McIver v. New York City Police Department et al

Filing 16

MEMORANDUM DECISION AND ORDER: Plaintiff's motions to proceed in forma pauperis and to reopen the case 9 are granted. This Court's 5 Order of 3/19/2018 and the Clerk's 6 Judgment of 3/22/2018 are vacated. All of the claims in plaintiff's complaint against the NYPD are dismissed for failure to state a claim pursuant to 28 U.S.C. § 1915A and 28 U.S.C. § 1915(e)(2)(B). No summons shall issue against the NYPD. Plaintiff's claims may proceed against the named police officer. The Court directs the Clerk of Court to issue a summons for Officer Thomas Redmond of the 67th Police Precinct and directs the United States Marshals Service to serve the complaint and the summons on the defendant. T he Clerk of Court shall mail a copy of this Order and the complaint to the New York City Law Department and to plaintiff. The Court refers this matter 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. SO ORDERED by Judge Brian M. Cogan, on 9/5/2018. C/mailed. (Plaintiff's 9 Motions are granted; Party: New York City Police Department terminated.) (Latka-Mucha, Wieslawa)

UNITED STATES DISTRICT COURT
C/M
EASTERN DISTRICT OF NEW YORK
----------------------------------------------------------- X
:
ALTARIQ McIVER,
:
: MEMORANDUM DECISION AND
Plaintiff,
: ORDER
:
: 18-cv-333 (BMC) (LB)
- against :
NEW YORK CITY POLICE DEPARTMENT :
and POLICE OFFICER THOMAS
:
REDMOND,
:
:
:
Defendants.
:
----------------------------------------------------------- X
COGAN, District Judge.
Plaintiff Altariq McIver commenced this action pursuant to 42 U.S.C. § 1983 while he
was incarcerated at the Metropolitan Detention Center in Brooklyn, New York. 1 Plaintiff
submitted a partial filing fee, which was misapplied to his criminal case. As a result, the action
was dismissed for plaintiff’s failure to pay the filing fee. Plaintiff has subsequently appealed the
dismissal, 2 moved for in forma pauperis status, and requested to reopen the action in this Court.
Plaintiff’s motion to proceed in forma pauperis is granted. Plaintiff’s motion to reopen his case
is granted, but the New York City Police Department (“NYPD”) is dismissed as a defendant.

1

Plaintiff is currently detained at Estill FCI, with a projected release date of September 17, 2018. See Find an
Inmate, Federal Bureau of Prisons, https://www.bop.gov/inmateloc/. Plaintiff must notify the Court if his address
changes.
2

The Court of Appeals dismissed the appeal by Mandate issued September 4, 2018.

SUMMARY OF COMPLAINT
Plaintiff’s complaint describes a police chase following a robbery. Plaintiff fled from the
scene of the robbery in a vehicle. The police chased him and the vehicle crashed. Plaintiff
jumped out of the vehicle and continued his flight on foot, but he slipped on ice and fell. When
he was on the ground, a police officer fired five to seven shots at him, striking him in the torso.
Plaintiff suffered broken ribs, as well as damage to his right lung, his diaphragm, and his
liver. A bullet remains lodged in his lower back. He also suffers from anemia as a result of
blood loss and multiple blood transfusions.
Plaintiff names the NYPD and Police Officer Thomas Redmond as defendants and seeks
unspecified monetary damages.
DISCUSSION
When a prisoner seeks redress from a governmental entity or its officers or employees,
the Court must “dismiss the complaint, or any portion of the complaint, if the complaint is
frivolous, malicious, or fails to state a claim upon which relief may be granted or seeks monetary
relief from a defendant who is immune from such relief.” 28 U.S.C. § 1915A(b)(1)-(2); see
Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007). Similarly, pursuant to 28 U.S.C. § 1915, the
Court must dismiss an in forma pauperis action if the court determines that the complaint “is
frivolous or malicious; fails to state a claim on which relief may be granted; or seeks monetary
relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B).
Pro se complaints are held to less stringent standards than pleadings drafted by attorneys,
and the Court must read a pro se complaint liberally and interpret it raising the strongest
arguments it suggests. See Erickson v. Pardus, 551 U.S. 89, 94 (2007). However, pro se
complaints must still plead “enough facts to state a claim to relief that is plausible on its face,”

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Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007), and to “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). Although the Court assumes all factual allegations contained in the
complaint to be true, this tenet is “inapplicable to legal conclusions.” Id.
As stated above, plaintiff brings this action pursuant to 42 U.S.C. § 1983. Section 1983
permits a plaintiff to seek damages for violations of their constitutional rights. A plaintiff must
allege that “the conduct complained of [was] 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.” Pitchell v. Callan, 13 F.3d 545, 547 (2d Cir. 1994).
Plaintiff names the NYPD as a 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 ch. 17, § 396; see also 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”). Because Plaintiff cannot sue the
NYPD, his claims this agency are dismissed pursuant to 28 U.S.C. § 1915A(b) and 28 U.S.C. §
1915(e)(2)(B).
It would be futile to substitute the City of New York as a defendant. A municipality can
only be liable under Section 1983 if the plaintiff can show that a municipal policy or custom
caused the deprivation of constitutional rights. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658,
690-91 (1978); Cash v. Cty. of Erie, 654 F.3d 324, 333 (2d Cir. 2011) (“[T]o establish municipal
liability under § 1983, a plaintiff must prove that action pursuant to official municipal policy
caused the alleged constitutional injury.”). Plaintiff has not alleged any unconstitutional policy
or custom that would confer municipal liability, and “[p]roof of a single incident of
unconstitutional activity is not sufficient to impose liability on a municipality unless proof of the

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incident includes proof that it was caused by an existing, unconstitutional municipal policy[]
[that] can be attributed to a municipal policymaker.” See Mitchell v. City of New York, 841
F.3d 72, 80 (2d Cir. 2016) (citing City of Oklahoma City v. Tuttle, 471 U.S. 808, 823 (1985)).
CONCLUSION
Plaintiff’s motions to proceed in forma pauperis and to reopen the case [9] are granted.
This Court’s Order of March 19, 2018 and the Clerk’s Judgment of March 22, 2018 are vacated.
All of the claims in plaintiff’s complaint against the NYPD are dismissed for failure to
state a claim pursuant to 28 U.S.C. § 1915A and 28 U.S.C. § 1915(e)(2)(B). No summons shall
issue against the NYPD. Plaintiff’s claims may proceed against the named police officer. The
Court directs the Clerk of Court to issue a summons for Officer Thomas Redmond of the 67th
Police Precinct and directs the United States Marshals Service to serve the complaint and the
summons on the defendant. The Clerk of Court shall mail a copy of this Order and the complaint
to the New York City Law Department and to plaintiff. The Court refers this matter 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. See
Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
SO ORDERED.

Digitally signed by Brian
M. Cogan
________________________________
U.S.D.J.

Dated: Brooklyn, New York
September 5, 2018

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