Littles v. Molloy et al

Filing 8

ORDER: The Court directs that Plaintiff's claims against Mohammaed Uddin and Azaharul Islam are dismissed. See 28 U.S.C. §§ 1915(e)(2)(B). No summonses shall issue as to these Defendants and the Clerk of Court is directed to ame nd the caption to reflect the dismissal of these defendants. Plaintiff's false arrest claim against Police Officer Robert Molloy of the 102nd Precinct shall proceed. The Clerk of Court shall issue a summons as to Police Officer Robert Molloy and the United States Marshal Service is directed to serve the summons, complaint, and this Order upon this Defendant without prepayment of fees. The Clerk of Court shall send a copy of this Order to Plaintiff and to the Corporation Counsel of the City of New York. The case is referred to Magistrate Judge Lois Bloom 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 purpose of an appeal. Coppedge v. United States, 369 U.S. 438, 444-45 (1962). Ordered by Judge Pamela K. Chen on 12/7/2017. (Rediker, Ezekiel)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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KENNETH LITTLES,

NOT FOR PUBLICATION

Plaintiff,
MEMORANDUM AND ORDER
17-CV-4302 (PKC) (LB)

-againstP.O. ROBERT MOLLOY of 102nd Precinct;
MOHAMMED UDDIN; AZAHARUL ISLAM,
Defendants.
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PAMELA K. CHEN, United States District Judge:

Plaintiff Kenneth Littles, proceeding pro se and currently incarcerated at the Anna M.
Kross Center at Rikers Island, brings this civil rights action under 42 U.S.C. § 1983 (“Section
1983”).1 Plaintiff’s request to proceed in forma pauperis pursuant to 28 U.S.C. § 1915 is
granted. For the reasons discussed below, Plaintiff’s claims against Mohammed Uddin and
Azaharul Islam are dismissed. Plaintiff’s claims against Police Officer Robert Molloy of the
102nd Precinct shall proceed.
BACKGROUND
Plaintiff brings this action in connection with his May 20, 2017 arrest in Jamaica,
Queens. He names as Defendants the arresting officer, Robert Molloy of the 102nd Precinct, and
two private individuals, Mohammed Uddin and Azaharul Islam, who Plaintiff alleges called him
“racial names which by law is a hate crime,” while he waited at a bus stop. (Am. Compl. at 7.)2
Plaintiff alleges that he “was told that [he] was being arrested for a crime that [Police Officer

Plaintiff filed a complaint on July 12, 2017 and an amended complaint (“Am. Compl.”)
on July 25, 2017, which is essentially a duplicate of the original complaint.
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The Court refers to the page numbers assigned by the court’s Electronic Case Filing

system.
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Molloy] was told [he] did & it never occurred[,] and [Plaintiff is] still incarcerated for a crime . .
. .” (Id.) Plaintiff seeks money damages for the injuries of pain and suffering, depression, and
psychiatric help and medication. (Id. at 7, 9.)
STANDARD OF REVIEW
Pro se complaints are held to less stringent standards than pleadings drafted by attorneys
and the Court is required to read the plaintiff’s pro se complaint liberally and interpret it as
raising the strongest arguments it suggests. Erickson v. Pardus, 551 U.S. 89, 94 (2007); Sealed
Plaintiff v. Sealed Defendant #1, 537 F.3d 185, 191 (2d Cir. 2008). 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, 123
(2d Cir. 2010) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (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). However, under 28 U.S.C. § 1915(e)(2)(B), a district court
shall dismiss an in forma pauperis action where it is satisfied that the action is “(i) 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.”
DISCUSSION
In order to maintain a Section 1983 action, 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. “Section 1983 itself creates no substantive rights,
[but] provides only a procedure for redress for the deprivation of rights established elsewhere.”

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Sykes v. James, 13 F.3d 515, 519 (2d Cir. 1993) (citing City of Oklahoma City v. Tuttle, 471 U.S.
808, 816 (1985)).
Here, Plaintiff brings claims against Mohammaed Uddin and Azaharul Islam, who
Plaintiff alleges made racial slurs against him while he was waiting at a bus stop. Because these
two individuals are private citizens and not state actors, Plaintiff’s claims against them must be
dismissed. See generally American Manufacturers Mutual Insurance Co. v. Sullivan, 526 U.S.
40, 50 (1999) (quotations omitted) (“the under-color-of-state-law element of § 1983 excludes
from its reach merely private conduct, no matter how discriminatory or wrongful.”) (quotation
omitted); cf. Brentwood Academy v. Tennessee Secondary School Athletic Ass’n, 531 U.S. 288,
295 (2001) (“state 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. Metropolitan Edison Co., 419 U.S. 345, 351 (1974).
Plaintiff has properly alleged a false arrest claim against Police Officer Robert Molloy of
the 102nd Precinct. This claim shall proceed.
CONCLUSION
Plaintiff’s claims against Mohammaed Uddin and Azaharul Islam are dismissed. See 28
U.S.C. §§ 1915(e)(2)(B). No summonses shall issue as to these Defendants and the Clerk of
Court is directed to amend the caption to reflect the dismissal of these defendants. Plaintiff’s
false arrest claim against Police Officer Robert Molloy of the 102nd Precinct shall proceed. The
Clerk of Court shall issue a summons as to Police Officer Robert Molloy and the United States
Marshal Service is directed to serve the summons, complaint, and this Order upon this Defendant
without prepayment of fees.

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The Clerk of Court shall send a copy of this Order to Plaintiff and to the Corporation
Counsel of the City of New York. The case is referred to Magistrate Judge Lois Bloom 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 purpose of
an 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: December 7, 2017
Brooklyn, New York

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