Askew v. Three (3) Officers of the NYPD et al
Filing
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MEMORANDUM AND ORDER, granting Pltff's 2 Motion for Leave to Proceed in ot bforma pauperis. The Clerk of Court shall send a copy of this order and the complaint to the NYC Law Dept. and a copy of this Order to pltff. No summonses shall issue at this time. Accordingly, the complaint, filed in forma pauperis, is dismissed as to the City of NY and Kelly pursuant to 28 USC sec. 1915(e)(2)(B). However, the Court grants pltff leave to file an amended complaint within 30 days in support of a cl aim against these defts as set forth above. If pltff fails to file an amended complaint w/in 30 days, the complaint shall proceed solely as to the three officers allegedly involved in the 9/17/12 stop and frisk as identified by the Corporation Counse l. 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 Eric N. Vitaliano on 9/26/12) c/m (Galeano, Sonia)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_________________________________X
BROOKLYN OFFICE
TIMOTHY ASKEW,
MEMORANDUM
AND ORDER
12-CV-4773 (ENV)(SMG)
Plaintiff,
-againstTHREE (3) OFFICERS OF THE N.Y.P.D.,
AND THE CITY OF NEW YORK; RAY
KELLY, Police Commissioner,
T
Defendants.
_________________________________X
VITALIANO, D.J.
On September 21, 2012, plaintiff filed the instant in forma pauperis complaint prose alleging
the police illegally stopped and searched him on September 17, 2012. 1 Plaintiff seeks damages and
unspecified "declaratory and injunctive relief." Plaintiffs application to proceed in forma pauperis
under 28 U.S.C. § 1915 is hereby granted. The Clerk of Court shall send a copy of this order and the
complaint to the New York City Law Department and a copy of this Order to plaintiff. No summonses
shall issue at this time.
STANDARD OF REVIEW
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
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This is plaintiffs fifth case alleging illegal stops by the police. Plaintiff filed another
action on the same day, Askew v. Two Officers of theN. Y.P.D., 12-cv-4775 (ENV)(SMG) and
has filed four prior actions making similar allegations: Askew v. Three Police Officers, 12-cv3796 (ENV)(SMG); Askew v. One Sergeant of theN. Y.P.D., 11-cv-2412 (ENV)(SMG); Askew v.
Six Officers of theN. Y.P.D., ll-cv-4275 (ENV)(SMG); Askew v. Three Officers of the N. Y.P.D.,
11-cv-4276 (ENV)(SMG). All are pending.
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 I 06, 112 (2d
Cir. 2004).
However, a court must construe a pro se litigant's pleadings liberally, see Chavis v.
Chappius, 618 F.3d 162, 171 (2d Cir. 2010), especially when those pleadings allege civil rights
violations. Erickson v. Pardus, 551 U.S. 89, 94 (2007); Sealed P/aintiffv. Sealed Defendant #1,
537 F.3d 185, 191-93 (2d Cir. 2008). A prose complaint should not be dismissed without
granting a pro se plaintiffleave to amend "at least once when a liberal reading ofthe 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 pro se complaints with "special solicitude" and interpret them to
raise the "strongest arguments that they suggest," Triestman v. Federal Bureau ofPrisons, 470 F.3d
471, 4 74-76 (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 At/. 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, 55 U.S. 662, 678 (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). Similarly, a complaint
is insufficient to state a claim "if it tenders 'naked assertion[s]' devoid of 'further factual
enhancement."' /d. (quoting Twombly, 550 U.S. at 557).
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DISCUSSION
A. Identifying Defendants
Plaintiff alleges that on September 17, 20 12 at approximately 6: 15 p.m. as he and a friend
were walking "back from the store," three New York City police officers (one of whom has badge
number 224) traveling in a gray Dodge van with license number FFR-5799 stopped and searched
him. 2 Pursuant to Valentin v. Dinkins, 121 F.3d 72 (2d Cir. 1997) (per curiam), the Court requests
that Corporation Counsel ascertain the full name(s) and service address(es) of the officer(s), who
were involved in plaintiff's stop on September 17, 2012.Corporation Counsel need not undertake
to defend or indemnify these individuals at this juncture. This order merely provides a means by
which plaintiff may name and properly serve the defendants as instructed by the Second Circuit in
Valentin.
Corporation Counsel is hereby requested to produce the information specified above
regarding the identities and service addresses of the arresting officers by October 25,2012. Once
this information is provided, plaintiff's complaint shall be deemed amended to reflect the full names
of the defendants, summonses shall be issued and the Court shall direct service on the defendants.
B. Dismissal of City of New York
As with plaintiff's four prior actions, in addition to suing the unknown individual officers
involved, he sues the City of New York. In order to sustain a claim for relief under 42 U.S.C. §
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
'The Court notes that this is the same license plate identified by plaintiff in the stop and
search which occurred on July 24, 2012. See Askew v. Three Police Officers, 12-cv-3796
(ENV)(SMG), Dkt no. I at I.
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connection between that policy or custom and the deprivation of a constitutional right. Board of
County Comm'rs ofBryan County, Okl. v. Brown, 520 U.S. 397,403 (1997) (citing Monell v.
New York City Dep't of Social Servs., 436 U.S. 658 (1978)). Here, Plaintiff concludes "[t]his
violation of plaintiffs constitutional rights, is a direct result of the city of New York policy,
practice and customs," Complaint at~ III, but does not identifY any policy, practice or custom.
The police are charged with enforcing the laws of New York and authorized to stop and search
citizens within certain parameters. Plaintiff has not identified any unconstitutional policy,
custom or practice of the City of New York that is attributable to a municipal policymaker.
Accordingly, there does not appear to be any basis for suing the City of New York. Plaintiffs§
1983 claim against the City of New York is dismissed without prejudice to plaintiffs right to
amend the complaint to include factual allegations that comply with Monell v. New York City
Dep't of Social Servs., 436 U.S. at 691 within 30 days of the entry of this Order on the docket.
C. Dismissal of Raymond Kelly
As a prerequisite to a damage award, a plaintiff must allege each defendant's direct or
personal involvement in the alleged constitutional deprivation. Farrell v. Burke, 449 F .3d 4 70
(2d Cir. 2006); Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994). Although plaintiff names
Raymond Kelly as a defendant, there is no allegation in the complaint that Raymond Kelly, the
Commissioner of the New York City Police Department, was personally involved in the
deprivation of plaintiffs constitutional rights. Thus, defendant Kelly is not a proper party to this
action and the claim against defendant Kelly is dismissed pursuant to 28 U.S.C. § 1915
(e)(2)(B)(ii) without prejudice to plaintiffs right to amend the complaint to include factual
allegations that allege the personal involvement of Kelly within 30 days of the entry of this Order
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on the docket.
CONCLUSION
Accordingly, the complaint, filed in forma pauperis, is dismissed as to the City of New
York and Kelly pursuant to 28 U.S. C.§ 1915(e)(2)(B). However, the Court grants plaintiff leave
to file an amended complaint within 30 days in support of a claim against these defendants as set
forth above. If plaintiff fails to file an amended complaint within 30 days, the complaint shall
proceed solely as to the three officers allegedly involved in the September 17,2012 stop and frisk
as identified by the Corporation Counsel. 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 thereforein forma pauperis
status is denied for purpose of an appeal. Coppedge v. United States, 369 U.S. 438,444-45 (1962).
SO ORDERED.
Eric N. Vitaliano
United States District Judge
Dated: September 26, 2012
Brooklyn, New York
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