Babayof v. State of New York et al

Filing 6

MEMORANDUM AND ORDER, The Court's 1/9/13 Order dismissing the action without prejudice is VACATED and the Clerk of Court is respectfully requested to restore this action to the Court's docket. Pltff's 2 Motion for Leave to Proceed i n forma pauperis is granted. The complaint against the City of NY, the NYCPD and the State of NY is dismissed. Pltff shall 30 days to file an amended complaint setting forth his claims against each deft named in the amended complaint. Should pltff de cide to file an amended complaint, it must be submitted w/in 30 days of this Order, be captioned "Amended Complaint," and bear the same docket number as this Order. Pltff is advised that the amended complaint will completely replace the ori ginal complaint. All further proceedings will be stayed for 30 days or until pltff has complied with this Order. If pltff fails to comply with this Order w/in the time allowed, the complaint shall be dismissed and judgment shall enter. If submitted, the amended complaint will be reviewed for compliance with this Order and for sufficiency under 28 USC sec. 1915(e)(2)(B). The Court certifies pursuant to 28 USC sec. 1915(a)(3) that any appeal form 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 William F. Kuntz, II on 1/16/2013) c/m (Galeano, Sonia)

FILED

IN CLERK'S rJFFICE

US DISTRICT COURT [ 0

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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JAN 1 6 2013

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BROOKLYN OFFICE

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YAHER ISRAEL BABAYOF, a/k/a
YAIR ISRAEL BABA YOFF,

Plaintiff,
-against-

MEMORANDUM
AND ORDER
I 2 CV 6073 (WFK)(RLM)

STATE OF NEW YORK; CITY OF NEW
YORK; NEW YORK CITY POLICE
DEPARTMENT,
Defendants.

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KUNTZ, II, United States District Judge:

On December 7, 2012, plaintiff filed this prose action alleging false arrest and malicious
prosecution. Plaintiffs complaint did not have an original signature as is required by Fed. R. Civ.
P. 11. By letter filed December 11, 2012, plaintiff was provided with a copy of his complaint and
instructed that in order to proceed, he must return the complaint with an original signature wherever

an "X" appeared within 14 days from the date of the Jetter. On December 20, 2012, plaintiff
submitted a signed copy of the complaint. By Order dated January 9, 2013, the Court dismissed the
action without prejudice based on the mistaken belief that no signed complaint had been received. 1
The January 9, 2013 Order is hereby VACATED and the action reinstated to the Court's docket.
Plaintiffs request to proceed in forma pauperis is granted pursuant to 28 U.S.C. § 1915, the claims
against defendants are dismissed, and plaintiff is afforded thirty days to file an amended complaint
as set forth below.
I. Background
Plaintiff alleges false arrest and malicious prosecution in Queens County, New York. His

~The signed complaint, dated December 18,2012, was entered with the filing date of the original unsigned
complamt, December 7, 2012. The Clerk of Court is respectfully requested to correct the docket sheet to reflect that
the filing ofthe unsigned complaint was on December 7, 2012 and the filing of the signed complaint was on December
I8, 20I2.

statement of facts, states, in its entirety:
Plaintiff in 2007 was aiTested on the basis of a possible theft of gover[ n]ment funds
and perjury from Section 8 Housing from the ~tate and Ci_ty _of New York which
commenced the actions[.] That case was dismtssed[.] Plamtlff was arrested and
wrongfully prosecuted by the defendants on March 2010, June 2011 and February
2012 and all the ca[s]es were dismissed[.] The actions were done by the defendant.

Complaint at~ lii (A). Plaintiff seeks damages. !d. At 1[V.
II. Standard of Review
Under 28 U.S. C. § l915(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."
To avoid dismissal, 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 will be
considered plausible on its face "when the plaintiff pleads factual content that allows the court to draw
reasonable inference that the defendant is liable for the misconduct alleged."

Ashcroft v. Iqbal, 55

u.s. 662, 678 (2009).
III. Discussion
Since plaintiff invokes the Court's federal question jurisdiction and alleges the violation of
his "civil right under malicious prosecution and, wrongful arrest," !d.

at~ II,

the Court construes the

complaint as brought pursuant to 42 U.S.C. § 1983. In order to maintain a claim under 42 U.S.C.
§ 1983, plaintiff must allege that (1) "the conduct complained of must have been committed by a
person acting under color of state law," and (2) "the conduct complained of must have deprived a
person of rights, privileges or immunities secured by the Constitution or laws of the United States.
Pitchell v. Callan, 13 F.3d 545, 547 (2d Cir. 1994). Section 1983 itself creates no substantive rights,

[but] ... only a procedure for redress for the deprivation of rights established elsewhere." Sykes v.

James, 13 F.3d 515, 519 (2d Cir. 1993) (citing City of Oklahoma v. Turtle, 471 U.S. 808, 816
(1985)). The complaint, as currently stated, fails as to the defendants named.

2

1. 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. Bd. of County Comm'rs of Bryan County, Okl. v. Brown, 520
U.S. 397, 403, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997) (citing Monell v. New York City Dep't of

Social Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)). Even when liberally construed,
the present complaint cannot reasonably be interpreted as alleging facts sufficient to demonstrate that
plaintiff suffered any damages as a result of any policy or custom of the City of New York. Thus,
the complaint against the City of New York is dismissed for failure to state a claim on which relief
may be granted. 28 U.S. C.§ !915(e)(2)(8)(ii).

2. New York City Police Department
Plaintiff also names the New York City Police Department (NYPD) as a defendant to this
action. The NYPD is anon-suable agency of the City. Jenkins v. City ofNew York, No. 06CV0182,
2007 WL415171, at *II n. 19 (2d Cir. Feb. 6, 2007)(citing Wray v. City ofNew York, 340 F. Supp.
2d 291,3030 (E.D.N.Y. 2004) (quoting N.Y. C. Charter§ 396 ("All actions and proceedings for the
recovery of penalties for the violation of any law shall be brought in the name of the city of New
York and not in that of any agency, except were otherwise provided by law.'")); Araujo v. City of

New York, No. 08 CV 3715,2010 WL 1049583, at *8 (E.D.N.Y. Mar. 19, 2010). Therefore, the
complaint against the NYPD is dismissed for failure to state a claim upon which relief can be
granted. 28 U.S. C.§ 1915(e)(2)(B)(ii).

3. State of New York
Lastly, plaintiff sues the State of New York for damages. Absent a state's consent to suit or
an express statutory waiver, the Eleventh Amendment bars federal court claims against states. Will

v. Mich. Dep't of State Police, 491 U.S. 58, 66 (1989). "Sovereign immunity does not merely
3

I

constitute a defense to monetary liability or even to all types of liability. Rather, it provides an
immunity from suit." FMCv. S.C. State Ports Auth.,535 U.S. 743,766 (2002). Plaintiffhas asserted
no claims under which it could be found that the State has waived sovereign immunity. Accordingly,
plaintiffs claims are foreclosed by absolute immunity and are dismissed. See Montero v. Travis, 171
F.3d 757,760 (2d Cir. 1999) ("A complaint will be dismissed as 'frivolous' when 'it is clear that the

defendants are immune from suit.'") (quoting Neitzke v. Williams, 490 U.S. 319, 325 (1989)); 28
U.S.C. § 1915(e)(2)(B)(iii).

IV. Leave to Amend
Despite the fact that the complaint has been dismissed against each of the defendants plaintiff

has named, in light of plaintiff's prose status, Cruz v. Gomez, 202 F .3d 593 (2d Cir. 2000), plaintiff
is afforded thirty days to amend his complaint in order to set forth a claim against proper defendant(s)
under section 1983. See Fed R. Civ. P. IS(a); see e.g., Davis v. Goord, 320 F.3d 346,352 (2d Cir.
2003) ("Certainly the court should not dismiss without granting leave to amend at least once when
a liberal reading of the [prose] complaint gives any indication that a valid claim might be stated.")
(quoting Gomez, 171 F.3d at 795).

If plaintiff cannot identity a defendant by name, he should

identify each individual as "Police Officer John or Jane Doe #1" etcetera and provide a physical
description and any other identifYing information such as the precinct or facility with which she or
he works.

Plaintiff must also comply with Fed. R Civ. P. 8. Pursuant to Rule 8 of the Federal

Rules of Civil Procedure, plaintiff must provide a short, plain statement of claim against each
defendant named so that they have adequate notice ofthe claims against them. Ashcroft v. Iqbal, 55
U.S. at 678 (Rule 8 "demands more than an unadorned, the-defendant-unlawfully-banned-me
accusation.").

Plaintiff must provide facts sufficient to allow each 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 Twombly v. Bell, 425 F.3d 99, 106 (2d Cir. 2005) (defining "fairnotice" as" 'that

which will enable the adverse party to answer and prepare for trial, allow the application of res
judicata, and identify the nature of the case so that it may be assigned the proper form of trial.' ")

(quoting Simmons v. Abruzzo, 49 F.3d 83, 86 (2d Cir. 1995)); Ricciuti v. New York City Transit

Auth., 941 F .2d 119, 123 (2d Cir. 1991 ). If available, plaintiff may include copies of any relevant
documents to support his claims.
Plaintiff is afforded thirty days to file an amended complaint in which he complies with Fed.
R. Civ. P. 8. See Ashcroft v. Iqbal, 55 U.S. at 678 (a claim will be considered plausible on its face
"when the plaintiff pleads factual content that allows the court to draw reasonable inference that the
defendant is liable for the misconduct alleged."). Plaintiff must connect the facts to the defendants
so that the defendants will have notice of the claim against them as required by Fed. R Civ. P. 8.
Ifplaintifffails to amend the complaint, the action will be dismissed without prejudice and judgment
will enter.

Conclusion
Accordingly, the Court's January 9, 2013 Order dismissing the action without prejudice is
VACATED and the Clerk of Court is respectfully requested to restore this action to the Court-'s
docket. The complaint against the City ofNew York, the New York City Police Department and the
State of New York is dismissed.
Plaintiff shall have thirty (30) days to file an amended complaint setting forth his claims
against each defendant named in the amended complaint. Should plaintiff decide to file an amended
complaint, it must be submitted within thirty days of this Order, be captioned "Amended
Complaint," and bear the same docket number as this Order. Plaintiff is advised that the amended
complaint will completely replace the original complaint. All further proceedings will be stayed for
thirty days or until plaintiff has complied with this Order. If plaintiff fails to comply with this Order
within the time allowed, the complaint shall be dismissed and judgment shall enter. If submitted,
the amended complaint will be reviewed for compliance with this Order and for sufficiency under
28 U.S.C. § 1915(e)(2)(B).
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 purpose of an appeal.

Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
SO ORDERED.

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.......,.,...,..,.,....,~--,.,.__,.-

William F. Kuntz,
United States Distri

Dated: January 16,2013
Brooklyn, New York

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C/

Judge

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