Klos v. Bligh et al
Filing
6
OPINION & ORDER granting 2 Motion for Leave to Proceed in forma pauperis. SO ORDERED that Plaintiff's claims against defts Bligh, Clark, Kam and Phaneuf are sua sponte dismissed with prejudice for failure to state a claim pursuant to 28 U.S.C . § 1915(e)(2)(B)(ii) and l915A(b)(l) to the extent plaintiff sues these defts in their official capacities. To the extent they are sued in their individual capacities, the claims against defts Bligh, Clark, Kam and Phaneuf shall proceed. Plaint iff's claims against the Legal Aid Society of Nassau County and John Doe are sua sponte dismissed with prejudice for failure to state claim pursuant to 28 U.S. C. § 1915(e)(2)(B)(ii) and 1915A(b)(l). Plaintiff's claims against Child Pr otective Services are sua sponte dismissed with prejudice for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and 1915A(b)(l), unless plaintiff files an amended complaint within thirty (30) days of the date this Order is signe d. The claims against Jane Doe are dismissed with prejudice to the extent she is sued in her official capacity pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and 1915A(b)(l) unless plaintiff files an amended complaint within thirty (30) days of the d ate this Order is signed. The claims against Jane Doe in her individual capacity shall proceed. The Nassau County Attorney is hereby requested to produce the information specified above regarding the Child Protective Services' files concerning plaintiff for service on plaintiff and the Court within two (2) weeks of the date on which he or she is served with this Order. Once this information is provided to plaintiff, the complaint will be amended to include the name for the deft currently i dentified as Jane Doe of Child Protective Services. At that time, the Clerk of the Court shall issue a summons and shall forward copies of the summons and the complaint to the United States Marshal Service for service upon the deft currently identifi ed as Jane Doe without prepayment of fees. The Clerk of the Court shall: (1) issue summonses for defts John Bligh, ChesterClark, Karissa Kam and Robert Phaneuf; (2) forward copies of the summonses, the complaint and this Order to the United States Ma rshal Service for service upon the individual defts without prepayment of fees; (3) send a copy of the complaint and this Order to the Nassau County Attorney; and (4) serve notice of entry of this Order upon plaintiff in accordance with Federal Rule of Civil Procedure 77(d)(l). The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order wou1d not be taken in good faith and therefore in forma pauperis status is denied for the purpose of any appeal. CM to pro se plaintiff. CM with a copy of complaint to Nassau County Attorney. Ordered by Judge Sandra J. Feuerstein on 7/31/2014. (Florio, Lisa)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------------------------------)(
THOMAS KLOS,
Plaintiff,
OPINION AND ORDER
13-CV-5449 (SJF)(ARL)
-againstJOHN BLIGH, CHESTER CLARK, KARIS SA
KARN, ROBERT PHANEUF, JOHN DOE, THE
LEGAL AID SOCIETY OF NASSAU COUNTY,
JANE DOE, CHILD PROTECTIVE SERVICES,
each in their official and individual capacities,
Defendants.
---------------------------------------------------------------)(
FILED
IN CLERK'S OFFICE
U S DISTRICT COURT E D N Y
*
JUL 3 1 2014
*
LONG ISLAND OFFICE
FEUERSTEIN, District Judge.
Before the Court is Thomas Klos' ("plaintiff'') complaint accompanied by an application
to proceed in forma pauperis. Upon review of plaintiff's declaration in support of his application
to proceed in forma pauperis, the Court finds that plaintiff's financial status qualifies him to file
this action without prepayment of the filing fees pursuant to 28 U.S.C. § 1915(a)(l).
Accordingly, the application to proceed in forma pauperis is GRANTED. For the reasons set
forth below, however, plaintiff's claims are sua sponte dismissed in part pursuant to 28 U.S.C.
§§ 1915(e)(2)(B)(ii) and 1915A(b)(l) for failure to state a claim on which relief can be granted.
· I.
Background
The Parties
Plaintiff Thomas Klos ("plaintiff''), pro se, filed a civil rights complaint in this Court
pursuant to 42 U.S.C. § 1983 alleging: false arrest; conspiracy to deprive him of his civil rights;
failure to intervene; denial of due process; official misconduct; denial of equal protection;
violation of his eighth amendment right to be free from excessive bail; and violation of his sixth
amendment right to effective assistance of counsel. Compl. ~~ I, 81-112. Defendants John
Bligh ("Bligh"), Chester Clark ("Clark"), Karissa Karn ("Karn") and Robert Phaneuf ("Phaneuf')
were Nassau County police officers with the Eighth Precinct at the relevant time. Id at~~ 2-5.
Defendant John Doe refers to the unidentified employee of the Legal Aid Society of Nassau
County who represented plaintiff at his September 26, 20 I 0 arraignment. !d. at ~ 6. Defendant
Legal Aid Society of Nassau County is an organization that provides legal representation and
assistance to indigent criminal defendants. !d. at~ 7. Defendant Jane Doe refers to the
unidentified employee of the Nassau County Office of Child Protective Services who visited
plaintiff while he was detained at the Nassau County Correctional Center in September 2010. Id
at~
8. Defendant Child Protective Services of Nassau County, part of the Nassau County Social
Services Department, investigates allegations of child abuse and neglect. !d. at ~ 9.
Facts
In September 2009, plaintiff began renting a room in Agnes Hamel's ("Hamel") residence
in North Massapequa, New York, where she resided with her boyfriend Eugene Thomas Smith
("Smith"). Id at ~18. Plaintiff learned that Smith had previously been indicted and tried for
murder, on which he was acquitted, and on charges of larceny, for which he served jail time. Id
at~~
17, 19. In subsequent conversations with plaintiff, Smith admitted that on July 15, 1982, he
intentionally shot and killed an individual named Edward Groncki after he refused to pay a debt
owed to Smith. ld
at~~
14, 19.
In September 2010, Hamel asked plaintiff to accompany her to the veterinarian on
September 25 to have her five dogs and seven cats vaccinated. Smith could not assist because he
had an outstanding warrant and feared being arrested. Id
at~
20.
On September 24,2010, plaintiff returned to his room at Hamel's residence with an infant
child ("child") for whom he was caring while the child's mother attended college. !d.
-2-
at~
21.
As plaintiff prepared to accompany Hamel and her pets to the veterinarian, he advised her that
the child was coming with them. !d. at ~22. Hamel asked plaintiff to leave the child with Smith,
but plaintiff adamantly refused. !d.
at~
23. Plaintiff's refusal angered both Smith and Hamel,
who both began arguing loudly with plaintiff. !d. at ~24. Plaintiff then retrieved a small audio
recorder from his room and began recording the argument without Hamel's or Smith's
knowledge. !d.
at~
25. Hamel canceled the plans for that morning and approximately one (I)
minute later, plaintiff placed the child, who was in a car seat, by the front door while he packed
some items to leave for the day. !d.
at~~
26-27. Smith, who continued arguing with plaintiff,
became more irate and accused plaintiff of not trusting him. !d. at ~ 28.
As plaintiff passed through the living room, he observed Smith pointing a rifle towards the
ceiling above plaintiff's head, which he began slowly lowering towards plaintiff. !d. at ~ 29.
Plaintiff feared for his life because he knew Smith had killed Groncki with a rifle during a heated
argument. !d.
at~
30. He lunged at Smith, took hold of the rifle's barrel and pulled it abruptly
and forcefully in an attempt to pull it from Smith's grasp. !d.
at~~
31-32. Smith refused to Jet go
of the gun and fell forward over a coffee table, at which time plaintiff fell on Smith and took
possession of the rifle. !d.
at~
33. Plaintiff set the rifle aside as he wrestled with Smith and
attempted to stand when Hamel took the rifle and used it to hit plaintiff twice across his back. !d.
at~~
34-35. Plaintiff freed himself from Smith, stood up, grabbed the rifle from Hamel and put it
in his car. !d.
at~~
36-38. He then dialed 911, informed the operator he had been threatened with
a gun and gave Hamel's address. !d.
until the police arrived. !d.
at~
at~
39. Plaintiff reentered the residence and detained Smith
40.
When police officer defendants Bligh, Clark, Kam and Phaneuf arrived at the residence,
plaintiff advised the officers he had been arguing with Smith and Hamel and that Smith had
-3-
pointed a rifle at him. !d.
at~
41. He recognized Officer Bligh as Hamel's friend. !d.
at~
43.
Plaintiff advised the officers that he had taken the gun from Smith and placed it in his vehicle and
that he wanted Smith arrested for pointing the rifle at him. !d. Plaintiff also advised the police
that there was an outstanding warrant for Smith. !d.
at~
42. One of the police officers retrieved
the rifle from plaintiff's car and discovered that it contained seven (7) live rounds of ammunition.
!d.
at~
44. Officer Bligh entered the living room to speak with Hamel and Smith, at which time
plaintiff put his tape recorder on the living room table and left the immediate area. !d.
at~
45.
During their conversation, Hamel and Smith acknowledged that plaintiff lived at the
residence but that they did not want him to return. Defendant Bligh offered to ensure that plaintiff
would not return and asked whether they knew of another address to use for plaintiff. Although
Hamel and Smith knew plaintiff had a friend in Queens, New York, the exact address was
unknown. !d. at ~ 46. Bligh acknowledged that Smith had an outstanding warrant, but stated he
would not act on it. !d.
at~
47. Bligh also advised Hamel and Smith that he would do them a
favor and charge plaintiff with assault. He asked Smith whether he had any injuries and Smith
offered his broken dentures as proof of a broken tooth and an untreated melanoma on his right
cheek as evidence of a laceration. Bligh advised Smith and Hamel to go to the hospital. !d.
at~
48. Bligh expressed an extreme fondness for Hamel and indicated that he would take care of
everything for which both Smith and Hamel expressed their appreciation. !d. at ~ 49.
Defendants Bligh, Clark, Kam and Phaneuf refused plaintiff's request to charge Smith and
take him into custody despite the existence of the outstanding warrant. !d.
at~
SO. After the
conversation between Bligh, Smith and Hamel, the couple arranged to go to Nassau University
Medical Center ("NUMC"); when Bligh went outside to converse with his fellow officers,
plaintiff retrieved his tape recorder from the living room. !d.
-4-
at~
51.
At the request of Bligh, Emergency Medical Technician Steven Doucette ("Doucette")
arrived at Hamel's residence and recommended Smith be immobilized with a neck collar and back
board, which he refused. /d
at~~
52, 54. Bligh, Hamel and Smith, accompanied by Doucette and
police officer John Beisel, were transported to NUMC by ambulance. /d. at ~53.
Defendant police officers indicated to plaintiff that they were taking him to the police
station to "sort things out" without telling plaintiff he was being arrested, although they gave him
an opportunity to secure his property in his car and to arrange for someone to pick up the child.
/d. at~ 55. Some moments later, plaintiff was placed under arrest by defendants Bligh1 and Kam
and was transported to the Eighth Precinct for processing. /d. at
n 56-57.
At the police station, Bligh repeatedly asked plaintiff for an address other than the
residence where he rented a room from Hamel. When plaintiff declined to provide another
address, Bligh manufactured one and used it on plaintiff's arrest documents. /d.
at~
58. While
Smith and Hamel were at NUMC with Bligh, he handwrote nearly identical statements on behalf
of the couple, which they signed. /d. at ~ 59. Bligh then charged plaintiff with assault in the third
degree in violation of New York Penal Law ("NYPL") § 120.00(1); assault in the third degree in
violation ofNYPL § 120.00(2) and endangering the welfare of a child in violation ofNYPL §
260.10(1). /d.
at~
60. In two (2) of the three (3) accusatory instruments authored and filed by
Bligh, he claimed he witnessed plaintiff assault Smith and Hamel. Id at ~ 61. Bligh also
deliberately misstated where the child had been while plaintiff argued with and wrestled the rifle
from Smith and Hamel by claiming the child was in the living room instead of by the front door.
!d. at ~ 62. Bligh and Kam completed a document entitled "Nassau County Police Department
1
Clearly, Bligh could not simultaneously arrest plaintiff(Compl.1[56) and be in the ambulance with Hamel and Smith
(Id. at 1f 53). Subsequent allegations establish that Bligh accompanied Hamel and Smith to the hospital and then
participated in plaintiff's arrest.
-5-
Crime Report," which indicated that neither Smith nor Hamel was injured as a result of the
incident with plaintiff. Id
at~
63.
Meanwhile, at NUMC, Smith had CAT scans of his head/brain, cervical spine, thorax,
abdomen, pelvis and a maxillofacial scan, all of which were negative. Id at~ 64. Smith was,
however, diagnosed as suffering from poisoning and the toxic effects of drugs. Id at ~ 66. Smith
left the hospital of his own accord and against medical advice at approximately 3 p.m. on
September 25,2010. Smith signed an acknowledgment and release form which was witnessed by
LPN Thelma Campbell. !d.
at~
67.
On September 26, 2010, plaintiff was arraigned in Nassau County District Court,
Hempstead, New York, where he was represented by defendant John Doe of The Legal Aid
Society of Nassau County. Id
at~~
68-69. Defendant John Doe did not consult with plaintiff
prior to the arraignment, nor did he prepare adequately. Id
at~
70. Despite the fact that plaintiff
advised John Doe that he resided at the address where the incident occurred, when the court stated
that plaintiff lived in Queens based on the information supplied by Bligh, John Doe did not object
or attempt to correct the judge. Id
at~
71. Then, the assistant district attorney presented the court
with inaccurate and misleading information about plaintiff while urging a high bail. !d. at ~ 72.
Plaintiff asked John Doe to challenge the integrity of the information, which he refused to do and
plaintiff was arraigned on the misinformation. Id
The court issued two (2) orders of protection, which prohibited plaintiff from
communicating with or going near Hamel or Smith, which plaintiff asserts constituted a de facto
eviction because the court was unaware of plaintiff's actual residence. !d.
at~~
73-74. Plaintiff's
bail was set at $2,500 and because he was unable to post bail, he was transported to the Nassau
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County Correctional Center ("NCCC") in East Meadow, New York. Id
at~~
75-76.
While plaintiff was being held at the NCCC, he was advised that he had a "legal visit"
from a representative of the Legal Aid Society ofNassau County. He then met with a woman,
Jane Doe, who interviewed him regarding the events of September 25,2010. Jane Doe was,
however, from the Nassau County Office of Child Protective Services ("CPS"). Id
at~
77. CPS
subsequently made an unfavorable determination with respect to plaintiff, which was added to a
file created expressly for plaintiff. Plaintiff had no opportunity to be heard or question witnesses,
nor was he made aware of the evidence against him prior to CPS's unfavorable determination. /d.
at~
78. Plaintiff contends that Jane Doe should not have interviewed him outside of his lawyer's
presence.
On November 14,2011, the Honorable Sharon M. J. Gianelli, who presided over the
criminal proceedings, dismissed the three charges filed by Officer Bligh. /d. at ~ 80.
II.
Discussion
A.
Application of 28 U.S.C. § 1915
Title 28 U.S.C. § 1915(e)(2)(B)(i-iii) requires a district court to dismiss an in forma
pauperis action if it 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 also 28 U.S.C.
§ 1915A(b)(1) and (2).
In considering whether "to dismiss the claims of plaintiffs proceeding pro se, courts in this
Circuit are instructed to construe the pleadings liberally." Weinstein v. Albright, 261 F.3d 127,
132 (2d Cir. 2001). See Sealed Plaintiffv. Sealed Deftndant, 537 F.3d 185, 191 (2d Cir. 2008)).
This is especially true of a plaintiff who alleges a civil rights violation. Weinstein 261 F.3d at
-7-
132. To determine whether a complaint should be dismissed for failure to state a claim, the court
must assume as true all allegations contained in the complaint. Chance v. Armstrong, 143 F.3d
698, 701 (2d Cir. 1998). However, it is "well settled that conclusory allegations merely stating
general legal conclusions necessary to prevail on the merits of a claim, unsupported by factual
averments, will not be accepted as true." ECOR Solutions, Inc. v. Malcolm Pirnie, Inc., No. 02
Civ. 1103,2005 WL 1843253, at *3 (N.D.N.Y. July 29, 2005). The Supreme Court has held that
a "plaintiff's obligation to provide the 'grounds' of his 'entitlement to relief requires more than
labels and conclusions, and a formulaic recitation of the elements of a cause of action will not
do." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).
In Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009), the Supreme Court held that courts should
employ a two-pronged approach and "begin by identifying pleadings that, because they are no
more than conclusions, are not entitled to the assumption of truth" because they are not supported
by factual allegations. "When there are well-pleaded factual allegations, a court should assume
their veracity and then determine whether they plausibly give rise to an entitlement to relief." Id
B.
Title 42 U.S.C. § 1983
Pursuant to 42 U.S.C. § 1983:
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 ....
"The text of the statute purports to create a damages remedy against every state official for
the violation of any person's federal constitutional or statutory rights." Kalina v. Fletcher, 522
-8-
U.S.ll8, 123 (1997)(citing42 U.S.C. § 1983). Section 1983 "provides a mechanism for
enforcing individual rights "secured" elsewhere, i.e., rights independently "secured by the
Constitution and laws" of the United States." Gonzaga Univ. v. Doe, 536 U.S. 273, 285 (2002).
"By the plain terms of§ 1983, two-and only two-allegations are required in order to state a cause
of action under that statute. First, the plaintiff must allege that some person has deprived him of a
federal right. Second, he must allege that the person who has deprived him of that right acted
under color of state or territorial law." Gomez v. Toledo, 446 U.S. 635, 640 (1980) (citing
Monroe v. Pape, 365 U.S. 167, 171 (1961)).
1.
Plaintiff's Claims Against the Nassau County Police Officers
The complaint alleges the following claims with regard to police officers Bligh, Clark,
Karn and Phaneuf: false arrest; conspiracy to deprive plaintiff of his civil rights; denial of equal
protection for failing to arrest Smith. Compl.
~~
81-86, 89-90, 101-102. The complaint also
alleges that Bligh conspired with Hamel and Smith to charge plaintiff with fictitious crimes and
obtain false statements to deprive plaintiff of his civil rights. !d.
at~~
87-88, 91-92. As to Clark,
Karn and Phaneuf, the complaint alleges that they deprived plaintiff of his civil rights as
guaranteed under the Fourth and Fourteenth Amendments by failing to intervene when Bligh
made the false charges against plaintiff. /d.
at~~
93-94. As to Bligh, the complaint alleges that
he deprived plaintiff of due process by listing a manufactured address which resulted in plaintiff's
eviction from his residence without due process. !d.
at~~
95-96, 97-98. The complaint also
alleges that Bligh committed official misconduct by charging plaintiff with criminal offenses not
supported by probable cause. Id
at~~
99-100.
-9-
a.
Official Capacity Claims
Plaintiff's complaint purports to sue all defendants in their individual and official
capacities. Pursuant to Monell v. Department ofSocial Services, 436 U.S. 658, 694 (1978),
section 1983 claims against police officers in their official capacities are barred unless a plaintiff
can show that the challenged conduct resulted from a municipal custom or policy. Patterson v.
County ofOneida, 375 F.3d 206,226 (2d Cir. 2004). See Brandon v. Holt, 469 U.S. 464,471-72
(1985).
The complaint does not allege any conduct attributable to a municipal custom, practice or
policy which resulted in a deprivation of plaintiff's constitutional rights. Accordingly, plaintiff's
claims against Bligh, Clark, Karn and Phaneuf in their official capacities are dismissed pursuant to
28 U.S.C. § 1915(e)(2)(B)(ii) and 28 U.S.C. § 1915A(b)(l) for failure to state a claim.
b.
Individual Capacity Claims
"Personal-capacity suits seek to impose personal liability upon a government official for
actions he takes under color of state law." Kentucky v. Graham, 473 U.S. 159, 165 (1985). "[T]o
establish persona/liability in a § 1983 action, it is enough to show that the official, acting under
color of state law, caused the deprivation of a federal right." /d. at 166.
"Where damages are sought in a section 1983 action, the defendant must be responsible
for the alleged constitutional deprivation: '[T]he general doctrine of respondeat superior does not
suffice and a showing of some personal responsibility of the defendant is required.' " Purdy v.
Town ofGreenburgh, 166 F. Supp. 2d 850,869 (S.D.N.Y. 2001) (quotingAl-Jundi v. Estate of
Rockefeller, 885 F.2d 1060, 1065 (2d Cir. 1989)). See Miller v. City ofNew York, No. 12 Civ.
2965,2012 WL 2579336, at *1 (E.D.N.Y. July 3, 2012) ("'Because vicarious liability is
-10-
inapplicable to Bivens and § 1983 suits, a Plaintiff must plead that each Government-official
defendant, through the official's own individual actions, has violated the Constitution.") (quoting
Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009)). Accordingly, a complaint must allege a defendant's
direct or personal involvement in the alleged constitutional deprivation.
At this stage of the pleadings, plaintiff has sufficiently alleged that defendants Bligh, Karn,
Clark and Phaneuf, through their own individual actions, violated plaintiff's constitutional rights.
Accordingly, plaintiff's claims numbered one (1) through eleven (11) against the named officers
in their individual capacities shall proceed.
2.
Plaintiff's Claims Against the Legal Aid Society and John Doe
The complaint alleges that the Legal Aid Society ofNassau County and John Doe denied
plaintiff due process and the effective assistance of counsel by: (1) refusing to challenge the
inaccurate information presented at plaintiff's arraignment; (2) refusing to challenge the
information regarding plaintiff's alleged residential address; and (3) failing to provide plaintiff
with meaningful and effective representation at plaintiff's arraignment. Compl.
~~
103-108.
As discussed above, claims brought pursuant to 42 U.S.C. § 1983 require a plaintiff to
establish that his constitutional rights were violated by a person who acts "under color of any
statute, ordinance, regulation, custom, or usage," i.e., the state action requirement. See Fabrikant
v. French, 691 F.3d 193,206 (2d Cir. 2012) ("'Because the United States Constitution regulates
only the Government, not private parties, a litigant claiming that his constitutional rights have
been violated must first establish that the challenged conduct constitutes state action.' ") (quoting
Flagg v. Yonkers Sav. & Loan Ass 'n, 396 F.3d 178, 186 (2d Cir. 2005)).
Generally, attorneys, whether with the Legal Aid Society, court-appointed or privately
-11-
retained, are not state actors for purposes of§ 1983. Lukes v. Leventhal, No. 12 Civ. 3707,2012
WL 4891621, at *3 (E.D.N.Y. Oct. 11, 2012). See Vermont v. Brillon, 129 S. Ct. 1283, 1291
(2009) (holding that "assigned counsel ordinarily is not considered a state actor"); Polk County v.
Dodson, 454 U.S. 312, 325 (1981) ("With respect to Dodson's § 1983 claims against Shepard, we
decide only that a public defender does not act under color of state law when performing a
lawyer's traditional functions as counsel to a defendant in a criminal proceeding.").
Plaintiff's claims against the Legal Aid Society of Nassau County and John Doe challenge
the traditional functions of counsel to a defendant in a criminal proceeding and, accordingly, are
dismissed with prejudice for failure to state a claim pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii)
and 1915A(b)(l).
3.
Plaintiff's Claims Against Jane Doe and Child Protective Services
Plaintiff's complaint alleges that Jane Doe's false representation that she was an employee
from the Legal Aid Society, which induced him into discussing the specifics of the incident at the
Hamel residence, violated his Fifth, Sixth and Fourteenth Amendment rights. Compl. ~ 110. The
complaint alleges that the unfavorable determination made by Jane Doe and CPS against plaintiff,
without affording him an opportunity to be heard, also violated plaintiff's Fifth, Sixth and
Fourteenth Amendment rights. Id
a.
at~
112.
Child Protective Services
"Federal courts must look to state law to determine whether a government department may
be sued." Hoisington v. Cnty. ofSullivan, 55 F. Supp. 2d 212,214 (S.D.N.Y. 1999) (citing Fed.
R. Civ. P. 17(b)). "Under New York law, a department of a municipal entity is merely a
-12-
subdivision of the municipality and has no separate legal existence." Accordingly, municipal
departments like CPS are not amenable to suit. Given, however, plaintiff's pro se status, his
claim will be construed as one brought against Nassau County.
As discussed above, in a § 1983 suit against a municipality, a plaintiff must allege that his
or her constitutional rights were violated by a state actor whose conduct is attributable to a
custom, policy or regulation endorsed by the municipality. See, supra, Monell v. Dep 't ofSocial
Serv. Here, the complaint does not allege that Jane Doe's actions were the result of a custom,
official policy or regulation endorsed or promulgated by Nassau County. Accordingly, the claims
against Nassau County are dismissed without prejudice for failure to state a claim pursuant to 28
U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(l).
Leave to Amend
Federal Rule of Civil Procedure 15(a)(2) provides that a party shall be given leave to
amend a complaint "when justice so requires." A grant of leave to amend, however, is properly
denied when it is made for:" 'undue delay, bad faith or dilatory motive on the part of the movant,
repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the
opposing party by virtue of allowance of the amendment, futility of amendment, etc.' " Ruotolo v.
City ofNew York, 514 F.3d 184, 191 (2d Cir. 2008)(quoting Foman v. Davis, 371 U.S. 178, 182
(1962)).
"[W]hen addressing a pro se complaint, a district 'court should not dismiss 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.'" Thompson v. Carter, 284 F.3d 411,416 (2d Cir. 2002)
(quoting Branum v. Clark, 927 F.2d 698, 705 (2d Cir. 1991)). Plaintiff is granted leave to amend
-13-
only as to the § 1983 claim which should have named Nassau County as a defendant instead of
Child Protective Services provided the amended complaint is filed within thirty (30) days of
the date this Order is signed or the claim will be dismissed with prejudice. Plaintiff is
cautioned that the amended complaint shall completely supersede the original complaint and,
therefore, all claims against all defendants must be included.
b.
JaneDoe
Plaintiff's claims against Jane Doe in her official capacity are dismissed with prejudice for
failure to state a claim based on Monell unless, as discussed above, plaintiff files an amended
complaint naming Nassau County as a defendant. Based on the complaint's allegations, the
claims against Jane Doe in her individual capacity shall proceed.
Because Jane Doe is identified only as an employee of Child Protective Services and the
generic name "Jane Doe," the United States Marshal Service will be unable to serve this
defendant without additional information. Accordingly, the Clerk of the Court shall send a copy
of the complaint and this Order to the Nassau County Attorney. The County Attorney shall
produce and serve on plaintiff and the Court any files created by Child Protective Services of
Nassau County which concern plaintiff. See Valentin v. Dinkins, 121 F.3d 72, 76) (2d Cir. 1997)
(finding an abuse of discretion where the district court dismissed a civil rights action for failure to
prosecute and holding "[t]he district court may pursue any course that it deems appropriate to a
further inquiry into the identity" of the unidentified state actor).
The Nassau County Attorney is hereby requested to produce the information
specified above regarding any files concerning plaintiff which were created by Child
Protective Services of Nassau County for service on the plaintiff and the Court within two
-14-
'
(2) weeks from the date he or she is served with a copy of this Order. If and when this
information is provided to plaintiff, he shall amend the complaint to include the name of the
defendant currently identified as Jane Doe of Child Protective Services. At that time, the
Clerk of the Court shall issue a summons and shall forward copies of the summons and the
complaint to the United States Marshal Service for service upon the defendant identified as
Jane Doe without prepayment of fees.
III.
Conclusion
For the foregoing reasons, plaintiff's application to proceed in forma pauperis is
GRANTED. Plaintiff's claims against defendants Bligh, Clark, Kam and Phaneuf are sua sponte
dismissed with prejudice for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii)
and l915A(b)(l) to the extent plaintiff sues these defendants in their official capacities. To the
extent they are sued in their individual capacities, the claims against defendants Bligh, Clark,
Kam and Phaneuf shall proceed.
Plaintiff's claims against the Legal Aid Society of Nassau County and John Doe are sua
sponte dismissed with prejudice for failure to state claim pursuant to 28 U.S. C. §
1915(e)(2)(B)(ii) and 1915A(b)(l).
Plaintiff's claims against Child Protective Services are sua sponte dismissed with
prejudice for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and 1915A(b)(l),
unless plaintiff files an amended complaint within thirty (30) days of the date this Order is
signed. The claims against Jane Doe are dismissed with prejudice to the extent she is sued in
her official capacity pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and 1915A(b)(l) unless plaintiff
files an amended complaint within thirty (30) days of the date this Order is signed. The
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claims against Jane Doe in her individual capacity shall proceed.
The Nassau County Attorney is hereby requested to produce the information
specified above regarding the Child Protective Services' files concerning plaintiff for service
on plaintiff and the Court within two (2) weeks of the date on which he or she is served with
this Order. Once this information is provided to plaintiff, the complaint will be amended to
include the name for the defendant currently identified as Jane Doe of Child Protective Services.
At that time, the Clerk of the Court shall issue a summons and shall forward copies of the
summons and the complaint to the United States Marshal Service for service upon the defendant
currently identified as Jane Doe without prepayment of fees.
The Clerk of the Court shall: (1) issue summonses for defendants John Bligh, Chester
Clark, Karissa Kam and Robert Phaneuf; (2) forward copies of the summonses, the complaint and
this Order to the United States Marshal Service for service upon the individual defendants without
prepayment of fees; (3) send a copy of the complaint and this Order to the Nassau County
Attorney; and (4) serve notice of entry of this Order upon plaintiff in accordance with Federal
Ru1e of Civil Procedure 77(d)(l).
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order
wou1d 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 (1962).
SO ORDERED.
Dated: July 31, 2014
Central Islip, New York
s/ Sandra J. Feuerstein
Sandra J. Feuerstein, U.S.D.J.
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