Valdiviezo v. City of New York et al

Filing 6

MEMORANDUM AND ORDER: The Court grants plaintiff's 2 request to proceed in forma pauperis but dismisses the City of New York and the 66th Precinct for failure to state a claim pursuant to 28 U.S.C. §§ 1915A(b). No summons s hall issue as to these defendants. Plaintiff's 3 application for pro bono counsel is denied at this time. The complaint against Detective William Greer, who was employed at the 66th Precinct on or about 2/28/2013, shall proceed. The Clerk of Court shall issue a summons against this defendant and the United States Marshals Service is directed to serve the summons, plaintiffs complaint and a copy of this Memorandum and Order upon this defendant without prepayment of fees. The Clerk of Court shall mail a courtesy copy of the same papers to the Corporation Counsel for the City of New York, Special Federal Litigation Division. 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 in forma pauperis status is denied for the purpose of any appeal. SO ORDERED by Judge Sandra L. Townes, on 9/16/2014. C/mailed to pro se Plaintiff. (Latka-Mucha, Wieslawa)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------------------------x:
MARIO VALDIVIEZO,

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.... "_

- ( ;\.,, t:.

Plaintiff,
MEMORANDUM AND ORDER

-againstTHE CITY OF NEW YORK; DET. WILLIAM
GREER, and 66rn PRECINCT,

14-CV -4897 (SL T)

Defendants.
---------------------------------------------------------x:
TOWNES, United States District Judge:
On July 25, 2014, plaintiff Mario Valdiviezo, who is currently incarcerated at the George
R. Viemo Center (G.R.V.C.) on Rikers Island, commenced this prose action by delivering three
completed forms to G.R.V.C. personnel for mailing to the Court. One form is entitled
"Complaint under the Civil Rights Act, 42 U.S.C. § 1983," and includes a three-page,
handwritten "Statement of Facts." The other two forms are a "Request to Proceed In Forma

Pauperis" and an "Application for the Court to Request Pro Bono Counsel." The Court grants
plaintiffs request to proceed informa pauperis but, for the reasons set forth below, dismisses the
City of New York and the 661h Precinct from this action and denies plaintiffs application for pro

bono counsel.
BACKGROUND
The following facts are drawn ex:clusively from plaintiffs form complaint (hereafter, the
"Complaint") and the three-page "Statement of Facts" (hereafter, "SOF''), which is inserted after
page 3 of the Complaint. For some unspecified period prior to February 26, 2013, plaintiff was

living with a girlfriend, Delia Hernandez, in his apartment on New Utrecht A venue in Brooklyn,
New York (SOF, pp. 1-2). At some juncture, Hernandez threatened plaintiffs minor daughter,
who lived with them (id., p. 2). Plaintiff reported the threat to officers at the New York Police
Department's 66th Precinct, the precinct closest to his home (id.). The officers there refused to
permit him to file a criminal complaint against Hernandez, asserting that his apartment was in the
62°d Precinct (id.).
Thereafter, plaintiff decided to send his daughter to Florida to live with her mother (id., p.
1). On February 26, 2013, while they were returning home from the airport, plaintiff asked
Hernandez to move out (id.). Hernandez was "highly upset" and, unbeknownst to plaintiff,
"decided to go to the precinct and put in a complaint against [plaintiff] on February 28, 2013"

(id.).
Sometime between 5:45 and 6:00 on the evening of February 28, 2013, two
detectives--defendant William Greer and an unidentified "black male"-knocked on the door of
plaintiffs apartment (Complaint, pp. 2-3; SOF, p. 1). Although they did not have a warrant, the
detectives forced plaintiff out of his apartment and into the hallway, where they arrested and
searched him (Complaint, p. 3; SOF, p. 1). The detectives removed plaintiffs jewelry, watch
and cell phone and placed the items inside his apartment, telling him that he could not take those
belongings to the precinct (SOF, p. 1). The detectives assured plaintiff that he would be released
later that night and could retrieve his property then, but those assurances proved false (id.).
Plaintiff was not released and, while detained, lost his job, the apartment and all his belongings
(id.).

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At the precinct, plaintiff was allegedly subjected to various forms of harassment and
maltreatment. According to plaintiff, unspecified officers made "racial remarks;" refused his
requests for food, water, and access to a bathroom; and forced him to sign a form which plaintiff,
who could not "read properly," did not understand (SOF, p. 2). The officers never told him why
he had been arrested (id.).
The case against plaintiff was dismissed on July 9, 2013 (Complaint, p. 3; SOF, p. 3).
In April 2014, plaintiff received from his lawyer a document entitled "Complainant's Statement
oflntent," which was allegedly provided to the lawyer by the District Attorney's Office and
which is attached to the Complaint as Exhibit 1. In that document, which appears to have been
completed by Hernandez on March 5, 2013, Hernandez states that she does not wish to press
charges against plaintiff. Hernandez claims that she was forced to falsely incriminate plaintiff by
an unspecified detective who wanted to hold plaintiff in custody in anticipation of charging him
in another case.
In his Complaint, plaintiff seeks $2 million in compensatory damages for his "unlawful
arrest," the warrantless search, the detective's solicitation of Hernandez's "false statement," and
the District Attorney's failure to immediate disclose the "Complainant's Statement oflntent"
(Complaint, p. 5). The complaint names three defendants-the City of New York, Detective
Greer and the 661h Precinct-but does not contain any specific allegations concerning the City.

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DISCUSSION
Standard of Review
Section 1915A(a) of the Title 28 of the United States Code requires a district court to
"review, before docketing, if feasible or, in any event, as soon as practicable after docketing, a
complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer
or employee of a governmental entity." Upon review, the court is required to "identify
cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint ...
(1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks
monetary relief from a defendant who is immune from such relief." 28 U.S.C. § 1915A(b).
When a prisoner is proceeding prose, the Court is required to read the complaint liberally and
interpret it raising the strongest arguments it suggests. See Erickson v. Pardus, 551 U.S. 89
(2007); Hughes v. Rowe, 449 U.S. 5, 9 (1980); Sealed Plaintiffv. Sealed Defendant #1, 537 F.3d
185, 191-93 (2d Cir. 2008). 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).
Even a pro se 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

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true, this tenet is "inapplicable to legal conclusions." Id. The Federal Rules of Civil Procedure
do not require detailed factual allegations, but demands "more than an unadorned,
the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
As the Supreme Court has stated:
A pleading that offers "labels and conclusions" or "a formulaic
recitation of the elements of a cause of action will not do." Nor
does a complaint suffice if it tenders "naked assertion[ s]" devoid of
"further factual enhancement."

Id. (quoting Twombly, 550 U.S. at 555, 557) (citations omitted; brackets added in Iqbal).
Section 1983
According to the caption of the Complaint, plaintiff is proceeding pursuant to 42 U.S.C.
§ 1983. This section provides, in pertinent part:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or the
District of Columbia, subjects, or causes to be subjected, any
citizen of the United States or other person within the jurisdiction
thereof to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the party
injured in an action at law, suit in equity, or other proper
proceeding for redress ....
This statute "creates no substantive rights; it provides only a procedure for redress for the
deprivation ofrights established elsewhere." Sykes v. James, 13 F.3d 515, 519 (2d Cir. 1993),

cert. denied, 512 U.S. 1240 (1994).
In order to maintain a § 1983 action, a plaintiff must allege both that the conduct
complained of was "committed by a person acting under color of state law" and "deprived a
person ofrights, privileges, or immunities secured by the Constitution or laws of the United
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States." Pitchell v. Callan, 13 F.3d 545, 547 (2d Cir. 1994). Moreover, "[i]t is well settled in
this Circuit that '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 Broolfzeld, 950 F.2d 880, 885 (2d Cir. 1991)). Plaintiff cannot
base a defendant's liability on respondeat superior or on "linkage in the ... chain of command."

Hernandez v. Keane, 341 F.3d 137, 144 (2d Cir. 2003).
Plaintiff's Claims against the City of New York
Although municipalities, such as the City of New York, are considered '"persons" for
purposes of§ 1983, the Supreme Court has held that "a municipality may not be held liable
under§ 1983 solely because it employs a tortfeasor." Board of County Comm 'rs v. Brown, 520
U.S. 397, 403 (1997); see Monell v. Dep 't ofSocial Servs., 436 U.S. 658, 689 ( 1978). Rather,
in Monell and subsequent cases, the Supreme Court has "required a plaintiff seeking to impose
liability on a municipality under § 1983 to identify a municipal 'policy' or 'custom' that caused
the plaintiff's injury." Brown, 520 U.S. at 403 (citing cases). A municipal "policy" results "from
the decisions of its duly constituted legislative body or of those officials whose acts may fairly be
said to be those of the municipality." Id. at 403-04 (citing Monell, 436 U.S. at 694). A "custom"
is a practice which, although not formally approved by an appropriate decisionmaker, is "so
widespread as to have the force of law." Id. at 404 (citing Monell, 436 U.S. at 690-91).
In order to state a claim against a municipality, a complaint must "allege facts sufficient
to show that the ... violation of his constitutional rights resulted from a municipal custom or

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policy." Costello v. City of Burlington, 632 F.3d 41, 49 (2d Cir. 2011) (internal quotations and
citation omitted); see Ceparano v. Suffolk County Dep 't of Health, 485 Fed. App 'x 505, 508 (2d
Cir. 2012) (summary order). Although there is no heightened pleading requirement for claims
alleging municipal liability, see Leatherman v. Tarrant County Narcotics Intelligence &

Coordination Unit, 507 U.S. 163, 168 (1993), the Second Circuit has affirmed the sua sponte
dismissal of claims against municipalities in cases where the complaint failed to plausibly allege
that the constitutional violation at issue resulted from a municipal custom or policy. See, e.g.,

Meehan v. Kenville, 555 Fed. App'x 116, 117 (2d Cir. 2014) (summary order) (claim against a
municipal entity was properly dismissed under 28 U.S.C. § 1915 for "failure to plausibly allege
that any constitutional violation resulted from a custom, policy or practice of the municipality");

Cancel v. Amakwe, 551 Fed. App'x 4, 7 (2d Cir. 2013) (summary order) (claims against City
properly dismissed under 28 U.S.C. § 1915 where plaintiff failed to "plausibly allege that he was
deprived of a constitutional right pursuant to an official or unofficial municipal policy").
In this case, plaintiff fails to make any specific allegations concerning the City of New
York. Moreover, plaintiff does not allege, and nothing in his complaint suggests, that any of the
allegedly wrongful acts or omissions on the part of any City employee are attributable to a
municipal policy or custom. Therefore, plaintiff has failed to state a claim against the City of
New York. See Brown, 520 U.S. at 403. Moreover, since there is nothing in the complaint to
suggest that plaintiff could identify a municipal policy or custom that resulted in the officers'

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allegedly unconstitutional actions, plaintiffs claims against the City of New York are dismissed
with prejudice. See Cuoco, 222 F.3d at 112; Gomez, 171 F.3d at 795.
Plaintiff's Claims against the 66'h Precinct
Although the complaint contains allegations concerning actions or omissions which
occurred at the 66th Precinct, the precinct itself is not a suable entity. 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 construed to mean that New York City departments [such as the New York
Police Department 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, 159-160 (2d Cir. 2008) (per

curiam); see, e.g., Jenkins v. City ofNew York, 478 F.3d 76, 93 n.19 (2d Cir. 2007) (NYPD not a
suable entity); Thomas v. NYC Police Dep't, No. 12-CV-6327, 2013 WL 431335, at *1
(E.D.N.Y. Feb. 4, 2013) ("The complaint cannot proceed against the NYPD or the DOC");

Richardson v. NYC Police Dep't, No. 12-CV-5753, 2013 WL 101403, at *2 (E.D.N.Y. Jan. 7,
2013) ("The NYPD and its divisions, including the Transit Police, may not be sued directly;
instead, any suit against a City agency must be brought against the City of New York."); Johnson

v. NYC Police Dep't, No. 12-CV-5423, 2012 WL 5607505, at *3 (E.D.N.Y. Nov. 15, 2012)
("New York City departments and agencies, as distinct from the City itself, lack the capacity to
be sued."). Therefore, any claims against the 66th Precinct are dismissed pursuant to 28 U.S.C.
§§ 1915A(b); 1915(e)(2)(B).

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CONCLUSION
For the reasons set forth above, the complaint is dismissed as to the City of New York
and the 66 1h Precinct for failure to state a claim pursuant to 28 U.S.C. §§ 1915A(b). No
summons shall issue as to these defendants. Plaintiffs application for pro bona counsel is
denied at this time.
The complaint against Detective William Greer, who was employed at the 66 1h Precinct
on or about February 28, 2013, shall proceed. The Clerk of Court shall issue a summons against
this defendant and the United States Marshals Service is directed to serve the summons,
plaintiffs complaint and a copy of this Memorandum and Order upon this defendant without
prepayment of fees. The Clerk of Court shall mail a courtesy copy of the same papers to the
Corporation Counsel for the City of New York, Special Federal Litigation Division.
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 in forma pauper is status is denied for the purpose
of any appeal. Coppedge v. United States, 369 U.S. 438, 444-45 (1962).

SO ORDERED.

/S/ Judge Sandra L. Townes
'SANDRA L. TOWNES '
United States District Judge
Dated: September 16, 2014
Brooklyn, New York

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