Schweitzer v. Brunstein

Filing 15

MEMORANDUM AND ORDER: The Court dismisses the instant pro se complaint for failure to state a claim on which relief may be granted. 28 U.S.C. § 1915(e)(2)(B)(ii). 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. Coppedge v. United States, 369 U.S. 438, 444-45 (1962). The Clerk of Court is respectfully directed to enter judgment accordingly and close this case.The Clerk of Court is directed to mail a copy of this Memorandum and Order along with the Judgment to Schweitzer and note the mailing on the docket. Ordered by Judge Roslynn R. Mauskopf on 10/25/2017. (Taronji, Robert)

UNITED STA TES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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N OT FOR PUBLICATION

WILLIAM SCHWEITZER,
P laintiff,

MEMORANDUM AND ORDER

-against-

l 6-CV-11 72 (RRM) (LB)
DETECTIVE TABATHA BRUNSTEIN,
122 Pct. ; UNNAMED PARTNER, 122 Pct.,
Defendants.

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ROSL YNN R . MAUSKOPF, U nited States District Judge.

Prose plaintiff William Schweitzer, incarcerated at the Watertown Correctional Facil ity,
filed this action pursuant to 42 U.S.C. § 1983 against defendant Detective Tabatha Brunstein and
her unnamed partner of the 122nd Police Precinct on Staten Island. (See Comp!. (Doc. No. 1) at
1-2.) By Memorandum and Order dated August 8, 201 6, the Court granted Schweitzer' s request
to proceed in.formapauperis pursuant to 28 U.S.C. § 19 15 and directed him to file an amended
complaint within 30 days should he have a basis for alleging a false arrest claim against
Detective Brunstein or any other police officer. (See 8/9/ 16 Order (Doc. No . 11 ).) On August
17, 20 16, Schweitzer fil ed an amended complaint and a notice of interl ocutory appeal. (Arn.
Com pl. (Doc . No. 12); Notice ofinterlocutory Appeal (Doc. No. 13).) On February 3, 20 17, the
Second Circuit dismissed Schweitzer's interl ocutory appeal. See Schweitzer v. Brunstein, No.
16-2920 (2d Cir. Feb. 3, 20 17). As set forth below, Schweitzer's amended complaint fai ls to
state a claim. Therefo re, the action is dismissed .

BACKGROUND
The fo llowing facts are drawn from Schweitzer's amended complaint and are assumed to
be true for purposes of thi s memorandum and order. Schweitzer alleges that on April 10, 2015, a
gang member shot bullets at his home and that w itnesses identified the shooter, but that
Detective Brunstein "fail ed to protect and serve" by fai ling to arrest the shooter. (Arn. Comp!. at
10- 14). 1 Schweitzer seeks $2 million in damages fo r Detective Brunstein' s alleged failure to
make an arrest. 2
ST AND ARD OF REVIEW
In reviewing the amended complaint, the Cou1t is mindful that plaintiff is proceeding pro

se and that hi s pleadings should be held "to less stringent standards than fo rmal pleadings drafted
by lawyers." Hughes v. Rowe, 449 U.S . 5, 9 (1980); accord Erickson v. Pardus, 55 l U.S. 89, 94
(2007); Harris v. Mills, 572 F.3d 66, 72 (2d C ir. 2009). An amended complaint, however, 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). The Court must
screen a civil complaint brought by a prisoner against a governmental entity or its agents and
dismiss the complaint if it is "frivolous, malicious, or fails to state a claim upon which rel ief may
be granted. " 28 U.S.C. § 19 15A(a) & (b)( I); accord2 8 U.S .C. § 19 15(e)(2)(B).

1

All c itations to pages of the Complai nt re fer to the Electronic Court Filing System ("EC F") pagination.

2

On November 7, 20 15, Schweitzer was arrested for burglary, a crime he cla ims that he committed in order to
appease those that fired shots into his home. (Am. Comp I. at 10.)

2

DISCUSSION
In order to maintain a § 1983 action, a plaintiff must show that the defendant acted under
co lor of state law to deprive the plainti ff of a right ari sing under the Constitution or federa l law.

Cornejo v. Bell, 592 F.3d 121 , 127 (2d Cir. 2010) (citing Pitchell v. Callan, 13 F.3d 545, 547 (2d
C ir. 1984)); see also Rehberg v. Paulk, 132 S.Ct. 1497, 1501-02 (20 12). Here, Schweitzer does
not allege facts that suggest that he was deprived of rights under the Constituti on or federal law.
Schweitzer' s claim against Detective Brunstein does not rise to the level of a
Constitutional or federal violation. A police officer's fai lure to pursue a particu lar investigative
path is not a constitutional violation. See, e.g., McCaffi·ey v. City of New York, No. 1 l -CV-1636
(RJS), 20 13 WL 494025 , at *5 (S.D.N.Y. Feb. 7, 20 13) ("[A] 'fa ilure to investigate' claim is not
independe ntly cognizable as a stand-alone claim . ..."); Newton v. City ofNew York, 566
F.Supp.2d 256, 278 (S.D.N.Y. 2008) " [T]here is no constitutional right to an adequate
investigation" ); Blake v. Race, 487 F.Supp.2d 187, 212 n.18 (E.D.N. Y. 2007) (rejecting claim of
fai lure to investigate as a violation of due process); Stokes v. City of New York, No. 05-CV-0007
(JFB), 2007 WL 1300983, at *6 (E.D.N .Y. May 3, 2007) ("[I]t is well-settled that there is no
inde pendent claim for a police officer's purported fai lure to investigate."). Therefore,
Schweitzer's claim that Detective Brunstein fai led to investigate or an-est other alleged
perpetrators is dism issed for fai lure to state a claim. 28 U.S.C. §§ 19 15A(b); 19 J 5(e)(2)(B)(ii).

CONCLUSION
According ly, the Court dismisses the instant prose complaint for fai lure to state a
claim on which relief may be granted. 28 U.S.C . § 191 5(e)(2)(B)(ii). The Court certifies
pursuant to 28 U.S.C. § I 915(a)(3) that any appeal would not be taken in good fa ith and
therefore in forma pauperis status is denied for the purpose of any appeal. Coppedge v. United

3

States, 369 U .S. 438, 444-45 (1962). The Clerk of Court is respectfully directed to enter
judgment accordingly and close this case.
The Clerk of Court is directed to mail a copy of this Memorandum and Order along with
the Judgment to Schweitzer and note the mailing on the docket.

SO ORDERED.

'Ros[ynn 'R.

Dated: Brooklyn, New York
(j~ 2
20 17

s- ,

Jvl.ausR.oyf

ROSLYNN R. MAUSKOPF
United States District Judge

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