United States District Court, D. Delaware
Ye, Flushing, New York. Pro Se Plaintiff.
Trocki Mantzavnos, Marks, O'Neill, O'Brien, Doherty
& Kelly, P.C., Wilmington, Delaware. Counsel for
NOREIKA, U.S. DISTRICT JUDGE
Ning Ye (“Plaintiff) appears pro se. He is a
composer and part-time attorney and resides in the State of
New York. Plaintiff commenced this action on July 7, 2018, in
the United States District Court for the Eastern District of
New York and it was transferred to this Court on November 13,
2018. (D.I. 1, 7, 8). Before the Court is Defendants'
motion to dismiss, Plaintiffs opposition and cross motion for
summary judgment, and Plaintiffs motion for judicial notice.
(D. I. 9, 10, 11). Briefing is complete.
Complaint attempts to raise federal and state claims. Named
Defendants are Police Department in New Castle, Delaware
(“Police Department”); police officer W.
Cuzco-Benites (“Cuzco-Benites”), and arresting
officer Mary Roe (“Roe”). Plaintiff is not
certain if Cuzco-Benites and Roe are the same person. (D.I. 1
28, 2017, Cuzco-Benites, a police officer with the Delaware
River and Bay Authority, responded to a domestic incident
involving Plaintiff and his wife, Wuyi Pan
(“Pan”), while Plaintiff was driving a vehicle on
I-295 in New Castle, Delaware. (D.I. 1 at 19). Plaintiffs
wife was a passenger. (Id.). The two were having a
verbal argument and, when Pan attempted to jump from the
moving vehicle, Plaintiff grabbed Pan by the hair.
(Id. ¶ 36 and Aff at 19). Plaintiff also struck
Pan in the chest with his right palm. (Id. at Aff.
at 19). Plaintiff alleges that his actions saved Pan's
life in a very dangerous and difficult situation.
(Id. ¶ 39, 46).
observed an abrasion on Pan's right shoulder at the
neckline, the right forearm was showing signs of bruising,
and the left wrist had scratches. (Id. at 20).
Plaintiff was charged with: (1) assault third degree
intentionally or recklessly causes physical injury to another
as a result of striking Pan in the front chest with his right
palm and; (2) offensive touching. (Id. at 21).
Plaintiff alleges that Cuzco-Benites' affidavit is
“exculpatory evidence fully exonerating [him] for his
noble action leading to his wrongful arrest, detention,
prosecution and arraignment.” (Id. ¶ 47).
alleges that Roe made the decision to arrest Plaintiff at the
scene and that it was a false arrest without probable cause.
(Id. ¶¶ 16-19, 40). Plaintiff was taken to
the “New Castle Police Precinct” where he
remained from 2:00 p.m. until 8:00 p.m. (Id. ¶
42). He alleges that he “remained handcuffed inside the
fully locked police cell . . . for six hours.”
(Id. ¶ 41). Plaintiff appeared in the Delaware
Family Court “to answer criminal charges without
meaningful due process and without jury.” (Id.
¶ 42). The Court entered a restraining order and
Plaintiff signed all papers “under protest.”
(D.I. 1 ¶ 42; D.I. 1 at 32, Family Court 12/06/2017
docket entry “as a bail condition the JP Court ordered
that the Defendant have no unlawful or unwanted contact with
the victim”). A motion to modify the no contact order
was granted on December 11, 2017. (D.I. 1 at 33, Family Court
12/11/2017 docket entry). Plaintiff “was offered to
take ‘anger management course' as the condition to
get the case dismissed.” (Id. ¶ 50). The
charges were nolle prossed on April 2, 2018. (D.I. 1 ¶
50; D.I. 1 at 33, Family Court 04/02/2018 docket entry). A
no-contact order had been in place for nine months at the
time the case was dismissed. (Id. ¶ 50).
Complaint contains eight counts: (1) Count 1, false arrest
under federal and state law; (2) Count 2, false imprisonment
under state law; (3) Count 3, battery under state law; (4)
Count 4, assault under state law; (5) Count 5, excessive
force under federal law; (6) Count 6, violation of
Plaintiff's civil rights under 42 U.S.C. § 1983,
including due process violations under the Fifth, Sixth, and
Fourteenth Amendments and excessive force under the Eighth
Amendment; (7) Count 7, deprivation of consortium; and (8)
Count 8, violation of due process and other constitutional
safeguards under the Fifth, Sixth, and Fourteenth Amendments
and excessive force under the Eighth Amendment. (Id.
is sued in her official capacity, and Roe is sued in her
individual and official capacities. (D.I. 1 at 1 and ¶
17). Plaintiff seeks compensatory and punitive damages, as
well as declaratory relief, and injunctive relief.
(Id. at 17).
move to dismiss for failure to state a claim upon which
relief may be granted pursuant to Fed.R.Civ.P. 12(b)(6) on
the grounds that: (1) the Complaint does not contain
sufficient facts to support a claim for relief under state or
federal law; (2) the Complaint is “perplexing and
incomprehensible”; (3) the Complaint fails to present
adequate facts necessary to sufficiently respond to the
allegations; and (4) the Complaint fails to articulate
clearly accusations and facts that are aimed at Defendants.
Plaintiff filed a combined opposition to the motion to
dismiss and motion for summary judgment as well as a motion
for judicial notice.
when a plaintiff proceeds pro se, his pleading is
liberally construed and his complaint, “however
inartfully pleaded, must be held to less stringent standards
than formal pleadings drafted by lawyers.” Erickson
v. Pardus, 551 U.S. 89, 94 (2007) (citations omitted).
Plaintiff, however, indicates that he is an attorney and
practices part-time in the State of New York. (see
D.I. 1 ¶ 8). The Court does not extend the indulgence of
the pro se liberal construction rule to pro
se litigants who, like Plaintiff, are also attorneys.
See Tatten v. ...