Jefferson v. Chicara et al

Filing 6

MEMORANDUM & ORDER granting 2 Motion for Leave to Proceed in forma pauperis; Plaintiff's application to proceed in forma pauperis is GRANTED and the Court ORDERS service of the Summonses and Complaint upon the County of Suffolk, Chicara, and Ericksen. Plaintiff's official capacity Section 1983 claims against Chicara, Ericksen, and Woe are DISMISSED WITH PREJUDICE pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(iii) and 1915A(b)(2). The Clerk of the Court is further ordered to s erve a copy of the Complaint together with this Order on the Suffolk County Attorney and the New York State Attorney General. The Suffolk County Attorney's Office is requested to attempt to ascertain the full names of the unidentified Suffolk Co unty Police Officers and Suffolk County Corrections Officers who are described in the Complaint and to provide their names and address(es) where each such Defendant can be served to the Court and to Plaintiff within thirty (30) days of the date that this Order is served upon it. The Attorney General's Office is requested to attempt to ascertain the full name of the unidentified Parole Officer who is described in the Complaint and to provide his name and address where he can be served to the Court and to Plaintiff within thirty (30) days of the date that this Order is served upon it. 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. The Clerk of Court is further directed to mail a copy of this Memorandum and Order to the pro se Plaintiff. So Ordered by Judge Joanna Seybert on 1/27/2014. C/M (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-----------------------------------X
KEVIN L. JEFFERSON,
Plaintiff,
-against-

MEMORANDUM & ORDER
13-CV-5649(JS)(ARL)

JUDITH CHICARA, Parole Officer;
JOHN ERICKSEN, Senior Parole
Officer; WILL WOE, Warrant Officer;
GARY GOE, Arresting Police Officer;
NOEL NOE, Transport Police Officer;
CARL COE, Records Room Officer;
JACK JOE, Intake Officer; PETE POE,
Bull Pen Booking Officer; and
COUNTY OF SUFFOLK,
Defendants.
-----------------------------------X
APPEARANCES
For Plaintiff:
Kevin L. Jefferson, pro se
6 Boonar Street
Mastic, NY 11950
For Defendants:

No appearances.

SEYBERT, District Judge:
On October 8, 2013, pro se plaintiff Kevin L. Jefferson
(“Plaintiff”) filed an in forma pauperis civil rights Complaint
pursuant to 42 U.S.C. § 1983 (“Section 1983”) against Parole
Officer Judith Chicara (“Chicara”); Senior Parole Officer John
Ericksen (“Ericksen”); an unnamed parole Officer identified by
Plaintiff as Warrant Officer WILL WOE (“Woe”); five unnamed Suffolk
County Police and/or Corrections Officers identified by Plaintiff
as Arresting Police Officer GARY GOE (“Goe”), Transport Police
Officer NOEL NOE (“Noe”), Records Room Officer CARL COE (“Coe”),
Intake Officer JACK JOE (“Joe”), and Bull Pen Booking Officer PETE

POE

(“Poe”)

and

the

County

collectively, “Defendants”).

of

Suffolk

(“the

County”

and

Accompanying the Complaint is an

application to proceed in forma pauperis.

Upon review of the

declaration in support of Plaintiff’s application to proceed in
forma pauperis, the Court finds that Plaintiff’s financial status
qualifies him to commence this action without prepayment of the
filing fee.

See 28 U.S.C. § 1915(a)(1).

Accordingly, Plaintiff’s

application to proceed in forma pauperis is GRANTED.

However, for

the reasons that follow, the action is sua sponte DISMISSED IN
PART.
BACKGROUND1
Plaintiff alleges that he was arrested on March 22, 2011
by Goe for a violation of his post-release supervision. (Compl. at
3, ¶ 1.)

According to the Complaint, Plaintiff was taken by Goe to

the Seventh Precinct where he was booked and was then visited by
Chicara.

(Compl. at 4, ¶¶ 2-3.)

Chicara presented Plaintiff with

a notice of violation and a violation of release report and had
Plaintiff sign the “acknowledgment of receipt” for the notice of
violation.

(Compl. at 4, ¶¶ 3-4.)

Plaintiff claims that he was

not permitted to read these papers.

(Compl. at 4.)

Shortly

thereafter, Plaintiff was transported by Noe to the Riverhead Jail
pending the resolution of the post-release revocation hearing.

1

All allegations in the Plaintiff’s Complaint are presumed to
be true for the purposes of this Memorandum and Order.
2

(Compl. at 4, ¶ 6.)
Once at the Riverhead Jail, Plaintiff encountered Poe and
Joe, who are alleged to have asked Plaintiff questions to ascertain
his “pedigree information” and Plaintiff asked Noe for a copy of
the temporary detention warrant for Plaintiff. (Compl. at 5, ¶¶ 711.)

Plaintiff describes that Poe and Joe reviewed all of the

paperwork pertaining to Plaintiff that had been given to them by
Noe and were unable to locate the warrant.

(Compl. at 5, ¶ 12.)

Plaintiff was then placed in a segregation cell while Noe called
the Seventh Precinct and the Department of Parole’s Suffolk Office.
(Compl. at 5, ¶¶ 13-14.)

Thereafter, Plaintiff was advised that

the jail was going to receive him into custody.
15.)

(Compl. at 6, ¶

Plaintiff claims to have inquired as to whether the warrant

had been delivered to the jail and was advised by Poe that the
warrant had not been delivered but that the parole office would
bring the paperwork the next day.

(Compl. at 6, ¶ 17.)

Plaintiff filed a petition for writ of habeas corpus in
the New York Supreme Court, Suffolk County, alleging that his
detention was unlawful given the absence of a warrant.
7, ¶ 24.)

(Compl. at

At the first appearance before the habeas court,

Plaintiff was presented with a “certified copy” of the parole
warrant for his retaking and temporary detention.

3

(Compl. at 7,

¶ 25.)

This warrant was authored by Woe.2

Plaintiff claims that

this warrant is fraudulent in that inter alia, it was dated after
Plaintiff was arrested.

This “so-called ‘CERTIFIED COPY’ of the

alleged warrant was authored by Woe, who, on March 23, 2011,
attested, as fact, that a parole warrant did issue . . . on March
22, 2011.”

(Compl. at 7, ¶ 26.)
As a result of the foregoing, Plaintiff claims that his

arrest, transport to the Riverhead Jail, and temporary detention by
the Riverhead Jail were unlawful and in violation of his Fourth and
Fourteenth Amendment rights since no warrant had been issued at the
time he was detained.

(Compl. at 6, ¶¶ 18-21.)

Plaintiff alleges

that “Defendant Ch[i]cara set this entire chain of events leading
to Plaintiff’s unlawful detention by telling Defendant Goe that
Plaintiff was wanted for a parole violation knowing fully that no
warrant for Plaintiff’s retaking and temporary detention had ever
been issued.”

(Compl. at 6, ¶ 21.)

For relief, Plaintiff seeks to

recover, against each Defendant, a compensatory damages award in
the amount of $150,000 as well as $300,000 in punitive damages.
(Compl. at 9-10, ¶¶ 1-2.)
DISCUSSION
I.

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

2

Plaintiff alleges that the Woe warrant was dated March 22, 2011
on p. 7, ¶ 26 and March 23, 2011 on p. 8, ¶ 27.
4

application to proceed in forma pauperis, the Court finds 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
A district court is required 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.
U.S.C. §§ 1915(e)(2)(B)(i)-(iii), 1915A(b).

See 28

The Court is required

to dismiss the action as soon as it makes such a determination.
See id. § 1915A(b).
Courts are obliged to construe the pleadings of a pro se
plaintiff liberally. See Sealed Plaintiff v. Sealed Defendant, 537
F.3d 185, 191 (2d Cir. 2008); McEachin v. McGuinnis, 357 F.3d 197,
200 (2d Cir. 2004).

However, a complaint must plead sufficient

facts to “state a claim to relief that is plausible on its face.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 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

misconduct alleged.”

that

the

defendant

is

liable

for

the

Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.

Ct. 1937, 173. L. Ed. 2d 868 (2009) (citation omitted).
5

The

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

Id.; accord Wilson v. Merrill

Lynch & Co., 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.’”

Iqbal, 556 U.S. at 678

(quoting Twombly, 550 U.S. at 555).
II.

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
Constitution and laws, shall be liable to the
party injured . . . .

42 U.S.C. § 1983; accord Rehberg v. Paulk, --- U.S. ----, 132
S. Ct. 1497, 1501–02, 182 L. Ed. 2d 593 (2012).
under

Section

1983,

a

plaintiff

must

To state a claim

“‘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 rights but rather is a vehicle to “redress . . . the
deprivation of [federal] rights established elsewhere.”
6

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).

With these standards

in

claims

mind,

the

Court

considers

Plaintiff’s

against

the

Defendants.
A.

Claims Against Chicara, Ericksen, and Woe
Plaintiff names Chicara, Ericksen, and Woe, three New

York State parole officers, as defendants.
these

individuals

in

(Compl. at 2, ¶ 9.)
damages

award

their

official

and

Plaintiff seeks to sue
personal

capacities.

Insofar as Plaintiff seeks to recover a

against

these

Defendants

in

their

official

capacities, they are immune from suit under the Eleventh Amendment.
Papasan v. Allain, 478 U.S. 265, 276, 106 S. Ct. 2932, 92 L. Ed. 2d
209 (1986); Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 8998-100, 104 S. Ct. 900, 79 L. Ed. 2d 67 (1984).
The Eleventh Amendment bars suits brought by a state’s
own citizens in federal court.

Woods v. Rondout Valley Cent. Sch.

Dist. Bd of Educ., 466 F.3d 232, 236 (2d Cir. 2006) (citing Alden
v. Maine, 527 U.S. 706, 712, 119 S. Ct. 2240, 144 L. Ed. 2d 636
(1999)).

As an agency or arm of the State of New York, the New

York State Board of Parole, Division of Parole, is immune from suit
under the Eleventh Amendment.

See In re Charter Oak Assocs., 361

F.3d 760, 765 (2d Cir. 2004) (citing Seminole Tribe of Fla. v.
Fla., 517 U.S. 44, 116 S. Ct. 1114, 134 L. Ed. 2d 252 (1996)); Heba
v. New York State Div. of Parole, 537 F. Supp. 2d 457, 471
7

(E.D.N.Y. 2007) (dismissing Section 1983 claim against the New York
State Division of Parole as barred by the Eleventh Amendment). The
Supreme Court instructs that the Eleventh Amendment gives a state
government immunity from suit, not just from liability.

Puerto

Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy Inc., 506 U.S. 139,
144, 113 S. Ct. 684, 121 L. Ed. 2d 605 (1993).

Because the

Division of Parole is immune from claims for damages under the
Eleventh Amendment, so too are its employees when sued in their
official capacities.

See, e.g., Graham, 473 U.S. at 165-167, and

n. 14 (suit for damages against state officer in official capacity
is barred by the Eleventh Amendment); Darcy v. Lippman, 356 F.
App’x 434, 436-37 (2d Cir. 2009) (“Eleventh Amendment likewise bars
[plaintiff]

from

pursuing

a

claim

for

damages

against

individual defendants in their official capacities.”).

the

As such,

Plaintiff’s claims against these Defendants sued in their official
capacities

are

barred

by

the

Eleventh

Amendment

to

the

Constitution, Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261,
268, 117 S. Ct. 2028, 138 L. Ed. 2d 438 (1997), and are DISMISSED
WITH

PREJUDICE

pursuant

to

28

U.S.C.

§§

1915(e)(2)(B)(iii);

1915A(b)(2).3
3

The Court notes that the Plaintiff’s Section 1983 claims
against the defendants in their official capacities must be
dismissed for the additional reason that “[n]either a state nor
one of its agencies nor an official of that agency sued in his or
her official capacity is a ‘person’ under § 1983.” Spencer v.
Doe, 139 F.3d 107, 111 (2d Cir. 1998); see also Will v. Mich.
Dep’t of State Police, 491 U.S. 58, 71, 109 S. Ct. 2304, 105 L.
8

B.

Personal Capacity Claims Against Chicara,
Ericksen, and Woe
Plaintiff’s

Section

1983

claims

against

Chicara,

Ericksen, and Woe in their personal capacities shall proceed.
Accordingly, the Court directs that the Clerk of the Court issue
Summonses for Chicara and Ericksen and orders service of the
Summons and Complaint upon Chicara and Ericksen by the United
States Marshals Service (“USMS”).
However, the USMS will not be able to effect service of
the Summons and the Complaint on Woe without more information. The
Second Circuit has held that district courts must provide pro se
litigants with reasonable assistance in investigating the identity
of such “John Doe” defendants.

See Valentin v. Dinkins, 121 F.3d

72, 75–76 (2d Cir. 1997) (per curiam).

Accordingly, the Court

ORDERS that the Clerk of the Court serve a copy of the Complaint
together with this Order on the New York State Attorney General.
The Attorney General’s Office is requested to attempt to ascertain
the full name of the unnamed New York State Parole Officer who is
described in the Complaint and to provide his name and address
where he can be served to the Court and to Plaintiff within thirty
(30) days of the date that this Order is served upon it.

Once the

information is provided to the Court by the Attorney General’s
Office, Plaintiff’s Complaint shall be deemed amended to reflect

Ed. 2d 45 (1989).
9

the full name of the Defendant identified by Plaintiff as “Woe”, a
Summons shall be issued for him, and the USMS shall serve copies of
the Summons, Complaint, and this Order upon him.

The Attorney

General need not undertake to defend or indemnify Woe at this
juncture.
may

This Order merely provides a means by which Plaintiff

properly

name

and

serve

this

unidentified

Defendant

as

instructed by the Second Circuit in Valentin.
C.

Claims Against Goe, Noe, Coe, Joe, and Poe
Though thin, the Court declines to dismiss Plaintiff’s

Section 1983 claims against the individual Suffolk County Police
and/or Corrections Officers identified by Plaintiff as Goe, Noe,
Coe, Joe, and Poe at this early juncture.

However, as detailed

above, the USMS will not be able to effect service of the Summonses
and

the

Complaint

information.

on

these

unnamed

Defendants

without

more

Accordingly, the Court ORDERS that the Clerk of the

Court serve a copy of the Complaint together with this Order on the
Suffolk County Attorney.

The Suffolk County Attorney’s Office is

requested to attempt to ascertain the full names of the unnamed:
(1) Suffolk County Police Officers who are described in the
Complaint as “employed by the Suffolk County Police Department
(“SCPD”) and [who] were assigned to the SCPD’s Seventh Precinct. .
. .” (Compl. at 2, ¶ 4); and (2) Suffolk County Corrections
Officers who are described in the Complaint as “employed by the
Suffolk County Sheriff’s Office and were assigned to its Correction
10

Division . . . at the Suffolk County Correctional Facility []
located at 100 Center Drive in Riverhead, New York.” (Compl. ¶ 5.)
The Suffolk County Attorney is requested to provide the
names of the Defendants identified by Plaintiff as Goe, Noe, Coe,
Joe, and Poe and the addresses where these Defendants can be served
to the Court and to Plaintiff within thirty (30) days of the date
that this Order is served upon it.

Once the information is

provided to the Court by the Suffolk County Attorney’s Office,
Plaintiff’s Complaint shall be deemed amended to reflect the full
name of the Defendants identified by Plaintiff as Goe, Noe, Coe,
Joe,

and

Poe,

Summonses

shall

be

issued

for

each

of

these

Defendants, and the USMS shall serve copies of the Summonses, the
Complaint, and this Order upon them.

The Suffolk County Attorney

need not undertake to defend or indemnify these Defendants at this
juncture.

This Order merely provides a means by which Plaintiff

may properly name and serve these unidentified Suffolk County
officers as instructed by the Second Circuit in Valentin.
D.

County of Suffolk
It

is

well-established

that

a

municipality

such

as

Suffolk County cannot be held liable under § 1983 on a respondeat
superior theory. See Monell v. Dep’t of Soc. Servs. of N.Y.C., 436
U.S. 658, 690-91, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978); Roe v.
City of Waterbury, 542 F.3d 31, 36 (2d Cir. 2008).

To prevail on

a Section 1983 claim against a municipality, a plaintiff must show
11

“that ‘action pursuant to official municipal policy’ caused the
alleged constitutional injury.”

Cash v. Cnty. of Erie, 654 F.3d

324, 333 (2d Cir. 2011) (quoting Connick v. Thompson, ––– U.S.
––––, 131 S. Ct. 1350, 1359, 179 L. Ed. 2d 417 (2011)), cert.
denied, ––– U.S. ––––, 132 S. Ct. 1741, 182 L. Ed. 2d 528 (2012);
see also Monell, 436 U.S. at 690–91.
may

be

sued

for

constitutional

“[L]ocal governments . . .
deprivations

pursuant

to

governmental ‘custom’ even though such a custom has not received
formal

approval

channels.”

through

the

body’s

official

decisionmaking

Monell, 436 U.S. at 690–691 (citations omitted).
Here,

affording

the

pro

se

Complaint

a

liberal

construction, the Court declines to conclude at this early stage
that Plaintiff’s Section 1983 claim against Suffolk County is not
plausible.

Plaintiff’s allegation that the County’s “widespread

practice, custom and policy of deliberate indifference to the
fundamental constitutional rights of prisoners” (Compl. at 9, ¶¶
32-33) presents “a colorable claim” such that dismissal “prior to
service

of

“improper.”
Cir.

1990)

process

and

the

[D]efendant’s

answer”

would

be

See, e.g., Benitez v. Wolff, 907 F.2d 1293, 1295 (2d
(per

curiam)

(“Sua

sponte

dismissal

of

a

pro

se

complaint prior to service of process is a draconian device, which
is warranted only when the complaint lacks an arguable basis in law
or fact.”).

Accordingly, Plaintiff’s Section 1983 claims against

Suffolk County shall proceed and the Clerk of the Court is directed
12

to forward copies of the Summons, Complaint, and this Order to the
USMS for service upon the County of Suffolk.
CONCLUSION
Plaintiff’s application to proceed in forma pauperis is
GRANTED and the Court ORDERS service of the Summonses and Complaint
upon the County of Suffolk, Chicara, and Ericksen.

Plaintiff’s

official capacity Section 1983 claims against Chicara, Ericksen,
and Woe are DISMISSED WITH PREJUDICE pursuant to 28 U.S.C. §§
1915(e)(2)(B)(iii) and 1915A(b)(2).
The Clerk of the Court is further ordered to serve a copy
of the Complaint together with this Order on the Suffolk County
Attorney and the New York State Attorney General.

The Suffolk

County Attorney’s Office is requested to attempt to ascertain the
full names of the unidentified Suffolk County Police Officers and
Suffolk County Corrections Officers who are described in the
Complaint and to provide their names and address(es) where each
such Defendant can be served to the Court and to Plaintiff within
thirty (30) days of the date that this Order is served upon it.
The Attorney General’s Office is requested to attempt to
ascertain the full name of the unidentified Parole Officer who is
described in the Complaint and to provide his name and address
where he can be served to the Court and to Plaintiff within thirty
(30) days of the date that this Order is served upon it.
Once the information is provided to the Court by the
13

Suffolk County Attorney’s Office and the New York State Attorney
General’s Office, Plaintiff’s Complaint shall be deemed amended to
reflect the full names of the unnamed Defendants, Summonses shall
be issued as to those Defendants, and the USMS shall serve those
Defendants.
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).
The Clerk of Court is further directed to mail a copy of
this Memorandum and Order to the pro se Plaintiff.
SO ORDERED.
/s/ JOANNA SEYBERT
Joanna Seybert, U.S.D.J.
Dated: January
27 , 2014
Central Islip, New York

14