Justice v. City of New York et al

Filing 6

MEMORANDUM & ORDER: The Court liberally construes the action as being brought pursuant to 42 U.S.C. § 1983 and grants Plaintiff's 2 request to proceed in forma pauperis pursuant to 28 U.S.C. § 1915 solely for the purp ose of this Order. On 2/1/2013, Plaintiff filed identical claims against Police Officer Greg Holme and others related to the same incident. See Justice v. Kuhnapfel, No. 13-CV-659 (MKB), currently pending before the Court. According ly, the Complaint is dismissed as duplicative and pursuant to 28 U.S.C. § 1915(e)(2)(B). Plaintiff is cautioned not to file duplicative actions in this Court. 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 Margo K. Brodie, on 8/27/2013. C/mailed. (Forwarded for Judgment.) (Latka-Mucha, Wieslawa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------------------------BRENDA JUSTICE,
MEMORANDUM & ORDER
13-CV-4016 (MKB)

Plaintiff,
v.
CITY, STATE OF NEW YORK; NYPD 5TH
PRECINCT; U.S. MARSHALLS [SIC] USA,
Defendants.
----------------------------------------------------------MARGO K. BRODIE, United States District Judge.

Plaintiff Brenda Justice filed this pro se action on July 12, 2013, alleging that she was
falsely arrested on October 15, 2012, in Brooklyn, New York, and that her son was wrongfully
taken away from her by a United States Marshal. The Court liberally construes the action as
being brought pursuant to 42 U.S.C. § 1983 and grants Plaintiff’s request to proceed in forma
pauperis pursuant to 28 U.S.C. § 1915 solely for the purpose of this Order. According to
Plaintiff’s allegations, “U.S. Marshall [sic] Greg Holme seized my child, never told me why, never
returned him,” and “my child was taken by NY US Marshalls [sic], NY held me 30 days, case was
dismissed . . . NY falsely accused me.”

(Compl. at 1.)

On February 1, 2013, Plaintiff filed

identical claims against Police Officer Greg Holme and others related to the same incident.
Justice v. Kuhnapfel, No. 13-CV-659 (MKB), currently pending before the Court. For the
reasons discussed below, the Complaint is dismissed.

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See

I.

Standard of Review
Pro se complaints are held to less stringent standards than pleadings drafted by attorneys and

the Court is required to read Plaintiff’s pro se Complaint liberally and interpret it as raising the
strongest arguments it suggests. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (“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 formal pleadings drafted by lawyers.’” (citations omitted)); see
also Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191–93 (2d Cir. 2008) (“[W]hen [a]
plaintiff proceeds pro se, . . . a court is obliged to construe his pleadings liberally.” (quoting
McEachin v. McGuinnis, 357 F.3d 197, 200 (2d Cir. 2004))). If a liberal reading of the complaint
“gives any indication that a valid claim might be stated,” the Court must grant leave to amend the
complaint. Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000); see also Ashmore v. Prus, 510 F.
App’x 47, 49 (2d Cir. 2013) (“District courts should generally not dismiss a pro se complaint
without granting the plaintiff leave to amend.”), cert. denied, 133 S. Ct. 2038 (2013). At the
pleadings stage, the Court must assume the truth of “all well-pleaded, nonconclusory factual
allegations” in the Complaint. Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111, 124 (2d Cir.
2010) (citing Ashcroft v. Iqbal, 556 U.S. 662, 677–79 (2009)). The Complaint must plead
sufficient facts to “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007).
Under 28 U.S.C. § 1915(e)(2)(B), 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). An action is “frivolous” when either: (1) “the ‘factual
contentions are clearly baseless,’ such as when allegations are the product of delusion or fantasy”; or
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(2) “the claim is ‘based on an indisputably meritless legal theory.’” Livingston v. Adirondack
Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998) (citation omitted); see also Collins v. Goord, 581 F.
Supp. 2d 563 (S.D.N.Y. 2008) (quoting Livingston, 141 F.3d at 577).
II. The 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 official 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 City of New York., 436 U.S. 658, 694–95
(1978); see Torraco v. Port Auth. of N.Y. & N.J., 615 F.3d 129, 140 (2d Cir. 2010) (“[T]o hold a city
liable under § 1983 for the unconstitutional actions of its employees, a plaintiff is required to plead
and prove three elements: (1) an official policy or custom that (2) causes the plaintiff to be
subjected to (3) a denial of a constitutional right.” (alteration in original)). Here, Plaintiff does not
allege any facts demonstrating that any officially adopted policy or custom of the City of New York
caused a violation of her federally protected rights.
III. New York City Police Department, 5th Precinct
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 of New
York and not in that of any agency, except where otherwise provided by law.” N.Y.C. Admin.
Code & Charter Ch. 16 § 396. This provision has been construed to mean that the New York City
Police Department (“NYPD”) is not a suable entity. See, e.g., Thomas v. N.Y.C. Police Dep’t., No.
12-CV-6327, 2013 WL 431335, at *1 (E.D.N.Y. Feb. 4, 2013) (finding that “[t]he complaint cannot
proceed against the NYPD” under Section 396 of the New York City Charter); Richardson v. N.Y.C.
Police Dep’t, No. 12-CV-5753, 2013 WL 101403, at *2 (E.D.N.Y. Jan. 7, 2013) (“The NYPD and
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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.”); Johnson v. N.Y.C. Police Dep’t, No.
12-CV-5423, 2012 WL 5607505, at *3 (E.D.N.Y. Nov. 15, 2012) (“New York City departments and
agencies, as distinct from the City itself, lack the capacity to be sued. Therefore, any claims against
the NYPD are dismissed.” (citations omitted)). For this reason, Plaintiff’s claims against the
NYPD are dismissed for failure to state a claim. 28 U.S.C. § 1915(e)(2)(B).
IV. Duplicative Claim
Finally, Plaintiff’s claim in the instant action relates to her arrest on October 15, 2012,
stemming from the removal of Plaintiff’s son from her custody.

Plaintiff states in her Complaint

that “U.S. Marshall [sic] Greg Holme seized my child, never told me why, never returned him,”
and “my child was taken by NY US Marshalls [sic], NY held me 30 days, case was dismissed . . .
NY falsely accused me.”

(Compl. at 1.)

On February 1, 2013, Plaintiff filed identical claims

against Police Officer Greg Holme and others related to the same incident, which is currently
pending before the Court. See Justice v. Kuhnapfel, No. 13-CV-659 (MKB).

The instant

Complaint raises no new allegations and no useful purpose would be served by the litigation of this
duplicative action. Therefore, these claims are dismissed as duplicative. See Kanciper v. Suffolk
Co. Soc. for the Prevention of Cruelty to Animals, Inc., --- F.3d ---, ---, 2013 WL 3368887, at *4 (2d
Cir. July 8, 2013) (“As part of its general power to administer its docket, a district court may stay or
dismiss a suit that is duplicative of another federal court suit” (quoting Curtis v. Citibank, N.A., 226
F.3d 133, 138 (2d Cir. 2000))).1
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The Court notes that another related action filed by Plaintiff in the United States District
Court for the Southern District of New York (“Southern District”) was transferred to this Court by
Order dated June 25, 2013. See Justice v. Haro, 13-CV-3696 (MKB). Plaintiff also has a
pending action in the Southern District which relates to the removal of Plaintiff’s son from her
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V.

CONCLUSION
Accordingly, the Complaint is dismissed as duplicative and pursuant to 28 U.S.C.

§ 1915(e)(2)(B).

Plaintiff is cautioned not to file duplicative actions in this Court. 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.

Coppedge v. United States,

269 U.S. 438, 444–45 (1962).

SO ORDERED:

s/ MKB
MARGO K. BRODIE
United States District Judge
Dated: August 27, 2013
Brooklyn, New York

custody. See Justice v. City of NY, No. 13-CV-3319 (JPO) (S.D.N.Y.).
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