Askew v. Two (2) Officers of the NYPD et al

Filing 4

MEMORANDUM AND ORDER, granting Pltff's 2 Motion for Leave to Proceed in forma 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 claim 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 9/06/12 stop and frisk as identified by the Corporation Counsel. 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)

FILED
US IN CLERK'S OFFICE

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

______________________________X

*

DISTRICT COURT

E.

ocr o1 2012

BROOKLYN OFFICE
TIMOTHY ASKEW,
MEMORANDUM
AND ORDER
12-CV-4775 (ENV)(SMG)

Plaintiff,
-againstTWO (2) OFFICERS OF THE N.Y.P.D.,
AND THE CITY OF NEW YORK; RAY
KELLY, Police Commissioner,
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 6, 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 sixth case alleging illegal stops by the police. Plaintiff filed another
action on the same day, Askew v. Three Officers of theN Y.P.D., 12-cv-4773 (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., 11-cv-4275 (ENV)(SMG); Askew v. Three Officers of theN 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 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. Erickson v. Pardus, 551 U.S. 89, 94 (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 pro se 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. 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 Atl. 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 6, 2012 at approximately 5:00p.m. when he was walking
down Pitkin Avenue, three New York City police officers traveling in a black car with license
number EHR-8873 stopped and searched him. 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 plaintiffs stop on September 6, 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, plaintiffs 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 plaintiffs five 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
connection between that policy or custom and the deprivation of a constitutional right. Board of

County Comm'rs of Bryan County, Okl. v. Brown, 520 U.S. 397,403 (1997) (citing Monell v.
New York City Dep't ofSocial 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,
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practice and customs," Complaint at~ III, but does not identify any policy, practice or custom.
The police are charged with enforcing the laws ofNew 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 ofSocial 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 470
(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 of the personal involvement of Kelly within 30 days of the entry of this Order 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 plaintiffleave

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to file an amended complaint within 30 days in support of a claim against these defendants as set
forth above. Ifplaintifffails to file an amended complaint within 30 days, the complaint shall
proceed solely as to the three officers allegedly involved in the September 6, 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.
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-Zi!!JII'P~-~-

Eric N. Vitaliano
United States District Judge

Dated: September 26, 2012
Brooklyn, New York

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