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PLAINTIFF’S MEMORANDUM OF LAW IN SUPPORT OF COMPLAINT – 1
XXXXX
Attorneys’ Business Address
City, ST ZIP Code
Phone | Fax
Email
Plaintiff in pro per
IN THE XXXX DISTRICT COURT
FOR THE NORTHERN DISTRICT OF XXXX
XXXX,
Plaintiff,
vs.
XXXXX
Defendants.
Case No.: Number
PLAINTIFF’S MEMORANDUM OF LAW
IN SUPPORT OF COMPLAINT
NOW COMES XXXX, Plaintiff, and files this Memorandum of Law in Support of
Complaint, and for cause would show this Honorable Court as follows:
Main Issues for Determination
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PLAINTIFF’S MEMORANDUM OF LAW IN SUPPORT OF COMPLAINT – 2
1. Equal rights under the law
2. Deprivation of Rights
3. Unlawful intrusion.
4. False arrest.
5. Unlawful seizure of DNA in the course of arrest
6. Warrantless search
7. Malicious prosecution
The Law in Relation to the Facts
42 U.S. Code § 1981 provides for equal rights under the law. It expressly states
as follows:
“All persons within the jurisdiction of the United States shall have the
same right in every State and Territory to make and enforce contracts, to sue, be parties,
give evidence, and to the full and equal benefit of all laws and proceedings for the
security of persons and property as is enjoyed by white citizens, and shall be subject to
like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no
other……the rights protected by this section are protected against impairment by
nongovernmental discrimination and impairment under color of State law.”
Accordingly, the claim of deprivation of rights is based on the preceding
provision. The Plaintiff is entitled to equal rights under the law and non-discrimination based on
color. Hence the Plaintiff’s complaint is merited.
42 U.S.C. § 1983 expressly provides for civil action for the deprivation of rights.
The provision states:
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PLAINTIFF’S MEMORANDUM OF LAW IN SUPPORT OF COMPLAINT – 3
“Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory or the District of Columbia, subjects, or
causes to be subjected, any citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by
the Constitution and laws, shall be liable to the party injured in an action at law, suit in
equity, or other proper proceeding for redress, except that in any action brought against
a judicial officer for an act or omission taken in such officer’s judicial capacity,
injunctive relief shall not be granted unless a declaratory decree was violated or
declaratory relief was unavailable. For the purposes of this section, any Act of Congress
applicable exclusively to the District of Columbia shall be considered to be a statute of
the District of Columbia.”
The officers had without evidence or proof of war crossed the threshold of the
Plaintiff’s home hence a violation of his right to privacy. They also used a false statement to
pursue the Plaintiff for a crime he had not committed thus being denied the right to presumed
innocent until proven guilty. As per 42 U.S.C. § 1983, the Plaintiff has a right to bring a civil
action against the police officers that breached his Fourth Amendment rights in three main
respects: by entering his house, arresting him without a warrant, and using unreasonable and
excessive force during the arrest. Hence the officers, being under color of state law deprived him
of his federal rights and thus entitled to bring forth a complaint.
Further, with regard to the deprivation of the Plaintiff’s rights or privileges, 42
U.S.C. § 1985 (3) provides:
“If two or more persons in any State or Territory conspire or go in
disguise on the highway or on the premises of another, for the purpose of depriving,
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PLAINTIFF’S MEMORANDUM OF LAW IN SUPPORT OF COMPLAINT – 4
either directly or indirectly, any person or class of persons of the equal protection of the
laws, or of equal privileges and immunities under the laws… [and] if one or more
persons engaged therein do, or cause to be done, any act in furtherance of the object of
such conspiracy, whereby another is injured in his person or property, or deprived of
having and exercising any right or privilege of a citizen of the United States, the party so
injured or deprived may have an action for the recovery of damages occasioned by such
injury or deprivation, against any one or more of the conspirators.”
Accordingly, the Plaintiff complaint and evidence procured has proven that the
police officers have conspired to deprive the Plaintiff of his fundamental rights under the Fourth
Amendment. The Plaintiff is thus entitled to institute the current complaint against the officers
for recovery of damages for any injury he has incurred as a result of the deprivation of his rights.
Under 42 U.S.C. § 1983, the Plaintiff can bring a claim of unlawful intrusion on
property. The police officers unlawfully intruded into his home without a warrant. Hence a
violation of his right to privacy. The fact that the police officers lacked a warrant also amounted
to trespass which the Plaintiff is entitled to bring as a claim.
Moreover, the Plaintiff, under 42 U.S.C. § 1983 also has the right to bring a claim
of false arrest. From his complaint it is evident that the police officers intended to confine him,
the Plaintiff was conscious of the confinement, and the Plaintiff did not consent to the
confinement. The preceding elements are established in the case of Johnson v. Kings County
District Attorney’s Office, 308 A.D.2d 278, 285- 86 (2d Dep’t 2003). Furthermore, the preceding
unlawful arrest resulted in the unlawful search and seizure of the Plaintiff’s DNA. The
preceding could be a solid claim under 42 U.S.C. § 1983. The seizure of the Plaintiff’s DNA was
also a trespass on his person and an infringement on his fundamental right to privacy.
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PLAINTIFF’S MEMORANDUM OF LAW IN SUPPORT OF COMPLAINT – 5
42 U.S.C. § 1983 also supports the Plaintiff’s claim of a warrantless search.
Although a warrantless search is per se unreasonable, it can be justified "where exigent
circumstances demand that law enforcement agents act without delay." United States v.
MacDonald, 916 F.2d 766, 769 (2d Cir. 1990) (en banc), cert. denied, 498 U.S. 1119, 111 S.Ct.
1071, 112 L.Ed.2d 1177 (1991). Probable cause is not sufficient to justify a warrantless search.
Kirk v. Louisiana, 536 U.S. 635, 122 S.Ct. 2458, 153 L.Ed.2d 599 (2002). "Absent exigent
circumstances, the firm line at the entrance to the house may not reasonably be crossed without a
warrant." Kirk, 536 U.S. at 636 (quoting Payton v. New York, 445 U.S. 573, 590 (1980)). "[T]he
exigent circumstances exception in the context of a home entry should rarely be sanctioned when
there is probable cause to believe that only a minor offense . . . has been committed." Welsh v.
Wisconsin, 466 U.S. 740, 753 (1984). [Abdella v. O’Toole, 343. F. Supp. 2d 129 (D. Conn.
2004)]. Thus, in the present case, the police officers were proceeding based on false statements
hence a probable cause that was inadequate to justify a warrantless search.
Further, under 42 U.S.C. § 1983, the Plaintiff can lodge a malicious prosecution
complaint against the police officers in question. To state a claim for malicious prosecution
under both federal and New York law, a plaintiff must allege "(1) the commencement or
continuation of a criminal proceeding against her, (2) the termination of the proceeding in her
favor, (3) that there was no probable cause for the proceeding; and (4) that the proceeding was
instituted with malice." Mitchell v. City of New York, 841 F.3d 72, 79 (2d Cir. 2016) (quoting
Kinzer v. Jackson, 316 F.3d 139, 143 (2d Cir. 2003)); Ramos v. City of New York, 15 Civ. 6085
(ER), 2017 WL 3267736, at *7 (S.D.N.Y. July 31, 2017) ("The elements of malicious
prosecution under Section 1983 are substantially the same as the elements under New York Law;
the analysis of the state and the federal claims is identical.") (quotation marks and citation
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PLAINTIFF’S MEMORANDUM OF LAW IN SUPPORT OF COMPLAINT – 6
omitted) For a § 1983 claim, a plaintiff must additionally allege "a sufficient post-arraignment
liberty restraint to implicate the plaintiff’s Fourth Amendment rights." Rohman v. New York City
Transit Auth., 215 F.3d 208, 215 (2d
Cir. 2000). Just like a claim for false arrest, probable cause is a complete defense to a malicious
prosecution claim. See Manganiello v. City of New York, 612 F.3d 149, 161- 62 (2d Cir. 2010)
(quoting Savino v. City of New York, 331 F.3d 63, 72 (2d Cir. 2003)). [Lawton v. Town of
Orchard Park, 14-CV-867S (W.D.N.Y. Aug. 18, 2017)]From the complaint, the Plaintiff has
proven all the elements of malicious prosecution exist. This is especially because the police
officers proceeded to pursue the Plaintiff based on false statements that were not substantiated.
Moreover, 42 U.S.C. § 1985 expressly provides:
“If two or more persons in any State or Territory conspire or go in disguise on the
highway or on the premises of another, for the purpose of depriving, either directly or
indirectly, any person or class of persons of the equal protection of the
laws, or of equal privileges and immunities under the laws… [and]] if one or more
persons engaged therein do, or cause to be done, any act in furtherance of the object of
such conspiracy, whereby another is injured in his person or property, or deprived of
having and exercising any right or privilege of a citizen of the United States, the party so
injured or deprived may have an action for the recovery of damages occasioned by such
injury or deprivation, against any one or more of the conspirators.”
The Plaintiff’s complaint expresses all the preceding elements hence:
(1) a conspiracy;
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PLAINTIFF’S MEMORANDUM OF LAW IN SUPPORT OF COMPLAINT – 7
(2) for the purpose of depriving, either directly or indirectly, any person or class
of persons of the equal protection of the laws, or of equal privileges and immunities under the
laws;
3) an act in furtherance of the conspiracy
(4) whereby a person is either injured in his person or property or deprived of any
right or
the privilege of a citizen of the United States.
It is evident that the police officers, proceeding on false statements, conspired
against the Plaintiff to deprive him of his federal rights of privacy and being presumed innocent
until heard and proven guilty.
Prayer for Relief
REASONS WHEREFORE, PREMISES CONSIDERED, Plaintiff respectfully
requests this Honorable Court to accept and deem this Memorandum of Law as filed, award
Plaintiff all requested damages and reliefs requested in the Complaint, and award Plaintiff such
further reliefs as this Court deems necessary and proper.
Dated this ____ day of XXXX.
Respectfully Submitted,
___________________________________
XXXX,
Plaintiff in pro per
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PLAINTIFF’S MEMORANDUM OF LAW IN SUPPORT OF COMPLAINT – 8
VERIFICATION
I, XXXX, being duly sworn depose and say that I have read the
foregoing Memorandum of Law in Support of Complaint and know the contents thereof. That
the same is true of my own knowledge except as to those matters and things stated upon
information and belief, and as to those things, I believe them to be true.
_________________________________
(Sign in the presence of a Notary Public)
Sworn to and subscribed before me this ___ day of XXXX
______________________________
Notary Public
________________________________________
(Printed name of Notary Public)
My Commission Expires: ____________________
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