McCoy v. NYPD 72nd Precinct et al
Filing
7
MEMORANDUM DECISION AND ORDER. The Court grants plaintiff leave to file an amended complaint as directed by this order within 20 days of the date of this order. The amended complaint must be captioned, "Amended Complaint" and shall bear the same docket number as this order. The Amended Complaint shall completely replace the original complaint. If plaintiff fails to file an amended complaint within 20 days, the action shall be dismissed without prejudice and judgment shall enter. See attached order for further details. Ordered by Judge Brian M. Cogan on 10/18/2013. C/M with unpublished decisions by chambers. (Siegfried, Evan)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------------------------------THOMAS McCOY,
Plaintiff,
- against NYPD 72nd PRECINCT, NYPD 79th
PRECINCT,
Defendants.
-----------------------------------------------------------
X
:
:
:
:
:
:
:
:
:
:
:
X
MEMORANDUM
DECISION AND ORDER
13 Civ. 5247 (BMC) (LB)
COGAN, District Judge.
Plaintiff pro se brings this action against two New York City Police Department
precincts. The Court grants plaintiff’s request to proceed in forma pauperis pursuant to 28
U.S.C. § 1915. Plaintiff is granted 20 days leave to amend his complaint as detailed below.
Plaintiff’s request for the appointment of pro bono counsel is denied without prejudice to
renewal at a later time.
BACKGROUND
Plaintiff alleges that he was pulled over while driving near 53rd-56th Streets and 3rd
Avenue in Brooklyn between 10:00 p.m. and 12:00 a.m. on May 12, 2013. He states that he
“was being pulled over for suspended license and having a clear cover over my temporary
plates.” He alleges that he was searched, then maced, then “thrown on the ground and dragged
and stomped on by numberous [sic] officers on my face & body & RT hand until I was put
unconscious.” He alleges that he suffered injury to his right shoulder, his right hand, his right
knee, the right side of his stomach, and to his cranium. He states that he was evaluated and
treated by medical providers at Lutheran Hospital and at the clinic at Rikers Island.
Plaintiff also describes a second incident that took place at about 2:00 a.m on May 20,
2013, at Atlantic Avenue and Nostrand Avenue in Brooklyn. Plaintiff alleges that he was
arrested by the 79th Precinct “on trumped up charges” of fourth degree grand larceny and third
degree criminal mischief. He asserts that the charges were subsequently dropped. He alleges
that as a result of this arrest, he suffered mental stress and “the fear of police authority.”
Plaintiff seeks compensation of $300,000 for medical expenses and mental stress. He
also requests “a form of apology and a good reason for the excessive force & unlawful arrest.”
DISCUSSION
Under 28 U.S.C. § 1915(e)(2)(B), a district court shall dismiss a case 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.” An
action is frivolous when “(1) the factual contentions are clearly baseless, such as when
allegations are the product of delusion or fantasy; or (2) the claim is based on an indisputably
meritless legal theory.” Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir.
1998) (internal quotations omitted).
At the pleading stage of the proceeding, the Court must assume the truth of “all
nonconclusory factual allegations” in the complaint. Kiobel v. Royal Dutch Petroleum Co., 621
F.3d 111, 123 (2d Cir. 2010) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949
(2009). 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, 127 S. Ct. 1955, 1974 (2007). Although
“detailed factual allegations” are not required, “[a] pleading that offers ‘labels and conclusions’
or ‘a formulaic recitation of the elements of a cause of action will not do.’” Ashcroft, 556 U.S.
at 678, 129 S. Ct. at 1949 (quoting Twombly, 550 U.S. at 555, 127 S. Ct. at 1955). Similarly, a
2
complaint is insufficient to state a claim “if it tenders ‘naked assertion[s]’ devoid of ‘further
factual enhancement.’” Id. (quoting Twombly, 550 U.S. at 557, 127 S. Ct. at 1955).
It is axiomatic that pro se complaints are held to less stringent standards than pleadings
drafted by attorneys, and the Court is required to read the plaintiff’s pro se complaint liberally
and interpret it as raising the strongest arguments it suggests. See Erickson v. Pardus, 551 U.S.
89, 94, 127 S. Ct. 2197, 2200 (2007); Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474-75
(2d Cir. 2006).
Plaintiff’s claim that his constitutional rights were violated may be cognizable under 42
U.S.C. § 1983. In order 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). Second, “the conduct
complained of must have deprived a person of rights, privileges or immunities secured by the
Constitution or laws of the United States.” Id. In order 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 McFadden v. City of New York, No. 10-CV-01176, 2010 WL 1930268, at *3
(E.D.N.Y. May 11, 2010).
To prevail on a claim for false arrest, plaintiff must demonstrate the absence of probable
cause to arrest. See Singer v. Fulton Cnty. Sheriff, 63 F.3d 110, 118 (2d Cir. 1995) (“There can
be no federal civil rights claim for false arrest where the arresting officer had probable cause.”).
“Probable cause is established when the arresting officer has knowledge or reasonably
trustworthy information sufficient to warrant a person of reasonable caution in the belief that an
offense has been committed by the person to be arrested.” Id. at 119 (internal quotations
omitted). A subsequent conviction on the charges upon which a plaintiff was arrested could also
3
demonstrate probable cause sufficient to defeat a claim for false arrest. See Weyant v. Okst, 101
F.3d 845, 852 (2d Cir. 1996) (citing Broughton v. State, 37 N.Y.2d 451, 458, 225 N.E.2d 310,
315 (1975)); Roesch v. Otarola, 980 F.2d 850, 852–53 (2d Cir. 1992) (holding that favorable
termination of the underlying criminal proceeding is an element of a false arrest claim).
But there are problems with plaintiff’s complaint. The complaint does not name any
individual defendants, even as John Does. The police department and police precincts or
subdivisions are not suable entities. The New York City Charter provides that suits “shall be
brought in the name of the City of New York and not in that of any agency.” N.Y. City Charter
§ 396; see also Jenkins v. City of New York, 478 F.3d 76, 93 n.19 (2d Cir. 2007). Although the
City of New York may be sued, a municipality can be liable under § 1983 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, 98 S. Ct. 2018, 2035-36 (1978).
Plaintiff does not allege any policy or custom attributable to the City. Accordingly, the 72nd and
79th Precincts are dismissed as defendants, and the City of New York will not be substituted.
In light of plaintiff’s pro se status, the court grants leave to amend the Complaint to
identify the individuals whom plaintiff believes to have been responsible for the alleged
deprivation of his constitutional rights. Even if plaintiff does not know the names and badge
numbers of each of these individuals, he may identify each of them as John Doe Police Officer
#1, or the like, along with any description he can give and the role each of them played in these
incidents. He must provide the date and location for all relevant events and a brief description of
what each defendant did or failed to do in violation of his civil rights.
4
CONCLUSION
For the reasons identified above, the Court finds that plaintiff has failed to state a claim
against the named defendants. The Court grants plaintiff leave to file an amended complaint as
directed by this order within 20 days of the date of this order. The amended complaint must be
captioned, “Amended Complaint” and shall bear the same docket number as this order. The
Amended Complaint shall completely replace the original complaint. If plaintiff fails to file an
amended complaint within 20 days, the action shall be dismissed without prejudice and judgment
shall enter. No summonses shall issue at this time, and all further proceedings shall be stayed for
20 days. 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. See Coppedge v. United States, 369 U.S. 438, 82 S. Ct. 917 (1962).
SO ORDERED.
Digitally signed by Brian
M. Cogan
________________________________
U.S.D.J.
Dated: Brooklyn, New York
October 18, 2013
5
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?