Simmons v. City of New York et al

Filing 11

ORDER: For the reasons in the attached Order, the Complaint, filed in forma pauperis, is dismissed as to Defendants City of New York and Mark Ortiz pursuant to 28 U.S.C. §§ 1915A; 1915(e)(2)(B). No summons shall issue as to these De fendants. Plaintiff's claims against the Otis Bantum Correctional Center Correction Officer Boodram (Badge # 7159) shall proceed.The Clerk of Court is respectfully directed to prepare a summons against Correction Officer Boodram, and the United States Marshals Service is respectfully directed to serve the Summons and signed Complaint upon this Defendant without prepayment of fees. The United States Marshal is also directed to serve Local Rule 33.2 Interrogatories and Request for Productio n of Documents along with the Summons and Complaint upon Defendant Boodram. In addition, the Clerk of Court is respectfully directed to serve a copy of this Order, a copy of the signed Complaint, a copy of the in forma pauperis application, and a c opy of Local Rule 33.2 Interrogatories and Request for Production of Documents on the Corporation Counsel for the City of New York, Special Federal Litigation Division. Lastly, the Clerk of Court is respectfully directed to mail a copy of this Order to Plaintiff. The case is respectfully referred to the Honorable Steven M. Gold, United States Magistrate Judge, 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 and therefore in forma pauperis status is denied for the purpose of any appeal. Coppedge v. United States, 369 U.S. 438, 444-45 (1962). Ordered by Judge Pamela K. Chen on 8/25/2017. (Lee, Helen)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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EDUARDO SIMMONS, also known as
Ricardo Reyna,
NOT FOR PUBLICATION
Plaintiff,
-against-

MEMORANDUM & ORDER
17-CV-2036 (PKC) (SMG)

CITY OF NEW YORK, Officer BOODRAM
(Badge # 7159); Prisoner MARK ORTIZ,
Defendants.
---------------------------------------------------------X
PAMELA K. CHEN, United States District Judge:
Plaintiff Eduardo Simmons, currently incarcerated at the Otis Bantum Correctional
Center (“OBCC”), on Rikers Island, filed this pro se action against Defendants pursuant to 42
U.S.C. § 1983 (“Section 1983”). 1 On June 13, 2017, the Court received Plaintiff’s signed
application to proceed in forma pauperis. (See Dkt. 7.) On July 14, 2017, the Court received
Plaintiff’s signed Complaint. (See Dkt. 9). The Court grants Plaintiff’s request to proceed in
forma pauperis pursuant to 28 U.S.C. § 1915(a). The Complaint is dismissed in part as set forth
below.
BACKGROUND
Plaintiff alleges that on May 27, 2015, he notified Defendant Officer Boodram that he
had been threatened by a fellow inmate at OBCC, Mark Ortiz. Plaintiff further alleges that
Boodram failed to take any action and that Plaintiff was subsequently attacked by inmate Ortiz

The Court received Plaintiff’s Complaint on March 31, 2017, but it was not signed by
Plaintiff as required under Rule 11 of the Federal Rules of Civil Procedure.
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and sustained injuries as a result of the attack. (See Complaint (“Compl.”), Dkt. 1 and 9, at ECF
7-13.) 2
STANDARD OF REVIEW
A complaint must plead “enough facts to state a claim to relief that is plausible on its
face,” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007), and “allow[] 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). At the pleading 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 Iqbal, 556 U.S. at 678).
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 addition, a pro se complaint is “to
be liberally construed,” Ahlers v. Rabinowitz, 684 F.3d 53, 60 (2d Cir. 2012), and interpreted “to
raise the strongest arguments that [it] suggest[s],” Graham v. Henderson, 89 F.3d 75, 79 (2d Cir.
1996); see Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (“submissions
of a pro se litigant must be construed liberally and interpreted to raise the strongest arguments
that they suggest”) (internal citations and quotations omitted). However, pursuant to the in
forma pauperis statute, the Court must dismiss a complaint if it determines 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 from a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B).
Courts generally should not dismiss a pro se complaint without granting the plaintiff leave to
amend if a valid claim could be stated. See Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir.
2000).

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The Court utilizes the page numbers generated by the Electronic Case Filing (“ECF”)

system.
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DISCUSSION
As discussed below, Plaintiff’s claims against Defendants the City of New York and
Inmate Ortiz must be dismissed.
A.

Dismissal of Defendant City of New York

In order to sustain a claim for relief under Section 1983 against a municipal defendant,
such as the City of New York (“City”), a plaintiff must show the existence of an officially
adopted policy or custom that caused injury and a direct causal connection between that policy or
custom and the deprivation of a constitutional right. See Monell v. Dep’t of Social Servs of the
City of N.Y., 436 U.S. 658, 692 (1978); see also Connick v. Thompson, 563 U.S. 51, 60 (2011)
(municipalities can be held liable for “practices so persistent and widespread as to practically
have the force of law”); Allen v. Antal, 665 F. App’x 9, 14 (2d Cir. 2016) (summary order);
Costello v. City of Burlington, 632 F.3d 41, 49 (2d Cir. 2011); Plair v. City of N.Y., 789
F.Supp.2d 459, 469 (S.D.N.Y. 2011) (“Following Iqbal and Twombly, Monell claims must
satisfy the plausibility standard . . . .”); see also Meehan v. Kenville, 555 F. App’x 116, 117 (2d
Cir. 2014) (summary order) (claim against municipal entity was properly dismissed under 28
U.S.C. § 1915 for “failure to plausibly allege that any constitutional violation resulted from a
custom, policy, or practice of the municipality.”).

Here, Plaintiff fails to allege any facts

indicating that OBCC had a policy or custom that resulted in the alleged attack on him by inmate
Ortiz or that would otherwise justify municipal liability. For this reason, Plaintiff’s Complaint
against the City of New York is dismissed for failure to state a claim pursuant to 28 U.S.C. §§
1915A; 1915(e)(2)(B).
B.

Dismissal of Defendant Ortiz

Plaintiff’s Complaint also fails against Defendant Mark Ortiz. Section 1983 allows suit
against individuals acting under state law. Pitchell v. Callan, 13 F.3d 545, 547 (2d Cir. 1994)
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(for Section 1983 claim, “conduct complained of must have been committed by a person acting
under color of state law[]” and “deprived a person of rights, privileges or immunities secured by
the Constitution or laws of the United States.” Private conduct, no matter how discriminatory or
wrongful, is generally beyond the reach of Section 1983. Am. Mfrs. Mut. Ins. Co. v. Sullivan,
526 U.S. 40, 49-50 (1999) (quotations omitted); cf. Brentwood Acad. v. Tenn. Secondary Sch.
Athletic Ass’n, 531 U.S. 288, 295 (2001) (“[S]tate action may be found if, though only if, there is
such a ‘close nexus between the State and the challenged action’ that seemingly private behavior
‘may be fairly treated as that of the State itself.’” (quoting Jackson v. Metro. Edison Co., 419
U.S. 345, 351 (1974)). Here, it is clear that there is no state action on the part of Defendant
Ortiz—a fellow inmate at OBCC and the alleged perpetrator of the attack against Plaintiff—for
purposes of Section 1983. Ortiz is a private party whose conduct is not attributable to the State.
See, e.g., Gault v. NYPD, No. 15 CV 935, 2016 WL 3198281, at *2 (E.D.N.Y. June 8, 2016)
(dismissing § 1983 claims against private individuals and corporations). Therefore, Plaintiff fails
to state a plausible claim against Defendant Ortiz under Section 1983 and the Complaint is
dismissed as to this Defendant pursuant to 28 U.S.C. §1915(e)(2)(B).
CONCLUSION
Accordingly, the Complaint, filed in forma pauperis, is dismissed as to Defendants City
of New York and Mark Ortiz pursuant to 28 U.S.C. §§ 1915A; 1915(e)(2)(B). No summons
shall issue as to these Defendants. Plaintiff’s claims against OBCC Correction Officer Boodram
(Badge # 7159) shall proceed.
The Clerk of Court is respectfully directed to prepare a summons against Correction
Officer Boodram, and the United States Marshals Service is respectfully directed to serve the
Summons and signed Complaint upon this Defendant without prepayment of fees. The United

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States Marshal is also directed to serve Local Rule 33.2 Interrogatories and Request for
Production of Documents along with the Summons and Complaint upon Defendant Boodram.
In addition, the Clerk of Court is respectfully directed to serve a copy of this Order, a
copy of the signed Complaint, a copy of the in forma pauperis application, and a copy of Local
Rule 33.2 Interrogatories and Request for Production of Documents on the Corporation Counsel
for the City of New York, Special Federal Litigation Division.
Lastly, the Clerk of Court is respectfully directed to mail a copy of this Order to Plaintiff.
The case is respectfully referred to the Honorable Steven M. Gold, United States Magistrate
Judge, 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 and therefore in forma pauperis status is denied for the purpose of any appeal.
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: August 25, 2017
Brooklyn, New York

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