McMillan v. NYC et al

Filing 11

MEMORANDUM & ORDER: Plaintiff's application to proceed in forma pauperis is granted. All three complaints are dismissed. The Third Amended Complaint is dismissed for failure to state a claim on which relief may be granted, pursuant to 28 U.S.C. § 1915(e)(2)(B). The Court grants Plaintiff leave to file a fourth amended complaint within 30 days of the date of this Memorandum and Order. The submission must be captioned "Fourth Amended Complaint" and bear the sam e docket number as this Memorandum and Order. If Plaintiff fails to file a fourth amended complaint within 30 days, the action will be dismissed. No summonses shall issue at this time, and all further proceedings shall be stayed for 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. SO ORDERED by Judge Margo K. Brodie, on 2/1/2017. C/mailed. (Latka-Mucha, Wieslawa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-------------------------------------------------------------JOHNNY MCMILLIAN,
Plaintiff,

MEMORANDUM & ORDER
16-CV-5002 (MKB)

v.
NORTH CORE STUDIOS, HOUSING MANAGER
MR. KEYS, NEW YORK CITY POLICE
DEPARTMENT, the CIVILIAN COMPLAINT
REVIEW BOARD and the CITY OF NEW YORK,
Defendants.
-------------------------------------------------------------MARGO K.BRODIE, United States District Judge:
Plaintiff Johnny McMillian, proceeding pro se, filed the above-captioned action pursuant
to 42 U.S.C. § 1983 on September 6, 2016, alleging that officers from the New York Police
Department (“NYPD”) entered his residence without probable cause or a search warrant.
(Compl. 5, Docket Entry No. 1.) 1 Plaintiff filed an Amended Complaint and an application to
proceed in forma pauperis on September 20, 2016. (Am. Compl., Docket Entry No. 6.) On
September 23, 2016 and October 20, 2016, Plaintiff filed two additional amended complaints,
each bearing the above docket number but naming different defendants and raising somewhat
different claims. 2 (Second Am. Compl. (“SAC”), Docket Entry No. 8; Third Am. Compl.

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Because the complaints are not consecutively paginated, the Court refers to the page
numbers assigned by the electronic document filing system.
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Plaintiff first brought suit against the Brooklyn North Task Force, North Core
Association, the NYPD and the City of New York. (Compl. 7.) In the Amended Complaint,
Plaintiff named the 75th Precinct, the Brooklyn North Task Force, “NYPD Police Headquarters”
and the City of New York. (Am. Compl. 2–3.) In the Second Amended Complaint, Plaintiff
named North Core Studios, Housing Manager Mr. Keys, an officer with the shield number 9283
and the City of New York. (Second Am. Compl. (“SAC”) 3–5.)

(“TAC”), Docket Entry No. 10.) Plaintiff’s application to proceed in forma pauperis is granted.
All three complaints are dismissed, and Plaintiff is granted leave to submit a fourth amended
complaint within thirty (30) days of the date of this Memorandum and Order.
I.

Background
The Third Amended Complaint names as Defendants North Core Studios, the Civilian

Complaint Review Board (the “CCRB”), the NYPD, “Housing Manager Mr. Keys,” and the City
of New York. (TAC 2.) Plaintiff alleges that officers of the NYPD entered his residence on July
9, 2016 without probable cause or “a produced search warrant” and that “[t]he Housing Manager
fabricated false information about [Plaintiff].” (Id.) The original Complaint alleged that NYPD
officers entered Plaintiff’s residence on July 9, 2016, destroyed his personal property,
handcuffed him and planted evidence in his apartment. (Compl. 4.) In the Amended Complaint,
Plaintiff alleged that he and his girlfriend were inside an apartment at 2324 Pitkin Avenue in
Brooklyn when members of the NYPD and the “Brooklyn North Task Force” entered his
residence. (Am. Compl. 4.) Plaintiff requested to see a search warrant, but he was ignored. (Id.
at 4–5.) Plaintiff states that he was “abused and mistreated by all members that were present at
the time of the illegal entry,” and that the officers “grab[bed him] by [his] throat[,] choke
slammed [him] to the ground . . . kicked, punched[,] cursed at and spit in the face” of Plaintiff
and his girlfriend. (Id.) Plaintiff alleges that the officers destroyed his personal property and,
after not finding anything, “the supervisor told two of the officers to get the black bag out of the
van and bring it up.” (Id. at 5.) The officers then emptied the contents of the bag, which
appeared to be drugs and tools. (Id.) Plaintiff states that the supervising officer told him that
“they were going to put the blame on [his] girlfriend [because] she had a record.” (Id.)
The Third Amended Complaint requests that the Court “order[] Housing Manager Mr.
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Keys to accept all rent payments and withdraw from all illegal eviction proceedings.” (TAC 4.)
Plaintiff requests a new CCRB appointment time to be noticed by certified mail because
Plaintiff’s mail “has been being [sic] tampered with by North Core Studios.” (Id.) Finally,
Plaintiff seeks 500 million dollars in damages. (Id.)
II. Discussion
a. Standard of review
A complaint must plead “enough facts to state a claim to relief that is plausible on its
face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is plausible “when the
plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Matson v. Bd. of Educ., 631 F.3d 57, 63 (2d Cir.
2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). Although all allegations contained
in the complaint are assumed to be true, this tenet is “inapplicable to legal conclusions.” Iqbal,
556 U.S. at 678. In reviewing a pro se complaint, the court must be mindful that a plaintiff’s
pleadings should be held “to less stringent standards than formal pleadings drafted by lawyers.”
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (quoting Estelle v. Gamble, 429 U.S.
97, 104–105 (1976)); see Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (noting that even after
Twombly, the court “remain[s] obligated to construe a pro se complaint liberally”).
Nevertheless, the Court is required to dismiss sua sponte an in forma pauperis action if the Court
determines it “(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.”
28 U.S.C. § 1915(e)(2)(B); see also Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007).
b. Plaintiff fails to state a claim under Section 1983
Construing Plaintiff’s claims liberally, he alleges an action for false arrest, use of
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excessive force and unlawful search or seizure, all of which are cognizable under Section 1983.
However, in order to sustain a claim for relief under 42 U.S.C. § 1983, a plaintiff must
allege (1) that the challenged conduct was “committed by a person acting under color of state
law,” and (2) that such conduct “deprived [the plaintiff] of rights, privileges, or immunities
secured by the Constitution or laws of the United States.” Cornejo v. Bell, 592 F.3d 121, 127 (2d
Cir. 2010) (quoting Pitchell v. Callan, 13 F.3d 545, 547 (2d Cir. 1994)). Section 1983
“constrains only state conduct, not the ‘acts of private persons or entities.’” Hooda v.
Brookhaven Nat’l Lab., 659 F. Supp. 2d 382, 393 (E.D.N.Y. 2009) (quoting Rendell-Baker v.
Kohn, 457 U.S. 830, 837 (1982)); see also Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49–
50 (1999) (“[T]he undercolor-of-state-law element of § 1983 excludes from its reach merely
private conduct, no matter how discriminatory or wrongful.” (citation and internal quotation
marks omitted)); Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 173 (1972). Thus, a claim for
relief pursuant to Section 1983 must allege facts showing that the challenged conduct was
“committed by a person acting under color of state law.” 42 U.S.C. § 1983.
In addition, a plaintiff bringing a Section 1983 claim must show that each of the named
individuals is personally liable for the alleged harm. Farrell v. Burke, 449 F.3d 470, 484 (2d Cir.
2006). “Because vicarious liability is inapplicable to . . . [Section] 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. at 676. A municipality, like the City of New York,
can be liable under Section 1983 only if a Plaintiff can demonstrate “(1) an official [municipal]
policy or custom that (2) cause[d] the plaintiff to be subjected to (3) a denial of a constitutional
right.” Torraco v. Port Auth. of N.Y. & N.J., 615 F.3d 129, 140 (2d Cir. 2010) (quoting Wray v.
City of New York, 490 F.3d 189, 195 (2d Cir. 2007)). In general, proof of a single incident of
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unconstitutional activity is not sufficient to impose liability on a municipality unless a plaintiff
can establish that the incident occurred pursuant to one of the following: (1) a formal policy
officially endorsed by the municipality; (2) actions or decisions made by municipal officials with
decision-making authority; (3) a practice so persistent and widespread that it constitutes a custom
of which policymakers must have been aware; or (4) a failure by policymakers to properly train
or supervise their subordinates, such that the policymakers exercised “deliberate indifference” to
the rights of the plaintiff and others encountering those subordinates. See Iacovangelo v. Corr.
Med. Care, Inc., 624 F. App’x 10, 13–14 (2d Cir. 2015) (formal policy officially endorsed by the
municipality); Matusick v. Erie Cty. Water Auth., 757 F.3d 31, 62 (2d Cir. 2014) (widespread
and persistent practice); Carter v. Inc. Vill. of Ocean Beach, 759 F.3d 159, 164 (2d Cir. 2014)
(failure to train amounting to deliberate indifference); Jones v. Town of E. Haven, 691 F.3d 72,
81 (2d Cir. 2012) (policymaking official’s “express” or “tacit” ratification of low-level
employee’s actions).
Here, Plaintiff names as defendants the City of New York and its agencies, the CCRB
and the NYPD, but does not allege any unconstitutional policy or custom that would confer
municipal liability. Plaintiff also names as defendants his building manager, Mr. Keys, and
North Core Studios, neither of whom is alleged to be a state actor subject to suit under Section
1983. In addition, Plaintiff does not allege that North Core Studios acted to deprive him of his
constitutional rights, as is required under Section 1983. Accordingly, the Third Amended
Complaint is dismissed in its entirety for failure to state a claim on which relief may be granted,
pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).
However, in light of Plaintiff’s pro se status, the Court grants Plaintiff leave to file a
fourth amended complaint within thirty (30) days of this Memorandum and Order, in order to
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identify the individuals whom he believes are responsible for the alleged deprivation of his
constitutional rights. If Plaintiff does not know the names and badge numbers of the arresting
officers, he may identify each of them as John Doe Police Officer #1, #2, and so forth, along
with any physical description and place of employment, if known. Plaintiff 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 Plaintiff’s civil rights. Plaintiff is reminded that any amended
complaint completely replaces all previous complaints filed in this action, so he must succinctly
state, in the new amended complaint, all of his claims against each of the defendants whom he
believes directly violated his rights.
III. Conclusion
The Third Amended Complaint is dismissed for failure to state a claim on which relief
may be granted, pursuant to 28 U.S.C. § 1915(e)(2)(B). The Court grants Plaintiff leave to file a
fourth amended complaint within thirty (30) days of the date of this Memorandum and Order.
The submission must be captioned “Fourth Amended Complaint” and bear the same docket
number as this Memorandum and Order. If Plaintiff fails to file a fourth amended complaint

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within thirty days, the action will be dismissed. No summonses 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).

SO ORDERED.
s/ MKB
MARGO K. BRODIE
United States District Judge
Dated: February 1, 2017
Brooklyn, New York

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