Johnson v. New York Police Department et al

Filing 6

AMENDED MEMORANDUM DECISION AND ORDER, granting Pltff's 2 Motion for Leave to Proceed in forma pauperis pursuant to 28 USC sec. 1915, solely for the purpose of this Order. For the reasons discussed below, all of pltff's claims, except tho se brought against the ten unidentified police officers defts, must be dismissed for failure to state a claim. As for the claims against the police officers, pltff is directed to show cause why his complaint should not be dismissed as time-barred, wi thin 21 days from the date of entry of this Order as set forth below. The action is dismissed as to defts NYPD, Police Commissioner, Mayor of NYC, Kings County, City of NY, and the District Atty for the "Eastern" District. With respect to h is claims against the unidentified police officers, pltff is directed to show cause by 12/5/12 why the action should not be dismissed as time-barred by the three-year statute of limitations period. If pltff fails to file a written affirmation in resp onse to this order within the time allowed or fails to provide a valid basis for equitable tolling of the limitations period, the Court shall dismiss the action. 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 the purpose of an appeal. (Ordered by Judge Brian M. Cogan on 11/14/2012) c/m by chambers with Pltff's Affirmation Form attached. (Galeano, Sonia)

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US DISTRICT COURT E. D. N.Y.

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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NOT FOR PUBLICJ\4IO"NQy
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1 5 201 2

BROOKLYN OFFICE

JEFFREY JOHNSON,
Plaintiff,

AMENDED MEMORANDUM
DECISION AND ORDER

-against12 Civ. 5423 (BMC)(SMG)
NEW YORK POLICE DEPARTMENT, eta!.,
Defendants.

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COGAN, District Judge.
Plaintiff brings this prose action pursuantto 42 U.S.C. § 1983 against the New York
Police Department ("NYPD"), Police Commissioner, Mayor ofNew York City, Kings County,
City of New York, District Attorney for the "Eastern" District, and ten unidentified police
officers, asserting claims for unlawful search and seizure, false arrest, and excessive force. The
Court grants plaintiff's request to proceed in forma pauperis pursuant to 28 U.S.C. § 1915, solely
for the purpose of this Order. For the reasons discussed below, all of plaintiff's claims, except
those brought against the ten unidentified police officer defendants, must be dismissed for failure
to state a claim. As for the claims against the police officers, plaintiff is directed to show cause
why his complaint should not be dismissed as time-barred, within 21 days from the date of entry
of this Order as set forth below.
BACKGROUND
Plaintiff appears to allege that in the summer of 2008, several police officers tried to
"raid" his house while holding him and his family members at gun point. Plaintiff claims that
this amounted to an illegal search of his home and that the search was racially-motivated. He

further alleges, among other things, that the officers threatened and endangered the lives and
safety of the children and adults in his home, damaged the personal property of the home, and
physically assaulted his family members. Plaintiff alleges that the defendants violated the First,
Fourth, Eighth and Fourteenth Amendments for purported injuries he and his family sustained in
2008. 1
STANDARD OF REVIEW
A complaint must plead "enough facts to state a claim to relief that is plausible on its
face." Bell Atlantic Coro. v. Twombly. 550 U.S. 544, 570, 127 S. Ct. 1955, 1974 (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, 556 U.S. 662,678, 129 S. Ct. 1937, 1949 (2009). Although all allegations contained in
a complaint are assumed to be true, this tenet is "inapplicable to legal conclusions." Id.
Although pro se complaints must contain sufficient factual allegations to meet the
plausibility standard, see Harris v. Mills, 572 F.3d 66 (2d Cir. 2009), the Court reviews such
allegations by reading the complaint with "special solicitude" and interpreting the allegations to
raise the "strongest arguments that they suggest" Triestrnan v. Fed. Bureau of Prisons, 470 F.3d
471,474-75 (2d Cir. 2006) (citations omitted). Nonetheless, courts must screen "a complaint in
a civil action in which a prisoner seeks redress from a governmental entity or officer or employee
of a governmental entity" and thereafter "dismiss the complaint, or any portion of the
complaint," if it is "frivolous, malicious, or fails to state a claim upon which relief may be
granted." Abbas v. Dixon, 480 F.3d 636,639 (2d Cir. 2007) (citing 28 U.S.C. § 1915A(b)).
1

On August 22, 2012, plaintiff filed a similar action on behalf of himself and his family members, see Johnson v.
Police Commissioner et al., No. 12-CV-4301 (BMC). The Court dismissed the case because plaintiff failed to file a
signed Prisoner Authorization form in support of his request to proceed in forma pauperis pursuant to 28 U.S.C. §
1915, even after the Court notified plaintiff of the deficiency and gave him 14 days to return the form. Thereafter,
plaintiff filed an amended complaint and a request to re-open the case and also filed a notice of appeal. Plaintiffs
notice of appeal is currently pending before the United States Court of Appeals for the Second Circuit.

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DISCUSSION

A.

Claims on behalf of family members
It is unclear whether plaintiff brings this action on behalf of solely himself or himself and

his family members; the caption indicates that Jeffrey Johnson is the plaintiff, however the
complaint mentions that the "Johnson family [] is the recognized plaintiffs in the matter." To the
extent that plaintiff is bringing this case on behalf of both himself and his family members, the
Court dismisses, without prejudice, the claims brought on behalf of plaintiff's family members.
The law governing appearances in federal court, 28 U.S.C. § 1654, allows two types of
representation: "that by an attorney admitted to the practice of law ... and that by a person
representing himself." Lattanzio v. COMTA, 481 F.3d 137, 139 (2d Cir. 2007) (citing Eagle
Associates v. Bank of Montreal, 926 F.2d 1305, 1308 (2d Cir. 1991)) (internal quotation marks
omitted). The statute does not permit "unlicensed laymen to represent anyone else other than
themselves." Id.

B.

Claims against government official defendants
It is well-settled that as a prerequisite to a damage award under 42 U.S.C. § 1983, a

plaintiff must allege that the defendants were directly or personally involved in the alleged
constitutional deprivation. Farid v. Ellen 593 F.3d 233 (2d Cir. 2010) (citations omitted). Here,
plaintiff fails to make any allegations against defendants Police Commissioner, New York City
Mayor, and the District Attorney for the "Eastern District," that could suggest they had any
direct involvement with, knowledge of, or responsibility for the alleged deprivation of plaintiffs
civil rights. Plaintiffs' claims against these defendants, as presently stated, can therefore be
supported only on the basis of respondeat superior or vicarious liability. Vicarious liability,
however, is inapplicable to§ 1983 suits; plaintiffs must show that a supervisory "official's own

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individual actions" subject him to liability. See Iqbal, 556 U.S. at 676 (rejecting the argument
that "a supervisor's mere knowledge of his subordinate's discriminatory purpose amounts to the
supervisor's violating the Constitution").
Therefore, since plaintiff has failed to state a claim against defendants Police
Commissioner, New York City Mayor, and the District Attorney for the "Eastern District," the
claims against those defendants are dismissed.

C.

Claims against the City of New York, Kings County, and the Police Department
In order to sustain a claim for relief under § 1983 against a municipal defendant, such as

the City of New York or Kings County, 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. Monell v. Dep't of Social Servs of Citv of
New York, 436 U.S. 658, 98 S. Ct. 2018 (1978); see also Connick v. Thompson, 131 S. Ct. 1350,
1359 (2011) (municipalities can be held liable for "practices so persistent and widespread as to
practically have the force of law"). "Proof of a single incident of unconstitutional activity is not
sufficient to impose liability under Monell unless proof of the incident includes proof that it was
caused by an existing, unconstitutional municipal policy, which policy can be attributed to a
municipal policymaker." City of Oklahoma City v. Tuttle, 471 U.S. 808, 823-24, 105 S. Ct.
2427,2436 (1985).
Plaintiff claims that both the City of New York and Kings County "knew of, should have
known and/or failed to protect the right of the residents." He also claims that New York City
and Kings County failed to maintain the workers in their departments and agencies from
"misconduct." Even interpreting these allegations to raise the "strongest arguments that they
suggest," the Court finds that plaintiff has not stated a Monell claim against the City of New

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York or Kings County. The complaint does not include any facts demonstrating the existence of
a policy or custom, nor can the Court make sense of what the purported "policy" is. While it is
recognized that a plaintiff need not prove his claims through his pleadings, since much of the
proof is developed in the discovery process, a § 1983 complaint will not stand on the basis of
vague and conclusory assertions. McDermott v. Citv of New York, No. 94 CV 2145, 1995 WL
347041 (E.D.N.Y. May 30, 1995). Plaintiff's claims against the City of New York and Kings
County are therefore dismissed.
Moreover, plaintiff cannot proceed against the NYPD. Section 396 of the New York City
Charter provides 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 ofNew York and not in that of any agency,
except where otherwise provided by law." N.Y. City Charter§ 396 (2009). That provision has
been construed to mean that New York City departments and agencies, as distinct from the City
itself, lack the capacity to be sued. Ximines v. George Wingate High Sch., 516 F.3d 156 (2d Cir.
2008). Therefore, any claims against the NYPD are dismissed.

D.

Claims against unidentified police officers
The Court finds that plaintiff has stated a claim against the ten unidentified police officer

defendants for unlawful search and seizure, false imprisonment, and excessive force. Plaintiff
alleges that the officers held him and others outside of his house at gunpoint while other officers
illegally searched his home and that he and his family members felt terrorized and in fear of their
lives.
Nonetheless, plaintiff's claims arise from alleged misconduct that occurred in the summer
of 2008 and therefore appear to be time-barred. The statute of limitations for a § 1983 action
arising in New York is three years. Shomo v. Citv of New York, 579 F.3d 176 (2d Cir. 2009).

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A claim under § 1983 ordinarily accrues "when the plaintiff knows of or has reason to know of
the injury which is the basis of his action." Pearl v. City of Long Beach, 296 F.3d 76, 80 (2d Cir.
2002) (internal quotation marks omitted). Here, plaintiff was aware of his alleged injuries
sometime in 2008. Yet, he did not commence this action until October 25,2012, after the threeyear statute of limitations had elapsed sometime in 2011.
Therefore, plaintiff's claims are time-barred unless equitable tolling applies. See Walker
v. Jastremski. 430 F .3d 560, 564 (2d Cir. 2005) (finding that equitable tolling applied only in
"rare and exceptional circumstances," where "extraordinary circumstances prevented a party
from timely performing a required act," and "the party acted with reasonable diligence
throughout the period he sought to toll") (internal quotation marks omitted). Nothing in
plaintiff's complaint suggests a basis for equitable tolling of the three-year limitations period. In
order to proceed as to any claims against the ten police officers, the Court directs plaintiff to
show cause why this action should not be dismissed as time-barred.
CONCLUSION

The action is dismissed as to defendants NYPD, Police Commissioner, Mayor of New
York City, Kings County, City of New York, and District Attorney for the "Eastern" District.
With respect to his claims against the unidentified police officers, plaintiff is directed to
show cause by December 5, 2012 why the action should not be dismissed as time-barred by the
three-year statute of limitations period. If plaintiff fails to file a written affirmation in response
to this order within the time allowed or fails to provide a valid basis for equitable tolling of the
limitations period, the Court shall dismiss the action.

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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 the purpose
of an appeal. See Coppedge v. United States, 369 U.S. 438,444-45 (1962).
SO ORDERED.

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Dated: Brooklyn, New York
November 14,2012

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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JEFFREY JOHNSON,
Plaintiff,

PLAINTIFF'S AFFIRMATION

12 Civ. 5423 (BMC)(SMG)

-againstNEW YORK POLICE DEPARTMENT, eta!.,
Defendants.

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JEFFREY JOHNSON, appearing prose, makes the following affirmation under the
penalties of perjury: I am the plaintiff in this action and I respectfully submit this affirmation in
response to the Court's Order dated November 14, 2012. The events giving rise to this action
occurred on _ _ _ _ _ _(insert date). The instant action should not be time-barred by the
three-year period oflimitation b e c a u s e - - - - - - - - - - - - - - - - - - -

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[YOU MAY ATTACH
ADDITIONAL PAGES, IF NECESSARY]
In view of the foregoing, it is respectfully submitted that the complaint should be
permitted to proceed.
DATED: __________
Signature & Identification Number
Address

City, State & Zip Code

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