Robinson v. Bratton et al
MEMORANDUM AND ORDER: Plaintiff's request to proceed in forma pauperis pursuant to 28 U.S.C. § 1915 is granted. Plaintiff's second, third, sixth, seventh and ninth causes of action are dismissed pursuant to 28 U.S.C. & #167; 1915(e)(2)(B). In addition, the claims against the New York City Police Department are dismissed. No summonses shall issue against the NYPD. Plaintiff's remaining claims against the City of New York, Mayor de Blasio, and Police Commissi oner Bratton may proceed. The Court respectfully directs the Clerk of Court to issue summonses, and directs the United States Marshals Service to serve copies of plaintiff's complaint, this Memorandum and Order, and the summonses on the three remaining defendants without prepayment of fees. A courtesy copy of the same papers shall be mailed to the Corporation Counsel of the City of New York. The case is referred to the Honorable Lois Bloom, United States Magistrate Judge, for pretria l supervision. 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 Sandra L. Townes, on 7/8/2014. C/mailed by Chambers to pro se Plaintiff. (Party: New York City Police Department terminated.) (Latka-Mucha, Wieslawa)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
DAVID ROBINSON, Jr.,
MEMORANDUM AND ORDER
-against14-CV-2642 (SLT) (LB)
COMMISSIONER WILLIAM BRATTON, THE
NEW YORK CITY POLICE DEPARTMENT,
MAYOR BILL de BLASIO, and THE CITY OF
NEW YORK, in their individual and official
TOWNES, United States District Judge:
Prose plaintiff David Robinson, Jr., brings this civil rights action against the City of New
York; its mayor, Bill de Blasio; the New York City Police Department (the "NYPD") and NYPD
Commissioner William Bratton (collectively, "Defendants"), alleging that Defendants, acting in
their individual and official capacities, violated his rights under various federal Constitutional
amendments and statutes by stopping his car at a checkpoint and conducting what one officer
characterized as a "vehicle safety inspection." Plaintiffs request to proceed informa pauperis
pursuant to 28 U.S.C. § 1915 is granted but, for the reasons set forth below, five of the nine cause
of action alleged in plaintiffs complaint are dismissed and the NYPD is dismissed as a
defendant. The remaining four causes of action may proceed against the City of New York, the
Mayor, and the Police Commissioner.
The following facts are drawn from the complaint, the allegations of which are assumed
to be true for purposes of this memorandum and order. On the evening of February 23, 2014,
plaintiff was driving north on Rockaway Beach Boulevard in Far Rockaway, New York
(Complaint, ,-i 21 ). At around 9:30 p.m., plaintiff encountered a "vehicle safety inspection"
checkpoint staffed by ten NYPD officers who "were stopping and checking all vehicles going in
both directions" (id.). After the two vehicles in front of plaintiffs car were inspected, plaintiff
"proceeded forward and was stopped and approached by a single officer who told him to roll his
window down" (id., ,-r 22.) The officer then told plaintiff that the checkpoint was for a "vehicle
safety inspection," and that "all vehicles on this route are being stopped and inspected" (id.). The
complaint does not allege what, if anything, the officer did to inspect the vehicle or how long the
inspection lasted. However, the complaint states that plaintiff was "allowed to proceed without
further incident" (id).
On February 26, 2014, plaintiff commenced this action by filing a complaint in the United
States District Court for the Southern District of New York (the "SDNY"), along with a request
to proceed informa pauperis. Approximately two months later, the SDNY's Chief Judge, acting
sua sponte, issued an order transferring the case to this Court pursuant to 28 U.S.C. § 1404(a).
Chief Judge Preska did not rule on plaintiffs motion to proceed informa pauperis.
Plaintiffs complaint alleges that the "arbitrary, capricious random 'vehicle safety
inspection' search" violated plaintiffs rights under various federal Constitutional and statutory
provisions. Although the complaint does not specifically allege that plaintiff is bringing this
action pursuant to 42 U.S.C. § 1983, the pleading mentions § 1983 in the caption, in a paragraph
entitled "Introduction and Jurisdiction" (id, ,-r 1), and in a subsequent paragraph (id, ,-i 20).
The complaint specifically alleges nine causes of action. The first four causes of action
are brought against the City of New York and the NYPD alone and allege that the search violated
plaintiffs rights under the Fourth, Fifth, Eighth and Fourteenth Amendment of the United States
Constitution. The first cause of action alleges that the two defendants' "practice policy which
subjected Plaintiff to a 'vehicle safety search"' violated plaintiffs Fourth Amendment rights (id.,
iJ 27). The second cause of action alleges that these two defendants "subjected Plaintiff to search
in excess of government authority that deprived him of due process of law" and thereby violated
the Fifth Amendment (id.,
iJ 28). The third cause of action alleges that these two defendants
"subjected Plaintiff to an unusual search," which allegedly violated his Eighth Amendment rights
iJ 29). The fourth cause of action alleges that these defendants "subjected Plaintiff to an
arbitrary and capricious search," in violation of his rights under the Fourteenth Amendment (id.,
The next four causes of action are brought against defendants Mayor de Blasio and
Commissioner Bratton only, alleging that these two defendants acted with deliberate indifference
to policies which resulted in the Constitutional violations set forth in the first four causes of
action. The fifth cause of action alleges that the Mayor and Police Commissioner were
deliberately indifferent to a policy which subjected plaintiff to a "vehicle safety search" which
violated his Fourth Amendment rights (id.,
iJ 31 ). The sixth cause of action alleges deliberate
indifference to a "policy which subjected Plaintiff to [a] search in excess of government authority
and deprived him [of] due process oflaw and ... his V Amendment right ... " (id.,
iJ 32; brackets
added). The seventh and eighth causes of action allege deliberate indifference to a policy which
subjected plaintiff to "an unusual search that exploited his VIII Amendment rights" and "an
arbitrary and capricious search that exploited his XIV Amendment rights," respectively (id.,
The ninth cause of action alleges:
The defendants City ofNew York, NYPD, de Blasio and Bratton
failed to honor their legal and fiduciary duty to the Constitution by
conspiring to implement multiple 'search engines' which
desecrates several Amendments to the Constitution. Their actions
exploited Plaintiff['s] rights secured by Art. VI of the Constitution,
18 U.S.C. §§ 241, 242 and 42 U.S.C. § 1985(3).
(Complaint,~ 35; bracket.s added). Although this cause of action does not elaborate on plaintiffs
claim under Article VI, another paragraph of plaintiffs complaint notes that "Article VI, cl. 3,"
requires, among other things, that "all executives and judicial officers, both of the United States
and of the several states, shall be bound by oath or affirmation, to support this Constitution ... "
The Complaint seeks declaratory and injunctive relief, as well as compensatory and
punitive damages. First, plaintiff requests a judgment declaring (1) "that the defendants
conspired to illegally search citizens, subject government excess, deny due process of law,
administer unusual punishment, and [sic] equal protection oflaw"
36); (2) that the
defendants['] action[s] are conspiracy and criminal in nature 18 U.S.C. §§ 241AND242 among
37; brackets added); and (3) that the defendants violated Art. VI of the
3 8). Second, plaintiff requests an injunction "prohibiting the defendants from practicing their
policy of illegally searching citizens under the guise of [a] 'vehicle safety inspection"
brackets added). Third, plaintiff seeks compensatory damages from each of the four defendants
in their individual and official capacities (id.,
40-42), as well as punitive damages "from
defendants Raymond Kelly [sic], Michael Bloomberg [sic], NYPD, and the City of New York
... " (id.,~ 43). 1
Former Mayor Bloomberg and former Police Commissioner are not mentioned
anywhere else in the complaint. This Court assumes that plaintiff meant to refer to Mayor de
Blasio and Commissioner Bratton.
A. Standard of Review
Title 28, Section 1915(e)(2), of the United States Code provides that "the court shall
dismiss the case at any time if the court determines that ... the action ... fails to state a claim on
which relief may be granted .... " To state a claim, "a complaint must contain sufficient factual
matter, accepted as true, to state a claim to relief that is plausible on its face." Bell At!. 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).
In evaluating whether a pleading states a claim for relief, "a court must accept as true all
factual allegations contained in a complaint but need not accept legal conclusions." Halebian v.
Berv, 590 F.3d 195, 203 (2d Cir. 2009) (internal quotation marks and brackets omitted) (quoting
Iqbal, 556 U.S. at 678). "Threadbare recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice." Iqbal, 556 U.S. at 678. Moreover, the "[f]actual
allegations must be enough to raise a right to relief above the speculative level," and to nudge a
plaintiffs claims "across the line from conceivable to plausible." Twombly, 550 U.S. at 555,
Pro se complaints, like other pleadings, must contain sufficient factual allegations to meet
the plausibility standard. See Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009). However, "[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."' Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97,
106 (1976)). Thus, a court must read a prose complaint with "special solicitude," Ruotolo v.
!R.S., 28 F.3d 6, 8 (2d Cir. 1994), and must interpret it to raise the strongest claims it suggests.
See Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474-75 (2d Cir. 2006). 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. See Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000);
Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999).
B. Plaintiff's Claims
By citing to 42 U.S.C. § 1983 in both the caption and the body of his complaint, plaintiff
implies that this is a civil rights action brought pursuant to that section. Section 1983 itself
"creates no substantive rights," but p~ovides an avenue "for redress for the deprivation of rights
established elsewhere." Sykes v. James, 13 F.3d 515, 519 (2d Cir. 1993). To state a claim under
§ 1983, "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) (citing Parratt v. Taylor, 451 U.S.
527, 535 (1981), overruled on other grounds by Daniels v. Williams, 474 U.S. 327 (1986)). In
addition, "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.
1. The First Eight Causes ofAction
Plaintiffs first eight causes of action allege violations of the Fourth, Fifth, Eighth and
Fourteenth Amendments of the United States Constitution. Plaintiff is entitled to proceed on the
Fourth/Fourteenth Amendment claims. This Court notes that fixed, traffic-safety checkpoints
have been ruled lawful under some circumstances. See United States v. Bernacet, 724 F.3d 269,
273 (2d Cir. 2013). However, the reasonableness of the seizure occasioned by this type of stop
depends on the facts, which will be determined during the course of discovery.
Plaintiffs complaint does not make out a Fifth or Eighth Amendment violation. In
assessing plaintiffs Fifth Amendment claims, this Court must first assess whether plaintiff is
alleging a violation of substantive due process, procedural due process, or both. "Substantive
due process protects against government action that is arbitrary, conscience-shocking, or
oppressive in a constitutional sense ... " Kaluczky v. City of White Plains, 57 F.3d 202, 211 (2d
Cir. 1995). Procedural due process requires that government action depriving an individual of
substantial interests in life, liberty or property "be implemented in a fair manner." United States
v. Salerno, 481 U.S. 739, 746 (1987).
The two causes of action which allege violations of the Fifth Amendment both focus on
government excesses, implying that plaintiff is alleging a violation of substantive due process.
The second cause of action alleges that the City and the NYPD "subjected Plaintiff to search in
excess of government authority that deprived him of due process of law" and thereby violated the
Fifth Amendment (id.,
28). The sixth cause of action alleges deliberate indifference to a
"policy which subjected Plaintiff to [a] search in excess of government authority and deprived
him [ofJ due process of law and ... his V Amendment right ... " (id.,
32; brackets added).
These two causes of action do not allude to a violation of procedural due process. Accordingly,
this Court construes plaintiffs second and sixth causes of action as alleging only substantive due
process violations. To the extent that this Court is incorrect, plaintiff may amend his complaint
to clarify his Fifth Amendment claims.
The Supreme Court has "always been reluctant to expand the concept of substantive due
process because guideposts for responsible decisionmaking in this unchartered area are scarce
and open-ended." Collins v. Harker Heights, Tex., 503 U.S. 115, 125 (1992) (citing Regents of
Univ. of Mich. v. Ewing, 474 U.S. 214, 225-226 (1985)). Accordingly, "[w]here a particular
Amendment provides an explicit textual source of constitutional protection against a particular
sort of government behavior, that Amendment, not the more generalized notion of 'substantive
due process,' must be the guide for analyzing these claims." Albright v. Oliver, 510 U.S. 266,
273 (1994) (plurality opinion of Rehnquist, C.J.) (quoting Graham v. Connor, 490 U.S. 386, 395
(1989)) (internal quotation marks in Oliver omitted). "Substantive due process analysis is
therefore inappropriate ... if [plaintiff's] claim is 'covered by' the Fourth Amendment." County
a/Sacramento v. Lewis, 523 U.S. 833, 843 (1998).
In this case, the arbitrary government behavior which gives rise to plaintiff's substantive
due process claim is the allegedly unlawful stop and search of plaintiff's car. The Fourth
Amendment of the United States Constitution, which prohibits "unlawful searches and seizures,"
explicitly provides protection against the very sort of government behavior which serves as the
basis for plaintiff's substantive due process claim. Since this claim is "covered by" the Fourth
Amendment, plaintiff's second and sixth causes of action are dismissed. See Lewis, 523 U.S. at
Plaintiff's complaint also fails to make out a claim under the Eighth Amendment of the
United States Constitution. As plaintiff's complaint correctly notes, the Eighth Amendment
prohibits, among other things, "cruel and unusual punishment" (Complaint, ii 10). Yet, the third
cause of action in plaintiff's complaint alleges that defendants City of New York and NYPD
violated the Eighth Amendment by subjecting plaintiff to an "unusual search" (id.,
Similarly, the seventh cause of action alleges that defendants de Blasio and Bratton were
deliberately indifferent to a policy which subjected plaintiff to an "unusual search" which
allegedly violated plaintiff's Eighth Amendment rights (id.,
By its terms, the Eighth Amendment prohibits "unusual punishment," not unusual
searches. Moreover, the Eighth Amendment protects only convicted prisoners, not even pre-trial
detainees. See, e.g., United States v. Walsh, 194 F.3d 37, 47 (2d Cir. 1999) ("the Eighth
Amendment's protection does not apply 'until after conviction and sentence."') (quoting
Graham, 490 U.S. at 392 n. 6). In this case, plaintiff does not allege that he was even detained,
much less convicted, as a result of Defendants' allegedly wrongful acts or omissions. Rather, the
complaint alleges that plaintiff was ultimately "allowed to proceed without further incident"
22). Accordingly, the Eighth Amendment is inapplicable to this case+ and the
third and seventh causes of action are dismissed.
2. The Ninth Cause ofAction
The ninth cause of action alleges that all four Defendants "failed to honor their legal and
fiduciary duty to the Constitution by conspiring to implement multiple 'search engines,"' and
thereby violated plaintiffs rights under "Article VI of the Constitution, 18 U.S.C. §§ 241, 242
and 42 U.S.C. § 1985(3)." This Court is uncertain what "fiduciary" duties plaintiff is referring
to, or what plaintiff means by "multiple search engines." However, the facts alleged in plaintiffs
complaint do not suggest a violation of Article VI of the United States Constitution or 42 U.S.C.
§ 1985, and plaintiff cannot sue for violations of 18 U.S.C. §§ 241 and 242.
First, as plaintiff correctly notes in paragraph 12 of his complaint, "Article VI, cl. 3,"
requires, among other things, that "all executives and judicial Officers, both of the United States
and of the several States, shall be bound by Oath or Affirmation, to support [the federal]
Constitution .... " Nothing in Article VI, however, creates a private right of action in favor of
individuals whose rights have been violated by state and municipal officials. Rather, as noted
above, 42 U.S.C. § 1983 provides mechanism through which plaintiff can sue Defendants for
violations of his Constitutional rights.
Second, the facts alleged in plaintiffs complaint do not suggest a violation of 42 U.S.C.
§ 1985(3). To make out a violation of this subsection, a plaintiff "must allege and prove four
elements: (1) a conspiracy; (2) for the purpose of depriving, either directly or indirectly, any
person or class of persons of the equal protection of the laws, or of equal privileges and
immunities under the laws; and (3) an act in furtherance of the conspiracy; (4) whereby a person
is either injured in his person or property or deprived of any right or privilege of a citizen of the
United States." United Brotherhood of Carpenters v. Scott, 463 U.S. 825, 828-29 (1983). The
private right of action created by this subsection does not extend "to all tortious, conspiratorial
interferences with the rights of others." Griffin v. Breckenridge, 403 U.S. 88, 101 (1971).
Rather, a plaintiff must show that the conspiracy was motivated by "some racial, or perhaps
otherwise class-based, invidiously discriminatory animus." Id. (internal quotation omitted); see
also Posr v. Court Officer Shield No. 207, 180 F.3d 409, 419 (2d Cir. 1999); Mian v. Donaldson,
Lufkin &Jenrette Sec. Corp., 7 F.3d 1085, 1087 (2d Cir. 1993).
The complaint in this case does not allege that plaintiff is a member of a particular race or
class. Moreover, plaintiffs pleading does not suggest that the stop was motivated by racial or
class-based animus. To the contrary, the pleading specifically alleges that the police were
"stopping and checking all vehicles going in both directions" (Complaint,
added), apparently without regard to the race of the occupants.
Third, plaintiff cannot sue to compel a prosecution for violations of 18 U.S.C. §§ 241 and
242, or to collect damages for violations of these statutes. Sections 241 and 242 "are provisions
of the criminal code that prohibit the deprivation of a person's civil or Constitutional rights."
Delarosa v. Serita, No. 14-CV-737 (MKB), 2014 WL 1672557, at *2 (E.D.N.Y. Apr. 28, 2014).
"A private citizen does not have a constitutional right to ... compel the initiation of criminal
proceedings." Lis v. Leahy, No. CIV-90-834E, 1991WL99060 at *1 (W.D.N.Y. June 3, 1991).
Rather, "criminal prosecutions are within the exclusive province of the public prosecutor, who
has complete discretion over the decision to initiate, continue or cease prosecution." Solomon v.
HP. Action Center, HP.D., No. 99 Civ. 10352 (JSR), 1999 WL 1051092, at *1 (S.D.N.Y. Nov.
In addition, while 42 U.S.C. § 1983 provides a mechanism by which a plaintiff may sue
for federal statutory violations, a private individual may bring suit under a federal statute only
when that statute creates a private right of action. See, e.g., Gonzaga Univ. v. Doe, 536 U.S. 273,
283 (2002); Alaji Salahuddin v. Alaji, 232 F.3d 305, 308, 311-12 (2d Cir. 2000). The Second
Circuit has held that there is no private right of action under 18 U.S.C. § 242, Robinson v.
Overseas Military Sales Corp., 21F.3d502, 511 (2d Cir. 1994), and has observed in an
unpublished opinion that "[n]othing in the language or structure of [18 U.S.C. § 241] ...
suggests that Congress intended to create a private right of action" under that statute either. Hill
v. Didio, 191 Fed. App'x 13, 14 (2d Cir. 2006) (summary order) (citing Newcomb v. Ingle, 827
F.2d 675, 676 n. 1 (10th Cir. 1987) (per curiam)).
C. The Defendants
Plaintiff names as defendants both the City of New York and the NYPD, which is an
agency of the City. City agencies themselves are not suable entities. N.Y. City Charter§ 396;
Hall v. City of White Plains, 185 F. Supp. 2d 293, 303 (S.D.N.Y. 2002) ("Under New York law,
departments which are merely administrative arms of a municipality, do not have a legal identity
separate and apart from the municipality and cannot sue or be sued."). Rather, suits against New
York City agencies must be brought against the City of New York. Id. Accordingly, the NYPD
is dismissed as a defendant.
Plaintiffs claims against the remaining defendants may proceed. A municipality can be
liable under § 1983 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 ( 1978). Since plaintiff alleges that the traffic stop which allegedly violated his
Constitutional rights was conducted pursuant to a municipal policy, plaintiffs claims against the
City of New York may proceed.
Similarly, plaintiff may proceed with his claims against Mayor de Blasio and
Commissioner Bratton. While "personal involvement of defendants in alleged constitutional
deprivations is a prerequisite to an award of damages under§ 1983," Wright v. Smith, 21 F.3d
496, 501 (2d Cir. 1994) (quoting Moffitt v. Town of Brookfield, 950 F.2d 880, 885 (2d Cir.
1991)), personal involvement may be established, inter alia, by evidence of a supervisory
official's "deliberate indifference to the rights of others" as manifested by a failure "to act on
information regarding the unlawful conduct of subordinates." Hayut v. State Univ. of N Y, 352
F.3d 733, 753 (2d Cir. 2003). In this case, plaintiff alleges that the Mayor and the Police
Commissioner "acted with deliberate indifference to [a] policy" which subjected Plaintiff to
deprivations of his constitutional rights under the Fourth and Fourteenth Amendments. (Compl.
For the reasons set forth above, plaintiffs second, third, sixth, seventh and ninth causes
of action are dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B). In addition, the claims against the
New York City Police Department are dismissed. No summonses shall issue against the NYPD.
Plaintiffs remaining claims against the City of New York, Mayor de Blasio, and Police
Commissioner Bratton may proceed. The Court respectfully directs the Clerk of Court to issue
summonses, and directs the United States Marshals Service to serve copies of plaintiffs
complaint, this memorandum and order, and the summonses on the three remaining defendants
without prepayment of fees. A courtesy copy of the same papers shall be mailed to the
Corporation Counsel of the City of New York. The case is referred to the Honorable Lois
Bloom, United States Magistrate Judge, for pretrial supervision. The Court certifies pursuant to
28 U.S.C. § 1915(a)(3) that any appeal would not be taken in good faith and therefore informa
pauperis status is denied for purpose of an appeal. See Coppedge v. United States, 369 U.S. 438,
United States District Judge
Dated: July¥, 2014
Brooklyn, New York
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?