Allen v. NY State et al
Filing
7
MEMORANDUM & ORDER granting 2 Motion for Leave to Proceed in forma pauperis; denying 4 Motion to Appoint Counsel; For the reasons set forth above, Plaintiff's application to proceed in forma pauperis is GRANTED and the claims that are set forth in the Complaint are sua sponte DISMISSED WITH PREJUDICE pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii)-(iii), 1915A(b). Plaintiff's application for the appointment of pro bono counsel to represent him in this case is DENIED as MOOT . However, Plaintiff is GRANTED LEAVE TO FILE AN AMENDED COMPLAINT within thirty (30) days from the date of this Order. 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 t herefore in forma pauperis status is DENIED for the purpose of any appeal. The Clerk of the Court is directed to mail a copy of this Memorandum and Order to the pro se Plaintiff. So Ordered by Judge Joanna Seybert on 10/27/2015. C/M (Valle, Christine)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------X
SHAHEEM K. ALLEN,
Plaintiff,
MEMORANDUM & ORDER
15-CV-3653(JS)(AYS)
-againstNEW YORK STATE, NASSAU COUNTY
POLICE DEPT., and NASSAU
COUNTY DISTRICT ATTORNEY’S OFFICE,
Defendants.
----------------------------------X
APPEARANCES
For Plaintiff:
Shaheem K. Allen, pro se
15002901
Nassau County Correctional Center
100 Carman Avenue
East Meadow, NY 11554
For Defendants:
No appearances.
SEYBERT, District Judge:
On
June
22,
2015,
incarcerated
pro
se
plaintiff
Shaheem K. Allen (“Plaintiff”) filed a Complaint in this Court
pursuant to 42 U.S.C. § 1983 (“Section 1983”) against New York
State (“the State”), the Nassau County Police Department (“the
Police Department”), and the Nassau County District Attorney’s
Office
(“the
DA’s
Office”
and
collectively
“Defendants”),
accompanied by an application to proceed in forma pauperis.
Docket Entry 2.)
(See
Plaintiff also filed an application for the
appointment of pro bono counsel to represent him in this case.
(See Docket Entry 4.)
Upon
review
of
the
declaration
in
support
of
the
application to proceed in forma pauperis, the Court finds that
Plaintiff is qualified to commence this action without prepayment
of
the
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 claims that are
set forth in the Complaint are sua sponte DISMISSED WITH PREJUDICE
pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A(b)(1) and the
application for the appointment of pro bono counsel is DENIED as
MOOT.
BACKGROUND1
Plaintiff’s brief, handwritten Complaint alleges that, on
May 13, 2015, Plaintiff was falsely arrested and charged with
fourteen counts of Criminal Sale of a Controlled Substance in the
third
degree,
one
count
of
Conspiracy,
and
one
count
of
“Prohibition Animal Fighting in the Second Degree.” (Compl. at 6.)
According to the Complaint, members of the Police Department
“unlawfully entered” the residence where Plaintiff was located and
arrested him.
(Compl. at 6.)
Plaintiff alleges that the officers
did not display any identification or produce a warrant for
Plaintiff’s arrest or to search the premises. (Compl. at 6.) Once
inside the residence, Plaintiff alleges that the officers “drawed
guns in our faces[,] ordered [e]veryone on the floor and we were
all cuffed with no explaination [sic].”
1
(Compl. at 6.)
The following facts are taken from Plaintiff’s Complaint and
are presumed to be true for the purposes of this Memorandum and
Order.
2
According to the Complaint, Plaintiff was also charged
with selling heroin on several dates in January, February, and
March 2015 and that these charges are “fabricated.” (Compl. at 7.)
Plaintiff claims that the charges against him arise from statements
made by a “well known drug addict” who “is known for working with
the police for [$]25.00 for each person he say’s [sic] he brought
[sic] drugs from.”
(Compl. at 7.)
Plaintiff also complains that
he did not waive his “right to testify at the grand jury” and that
they proceeded in his absence in violation of his “Consistutional
[sic] Rights.”
(Compl. at 9.)
As a result of the foregoing, Plaintiff seeks an order
“to the Nassau Cty DA’s Office to drop and release me on the
fabricated statements from a very unstable person . . . .” (Compl.
at 8.)
Plaintiff seeks his “freedom back” in addition to a
monetary award of $250 million against the Nassau County Police and
the Nassau County DA’s Office.
(Compl. at 8.)
DISCUSSION
I.
In Forma Pauperis Application
Upon review of Plaintiff’s declaration in support of his
application to proceed in forma pauperis, the Court finds that
Plaintiff is qualified 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.
3
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 upon which relief may be
granted, or seeks monetary relief against a defendant who is immune
from
such
1915A(b).
relief.
See
28
U.S.C.
§§
1915(e)(2)(B)(i)-(iii),
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,
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.”
Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.
Ct. 1937, 173 L. Ed. 2d 868 (2009) (citations omitted).
The
plausibility standard requires “more than a sheer possibility that
a defendant has acted unlawfully.”
Id. 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
4
the elements of a cause of action will not do.’”
at
Iqbal, 556 U.S.
678 (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
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)).
A.
Claim Against the Police Department and the DA’s Office
It
is
well-established
that
“under
New
York
law,
departments that are merely administrative arms of a municipality
do
not
have
a
legal
identity
separate
and
apart
municipality and, therefore, cannot sue or be sued.”
from
the
Davis v.
Lynbrook Police Dep’t, 224 F. Supp. 2d 463, 477 (E.D.N.Y. 2002);
see also Hawkins v. Nassau Cnty. Corr. Fac., 781 F. Supp. 2d 107,
5
109 at n.1 (E.D.N.Y. 2011) (dismissing claims against Nassau County
Jail because it is an “administrative arm[] of the . . . County of
Nassau, and thus lacks the capacity to be sued as a separate
entity”) (internal quotation marks and citations omitted); Booker
v. Doe, 11-CV-1632, 2011 WL 3648275, *2 (E.D.N.Y. Aug. 10, 2011)
(dismissing Section 1983 claim against the Suffolk County District
Attorney’s Office) (citing Conte v. Cnty. of Nassau, 06-CV-4746,
2008 WL 905879, at *1 n.2 (E.D.N.Y. Mar. 31, 2008) (“the Nassau
District Attorney’s Office does not have a legal identity apart
from the municipality”)).
Thus, Plaintiff’s claims against the
Police Department and the DA’s Office are not plausible because
these entities have no legal identity separate and apart from the
municipality.
Accordingly,
the
claims
against
the
Police
Department and the DA’s Office are DISMISSED WITH PREJUDICE.
Given
Plaintiff’s
pro
se
status
and
affording
his
Complaint a liberal construction, the Court has considered whether
Plaintiff has alleged a plausible claim against Nassau County, and
finds that he has not for the reasons that follow.
A.
Claims as Construed Against Nassau County
It is well-established that a municipality such as Nassau
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, 691, 98 S. Ct. 2018, 2036, 56 L. Ed. 2d 611 (1978); Roe v.
City of Waterbury, 542 F.3d 31, 36 (2d Cir. 2008).
6
To prevail on
a Section 1983 claim against a municipality, a plaintiff must show
“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, 131 S. Ct.
1350, 1359, 179 L. Ed. 2d 417 (2011)); see also Monell, 436 U.S. at
690–91. “[L]ocal governments . . . may be sued for constitutional
deprivations visited pursuant to governmental ‘custom’ even though
such a custom has not received formal approval through the body’s
official decisionmaking channels.”
Monell, 436 U.S. at 690–691
(internal citation omitted).
A plaintiff can ultimately establish the existence of a
municipal policy or custom by showing: (1) the existence of a
formal policy which is officially endorsed by the municipality; (2)
actions taken or decisions made by municipal officials with final
decision-making authority, which caused the alleged violation of
plaintiff’s
civil
rights;
(3)
a
practice
so
persistent
and
widespread that it constitutes a custom of which constructive
knowledge and acquiescence can be implied on the part of the policy
making officials; or (4) a failure by policymakers to properly
train or supervise their subordinates, amounting to deliberate
indifference to the rights of those who come in contact with the
municipal employees.
Moray v. City of Yonkers, 924 F. Supp. 8, 12
(S.D.N.Y. 1996) (citations omitted).
Here, even affording the pro se Complaint a liberal
7
construction, there are no factual allegations from which the Court
could reasonably construe a plausible Section 1983 cause of action
against Nassau County.
Indeed, “[a] single incident alleged in a
complaint,
if
especially
it
involved
only
actors
below
the
policy-making level, does not suffice to show a municipal policy.”
DeCarlo v. Fry, 141 F.3d 56, 61 (2d Cir. 1998) (internal quotation
marks and citation omitted).
Accordingly, Plaintiff’s Complaint,
as construed against Nassau County does not allege a plausible
Section 1983 claim.
B.
Claim Against the State
The Eleventh Amendment to the United States Constitution
provides:
The Judicial power of the United States shall
not be construed to extend to any suit in law
or equity, commenced or prosecuted against one
of the United States by Citizens of another
State, or by Citizens or Subjects of any
Foreign State.
U.S. CONST. amend. XI.
. .
“‘The reach of the Eleventh Amendment has .
been interpreted to extend beyond the terms of its text to bar
suits in federal courts against states, by their own citizens or by
foreign sovereigns. . . .’”
State Employees Bargaining Agent
Coalition v. Rowland, 494 F.3d 71, 95 (2d Cir. 2007) (ellipses in
original) (quoting W. Mohegan Tribe & Nation v. Orange Cnty., 395
F.3d 18, 20 (2d Cir. 2004)).
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
8
& Eddy, 506 U.S. 139, 144, 113 S. Ct. 684, 687-88, 121 L. Ed. 2d
605 (1993).
Here, apart from the fact that Plaintiff seeks no
relief against the State,2 it is clear that the State is immune
from Plaintiff’s suit under the Eleventh Amendment.
Accordingly,
Plaintiff’s claim against the State is DISMISSED WITH PREJUDICE
pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii)-(iii), 1915A(b).
IV. Leave to Amend
Given the Second Circuit’s guidance that a district 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,” Chavis v.
Chappius, 618 F.3d 162, 170 (2d Cir. 2010), Plaintiff is GRANTED
LEAVE TO AMEND his Complaint in accordance with this Memorandum &
Order.
days
Any Amended Complaint shall be filed within thirty (30)
from
the
Complaint,”
date
and
of
shall
Memorandum
&
Order,
cautioned
that
an
this
bear
No.
Amended
Order,
the
shall
same
be
titled
“Amended
docket
number
as
15-CV-3653(JS)(AYS).
Complaint
this
Plaintiff
supercedes
the
is
original
Complaint.
Therefore, all claims and allegations Plaintiff wishes
to
should
pursue
be
included
in
the
Amended
Complaint.
If
Plaintiff timely files an Amended Complaint it shall be reviewed
2
Insofar as the Complaint may be liberally construed as seeking
Plaintiff’s release from incarceration (see Compl. at 8), such
relief is unavailable under Section 1983.
9
pursuant to 28 U.S.C. § 1915.
CONCLUSION
For the reasons set forth above, Plaintiff’s application
to proceed in forma pauperis is GRANTED and the claims that are set
forth in the Complaint are sua sponte DISMISSED WITH PREJUDICE
pursuant
to
28
U.S.C.
§§
1915(e)(2)(B)(ii)-(iii),
1915A(b).
Plaintiff’s application for the appointment of pro bono counsel to
represent him in this case is DENIED as MOOT.
However, Plaintiff
is GRANTED LEAVE TO FILE AN AMENDED COMPLAINT within thirty (30)
days from the date of this Order.
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 the Court is 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: October
27 , 2015
Central Islip, New York
10
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