Polanco v. Rikers Island Anna K. Kross Correction

Filing 4

MEMORANDUM AND ORDER granting 2 Motion for Leave to Proceed in forma pauperis and DISMISSING THIS ACTION WITH LEAVE TO REPLEAD for the reasons set forth herein. Should plaintiff fail to file an Amended Complaint within 30 days of the date of this Memorandum and Order, this action will be dismissed 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 7/3/2014. (Mauskopf, Roslynn)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-----------------------------------------------------------X
CARLOS POLANCO,
Plaintiff,

MEMORANDUM AND ORDER
14-CV-2063 (RRM)

- against “RIKERS ISLAND ANNA M. KROSS
CORRECTION,”
Defendant.
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ROSLYNN R. MAUSKOPF, United States District Judge.

Pro se plaintiff Carlos Polanco brings this civil rights action against the Anna M. Kross
Center at Rikers Island alleging the loss of his personal property. Polanco’s application to
proceed in forma pauperis is granted pursuant to 28 U.S.C. § 1915. The complaint is dismissed
with leave to file an amended complaint within thirty (30) days from the date of this
Memorandum and Order.
BACKGROUND
Polanco alleges that, while held at Rikers Island on June 18, 2013, he was called to a
court appearance without being permitted to gather his personal belongings, including legal
papers, “artistic writing,” a book that he was attempting to publish, and clothing. He was
subsequently released from custody and given a Metro Card. Polanco tried to return to Rikers
Island on the prisoner-transport bus to retrieve his belongings, but “they physically forced and
pushed [him] out.” Polanco further alleges that he attempted to trace his belongings by
“speaking to officer captain deputy and making 311 appointments as with social service,” but
that he received messages stating that the property may have been discarded. Polanco does not
indicate whether he complied with the procedures established by the New York City Department

of Correction, or whether he filed a claim in the New York Court of Claims. Polanco has been
“devastated, depressed and beyond disrespected” as a result of his loss of property, and he seeks
compensation for the lost items as well as injunctive relief in the form of improved policies for
preserving and returning inmates’ personal belongings. (Comp. at 4–5 (ECF pagination).)
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 all allegations contained in the complaint are assumed to be true, this
tenet is “inapplicable to legal conclusions.” Id.
While pro se complaints must contain sufficient factual allegations to meet the
plausibility standard, see Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), the Court reviews such
allegations by reading the complaint with “special solicitude,” interpreting them to raise the
“strongest arguments that they suggest.” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471,
474–75 (2d Cir. 2006); see Erickson v. Pardus, 551 U.S. 89, 94 (2007). Nonetheless, the Court
is required to dismiss a complaint filed in forma pauperis if it “(i) is 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). If a liberal reading of
the pleading “gives any indication that a valid claim might be stated,” the Court must grant leave
to amend it. See Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000).
A viable claim under 42 U.S.C. § 1983 requires that a plaintiff demonstrate that the
challenged conduct was “committed by a person acting under color of state law,” and that the

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conduct “deprived [the plaintiff] of rights, privileges, or immunities secured by the Constitution
or laws of the United States.” Cornejo v. Bell, 592 F.3d 121, 127 (2d Cir. 2010). A plaintiff
seeking to recover money damages must establish that the named defendant was personally
involved in the complained-of wrongdoing or misconduct. See Farrell v. Burke, 449 F.3d 470,
484 (2d Cir. 2006).
DISCUSSION
Polanco fails to state a claim for relief. Initially, Polanco names the Anna M. Kross
Center at Rikers Island as the sole defendant in his action. But neither the Rikers Island
correctional facility as a whole, nor any subunit of that jail, constitutes a suable entity. Rikers
Island is part of the New York City Department of Correction, which is an agency of the City of
New York. 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 Jenkins v. City of
New York, 478 F.3d 76, 93 n.19 (2d Cir. 2007).
Moreover, a municipality, such as the City of New York, can be held liable under § 1983
only if Polanco 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 (1978); Cash v.
County of Erie, 654 F.3d 324, 333 (2d Cir. 2011) (“[T]o establish municipal liability under
§ 1983, a plaintiff must prove that action pursuant to official municipal policy caused the alleged
constitutional injury”) (citation and internal quotation marks omitted). A single incident of
unconstitutional activity is insufficient to impose liability on a municipality unless that incident
was caused by an existing, unconstitutional municipal policy that can be attributed to a municipal
policymaker. See City of Oklahoma City v. Tuttle, 471 U.S. 808, 823 (1985). Polanco has not
alleged an unconstitutional policy or custom that would confer liability on the City of New York.

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To the extent Polanco’s allegations sound in a due process claim for deprivation of
property under § 1983, his current pleadings are inadequate to state a claim for relief. To bring
an actionable property-deprivation claim, Polanco has to demonstrate that an “established state
procedure” deprived him of property “without according him proper procedural safeguards,”
Logan v. Zimmerman Brush Co., 455 U.S. 422, 436 (1982), or that “random and unauthorized
conduct” of a state employee yielded the intentional deprivation of Polanco’s property and “a
meaningful post[-]deprivation [state] remedy for the loss [was not] available.” Hudson v.
Palmer, 468 U.S. 517, 533 (1984). Polanco’s allegations are insufficient on either score.
As relevant here, the New York City Department of Correction has an established
procedure for discharged inmates to obtain their belongings, which entails scheduling an
appointment to pick up the property at the Rikers Island Central Cashier Office within 120 days
of release. See http://www.nyc.gov/html/doc/html/how/pickup_inmate_property.shtml. Further,
New York law provides a remedy for an inmate to seek compensation stemming from the
deprivation of his or her property – i.e., filing an action in the New York Court of Claims. See
N.Y. Ct. Cl. Act. § 9 (McKinney’s 2004); see also Smith v. O’Connor, 901 F. Supp. 644, 647
(S.D.N.Y. 1995). Polanco, though, fails to plead any facts reflecting that he complied with the
City’s property-return policy, or that he filed suit in the Court of Claims. Because Polanco has
not shown that he availed himself of those procedures and potential remedies, he cannot state a
viable due process claim for deprivation of property. Accordingly, Polanco’s claim for
compensation relating to the papers and clothing that he left at Rikers Island is dismissed for
failure to state a claim. See 28 U.S.C. § 1915(e)(2)(B)(ii).
However, in light of Polanco’s pro se status, he is afforded thirty (30) days from the date
of this Memorandum and Order to file an amended complaint. In that new pleading, Polanco

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must indicate the procedures that he followed in seeking to retrieve his belongings or to receive
compensation for his losses. Polanco should also name individual defendants that may be
amendable to suit under § 1983. The new pleading must be captioned “Amended Complaint,”
and bear the same docket number as that found on this Memorandum and Order.
CONCLUSION
For the foregoing reasons, Polanco’s complaint is dismissed for failure to state a claim on
which relief may be granted. See 28 U.S.C. § 1915(e)(2)(B). Polanco is granted thirty (30) days
from the date of this Memorandum and Order to file an amended complaint. No summons shall
issue at this time, and all further proceedings shall be stayed for thirty days. If Polanco fails to
re-plead in a timely fashion, the Court will enter judgment dismissing the complaint.
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 the purpose of an appeal. See
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.
SO ORDERED.

Roslynn R. Mauskopf

Dated: Brooklyn, New York
July 3, 2014

____________________________________
ROSLYNN R. MAUSKOPF
United States District Judge

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