Richardson v. New York City Police Department et al

Filing 4

MEMORANDUM AND ORDER: Plaintiff's 2 request to proceed in forma pauperis is granted for the purpose of this Order. All of the claims against the NYPD and the New York City Transit Police are dismissed for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B). No summons shall issue against these defendants. Plaintiff's claims shall proceed against the John Doe Officer. The Court respectfully directs the Clerk of Court to mail a copy of this Order and the Complaint to the New York City Law Department. Once Corporation Counsel has provided the requested information for the defendant, the Clerk of Court is directed to amend the caption of the Complaint to reflect that information. The Clerk is further directed to issue a summons to the remaining defendant, and the United States Marshals Service is directed to serve a copy of the Complaint as amended by the Clerk, this Order, and the summons on the defendant. The Court refers this matter to Magistrate Judge Lois Bloom for pretrial supervision. 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 Allyne R. Ross, on 1/7/2013. C/mailed to pro se Richard Richardson & Corporation Counsel (w/Plaintiff's Complaint attached) - via regular mail. (Parties: New York City Police Department; and New York City Transit Police Department terminated.) (Latka-Mucha, Wieslawa)

FILID

IN CLIRK'S OFFICI

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

u.s. DISTRICT COURT E.D.N.Y.

-------------------------------------------------------------)(

* JAN 0 7 2013 *

RICHARD RICHARDSON,

BROOKLYN OFFICE
MEMORANDUM AND ORDER

Plaintiff,

12-CV-5753 CARR)

-againstTHE NEW YORK CITY POLICE DEPARTMENT
or THE NEW YORK CITY TRANSIT POLICE
DEPARTMENT, and OFFICER or DETECTIVE
JOHN DOE,

NOT FOR ELECTRONIC
OR PRINT PUBLICATION

Defendants.

-------------------------------------------------------------)(
ROSS, United States District Judge:
On November 14, 2012,pro se plaintiff Richard Richardson filed this action against the
New York City Police Department C"NYPD") or the New York City Transit Police, which is a
division of the Metropolitan Transportation Authority C"MTA"), and a John Doe police officer.
Plaintiffs request to proceed in forma pauperis is granted for the purpose of this Order. The
claims against the agency are dismissed, while the claims against the John Doe officer may
proceed.
BACKGROUND
Plaintiff alleges that he was sitting in the Borough Hall subway station on November 11,
2012, when he was approached by an unidentified officer, identified here as Defendant John Doe.
(Compi. at 1.)1 Plaintiff states that the officer said, "[T]his aint' no living room; what train you
waiting for[?]" (ld.) According to plaintiff, the officer, who smelled strongly of alcohol, waited
until the downtown train left the station and then grabbed him and dragged him out of the station

As the pages of the complaint are not consecutively paginated, the Court refers to the
pages assigned by the Electronic Case Filing System.
1

.

,-

.
(C mpl at 2) Plaintiff alleges that he said "my leg" and fell down. (ld.)
0
.
.
and up the staIrs.
.
. u the stairs, left him outside, and then ran
Plaintiff alleges that the officer contmued to drag hIm p
. I d 9 l I n his mobile telephone and
away. (Compl. at 3.) Thereafter, plaintiff alleges, he dm e - - 0
subsequently reported the incident to the Internal Affairs Bureau, under lAB # 12-58899. (Id.)
He states that an NYPD patrol car "did come by," but that no officers spoke to him. (Id.)
Plaintiff states that he went to KCH Hospital, but left "because the staff was showing no respect
toward me," and went to Beth Israel Hospital the next day. (Id.)
Plaintiff alleges that the officer's actions caused him "injury and hurt" and deprived him
of his right to sit on the subway bench in a public place. (CompI. at 4.)
Plaintiff states that he knows the John Doe officer by sight, but does not know his name.
In addition, plaintiff alleges that he has seen the officer "on that post on the uptown side of [the
Borough Hall subway] platform." (Id.) Plaintiff describes the officer as a "[LJatino looking male
about early 50 or late 40 about 5"11 or 5"9 approximately 200 pounds with short straight black
hair in A class NYPD issues with an Det Shield gold and blue with no name tag did have dept
9mm weapon and radio" [sic]. (CompI. at 3-4.) Plaintiff states that the 9-1-1 dispatcher gave
him ID # 1409.
He seeks $2 million in damages: "one million for my civil rights violation and one
million for my right hip, neck, and right leg I su[s]tain by John Doe force" [sic]. (ld.)
DISCUSSION
A. Standard of Review

Title 28, Section 1915(e)(2)(B) of the United States Code requires a district court to
dismiss a case if the court determines that the action "(i) is frivolous or malicious; (ii) fails to

2

.state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant
who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B). However, "[a] document filed pro

se is to be liberally construed, and a pro se complaint, however inartfully pleaded, must be held
to less stringent standards than fo~al pleadings drafted by lawyers." Erickson v. Pardus, 551
U.S. 89, 94 (2007) (internal quotation marks and citations omitted). Furthermore, the pleadings
must be read liberally and interpreted as raising the strongest arguments they suggest. McEachin
v. McGuinnis, 357 F.3d 197,200 (2d Cir. 2004); Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir.
1994). '''The failure in a complaint to cite a statute, or to cite the correct one, in no way affects
the merits of a claim. Factual allegations alone are what matters. '" Northrop v. Hoffman of
Simsbury, Inc., 134 F.3d 41, 46 (2d Cir. 1997) (quoting Albert v. Carovano, 851 F.2d 561,571
n.3 (2d Cir. 1988) (en bane)). If a liberal reading of the complaint "gives any indication that a
valid claim might be stated," this Court must grant leave to amend the complaint. Cuoco v.
Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000); see Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794,
795. (2d Cir. 1999).

B. Civil Ria=hts Allea=ations
Plaintiff alleges that defendants' actions violated his civil rights. A claim for violations
of constitutional rights is cognizable under 42 U.S.C. § 1983 ("§ 1983"). To maintain a § 1983
action, a plaintiff must allege two essential elements. First, "the conduct complained of must
have been committed by a person acting under color of state law." Pitchell v. Callan, 13 F.3d
545,547 (2d Cir. 1994) (citing Parratt v. Taylor, 451 U.S. 527, 535 (1981), overruled on other
grounds Qy Daniels v. Williams, 474 U.S. 327 (1986)). Second, "the conduct complained of
must have deprived a person of rights, privileges or immunities secured by the Constitution or

3

..

~

laws of the United States." Id. "Section 1983 itself creates no substantive rights; it produces
only a procedure for redress for the deprivation of rights established elsewhere." Sykes v. James,
13 F.3d 515, 519 (2d Cir. I 993)(citing City of Oklahoma City v. Tuttle, 471 U.S. 808,816
(1985». To bring a claim pursuant to § 1983, a plaintiff must also show that each of the named
individuals is personally liable for the alleged harm. See Eagleston v. Guido, 41 F.3d 865, 872
(2d Cir. 1994).
The New York City Transit Police is a division of the NYPD, which is an agency of the
City of New York. The NYPD and its divisions, including the Transit Police, may not be sued
directly; instead, any suit against a City agency must be brought against the City of New York.
See Jones v. Nat'l Commc'n and Surveillance Networks, 409 F. Supp. 2d 456,469 (S.D.N.Y.
2006) ("City agencies, like federal and state agencies, are immune to suit to the extent that the
suits 'shall be brought in the name of the City of New York and not in that of any agency.'"
(quoting N.Y. City Charter § 396». Although the City of New York may be sued, a municipality
can be liable under § 1983, but only if a plaintiff can show that a municipal policy or custom
caused the deprivation of his or her constitutional rights. See Monell v. Dep't of Soc. Servs., 436
U.S. 658, 690-91 (1978). Proofofa single incident of unconstitutional activity is not sufficient
to impose liability on a municipality unless proof of the incident includes proof that it was caused
by an existing, unconstitutional municipal policy that can be attributed to a municipal
I

policymaker. Tuttle, 471 U.S. at 823-24. Here, Plaintiff fails to allege any unconstitutional
municipal policy or custom that could serve as the basis for § 1983 liability. Accordingly, all of
Plaintiffs claims against the NYPD and the New York City Transit Police are dismissed, and
New York City will not be substituted as a defendant.

4

C. Identifyine the John Doe Defendant
Plaintiff seems to be bringing claims for excessive force and, possibly, unlawful detention
against the John Doe officer. Plaintiff includes a description of this individual. (CompI. at 3-4.)
The United States Marshals Service will not be able to serve the John Doe defendant without
further identifying information. The problem encountered by Plaintiff is a common one, as it is
frequently difficult for pro se litigants to identify individual law enforcement officers. In
Valentin v. Dinkins, 121 F.3d 72 (2d Cir. 1997) (per curiam), the Second Circuit made clear that
a pro se litigant is entitled to assistance from the district court in identifying a defendant.
One means of dealing with this problem would be to permit Plaintiff to conduct discovery
against the City of New York, to serve interrogatories and document requests in an effort to
identify this officer, and once identified, to ascertain his whereabouts for purposes of service.
See, e.g., Smith v. Doe, No. 08 Civ. 10437(JSR)(DFE), 2010 WL 1404099, at *1 (S.D.N.Y. Jan.
25, 2010). Then Plaintiff would amend his complaint and initiate service upon this defendant.
This process is not only cumbersome for a pro se plaintiff, it also often does not achieve results.
Accordingly, the Court hereby requests the Corporation Counsel for the City of New
"

York to attempt to ascertain the full name of the John Doe officer, and to provide the address
where the defendant can currently be served, within 45 days of the date of this Order. See, e.g.,
Twine v. Four Unknown N.Y. Police Officers, No. 10 Civ. 6622(DAB)(JLC), 2012 WL
6184014, at *1 (S.D.N.Y. Dec. 12,2012). Once this information is provided, Plaintiffs
complaint shall be deemed amended to reflect the full name and badge number of this officer, a
summons shall be issued, and the Court shall direct service on the defendant.

5
/.

CONCLUSION
For the reasons set forth above, all of the claims against the NYPD and the New York
City Transit Police are dismissed for failure to state a claim pursuant to 28 U.S.c. §
1915(e)(2)(B). No summons shall issue against these defendants. The Clerk of Court is directed
to amend the caption to reflect the dismissal of these defendants.
Plaintiffs claims shall proceed against the John Doe Officer. The Court respectfully
directs the Clerk of Court to mail a copy of this Order and the Complaint to the New York City
Law Department. Once Corporation Counsel has provided the requested information for the
defendant, the Clerk of Court is directed to amend the caption of the Complaint to reflect that
information. The Clerk is further directed to issue a summons to the remaining defendant, and
the United States Marshals Service is directed to serve a copy of the Complaint as amended by
the Clerk, this Order, and the summons on the defendant. The Court refers this matter to
Magistrate Judge Lois Bloom for pretrial supervision.
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. See
Coppedge v. United States, 369 U.S. 438,444-45 (1962).
SO ORDERED.

/S/ Judge Allyne R. Ross

---

United State
Dated: Brooklyn, New York
January 7, 2013

6