Antonetti v. City of New York et al

Filing 4

MEMORANDUM & ORDER: Plaintiff's request to proceed in forrna pauperis ("IFP") pursuant to 28 U.S.C. § 1915 (Dkt. 2) is GRANTED for the purpose of this Memorandum and Order. Plaintiff's Complaint is DISMISSED WITH 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. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). So Ordered by Judge Nicholas G. Garaufis on 12/3/2015. (c/m to pro se; fwd'd for jgm) (Lee, Tiffeny) Modified on 12/4/2015 (Lee, Tiffeny).

D/FUNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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CARLOS ANTONETTI,
Plaintiff,
-against-

MEMORANDUM & ORDER
15-CV-6719 (NGG) (LB)

THE CITY OF NEW YORK, NEW YORK CITY
POLICE DEPARTMENT, 83rd POLICE
PRECINCT,
Defendants.

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NICHOLAS G. GARAUFIS, United States District Judge.

On November 18, 2015, Plaintiff Carlos Antonetti ("Plaintiff'') filed this pro se action
pursuant to 42 U.S.C. § 1983. (Comp!. (Dkt. 1).) Plaintiff's request to proceed in forrna
pauperis ("IFP") pursuant to 28 U.S.C. § 1915 (Dkt. 2) is GRANTED for the purpose of this
Memorandum and Order. For the following reasons, however, Plaintiff's Complaint is
DISMISSED WITH PREJUDICE.

I.

BACKGROUND
The following facts are drawn from Plaintiff's Complaint and its attachments, the

allegations of which of which are presumed to be true for purposes of this Memorandum and
Order. Plaintiff alleges that, early in the morning of August 31, 2013, he was assaulted with a
baseball bat by two men whom he knew from the neighborhood. (Comp!. at 3-4.) Plaintiff
suffered a fractured leg and hand and lacerations to his right hand requiring twenty stitches, for
which he was treated at Wyckoff Heights Medical Center. @at 18-26.) One of the two alleged
assailants was arrested by officers of the 83'd Precinct of the New York City Police Department
(''NYPD") and prosecuted by the Kings County District Attorney's Office. (Id. at 7-9.) Plaintiff
alleges that the NYPD did a poor job conducting its investigation of the assault; specifically, he

asserts that the NYPD failed to escort him to the hospital or take pictures of his injuries,
incorrectly filled out the incident report, and failed to retrieve footage from video cameras. (Id.
at 8-10.) Plaintiff seeks $60,000 in damages for the mental anguish and suffering caused by
Defendants' violation and deprivation of his rights as a victim. (Id. at I 0.)

II.

STAND ARD OF REVIEW
Under 28 U.S.C. § 1915(e)(2)(B}, a district court shall dismiss an IFP action where it

determines that the action "(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."
Pursuant to Bell Atlantic Com. v. Twombly. a complaint must plead facts sufficient to
"state a claim to reliefthat is plausible on its face." 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.
Igbal, 556 U.S. 662, 678 (2009). At the pleadings stage, the court must assume "all wellpleaded, nonconclusory factual allegations in the complaint to be true." Kiobel v. Royal Dutch
Petroleum Co., 621 F.3d 111, 124 (2d Cir. 2010) (citing Iqbal, 556 U.S. at 678-79 (2009)),
aff'd, 133 S. Ct. 1659 (2013). Prose complaints, in particular, are held to less stringent
standards than pleadings drafted by attorneys, and courts are required to read pro se plaintiffs'
complaints liberally, interpreting them as raising the strongest arguments they suggest. See
Erickson v. Pardus, 551 U.S. 89, 94 (2007); Hughes v. Rowe, 449 U.S. 5, 9 (1980); Sealed
Plaintiffv. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008).
Nevertheless, "a district court may use its inherent authority to dismiss a case sua sponte
ifit determines that the action is frivolous." Ashmore v. New York, No. 12-CV-3032 (JG}, 2012

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WL 2377403, at *1 (E.D.N.Y. June 25, 2012) (citing Fitzgerald v. First E. Seventh St. Tenants
Coro., 221 F.3d 362, 363-64 (2d Cir. 2000)), aff'd sub nom Ashmore v. Prus, 510 F. App'x 47
(2d Cir. 2013) (summary order); see also id. ("Section 1915 ... , for example, authorizes courts
to dismiss a 'frivolous or malicious' action, but there is little doubt they would have power to do
so even in the absence of this statutory provision." (quoting Mallard v. U.S. Dist. Court for S.
Dist. of Iowa, 490 U.S. 296, 307-08 (1989))). An action is frivolous within the meaning of
§ 1915 when "the claim is 'based on an indisputably meritless legal theory.'" Livingston v.
Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998) (quoting Nance v. Kelly, 912
F.2d 605, 606 (2d Cir. 1990) (per curiam) (quoting Neitzke v. Williams, 490 U.S. 319, 325, 327
(1989))). A claim is based on an "indisputably meritless legal theory" when the claim either
"lacks an arguable basis in law," or "a dispositive defense clearly exists on the face of the
complaint." Id. (citing Benitez v. Wolff, 907 F.2d 1293, 1295 (2d Cir. 1990) (per curiam); Pino
v. Ryan, 49 F.3d 51, 53 (2d Cir. 1995)).
III.

DISCUSSION
A.

City of New York

"[L]ocal governments are responsible only for their own illegal acts. They are not
vicariously liable under§ 1983 for employees' actions." Connick v. Thompson, 563 U.S. 51, 60
(2011) (internal quotation marks and citation omitted). In order to maintain a § 1983 action
against a municipal defendant, a plaintiff must identify a "policy or custom" that caused his or
her injury. Monell v. Dep't of Soc. Servs., 436 U.S. 658, 694 (1978). To adequately state a
claim for Monell liability, a plaintiff must "make factual allegations that support a plausible
inference that the constitutional violation took place pursuant either to a formal course of action
officially promulgated by the municipality's authority or the act of a person with policy making

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authority for the municipality." Missel v. County of Monroe, 351 F. App'x 543, 545
(2d Cir. 2009) (summary order). Municipal liability "may also arise if [a] municipal defendant
failed to train employees to avoid the behavior in question and ifthe failure rises to the level of
deliberate indifference." Richardson v. City ofNew York, 326 F. App'x 580, 581 (2d Cir. 2009)
(summary order) (citing City of Canton v. Harris, 489 U.S. 378, 388 (1989)).
Plaintiff's claim against the City of New York fails because he has alleged only a single
incident by employees of the NYPD. This is insufficient to establish either a widespread practice
or municipal policy. As the Second Circuit has made clear, "isolated acts ... by nonpolicymaking municipal employees are generally not sufficient to demonstrate a municipal
custom, policy, or usage that would justify municipal liability." Jones v. Town ofE. Haven, 691
F.3d 72, 81 (2d Cir. 2012); see also Henderson v. Town of Greenwich, 317 F. App'x 46, 47
(2d Cir. 2009) (summary order) ("Proof of a single incident of unconstitutional activity is not
sufficient to impose liability under Monell." (quoting City of Oklahoma City v. Tuttle, 471
U.S. 808, 823-24 (1985))).
Even if Plaintiff had adequately alleged a policy or custom causing his injury, a plaintiff
bringing a § 1983 claim must show that the defendant, acting under color of state law, deprived
him of a constitutional right. Rodriguez v. Phillips, 66 F.3d 470, 473 (2d Cir. 1995). However, a
victim of allegedly criminal conduct is not entitled to a criminal investigation or the prosecution
of the alleged perpetrator of the crime, nor is there a constitutional right to an investigation by
government officials of wrongdoing by other government officials. Leeke v. Timmerman, 454
U.S. 83, 85 (1981); see also. e.g., Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973) ("[I]n
American jurisprudence at least, a private citizen lacks a judicially cognizable interest in the
prosecution or nonprosecution of another."); McCrarv v. County of Nassau, 493 F.

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Supp. 2d 581, 588 (E.D.N.Y. 2007) ("A private citizen does not have a constitutional right to
compel government officials to arrest or prosecute another person."); Laupot v. City of New
York, No. Ol-CV-3294 (LMM), 2002 WL 83673, at *2 (S.D.N.Y.Jan. 18, 2002) (dismissing the
plaintiffs claim against the City of New York and the NYPD for failure to prosecute another
individual because plaintiff failed to allege a deprivation of any constitutionally or federally
protected right). Assuming as true Plaintiffs allegations that police officers conducted a
substandard investigation of his assault, these facts do not suggest a violation of the Constitution
or any federal laws by the City. Accordingly, Plaintiffs§ 1983 claim against the City of New
York is dismissed for failure to state a claim on which relief may be granted, pursuant to 28
U.S.C. § 1915(e)(2)(B)(ii).
B.

NYPD

Plaintiff names the NYPD as a defendant in this case. However, the NYPD is a nonsuable agency of the City ofNew York. Jenkins v. City ofNew York, 478 F.3d 76, 93 n.19
(2d Cir. 2007); see also N.Y.C. Charter§ 396 ("All actions and proceedings for the recovery of
penalties forthe violation of any law shall be brought in the name of the city ofNew York and
not in that of any agency, except where otherwise provided by law."). Because a dispositive
defense therefore clearly exists on the face of Plaintiffs complaint, his § 1983 claim against the
NYPD is dismissed as frivolous, pursuant to 28 U.S.C. § 1915(e)(2)(B)(i). See Livingston, 141
F.3d at 437 (a claim is based on an "indisputably meritless legal theory," and is therefore
frivolous, when "a dispositive defense clearly exists on the face of the complaint").
C.

s3rd Precinct of the NYPD

Plaintiff also names the 83'd Precinct of the NYPD as a separate defendant. However, a
police precinct, as a division of the NYPD, is an organizational subdivision of the City of New

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York. As such, it lacks independent legal existence and therefore is not a suable entity.
Flemming v. New York City, No. 02-CV-4113 (AKH), 2003 WL 296921, at *2 (S.D.N.Y.
Feb. 11, 2003); Wilson v. City ofNew York, 800 F. Supp. 1098, 1101 (E.D.N.Y. 1992).
Accordingly, Plaintiffs § 1983 claim against the 83'd Precinct is also dismissed as frivolous,
pursuant to 28 U.S.C. § 1915(e)(2)(B)(i). See Livingston, 141 F.3d at 437.
IV.

CONCLUSION
For the reasons set forth above, the court concludes that Plaintiff has failed to state any

nonfrivolous claim on which relief may be granted. While courts generally should not dismiss
prose complaints "without granting leave to amend at least once when a liberal reading of the
complaint gives any indication that a valid claim might be stated," Cuoco v. Moritsugu, 222
F.3d 99, 112 (2d Cir. 2000), courts may deny plaintiffs the opportunity to amend "when
amendment would be futile," Fulton v. Goord, 591 F.3d 37, 45 (2d Cir. 2009). Here, a review of
the Complaint indicates that amendment would be futile. Accordingly, Plaintiffs Complaint is
DISMISSED WITH 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. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
SO ORDERED.

s/Nicholas G. Garaufis
NICHOLAS G. GARAU~IS
United States District Judge

Dated: Brooklyn, New York
December~, 2015

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