Johnson v. Dunn et al

Filing 11

MEMORANDUM AND ORDER, Pltff's 9 Motion for reargument or reconsideration of the Court's order dismissing the City of NY and its agencies from this action is DENIED. The Court certifies pursuant to 28 USC sec. 1915(a)(3) that any appeal from this order would not be taken in good faith an therefore in forma pauperis status is denied for the purpose of an appeal. (Ordered by Judge Eric N. Vitaliano on 6/21/2012) c/m

UNITED ST A TLOS DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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NOT FOR PUBLICATION

PHILIP JOHNSON,
Plaintiff',
-againstCITY OF NEW YORK, Corporation domg
business as New York City !lousing Authority,
JOHN DOE number one alias known as New
York City Housing Authority employee,
Police Department of City of New York
JOHN DOE number two alias known as
Police Department C1ty ofNew York
employee, JANE DOE nwnber one alias known
as Police Department City of New York
employee, 105 Precinct, New York Cit}
Depanmenl of Corrections,

MEMORA~DCM

AND ORDER
12-CV -2484 (ENV) (!,B)

BROOKi.YN 0T=FICE

Dcfend;mts.

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VlT ALIANO, United States District Judge:
On May 17,2012, plaintiffPhilipJohnson, appearingpro se, filed thisactionagainstdefendants
pursuant to42 U.S.C. § 1983.28 U.S.C. §§ 2671-80.5 U.S.C. § 552a, 28 U.S.C. § 1400. Plaintill.also
filed an order to show cause, to "enjoin defendants .

from barring plaintiff from returning to his

home by removing the padlock(s) ... so that plaintiff can have access to his home and property ..
By order dated May 17, 2012, the Coun granted plaintiff's request to proceed in forma pauperis, denied
the order to show caus-e, and di<mlissed the complaint as to the City ofNew York, the ]\;ew York City
Housing Authority. the New York City Police Department. and the New York City Department of
Correction. The complaint as to the indh·idual defendants was allowed to proceed. On June 18, 2012,
plaintiff filed a motion to reargue the dismissals. The motion is denied as set forth bela".

Standard of Review
Generally, motions for reconsideration are not granted "unless the moving party can point to
controlling de<:isions or data that the court overlooked- matters, in other words, that might rea.~onably
be expected to alter the conclusion reached by the court." Shrader v CSX Transp .. Inc .. 70 F.3d 255,
257 (2d Cir. 1995) (citations omitted). Dtstrict courts apply this rule strictly to dissuade rt":petitive
argurnenL~

on issues that have already been fully considt":red by the court. Commercial Union Ins. Co.

v. Blue Water Yacht Club Ass'n. 289 F.Supp.2d 337, 340 (E.D.N. Y. 2003). Consequently, a motion
to reconsider should not be granted where the moving party seeks solely to relitigate an issue already
decided. Shrader, 70 F.3d at257.
Discussi(ln
Plaintiff makes n(l allegations that would reqmre this Court to reconsider its previous order.
Plaintifl's request is based on his <:!aim that "at least seven constables and one !lou.,mg Authority
employee were at the scene ofthc event" and that none of"thcm recognized the 'New York abandoned
property law· or laws from the 1\ew York Senate regarding ·adverse possession,' which shows a blatant
disregard for said laws or improper training by the respective agencies_ ... " Pl. Motion at 1. Plaintiff
contends that these allegations demonstrate a custom or practice justifying imposition ol' municipal
liability. But even assuming plaintiffs new allegations had been included in his complaint, they would
fail to set forth facts which could plausibly make the City of New York or the New York City Housing
Authority liable. See Monell v. [)ep't oF Social Servs oi'City of New York., 436 U.S. 658, 692 (1978);
~also

Connick v Thompson. 131 S.Ct. 1350, 1359 (2011); Chin v. New York Cirv Housing

Authority. 575 F. Supp. 2d 554, 561 (S.O.KY. 2008). !\either the mere recitation of a failure to train
municipal employees nor of a single incident like that here is sufficient to raise an inference or the
existence of a Cllstom, policy, or practice. ~ ~ Citv of Oklahoma City"- Tunle 471 U.S. 808,
2

823-24 (1985). Further, as pre,iously set forth, city agencies such as the New York City Police
Department and the New York City Department of Correction lack the capacity to be sued. Xi mines
v. George Wingate High Sch., 516 F. 3d !56, 160 (2d Cir. 2008); Jenkins v. City ofNew York. 478 F.3d

76,93 n.l9 (2d Cir. 2007) (NYPD not a suable entity): Adam<; v. Galletta, 966 F.Supp.210, 212
(E.D.N.Y. 1996) (DOC not a suable entity)_
Conclu.sion
Accordingly, plaintill's motion for reargument or reconsideration of the Court's order
dismissing the City of New York and its agencies fi'om th1s action is DENIED. The Court certifies
pursuant to 28 U.S.C. § l915(a)(3) that any appeal from this order would not be taken in good filithand
therefore in forma pauperis status is denied for the purpose of an appeaL Coppedge v. United States,
369 U.S. 438,444-45 (1962)
SO ORDERED.

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r.KtL N. VI! ALIANO
United States District Judge

Dated: June 21.
Brooklyn. New York

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