Morgan v. Perez et al

Filing 8

MEMORANDUM & ORDER: Plaintiff's 2 request to proceed in forma pauperis pursuant to 28 U.S.C. § 1915 is granted for the purpose of this Memorandum and Order. The Complaint is dismissed pursuant to 28 U.S.C. § 1915A(b) and 28 U.S.C. § 1915(e)(2)(B). The Court grants Plaintiff 30 days from the date of this Memorandum and Order to file an amended complaint. Should Plaintiff elect to file an amended complaint, the amended complaint must comply with Rule 8(a) of the Federal Rules of Civil Procedure, and it must "plead enough facts to state a claim to relief that is plausible on its face." Plaintiff is advised that the amended complaint will completely replace the original complaint, must be captioned "Amended Complaint," and must bear the same docket number as this Memorandum and Order. If Plaintiff fails to file an amended complaint within the time allowed, the Court will enter judgment dismissing this action for the reas ons set forth above. 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 6/9/2017. W/Attachments: # 1 Appendix. (Copy of this Order and the attached copies of all unpublished decisions cited herein sent to pro se Plaintiff.) (Latka-Mucha, Wieslawa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------------------------------MEMPHIS D. MORGAN,

NOT FOR PUBLICATION
Plaintiff,

MEMORANDUM & ORDER
17-CV-1317 (MKB)

v.
ASSISTANT DISTRICT ATTORNEY LEIGH
ANN PEREZ, ACTING DISTRICT ATTORNEY
ERIC GONZALEZ, SCOTT H. KLEIN and the
75TH PRECINCT,
Defendants.
--------------------------------------------------------------MARGO K. BRODIE, United States District Judge:
Plaintiff Memphis Morgan,1 proceeding pro se and currently incarcerated at Rikers
Island, filed the above-captioned action pursuant to 42 U.S.C. § 1983 on March 6, 2017 against
Defendants Assistant District Attorney (“ADA”) Leigh Ann Perez, Acting District Attorney
(“DA”) Eric Gonzalez, lawyer Scott H. Klein, and the 75th Precinct of the New York City Police
Department. (See generally Compl., Docket Entry No. 1.) Plaintiff’s request to proceed in
forma pauperis pursuant to 28 U.S.C. § 1915 is granted for the purpose of this Memorandum and
Order. For the reasons discussed below, the Court dismisses the Complaint. The Court grants
Plaintiff leave to amend the Complaint within thirty (30) days to assert a claim against the City
of New York.

1

Although Plaintiff identifies himself in the caption as Memphis D. Morgan, based on
the allegations in the Complaint, it appears that Plaintiff is also known as Dante Morgan and was
charged in state criminal proceedings under that name. (Compl. 6–11.)

I.

Background
The Court assumes the truth of the allegations in the Complaint for the purpose of this

Memorandum and Order. Plaintiff challenges his current incarceration. (Compl. 17.)2 Plaintiff
was arrested in 2008 on a charge of burglary in the second degree. (Id.) Prior to trial in Kings
County Supreme Court, Plaintiff “became terrified of [his] situation and decided to jump bail . . .
[and] was on the run” until 2016. (Id.) Plaintiff alleges that a warrant squad was not sent to his
house nor was he contacted after he jumped bail. (Id.) In 2016, Plaintiff was arrested on a
misdemeanor charge, and the arresting officers discovered that there was an outstanding warrant
for Plaintiff’s arrest. (Id.) Plaintiff was remanded on the 2008 charge and offered a plea deal
with a sentence of seven years of incarceration. (Id. at 17.) An unnamed ADA, presumably
ADA Perez, who is listed on paperwork Plaintiff attaches to the Complaint, told Plaintiff that he
would be charged with bail jumping if he did not accept the plea offer. (Id. at 4, 8.) In February
of 2017, Plaintiff was charged under indictment number 1127/2017 with bail jumping in the
second and third degree for failure to appear at a September 23, 2009 court hearing.3 (Id. at 8,
14, 17.) Plaintiff asserts that because the statute of limitations on the bail jumping charges
expired, the pursuit of the charges by the District Attorney’s Office “jeopardized” his rights
under the Fifth, Sixth and Fourteenth Amendments. (Id.)
Plaintiff states that as a result of his incarceration and pending criminal charges, he
suffers from emotional distress, lack of sleep and “deteriorating self.” (Id. at 4.) In addition,

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Because the Complaint is not consecutively paginated, the Court refers to the page
numbers assigned by the electronic document filing system (ECF).
3

Plaintiff attaches as an exhibit to the Complaint a Voluntary Disclosure Form from the
Kings County District Attorney’s Office noting the offense of bail jumping in the second and
third degree occurred at 12:00 PM on September 23, 2009. (Compl. 8–10.)
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Plaintiff’s daughter is disturbed as a result of his situation and is missing school and “tells
teachers she will commit suicide because of separation anxiety.” (Id.) Plaintiff has lost his
apartment, personal possessions, and his job. (Id.) His mother “is getting sicker by the day
because of depression due to [his] settings.” (Id.) Plaintiff alleges that ADA Perez and his
appointed attorney Klein “are abusing the fact that [he is] a mental health patient.” (Id. at 16–
17.)
In the Complaint, Plaintiff seeks damages of eight million dollars for “loss of [his]
liberty.” (Id. at 5.) On April 15, 2017, Plaintiff submitted a letter to the Court reiterating his
claims, and stating that he seeks damages of twenty-five million dollars. (Pl. Letter dated Apr.
15, 2017, Docket Entry No. 7.) Plaintiff also encloses several court filings relating to the bail
jumping charges and the above-captioned civil action, including additional copies of the
Complaint.4
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

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The additional copies of the Complaint are formatted slightly differently than the
original Complaint but include the same factual details.
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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 must screen “a complaint in a civil action in which a prisoner seeks
redress from a governmental entity or officer or employee of a governmental entity” and
“dismiss the complaint or any portion of the complaint,” if it is frivolous, malicious, or fails to
state a claim upon which relief may be granted. 28 U.S.C. 1915A; see Abbas v. Dixon, 480 F.3d
636, 639 (2d. Cir. 2007). Similarly, 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, 480 F.3d at 639.
b.

Plaintiff cannot bring an action against the 75th Precinct

Section 396 of the New York City Charter provides that “[a]ll actions and proceedings
for the recovery of penalties for the violation of any law shall be brought in the name of the City
of New York and not in that of any agency, except where otherwise provided by law.” N.Y. City
Charter, chap. 17 § 396. This provision “has been construed to mean that New York City
departments, as distinct from the City itself, lack the capacity to be sued.” Ximines v. George
Wingate High Sch., 516 F.3d 156, 159–60 (2d Cir. 2008) (per curiam). Because the 75th
Precinct is a subdivision of the New York City Police Department, which is an agency of the
City of New York, the 75th Precinct is not amenable to suit. See Jenkins v. City of New York,
478 F.3d 76, 93 n.19 (2d Cir. 2007) (“[T]he NYPD is a non-suable agency of the City.”); Morris
v. N.Y.C. Police Dep’t, 59 F. App’x 421, 422 (2d Cir. 2003) (affirming dismissal of claims

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asserted against the NYPD due to non-suable-entity status). Any action against the 75th Precinct
must be brought against the City of New York. Accordingly, Plaintiff’s claims against the 75th
Precinct are dismissed.
c.

Plaintiff fails to state a claim against Klein

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 under
color-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.
It is well established that court-appointed attorneys do not act under color of state law
when they perform traditional functions of counsel. Polk Cty. v. Dodson, 454 U.S. 312, 325
(1981) (“[A] public defender does not act under color of state law when performing a lawyer’s
traditional functions as counsel to a defendant in a criminal proceeding.”); Sash v. Rosahn, 450
F. App’x 42, 43 (2d Cir. 2011) (“[A] court appointed criminal defense attorney does not act
under color of state law when representing a client” (citing Rodriguez v. Weprin, 116 F.3d 62,

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65–66 (2d Cir. 1997))); Garcia v. City of New York, No. 13-CV-4655, 2013 WL 153756, at *3
(E.D.N.Y. Jan. 14, 2013) (finding that a Legal Aid Society attorney was not acting under color of
state law when he represented a plaintiff in criminal court); Pecou v. Hirschfeld,
No. 07-CV-5449, 2008 WL 957919, at *2 (E.D.N.Y. Apr. 3, 2008) (“Court-appointed attorneys
do not act under color of state law merely by virtue of their appointment.” (citing Polk Cty., 454
U.S. at 325)). Because Plaintiff has failed to plead any facts that would support a finding that
Klein was acting under color of state law at the time of the alleged civil rights violations,
Plaintiff’s claim against Klein is dismissed. 28 U.S.C. § 1915(e)(2)(B).
d.

Plaintiff fails to state a claim against ADA Perez and DA Gonzalez

“It is well established that a state prosecuting attorney who acted within the scope of his
duties in initiating and pursuing a criminal prosecution is immune from a civil suit for damages
under § 1983.” Shmueli v. City of New York, 424 F.3d 231, 236 (2d Cir. 2005) (internal
quotation marks omitted). “Prosecutorial immunity from § 1983 liability is broadly defined,
covering virtually all acts, regardless of motivation, associated with [the prosecutor’s] function
as an advocate.” Hill v. City of New York, 45 F.3d 653, 661 (2d Cir. 1995) (internal quotation
marks and brackets omitted). Immunity extends to deciding which offenses to charge, initiating
a prosecution, presenting the case at trial, and evaluating and organizing evidence for
presentation at trial or to a grand jury. Id. Absolute immunity for prosecutorial acts can be
defeated only if the prosecutor is alleged to have acted in the complete absence of jurisdiction.
Shmueli, 424 F.3d at 237.
Here, Plaintiff’s claims against ADA Perez involve her decisions to bring bail jumping

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charges which Plaintiff alleges were barred by the statute of limitations5 and to offer Plaintiff a
plea deal, both of which are within the scope of her duties as a prosecutor. See, e.g., Peay v.
Ajello, 470 F.3d 65, 67–68 (2d Cir. 2006) (prosecutorial immunity encompasses allegations of
“fabricating evidence used at trial, withholding exculpatory evidence, suborning perjury, and
attempting to intimidate [a defendant] into accepting a guilty plea.”); Shmueli, 424 F.3d at 237
(“Once the court determines that the challenged prosecution was not clearly beyond the
prosecutor’s jurisdiction, the prosecutor is shielded from liability for damages for commencing
and pursuing the prosecution, regardless of any allegations that his actions were undertaken with
an improper state of mind or improper motive.”). DA Gonzalez is likewise entitled to
prosecutorial immunity.
Moreover, because Plaintiff fails to allege any conduct by DA Gonzalez that contributed
to the violation of his constitutional rights, Plaintiff fails to state a claim against DA Gonzalez
because there is no supervisory liability under section 1983. See, e.g., Iqbal, 556 U.S. at 676
(“Because vicarious liability is inapplicable to Bivens and [section] 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) (“‘Absent
some personal involvement by [the supervisory official] in the allegedly unlawful conduct of his
subordinates,’ he cannot be liable under section 1983.” (alteration in original) (quoting Gill v.
Mooney, 824 F.2d 192, 196 (2d Cir. 1987))).
Thus, the claims against ADA Perez and DA Gonzalez are dismissed pursuant to 28
U.S.C. § 1915A(b)(2) and 28 U.S.C. § 1915(e)(2)(B)(iii).

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The statute of limitations is not jurisdictional. See, e.g., People v. Mills, 1 N.Y.3d 269,
274 (2003) (“New York courts have long recognized that the statute of limitations defense is not
jurisdictional and can be forfeited or waived by a defendant.” (collecting cases)).
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e.

Leave to amend

While it is unclear that Plaintiff can cure the defects with the Complaint, the Court grants
Plaintiff leave to amend the Complaint to attempt to assert a claim against the City of New York
to the extent Plaintiff can articulate a constitutional violation that would not call into question
any pending charges against him or any conviction.6 In order to bring a claim against the City of
New York instead of the 75th Precinct, Plaintiff must allege a policy or custom attributable to
New York City. See Torraco v. Port Auth. of N.Y. & N.J., 615 F.3d 129, 140 (2d Cir. 2010)
(holding that 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.” (quoting Wray v. City of New
York, 490 F.3d 189, 195 (2d Cir. 2007))); Iacovangelo v. Corr. Med. Care, Inc., 624 F. App’x
10, 13–14 (2d Cir. 2015) (holding that proof of a single incident of 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 also Matusick v. Erie
Cty. Water Auth., 757 F.3d 31, 62 (2d Cir. 2014) (widespread and persistent practice); Carter v.

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See Heck v. Humphrey, 512 U.S. 477, 487 (1994) (“[w]hen a state prisoner seeks
damages in a § 1983 suit, the district court must consider whether a judgment in favor of the
plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the
complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence
has already been invalidated.”).
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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).
However, because Plaintiff cannot bring a section 1983 claim against his attorney Klein,
who was not acting under color of state law, and because Plaintiff cannot bring a claim against
ADA Perez and DA Gonzalez for actions taken pursuant to their prosecutorial duties, Plaintiff
cannot amend his claims as to Defendants Klein, ADA Perez or DA Gonzalez.
III.

Conclusion
For the foregoing reasons, the Complaint is dismissed pursuant to 28 U.S.C. § 1915A(b)

and 28 U.S.C. § 1915(e)(2)(B). The Court grants Plaintiff thirty (30) days from the date of this
Memorandum and Order to file an amended complaint. Should Plaintiff elect to file an amended
complaint, the amended complaint must comply with Rule 8(a) of the Federal Rules of Civil
Procedure, and it must “plead enough facts to state a claim to relief that is plausible on its face.”
Twombly, 550 U.S. at 570. Plaintiff is advised that the amended complaint will completely
replace the original complaint, must be captioned “Amended Complaint,” and must bear the
same docket number as this Memorandum and Order. If Plaintiff fails to file an amended
complaint within the time allowed, the Court will enter judgment dismissing this action for the
reasons set forth above. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal

9

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: June 9, 2017
Brooklyn, New York

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