Robinson vs. Bloomberg et al

Filing 4

MEMORANDUM AND ORDER, granting Pltff's 2 Motion for Leave to Proceed in forma pauperis. However, for the reasons set forth below, the complaint is dismissed. Pltff is granted leave to replead within 30 days of the date of this memorandum and order. Pltff's new pleading shall be labeled, "Amended Pleading," and shall contain factual allegations to support his claims of a conspiracy to retaliate against him. Pltff is advised that if he fails to file the Amended Complaint wi thin the time allowed or to plead sufficient facts, this action will be dismissed. The Court certifies pursuant to 28 USC sec. 1915(a)(3) that any appeal from this order would not be taken in good faith and therefore in forma pauperis status is denied for purpose of an appeal. (Ordered by Judge Sandra L. Townes on 5/17/2012) c/m (Galeano, Sonia)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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DAVID ROBINSON , JR .,

Plaintiff,
-againstMICHAEL BLOOMBERG, Mayor, NYC;
RAYMOND KELLY, Commissioner NYPD·
ANDREA EVANS, Chairwoman, NYs Division of
Parole; NEW YORK CITY POLICE DEPARTMENT;
NEW YORK STATE DIVISION OF PAROLE·
CITY OF NEW YORK; STATE OF NEW YORK;
CARL ROBINSON, Detective, 100th Pet.;
CHERYL ROBINSON, Government Agent;
HOLLIS RUSH, Government Agent; TOM DAVIS,
Government Agent; and RAYMOND TERRY, Jr.,
Government Agent, in their individual and official
capacities,

FILED

IN CLERK'S OF"tJU
US OISTRJCTCOUI'-'Ir f ,-

*

MAY 1 B 2012

BROOKLYN

c .. ·

MEMORANDUM AND ORDER
12-CV-2178 (SLT) (LB)

Defendants.

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TOWNES, United States District Judge:
Plaintiff David Robinson, Jr., proceeding prose, brings this civil rights action against the
12 above-captioned defendants, principally alleging that these defendants are subjecting him to

unlawful surveillance in retaliation for his bringing a prior lawsuit. Plaintiffs request to proceed
in forma pauperis pursuant to 28 U.S.C. § 1915 is granted. However, for the reasons set forth

below, the complaint is dismissed. Plaintiff is granted leave to replead within 30 days of the date
of this memorandum and order.

BACKGROUND
Since plaintiffs complaint principally alleges First Amendment retaliation in connection
with a prior lawsuit, this Court will take judicial notice of facts relating to that action: Robinson
v. State of New York, N.D.N.Y. Docket No. 09-CV-455 (GLS/RFT) (hereafter, the "Prior

Action"). The following facts are drawn from the complaint in that case (the "Prior Complaint")
and from the opinions issued in the Prior Action.
On May 13,2005, plaintiff was convicted in the Supreme Court of the State ofNew
York, New York County, of criminal possession of a weapon in the second degree in violation of
N.Y. Penal Law §265.03 and assault in the third degree in violation of N.Y. Penal Law §120.00
(Prior Complaint at ,-r1 0). State Supreme Court Justice Yates sentenced plaintiff to a determinate
term of five years' imprisonment for the weapon offense, and to a concurrent one-year definite
term of imprisonment for the assault (id.). Since the weapon offense was a felony, Justice Yates
also sentenced plaintiff to a statutorily required five-year term of post-release supervision
("PRS") (id.)
Justice Yates did not impose any specific conditions with respect to the PRS (id.).
However, the State Division of Parole ("Parole") subsequently "imposed/forced" conditions on
plaintiff(id. at ~11), such as submitting to "home visits" and "drug testing" (id. at ~13). On
September 19,2008, plaintiff submitted an "Official Notice/Request" to George Alexander, who
was then the Chairman of Parole, informing him that "his policy of imposing conditions ...
[was] unconstitutional" and "requesting that he honor plaintiffs Constitutional Rights and not
impose conditions ... " (id. at ~12). The Prior Complaint did not allege whether Alexander ever
responded.
On March 19, 2009, plaintiff reported to his new parole officer, who imposed new

conditions relating to his rights to own, possess or operate a motor vehicle or computer (id. at
~14).

When plaintiff refused to agree to these conditions, he was "threatened" by the parole

officer and a supervisor, who informed plaintiff that the conditions had been promulgated by

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their Bureau Chief (id.). The parole officer then confiscated plaintiffs "license/state
identification" (id. at ~16).
In April2009, plaintiff commenced the Prior Action in the United States District Court
for the Northern District of New York against the State of New York, Parole Chairman
Alexander, plaintiffs parole officer, the supervisor and the Bureau Chief, alleging that these
defendants violated his Constitutional rights by imposing conditions on his release to parole
supervision. The Prior Complaint alleged, inter alia, that the defendants had violated (1) the
Double Jeopardy Clause of the Fifth Amendment; (2) the Confrontation Clause of the Sixth
Amendment; (3) the Eighth Amendment right to be free from cruel and unusual punishment; (4)
the Equal Protection Clause of the Fourteenth Amendment; and (5) substantive and procedural
due process. In addition, the Prior Complaint alleged that the defendants had conspired to violate
plaintiffs rights. The defendants moved for judgment on the pleading pursuant to Fed. R. Civ.
P. 12(c) and plaintiff cross-moved for swnmary judgment pursuant to Fed. R. Civ. P. 56.
In an unpublished 32-page opinion dated March 26, 2010, United States District Judge
Gary L. Sharpe denied plaintiffs motion for summary judgment and dismissed most of plaintiff's

claims. Judge Sharpe discussed parole at length, noting, among other things, that "a parolee
'possess[es] fewer constitutional rights' than ordinary citizens." Robinson v. New York State,
No. I :09-cv-455 (GLS/RFT), slip op. at 11 (N.D.N.Y. Mar. 26, 2010) (quoting United States v.
Polito, 583 F.2d 48, 54 (2d Cir. 1978)), and that New York law imbued Parole with broad

authority to impose conditions of parole. !d. at 11-13. In dismissing plaintiff's conspiracy
claims, Judge Sharpe stated:

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To .m~intain an action for conspiracy under 42 U.S.C. § 1983, "a
plamttff must demonstrate that a defendant acted in a wilful
manner, culminating in an agreement, understanding or 'meeting of
the minds,' that violated the plaintiffs rights ... secured by the
Constitution or the federal courts." Maish v. Austin, 901 F. Supp.
757, 763 (S.D.N.Y. 1995) (internal quotation marks and citation
omitted); see also Duvall v. Sharp, 905 F.2d 1188, 1189 (8th Cir.
1990) ("To plead conspiracy, a complaint must allege specific facts
suggesting that there was a mutual understanding among the
conspirators to take actions directed toward an unconstitutional
end." (citation omitted)). "A complaint containing only conclusory,
vague, or general allegations of conspiracy to deprive a person of
constitutional rights cannot withstand a motion to dismiss."
Sommer v. Dixon, 709 F.2d 173, 175 (2d Cir. 1983).

!d. at 27.
On June 22, 2011, Judge Sharpe granted the defendant's motion for summary judgment
with respect to plaintiffs remaining claims and dismissed the Prior Action. Robinson v. New
York State, No. I :09-cv-455 (GLS/RFT), slip op. (N.D.N.Y. June 22, 2011). Plaintiff promptly

appealed to the Second Circuit, where that appeal is still pending.

The Instant Complaint
On May 1, 2012, plaintiff filed this prose action pursuant to 42 U .S.C. § 1983. This
action names 12 defendants, who can be grouped into three categories. First, plaintiff sues three
State defendants: the State of New York, its Division of Parole, and the Chairwoman of Parole,
Andrea Evans. Second, plaintiffs complaint names four City defendants: the City of New York
and its mayor, Michael Bloomberg, and the New York City Police Department ("NYPD") and its
commissioner, Raymond Kelly. Third, plaintiffs complaint also names as defendants five
individuals- including plaintiff's brother, Detective Carl Robinson, and plaintiffs sister, Cheryl
Robinson- who are alleged to be "government agents."

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Plaintiffs complaint (the "Complaint") principally alleges "that Chairwoman Evans/NYS
Division of Parole, Mayor Bloomberg/City ofNew York, Commissioner Raymond Kelly, and the
NYPD pledged a covenant to engage in a conspiracy to retaliate" against plaintiff for the Prior
Action "by conducting unlawful surveillance." Complaint at ~17. According to plaintiff, this
"campaign of retaliation has been orchestrated by the Evil Empire, commanded by Dark Society
(ILLUMINATI or whatever you call it)." !d. at ,-rt6 (emphasis in original). The object of the
alleged conspiracy is not only to "punish" plaintiff for bringing the Prior Action, but to "hinder
his ability to litigate his case," to "orchestrate an illegal incarceration," to "harass," and to
"intimidate family and friends." Jd. at ~17.
The alleged surveillance takes several forms. First, the Complaint alleges that "[o]ne
phase of the conspiracy is to recruit and activate agent provocateurs," including plaintitrs
brother and sister and the other three individual defendants. !d. at 18. According to the
Complaint, "[t]hese agents' objectives are to infiltrate, conduct surveillance, record, defame,
provoke, entrap, sabotage, [and] assassinate among other things." !d. However, the Complaint
does not specify any acts actually performed by these alleged "government agents."
Second, the Complaint "contends that [plaintitrs] residence, computer, cell and residence
telephones are being subjected to electronic eaves dropping [sic]." !d. at ~19. Plaintiff does not
allege the facts that led him to this conclusion. Third, the Complaint alleges that plaintiff is
"under 24 hour surveillance by agents who conduct actions that place plaintiffs' [sic] safety in
danger," id, but does not identify any of the agents or specify their "actions."
Indeed, the only specific factual allegations contained in the Complaint does not relate to
plaintiff. The Complaint alleges:
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During the month of February 2012, it was revealed that the New
York City Police Department conducted investigations and
surveillance upon Muslims across state lines in New Jersey and
upon the Honorable Reverend [sic] AI Sharpton. Mayor
Bloomberg publically condoned said actions.
!d. at ~16. However, the Complaint, which alleges that plaintiff resides in Rosedale, New York,

does not allege that plaintiff is a Muslim or was subjected to surveillance in the course of this
investigation. Rather, the Complaint baldly alleges that "[t]here is no dispute that Mayor
Bloomberg, Commissioner Raymond Kelly, and the New York City Police Department practice a
policy of investigating anyone, anywhere and especially activist[s] who seek any form of redress
[from] ... New York State and/or New York City .... " !d. (bracketed material added).
The Complaint alleges three causes of action, all of which are nearly identical. The first
cause of action alleges that "defendants conspired to retaliate upon plaintiff ... in violation of the
First, Fifth, Fourteenth Amendments, 42 U.S.C. §§ 1983, 1985 and 18 U.S. C. 241,242, 1503."
The second cause of action alleges that "defendants conspired to conduct unlawful investigation
and surveillance upon plaintiff ... in violation of the Fourth, Fifth, Fourteenth Amendments, 42
U.S.C. §§ 1983, 1985 and 18 U.S.C. 241,242, 1503." The third cause of action allegesthat
"defendants conducted a campaign of conspiracy ... in violation of the Fifth, Fourteenth
Amendments, 42 U.S. C.§§ 1983, 1985 and 18\.i.S.C. 241,242, 1503." The Complaint seeks
declaratory relief, compensatory damages and punitive damages.
DISCUSSION

Title 28, section 1915(e)(2), of the United States Code provides that "[n]otwithstanding
any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at
any time if the court determines that ... the action ... fails to state a claim on which relief may
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be granted· · · ." To state a claim, "a complaint must contain sufficient factual matter, accepted
as true, to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 570 (2007). "A claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
In evaluating whether a pleading states a claim for relief, "'a court must accept as true all
[factual] allegations contained in a complaint" but need not accept 'legal conclusions.'"

Halebian v. Berv, 590 F.3d 195, 203 (2d Cir. 2009) (quoting Iqbal, 556 U.S. at 678).
"Threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice." Iqbal, 556 U.S. at 678 Moreover, the "[f]actual allegations must be
enough to raise a right to relief above the speculative level," and to nudge a plaintiffs claims
"across the line from conceivable to plausible." Twombly, 550 U.S. at 555, 570.
Pro se complaints, like other pleadings, must contain sufficient factual allegations to meet
the plausibility standard. See Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009). However, "[a]
document filed pro se is 'to be liberally construed,' ... and 'a pro se complaint, however
inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by
lawyers."' Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97,
I 06 (1976)). Thus, a court must read a prose complaint with "special solicitude," Routolo v.
I.R.S., 28 F .3d 6, 8 (2d Cir. 1994), and must interpret it to raise the strongest claims it suggests.

See Triestman v. Fed. Bureau of Prisons, 470 F.3d 471,474-75 (2d Cir. 2006). "[U]nless the
initial complaint excludes all doubt as to whether plaintiff can allege facts sufficient to state a
claim, [the Second Circuit requires] district courts to grant leave to replead to satisfy the dictates
of Rule 8 [of the Federal Rules of Civil Procedure]." See lwachiw v. New York City Bd. of
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Elections, 126 Fed, Appx, 27, 28-29 (2d Cir. 2005) (citing Haines v. Kerner, 404 U.S. 519, 52021 (1972); Platsky v. C.I.A., 953 F.2d 26, 29 (2d Cir.I991)).
In this case, the Complaint is utterly devoid of factual allegations relating to plaintiff.
Indeed, aside from the first 15 paragraphs- which identify the parties to the action- the
Complaint contains only one non~conclusory allegation, which relates to the NYPD's
investigations and surveillance of Muslims in New Jersey. Based on this fact alone, plaintiff
asserts that the NYPD, its Commissioner, and Mayor Bloomberg have a "policy of investigating
anyone, anywhere ... who seek[s] any form of redress" not only from the City ofNew York, but
from the State ofNew York as well. Complaint at ~16. Since plaintiffs Prior Action named as
defendants the State of New York, the then-chairman of the State Division of Parole and three
Parole officers, plaintiff assumes that Parole and the current chairwoman of Parole are also part
of the "conspiracy." !d. at ~17. The Complaint does not allege any facts whatsoever to
substantiate the allegations of this conspiracy.
The Complaint also fails to allege any facts in support of the claim that the individual
defendants are "agent provocateurs," recruited and activated by the conspirators. The Complaint
does not allege what actions, if any, these individuals have taken in furtherance of their nefarious
"objectives." In addition, the Complaint does not allege any facts to support plaintiffs
contention that his "residence, computer, ... and ... telephones are being subjected to electronic
eaves dropping [sic]," or that he is under constant physical surveillance. !d. at ~19.
In sum, the Complaint does not contain factual allegations that "raise a right to relief
above the speculative level." Twombly, 550 U.S. at 555. Even if it were conceivable that Mayor
Bloomberg, Commissioner Kelly and Chairwoman Evans would take such extraordinary (and
expensive) measures to retaliate against plaintiff, whose Prior Action was largely dismissed at a

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preliminary stage, there is nothing in the Complaint to nudge a plaintitr s claims "across the line
from conceivable to plausible." !d. at 570. Accordingly, plaintifrs Complaint fails to state a
claim on which relief may be granted and the Complaint must be dismissed. See id., 28 U.S.C.
§1915( e)(2)(B)(ii).

This Court has serious doubts as to whether plaintiff, if granted leave to replead, would
be able to allege facts sufficient to state a claim. Indeed, some of the allegations in the
Complaint suggest that plaintitrs claims are frivolous. For example, the Complaint alleges that
the "campaign of retaliation" against him and others is "orchestrated by the Evil Empire,
commanded by Dark Society (ILLUMINATI or whatever you call it)," Complaint at ,-r16
(emphasis in original), and that the objectives of the "agent provocateurs"- including plaintiffs
own siblings- include entrapment, sabotage and assassination. !d. at ,-rt8. Moreover, this Court
is uncertain whether any "surveillance" of which plaintiff has knowledge is related to plaintiffs
status as a parolee. However, this Court cannot say that plaintitrs initial complaint excludes all
doubt as to whether plaintiff can allege facts sufficient to state a retaliation claim. Accordingly,
this Court will grant plaintiff leave to replead. See Iwachiw, 126 Fed. Appx. at 28-29; P/atsky,
953 F.2d at 29.

CONCLUSION
For the reasons set forth above, plaintifrs Complaint fails to state a claim on which relief
may be granted and is dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). Plaintiff is, however,
granted leave to replead within 30 days of the date of this memorandum and order. Plaintiffs
new pleading shall be labeled, "Amended Pleading," and shall contain factual allegations to
support his claims of a conspiracy to retaliate against him. Plaintiff is advised that if he fails to
file the Amended Complaint within the time allowed or to plead sufficient facts, this action will

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be dismissed. The Court certifies pursuant to 28 U.S.C. §1915(a)(3) that any appeal from this
order would not be taken in good faith and therefore in forma pauperis status is denied for
purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).

SO ORDERED.

_V'_
I SANDRA L. TOWNES

United States District Judge
Dated: Broo1~n, New York
MayJ. 2012

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