Hester-Bey v. Police Department

Filing 5

MEMORANDUM AND ORDER: Plaintiff's 2 request to proceed in forma pauperis is granted pursuant to 28 U.S.C. § 1915. The New York City Police Department is dismissed from this action. Plaintiff is granted 30 days from the da te of this Order to file an amended complaint to name a proper defendant(s). The amended complaint must be captioned as an "Amended Complaint," name all defendants in the caption, and bear the same docket number as this Order. If plainti ff fails to file an amended complaint, judgment dismissing this action without prejudice shall be entered. No summons shall issue at this time and all further proceedings shall be stayed for 30 days. 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 purpose of an appeal.SO ORDERED by Judge Kiyo A. Matsumoto, on 9/24/2012. C/mailed to pro se Plaintiff. (Party Police Department terminated.) (Latka-Mucha, Wieslawa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
______________________________________________________ ----J{
MEMORANDUM AND ORDER
12-CV -3320 (KAM)

DAVID HESTER-BEY,
Plaintiff,
-againstPOLICE DEPARTMENT,
Defendant.
______________________________________________________ -----J{
MATSUMOTO, United States District Judge.

On July 2, 2012,pro se plaintiff David Hester-Bey filed this action alleging false arrest.
The Court liberally construes the action as being brought pursuant to 42 U.S.C. § 1983 against the
New York City Police Department. Plaintiff s request to proceed in forma pauperis is granted
pursuant to 28 U.S.C. § 1915. For the reasons discussed below, the New York City Police
Department is dismissed from this action and plaintiff is granted thirty (30) days from the date of
this Order to file an amended complaint.
STANDARD OF REVIEW

Pro se complaints are held to less stringent standards than pleadings drafted by attorneys
and the Court is required to read the plaintiffs' pro se complaint liberally and interpret it as raising
the strongest arguments it suggests. Erickson v. Pardus, 551 U.S. 89 (2007); Hughes v. Rowe, 449
U.S. 5,9 (1980); Sealed Plaintiffv. Sealed Defendant #1,537 F.3d 185, 191-93 (2d Cir. 2008).
Moreover, at the pleadings stage of the proceeding, the Court must assume the truth of "all wellpleaded, nonconclusory factual allegations" in the complaint. Kiobel v. Royal Dutch Petroleum
Co., 621 F.3d 111, 123 (2d Cir. 2010) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009)). A
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complaint must plead sufficient facts to "state a claim to relief that is plausible on its face." Bell
At!. Corp. v. Twombly, 550 U.S. 544, 570 (2007). However, 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."

BACKGROUND
Plaintiff brings this action for false arrest alleging that on June 21,2011, he was falsely
arrested and "was charged with swallowing drugs/obstruct[ing] evidence." Compi. at 1. Plaintiff
states that he was accused of swallowing heroine and was taken to a hospital to have his stomach
pumped, but drugs were not recovered from his body. Id. Plaintiff further states that on July 2,
2011, he was arrested again and charged with swallowing cocaine. Id. Plaintiff alleges that he

was also taken to the hospital on this occasion to have his stomach pumped and again no drugs
were found. Compo at 1-2. Plaintiff seeks unspecified damages. Compi. at 2.

DISCUSSION
Plaintiffs complaint may not proceed as presented. Section 1983 provides that an action
may only be maintained against a "person" who has deprived another of rights under the
"Constitution and Laws." 42 U.S.C. §1983. The New York City Police Department is not a
"person" within the meaning of section 1983 and is therefore, not a suable entity. Campbell v.
New York City Police, No. 05 CV 2858, 2005 WL 1970954, at *1 (E.D.N. Y. Aug. 10, 2005) (the
New York City Police Department is not a proper party under § 1983).

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LEAVE TO AMEND
In light of this Court's duty to liberally construe pro se complaints, plaintiff is granted
thirty (30) days leave from the date of this order to file an amended complaint to name a proper
defendant(s). Cruz v. Gomez, 202 F.3d 593 (2d Cir. 2000). Plaintiff is advised that pursuant to
Rule 8 of the Federal Rules of Civil Procedure, a plaintiff must provide a short, plain statement of
claim against each defendant named so that they have adequate notice of the claims against them.
Iqbal, 556 U.S. at 677-79 (2009) (Rule 8 "demands more than an unadorned, the-defendantunlawfully-harmed-me accusation."). A plaintiff must provide facts sufficient to allow each
named defendant to have a fair understanding of what the plaintiff is complaining about and to
know whether there is a legal basis for recovery. See also Bell Atlantic Corp, 550 U.S. at 544
(2007).
CONCLUSION
Accordingly, the New York City Police Department is dismissed from this action. Plaintiff
is granted thirty (30) days from the date of this order to file an amended complaint to name a
proper defendant(s). Plaintiff is directed that his amended complaint must comply with Rule 8(a)
of the Federal Rules of Civil Procedure and must specify dates and facts supporting the personal
involvement of each named defendant. If plaintiff cannot identify the individual( s) by name at this
time, he may name "John Doe" defendants and provide a physical description for each, along with
his or her place of employment.
The amended complaint must be captioned as an "Amended Complaint," name all
defendants in the caption, and bear the same docket number as this Order. If plaintiff fails to file
an amended complaint, judgment dismissing this action without prejudice shall be entered.

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No summons shall issue at this time and all further proceedings shall be stayed for thirty
(30) days. 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 purpose of an appeal.
Coppedge v. United States, 269 U.S. 438, 444-45 (1962).

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SO ORDERED.

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/S/

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KIYO A. MATSUMOTO
United States District Judge
Dated: Brooklyn, New York
~rt~2'-1) 2012

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