Marshall v. Reyes et al

Filing 5

ORDER: Plaintiff's request to proceed in forma pauperis pursuant to 28 U.S.C. § 1915 is granted solely for purposes of this Order. For the foregoing reasons, all of Plaintiff's claims are dismissed pursuant to 28 U.S.C. § 1 915(e)(2)(B)(ii). Because of Plaintiff's pro se status, the Court permits Plaintiff thirty (30) days to file an amended complaint. See Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (court should generally not dismiss a pro se complaint without granting plaintiff leave to amend if a valid claim could be stated). If Plaintiff elects to file an amended complaint, he must allege facts regarding a change in status or other deprivation of any property or liberty interes t imposed by the State. The amended complaint must be captioned AMENDED COMPLAINT and bear the docket number 16-CV-5715 (PKC) (LB). If filed, the amended complaint shall replace the original complaint. All further proceedings shall be stayed f or thirty (30) days or until Plaintiff has complied with this order. If Plaintiff fails to comply with this order within the time allowed, this action will be dismissed without prejudice. If Plaintiff files an amended complaint, it shall be reviewed for substantive sufficiency pursuant to 28 U.S.C. § 1915(e)(2)(B).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). Ordered by Judge Pamela K. Chen on 11/8/2016. (Gregorio, Heather)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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NOT FOR PUBLICATION

NEIL MARSHALL,
Plaintiff,

MEMORANDUM AND ORDER

-against-

16-CV-5715 (PKC) (LB)

DETECTIVE REYES and CHARLES NIEVES,
Defendants.
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PAMELA K. CHEN, United States District Judge:
Plaintiff Neil Marshall filed this pro se action pursuant to 42 U.S.C. § 1983 on September
17, 2016. Plaintiff’s request to proceed in forma pauperis (“IFP”) is granted pursuant to 28 U.S.C.
§ 1915 for purposes of this Order, but, for the reasons discussed below, this action is hereby
dismissed sua sponte.
BACKGROUND1
At some point prior to June 30, 2015, Plaintiff was arrested by law enforcement authorities
and charged with burglary. (Dkt. 1 at 4.)2 Plaintiff was released on a bond posted by Vanguard
Bail Bonds (“Vanguard”). (Id.) Thereafter, Plaintiff missed his sentencing date. (Id.) Vanguard
sent bounty hunters to find him, and they “went around showing [Plaintiff’s] picture” to friends,
family, and strangers, saying that he had “raped a little girl in Harlem NY,” an assertion that

The following facts are taken from the Complaint and are assumed to be true for
purposes of this Order. See Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111, 123 (2d Cir.
2010) (at the pleading stage of the proceeding, court must assume the truth of “all well-pleaded,
nonconclusory factual allegations” in the complaint) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009)).
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The Complaint does not specify when, where, or by whom Plaintiff was arrested; it
only alleges that the events at issue, i.e., Defendants’ actions as “bail bond officer[s]/bounty
hunter[s]”, began on June 30, 2015. (Id. at 3.)

Plaintiff denies. (Id.) As a result of this “degrading remark,” Plaintiff’s friends and family
neglected, judged, and shamed him. (Id.) He also “got into fights” in county jail “for the stuff
that was said about [him].” (Id.) Plaintiff alleges that, as a result of these remarks, he has suffered
physical and mental harm, that his mother and his child have been threatened, and that he is unable
to return to his neighborhood. (Id. at 4–5).
Plaintiff names as Defendants Detective Reyes and Charles Nieves, whom he identifies as
bail bond officers/bounty hunters working for Vanguard. He requests unspecified relief for
defamation of character.
STANDARD OF REVIEW
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 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). To avoid dismissal, 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 will be considered plausible on its face “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). Although “detailed factual allegations” are not
required, “[a] pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the
elements of a cause of action will not do.” Id. (quoting Twombly, 550 U.S. at 555). Similarly, a
complaint is insufficient to state a claim “if it tenders ‘naked assertion[s]’ devoid of ‘further factual
enhancement.’” Id. (quoting Twombly, 550 U.S. at 557).
“A document filed pro se is to be liberally construed, and a pro se complaint, however
inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by

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lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal quotation marks and citations
omitted).
DISCUSSION
Claims for violations of constitutional rights are cognizable under 42 U.S.C. § 1983, which
provides procedures for redressing deprivations of civil rights. In order to maintain a civil rights
action under Section 1983, a 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.
The instant Complaint fails to state a claim under Section 1983. Plaintiff has not alleged
that Defendants violated his constitutional rights in the course of detaining him, and has not
asserted any other claim under the Fourth Amendment. Instead, he alleges that Defendants
defamed him by spreading a story that he was a suspect in a rape investigation. Defamation, while
actionable under State law, does not normally invoke a constitutional right protected by Section
1983. “[U]nder limited circumstances, federal constitutional relief is available for defamation
committed by government officials . . . when that plaintiff can demonstrate a stigmatizing
statement plus a deprivation of a tangible interest.” Vega v. Lantz, 596 F.3d 77, 81 (2d Cir. 2010)
(emphasis added) (internal quotation marks and citations omitted). Stigma alone is not enough.
See Paul v. Davis, 424 U.S. 693, 708–12 (1976) (finding that a defamatory statement that the
plaintiff was a shoplifter may have caused reputational harm, but did not deny any right previously
conferred by the State, and thus was not protected under the Fourteenth Amendment). “To
establish a ‘stigma plus’ claim, a plaintiff must show (1) the utterance of a statement sufficiently

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derogatory to injure his or her reputation, that is capable of being proved false, and that he or she
claims is false, and (2) a material state-imposed burden or state-imposed alteration of the plaintiff’s
status or rights.” Vega, 596 F.3d at 81 (quoting Sadallah v. City of Utica, 383 F.3d 34, 38 (2d Cir.
2004) (internal citations and quotation marks omitted)).
In this case, Plaintiff has alleged that the defamatory statements stigmatized him, in that he
was neglected, judged, and shamed by his friends and family and got into fights at the county jail.
However, he has not alleged any change in his status or other deprivation of any property or liberty
interest imposed by the State. Thus, Plaintiff has not established “stigma plus” that would convert
his allegations of defamation into a constitutional claim. Accordingly, all civil rights claims
against Defendants Reyes and Nieves must be dismissed pursuant to 28 U.S.C. §
1915(e)(2)(B)(ii).4
CONCLUSION
Plaintiff’s request to proceed in forma pauperis pursuant to 28 U.S.C. § 1915 is granted
solely for purposes of this Order. For the foregoing reasons, all of Plaintiff’s claims are dismissed
pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). Because of Plaintiff’s pro se status, the Court permits
Plaintiff thirty (30) days to file an amended complaint. See Cuoco v. Moritsugu, 222 F.3d 99, 112
(2d Cir. 2000) (court should generally not dismiss a pro se complaint without granting plaintiff
leave to amend if a valid claim could be stated). If Plaintiff elects to file an amended complaint,
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Additionally, it is not clear that the two named Defendants, who appear to be private
bail bondsmen working for a private company, are State actors for the purposes of assessing
Section 1983 liability. The Second Circuit has not yet decided whether bail bond enforcement
agents should be considered State actors for such purposes. See Lopez v. Zouvelos, No. 13-CV6474 (MKB), 2015 WL 5657361, at *7-8 (E.D.N.Y. Sept. 23, 2015). Most circuits that have
addressed the issue have declined to find State action when bail bondsmen have not enlisted the
assistance of law enforcement officers in arresting their principals. See id. (collecting and
analyzing cases). Plaintiff has not alleged that Defendants Reyes and Nieves did so, nor even
that they arrested him at all. But see Jackson v. Pantazes, 810 F.2d 426, 430 (4th Cir. 1987)
(holding that the conduct of bail bondsmen is categorically State action).
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he must allege facts regarding a change in status or other deprivation of any property or liberty
interest imposed by the State.

The amended complaint must be captioned “AMENDED

COMPLAINT” and bear the docket number 16-CV-5715 (PKC) (LB). If filed, the amended
complaint shall replace the original complaint. All further proceedings shall be stayed for thirty
(30) days or until Plaintiff has complied with this order. If Plaintiff fails to comply with this order
within the time allowed, this action will be dismissed without prejudice. If Plaintiff files an
amended complaint, it shall be reviewed for substantive sufficiency pursuant to 28 U.S.C. §
1915(e)(2)(B).
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/ Pamela K. Chen
Pamela K. Chen
United States District Judge
Dated: November 8, 2016
Brooklyn, New York

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