Moco v. New York City Police Department
ORDER DISMISSING CASE: The Court directs that these two actions are hereby dismissed pursuant to 28 U.S.C. § 1915A(b) and § 1915(e)(2)(B). The Court grants Plaintiff thirty (30) days within which to file amended complaints to name appropri ate defendants and demonstrate exceptional circumstances to overcome any relevant statute of limitations. Any amended complaint must be captioned Amended Complaint and bear the same docket number as the complaint it seeks to replace. Plaintiff is r eminded that any amended complaint completely replaces all previous complaints filed under that docket number. If Plaintiff fails to file amended complaints within 30 days, the actions will be dismissed and judgments shall enter. No summonses shall issue at this time, and all further proceedings shall be stayed for 30 days. 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. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). Ordered by Judge Pamela K. Chen on 1/9/2018. (Rediker, Ezekiel).
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
NOT FOR PUBLICATION
MEMORANDUM AND ORDER
-againstNEW YORK CITY POLICE DEPARTMENT,
NEW YORK CITY POLICE DEPARTMENT,
PAMELA K. CHEN, United States District Judge:
Plaintiff Robert Moco, previously incarcerated at Riker’s Island and recently transferred to
the Central New York Psychiatric Center, filed four pro se civil rights actions against the New
York City Police Department in the United States District Court for the Southern District of New
York. All four cases subsequently were transferred to this district. Two of those cases, docketed
as 17-CV-5245 and 17-CV05261, were dismissed by this Court’s Order dated December 7, 2017.
Moco v. New York City Police Department, No. 17-CV-5245, slip op. (E.D.N.Y. Dec. 7, 2017).
With respect to these two remaining actions, the Court grants Plaintiff’s applications to proceed in
forma pauperis, pursuant to 28 U.S.C. § 1915, but dismisses both cases, with leave to amend within
thirty (30) days of this Order.
The instant complaints, though dated June 17, 2017 and June 18, 2017, both allege that
they were delivered to prison authorities for mailing on July 12, 2017. The complaints were
received in the Southern District on August 11, 2017 and transferred to this Court on September
In the complaint docketed as 17-CV-5608, Plaintiff alleges that on November 27, 2012
“[s]omeone who in the past I had problems with placed a gun and drugs in my vehicle.”
(Complaint, Dkt. 1, at ECF 4.) 1 He alleges that police officers subsequently arrested him and
searched his car. (Id.) He attaches arrest and charge information indicating that he was arraigned
on November 28, 2012 in Queens County Criminal Court, Case Number 2012QN061687, and
charged with criminal possession of weapons and controlled substances. (Id. at 7.) The document
indicates that the charges were dismissed on August 6, 2013 after a grand jury returned a No True
Bill on August 2, 2013. (Id. at 9.)
In the complaint docketed as 17-CV-5611, Plaintiff alleges that police officers came to his
residence on January 30, 2014, dragged him out of his home, and threw him into the snow.
(Complaint, Dkt. 1, at 4.) He states that the officers told him that his landlord had filed a complaint
against him. (Id.) He alleges that he was detained for three days and paid $1000 bail before the
charges were dismissed on September 16, 2014.
He attaches the arrest and charge
information sheet indicating that he was arraigned in Queens County Criminal Court, Case
Number 2014QN005828, on a charge of criminal mischief on January 31, 2014 and that the charge
was dismissed on September 16, 2014 on speedy trial grounds. (Id. at 7.)
“ECF” refers to the page numbers assigned by the court Electronic Case Filing (ECF)
system, and not the document’s internal pagination.
The only named defendant in both actions is the New York City Police Department.
Plaintiff seeks monetary damages in each complaint.
On December 11, 2017, the Court received a letter from Plaintiff dated December 5, 2017
(“December 11th Letter”). The letter provides an updated address for Plaintiff and states: “I would
also like to adjust the case to be against the City of New York, the police officers (ie John Doe)
and the witness (ie John Doe) who made the false accusations that led to my arrest.” (Dkt. 7.)
Standard of Review
Under 28 U.S.C. § 1915A, the Court must review the complaint in a civil action in which
a prisoner seeks redress from a governmental entity or from officers or employees thereof, to
“identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the
complaint (1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or
(2) seeks monetary relief from a defendant who is immune from such relief.” 28 U.S.C. §
1915A(b). Pursuant to the in forma pauperis statute, the court must dismiss a complaint if it
determines that the action is “(i) frivolous or malicious, (ii) fails to state a claim upon 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). Where it is clear from the face of the complaint that a claim is barred
by the applicable statute of limitations, that claim is subject to dismissal for failure to state a claim.
See Pino v. Ryan, 49 F.3d 51, 53 (2d Cir. 1995) (holding that a complaint can be dismissed on
initial review based on an affirmative defense that appears on the face of the complaint.)
The Court is mindful that “[a] document filed pro se is to be liberally construed, and a pro
se complaint, however inartfully pleaded, must be held to less stringent standards than formal
pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal quotation
marks and citations omitted). If a liberal reading of the complaint “gives any indication that a
valid claim might be stated,” the Court must grant leave to amend the complaint. See Cuoco v.
Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000).
Statute of Limitations
In New York State, the statute of limitations for civil rights actions brought pursuant to 42
U.S.C. § 1983 is three years. Owens v. Okure, 488 U.S. 235, 249-50 (1989) (discussing Wilson v.
Garcia, 471 U.S. 261 (1985), which held that courts deciding claims under § 1983 should “borrow”
the state statute of limitations for personal injury actions); N.Y. C.P.L.R. § 214 (McKinney’s) (the
statute of limitations for personal injury actions in New York is three years). Generally, a § 1983
claim accrues “when the plaintiff knows or has reason to know of the harm” he or she has suffered.
See Connolly v. McCall, 254 F.3d 36, 41 (2d Cir. 2001) (quoting Eagleston v. Guido, 41 F.3d 865,
871 (2d Cir. 1994)). The Supreme Court has clarified that the statute of limitations for a claim of
false imprisonment, which includes false arrest, begins to run at the time the claimant “becomes
held pursuant to [legal] process—when, for example, he is bound over by a magistrate or arraigned
on charges.” Wallace v. Kato, 549 U.S. 384, 389 (2007). The statute of limitations for claims of
malicious prosecution begins when “the underlying criminal action is conclusively terminated.”
Murphy v. Lynn, 53 F.3d 547, 548 (2d Cir. 1995) (citation omitted).
Plaintiff did not file the instant lawsuits until July 2017 at the earliest. Counting back three
years from the date that Plaintiff claims he delivered his complaints to prison authorities, Plaintiff’s
claims would have had to accrue after July 12, 2014 in order to be timely. Plaintiff was arraigned
on November 28, 2012 and January 31, 2014 in connection with the arrests on which his
complaints are based. As Plaintiff’s false arrest claims accrued more than three years prior to the
filing of his two complaints, these claims are time-barred. See Milan v. Wertheimer, 808 F.3d 961,
963-964 (2d Cir. 2015) (affirming sua sponte dismissal of claims that fall outside of statute of
limitations for § 1983 actions).
Liberally construing the complaints, Plaintiff may also be seeking to bring claims for
malicious prosecution. The November 27, 2012 arrest described in 17-CV-5608 resulted in
charges that were dismissed on August 6, 2013, which is more than three years before Plaintiff
filed the instant civil rights actions. Accordingly, the potential malicious prosecution claims in
17-CV-5608 appear to be time-barred as well. The complaint docketed as 17-CV-5611 alleges
that the charges it describes were dismissed on September 16, 2014. Thus, these claims are not
barred by the statute of limitations.
The statute of limitations may be subject to equitable tolling in exceptional circumstances,
which, in New York State, includes “a disability because of infancy or insanity at the time the
cause of action accrues.” CPLR § 208 (McKinney’s). Plaintiff has not alleged any disability that
would extend the statute of limitations for his time-barred claims.
Naming Proper Defendants
Even if Plaintiff’s claims are found to be timely, he has not named the proper defendants.
Plaintiff=s allegations suggest claims for false arrest and malicious prosecution, which are
cognizable under 42 U.S.C. § 1983. In order to maintain a § 1983 action, a 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. In order to bring a claim pursuant to § 1983, a
plaintiff must show that each of the named individuals is personally liable for the alleged harm.
Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009) (“Because vicarious liability is inapplicable to . . . §
1983 suits, a plaintiff must plead that each Government-official defendant, through the official’s
own individual actions, has violated the Constitution.”). A municipality can be liable under § 1983
only if a plaintiff can show that a municipal policy or custom caused the deprivation of his or her
constitutional rights. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690-91 (1978); Cash v.
County. of Erie, 654 F.3d 324, 333 (2d Cir. 2011), cert. denied, 565 U.S. 1259 (2012) (“[T]o
establish municipal liability under § 1983, a plaintiff must prove that action pursuant to official
municipal policy caused the alleged constitutional injury.”) (citation and internal quotation marks
omitted). Proof of a single incident of unconstitutional activity is not sufficient to impose liability
on a municipality unless proof of the incident includes proof that it was caused by an existing,
unconstitutional municipal policy that can be attributed to a municipal policymaker. City of
Oklahoma City v. Tuttle, 471 U.S. 808, 823-824 (1985).
In the instant two complaints, Plaintiff initially named the New York City Police
Department (“NYPD”) as the only defendant. However, the New York City Charter provides that
suits “shall be brought in the name of the City of New York and not in that of any agency.” N.Y.
City Charter § 396; see also Jenkins v. City of New York, 478 F.3d 76, 93 n.19 (2d Cir. 2007).
Although Plaintiff added the City of New York (“City”) as a defendant in his December 11th
Letter2, he has not alleged any unconstitutional policy or custom that would confer municipal
liability on the City. Accordingly, Plaintiffs’ claims against both the NYPD and City are dismissed
for failure to state a claim on which relief may be granted, pursuant to 28 U.S.C. § 1915A and 28
U.S.C. § 1915(e)(2)(B)(ii). Thus, in order to proceed on his civil rights claims, Plaintiff must
identify individual defendants who may be held liable under § 1983.
The Court is liberally construing Plaintiff’s December 11th Letter as amending his two
While Plaintiff’s December 11th letter purports to include John Doe defendants, it fails to
identify any of these individual defendants by name or specify the actions each defendant took or
failed to take in violation of Plaintiff’s civil rights. In order to properly identify the John Doe
defendants, Plaintiff must offer any identifying information he can recall, including names, jobs
or titles, and physical descriptions of these individuals.
Leave to Amend
In light of Plaintiff’s pro se status, the Court grants leave to amend the above-captioned
complaints. In order to proceed, Plaintiff must name the individuals whom he believes to have
been responsible for the alleged deprivation of his constitutional rights. If Plaintiff does not know
the names and badge numbers of the arresting officers or other officer-defendants, he may identify
each of them as John Doe Police Officer #1, or the like, along with any physical description and
precinct assignment, if known. He must provide the date and location for all relevant events and
a brief description of what each defendant did or failed to do in violation of Plaintiff’s civil rights.
Moreover, in order to proceed on his claims for false arrest and his malicious prosecution
related to the November 27, 2012 incident described in 17-CV-5608, Plaintiff must demonstrate
exceptional circumstances that would provide a basis for equitable tolling of the statute of
limitations. If he was subject to a disability during the period he seeks to toll, he must provide the
Court with detailed information about these circumstances and demonstrate that he “acted with
reasonable diligence throughout the period he seeks to toll.” Doe v. Menefee, 391 F.3d 147, 159
(2d Cir. 2004) (citation omitted).
For the reasons stated above, these two actions are hereby dismissed pursuant to 28 U.S.C.
§ 1915A(b) and § 1915(e)(2)(B). The Court grants Plaintiff thirty (30) days within which to file
amended complaints to name appropriate defendants and demonstrate exceptional circumstances
to overcome any relevant statute of limitations. Any amended complaint must be captioned
“Amended Complaint” and bear the same docket number as the complaint it seeks to replace.
Plaintiff is reminded that any amended complaint completely replaces all previous complaints filed
under that docket number. If Plaintiff fails to file amended complaints within 30 days, the actions
will be dismissed and judgments shall enter. No summonses shall issue at this time, and all further
proceedings shall be stayed for 30 days. 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. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
/s/ Pamela K. Chen
PAMELA K. CHEN
United States District Judge
Dated: Brooklyn, New York
January 9, 2018
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