Walker v. New York City Police Department et al

Filing 4

MEMORANDUM AND ORDER, On 8/3/17, the Court granted pltff's application to proceed in forma pauperis. The complaint is dismissed pursuant to 28 USc sec. 1915(e)(2)(B) with leave to amend as set forth herein. Accordingly, the complaint, filed in f orma pauperis, is dismissed for failure to state a claim and as time-barred against the named defts. In light of pltff's pro se status and in an abundance of caution, the Court grants pltff leave to file an amended complaint within 30 days from the entry of this Memorandum and Order. All further proceedings shall be stayed for 30 days. If pltff fails to file an amended complaint within the time allowed, judgment dismissing this action shall be entered for the reasons set forth in this Order . If submitted, the amended complaint will be reviewed for compliance with this Memorandum and Order and for sufficiency under 28 USC sec. 1915(e)(2)(B). The Court certifies pursuant to 28 USC sec. 1915(a)(3) that any appeal from this order would not be taken in good faith and therefore in forma pauperis status is denied for the purpose of an appeal. (Ordered by Judge William F. Kuntz, II on 8/4/2017) c/m (Galeano, Sonia)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

-----------------------------------------------------------)(
SH ERYL WALKER,
Plaintiff,

NOT FOR PUBLICATION

-against-

MEMORANDUM & ORDER
I 7-CV-4529 (WFK)

NEW YORK CITY POLICE DEPART MENT,
SERGEANT "JAN E" SERRANO, POLICE
OFFICER STEPHEN DAPOLITO, SERGEANT
ROSIAK ANNALIS,
Defendants.

-----------------------------------------------------------)(
WILLIAM F. KUNTZ, II, United States District Judge:
On Ju ly 26, 20 17, plaintiff Sheryl Walker, appearing pro se, filed this action against
defendants alleging v iolations of her civil ri ghts. On August 3, 20 17, the Court granted
plaintiffs application to proceed informa pauperis. The complaint is dismissed pursuant to 28
U.S.C. § 19 l 5(e)(2)(B) with leave to amend as set forth below.

BACKGROUND
The fo llowing is taken fro m plaintiff s complaint and attached documents and is assumed
to be true for the purposes of this Order. On May 25 , 2012, an Order of Ev iction was entered
against plai ntiff as to her residence at 75 1 Hart Street in Brookl yn, New York, by the K ings
County Housing Court. Comp!. at 39, ECF No. 1. 1 On or about May 29, 2012, plaintiffs
landlord denied her access to the apartment at Hart Street to retrieve her belongings in
contravention of an Access Order that had also been issued by the Housing Court, and an
altercation ensued. Id at 5-6. Plaintiffs landlord ca lled the police and plaintiff was arrested fo r
allegedly assaulting her landlord by defendant Police Officers Serrano, DaPo lito and Annalis of
the 83rd Police Precinct. Id at 7, 43-45, 73-79. On July 31, 2013 , the charges against plaintiff
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The Court utili zes the page numbers ass igned by the Electroni c Case Filing ("ECF") system.

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were dismissed and sealed. Id. at 80. Thereafter, plaintiff filed actions in state court seeking to
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hold defendants "in contempt" for failing to enforce the access order issued by the Housilg

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Court. Id. at 14-36, 46-72, 81-82. In this action, plaintiff seeks to relitigate the issues pr~vio~sly
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raised in the state court, specifically defendants' alleged failure to enforce the Access Order on,
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May 29, 2012. Liberally construed, plaintiffs complaint also alleges a false arrest claim.I
STANDARD OF REVIEW

se and
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In reviewing the complaint, the Court is mindful that plaintiff is proceeding pro

that her pleadings should be held "to less stringent standards than formal pleadings draft4d by
lawyers." Hughes v. Rowe, 449 U.S. 5, 9 (1980); accord Erickson v. Pardus, 551 U.S. 89,

94

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(2007); Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009). A complaint, however, must plee:id
"enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp.

vi

Twombly, 550 U.S. 544, 570 (2007). "A claim has facial plausibility when the plaintiff

~lea1s

factual content that allows the court to draw the reasonable inference that the defendant is liable
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for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While "detailed
factual allegations" are not required, "[a] pleading that offers 'labels and conclusions' orla
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formulaic recitation of the elements of a cause of action will not do."' Id. (quoting Twombly,
550 U.S. at 555). Similarly, a complaint is insufficient to state a claim "if it tenders 'naked
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assertion[s ]' devoid of 'further factual enhancement.'" Id. (quoting Twombly, 550 U.S.

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~t 5~ 7).

Further, under 28 U.S.C. § l 915(e)(2)(B), district courts shall dismiss an informa paup~ris ,
complaint action that "(i) is frivolous or malicious; (ii) fails to state a claim on which relief

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be granted; or (iii) seeks monetary relief from a defendant who is immune from such rel~ef." 28
U.S.C. § 1915(e)(2)(B).

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DISCUSSION
Plaintiff alleges various violations of her civil rights, see Compl. at 2, therefore, the Court

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construes plaintiffs action as arising under 42 U.S.C. § 1983. This section provides, in pkrtiqent
part:
Every person who, under color of any statute, ordinance regulation,
custom, or usage, of any State or Territory or the District of Columbia,
subjects, or causes to be subjected, any citizen of the United States or
other person within the jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the Constitution and laws,
. shall be liable to the party injured in an action at law, suit in equity, or
other proper proceeding for redress ....
42 U.S.C. § 1983. This statute "creates no substantive rights; it provides only a

procedu~ fo}

redress for the deprivation ofrights established elsewhere." Sykes v. James, 13 F.3d

SISJ SIJ
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(2d Cir. 1993); see also Thomas v. Roach, 165 F.3d 137, 142 (2d Cir. 1999). In order to

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maintain a § 1983 action, a plaintiff must show that the defendant acted under color of strte lrw
to deprive the plaintiff of a right arising under the Constitution or federal law. Cornejo

1· Berl,

592 F.3d 121, 127 (2d Cir. 2010)(citing Pitchell v. Callan, 13 F.3d 545, 547 (2d Cir. 1984))
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Here, plaintiff's complaint against the New York City Police Department (''NYPP") I
cannot go forward, as the NYPD does not have the legal capacity to be sued. See Jenkins v. City
ofNew York, 478 F.3d 76, 93 n.19 (2d Cir. 2007) (NYPD not a suable entity); Lopez v. Zouvelos,

No. 13 CV 6474 (MKB}, 2014 WL 843219, at *2 (E.D.N.Y. Mar. 4, 2014) (dismissing

~l elms
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against the NYPD as a non-suable entity). Therefore, the complaint is dismissed as to the N/VPD
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for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(8).

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To the extent plaintiff alleges that Police Officers Serrano, DaPolito and Annalisl

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(collectively, "Police Officers") were in contempt of court and failed to appear in state court in
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connection with plaintiff's state court motion or action, she fails to state a claim arising idr

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§ 1983. The Police Officers' purported failure to appear in state court or to answer her cobterhpt
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motion does not rise to the level of a constitutional violation. To the extent plaintiff allegfs ti+e
Police Officers conspired with her landlord to deprive her of access to her apartment, this,claif

also fails. Plaintiff has failed to allege facts sufficient to show the existence of any consp~racy
designed to deprive plaintiff of her rights. See Brito v. Arthur, 403 F. App'x 620 (2d Cir.1201!0)
(quoting Ostrer v. Aronwald, 567 F.2d 551, 553 (2d Cir. 1977) (per curiam )). Claims of

conspiracy that are vague and provide no basis in fact must be dismissed. Gallop v. Cheney, 642
F .3d 364, 369 (2d Cir. 2011) (finding allegations of conspiracy "baseless" where the

pl4ti~

"offer[ed] not a single fact to corroborate her allegation of a 'meeting of the minds' amo1g ~e

conspirators"); Webb v. Goord, 340 F.3d 105, 110-11 (2d Cir. 2003) (to maintain a consniracy
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action, the plaintiff "must provide some factual basis supporting a meeting of the minds").
Moreover, plaintiffs claim the Police Officers failed to arrest her landlord lacks merit

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b~cau~e

there is no constitutionally protected right to have a government investigation of alleged

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wrongdoing. Harrington v. County ofSuffolk, 607 F.3d 31, 35 (2d Cir. 201 O); Martinez

County ofSuffolk, 999 F.Supp.2d 424, 430 (E.D.N.Y. 2014) (plaintiff has no constitutionalll

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protected right to have officers investigate his complaints).

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Finally, to the extent plaintiff alleges that on May 29, 2012, the Police Officers falsely
arrested her, this claim is time-barred. Claims brought pursuant to§ 1983 must be filed rJin
three years of the date on which such claims accrue, Milan v. Wertheimer, 808 F.3d 961,

96~ (2d
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Cir. 2015), and, in most cases, a cause of action under § 1983 accrues "when the plainti~f kdows
of or has reason to know of the injury which is the basis of his action," Pearl v. City of AonJ
Beach, 296 F.3d 76, 80 (2d Cir. 2002) (internal quotation marks omitted); see also

Hog~n v.I
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Fischer, 738 F.3d 509, 518 (2d Cir. 2013). Here, plaintiff was arrested on May 29, 20\i, id

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thus knew "of the injury which is the basis of h[ er] action" on that same day; therefore, th~
statute of limitations began to run on plaintiffs claim at that time. Pearl, 296 F.3d at 89.
Because .the alleged false arrest occurred on May 29, 2012, plaintiffs complaint filed on ~uly

16,

2017, fails well outside the three-year time limit and is dismissed as time-barred. See Milhn,

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F.3d at 963-64 (affirming sua sponte dismissal of claims based on statute of limitations).
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Even so, the Court grants plaintiff leave to amend should she be able to state a basrs fqr
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equitable tolling. "Generally, a litigant seeking equitable tolling bears the burden of esta~lishfng
two elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordin~y
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circumstance stood in his way." A.Q.C. ex rel. Castillo v. United States, 656 F.3d 135, 14,!4 (I'd
Cir. 2011) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)).

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CONCLUSION

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Accordingly, the complaint, filed informa pauperis, is dismissed for failure to sta e
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claim and as time-barred against the named defendants. 28 U.S.C. § 1915(e)(2)(b). In light o
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plaintiffs pro se status and in an abundance of caution, the Court grants plaintiff leave to !file an
amended complaint within 30 days from the entry of this Memorandum and Order. All furthdr
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proceedings shall be stayed for 30 days.

If plaintiff elects to file an amended complaint, it shall be captioned "AMENDED
COMPLAINT" and bear the same docket number as this Order, 17-CV-4529 (WFK). The
amended complaint shall replace the original complaint and shall provide, in addition to

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statement of claim against the named defendants, facts to ~upport equitable tolling of the hre+year statute oflimitations period for claims arising under 42 U.S.C. § 1983.

If plaintiff fails to file an amended complaint within the time allowed, judgment
dismissing this action shall be entered for the reasons set forth in this Order. If submitted, th1

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/s/ USDJ WILLIAM F. KUNTZ, II