Perkins v. New York City et al
Filing
11
MEMORANDUM AND ORDER: Perkins request to proceed in forma pauperis is granted pursuant to 28 U.S.C. § 1915. All of the claims against the City of New York and the Police Commissioner are dismissed for failure to state a claim pursuant to 28 U.S.C. § 1915A(b) and 28 U.S.C. § 1915(e)(2)(B). No summonses shall issue against these defendants. Perkins claims shall proceed against the individual police officers. The Court respectfully directs the Clerk of Court to issue summons es against the remaining named defendants and directs the United States Marshals Service to serve the summonses and copies of the complaint on them. The Clerk of Court shall mail a copy of this Order and the Complaint to the New York City Law Depart ment. Once Corporation Counsel has provided the requested information for the John Doe defendants, the Clerk of Court is directed to amend the caption of the Complaint to reflect that information and to issue summonses against the officers. The Uni ted States Marshals Service is directed to serve these defendants once summonses are issued. The Court refers this matter to Magistrate Judge Cheryl L. Pollak for pretrial supervision. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal would not be taken in good faith. 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 directed to mail a copy of this Memorandum and Order to Perkins and note the mailing on the docket.. Ordered by Judge Roslynn R. Mauskopf on 6/20/2017. (Taronji, Robert)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------------------------------------------X
MICHAEL PERKINS,
Plaintiff,
MEMORANDUM AND ORDER
17-CV-423 (RRM) (PK)
- against NEW YORK CITY; NEW YORK CITY POLICE
DEPARTMENT COMMANDER AND CHIEF OR
COMMISSIONER; P.O. CHRISTIAN VALENZUELA,
#19271; P.O. ANTHONY LAFEMINA, #11439; P.O.
JACKSON; P.O. JOHN DOE #1; and P.O. JOHN DOE #2
Defendants.
----------------------------------------------------------------------X
ROSLYNN R. MAUSKOPF, United States District Judge.
Plaintiff Michael Perkins, who is incarcerated on Rikers Island, commenced this pro se
action pursuant to 42 U.S.C. § 1983.1 Perkins’ request to proceed in forma pauperis is granted
pursuant to 28 U.S.C. § 1915. The claims against the City of New York and the Police
Commissioner are dismissed sua sponte. The claims against the remaining police officers may
proceed.
BACKGROUND
The following facts are taken from the Amended Complaint and are assumed to be true
for purposes of this Order.2 On August 9, 2015, Jordan Card was the alleged victim of a robbery.
(Amend. Compl. at 3.) That same day, defendant Police Officer Valenzuela3 showed Card a
On January 24, 2017, Perkins submitted documents entitled “Complaint” (Doc. No. 1), and “Amended Complaint.”
(Doc. No. 3.) Perkins asserts that he delivered the initial “Complaint” to prison authorities on November 14, 2016.
The “Amended Complaint” is dated December 6, 2016. The Commissioner is not named in the caption but appears
in a list of defendants within the Complaint.
1
2
For ease of reference, citations to Court documents utilize the Electronic Case Filing System (“ECF”) pagination.
3
This defendant’s name is spelled differently in the caption and in the body of the Complaint.
single photograph of Perkins, and Card positively identified him as the individual who robbed
him. (Id.) Thereafter, defendant Police Officer LaFemina showed Card a photo array containing
Perkins’ photograph in the fourth slot. (Id.) On August 23, 2015, LaFemina asked Perkins to
participate in a lineup, and he refused. (Id. at 4.) At that point, “police officer LaFemina #11439
and several other police officer[]s assaulted the Plaintiff and forced the Plaintiff to partake in
said lineup by handcuffing the Plaintiff to the wall and placing leg irons on the Plaintiff’s ankles
. . . and forced the Plaintiff to sit in position number four just as he place[d] the single
photograph of the Plaintiff in slot number four of the photo array.” (Id.)
The Complaint further alleges that Defendant Sergeant Jackson failed to properly
supervise his subordinates and that the “Commander and Chief or Commissioner is named as
defendant[]s due to their failure to properly train the officer[]s.” (Id.) Perkins alleges that the
defendants’ conduct violated his constitutional rights under the Eighth and Fourteenth
Amendments and seeks $16,500,000 in damages. (Id. at 4–5.)
STANDARD OF REVIEW
In a civil action in which a prisoner seeks redress from a government entity or its officers,
28 U.S.C. § 1915A requires the district court to “identify cognizable claims or dismiss the
complaint, or any portion of the complaint, if the complaint is frivolous, malicious, or fails to
state a claim upon which relief may be granted or seeks monetary relief from a defendant who is
immune from such relief.” 28 U.S.C. § 1915A(b); see Abbas v. Dixon, 480 F.3d 636, 639 (2d
Cir. 2007). Where a complaint is brought in forma pauperis, a district court must dismiss the
case if it “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).
2
“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
lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal quotation marks and citations
omitted). If a liberal reading of the complaint “gives any indication that a valid claim might be
stated,” the district court must grant leave to amend the complaint. See Cuoco v. Moritsugu, 222
F.3d 99, 112 (2d Cir. 2000).
DISCUSSION
A. Section 1983
The complaint alleges the jurisdiction of this Court pursuant to the Civil Rights Acts,
codified at 42 U.S.C. § 1983 (“§ 1983”). In order to maintain a § 1983 action, 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. A § 1983 plaintiff
seeking to recover money damages must establish that the named defendants were personally
involved in the alleged wrongdoing. Farrell v. Burke, 449 F.3d 470, 484 (2d Cir. 2006) (quoting
Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994). “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.” Ashcroft v. Iqbal, 556 U.S. 662,
676 (2009).
Perkins’ only allegation against the Police Commissioner is the vague assertion of a
“failure to properly train the officer[]s.” However, “[t]o state a claim under § 1983 for failure to
train, a complaint must allege that the supervisor’s failure to train his employees amounts to
3
deliberate indifference to the rights of persons with whom the employees came into contact.”
Schnitter v. City of Rochester, 931 F. Supp. 2d 469, 475 (W.D.N.Y. 2013), aff’d, 556 F. App’x 5
(2d Cir. 2014), (quoting Connick v. Thompson, 563 U.S. 51, 60 (2011) (alterations, quotation
marks, and additional citations omitted). Perkins’ conclusory assertion, unsupported by any
factual allegations that the Commissioner failed to properly train police officers, is insufficient to
establish personal involvement in the alleged violation of Perkins’ constitutional rights. See Cox
v. Fischer, No. 13-CV-743M, 2014 WL 843897, at *2 (W.D.N.Y. Feb. 27, 2014) (collecting
cases). Accordingly, the Police Commissioner is dismissed as a defendant.
A municipality, such as the City of New York, 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 (1978); Cash v.
County of Erie, 654 F.3d 324, 333 (2d Cir. 2011) (“[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)), cert. denied, 132 S. Ct.
1741 (2012). 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 (1985). In this case, Perkins has not alleged
any unconstitutional policy or custom. Accordingly, the City of New York is dismissed as a
defendant.
B. John Doe Defendants
Perkins’ claims may proceed against the remaining defendants. The United States
Marshals Service cannot serve the John Doe defendants without further identifying information.
4
The problem encountered by Perkins is a common one, as it is frequently difficult for pro se
litigants to identify individual law enforcement officers. In Valentin v. Dinkins, 121 F.3d 72 (2d
Cir. 1997) (per curiam), the Second Circuit made clear that a pro se litigant is entitled to
assistance from the district court in identifying such defendants. Accordingly, the Court hereby
requests the Corporation Counsel for the City of New York to attempt to ascertain the full names
of the John Doe officers who were involved in the alleged assault and forced participation in the
lineup on August 23, 2015. Corporation Counsel shall provide this information to the Court
within 45 days of the date of this Order.
CONCLUSION
For the reasons set forth above, all of the claims against the City of New York and the
Police Commissioner are dismissed for failure to state a claim pursuant to 28 U.S.C. § 1915A(b)
and 28 U.S.C. § 1915(e)(2)(B). No summonses shall issue against these defendants.
Perkins’ claims shall proceed against the individual police officers. The Court
respectfully directs the Clerk of Court to issue summonses against the remaining named
defendants and directs the United States Marshals Service to serve the summonses and copies of
the complaint on them. The Clerk of Court shall mail a copy of this Order and the Complaint to
the New York City Law Department. Once Corporation Counsel has provided the requested
information for the John Doe defendants, the Clerk of Court is directed to amend the caption of
the Complaint to reflect that information and to issue summonses against the officers. The
United States Marshals Service is directed to serve these defendants once summonses are issued.
The Court refers this matter to Magistrate Judge Cheryl L. Pollak for pretrial supervision.
5
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal would not be taken
in good faith. 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 directed to mail a copy of this Memorandum and Order to Perkins
and note the mailing on the docket.
SO ORDERED.
Roslynn R. Mauskopf
Dated: Brooklyn, New York
June 20, 2017
___________________________________
ROSLYNN R. MAUSKOPF
United States District Judge
6
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?