Pintel v. 71st Precinct NYPD

Filing 4

MEMORANDUM & ORDER: The Court grants Plaintiff's 2 request to proceed in forma pauperis pursuant to 28 U.S.C. § 1915 solely for the purpose of this Memorandum and Order. Any action against the 71st Precinct must be brou ght against the City of New York. Accordingly, the Court dismisses Plaintiff's claim against the 71st Precinct. The Court dismisses Plaintiff's 1 Complaint in its entirety for failure to state a claim on which relief may be granted. The Court grants Plaintiff leave to amend the Complaint within sixty (60) days of this Memorandum and Order. 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 fo rma pauperis status is denied for the purpose of any appeal. SO ORDERED by Judge Margo K. Brodie, on 1/23/2018. (Copy of this Order and the attached copies of all unpublished decisions cited herein sent to pro se Plaintiff.)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
-------------------------------------------------------------ITZHAK SIMON PINTEL,
Plaintiff,
v.

MEMORANDUM & ORDER
17-CV-3862 (MKB)

71st PRECINCT NYPD,
Defendant.
-------------------------------------------------------------MARGO K. BRODIE, United States District Judge:
Plaintiff Itzhak Simon Pintel, proceeding pro se, commenced the above-captioned action
on June 22, 2017 against Defendant 71st Precinct of the New York City Police Department
(“NYPD”), alleging that the 71st Precinct and its personnel conducted a deficient investigation in
connection with the theft of Plaintiff’s personal property. (Compl., Docket Entry No. 1.)
Plaintiff seeks damages and an order directing Defendant to “protect the residents, no politics
involved.” (Id. at 8.) 1 The Court grants Plaintiff’s request to proceed in forma pauperis
pursuant to 28 U.S.C. § 1915 solely for the purpose of this Memorandum and Order. For the
reasons set forth below, the Court dismisses the Complaint.
I. Background
The Court assumes the truth of the allegations in the Complaint for the purpose of this
Memorandum and Order. Plaintiff alleges that on June 3, 2017, two sets of Tefillin, a “very
expensive religi[ous] [item]” valued at “thousands [of] dollars” and a gift from his father, were

1

Because the Complaint is not consecutively paginated, the Court refers to the page
numbers assigned by the Electronic Case Filing (“ECF”) system.

stolen from “the synagogue.” 2 (Compl. 6.) Officers from the NYPD’s 71st Precinct (the “71st
Precinct”) responded and prepared a police report. (Id.) The next day, Plaintiff was called to the
71st Precinct and told that there “is nothing to do, because [the officers] need [a] court order to
see the cameras, and [until] they . . . get the order,” they are unable to investigate. (Id.)
On June 14, 2017, Plaintiff complained to a supervisor at the 71st Precinct, who referred
Plaintiff to Detective Daniel Oh. (Id.) On June 15, 2017, before Plaintiff was to meet with Oh at
the synagogue, Plaintiff was approached at the synagogue by a “regular orthodox man” named
Mendy Kolsky who stated that “he is a friend of the detective.” (Id.) When Oh arrived, he told
Plaintiff that he had to “deal with” Kolsky. (Id.) Kolsky then asked Plaintiff for a “hard disc
[sic] to transfer the video onto, but [Kolsky] stole [Plaintiff’s] hard disk.” (Id.) According to
Plaintiff, “[M]endy [K]olsky is a member of [the] Jewish community” and a “political man that
hates the group that [Plaintiff] . . . belongs to.” (Id.) Plaintiff alleges that Oh failed to conduct a
proper investigation, and improperly gave a “legal role[]” to “ordinary people who are involved
in politics.” (Id.) Plaintiff later tried to contact Oh regarding the investigation, but received no
response. (Id.)
Plaintiff alleges that the 71st Precinct was negligent and is liable “for the insecurity they
provide to the resident[s] of [C]rown [H]eight[s].” (Id.) Plaintiff seeks $1,000,000 in damages
and an order directing the 71st Precinct to “protect the residents, no politics involved.” (Id. at 8.)
II. Discussion
a. Standard of review
A complaint must plead “enough facts to state a claim to relief that is plausible on its

2

Plaintiff does not specify the name or location of the synagogue, but states that he is a
student at the Yeshiva located at 770 Eastern Parkway in Brooklyn, New York. (Compl. 6.)
2

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
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,
106 (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
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 v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007).
In addition, if the Court “determines at any time that it lacks subject-matter jurisdiction,
the Court must dismiss the action.” Fed. R. Civ. P. 12(h)(3); see also Cortlandt St. Recovery
Corp. v. Hellas Telecomms., S.À.R.L., 790 F.3d 411, 416–17 (2d Cir. 2015) (A district court may
dismiss an action for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) when the court
“lacks the statutory or constitutional power to adjudicate it . . . .” (quoting Makarova v. United
States, 201 F.3d 110, 113 (2d Cir. 2000)).
b. Plaintiff cannot assert a claim against the NYPD’s 71st Precinct
Plaintiff’s claim against the 71st Precinct of the NYPD fails because the NYPD is not a
suable entity. Section 396 of the New York City Charter provides that “[a]ll actions and
3

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 71st Precinct is a subdivision of the New York City Police Department, which is an
agency of the City of New York, the 71st 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 asserted against the NYPD due to non-suable-entity status). Any action against the
71st Precinct must be brought against the City of New York. Accordingly, the Court dismisses
Plaintiff’s claim against the 71st Precinct.
c. Plaintiff fails to state a claim against Oh, Mjeshtri and Martinos
In light of Plaintiff’s pro se status, the Court construes Plaintiff’s allegations as asserting
a section 1983 claim against Oh, Mjeshtri and Martinos. 3 However, for the reasons discussed
below, Plaintiff fails to state a claim against any of the three individuals.
Under section 1983, individuals may bring a private cause of action against persons
“acting under color of state law” to recover money damages for deprivations of their federal or
constitutional rights. Matusick v. Erie Cty. Water Auth., 757 F.3d 31, 55 (2d Cir. 2014) (quoting

3

The Complaint does not include the first names of Mjeshtri and Martinos. In addition,
in the Complaint, Plaintiff’s description of the basis of his claim focuses on Oh’s conduct.
Plaintiff makes no mention of any conduct by Mjeshtri and Martinos but Plaintiff includes their
last names and badge numbers in the Complaint and suggests that he has filed a complaint
against all three officers with NYPD Internal Affairs. (Compl. 7, Docket Entry No. 1.)
4

42 U.S.C. § 1983). To establish a viable section 1983 claim, a plaintiff must show “the violation
of a right secured by the Constitution and laws of the United States” and that “the alleged
deprivation was committed by a person acting under color of state law.” Vega v. Hempstead
Union Free Sch. Dist., 801 F.3d 72, 87–88 (2d Cir. 2015) (citations and internal quotation marks
omitted).
Here, Plaintiff has not alleged that Oh, Mjeshtri or Martinos engaged in any conduct that
violated rights guaranteed by federal or constitutional law. Plaintiff alleges that Defendants
conducted a “negligent” investigation of the theft of his Tefillin. (Compl. 6.) However, citizens
do not have a constitutional right to an adequate police investigation. See Harrington v. Cty. of
Suffolk, 607 F.3d 31, 34 (2d Cir. 2010) (holding that there is no due process right to an adequate
police investigation); Naples v. Stefanelli, 972 F. Supp. 2d 373, 388 (E.D.N.Y. 2013) (same);
Stokes v. City of New York, No. 05-CV-0007, 2007 WL 1300983, at *6 (E.D.N.Y. May 3, 2007)
(“[I]t is well-settled that there is no independent claim for a police officer’s purported failure to
investigate.”); Laupot v. City of New York, No. 01-CV-3294, 2002 WL 83673, at *2 (S.D.N.Y.
Jan. 18, 2002) (dismissing a plaintiff’s claim against the City of New York for the NYPD’s
failure to investigate individual noise complaints and allegations of harassment). Moreover,
Plaintiff’s allegations that the investigation was improper because Kolsky was given a “legal
role[],” (Compl. 6), fail for the same reason. The officers’ alleged conduct in connection with
the investigation of Plaintiff’s stolen property does not implicate a federal right, and thus does
not state a claim under section 1983. See Terry v. Cty. of Suffolk, 654 F. App’x 5, 7 (2d Cir.
2016) (affirming dismissal of claims against various government employees who “were aware of
the unlawful police force but failed to take action” because of a lack of a “judicially cognizable
interest in the prosecution or nonprosecution of another” (quoting Linda R.S. v. Richard D., 410
5

U.S. 614, 619 (1973))); Martinez v. Cty. of Suffolk, 999 F. Supp. 2d 424, 430 (E.D.N.Y. 2014)
(“Indeed, courts in the Second Circuit have long held that an individual has no constitutionally
protected right to an investigation by government officials of alleged wrongdoing by other
government officials.” (quoting Hayes v. Cty. of Sullivan, 853 F. Supp. 2d 400, 433 (S.D.N.Y.
2012))); Paige v. City of New York, No. 10-CV-5469, 2011 WL 65667, at *4 (E.D.N.Y. Jan. 7,
2011) (“A private citizen does not have a constitutional right to compel the initiation of criminal
proceedings.” (alterations and citations omitted)); Stokes, 2007 WL 1300983, at *6 (finding that
allegations related to police investigations do not act as stand-alone claims under section 1983
but “are considered, to the extent they are relevant, within the framework of claims for false
arrest, false imprisonment, or malicious prosecution” (citations omitted)). The Court therefore
dismisses Plaintiff’s claims against Oh, Mjeshtri and Martinos for failure to state a claim under
section 1983.
III. Conclusion
For the foregoing reasons, the Court dismisses Plaintiff’s Complaint in its entirety for
failure to state a claim on which relief may be granted. The Court grants Plaintiff leave to amend
the Complaint within sixty (60) days of this Memorandum and Order.

6

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/ MKB
MARGO K. BRODIE
United States District Judge
Dated: January 23, 2018
Brooklyn, New York

7