DECISION and ORDER I. INTRODUCTION On August 26, 2022, plaintiff Richie Foster Levine (“Levine” or “plaintiff”), acting pro se, filed this 42 U.S.C. §1983 action against Judge Donald G. Cannon (“Judge Cannon”), Bank of America CDFI Funding Corporation (“Bank of America”), and defendant Patrick Babiarz (“Babiarz” or “defendant”). Dkt. No. 1. Plaintiff’s complaint alleges that his constitutional rights were violated when he was arrested and subsequently convicted for writing a “bad check” to the Mapledale Market to pay for groceries in 1997. Plaintiff’s complaint alleged claims for (1) violation of his right to counsel; (2) unlawful search and seizure; (3) false arrest; (4) malicious prosecution; (5) fabrication of evidence; and (6) malicious abuse of process. Id. The case was initially assigned to Senior U.S. District Judge Gary L. Sharpe. On October 25, 2022, U.S. Magistrate Judge Daniel J. Stewart conducted an initial review of the complaint and issued a Report and Recommendation (“R&R”) recommending dismissal of Judge Cannon and Bank of America as well as dismissal of the bulk of plaintiff’s claims against Babiarz. Dkt. No. 8. Judge Sharpe adopted in part and rejected in part this R&R on June 7, 2023. Dkt. No. 10. In particular, Judge Sharpe dismissed Judge Cannon on the basis of judicial immunity and Bank of America because Levine conceded that, as a private business, it was an improper party in this §1983 action. Dkt. No. 10. However, Judge Sharpe instructed plaintiff to file a supplemental response addressing the timeliness of his false arrest, unlawful search, unlawful seizure, and abuse of process claims. Id. On July 7, 202, Levine filed a supplemental response in accordance with Judge Sharpe’s instructions. Dkt. No. 11. Upon review of plaintiff’s responsive filing, Judge Sharpe dismissed plaintiff’s false arrest, unlawful search, unlawful seizure, and abuse of process claims as untimely. Dkt. No. 12. Accordingly, only plaintiff’s malicious prosecution and fabrication of evidence claims remained pending against Babiarz. Id. Thereafter, plaintiff completed service on defendant. Dkt. No. 14, 24, 29. On February 29, 2024, Babiarz moved pursuant to Federal Rule of Civil Procedure (“Rule”) 12(b)(6) to dismiss Levine’s claims. Dkt. No. 35. The motion has been fully briefed and will be considered on the basis of the submissions without oral argument. Dkt. Nos. 35, 37, 39. II. BACKGROUND This case is about a “bad check” drafted from Levine’s bank account to pay for groceries in late 1997. According to plaintiff, he and his wife opened a bank account with Fleet Bank at 5950 Main Street in Remsen, New York in September 1997. Compl. 23. On or about November 19, 1997, plaintiff and his wife visited Mapledale Market in Barneveld, New York. Compl. 24. That day, the couple paid for their groceries by check. Id. Plaintiff’s wife wrote a check in the amount of $64.88 and signed plaintiff’s name. Id. The store accepted plaintiff’s check and plaintiff and his wife received their groceries. Id. But later, when the store submitted the check to Fleet Bank for payment it was returned for insufficient funds in plaintiff’s checking account. Id. 25. On January 2, 1998, Fleet Bank issued a Certificate of Protest (the “Certificate”) to all parties. Compl. 27. The Certificate stated that the bank would not pay on plaintiff’s check because he had insufficient funds in his account. Id. Later, on January 9, 1998, Babiarz spoke with Fleet Bank officials regarding Levine’s check. Compl. 28. Defendant then provided information to the police recounting the day that plaintiff wrote the check in question to pay for groceries at the Mapledale Market. Defendant signed a written witness statement on January 13, 1998. Id. 30. That day, Levine was arrested at his home in Trenton County, New York for “issuing a bad check” in violation of §190.10. Compl.
32-33. Plaintiff was handcuffed and transported to the Town of Trenton Court where he was fingerprinted and arraigned. Id.
