Armstead v. New York City Police Department et al
Filing
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MEMORANDUM AND ORDER, granting Pltff's 3 Motion for Leave to Proceed in forma pauperis. For the reasons discussed herein, the complaint is dismissed, but pltff is granted 30 days leave to file an amended complaint. No summons shall issue at t his time and all further proceedings are stayed until pltff complies with this Order. If pltff fails to comply with this Order within the time allowed, the complaint shall be dismissed for failure to state a claim on which relief may be granted and j udgment will enter. Once submitted, the amended complaint will be reviewed for compliance with this Order and for sufficiency under FRCP 8 and 28 USC sec. 1915(e)(2)(B) and 1915A. 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 Eric N. Vitaliano on 3/17/2013) c/m (Galeano, Sonia)
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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13ROOKLYN OFFICE
ANTHONY ARMSTEAD,
MEMORANDUM AND ORDER
13 CV 891 (ENV) (JMA)
Plaintiff,
-vNEW YORK CITY POLICE DEPARTMENT;
!03RD PRECINCT OFFICERS; DEPUTY
INSPECTOR McEVOY; OFFICER SARASY;
ADAM !ANGEL; LT. MINCH; LT. SEEGERS;
SGT. SHAPIRO; SGT. DEMMA; OFFICER
LODICO; OFFICER CASERTA; OFFICER
IADEVIO; OFFICER LOVETT; OFFICER
SANNA,
Defendants.
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VIT ALIANO, D,J,,
On February 14, 2013,pro se plaintiff, Anthony Armstead, currently incarcerated at
Coxsackie Correctional Facility, filed the instant complaint pursuant to 42 U.S.C. § 1983
alleging violations of his son's and his constitutional rights. Plaintiffs request to proceed in
forma pauperis pursuant to 28 U.S.C. § 1915 is granted. For the reasons discussed below, the
complaint is dismissed, but plaintiff is granted 30 days leave to file an amended complaint.
BACKGROUND
Although not a model of clarity, the complaint generally concerns plaintiff's
dissatisfaction with the treatment that he, a father of five and resident of Queens, and his family
have received from the 103rd Precinct ofthe New York City Police Department (NYPD).
Specifically, but not exclusively, he targets the May 17, 2011 search of his home. The complaint
has four sections. In the first, he complains of a May 10, 2011 incident in which his 12 year-old
son was allegedly treated badly by police officers at his middle school. Plaintiff alleges that at
about 12:30 p.m., he "flagged Deputy Insp. McEvoy down and I told him that two of his officers
was very unprofessional up at my son middle school today where one officer had my son by his
collar and up off of his toes screaming [and pointing his finger] in my son face." Complaint at 3.
Second, he alleges that the May 17, 2011 search of his home violated his Fourth Amendment
rights against unlawful search, that OfficerJangel and Deputy Inspector McEvoy committed
perjury in order to obtain the search warrant, and that Officer Sarasy made false allegations that
resulted in criminal charges. Id. at 4. It is unclear from the complaint whether Armstead was
convicted of the charges that arose from this search and arrest.
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The third section states that, because ofhis "harassment" by the 103rd Precinct, it has
failed to adequately investigate the September 29, 2003 murder of four members of his family.
Plaintiff alleges that the police failed to follow leads, and instead believed an incredible story of
a "jail house informant" who stated that the victims were killed because Armstead "had murdered
t[w]o Russians and buried them under our old home whjch my grandfather [a 2003 murder
victim] had gave to the church next door." !d. at 5.
Fourth, Armstead alleges that the 103rd Precinct is now "harass[ing]" Anthony Armstead
Jr., the same son that was involved in the May 10,2001 middle school incident. Plaintiff states
that his son has been arrested twice and each time the charges were dismissed. I d. at 6.
Plaintiff contends that his mental, physical and emotional health have seriously suffered
because of the alleged violation of his rights. I d. He seeks damages and various other relief (e.g.
the removal of his "picture off the bulletin board like I am wanted for unsolved crimes") and
cessation of the harassment of the 103rd Precinct.
STANDARD OF REVIEW
A court must construe a prose litigant's pleadings liberally, see Erickson v. Pardus, 551
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The Court takes judicial notice that Armstead is incarcerated in a state prison on charges of criminal sale of a
controlled substance in the third degree. See http://nysdoccslookup.doccs.ny.gov/ (last visited February 27, 2013).
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U.S. 89, 94 (2007); Chavis v. Chappius, 618 F.Jd 162, 170 (2d Cir. 201 0), especially when those
pleadings allege civil rights violations. Sealed Plaintiff v. Sealed Defendant #1, 537 F .3d 185,
191-93 (2d Cir. 2008). A prose complaint should not be dismissed without granting the plaintiff
leave 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 Federal Sav. Bank, 171 F.3d 794, 795 (2d Cir.
1999) (internal quotation marks and citations omitted).
Although courts must read prose complaints with "special solicitude," Triestman v. Fed.
Bureau of Prisons, 470 F.3d 471,475 (2d Cir. 2006) (internal quotation marks and citations
omitted), and interpret them "to raise the strongest arguments that they suggest." id. at 476
(internal quotation marks and citations omitted), the complaint, in the end, 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 district court shall dismiss an in forma pauperis action where it is satisfied
that the action "(i) is 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." 28
U.S.C. § 1915(e)(2)(B). Similarly, under 28 U.S.C. § 1915A, a district court "shall review,
before docketing, if feasible or, in any event, as soon as practicable after docketing, a complaint
in a civil action in which a prisoner seeks redress from a governmental entity or employee of a
governmental entity." 28 U.S.C. § 1915A. Upon review, a district court shall dismiss a prisoner's
complaint sua sponte if the complaint is "frivolous, malicious, or fails to state a claim upon
which relief may be granted; or seeks monetary relief from a defendant who is immune from
such relief." Jd; Liner v. Goord, 196 F.3d 132, 134 & n.l (2d Cir. 1999) (noting that under
PLRA, sua sponte dismissal of frivolous prisoner complaints is not only permitted but
mandatory); see also Tapia-Ortiz v. Winter, 185 F.3d 8, 11 (2d Cir. 1999).
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DISCUSSION
Plaintiff brings this complaint pursuant to 42 U.S. C.§ 1983. In order to maintain a claim
under § 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. Pile hell 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,
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u.s. 808,816 (1985)).
A. Claims On Behalf of Plaintiffs Son
To the extent that Armstead seeks to raise claims on behalf of his minor son, Anthony
Armstead Jr., he may not because he is a non-attorney proceeding prose. See Lattanzio v.
COMTA, 481 F.3d 137, 139 (2d Cir. 2007) (Although 28 U.S.C. § 1654 recognizes that an
individual generally has the right to proceed pro se with respect to his own claims or claims
against him personally, "[t]he statute does not permit 'unlicensed laymen to represent anyone else
other than themselves.'") (quoting Eagle Assocs. v. Bank of Montreal, 926 F.2d 1305, 1308 (2d
Cir. 1991)); Iannaccone v. Law, 142 F.3d 553, 558 (2d Cir. 1998)("[B]ecause prose means to
appear for one's self, a person may not appear on another person's behalf in the other's cause.");
Tindall v. Poultney High Sch. Dist., 414 F.3d 281,285 (2d Cir. 2005) (noting the
"well-established general rule in this Circuit that a parent not admitted to the bar cannot bring an
action prose in federal court on behalf of his or her child."). Accordingly, to the extent plaintiff
asserts claims against defendants on behalf of his son, they are dismissed without prejudice.
B. Claim for Failure to Investigate
Plaintiff alleges that the police failed to adequately investigate the 2003 murder of some
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members of his family because of his "harassment" by the NYPD's 103rd Precinct. Armstead
does not point to any alleged constitutional violation and the Court cannot envision any from the
facts alleged. There is no constitutional right to have the police solve a crime or even to
investigate in a manner approved by citizens. "Criminal prosecutions are within the exclusive
province of the public prosecutor who has complete discretion over the decision to initiate,
continue or cease prosecution." Yashaahla v. MH.A.N. Y, No. 05-CV-4963, 2006 WL 845586, at
* 1 (E.D.N.Y. Mar. 29, 2006) (citations omitted). A private citizen does not have a constitutional
right to initiate or to compel the initiation of criminal proceedings against another individual. See
Leeke v. Timmerman, 454 U.S. 83, 102 S.Ct. 69,70 L.Ed.2d 65 (1981); Linda R.S. v. Richard D.,
410 U.S. 614,93 S.Ct. 1146, 35 L.Ed.2d 536 (1973); Ostrowski v. Meh/tretter, 20 F. App'x. 87
(2d Cir.2001). Accordingly, this claim is dismissed for failure to state a claim on which relief
may be granted. 28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A.
C. Other Section 1983 Claims
Construing the complaint liberally as the Court must, Armstead alleges that defendants
McEvoy and Jangel made intentional or recklessly false statements to obtain the warrant to
search his home and that he was subsequently falsely arrested and maliciously prosecuted. The
complaint, as currently stated, fails to state a claim under 42 U.S.C. § 1983 for the following
reasons.
1. Claims against NYPD and the 103rd Precind
Plaintiff names NYPD and the 103rd Precinct as defendants in the caption of his
complaint, but does not name them in the body of the complaint. Regardless, they are improper
parties to a§ 1983 action. Specifically, NYPD is a non-suable agency of the City. Jenkins v. City
of New York, No. 06CVOI82, 2007 WL 415171, 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
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("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.")). Therefore, the complaint against NYPD is dismissed for failure to
state a claim upon which relief can be granted.
Similarly, the claim against the 103rd Precinct must be dismissed because a precinct, as a
division ofNYPD, is an organizational subdivision of the City. As such, the police precinct lacks
independent legal existence and is therefore not a suable entity. Flemming v. New York City, No.
02 Civ. 4113,2003 WL 296921, at *2 (S.D.N.Y. Feb. 11, 2003) (NYPD 46th Precinct) (citing
Dove v. Fordham Univ, 56 F. Supp. 2d 330, 337 (S.D.N.Y. 1999); Wilson v. City of New York,
800 F. Supp. 1098, 1101 (E.D.N.Y. 1992)).
2. The Claims against Individual Defendants
Armstead names 12 defendants, all employed at the 103rd Precinct in Jamaica Queens:
Deputy Inspector McEvoy; Lieutenants Minch and Seegers; Sergeants Shapiro and Demma and
Police Officers Sarasy, Jangel, Lodico, Caserta; Iadevio, Lovett and Sanna. However, he makes
allegations in his complaint against only three of them: McEvoy, Sarasy and Jangel.
Plaintiffs failure to make any allegations against the other nine individual defendants is
fatal to his claims against them. First, the complaint against them fails to comply with Fed. R.
Civ. P. 8. In a federal lawsuit, a plaintiff must allege facts sufficient to allow the 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 Bell Atlantic Corp., 550 U.S. at 555 (Rule 8 requires that the
plaintiffs pleading "give the defendant fair notice of what the ... claim is and the grounds on
which it rests" (quoting Conley v. Gibson, 355 U.S. 41,47 (1957)); Ricciuti v. New York City
Transportation Auth., 941 F. 2d 119, 123 (2d Cir. 1991 )("[Rule 8] is designed to permit the
defendant to have a fair understanding of what the plaintiff is complaining about and to know
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whether there is a legal basis for recover[y]"). Here, plaintiff merely lists the defendants, he does
not make any allegations against defendants Lodico, Caserta, Iadevio, Lovett, Sanna, Minch,
Seegers, Shapiro or Demma. Thus, the complaint fails to comply with Fed. R. Civ. P. 8.
Moreover, Armstead has failed to allege the personal involvement of these nine
defendants in the claimed constitutional violations. In order to be held liable under§ 1983, each
defendant must have been personally involved in the violation. Wright v. Smith, 21 F.3d 496, 501
(2d Cir.1994) ("It is well settled in [the Second Circuit] that personal involvement of defendants
in alleged constitutional deprivations is a prerequisite to an award of damages under§ 1983.")
(internal citation omitted). "[A] defendant in a§ 1983 action may not be held liable for damages
for constitutional violations merely because he held a high position of authority." Black v.
Coughlin, 76 F,3d 72, 74 (2d Cir.1996); Ashcroft v. Iqbal, 55 U.S. 662, 678 (2009). Thus, the
complaint fails to state a claim against any of these nine defendants and it is dismissed as to
them. Three remain.
3. Favorable Termination Rule
To the extent plaintiff seeks to state a 42 U.S.C. § 1983 claim for damages against
defendants Jangel, McEvoy and Sarasy (or any other defendants he has not connected to the
allegations he has made) for the allegedly unlawful search of his horne, his arrest and conviction,
his claims may be barred by the favorable termination rule of Heck v. Humphrey, 512 U.S. 477,
486-87 (1994). In Heck, the Supreme Court held that in order to recover damages for an
allegedly unconstitutional conviction or imprisonment whose unlawfulness would render a
conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has
been reversed, expunged, invalidated, or called into question through a federal court's issuance of
a writ of habeas corpus, 28 U.S. C.§ 2254. 512 U.S. at 487, n.7. It is unclear from the complaint
if Armstead was convicted on the criminal charges which resulted from the May 17, 2011 search.
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He states alternatively that defendants Jangel "cause[d] me to be sentence[d] to 6 years in prison
because of their arrest without probable cause to even get a search warrant," Complaint at 3, and
that a Nassau County sentence was influenced "without even being convicted for this Queens
Supreme Court case." ld at 4. The complaint does not state what, if anything, he was charged or
the result of any related criminal prosecution. If plaintiff was not convicted, or if he has
successfully challenged his allegedly unconstitutional conviction or otherwise can show it to
have been invalidated, he should so inform the Court. What Armstead has submitted until now
does not satisfy his pleading obligations.
LEAVE TO AMEND
Despite the fact that the complaint fails to state a claim on which relief may be granted, in
light of plaintiffs prose status, Cruz v. Gomez, 202 F.3d 593 (2d Cir. 2000), plaintiff is afforded
30 days to amend his complaint in order to set forth a claim against proper defendant(s) under§
1983. See Fed R. Civ. P. 15(a); see e.g., Davis v. Goard, 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).
CONCLUSION
Accordingly, the complaint against NYPD and the I 03rd Precinct, Lieutenants Minch and
Seegers; Sergeants Shapiro and Demma and Police Officers Lodico, Caserta; Iadevio, Lovett and
Sanna is dismissed for failure to state a claim on which relief may be granted. Any claims on
behalf of plaintiff's son are dismissed without prejudice. Plaintiffs claim regarding the I 03rd
Precinct's alleged failure to investigate a crime is also dismissed.
Plaintiff shall be afforded 30 days leave from the date this Order is entered on the docket
to file an amended complaint to set forth any claim he may have against the remaining
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defendants that has not been foreclosed by this Order. The amended complaint must provide
facts giving rise to his 42 U.S.C. § 1983 claim against defendant(s) (e.g. it must link the conduct
of each defendant named specifically to facts supporting a violation of plaintiffs constitutional
rights) and provide information of the status of any criminal charges arising from the May 17,
2011 search of his home.
The amended complaint must 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 he filed. No summons shall issue at this time and all further
proceedings are stayed until plaintiff complies with this Order. If plaintiff fails to comply with
this Order within the time allowed, the complaint shall be dismissed for failure to state a claim
on which relief may be granted and judgment will enter. Once submitted, the amended complaint
will be reviewed for compliance with this Order and for sufficiency under Fed. R. Civ. P. 8 and
28 U.S.C. §§ 1915(e)(2)(B) and 1915A.
The Court certifies pursuant to 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.
(
Dated: Brooklyn, New York
March 17, 2013
ERICN. VITALIANO
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