Nelson v. New York City

Filing 4

MEMORANDUM AND ORDER. Plaintiff's application 2 to proceed in forma pauperis is granted. Plaintiff's claims against the City of New York are dismissed for failure to state a claim on which relief may be granted, pursuant to 28 U.S. C. § 1915(e)(2)(B)(ii). The Court grants plaintiff leave to file an amended complaint within 30 days of the date of this order. The amended complaint must be captioned, Amended Complaint, and shall bear the same docket number as this order. I f plaintiff fails to file an amended complaint within thirty days, the complaint will be dismissed and judgment shall enter. No summons shall issue at this time, and all further proceedings shall be stayed for thirty (30) days. 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. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). The Clerk of Court is respectfully requested to serve plaintiff with a copy of this Memorandum and Order and note service on the docket. Ordered by Judge Kiyo A. Matsumoto on 12/20/2016. (Fletcher, Camille)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------x
MAUREEN NELSON,

NOT FOR PUBLICATION

Plaintiff,
MEMORANDUM AND ORDER
-against16-CV-4727 (KAM)(LB)
NEW YORK CITY,

Defendant.
---------------------------------x
MATSUMOTO, United States District Judge:
Pro

se

plaintiff

Maureen

Nelson

brings

this

action

pursuant to 42 U.S.C. § 1983 (“§ 1983”).

Plaintiff’s application

to proceed in forma pauperis is granted.

The City of New York is

dismissed as a defendant, and plaintiff is granted leave to submit
an amended complaint within thirty (30) days of the date of this
Order.
BACKGROUND
The following factual allegations are taken from the
Complaint and are assumed to be true for the purpose of this Order.
On August 23, 2013, plaintiff was involved in a domestic dispute,
and the police were called.
III.C.)

(Complaint, (“Compl.”) ECF No. 1 at

Approximately seven uniformed officers arrived, they

arrested plaintiff, and she was taken to the emergency room at
Kings County Hospital with serious chest and hand pains.

(Id.)

At the hospital, she was given 600 mg of Motrin to be taken every
six hours.
officers

(Compl., ECF No. 1 at IV.)

[and]

driven

to

the

71st

shackles around [her] ankles.”

She “was released to the

Precinct

in

handcuffs

and

(Compl., ECF No. 1 at III.C.)

During the booking process, plaintiff felt ill and sought medical
assistance, but no help came.

(Id.)

Plaintiff seeks unspecified damages for false arrest,
denial of medical assistance, and emotional and physical pain.
(Compl., ECF No. 1 at V.)
DISCUSSION
In reviewing the complaint, the court is mindful that “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) (internal quotation
marks and citations omitted); see also Sealed Plaintiff v. Sealed
Defendant, 537 F.3d 185, 191 (2d Cir. 2008).

If a liberal reading

of the complaint “gives any indication that a valid claim might be
stated,” this Court must grant leave to amend the complaint.

See

Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000).
However, pursuant to the in forma pauperis statute, a
district court must dismiss a case if the court determines that
the complaint “is frivolous or malicious; fails to state a claim
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on which relief may be granted; or seeks monetary relief against
a

defendant

who

is

immune

from

such

relief.”

28

U.S.C.

§

1915(e)(2)(B).
Plaintiff=s complaint invokes her constitutional rights,
a claim which may be cognizable under 42 U.S.C. § 1983.

In order

to state a § 1983 claim, a complaint must allege two essential
elements.

First,

“the

conduct

complained

of

must

have

committed by a person acting under color of state law.”
v. Callan, 13 F.3d 545, 547 (2d Cir. 1994).

been

Pitchell

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.

plaintiff

must

In order to bring a claim pursuant to § 1983, a
show

that

each

of

the

personally liable for the alleged harm.
F.3d 470, 484 (2d Cir. 2006).

named

individuals

is

Farrell v. Burke, 449

“Because vicarious liability is

inapplicable to . . . § 1983 suits, a plaintiff must plead that
each Government-official defendant, through the official’s own
individual actions, has violated the Constitution.”
Iqbal, 556 U.S. 662, 676 (2009).

Ashcroft v.

A municipality can be liable

under § 1983 only 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
3

(1978); Cash v. County. of Erie, 654 F.3d 324, 333 (2d Cir. 2011),
cert. denied, 132 S. Ct. 1741 (2012) (“[T]o establish municipal
liability under § 1983, a plaintiff must prove that action pursuant
to official municipal policy caused the alleged constitutional
injury.” (citation and internal quotation marks omitted)).

Proof

of a single incident of unconstitutional activity is not sufficient
to impose liability on a municipality unless proof of the incident
includes proof that it was caused by an existing, unconstitutional
municipal policy that can be attributed to a municipal policymaker.
City of Oklahoma City v. Tuttle, 471 U.S. 808, 823-24 (1985).
In

this

case,

plaintiff

does

not

allege

any

unconstitutional policy or custom attributable to the City of New
York.

Accordingly, her claims against the City of New York are

dismissed for failure to state a claim on which relief may be
granted, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).

Plaintiff has

not named any individual officials who could be held liable under
§ 1983; accordingly, the case must be dismissed.
In light of plaintiff’s pro se status, however, the
court grants leave to amend the complaint to identify the
individual or individuals whom plaintiff believes to have been
responsible for the alleged deprivation of her constitutional
rights.

If plaintiff does not know the names and badge numbers
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of the arresting officers or the officials responsible for her
safety during the booking process, she may identify each of them
as John Doe Police Officer #1, or the like, along with any
physical description.

She must provide the date and location

for all relevant events and a brief description of what each
defendant did or failed to do in violation of her civil rights.

CONCLUSION
Plaintiff’s claims against the City of New York are dismissed
for failure to state a claim on which relief may be granted,
pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).

The Court grants

plaintiff leave to file an amended complaint within 30 days of the
date of this order.

The amended complaint must be captioned,

“Amended Complaint,” and shall bear the same docket number as this
order.

If plaintiff fails to file an amended complaint within

thirty days, the complaint will be dismissed and judgment shall
enter.

No summons shall issue at this time, and all further

proceedings shall be stayed for thirty (30) days.

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.
369 U.S. 438, 444-45 (1962).

See Coppedge v. United States,

The Clerk of Court is respectfully
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requested to serve plaintiff with a copy of this Memorandum and
Order and note service on the docket.
SO ORDERED.
Dated:

December 20, 2016
Brooklyn, New York

___________/s/_______________
Hon. Kiyo A. Matsumoto
United States District Judge

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