Armstead v. New York City Police Department et al

Filing 8

MEMORANDUM AND ORDER. The case is dismissed without prejudice pursuant to 28 U.S.C. § 1915A. 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. The Clerk is directed to close this case for administrative purposes. Ordered by Judge Eric N. Vitaliano on 4/30/2013. Forwarded for judgment. C/M. (Siegfried, Evan)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

-------------------------------------------------------){

ANTHONY ARMSTEAD,

Plaintiff,
MEMORANDUM AND ORDER
13 CV 891 (ENV) (JMA)

-v-

THE CITY OF NEW YORK; POLICE
OFFICER ADAM JAN GEL, Shield
#14094 of the New York City,
Defendants.

--------------------------------------------------------){
VITALIANO, D.J.,

On February 14, 2013, plaintiff, Anthony Armstead, who is incarcerated, filed the instant
action prose pursuant to 42 U.S.C. § 1983 alleging violations of his son's and his constitutional
rights. By Order dated March 17, 2013, the complaint against Lieutenants Minch and Seegers;
Sergeants Shapiro and Demma and Police Officers Lodico, Caserta, Iadevio, Lovett, and Sanna
was dismissed for failure to state a claim on which relief may be granted. The claims against the
New York City Police Department and the 103'd Precinct were dismissed because they are not
suable entities under the New York City Charter. In addition, the claims made on behalf of
plaintiffs son were dismissed without prejudice to the right of the son to make such claims on
his own. The claims remaining against the City of New York and Officers Jangel and Sarasy and
Deputy Inspector McEvoy were dismissed with leave to replead. On April 19, 2013, Armstead
submitted an Amended Complaint which completely replaces the original filing. The Amended
Complaint names only the two remaining defendants, Police Officer Adam Jangel and the City
ofNew York. For the reasons set forth below, the Amended Complaint is dismissed.
Standard of Review

Under 28 U.S.C. § 1915A, a district court "shall review, before docketing, if feasible or,

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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 officer 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." Id;

Liner v. Goard, 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).
To avoid dismissal, 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 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).
Discussion
A. City of New York
Plaintiffs Amended Complaint against the City ofNew York must be dismissed. A
municipality can be liable under § 1983 only if a plaintiff can show that a municipal policy or
custom caused the deprivation of his constitutional rights. See Monell v. Dep't of Soc. Servs., 436
U.S. 658,690-91,98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). The doctrine of respondeat superior
cannot be used to establish municipal liability. Connick v. Thompson,- U.S.--,--, 131
S.Ct. 1350, 1359, 179 L.Ed.2d 417 (2011); Cash v. County of Erie, 654 F.3d 324, 333-34 (2d
Cir. 2011); Dzugas-Smith v. Southhold Union Free School Dist., No. 08 CV 1319,2012 WL
1655540, at *20 (E.D.N.Y. May 9, 2012). Here, plaintiff does not allege, and nothing in his
Amended Complaint suggests, that any of the allegedly wrongful acts or omissions on the part of

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any City employee are attributable to a municipal policy or custom. Thus, plaintiff has not made
a showing, in his pleadings, sufficient to impose Monel/liability on the City of New York.

B. Officer Jangel
Although plaintiff complied with the Court's direction to provide facts giving rise to his
42 U.S.C. § 1983 claim against defendants-that is, it must link the conduct of each defendant
named to facts said to support a violation of plaintiffs constitutional rights-in his Amended
Complaint, Armstead's 42 U.S.C. § 1983 claim for damages against defendant Jangel for the
allegedly unlawful search of his home, his arrest and/or his prosecution is barred by the favorable
termination rule of Heck v. Humphrey, 512 U.S. 477, 486-87 (1994) (holding that a section 1983
action seeking money damages is not cognizable if a favorable decision would "necessarily
imply the invalidity of [a] conviction or sentence" unless such a sentence has previously been
invalidated). In Heck, the United States Supreme Court held:
[l]n order to recover damages for allegedly unconstitutional conviction or
imprisonment, or for other harm caused by actions whose unlawfulness would
render a conviction or sentence invalid, a § 1983 plaintiff must prove that the
conviction or sentence has been reversed on direct appeal, expunged by executive
order, declared invalid by a state tribunal authorized to make such determination,
or called into question by a federal court's issuance or a writ of habeas corpus, 28
U.S.C. § 2254; 512 U.S. at 486-87.
Plaintiff states that he pleaded guilty to a misdemeanor charge which arose from the
allegedly unconstitutional May 12, 2011 search and May 17,2011 arrest and prosecution under
indictment number: QN10261/2011. (Amend. Compl. at 8). 1 Plaintiff has not successfully
challenged his allegedly invalid conviction; it remains on appeal in state court. !d. Thus, his
claim for damages against the arresting officer is barred by Heck, since a favorable decision
would necessarily imply the invalidity of his state court criminal conviction. The claim is

1

The Court refers to the page numbers assigned to the Amended Complaint by the Court's electronic filing system.

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dismissed without prejudice. 2 28 U.S.C. § 1915A.
Conclusion

Accordingly, this case is dismissed without prejudice pursuant to 28 U.S.C. § 1915A.
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).
The Clerk is directed to close this case for administrative purposes.

SO ORDERED.

s/ ENV
ERIC N. VITALIANO
United States District Judge

Dated: Brooklyn, New York
April 30, 2013

2
Before bringing an action for damages, such as plaintiff is doing here, he must first succee~ in overturning his
conviction or having it declared invalid, whether by an administrative board, state court, or m a ~ederal hab~as .

corpus proceeding. See Heck, 512 U.S. at 486-87; see also Amaker v. Weiner, 179 F.3d 48 (2d C!r.l999) (d1sm•ssal
under Heck is without prejudice; if plaintiffs conviction is declared invalid or called mto question by a federal
court's issuance of a writ of habeas corpus, the suit may be reinstated).

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