Tekiner v. Department of Corrections et al
MEMORANDUM AND ORDER granting 2 Motion for Leave to Proceed in forma pauperis; denying 3 Motion to Appoint Counsel and DISMISSING COMPLAINT WITH LEAVE TO AMEND: For the reasons stated in the attached Memorandum and Order, the complaint, which is being treated as filed IFP for the purpose of this Order, is dismissed for failure to state a claim. However, in light of Tekiner's pro se status, the Court directs him to file an amended complaint and an amended IFP application within thirty (30) days from the date of this Memorandum and Order. If Tekiner fails to file an amended complaint and an amended IFP application within the allotted time, judgment dismissing this action shall be entered. If timely filed, the amended complaint an d amended IFP application shall be reviewed for compliance with this Order and pursuant to 28 U.S.C. § 1915(e)(2)(B). Tekiner's application for pro bono counsel is denied without prejudice. The Clerk of Court is directed to mail a copy of this Memorandum and Order to pro se plaintiff, and to note the mailing on the docket. Ordered by Judge Roslynn R. Mauskopf on 5/30/2014. (Mauskopf, Roslynn)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
MEMORANDUM AND ORDER
- against DEPARTMENT OF CORRECTIONS, NYC
POLICE, 112th PCT., 19th PCT., and
COMMISSIONER OF POLICE,
ROSLYNN R. MAUSKOPF, United States District Judge.
On February 21, 2014, pro se plaintiff Jan Tekiner filed this action under 42 U.S.C.
§ 1983 against the above-captioned defendants alleging, inter alia, false arrest, false
imprisonment, and assault. The Court grants Tekiner’s request to proceed in forma pauperis
(“IFP”) solely for the purpose of this Order.1 For the reasons set forth below, the complaint is
dismissed with leave to file an amended complaint along with an amended IFP application within
thirty (30) days from the date of this Memorandum and Order.
Construing Tekiner’s allegations liberally, and listing them chronologically, he claims
that on March 9, 1983, police officers in the 19th Police Precinct, along with unspecified “local
and federal actors,” entrapped him, which led to his arrest and conviction. (Compl. (Doc. No. 1)
at 7 (ECF pagination).) Tekiner further contends that, on or about July 19, 2013, an unnamed
police officer in the 112th Precinct used excessive force against him upon arresting Tekiner in
Tekiner did not complete the IFP application with the requisite information, and indicates that he receives no
income from any sources whatsoever. It strains credulity that Tekiner has no source of income at all, even if it is in
the form of public assistance, Social Security benefits, or financial help from friends or relatives.
The allegations are gleaned from Tekiner’s complaint form and attached documents, which are dated October 25
and 21–22, 2013, respectively. However, the Court did not receive those documents until several months later on
February 21, 2014.
his home. (Id. at 4.) Tekiner also alleges the following concerning a period (or periods) in
which he was incarcerated: that starting in July 2013, the Department of Corrections (“the
DOC”)3 installed confidential informants in the dormitory where Tekiner was incarcerated; 2)
that on or about October 4, 2013, unnamed corrections officers seized and failed to return his
property; 3) that at three unspecified times in the Otis Bantum Correctional Facility in Queens,
Corrections Officer “Curtain” assaulted and attempted to assault him; and 4) that on December
18, 2013, the DOC was negligent in transporting him by bus to a Queens courthouse, which
caused him to sustain an unspecified injury. (Id. at 3, 6, 8.) Tekiner attributes defendants’
conduct to the success of his recently published memoir, “View from the Electric Chair by
Anonymous,” and to his 1978 civil lawsuits in the Southern District of New York against then
President Carter and various federal agencies. (Id. at 5, 7–8.)
STANDARD OF REVIEW
A complaint must plead “enough facts to state a claim to relief that is plausible on its
face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009). Although a pro se plaintiff must satisfy these pleading requirements, the Court
is “obligated to construe a pro se complaint liberally.” Harris v. Mills, 572 F.3d 66, 71–72 (2d
Cir. 2009) (citations omitted). In other words, the Court holds pro se complaints to a less
exacting standard than complaints drafted by attorneys, see Boykin v. KeyCorp, 521 F.3d 202,
213–14 (2d Cir. 2008) (citation omitted), and should interpret such pleadings to “raise the
strongest arguments that they suggest.” Green v. United States, 260 F.3d 78, 83 (2d Cir. 2001)
Because Tekiner lists his address in the complaint as Rikers Island (see Compl. at 3), Tekiner’s allegations appear
directed at the New York City Department of Corrections, as opposed to the New York State Department of
Corrections and Community Supervision.
(citations omitted). However, the Court “need not argue a pro se litigant’s case nor create a case
for the pro se which does not exist.” Molina v. New York, 956 F. Supp. 257, 259 (E.D.N.Y.
When a pro se plaintiff has altogether failed to satisfy a pleading requirement, the Court
must dismiss the claim. See Rodriguez v. Weprin, 116 F.3d 62, 65 (2d Cir. 1997) (citation
omitted). Additionally, the Court is required to dismiss an IFP complaint if it is “(i) frivolous or
malicious, (ii) fails to state a claim upon which relief may be granted, or (iii) seeks monetary
relief from a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B).
A. New York City Agencies
Tekiner’s complaints against the DOC, the New York City Police Department (“the
NYPD”), and two NYPD police precincts must be dismissed for failure to state a claim. See 28
U.S.C. § 1915(e)(2)(B)(ii). 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. City Charter § 396 (2009). That provision has been understood to
signify that City “departments and agencies [such as the DOC or the NYPD and its precincts], as
distinct from the City itself, lack the capacity to be sued.” Ximines v. George Wingate High Sch.,
516 F.3d 156, 159–60 (2d Cir. 2008) (per curiam); Jenkins v. City of New York, 478 F.3d 76, 93
n.19 (2d Cir. 2007) (NYPD not a suable entity); Adams v. Galletta, 966 F. Supp. 210, 212
(E.D.N.Y. 1997) (DOC not a suable entity). For this reason, the complaint is dismissed as to the
DOC, the NYPD, and the 112th and 19th Police Precincts pursuant to 28 U.S.C.
B. Police Commissioner
Tekiner’s complaint against the New York City Police Commissioner (“the
Commissioner”)4 must be dismissed as well, as he provides no facts to support the
Commissioner’s liability. As a prerequisite to an award of damages under 42 U.S.C. § 1983, a
plaintiff must allege the defendant’s direct or personal involvement in the purported
constitutional deprivation. See Farid v. Ellen, 593 F.3d 233, 249 (2d Cir. 2010) (citing Farrell v.
Burke, 449 F.3d 470, 484 (2d Cir. 2006)); Back v. Hastings on Hudson Union Free School
District, 365 F.3d 107, 122 (2d Cir. 2004). Tekiner fails to make even a single allegation against
the Commissioner, much less specific allegations that the Commissioner had any direct
involvement with, knowledge of, or responsibility for the claimed deprivations of his civil rights.
See Farrell, 449 F.3d at 484.
Insofar as Tekiner names the Commissioner in the lawsuit based purely on his
supervisory role over the NYPD, vicarious liability is “inapplicable” in the context of an action
under § 1983. Iqbal, 556 U.S. at 676. Rather, a “plaintiff must plead that each Governmentofficial defendant, through the official’s own individual actions, has violated the Constitution.”
Id.; Richardson v. Goord, 347 F.3d 431, 435 (2d Cir. 2003) (per curiam) (“mere linkage in the
prison chain of command is insufficient to implicate a state commissioner of corrections or a
prison superintendent in a 1983 claim”) (internal quotation marks omitted). As a consequence,
the complaint is dismissed as to the Commissioner for failure to state a claim pursuant to 28
U.S.C. § 1915(e)(2)(B)(ii).
Tekiner does not name which commissioner he is suing. Given that his papers are dated in October 2013, he is
presumably suing former Commissioner Ray Kelly.
C. Corrections Officer “Curtain”5
Lastly, Tekiner’s complaint against Corrections Officer “Curtain” must be dismissed for
failure to state a claim. As noted, a claim has facial plausibility when the plaintiff pleads
“factual content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Iqbal, 556 U.S. at 678. To state a civil rights claim under § 1983, a
complaint must contain “specific allegations of fact which indicate a deprivation of constitutional
rights; allegations which are nothing more than broad, simple, and conclusory statements are
insufficient to state a claim under [§] 1983.” Alfaro Motors, Inc. v. Ward, 814 F.2d 883, 887 (2d
Cir.1987). Tekiner’s generalized allegations against Curtain fall short of meeting these basic
pleading standards. Tekiner contends only that Curtain twice “assaulted” him, and once
attempted to assault him by threatening to use pepper spray. (Compl. at 8.) Other than this lone
reference to pepper spray, Tekiner does not specify the actions Curtain took to “assault” him,
whether Tekiner sustained injury in any of these incidents, when these incidents occurred, or
where they transpired. Simply alleging, in conclusory fashion, that Curtain “assault[ed]”
Tekiner, or that Curtain attempted to assault him by threatening him with pepper spray, does not
state a viable claim for relief.
Accordingly, the complaint, which is being treated as filed IFP for the purpose of this
Order, is dismissed for failure to state a claim. See 28 U.S.C. § 1915(e)(2)(B).
However, in light of Tekiner’s pro se status, the Court directs him to file an amended
complaint and an amended IFP application within thirty (30) days from the date of this
Memorandum and Order. In the amended complaint, Tekiner must clearly set forth: the facts,
Although Tekiner did not include Curtain as one of the captioned defendants, he is the only individual defendant
whom Tekiner actually names in the complaint and attached papers, and Tekiner specifically states that he “sue[s]
C.O. Curtain for $75,000.” (Compl. at 8.)
including the wrongful acts that give rise to each claim; the dates, times and places of the alleged
acts; and each individual(s) who committed each alleged wrongful act. That is to say, Tekiner
should specifically allege facts indicating the involvement of each of the named defendants in the
purported constitutional deprivations in sufficient detail to establish that those defendants were
tangibly connected to those deprivations.
The amended complaint must be captioned “AMENDED COMPLAINT” and bear the
docket number “14-CV-1293 (RRM),” and must be filed with the Court within thirty (30) days
from the date of this Memorandum and Order, along with an amended IFP application. All
further proceedings shall be stayed for thirty (30) days or until Tekiner has complied with this
Order. If Tekiner fails to file an amended complaint and an amended IFP application within the
allotted time, judgment dismissing this action shall be entered. If timely filed, the amended
complaint and amended IFP application shall be reviewed for compliance with this Order and
pursuant to 28 U.S.C. § 1915(e)(2)(B).
Tekiner’s application for pro bono counsel is denied without prejudice.
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 IFP status is denied for the purpose of an appeal.
Coppedge v. United States, 369 U.S. 438, 444–45 (1962).
The Clerk of Court is directed to mail a copy of this Memorandum and Order to pro se
plaintiff, and to note the mailing on the docket.
Roslynn R. Mauskopf
Dated: Brooklyn, New York
May 30, 2014
ROSLYNN R. MAUSKOPF
United States District Judge
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