Dowtin v. O'Neill et al
MEMORANDUM AND ORDER: Plaintiff's motion 2 for leave to proceed in forma pauperis is GRANTED. As set forth in the Court's October 19, 2017 Memorandum and Order, Plaintiff's claims against Police Commissioner James P. O'Neill an d Acting Brooklyn District Attorney Eric Gonzalez are dismissed. Service shall issue as to Defendant Michael Bennett of the 77th Police Precinct in Brooklyn, New York, without prepayment of fees. See attached Memorandum and Order for details. Ordered by Judge LaShann DeArcy Hall on 10/19/2017. (Zdanys, Joanna)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
16 CV 6119 (LDH) (LB)
-againstNEW YORK POLICE COMMISSIONER JAMES
P. O’NEIL; NEW YORK CITY POLICE DETECTIVE
MICHAEL BENNETT; ACTING BROOKLYN
DISTRICT ATTORNEY ERIC GONZALEZ,
LASHANN DEARCY HALL, United States District Judge:
Plaintiff Knowledge Dowtin, proceeding pro se, brings the instant action against
Defendants, alleging violations of 42 U.S.C. § 1983. Plaintiff’s request to proceed in forma
pauperis pursuant to 28 U.S.C. § 1915 is granted. As discussed below, Plaintiff’s claims against
Police Commissioner James P. O’Neill and Acting Brooklyn District Attorney Eric Gonzalez are
dismissed. Plaintiff’s claim for false arrest will proceed against Detective Michael Bennett.
On January 11, 2016, Plaintiff was arrested by Defendant Bennett and charged with two
counts of criminal contempt in the first degree, two counts of aggravated harassment in the
second degree, and harassment in the second degree. (Second Am. Compl. 9, attachment 5-A,
ECF No. 6.) 1 Plaintiff was arraigned on January 12, 2016. (Id.) On July 29, 2016, all charges
All citations to pages of the second amended complaint refer to the Electronic Case Filing System
(“ECF”) pagination. The Court notes that Plaintiff previously submitted a document that was documented
as an “amended complaint” on November 14, 2016. (See Am. Compl., ECF No. 5.) That amended
complaint, however, only differed from the original complaint in that it contained Plaintiff’s signature,
which had been omitted from the original complaint.
against Plaintiff were dismissed. (Id.) Plaintiff alleges that he was falsely arrested and denied his
right to equal protection under the law. (Id. at 4.)
STANDARD OF REVIEW
A district court shall dismiss an in forma pauperis action where it is satisfied that the
action “(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). An action is “frivolous” when either: (1) “the ‘factual contentions are clearly
baseless,’ such as when allegations are the product of delusion or fantasy”; or (2) “the claim is
‘based on an indisputably meritless legal theory.’” Livingston v. Adirondack Beverage Co., 141
F.3d 434, 437 (2d Cir. 1998) (internal citation omitted).
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., 621 F.3d 111, 124 (2d Cir. 2010) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678
(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). It is axiomatic that pro se
complaints are held to less stringent standards than pleadings drafted by attorneys, and a court is
required to read a pro se plaintiff’s complaint liberally and interpret it raising the strongest
arguments it suggests. Erickson v. Pardus, 551 U.S. 89, 94 (2007); Hughes v. Rowe, 449 U.S. 5,
9 (1980); Sealed Plaintiff v. Sealed Defendant #1, 537 F.3d 185, 191-93 (2d Cir. 2008).
In order to maintain an action under 42 U.S.C. § 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) (citation omitted).
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 “does not
create a federal right or benefit; it simply provides a mechanism for enforcing a right or benefit
established elsewhere.” Morris–Hayes v. Bd. of Educ. of Chester Union Free Sch. Dist., 423 F.3d
153, 159 (2d Cir. 2005) (citing Oklahoma City v. Tuttle, 471 U.S. 808, 816 (1985)).
Before the Court can reach the issue of whether Plaintiff was deprived of a right, it must
first establish that the Defendants were personally involved in the alleged deprivation. Personal
involvement of defendants in an alleged constitutional deprivation “is a prerequisite to an award
of damages under § 1983.” Farid v. Ellen, 593 F.3d 233, 249 (2d Cir. 2010). Liability under
§ 1983 cannot be generally imposed on a supervisor solely based on his position, because there is
no respondeat superior or vicarious liability under § 1983. See, e.g., Iqbal, 556 U.S. at 676
(“Because vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff must plead that
each Government-official defendant, through the official’s own individual actions, has violated
the Constitution.”); Hernandez v. Keane, 341 F.3d 137, 144 (2d Cir. 2003) (“[S]upervisor liability
in a § 1983 action depends on a showing of some personal responsibility, and cannot rest on
respondeat superior.”). “Personal involvement” may be established by evidence of direct
participation by a supervisor in the challenged conduct, or by evidence of a supervisory official’s
“(1) failure to take corrective action after learning of a subordinate’s unlawful conduct, (2)
creation of a policy or custom fostering the unlawful conduct, (3) gross negligence in supervising
subordinates who commit unlawful acts, or (4) deliberate indifference to the rights of others by
failing to act on information regarding the unlawful conduct of subordinates.” Hayut v. State
Univ. of New York, 352 F.3d 733, 753 (2d Cir. 2003).
Here, Plaintiff has not pleaded any facts to demonstrate that either Commissioner O’Neill
or Acting District Attorney Gonzalez were personally involved in any of the violations alleged in
the complaint. It appears, rather, that they are named in the complaint because of the particular
positions that they occupy in the city government. Without more, however, Plaintiff fails to show
that these Defendants had any direct involvement with, knowledge of, or responsibility for the
alleged deprivation of his civil right, as required to hold them liable under § 1983. See Nunez v.
City of New York, No. 14 CV 4182, 2016 WL 1322448, at *6 (S.D.N.Y. Mar. 31, 2016) (finding
that plaintiff failed to allege the personal involvement of the District Attorney in the commission
of a constitutional violation); Poulos v. City of New York, No. 14 CV 3023, 2015 WL 5707496, at
*5 (S.D.N.Y. Sept. 29, 2015) (finding that plaintiff failed to allege the personal involvement of
the Police Commissioner in the commission of a constitutional violation). Accordingly,
Plaintiff’s claims against Police Commissioner James P. O’Neill and Acting Brooklyn District
Attorney Eric Gonzalez are dismissed. 28 U.S.C. § 1915(e)(2)(B).
For the foregoing reasons, Plaintiff’s claims against Police Commissioner James P.
O’Neill and Acting Brooklyn District Attorney Eric Gonzalez are dismissed. See 28 U.S.C.
§ 1915(e)(2)(B). No summons shall issue as to these Defendants. The United States Marshals
Service is respectfully requested to serve a copy of the summons, the second amended complaint,
and this Order upon Defendant Michael Bennett of the 77th Police Precinct, in Brooklyn, New
York, without prepayment of fees. The action is referred to the Honorable Lois Bloom, United
States Magistrate Judge, for pretrial supervision.
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order
would not be taken in good faith, and therefore in forma pauperis status is denied for purpose of
an appeal. Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
LASHANN DEARCY HALL
United States District Judge
Dated: Brooklyn, New York
October 19, 2017
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