Antonetti v. John Doe et al

Filing 4

MEMORANDUM & ORDER: Carlos A. Antonetti's 2 Motion for Leave to Proceed In Forma Pauperis is GRANTED. Plaintiff's complaint against New York City Police Commissioner Raymond Kelly and New York City Mayor Michael Bloomber g is DISMISSED. His claims against John Doe may proceed, and, to facilitate this, a copy of this Order shall be served on the Special Litigation Division of the Law Department. The case is respectfully referred to the Magistrate Judge Lois Bloom f or pretrial supervision. The Court certifies pursuant to that any appeal from this Order would not be taken in good faith. SO ORDERED by Judge Nicholas G. Garaufis, on 7/2/2012. C/mailed to pro se Plaintiff. (Parties: Police Commissioner Raymond W. Kelly; Mayor Michael R. Bloomberg terminated.) (Latka-Mucha, Wieslawa)

FILEoyJF
IN CLERK'S OFFICE
U.S. DISTRIcT cOURT E.D.N.Y.

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

i::

JUL 0 2 2012

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BROOKLYN OFFICE

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CARLOS A. ANTONETTI,

MEMORANDUM & ORDER
Plaintiff.
12-CV- 56 (NGG) (LB)

-againstDETECTIVE JOHN DOE, 104th Police
Precinct; POLICE COMMISSIONER
RAYMOND W. KELLY; MAYOR
MICHAEL R. BLOOMBERG
Defendants.

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NICHOLAS G. GARAUFIS, United States District Judge.
Plaintiff Carlos A. Antonetti, who is pro se, requests leave to proceed in fonna pauperis
("IFP"). (See Docket Entry # 2.) That motion is GRANTED, but Antonetti's complaint is
DISMISSED as against New York City Police Commissioner Raymond Kelly and New York
City Mayor Michael Bloomberg. He may. however. proceed to serve the other, currently
unknOwri,

defendant once that defendant is identified by the City of New York.

In considering whether to grant a plaintiffleave to proceed IFP, a district court must
dismiss all claims that clearly fail to state a claim upon which be granted. See 28 U.S.C.
§ 1915(e)(2)(B)(ii).
Here, Antonetti has named Kelly and Bloomberg as defendants, but his complaint--even
read liberally, see Triestman v. Federal Bureau of Prisons, 470 F.3d 471, 474-76 (2d Cir.
2006}--fails to assert any semblance of a valid claim against them. Antonetti alleges that he was
assaulted by an unknown detective at a station house in Queens, New York. (See Compl.

(Docket Entry # 1) at 4-5.) He does not allege that Kelly or Bloomberg were directly or
personally involved in the assault, nor does he allege any other conduct on their part that could
conceivably form the basis for liability.
The complaint does, however, allege facts sufficient to justify service of process on the
unknown detective named in the complaint. Antonetti alleges that this detective, whose badge
number is alleged to be 7896, struck him without cause while on the job with the New York City
Police Department. (See Comp1. at 5.) In other words, he alleged, although not necessarily
properly pled, an actionable constitutional tort. Cf. Graham v. Connor, 490 U.S. 386, 388 (1989)
(holding that claims that law enforcement officials have used excessive force in the course of "an
arrest, investigatory stop, or other 'seizure' of [a] person" implicate the Fourth Amendment of
the United States Constitution, and recognizing that such claims may be brought under § 1983).
In accordance with the learning of Valentin v. Dinkins, 121 F.3d 72 (2d. Cir. 1997) (per
curiam), the court directs the New York City Law Department to ascertain within twenty days of
this order the full name and service address of the detective whose badge number is alleged to be
7896. The Law Department need not undertake to defend or indemnify this individual at this
juncture. Once this information is provided, Antonetti's complaint shall be deemed amended to
reflect the full name of the defendant, a summons shall be issued, and the court shall direct
service on the defendant.
Antonetti's complaint against Kelly and Bloomberg is DISMISSED. His claims against
John Doe may proceed, and, to facilitate this, a copy of this order shall be served on the Special
Litigation Division of the Law Department. The case is respectfully referred to the Magistrate
Judge Lois Bloom for pretrial supervision. The court certifies pursuant to that any appeal from
2

this order would not be taken in good faith.
SO ORDERED.

/S/
MCHOLAS G. GARAUFIS
United States District Judge

Dated: Brooklyn, New York
July~, 2012

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