Jemmott v. NYC et al

Filing 8

MEMORANDUM AND ORDER: Plaintiff's 5 request to proceed in forma pauperis pursuant to 28 U.S. C. § 1915 is granted. The complaint is dismissed. In light of this Court's duty to liberally construe pro se compla ints, plaintiff is granted 30 days leave from the date of this order to file an amended complaint. No summons shall issue at this time and all further proceedings shall be stayed for 30 days. If plaintiff fails to comply with this Order wit hin the time allowed, judgment shall enter. 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 William F. Kuntz, II on 1/13/2016. C/mailed. (Latka-Mucha, Wieslawa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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JOHN JEMMOTT,

MEMORANDUM AND ORDER
15-CV-7199 (WFK)

Plaintiff,

-againstNYC; NYPD; BROOKLYN NORTH TASK
FORCE,
Defendants.

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KUNTZ, II, United States District Judge.
Plaintiff John Jemmott, brings this prose civil rights action pursuant to 42 U.S.C. § 1983.
Plaintiffs request to proceed in forma pauper is pursuant to 28 U.S. C. § 1915 is granted. For the
reasons discussed below, the complaint is dismissed and plaintiff is granted thirty (30) days leave
from the date of this order to file an amended complaint.

BACKGROUND
Plaintiff alleges that "on a certain date in question," members of the 75th Precinct and the
Brooklyn North Task Force, "illegally entered our home and destroyed property without valid
documentation, being a said search warrant or a no knock warrant [and] none of these legal
documents were produced at any time upon the entry of the residence nor were any of the officers
sh[ields] displayed at anytime." Compl. at 3. Plaintiff seeks injunctive relief and, "compensation
for the damage and destruction that was done to the property," and $10 million dollars. Compl. at

5.

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STANDARD OF REVIEW
Pro se complaints are held to less stringent standards than pleadings drafted by attorneys

and the Court is required to read the plaintiffs pro se complaint liberally and interpret it as raising
the strongest arguments it suggests. 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).
Moreover, at the pleadings stage of the proceeding, the Court must assume the truth of "all
well-pleaded, nonconclusory factual allegations" in the complaint. Kiobel v. Royal Dutch
Petroleum Co., 621F.3d111, 123 (2d Cir. 2010) (citing Ashcroft v. Iqbal. 556 U.S. 662, 678-79
(2009)). A complaint must plead sufficient facts to "state a claim to relief that is plausible on its
face."Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). However, under 28 U.S.C. §
1915(e)(2)(B), a district court shall dismiss an in forma pauperis action where it is satisfied that
the action is "(i) 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."
DISCUSSION
In order to maintain a § 1983 action, plaintiff must allege two essential elements. First,
"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). Second, "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. "Section 1983 itself creates no substantive rights, [but] provides
only a procedure for redress for the deprivation of rights established elsewhere." Sykes v. James,
13 F.3d 515, 519 (2d Cir. 1993) (citing City of Oklahoma City v. Tuttle, 471 U.S. 808, 816
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(1985)).
Plaintiffs claims cannot proceed against the New York City Police Department or
Brooklyn North Task Force as they are not suable entities. 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). This provision has been construed
to mean that New York City departments and agencies, as distinct from the City itself, cannot be
sued.

See,~

Lopez v. Zouvelos, No. 13 CV 6474, 2014 WL 843219, at *2 (E.D.N.Y. Mar 04,

2014) (dismissing all claims against the NYPD as a non-suable entity); Henderson v. Kelly, No.
13 CV 5738, 2014 WL 689046, at *1 (E.D.N.Y. Feb 20, 2014) (same). Wingate v. City of New
York, No. 08 CV 217, 2008 WL 203313, at *2 (E.D.N.Y. Jan. 23, 2008) (police precinct is not a
suable entity).
Likewise, plaintiffs claim against the City of New York must be dismissed as he fails to
allege any facts demonstrating that an officially adopted policy or custom of the City of New York
caused a violation of his federally protected rights. See Bd. of County Comm'rs of Bryan County,
OK v. Brown, 520 U.S. 397, 403-04 (1997); Monell v. Dept. of Soc. Servs. of City ofNew York,
436 U.S. 658, 694 (1978). "(T]o hold a city liable under section 1983 for the unconstitutional
actions of its employees, a plaintiff is required to plead and prove three elements: (1) an official
policy or custom that (2) causes the plaintiff to be subjected to (3) a denial of a constitutional
right." Torraco v. Port Auth. ofN.Y. and N.J., 615 F.3d 129, 140 (2d Cir. 2010) (internal
quotation marks omitted). See also Dwares v. City of New York, 985 F.2d 94, 100 (2d Cir. 1993)
(stating that a mere assertion of a custom or policy is not sufficient to sustain a § 1983 claim
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against a municipal defendant in the absence of any allegations of fact). Although plaintiff names
the City of New York in the caption of his complaint, he does not allege any facts in the body of
his complaint to support a Monell claim. See Merced v. City ofNew York, No. 14 CV 6285, 2014
WL 5682516, at* 2 (E.D.N.Y. Nov. 3, 2014) (quoting Dudley v. Meekins. No. 13 CV 1851, 2013
WL 1681898, at *4 (E.D .N. Y. April 17, 2013) ("Plaintiffs Complaint cannot reasonably be
interpreted to allege facts sufficient to show that any alleged injury was caused by any policy or
custom of the City.")).
Finally, although plaintiff lists Detective Joel Polichron as a defendant on page 2 of the
form complaint, he supplies no facts concerning this defendant in the body of the complaint.
Thus, it is unclear what Detective Polichron's alleged involvement in this incident is and any
claims against him are dismissed without prejudice.

CONCLUSION
Accordingly, the complaint is dismissed. 28 U.S.C. § 1915(e)(2)(B). In light of this
Court's duty to liberally construe prose complaints, plaintiff is granted thirty (30) days leave from
the date of this order to file an amended complaint. Cruz v. Gomez, 202 F.3d 593 (2d Cir. 2000).
Plaintiff is directed that his amended complaint must comply with Rule 8(a) of the Federal Rules
of Civil Procedure. Plaintiff must identify each defendant in both the caption and the body of the
amended complaint, and name as proper defendants those individuals who have some personal
involvement in the actions he alleges in the amended complaint. He must set forth factual
allegations that are personal to plaintiff to support his claims against all individually named
defendants. Even if plaintiff does not know the names of the individuals, he may identify each of
them as John Doe or Jane Doe along with their title (for example, Police Officer John Doe or

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Correction Officer Jane Doe, etc.). To the best of his ability, plaintiff must describe each
individual and the role he or she played in the alleged deprivation of his rights. Plaintiff must also
provide the dates and locations for each relevant event.
Plaintiff is advised that an amended complaint does not simply add to the first complaint.
Once an amended complaint is filed, it completely replaces the original. Therefore, plaintiff must
include in the amended complaint all the necessary information that was contained in the original
complaint. The amended complaint must be captioned as an "Amended Complaint" and bear the
same docket number as this order.
No summons shall issue at this time and all further proceedings shall be stayed for thirty
(30) days. If plaintiff fails to comply with this order within the time allowed, judgment shall
enter. 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. Coppedge
v. United States, 269 U.S. 438, 444-45 (1962).

SO ORDERED.

/s/ Judge William F. Kuntz, II
AiLLIAM'F. KuNt. , II.
United States Dist 'ct Judge

Dated: Brooklyn, New York
January 13, 2016

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