MEMORANDUM-DECISION AND ORDER

GARY L. SHARPE, District Judge.

I. Introduction

Plaintiff pro se Tyrone Maye commenced this action against the defendants,1 asserting claims pursuant to 42 U.S.C. § 1983 and New York law for violations of his civil rights. Pending are Maye's motion to clarify portions of the 50-h hearing transcript, motion for reconsideration, and motion to deny relief sought; and defendants' evidentiary and dispositive motions. (Dkt. Nos. 5, 24, 28, 30, 59, 66, 73, 74.) For the reasons that follow, Maye's motions are denied, and defendants' motions to dismiss are granted.2

II. Background3

On August 11, 2005 plaintiff pro se Tyrone Maye was the passenger in a vehicle during a traffic stop in Glens Falls, New York. (Am. Compl. ¶ 7, Dkt. No. 9.) Maye was approached by Detectives Frettoloso and Conine, questioned, and then "forcibly removed" from the car. (Id. ¶¶ 8-9.) Conine handcuffed Maye, and proceeded to search him in broad daylight. (Id. ¶¶ 11-12.) Although the search uncovered only money, Maye was placed in the back of a patrol car driven by P.O. Habshi and transported to the police station. (Id. ¶ 13.) When he arrived at the station, Maye was taken to an interrogation room and "ankle cuffed" to the wall. (Id.)

Conine entered the interrogation room and directed Maye to stand up; as Maye did so, his jeans slid down. (Id. ¶ 15.) Maye attempted to pull his jeans back up, but Conine "rushed [him] into the wall" and prevented him from raising his jeans. (Id.) With Maye pressed up against the wall, Frettoloso conducted a manual body cavity search which uncovered a "single baggie" in Maye's rectum. (Id. ¶ 16.)

Following the search, Maye was arraigned and remanded to the custody of C.O. Stockdale for transfer to the Warren County Jail. (Id. ¶¶ 17-18.) Maye arrived at the jail in the afternoon of August 11, 2005, and was immediately taken to the booking area and searched again. (Id.) C.O. Harpp conducted a strip search which uncovered seven packets of heroin in Maye's right sock. (Id. ¶ 19.) The heroin was handed over to Investigator Lail, who re-finger printed and photographed Maye. (Id. ¶ 20.) When Lail was finished, Harpp processed Maye and took him to the reception dorm. (Id. ¶ 21.) On September 9, 2005, C.O. Alison transported Maye to the Queensbury Town Court for arraignment on the additional heroin possession charges. (Id. ¶ 22.)

Maye's allegations against the remaining defendants arose out of his subsequent criminal prosecution. In sum, Maye alleges that as a result of the inadequate representation by public defender John P.M. Wappett, false testimony by Frettoloso, and various ethical violations by members of the District Attorney's Office, he was convicted of the drug offenses and sentenced to nine and one half years in prison. (Id. ¶¶ 23, 26-35.)

Although Maye's conviction was originally affirmed by the Third Department of the New York State Supreme Court Appellate Division, the New York Court of Appeals reversed the Appellate Division, finding the evidence was unlawfully seized.4 (Id. ¶ 36.) On February 25, 2009, the indictment against Maye was dismissed. (Id. ¶ 37.)

III. Standard of Review

The standard of review under Fed. R. Civ. P. 12 is well established and will not be repeated here.5 For a full discussion of the standard, the court refers the parties to its decision in Ellis v. Cohen & Slamowitz, LLP, 701 F.Supp.2d 215, 218 (N.D.N.Y. 2010).

IV. Discussion

As a preliminary matter, there are several pending procedural motions filed by Maye which need to be resolved. Thus, before discussing the dispositive motions, the court will address Maye's motion to clarify portions of the 50-h hearing transcript, motion for reconsideration, and motion to deny relief sought. (See Dkt. Nos. 5, 59, 73.)

A. Miscellaneous Motions

First, Maye seeks permission to provide clarification to portions of his testimony from his Rule 50-h hearing in July 2006. (See Dkt. No. 5.) After reviewing Maye's submission, the court is unpersuaded that a clarification is germane. Thus, Maye's motion to clarify is denied.

Next, Maye filed a motion for reconsideration of the court's order denying his request to file a surreply to defendants' motion to dismiss. (See Dkt. Nos. 52, 55, 59.) Although not explicitly stated in the court's previous order, "a surreply is not permitted" to a dispositive motion under Northern District of New York Local Rule 7.1(b). Because Maye has not satisfied any of the requirements to prevail on a motion for reconsideration,6 his motion is denied.

Finally, Maye filed a request, albeit docketed as a motion, seeking to preclude defendants Adams, Cernak, Peterson and Sauder from asserting improper service of process in their motion to dismiss. (See Dkt. No. 73.) Notwithstanding his request, lack of service is a viable defense that defendants are entitled to assert. Therefore, Maye's motion is denied.

B. Eleventh Amendment Immunity

Counsel for the State of New York argues that Maye's causes of action against the State and the various public servants in their official capacities are barred by the Eleventh Amendment.7 (See Dkt. No. 24, Attach. 1.) The court agrees.

The Eleventh Amendment shields states and their agencies, departments, and officials in their official capacities from suit in federal court, regardless of the relief sought. See Papasan v. Allain, 478 U.S. 265, 276 (1986). This immunity gives way in only three circumstances: (1) where it is waived by the state; (2) where it has been abrogated by Congress, see Kentucky v. Graham, 473 U.S. 159, 169 (1985); and (3) where a state official is sued in her official capacity for prospective injunctive relief, see Ex parte Young, 209 U.S. 123, 157 (1908). See also Dube v. State Univ. of N.Y., 900 F.2d 587, 594 (2d Cir. 1990) (explaining that § 1983 does not abrogate Eleventh Amendment immunity).

Since Maye's claims do not fall within any of these recognized exceptions, the State's motion is granted and all claims against the State of New York and defendants in their official capacities are dismissed.

C. Prosecutorial and Defense Immunity

Defendants Schwenker, Carusone, Ferguson and Davenport—all members of the Warren County District Attorney's Office during Maye's criminal prosecution—argue that they are immune from this suit. (See Dkt. Nos. 28, Attach. 7; 30, Attach. 3.) The court agrees.

"It is . . . well established that `a state prosecuting attorney who acted within the scope of his duties in initiating and pursuing a criminal prosecution' . . . `is immune from a civil suit for damages under § 1983.'" Shmueli v. City of N.Y., 424 F.3d 231, 236 (2d Cir. 2005) (quoting Imbler v. Pachtman, 424 U.S. 409, 431 (1976)). This immunity "protects a prosecutor . . . for virtually all acts, regardless of motivation, associated with his function as an advocate." Dory v. Ryan, 25 F.3d 81, 83 (2d Cir. 1994).

Here, Maye alleges that the defendants misrepresented evidence and conducted themselves in an unprofessional manner during his criminal proceedings. (See Am. Compl. ¶¶ 27-37, 94-123). These allegations are insufficient as Schwenker, Carusone, Ferguson and Davenport were acting as advocates for the State when the injurious conduct occurred. See Dory, 25 F.3d at 83 (stating that prosecutorial immunity would apply even if the prosecutor conspired to present false evidence).

Likewise, Maye's claims against Wappett, his public defender is also unavailing.8 "In order to state a claim under [42 U.S.C.] § 1983, a plaintiff must allege that he was injured by either a state actor or a private party acting under color of state law." Ciambriello v. Cnty. of Nassau, 292 F.3d 307, 323 (2d Cir. 2002) (citation omitted). However, it is axiomatic that a public defender, representing an indigent client, is not acting "under color of state law." Polk Cnty. v. Dodson, 454 U.S. 312, 321 (1981).

Notwithstanding the liberal pleading requirements afforded to Maye, he has failed to state causes of action against Schwenker, Carusone, Ferguson, Davenport, and Wappett. As such, defendants' motions to dismiss are granted and all claims against Schwenker, Carusone, Ferguson, Davenport, and Wappett, in their individual capacities, are dismissed.

D. Statute of limitations for § 1983 claims

Finally, defendants York, Stockdale, Harpp, Alison, Lail, Adams, Cernak, Peterson, and Sauder assert that Maye's claims against them are, inter alia, time barred. (See Dkt. Nos. 30, Attach. 3 at 5; 66, Attach. 2 at 4.) Although the court's analysis varies slightly, as Adams, Cernak, Peterson, and Sauder are federal agents, it concurs with defendants that Maye's claims are untimely.

In New York, actions for false imprisonment brought pursuant to § 1983 are subject to the general or residual statute of limitations for personal injury actions, i.e., three years from the date of injury. See Owens v. Okure, 488 U.S. 235, 251 (1989); N.Y. C.P.L.R. § 214(5) (McKinney 1997). Where an existing conviction is not implicated, "a false imprisonment [claim accrues] once the victim becomes held pursuant to [legal] process-when, for example, he is bound over by a magistrate or arraigned on charges." Wallace v. Kato, 549 U.S. 384, 389-90 (2007)(emphasis in original).

Here, Maye's allegations against York, Stockdale, Harpp, Alison, and Lail stem from his alleged false imprisonment from August 11, 2005 to September 9, 2005; the time he was held at the jail prior to his arraignment in Queensbury Town Court. (See Am. Compl. ¶¶ 19-22, 72-81.) Because Maye's claims do not implicate an existing conviction, his causes of action for false imprisonment accrued on September 9, 2005, the date he was arraigned, and became time barred on September 9, 2008.

Similarly, Maye's claims against Adams, Cernak, Peterson, and Sauder are also untimely. Bivens actions are the federal analog to a 42 U.S.C. § 1983 action against state actors, and the constitutional standard of review is the same for either type of action. See Chin v. Bowen, 833 F.2d 21, 24 (2d Cir.1987). Accordingly, a Bivens action, arising in New York, is subject to a three-year statute of limitations. Tapia-Ortiz v. Doe, 171 F.3d 150, 151 (2d Cir. 1999).

Here, Maye's allegations against Adams, Cernak, Peterson, and Sauder, all of whom are federal agents, stem from the August 11, 2005 traffic stop. (See Am. Compl. ¶¶ 7, 128-139.) Though imprecisely pleaded, Maye's contention is that Adams, Cernak, Peterson, and Sauder used "trickery" during the undercover drug sting that resulted in his arrest. (Id.) Irrespective of whether this conduct actually violated Maye's rights, his cause of action became ripe on August 11, 2005, the date of the alleged wrongdoing, and expired on August 11, 2008. See Tapia-Ortiz, 171 F.3d at 151; N.Y. C.P.L.R. § 214(5).

As such, York, Stockdale, Harpp, Alison, Lail, Adams, Cernak, Peterson, and Sauder's motions to dismiss are granted, and all claims against them are dismissed.

E. Lack of personal involvement

Although captioned as defendants in this case, Maye's Amended Complaint fails to allege any direct participation in the acts alleged, or personal involvement as supervisors by Bethel, York and Davenport. This failure provides an alternative basis for dismissal for Bethel, York and Davenport. See, e.g., Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir.1995).

F. Remaining defendants

In light of this memorandum-decision and order, Maye's claims against defendants Habshi, Frettoloso, Conine, Schwartz, and Morrison have not been dismissed. Nonetheless, as Maye is proceeding in forma pauperis, the court is required to review the Amended Complaint for any action that, inter alia, "fails to state a claim on which relief may be granted." 28 U.S.C. § 1915(e)(2)(B)(ii).

Here, the claims against Habshi, Frettoloso, Conine, Schwartz, and Morrison stem from the illegal search and seizure of Maye on August 11, 2005. (See Am. Compl. ¶¶ 7-16, 38-71, Dkt. No. 9.) Although federal law determines the accrual date—which in the context of search and seizure is the date of the alleged wrongdoing—these claims are still subject to New York's three year statute of limitations for unspecified personal injury claims. See Wallace, 549 U.S. at 397; Owens, 488 U.S. at 251; N.Y. C.P.L.R. § 214(5). Applying this statute of limitations to the causes of action against the remaining defendants, it appears that, absent a valid toll, the claims are untimely.

Though the court possesses the authority to dismiss these claims sua sponte, fairness dictates that Maye be given notice and an opportunity to respond to the deficiencies in his claims. See Abbas v. Dixon, 480 F.3d 636, 639-40 (2d Cir. 2007). Accordingly, he may submit a supplemental brief addressing only the timeliness of his claims against the remaining defendants. This supplemental brief must: (1) state the applicable tolling provision; (2) cite authority for the toll; and (3), be received no later than 30 days from the date of this memorandum-decision and order. Nevertheless, if Maye fails to provide this briefing, his causes of action against the remaining defendants may be dismissed.

V. Conclusion

WHEREFORE, for the foregoing reasons, it is hereby

ORDERED that Maye's motion to clarify portions of the 50-h hearing transcript (Dkt. No. 5) is DENIED; and it is further

ORDERED that Maye's motion for reconsideration (Dkt. No. 59) is DENIED; and it is further

ORDERED that Maye's motion to deny the relief sought by defendants Adams, Cernak, Peterson, and Sauder (Dkt. No. 73) is DENIED; and it is further

ORDERED that New York State's motion to dismiss (Dkt. No. 24) is GRANTED with prejudice and all claims against New York State are DISMISSED; and it is further

ORDERED that Schwenker's motion to dismiss (Dkt. No. 28) is GRANTED and all claims against Schwenker are DISMISSED; and it is further

ORDERED that Alison, Carusone, Davenport, Ferguson, Harpp, Hogan, Lail, Stockdale, Wappett, and York's motion to dismiss (Dkt. No. 30) is GRANTED and all claims against them are DISMISSED; and it is further

ORDERED that Alison, Carusone, Davenport, Ferguson, Harpp, Hogan, Lail, Stockdale, Wappett, and York's motion to reject the affidavit of Tamisha Graves (Dkt. No. 74) is DENIED as moot; and it is further

ORDERED that Adams, Cernak, Peterson, and Sauder's motion to dismiss (Dkt. No. 66) is GRANTED and all claims against them are DISMISSED; and it is further

ORDERED that defendants State of New York, Bethel, Adams, Cernak, Peterson, Sauder, York, Stockdale, Harpp, Alison, Lail, Hogan, Carusone, Ferguson, Schwenker, Davenport, and Wappett are TERMINATED as parties; and it is further

ORDERED that should Maye wish to do so, he may, in accordance with the rules, file a supplemental brief addressing only the timeliness of his claims against defendants Habshi, Frettoloso, Conine, Schwartz, and Morrison within thirty (30) days of the receipt of this memorandum decision-order; and it is further

ORDERED that the Clerk provide a copy of this Memorandum-Decision and Order to the parties by mail and certified mail.

IT IS SO ORDERED.