Boadi v. City of New York et al
MEMORANDUM DECISION AND ORDER, granting Pltff's 2 Motion for Leave to Proceed in forma pauperis and his claims against NYC, NYC Police Dept. ("NYPD"), and Asst. District Atty Kami Gordon-Sommers are dismissed. No summons shall issue as to these defts. Pltff is given 21 days' leave to amend his complaint to correct deficiencies in his malicious prosecution claim against all defts. Failure to correct these deficiencies w/in 21 days will result in dismissal of pltff's ma licious prosecution claim against all defts. The amended complaint must be captioned as an "Amended Complaint," name all defts in the caption except NYC; NYC Police Dept.; and Gordon-Sommers, and bear the same docket number as this Order. Pltff's false arrest claims against defts Det. William Greer, James M. Williams, Larry A. Olinsky, Det. Ryan and Det. Moy may proceed. The Clerk of the Court is directed to issue a summons against these defts and the US Marshals Service is direc ted to serve the complaint and this Order on defts without prepayment of fees. A courtesy copy of the same documents shall also be served on the Corp. Counsel for the City of NY, Special Federal Litigation Division. 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 Brian M. Cogan on 5/29/2012) c/m by chambers. (Galeano, Sonia)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
MAY 3 0 2012
,?. .y~ C!M
DECISION AND ORDER
-againstCITY OF NEW YORK; NEW YORK CITY
POLICE DEPARTMENT; DET. WILLIAM
GREER; JAMES M. WILLIAMS; LARRY
OLINSKY, DET. RYAN; DET. MOY; ADA
KAMI GORDON-SOMMERS, 1
12 Civ. 2456 (BMC)
COGAN, District Judge.
Plaintiff filed this prose action pursuant to 42 U.S.C. § 1983 alleging false arrest and
malicious prosecution. Plaintiffs request to proceed in forma pauperis is granted pursuant to 28
U.S.C. § 1915 and his claims against New York City, New York City Police Department
("NYPD"), and Assistant District Attorney Kami Gordon-Sommers are dismissed. Plaintiffs
claims against defendants Detective William Greer, James M. Williams, Larry A. Olinsky,
Detective Ryan and Detective Moy may proceed as set forth below.
The complaint is minimal. Plaintiff was indicted by a Kings County grand jury for a
robbery that occurred on August 18,2007, in Brooklyn; he was acquitted at trial in June 2009.
His statement of claim states in its entirety:
Plaintiff only lists the City of New York and the New York City Police Department in the caption of his
complaint, but adds the five individuals listed here in the parties section of his complaint.
Despite the fact defendants were cognizant of exculpatory evidence such as: .
Bayonne, New Jersey toll bridge receipt and plaintiffs cellphone record, ?rovrng
he (Eric Boadi) was not in New York city on August 18,2007- when Alvtdad
Associates (Western Union) check cashing on 4401 New Utrecht B[roo]klyn, NY,
which was robbed at gun point, he (Eric Boadi) was fals[e ]ly arrested without
probable cause and maliciously prosecuted.
Plaintiff was indicted by Kings County grand jury and was a[ c]quitted at trial in June
Plaintiff seeks $15 million in monetary damages.
Under 28 U.S.C. § 1915 (e)(2)(B), a district court shall dismiss an in forma pauperis
action where it is satisfied that the action is "(i) 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." A complaint fails to state a claim on which relief can be granted if, taking all
allegations contained in the complaint to be true, it appears beyond doubt that the plaintiff can
prove no set of facts in support of his claim that would entitle him to relief. Shakur v. Selsky,
391 F. 3d 106, 112 (2d Cir. 2004).
However, a court must construe a prose litigant's pleadings liberally, see Chavis v.
Chappius, 618 F.3d 162, 171 (2d Cir. 2010), especially when those pleadings allege civil rights
violations. See Erickson v. Pardus, 551 U.S. 89, 94, 127 S. Ct. 2197 (2007); Sealed Plaintiffv.
Sealed Defendant #1, 537 F.3d 185, 191-93 (2d Cir. 2008). A prose complaint should not be
dismissed without granting a prose plaintiffleave to amend "at least once when a liberal reading
of the complaint gives any indication that a valid claim might be stated." Gomez v. USAA Fed.
Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999) (per curiam).
Although courts must read prose complaints with "special solicitude" and interpret them
to raise the "strongest arguments that they suggest," Triestman v. Fed. Bureau of Prisons, 470
F.3d 471,474-76 (2d Cir. 2006) (internal quotation marks omitted), a complaint must plead
enough facts to state a claim to relief that is ''plausible on its face." Bell Atl. Com. v. Twombly,
550 U.S. 544, 570, 127 S. Ct. 1955 (2007). "A claim has facial plausability 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,- U.S.-, 129 S. Ct. 1937, 1949 (2009)
(citation omitted). While "detailed factual allegations" are not required, "[a] pleading that offers
'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action will not
do."' !d. (quoting Twombly, 550 U.S. at 555).
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).
Plaintiff's Claims Against the NYPD
The NYPD is a non-suable agency of the City. Jenkins v. City ofNew York, No. 06-
CV-0182, 2007 WL 415171, at* II 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, which states
that "[a]ll 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")). Therefore, the complaint against the NYPD is dismissed for
failure to state a claim upon which relief can be granted. See 28 U.S.C. § !915(e)(2)(B)(ii).
Plaintifrs Claims against the City of New York
To sustain a claim for relief under Section 1983 against a municipal defendant such as the
City of New York, a plaintiff must show the existence of an officially adopted policy or custom
that caused injury and a direct causal connection between that policy or custom and the
deprivation of a constitutional right. Bd. of County Comm'rs of Bryan Countv. Okl. v. Brown,
520 U.S. 397,403, 117 S. Ct. 1382 (1997)(citing Monell v. NYC Dep't of Soc. Servs., 436 U.S.
658, 98 S. Ct. 2018 (1978)). Proof of a single incident of unconstitutional activity is not
sufficient to impose liability on a municipality unless proof of the incident includes proof that it
was caused by an existing, unconstitutional municipal policy that can be attributed to a municipal
policymaker. Oklahoma City v. Tuttle, 471 U.S. 808, 823-24, 105 S. Ct. 2427 (1985). Here,
plaintiff does not allege, and nothing in his complaint suggests, that any of the allegedly
wrongful acts described in his complaint were attributable to a municipal policy or custom.
Accordingly, there does not appear to be any basis for suing the City of New York. Plaintiff's
claim against the City of New York is therefore dismissed for failure to state a claim on which
relief may be granted. See 28 U.S. C.§§ 1915(e)(2)(B)(ii).
Plaintifrs Claims Against the Prosecutor
Plaintiffs claim against Assistant District Attorney Kami Gordon-Sommers is dismissed
because prosecutors enjoy absolute immunity from civil suits for acts committed within the
scope of their official duties where the challenged activities are not investigative in nature, but
rather are "intimately associated with the judicial phase of the criminal process." Imbler v.
Pachttnan, 424 U.S. 409, 430, 96 S. Ct. 984 (1976); see also Doe v. Phillips, 81 F.3d 1204 (2d
Cir. 1996); Dory v. Ryan, 25 F.3d 81 (2d Cir.1994). As the Second Circuit has held, "[b]ecause
the immunity attaches to the official prosecutorial function ... and because the initiation and
pursuit of a criminal prosecution are quintessential prosecutorial functions ... the prosecutor has
absolute immunity for the initiation and conduct of a prosecution 'unless he proceeds in the clear
absence of all jurisdiction."' Shmueli v. City of New York, 424 F.3d 231, 237 (2d Cir. 2005)
(quoting Barr v. Abrams, 810 F.2d 358, 361 (2d Cir. 1987). See also Buckley v. Fitzsimmons,
509 U.S. 259,274 n. 5, 113 S. Ct. 2606 (1993) (acknowledging that absolute immunity shields a
"prosecutor's decision to bring an indictment, whether he has probable cause or not"); Pinaud v.
County of Suffolk, 52 F.3d 1139, 1149 (2d Cir. 1995) (holding district attorneys absolutely
immune from claim for malicious prosecution); Hill v. City ofNew York, 45 F.3d 653, 660-61
(2d Cir. 1995) (holding prosecutors and those working under their direction absolutely immune
for initiating prosecution). Thus, since plaintiffs claims against defendant Kami GordenSommers pertain to plaintiff's prosecution and criminal trial, she is absolutely immune from suit
in this action. Plaintiff's claim against her is therefOre dismissed for failure to state a claim on
which relief may be granted. See 28 U.S.C. §§ 1915(e)(2)(B)(ii).
Plaintiff's Malicious Prosecution Claim Against All Defendants
Plaintiff fails to state a claim for malicious prosecution against any of the defendants.
Malicious prosecution claims brought under Section 1983 are "substantially the same" as
malicious prosecution claims under New York state law. Jocks v. Tavernier, 316 F.3d 128, 134
(2d Cir. 2003). To state a claim for malicious prosecution under New York law, the plaintiff
must sufficiently allege the following four elements: (1) the defendant initiated or continued a
criminal proceeding; (2) the proceeding terminated favorably to the plaintiff; (3) there was no
probable cause for the criminal charge; and (4) the defendant acted maliciously. Rothstein v.
Carriere, 373 F.3d 275,282 (2d Cir. 2004); Savino v. City of New York, 331 F.3d 63,72 (2d Cir.
Plaintiff alleges that he was indicted by a Kings County grand jury. When a plaintiff was
indicted by a grand jury, New York law provides for a "presumption of probable cause for the
purposes of defending against a malicious prosecution claim," Green v. Montgomery, 219 F .3d
52, 60 (2d Cir. 2000). The existence of probable cause is a complete defense to a claim of
malicious prosecution. Savino, 331 F .3d at 72. This presumption of probable cause "may only
be rebutted by evidence that the indictment was procured by 'fraud, perjury, the suppression of
evidence or other police conduct undertaken in bad faith."' Id. (quoting Colon v. City of New
York, 60 N.Y.2d 78, 83, 468 N.Y.S.2d 453, 456,455 N.E.2d 1248 (1994)). Although plaintiff
alleges that there was no probable cause for his arrest, he does not explain the circumstances
leading to his arrest and indictment, so there is no way for this Court to determine whether
probable cause existed. Moreover, plaintiff has not alleged that the defendants committed fraud,
perjury, or any other misconduct surrounding his prosecution.
Plaintiff also does not allege that the defendants acted maliciously. See Weaver v. City
ofNew York, No. 09-CV-10262, 2011 WL 4974570, at *7 (S.D.N.Y. Oct. 18, 2011) ("The
Complaint's failure to allege actual malice ... is a separate and independent basis to dismiss the
malicious prosecution claim."). Although plaintiff asserts that the defendants prosecuted him
despite having knowledge of exculpatory evidence, plaintiff does not allege that the defendants
pursued this case for any reason other than a genuine disagreement with plaintiff over the
meaning or the relevance of this allegedly exculpatory evidence.
In light of this Court's duty to liberally construe prose complaints, plaintiff may amend
his complaint within 21 days to correct the deficiencies in his malicious prosecution claim. See
Cruz v. Gomez, 202 F.3d 593 (2d Cir. 2000); Fed. R. Civ. P. 15(a)(2). If the amended complaint
fails to correct these deficiencies, or if plaintiff fails to amend his complaint within 21 days, the
malicious prosecution claim shall be dismissed pursuant to 28 U.S.C. §§ 1915(e)(2)(B).
Accordingly, plaintiffs claims against defendants New York City; New York City Police
Department; and Gordon-Sommers are dismissed under 28 U.S.C. §§ 1915(e)(2)(B). No
summons shall issue as to these defendants.
Plaintiff is given 21 days' leave to amend his complaint to correct the deficiencies in his
malicious prosecution claim against all defendants. Failure to correct these deficiencies within
21 days will result in dismissal of plaintiff's malicious prosecution claim against all defendants.
The amended complaint must be captioned as an "Amended Complaint," name all defendants in
the caption except New York City; New York City Police Department; and Gorden-Sommers,
and bear the same docket number as this Order.
Plaintiff's false arrest claim against the remaining defendants- Detective William Greer,
Shield# 17751; James M. Williams and Larry A. Olinsky of Command 0580; and Detectives
Ryan and Moy of the 66th Precinct- may proceed. The Clerk ofthe Court is directed to issue a
summons against these defendants and the United States Marshals Service is directed to serve the
complaint and this Order on defendants without prepayment of fees. A courtesy copy of the
same documents shall also be served on the Corporation Counsel for the City of New York,
Special Federal Litigation Division. 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. Coppedge v. United States, 369 U.S. 438,444-45,82
S. Ct. 917 (1962).
Dated: Brooklyn, New York
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