Lawrence v. Walsh et al

Filing 7

ORDER re: 5 Motion for Leave to Proceed in forma pauperis is GRANTED but the Complaint is sua sponte STAYED pending resolution of the underlying criminal case. This case is ADMINISTRATIVELY CLOSED. Plaintiff is directed to request in writing that t his case be re-opened within 2 weeks from the conclusion of the underlying criminal case if so warranted at that time. Any appeal from this Order would not be taken in good faith. Ordered by Judge Joanna Seybert on 4/17/2013. (C/M Plaintiff) (Nohs, Bonnie)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------X
SHAWN E. LAWRENCE,
Plaintiff,

MEMORANDUM AND ORDER
13-CV-0572(JS)(WDW)

-againstDETECTIVE THOMAS S. WALSH,
1002/3310/2, DETECTIVE JOHN
MCLEER, DETECTIVE TULIO SERRATA,

Defendants.
----------------------------------X
APPEARANCES:
For Plaintiff
Shawn E. Lawrence, Pro Se
183153
Suffolk County Correctional Facility
110 Center Drive
Riverhead, NY 11901
For Defendants No appearance
SEYBERT, District Judge:
Presently
Complaint

brought

pending
by

before

incarcerated

the
pro

Court
se

is

the

plaintiff

pro

se

Shawn

E.

Lawrence (“Plaintiff”) pursuant to 42 U.S.C. § 1983 (“Section
1983”)

against

the

Detectives,

namely

(“McLeer”)

and

“Defendants”).

three
Thomas

Tulio

Suffolk
S.

County

Walsh

Serrata

Police

(“Walsh”),

(“Serrata”)

Department

John

McLeer

(collectively,

Plaintiff did not pay the filing fee nor did he

submit an application to proceed in forma pauperis at the time he
filed the Complaint.

Accordingly, on January 31, 2013, the Court

sent Plaintiff a Notice of Deficiency that advised Plaintiff that
he must either pay the $350.00 filing fee or complete and return
the enclosed in forma pauperis application if he wanted to proceed

with his case. On February 6, 2013, Plaintiff filed an application
to proceed in forma pauperis.

Upon review of the declaration in

support of the application to proceed in forma pauperis, the Court
determines that the Plaintiff’s financial status qualifies him to
commence this action without prepayment of the $350.00 filing fee.
See 28 U.S.C. §§ 1914(a); 1915(a)(1).

Therefore, Plaintiff’s

request to proceed in forma pauperis is GRANTED.

However, for the

reasons that follow, the action is sua sponte stayed pending
resolution of the underlying criminal case.
BACKGROUND
Plaintiff

alleges

that,

on

April

14,

2012,

he

was

arrested by the Defendants and advised by Walsh that Plaintiff was
going to be charged with the murder of James Terry.

According to

the Complaint, Plaintiff complained to Walsh that Plaintiff was
being falsely accused of a crime Plaintiff did not commit and Walsh
allegedly responded: “You [B]lack piece of s--t, whether you did it
or not you’r[e] still going to prison for 25 years to life, I’ll
make sure of that.”

(Compl. at

¶ 13.)

Plaintiff was indicted for

murder in the second degree in violation of New York State Penal
Law § 125.25. (Compl. at ¶ 20; see also http://iapps.courts.state.
ny.us.)

Following his indictment, Plaintiff claims that he has

learned from an individual identified as “James Jones” (“Jones”)
that Walsh tried to bribe Jones and other “drug addicts” to falsely
accuse Plaintiff of murder. (Compl. at ¶ 23 and Jones Aff. annexed
2

to the Complaint at 21.)

For relief, Plaintiff seeks “[t]o be

released from the false arrest, immediately released from the
Suffolk County Correctional Facility and compensated . . . for lost
wages . . . as well as twenty-five million dollars for pain and
suffering . . . .” (Compl. at

¶ 26.)

DISCUSSION
I.

In Forma Pauperis Application
Upon review of Plaintiff’s declaration in support of his

application to proceed in forma pauperis, the Court determines that
Plaintiff’s financial status qualifies him to commence this action
without prepayment of the filing fees. See 28 U.S.C. § 1915(a)(1).
Therefore, Plaintiff’s request to proceed in forma pauperis is
GRANTED.
II.

Application of 28 U.S.C. § 1915
Section 1915 of Title 28 requires a district court to

dismiss an in forma pauperis complaint if the action 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. See 28 U.S.C. §§ 1915(e)(2)(B)(i-iii), 1915A(b).
The Court is required to dismiss the action as soon as it makes
such a determination.

See id.

Courts are obliged to construe the pleadings of a pro se
plaintiff liberally.

Sealed Plaintiff v. Sealed Defendant, 537

F.3d 185, 191 (2d Cir. 2008); McEachin v. McGuinnis, 357 F.3d 197,
3

200 (2d Cir. 2004).

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, 129 S. Ct. 1937, 1949–50, 173 L.
Ed. 2d 868 (2009).

However, a complaint must plead sufficient

facts to “state a claim to relief that is plausible on its face.”
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 127 S. Ct. 1955,
1974, 167 L. Ed. 2d 929 (2007).

“A claim has facial plausibility

when the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for the
misconduct alleged.”

Iqbal, 556 U.S. at 679 (citations omitted).

The plausibility standard requires “more than a sheer possibility
that defendant has acted unlawfully.”

Ashcroft, 556 U.S. at 678;

accord Wilson v. Merrill Lynch & Co., Inc., 671 F.3d 120, 128 (2d
Cir. 2011). While “detailed factual allegations” are not required,
“[a] pleading that offers ‘labels and conclusions’ or ‘a formulaic
recitation of the elements of a cause of action will not do.’”
(quoting Twombly, 550 U.S. at 555).
III.

Section 1983
Section 1983 provides that
[e]very person who, under color of any
statute, ordinance, regulation, custom, or
usage, of any State . . . subjects, or causes
to be subjected, any citizen of the United
States . . . to the deprivation of any rights,
privileges, or immunities secured by the
4

Id.

Constitution and laws, shall be liable to the
party injured.
42 U.S.C. § 1983; Rehberg v. Paulk, --- U.S. ----, 132 S. Ct. 1497,
1501–02, 182 L. Ed. 2d 593 (2012).

To state a claim under Section

1983, a plaintiff must “‘allege that (1) the challenged conduct was
attributable at least in part to a person who was acting under
color of state law and (2) the conduct deprived the plaintiff of a
right guaranteed under the Constitution of the United States.’”
Rae v. Cnty. of Suffolk, 693 F. Supp. 2d 217, 223 (E.D.N.Y. 2010)
(quoting Snider v. Dylag, 188 F.3d 51, 53 (2d Cir. 1999)). Section
1983 does not create any independent substantive right; but rather
is a vehicle to “redress . . . the deprivation of [federal] rights
established elsewhere.”

Thomas v. Roach, 165 F.3d 137, 142 (2d

Cir. 1999); see also Rosa R. v. Connelly, 889 F.2d 435, 440 (2d
Cir. 1989).
Here, Plaintiff alleges that he was falsely arrested by
the Defendants in violation of the Fourth Amendment.

The elements

of a false arrest claim “under Section 1983 are ‘substantially the
same’ as the elements under New York law.”

Boyd v. City of New

York, 336 F.3d 72, 75 (2d Cir. 2003) (quoting Hygh v. Jacobs, 961
F.2d 359, 366 (2d Cir. 1992)); LaFrance v. Bemben, No. 10-CV-4583,
2013 WL 132702, at *4 (E.D.N.Y. Jan. 10, 2013).

In order to make

out a New York common law or Section 1983 claim for false arrest,
a “plaintiff must demonstrate that defendant intended to confine
him, he was conscious of the confinement, he did not consent to the
5

confinement, and the confinement was not otherwise privileged.”
See Shain v. Ellison, 273 F.3d 56, 67 (2d Cir. 2001) (citing Singer
v. Fulton County Sheriff, 63 F.3d 110, 118 (2d Cir. 1995)).

An

arrest is privileged as a matter of law if the individual claiming
false arrest is convicted of the crime for which he or she was
arrested. See Trombley v. O’Neill, No. 11-CV-0569, 2013 WL 869514,
at

*15

(N.D.N.Y.

Mar.

7,

2013)

(citing

Cruz

v.

Reiner,

No.

11–CV–2131, 2011 WL 6204101, at *2 (E.D.N.Y. Dec. 12, 2011) (pro se
plaintiff’s

false

imprisonment

claim

dismissed

where

he

was

convicted of the crime for which he was arrested) (citing Wilkinson
v. Dotson, 544 U.S. 74, 81–82, 125 S. Ct. 1242 (2005); Heck v.
Humphrey, 512 U.S. 477, 487, 114 S. Ct. 2364, 129 L. Ed. 2d 383
(1994) (additional citation omitted).
Here,

Plaintiff

does

not

allege

that

he

has

been

convicted of the crime for which he was arrested and the Court’s
review of the New York State Court’s docket reflects that Plaintiff
has not yet been tried on the charges arising from the arrest
Plaintiff challenges here.

See http://iapps.courts.state.ny.us

(last visited on March 12, 2013).

Accordingly, given Plaintiff’s

pre-trial status on the underlying criminal case, his false arrest
claim is premature.

Birdsall v. City of Hartford, 249 F. Supp. 2d

163, 171 (D. Conn. 2003) (“It is well settled in the Second Circuit
that in order to prevail on a cause of action for false arrest or
malicious prosecution, a plaintiff must prove that the underlying
6

criminal proceeding terminated in his favor.”) (citing Roesch v.
Otarola, 980 F.2d 850, 852 (2d Cir. 1992)).

Accordingly, the

instant action is stayed pending the resolution of the underlying
criminal case.

Wallace v. Kato, 549 U.S. 384, 393, 127 S. Ct.

1091, 1098, 166 L. Ed. 2d 973 (2007) (“If a plaintiff files a
false-arrest claim before he has been convicted (or files any other
claim related to rulings that will likely be made in a pending or
anticipated criminal trial), it is within the power of the district
court, and in accord with common practice to stay the civil action
until the criminal case or the likelihood of a criminal case is
ended.”) (citation omitted). The Clerk of the Court is directed to
administratively close this case and Plaintiff is directed to
request in writing that this case be re-opened within two (2) weeks
from the conclusion of the underlying criminal case if so warranted
at that time.
CONCLUSION
For the reasons set forth above, Plaintiff’s application
to proceed in forma pauperis is GRANTED, but the Complaint is sua
sponte STAYED pending resolution of the underlying criminal case.
The Clerk of the Court is directed to ADMINISTRATIVELY CLOSE this
case and Plaintiff is directed to request in writing that this case
be re-opened within two (2) weeks from the conclusion of the
underlying criminal case if so warranted at that time.

The Court

certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from
7

this Order would not be taken in good faith and therefore in forma
pauperis status is denied for the purpose of any appeal.

See

Coppedge v. United States, 369 U.S. 438, 444-45, 82 S. Ct. 917, 8
L. Ed. 2d 21 (1962).

SO ORDERED.
/s/ JOANNA SEYBERT
JOANNA SEYBERT, U.S.D.J.
Dated:

April
17 , 2013
Central Islip, New York

8