Bess v. New York City Police Department et al

Filing 4

MEMORANDUM AND ORDER: Plaintiff's 2 request to proceed in forma pauperis is granted pursuant to 28 U.S.C. § 1915 and his claims against defendants New York City Police Department and the defendants "unknown cab/livery ser vice company" and "unknown cab/livery service driver" are dismissed. No summons shall issue as to these defendants. Plaintiff's complaint against the remaining defendants may proceed. Pursuant to Valentin v. Dinkins, 12 1 F.3d 72 (2d. Cir. 1997) (per curiam), Corporation Counsel is hereby requested to produce the information specified herein regarding the identities and service addresses of the arresting officers within 20 days of this Order. Once this information is provided, plaintiff's complaint shall be deemed amended, summonses shall be issued and the Court shall direct service on the defendants. A copy of this Order shall be served on the Special Litigation Division of the Corpora tion Counsel. The case is referred to the Honorable Lois Bloom, United States Magistrate Judge, for pretrial supervision. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good fait h. SO ORDERED by Judge William F. Kuntz, II on 11/2/2011. C/mailed to pro se Plaintiff and Corporation Counsel via first class mail. (Parties: New York City Police Department; Unknown Cab/Livery Service Driver; and Unknown Cab/Livery Service Company terminated.) (Latka-Mucha, Wieslawa)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

___________________________________x

IN CLEHK'$ OFFlCfc
u.S. D 'STRICT en' iRf r· O.NY
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-Ie NOV 0 2 2011
CURTIS BESS,

*

BROOKLYN OFFICE
Plaintiff,
-againstNEW YORK CITY POLICE DEPARTMENT;
JOHN DOE ARRESTING DETECTIVE #1,
Caucasian (heavyset, 5' 10" Homicide Unit);
JOHN DOE ARRESTING DETECTIVE #2;
Caucasian (medium build, 5'5" Homicide Unit);
UNKNOWN CABILIVERY SERVICE
DRIVER (crashed in N.Y.P.D. vehicle);
UNKNOWN CABILIVERY SERVICE
COMPANY,
Defendants.

MEMORANDUM
AND ORDER
ll-CV -5205 (WFK)(LB)

___________________________________x
William F. Kuntz, II, United States District Judge:
Plaintiff, currently incarcerated at Rikers Island Correctional Facility, filed this pro se

action pursuant to 42 U.S.C. § 1983, claiming that on the date of his arrest, September 16,2011,
as he was being transported to the precinct, he was injured and refused medical treatment when
the police vehicle in which he was traveling was involved in a traffic accident with defendant
taxi or livery cab. Plaintiff sues the arresting officers, the New York City Police Department, the
cab or livery driver and the driver's employer. Plaintiffs request to proceed in forma pauperis is
granted pursuant to 28 U.S.C. § 1915 and his claims against New York City Police Department
(NYPD) and the cab or livery driver and company are dismissed. Plaintiffs claims against the
arresting officers may proceed as set forth below.
Standard of Review
Under 28 U.S.C. § 1915A, a district court "shall review, before docketing, if feasible or,

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in any event, as soon as practicable after docketing, a complaint in a civil action in which a
prisoner seeks redress from a governmental entity or officer or employee of a governmental
entity." 28 U.S.C. § 1915A. Upon review, a district court shall dismiss a prisoner's complaint
sua sponte if the complaint is "frivolous, malicious, or fails to state a claim upon which relief
may be granted; or seeks monetary relief from a defendant who is immune from such relief." Id.;
Liner v. Goord. 196 F.3d 132, 134 & n.l (2d Cir. 1999) (noting that under PLRA, sua sponte
dismissal of frivolous prisoner complaints is not only permitted but mandatory); see also TapiaOrtiz v. Winter, 185 F.3d 8, 11 (2d Cir. 1999); 28 U.S.C. § 1915(e)(2). The Court construes
plaintiffs pleadings liberally particularly because they allege civil rights violations. Erickson v.
Pardus, 551 U.S. 89, 94 (2007); Sealed Plaintiffv. Sealed Defendant #1,537 F.3d 185, 191-93
(2d Cir. 2008).

Discussion
To prevail on a Section 1983 claim, a plaintiff must show: (1) the deprivation of any
rights, privileges, or immunities secured by the Constitution and its laws; (2) by a person acting
under the color of state law. See 42 U.S.C. § 1983. "Section 1983 itself creates no substantive
rights; it provides only a procedure for redress for the deprivation of rights established
elsewhere." Sykes v. James, 13 F.3d 515, 519 (2d Cir. 1993).

A. 42 U.S.C. § 1983 Claim Against New York City Police Department Dismissed
The NYPD is a non-suable agency of the City. Jenkins v. City of New York, No.
06CV0182, 2007 WL 415171, at *11 n. 19 (2d Cir. Feb. 6, 2007) (citing Wray v. City of New
York, 340 F. Supp. 2d 291,3030 (E.D.N.Y. 2004) (quoting N.Y.C. Charter § 396 ("All actions
and proceedings for the recovery of penalties for the violation of any law shall be brought in the

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name of the city of New York and not in that of any agency, except were otherwise provided by
law.")). Therefore, the complaint against the NYPD is dismissed for failure to state a claim upon
which relief can be granted. 28 U.S.C. § 1915A.

B.

42 U.S.C. § 1983 Claim against Private Defendants Dismissed

Plaintiff names as defendants "Unknown CablLivery Service Driver" and "Unknown
Cab/Livery Service Company" Neither of these private parties, regardless of their actual names,
act under color of state law within the meaning of 42 U.S.C. § 1983. Private conduct, no matter
how discriminatory or wrongful, is generally beyond the reach of § 1983. Academy v.
Tennessee, 531 U.S. 288, 304-05 (2001) (discussing whether athletic association was state actor
within reach of § 1983); Rendell-Baker v. Kohn, 457 U.S. 830, 838-42 (1982) (affirming
dismissal of § 1983 claim because defendants not state actors); Flagg Bros. Inc. v. Brooks, 436
U.S. 149, 155-57 (1978) (stating § 1983 reaches only deprivations of rights by persons acting
under color oflaw); Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 173 (1972) (distinguishing
private conduct from state action). Therefore, plaintiff fails to state a claim against defendants
unknown cab/livery service company or its driver involved in the September 16, 2011 accident,
and the 42 U.S.C. § 1983 claims against them are dismissed for failure to state a claim on which
relief may be granted. 28 U.S.C. § 1915(e)(2)(B)(ii).
C. John Doe Arresting Detectives

Plaintiff has, however, alleged facts sufficient to proceed against the two "John Doe
Arresting Detectives" employed by the 67th Precinct Homicide Unit who were in the police
vehicle with him on September 16, 2011 and allegedly refused him medical treatment after the
accident. Pursuant to Valentin v. Dinkins, 121 F.3d 72 (2d. Cir. 1997)(per curiam), the Court

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requests that Corporation Counsel ascertain the full names and service addresses of the detectives
who were involved in plaintiffs arrest on September 16,2011. Corporation Counsel need not
undertake to defend or indemnify these individuals at this juncture. This order merely provides a
means by which plaintiff may name and properly serve the defendants as instructed by the Second
Circuit in Valentin.
Corporation Counsel is hereby requested to produce the information specified above
regarding the identities and service addresses of the September 16, 2011 arresting detectives and the
within twenty days of this Order. Once this information is provided, plaintiffs complaint shall be
deemed amended to reflect the full names of the defendants, summonses shaH be issued and the
Court shall direct service on the defendants.

Conclusion
Accordingly, plaintiffs complaint against defendants New York City Police Department
and the defendants "unknown cab/livery service company" and "unknown cab/livery service
driver" is dismissed. 28 U.S.C. §§ 1915A;1915(e)(2)(B)(ii). No summons shall issue as to these
defendants.
Plaintiffs complaint against the remaining defendants may proceed. Pursuant to Valentin
v. Dinkins, 121 F.3d 72 (2d. Cir. 1997) (per curiam), Corporation Counsel is hereby requested to
produce the information specified above regarding the identities and service addresses of the
arresting officers within twenty days of this Order. Once this information is provided, plaintiffs
complaint shall be deemed amended reflect the full names of the defendants, summonses shall be
issued and the Court shall direct service on the defendants. A copy of this Order shall be served on
the Special Litigation Division of the Corporation Counsel. The case is referred to the Honorable
Lois Bloom, United States Magistrate Judge, for pretrial supervision. The Court certifies pursuant
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to 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith.
Coppedge v. United States, 369 U.S. 438, 444-45 (1962).

SO ORDERED.

/S/
illiam F. Kuntz,
United States Distri

Dated: Brooklyn, New York

A/vt'J.rr

..:2-,2011

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