Sommerville v. NYPD et al

Filing 9

MEMORANDUM AND ORDER, granting plaintiff's motion to proceed in forma pauperis. Plaintiff's claims against defendant NYPD are dismissed with prejudice. No summons shall issue as to this defendant; and it is further ORDERED that plaintiff's claims against Confidential Informant # 06-001752, Detective Faye, and Mr. Guevara are dismissed for failure to state a claim. No summons shall issue as to these defendants. The United States Marshals Service is directed to serve the summons and complaint upon Detective John Wright and Sergeant Kelly, without prepayment of fees. It is further ORDERED that this case be referred to the Honorable Joan M. Azrack, United States Magistrate Judge, for pretrial supervisi on. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal would not be taken in good faith and therefore in forma pauperis status is denied for the purpose of any appeal. SO ORDERED by Judge Kiyo A. Matsumoto, on 2/29/2012. C/mailed. (Latka-Mucha, Wieslawa)

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* FEB 29 2012 *
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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NOT FOR PUBLICATION

WESLEY SOMMERVILLE,
MEMORANDUM AND ORDER

Plaintiff,
-against-

12-CV-00165 (KAM) (JMA)

NYPD et al., Detective LINDSEY FAYE
# 2459, Detective JOHN WRIGHT #6196,
Sgt. KELLY, Tax No. 897780,
C.I. #06-001752, MICHAEL GUEVARA,
Defendants.

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MATSUMOTO, United States District Judge:

On December 2, 2011, plaintiff Wesley Sommerville, who
is currently incarcerated at Sing Sing Correctional Facility,
filed this pro se action pursuant to 42 U.S.C.

1983 against

§

"NYPD et al.,"l Detective Lindsey Faye, Detective John Wright,
Sergeant Kelly,2 "CI #06-001752,"3 and Michael Guevara
(collectively, "defendants"), in the United States District
Court for the Southern District of New York and requested to
proceed in forma pauperis pursuant to 28 U.S.C.

§

1915.

order dated January 12, 2012, pursuant to 28 U.S.C.

§§

By
1391(b)

and 1404(a) the action was transferred to the Eastern District

The court construes this name as referring to the New York City Police
Department ("NYPD").
2 Plaintiff did not include a given name for this defendant.
3 Plaintiff's complaint indicates that "CI" is an abbreviation for
"Confidential Informant."
1

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of New York because a substantial part of plaintiff's claims
arose in Brooklyn, New York.
The court grants plaintiff's motion to proceed in
forma pauperis.

In addition, for the reasons set forth below,

plaintiff's claims against Detective Wright and Sergeant Kelly
may proceed, but his claims against the NYPD is dismissed
because the NYPD is not a suable entity and his claims against
Confidential Informant #06-001752, Detective Faye, and Mr.
Guevara are dismissed for failure to state a claim.
BACKGROUND

The following facts are drawn from plaintiff's
complaint and taken as true for purposes of this order.

On

December 12, 2006, Sergeant Kelly confiscated plaintiff's car.
(ECF No.2, Complaint ("Compl.") at 3.)

At that time, Detective

Wright informed plaintiff that he could call a given phone
number to determine whether the car was stolen or contained
stolen parts.

(Id. )

Plaintiff "called [the number]

approximately one year."

for

(Id. )

On November 16, 2007, plaintiff "went to meet up with
the detectives" and was arrested, although the case "was
ultimately dismissed [on] November 23, 2009."

(Id. )

On

December 2, 2009, he received a "District Attorney release" for

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his car.

(Id. )

When plaintiff attempted to retrieve the car,

however, it could not be found.

(Id.)

After conducting an

investigation, personnel at the "vehicle seizure unit" informed
plaintiff that the car had been "given to the owner" in 2010.
(Id. )

Plaintiff alleges that the defendants violated his
Fourth and Fourteenth Amendment rights by stopping, searching,
and seizing his vehicle without probable cause or a warrant.
(Id. )

Plaintiff claims that his injuries include "stress and

mental anguish" and pain in his hip and back "from walking and
carrying all of [his] stuff from the precinct."

(Id. )

Plaintiff seeks compensation for the loss of his car and the
"business that [he] lost because of this case," and punitive
damages and criminal prosecution against certain defendants for
entrapment and falsifying a report, for a total of "$500,000.00
for all of these damages."

at 5.)

(Id.

DISCUSSION
I .

Standard of Revi.ew
A. Dismi.ssa1 of Prisoner Action

Under 28 U.S.C.

§

1915A, a district court "shall

review, before docketing, if feasible or, in any event, as soon
as practicable after docketing, a complaint in a civil action in

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which a prisoner seeks redress from a governmental entity or
employee of a governmental entity."

28 U.S.C.

§

1915A(a).

Upon

review, a district court shall dismiss a prisoner 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. § 1915A(b).

B. Dismissal of an In For.ma Pauperis Action

Similarly, a district court shall dismiss an in forma
pauperis action where it is satisfied that the action "(i) is

frivolous or malicious;

(ii) fails to state a claim on which

relief may be granted; or (iii) seeks monetary relief against a
defendant who is immune from such relief."
§

1915(e) (2) (B).

28 U.S.C.

An action is "frivolous" when either:

(1) "the

factual contentions are clearly baseless, such as when
allegations are the product of delusion or fantasy"; or (2) "the
claim is based on an indisputably meritless legal theory."
Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437

Cir. 1998)
Kelly,

(internal quotation marks omitted)

(2d

(quoting Nance v.

912 F.2d 605, 606 (2d Cir. 1990)).
At the pleadings stage of the proceeding, the Court

must assume the truth of "all well-pleaded, nonconclusory
factual allegations" in the complaint.
Petroleum Co.,

Kiobel v. Royal Dutch

621 F.3d 111, 124 (2d Cir. 2010)

4

(citing Ashcroft

v. Iqbal, --- U.S.---, 129 S.Ct. 1937, 1949-50 (2009)).

To

survive dismissal, however, a complaint must plead sufficient
facts to "state a claim to relief that is plausible on its
face."

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
C. Pro Se Submissions

It is axiomatic that pro se complaints are held to
less stringent standards than pleadings drafted by attorneys and
that the court is required to read the plaintiff's pro se
complaint liberally and interpret it as raising the strongest
arguments it suggests.
165, 167 (2d Cir. 2011).

United States v. Akinrosotu, 637 F.3d
Although the court applies these less

stringent standards in analyzing plaintiff's claims, the court
also notes that a "pro se plaintiff is not relieved of pleading
requirements, and failure to plead the basic elements of a cause
of action may result in dismissal."

Andino v. Fischer,

698 F.

Supp. 2d 362, 376 (S.D.N.Y. 2010); Pandozy v. Segan, 518 F.
Supp. 2d 550, 554

(S.D.N.Y. 2007)

("[P]ro se status does not

relieve a plaintiff of the pleading standards otherwise
prescribed by the Federal Rules of Civil Procedure.")
II.

The New York Police Department is Not a Suable Entity

The court dismisses the complaint against the New York
City Police Department ("NYPD") because the NYPD is not a suable
entity.

Section 396 of the New York City Charter provides that

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"[aJll actions and proceedings for the recovery of penalties for
the violation of any law shall be brought in the name of the
city of New York and not in that of any agency, except where
otherwise provided by law."

N.Y. City Charter

§

396 (2009).4

"Section 396 of the Charter has been construed to mean that New
York City departments, as distinct from the City itself, lack
the capacity to be sued."

Ximines v. George Wingate High Sch.,

516 F.3d 156, 160 (2d Cir. 2008); see, e.g., Jenkins v. City of
New York,

478 F.3d 76, 93 n.19 (2d Cir. 2007)

(NYPD not a suable

entity).

Therefore, because the NYPD cannot be sued, the

complaint is dismissed as to the NYPD pursuant to 28 U.S.C.
§

1915A(b).
III. Sufficiency of the P1eadinqs as to Section 1983 C1aim
A. P1eadinq Standard

In relevant part, 42 U.S.C.

§

1983 ("Section 1983")

provides that:
Every person who,
under color of any
statute, ordinance, regulation, custom, or
usage, of any State
subjects, or
causes to be subjected, any citizen of the
Uni ted States or other person wi thin the
jurisdiction thereof to the deprivation of
any
rights,
privileges,
or
immunities
secured by the Constitution and laws,
shall be liable to the party injured in an
This prOVlSlon is accessible at
http://www.nyc.gov/html/charter/downloads/pdf/citycharter2009.pdf (last
visited February 29, 2012).
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action at law, suit in equity,
proper proceeding for redress .

or

other

Section 1983 itself does not create any substantive rights;
rather, it provides a procedural mechanism for redressing the
deprivation of rights created by the Constitution or laws of the
United States.

Sykes v. James,

13 F.3d 515, 519 (2d Cir. 1993)

(citing City of Oklahoma City v. Tuttle,

471 U.S. 808, 816

(1985)).
To state a cognizable claim under Section 1983,
plaintiffs must allege that "(1) the challenged conduct was
attributable at least in part to a person who was acting under
color of state law and (2) the conduct deprived the plaintiff of
a right guaranteed under the Constitution of the United States."
Weiss v. Inc. Viii.

of Sag Harbor, 762 F. Supp. 2d 560,

568 (E.D.N.Y. 2011)

(quoting Snider v. Dylag, 188 F.3d 51,

53 (2d Cir. 1999)).
B . Application

Liberally construing the complaint and accepting
plaintiff's well-pleaded allegations as fact, the court finds
that the complaint fails to state a Section 1983 claim against
Confidential Informant #06-001752, Detective Faye, or Michael
Guevara.

It appears that plaintiff is suing all defendants for

the unreasonable search and seizure of his vehicle, but
plaintiff nowhere alleges that Detective Faye, Confidential

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Informant #06-001752, or Mr. Guevara played any role in causing
the search or seizure.

Plaintiff's speculation whether Michael

Guevara is Confidential Informant #06-001752 is insufficient to
state a claim.

In fact, the complaint does not assert any

wrongs allegedly committed by any of these three defendants.
Therefore, the claims against Confidential Informant #06-001752,
Detective Faye, and Mr. Guevara must be dismissed for failure to
state a claim.
Cir. 2010)

See Johnson v. Barney, 360 F. App'x 199, 201 (2d

(affirming dismissal of Section 1983 claims because

plaintiff "failed to allege sufficient personal involvement on
[defendant's] part to make him liable under [Section] 1983");
Aguiar v. Terrell, No. 11-CV-3944, 2011 WL 3665170, at *1

(E.D.N.Y. Aug. 19, 2011)

(dismissing Section 1983 claim against

defendant because plaintiff failed to "allege facts to support a
claim that [defendant] had any personal involvement in the
alleged deprivation of plaintiff's civil rights").
CONCLUSION

For the foregoing reasons, plaintiff's claims against
the NYPD are dismissed because the NYPD is not a suable entity.
In addition, plaintiff's claims against Detective Faye,
Confidential Informant #06-001752, and Mr. Guevara are dismissed
for failure to state a claim.

Accordingly, it is hereby:

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ORDERED that plaintiff's claims against defendant NYPD

are dismissed with prejudice.

See 28 U.S.C.

§

1915 (e) (2) (B).

No summons shall issue as to this defendant; and it is further
ORDERED that plaintiff's claims against Confidential

Informant #06-001752, Detective Faye, and Mr. Guevara are
dismissed for failure to state a claim.

See id.

No summons

shall issue as to these defendants; and it is further
ORDERED that the United States Marshals Service is

directed to serve the summons and complaint upon Detective John
Wright and Sergeant Kelly, without prepayment of fees; and it is
further
ORDERED that the Clerk of Court shall mail a courtesy

copy of the same papers to the Corporation Counsel of the City
of New York, Special Federal Litigation Division, and note
service on the docket; and it is further
ORDERED that the Clerk of the Court shall mail a

courtesy copy of this Memorandum and Order to the plaintiff and
note service on the docket; and it is further
ORDERED that this case be referred to the Honorable

Joan M. Azrack, United States Magistrate Judge, for pretrial
supervision.
The court certifies pursuant to 28 U.S.C.

§

1915(a) (3)

that any appeal would not be taken in good faith and therefore

9

," r·
in forma pauperis status is denied for the purpose of any
appeal.

Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
SO ORDERED.
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KIYO A. MATSUMOTO
United States District Judge

Dated: February 29, 2012
Brooklyn, New York

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