Butler v. Suffolk County Police Dept. et al

Filing 11

ORDER granting 2 Motion for Leave to Proceed in forma pauperis. SO ORDERED that plaintiff's application to proceed in forma pauperis is granted, and the complaint is sua sponte dismissed, but plaintiff is given leave to replead and file an am ended complaint within 30 days of this Order. Failure to file an amended complaint will result in the dismissal of this action without prejudice, and the case will be closed. No summons shall issue at this time. The Court certifies pursuant to 28 U.S. C. § 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 any appeal. Ordered by Judge Joseph F. Bianco on 6/20/2013. (Florio, Lisa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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KEITH BUTLER,

Plaintiff,
ORDER
13-CV -0 1507(JFB)(WDW)

-againstSUFFOLK COUNTY POLICE DEPARTMENT,
NYS DIVISION OF PAROLE (SUFFOLK
COUNTY DIVISION), SUFFOLK COUNTY
LEGAL AID SOCIETY, SUFFOLK COUNTY
CHILD PROTECTIVE SERVICES (CPS),
SUFFOLK COUNTY POLICE OFFICER
EDWARD ZIMMERMAN, SHIELD# 5826,
"JOHN DOE" LEGAL AID ATTORNEY,
GERALDINE MULLIGAN, RACHETTE ANAD,
ANDREA MCKENSIE, ROBERT BEL TRANI,
ASSISTANT DISTRICT ATTORNEY "JANE MOE",
ADMINISTRATIVE LAW JUDGE HON. "MIKE MOE", :
PAROLE OFFICER HENDERSON, PAROLE OFFICER :
FRED KANN, DISTRICT COURT JUDGE KAREN
KERR, FAMILY COURT JUDGE RICHARD HOFFMAN,:
CPS INVESTIGATOR MICHAEL HOFFMEISTER, CPS :
SUPERVISOR FRANCINE LEE,

FILED
IN CLERK'S OFFICE
U S DISTRICT COURTED NY

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Jt.;~; 2 0 2013

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LONG ISLAND OFFICE

Defendants.

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BIANCO, District Judge:
Presently pending before the Court is the pro se complaint brought by incarcerated pro se
plaintiff Keith Butler ("plaintiff') pursuant to 42 U.S.C. § 1983 ("Sectiori 1983") against eighteen
named and unnamed defendants (collectively, "defendants"). Accompanying the complaint is 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 plaintiffs 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)(l). Therefore, plaintiffs request to proceed in forma pauperis is granted.

However, for the reasons that follow, the complaint is sua sponte dismissed, but plaintiff is given
leave to replead and file an amended complaint within 30 days of this Order.
BACKGROUND
Plaintiffs brief handwritten complaint submitted on the Court's Section 1983 complaint
form, though difficult to discern, purports to allege claims for conspiracy and malicious prosecution.
(Compl. ~~ IV.A, V.) Plaintiff's complaint alleges, in its entirety, the following: 1
Suffolk County Police; Suffolk County Div. ofNYS
Parole, Suffolk County Legal Aid Society and Suffolk
County Children's Protections Services, All Willingly
And Knowingly, Deprived Petitioner Keith Butler of
His New York State And United States Constitutional
Due Process and Substantive Due Process Rights,
Individually And Collectively, When They utilized
Non-Arraigned CHARGES to Prosecute him And
collectively used these informations with threats of
Depriving him of Visitation and Parental Rights
(Biological Father) to his new born daughter
"Terrellana Butler" born 2/2/2013, coercin him by
promoting "Incarceration" versus Parental Rights.
Note: More than 15 mos. Separation deprives him of
Parental Rights promoting Non Custody, Social
Services, Adoption, etc.
(Id. ~IV.) In the section of the complaint form that calls for a description of any claimed injuries,
plaintiff alleges:
I. Constitutional Injuries include I'\ 4'\ gth and 14'h

USCA
2. Emotional and Psychological Injury (incl. Mental
Anguish) Helplessness
3. Malicious Prosecution and Denial to Approve a
Atty For Family Court USCA 5,6
4. Prosecution on Un-Arraigned Charges (Court has No

' Plaintiffs Statement of Claim has been reproduced here exactly as it appears in the complaint.
Spelling, punctuation and grammatical errors have not been corrected or noted.
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Jurisdiction)
5. Conspiracy by Inter-Office Communications.
("RICO-Law" Like) Destruction of Family Unit
(I d., IV .A.) For relief, plaintiff seeks "Federal Intervention and Oversight of Criminal Prosecutions
Also Parole Prosecution, [Federal Intervention and Oversight] on CPS Matters and Visitation Rights
oflncarcerated Parent." 04,., V.) In addition, plaintiff seeks to recover $15 million for "punitive,
compensatory and monetary damages for malicious prosecution, threats, coercion, Jurisdictional
Defects and Conspiracy by Inter-Office Communications Acts etc. from the Respondents." (!QJ
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)(l). Therefore, plaintiff's request to
proceed in forma pauperis is granted.
II.

Application of28 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 for 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 197,200
(2d Cir. 2004). Moreover, at the pleadings stage of the proceeding, the Court must assume the truth
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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 (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 (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."' Ashcroft,
556 U.S. at 678 (quoting Twombly, 550 U.S. at 555).
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 Constitution
and laws, shall be liable to the party injured.
42 U.S.C. § 1983; Rehberg v. Paulk, 132 S. Ct. 1497, 1501-02 (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

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deprivation of [federal] rights established elsewhere." Thomas v. Roach, 165 F .3d 13 7, 142 (2d Cir.
1999); see also Rosa R. v. Connelly, 889 F.2d 435, 440 (2d Cir. 1989). In addition, in order to state
a claim for relief under Section 1983, the plaintiff must allege the personal involvement of a
defendant in the purported constitutional deprivation. Farid v. Ellen, 593 F.3d 233, 249 (2d Cir.
2010) (quoting Farrell v. Burke, 449 F.3d 470,484 (2d Cir. 2006)). "An individual cannot be held
liable for damages under Section 1983 'merely because he held a high position of authority,' .... "
Back v. Hastings on Hudson Union Free School Dist., 365 F.3d 107, 127 (2d Cir. 2004) (quoting
Black v. Coughlin, 76 F.3d 72,74 (2d Cir. 1996)). A complaint based upon a violation under Section
1983 that does not allege the personal involvement of a defendant fails as a matter of law. See
Johnson v. Barney, 360 F. App'x 199 (2d Cir. 2010).
Here, although plaintiff seeks to sue eighteen defendants, he has not alleged any conduct
attributable to any individual. Nor has he alleged any facts sufficient for the Court to liberally
construe a deprivation of plaintiffs constitutional rights. Rather, plaintiff alleges in a conclusory
fashion that his state and federal due process rights were violated.
In addition to his conclusory allegations that the named defendants violated his constitutional
rights, plaintiff lists, as one of his claimed injuries, "malicious prosecution." (See Compl. 'If IV.A.)
The Court's review of the New York State Court's docket reflects that plaintiff had two criminal
cases in the First District Court, Suffolk County, 2012SU059359 and 2013SU000068.

See

http://iapps.courts.state.ny.us (last visited on June 5, 2013). However, on April24, 2013, plaintiff
pled guilty in both cases. "To establish a malicious prosecution claim under New York law, a
plaintiff must prove '(1) the initiation or continuation of a criminal proceeding against plaintiff; (2)
termination of the proceeding in plaintiff's favor; (3) lack of probable cause for commencing the

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proceeding; and (4) actual malice as a motivation for defendant's actions."' Manganiello v. City of
N.Y., 612 F.3d 149 (2d Cir. 2010) (quoting Murnhy v. Lvlli1 118 F.3d 938, 947 (2d Cir. 1997))
(additional citation omitted). Because plaintiff pled guilty in both underlying criminal cases, it does
not appear that he can plausibly allege that a criminal proceeding terminated in his favor- a fact that
he must prove in order to maintain a malicious prosecution claim. However, in an abundance of
caution, the Court will give plaintiff an opportunity to re-plead to articulate what charge was
terminated in his favor.
LEAVE TO REPLEAD
In light of the pleading deficiencies noted above, the Court has considered whether
plaintiff should be given an opportunity to re-plead. The Second Circuit has emphasized that a
"court should not dismiss [a pro se complaint) without granting leave to amend at least once
when a liberal reading of the complaint gives any indication that a valid claim might be stated."
Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (citations and internal quotation marks
omitted). Under Rule 15(a) of the Federal Rules of Civil Procedure, the "court should freely give
leave [to amend] when justice so requires." Fed. R. Civ. P. 15(a).
As discussed supra, based on the allegations in plaintiffs complaint, the Court is unable
to determine (1) what, if any, alleged constitutional deprivations form the basis for plaintiffs
Section 1983 claim; (2) how the named defendants were personally involved in the alleged
constitutional deprivations; and (3) with respect to the malicious prosecution claim, what charge
was terminated in his favor. Accordingly, the Court affords plaintiffleave to re-plead the
substance of his Section 1983 claims against the named defendants in this case. In so doing,
plaintiff must attempt to plead what specific constitutional rights the defendants violated, how
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each defendant was personally involved in depriving plaintiff of those constitutional rights, and,
with respect to the malicious prosecution claim, what charge was terminated in his favor.
CONCLUSION
For the reasons set forth above, plaintiff's application to proceed in forma pauperis is
granted, and the complaint is sua sponte dismissed, but plaintiff is given leave to replead and file an
amended complaint within 30 days of this Order. Failure to file an amended complaint will result in
the dismissal of this action without prejudice, and the case will be closed. No summons shall issue
at this time. The Court certifies pursuant to 28 U.S. C. § 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
any appeal. See Coppedge v. United States, 369 U.S. 438,444-45, 82 S. Ct. 917, 8 L. Ed. 2d 21
(1962).
SO <ARDERED.

s/ Joseph F. Bianco
PH
CO
TED STATES DISTRICT JUDGE
Dated:

June 20, 2013
Central Islip, New York

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