetto to the court, and a letter from John DiProjetto and Kim DiProjetto to the New York State Department of Motor Vehicles ( DMV ), letters from Nicholas s friends, and a decision from the DMV revoking Nicholas s driver s license, pursuant to New York Vehicle and Traffic Law § 1194, for failure to submit to chemical testing of his blood alcohol content. Plaintiff filed these documents with the Court. 2 (Docket No. [#12]). On March 11, 2009, Defendants filed a letter motion, asking the Court to strike those documents. On May 7, 2009, the counsel for the Defendants, as well as Nicholas DiProjetto, John DiProjetto, and Kim DiProjetto, appeared before the undersigned for oral argument. At the outset, John DiProjetto and Nicholas DiProjetto maintained that the signature on the complaint was Nicholas s. However, upon further questioning by the Court, Nicholas admitted that the signature was not his. DISCUSSION FRCP 11(a) states, in relevant part: Every pleading . . . must be signed by at least one attorney of record in the attorney s name or by a party personally if the party is unrepresented. . . . The court must strike an unsigned paper unless the omission is promptly corrected after being called to the attorney s or party s attention. In the instant case, it is clear that Nicholas DiProjetto is the plaintiff in this action. Nicholas s parents cannot sue on his behalf, nor can they represent him in this action. Moreover, Nicholas failed to comply with Rule 11(a). Ordinarily, in light of Nicholas s pro se status, the Court would be inclined to allow him to correct this error. However, for several reasons, the Court finds that dismissal without prejudice is appropriate. First, Defendants motion is unopposed. Further in that regard, the plain language of Rule 11(a) requires that the Court strike the complaint, since Plaintiff did not promptly correct the error after it was brought to his attention. Instead, Plaintiff took no action with regard to his Rule 11 obligations, despite the passage of over six months. See, Jimenez v. Van Riker, No. 5:95-CV1658 (RSP)(DS), 1996 WL 89281 (N.D.N.Y. Feb. 27, 1996) (Dismissing action without prejudice where, inter alia, Plaintiff failed to correct omission 3 of signature on complaint). Additionally, Plaintiff acted in bad faith by misrepresenting to the Court that he had signed the complaint. CONCLUSION Defendants applications are granted, and this action is dismissed, without prejudice.1 So Ordered. Dated: Rochester, New York May 15, 2009 ENTER: /s/ Charles J. Siragusa CHARLES J. SIRAGUSA United States District Judge 1 Because the Court is dism issing the action pursuant to Rule 11, it need not devote m uch discussion to the other bases for Defendants m otion. However, the Court notes that the com plaint would not be subject to dism issal for failure to state a basis for federal subject-m atter jurisdiction, since, construed liberally, the com plaint states a claim under 42 U.S.C. § 1983. Nor would the com plaint be subject to dism issal for failure to include a dem and for relief. Bontkowski v. Smith, 305 F.3d 757, 762 (7 th Cir. 2002). However, the Court agrees that Plaintiff cannot assert a claim against the Irondequoit Police Departm ent, since the Police Departm ent is m erely part of the Town of Irondequoit. See, Fanelli v. Town of Harrison, 46 F.Supp.2d 254, 257 (S.D.N.Y. 1999) (collecting cases). 4

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