Henderson v. Doe et al
Order Dismissing Parties: For the reasons explained in the attached Order, plaintiff's claims against the City of New York, the New York City Police Department, the 113th Precinct, and Chandra Gomes are dismissed. The Clerk of Court is respectf ully requested to amend the caption to reflect their dismissal. The U.S. Marshals Service is directed to serve a summons on defendant Michael Kelly without prepayment of fees. A copy of this Order will be mailed to plaintiff at his address of record. Ordered by Judge John Gleeson on 2/20/2014. (Herling, Adam)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
NOT FOR PUBLICATION
- versus -
MICHAEL KELLY, CHANDRA GOMES,
113th PRECINCT, NEW YORK CITY, NEW
YORK CITY POLICE DEPARTMENT,
JOHN DOE POLICE OFFICER,
JOHN GLEESON, United States District Judge:
On October 1, 2013, plaintiff Todd Henderson, currently incarcerated at Rikers
Island, filed this pro se complaint pursuant to 42 U.S.C. § 1983 in the Southern District of New
York. See Compl., ECF No. 2. On October 2, 2013, Henderson’s application to proceed in
forma pauperis was granted by Chief Judge Loretta Preska. ECF No. 3. Henderson’s complaint
was transferred to this Court from the Southern District of New York on October 15, 2013. ECF
No. 4. For the reasons discussed below, I dismiss Henderson’s claims against the City of New
York (the “City”), the New York Police Department (“NYPD”), the 113th Precinct, and Legal
Aid Attorney Chandra Gomes. Henderson’s claims against the remaining defendants shall
Henderson alleges that he was falsely arrested on April 4, 2012, by Detective
Michael Kelly and other John Doe police officers from the 113th Precinct for selling a controlled
substance. Compl., ECF No. 2, at 3. The charges were later dropped “due to failure to gain
enough evidence to convict . . . .” Id. Henderson claims that his wrists were bruised from the
handcuffs. Id. He also asserts that Gomes, his court-appointed attorney, gave him bad legal
advice. Id. at 5. Henderson seeks damages of $15,000,000. Id.
STANDARD OF REVIEW
In reviewing Henderson’s complaint, I am mindful that he is proceeding pro se
and that his pleadings should be held “to less stringent standards than formal pleadings drafted
by lawyers.” Hughes v. Rowe, 449 U.S. 5, 9 (1980) (quotation marks omitted). Although courts
must read pro se complaints with “special solicitude,” Triestman v. Fed. Bureau of Prisons, 470
F.3d 471, 475 (2d Cir. 2006) (internal quotation marks and citation omitted), and interpret them
“to raise the strongest arguments that they suggest,” id. at 474 (internal quotation marks and
citation omitted), the 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); see also Harris v.
Mills, 572 F.3d 66, 72 (2d Cir. 2009) (“Even after Twombly, though, we remain obligated to
construe a pro se compliant liberally.”).
A district court shall dismiss an in forma pauperis action if it “(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); see also 28
U.S.C. § 1915A.
A. Claims Against the NYPD and 113th Precinct
As an initial matter, Henderson’s claims against the NYPD and the 113th Precinct
fail because these defendants are not suable entities. 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. The NYPD is an
agency of the City of New York and is a non-suable entity. See, e.g., Campbell v. NYC City, No.
12-cv-2179, 2012 WL 3027925, at *2 (E.D.N.Y. July 23, 2013) (dismissing all claims against
the NYPD and New York Department of Corrections as non-suable entities). Similarly, police
precincts lack independent legal existence and cannot be sued. See Wingate v. City of New York,
No. 08-cv-217, 2008 WL 203313, at *2 (E.D.N.Y. Jan. 23, 2008).
B. Claim Against the City of New York
Henderson’s claim against the City must be dismissed because he fails to allege
facts demonstrating that an official policy or custom caused a violation of his federally protected
rights. See Bd. of Cnty. Comm’rs of Bryan Cnty., OK v. Brown, 520 U.S. 397, 403-04 (1997);
Monell v. Dept. of Soc. Servs. of City of New York, 436 U.S. 658, 694 (1978). “[T]o hold a city
liable under section 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.” Torraco v. Port Auth. of N.Y. & N.J., 615
F.3d 129, 140 (2d Cir. 2010) (internal quotation marks omitted). Absent any allegation of
factual support, the mere assertion of a custom or policy is not sufficient to sustain a § 1983
claim against a municipality. See Dwares v. City of New York, 985 F.2d 94, 100 (2d Cir. 1993).
Here, Henderson names the City of New York in the caption of his complaint, but does not
allege any facts to support a Monell claim. See Dudley v. Meekins, No. 13-cv-1851, 2013 WL
1681898, at *4 (E.D.N.Y. April 17, 2013) (“Plaintiff’s Complaint cannot reasonably be
interpreted to allege facts sufficient to show that any alleged injury was caused by any policy or
custom of the City.”).
C. Claim Against Gomes
A claim for relief under § 1983 must allege facts showing that the defendant acted
under color of a state “statute, ordinance, regulation, custom, or usage.” 42 U.S.C. § 1983.
Section 1983 “constrains only state conduct, not the ‘acts of private persons or entities.’” Hooda
v. Brookhaven Nat. Lab., 659 F. Supp. 2d 382, 393 (E.D.N.Y. 2009) (quoting Rendell-Baker v.
Kohn, 457 U.S. 830, 837 (1982)); Adickes v. S.H. Kress & Co., 398 U.S. 144, 150 (1970); see
also Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999). “Because the United States
Constitution regulates only the Government, not private parties, a litigant claiming that his
constitutional rights have been violated must first establish that the challenged conduct
constitutes state action.” Flagg v. Yonkers Sav. & Loan Ass’n, 396 F.3d 178, 186 (2d Cir. 2005)
(internal quotation marks omitted). It is well-established that court-appointed attorneys like
Gomes who are performing a lawyer’s traditional functions as counsel to defendant do not act
“under color of state law” and therefore are not subject to suit under § 1983. See Polk Cnty. v.
Dodson, 454 U.S. 312, 325 (1981); Rodriguez v. Weprin, 116 F.3d 62, 65-66 (2d Cir. 1997);
Garcia v. City of New York, No. 13-cv-4655, 2013 WL 153756, at *3 (E.D.N.Y. Jan. 14, 2013).
Accordingly, Gomes is not a state actor and Henderson’s § 1983 claim against her is dismissed.
For the reasons explained above, Henderson’s claims against the City, the NYPD,
the 113th Precinct, and Gomes are dismissed. See 28 U.S.C. § 1915(e)(2)(B); 28 U.S.C.§
1915A(b). No summons shall issue as to these defendants and the Clerk of Court is directed to
amend the caption to reflect their dismissal. The United States Marshals Service is respectfully
directed to serve a summons and the complaint upon the remaining defendant, Detective Kelly,
without prepayment of fees. The Clerk of Court shall send a copy of this Order and plaintiff’s
complaint to the Corporation Counsel of the City of New York and to Henderson. I certify
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 the purpose of any appeal. Coppedge v. United
States, 369 U.S. 438, 444-45 (1962).
John Gleeson, U.S.D.J.
Dated: February 20, 2014
Brooklyn, New York
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