Barretto v. Suffolk County Police

Filing 6

ORDER: SO ORDERED that Plaintiff's 2 application to proceed in forma pauperis is GRANTED, however the Complaint is sua sponte DISMISSED WITH PREJUDICE as against the Police Department for failure to state a claim pursuant to 28 U.S.C. § 1 915(e)(2)(B)(ii). Plaintiff is GRANTED LEAVE TO AMEND his Complaint in accordance with this Order. Any Amended Complaint shall be filed within thirty (30) days from the date of this Order, shall be titled Amended Complaint, and shall bear the same do cket number as this Order, No. 17-CV-2463(JS)(ARL). 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 a ppeal. 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. Ordered by Judge Joanna Seybert on 10/11/2017. (CM to pro se plaintiff) (Florio, Lisa)

FILED 
CLERK 

10/11/2017 4:52 pm

U.S. DISTRICT COURT 
EASTERN DISTRICT OF NEW YORK 
LONG ISLAND OFFICE 

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------X
STEPHEN BARRETTO,
Plaintiff,

MEMORANDUM & ORDER
17-CV-2463(JS)(ARL)

-againstSUFFOLK COUNTY POLICE DEPT., 2ND
POLICE PRECINCT;

Defendant.
----------------------------------X
APPEARANCES
For Plaintiff:
Stephen Barretto, pro se
35 Fenwick Street
Greenlawn, NY 11740
For Defendant:

No appearance.

SEYBERT, District Judge:
On April 17, 2017, pro se plaintiff Stephen Barretto
(“Plaintiff”) filed a Complaint in this Court pursuant to 42 U.S.C.
§

1983

(“Section

Department,

2nd

1983”)
Police

against

the

Precinct,

Suffolk

County

Police

(“Defendant”

or

“Police

Department”), 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 commence this action
without prepayment of the filing fees.

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

Complaint is sua sponte DISMISSED WITH PREJUDICE as against the
Suffolk County Police Department, 2nd Precinct, and WITH LEAVE TO

FILE AN AMENDED COMPLAINT as set forth herein pursuant to 28 U.S.C.
§ 1915(e)(2)(B)(ii).
BACKGROUND1
Plaintiff’s brief Complaint alleges the following facts
in their entirety:2
A hostile, menacing and contrived encounter
w/two detectives (1 female, 1 male) and as may
as four police officers (3 uniformed, and one
possibly in ordinary street clothes) while I
was engaged in quiet internet research
involving my father’s interaction w/personnel
at the Northport, N.Y. Veteran’s Hospital:
i.e., shout-orders/commands to empty my backpack’s contents, clothes pockets and to spread
arms/legs for a frisk search. Tired by the
procedure, I obeyed their order to “come with
us” (meaning the precinct) where I was
detained in a room (prison-like w/handcuffs
affixed to the wall) while they searched the
library’s
P.C.
(containing
my
e-mails
contents) for the crime of pedophillic, sexual
solicitation of minors) A false/exaggerated
accusation based on a near, 9 yr-old report of
vagrancy police received of me.
(Compl. ¶ IV.)

For relief, Plaintiff requests that:

Police
discontinue
their
encroaching/
monitoring
behavior
(post
the
Library
encounter) while I reestablish contact with
Suffolk
D.A.’s
Economic
Crimes
Bureau,
regarding my allegation that my Veteran W.W.II
father had been investigated, as he’d been
informed of a breach by the Northport, N.Y.
1

The following facts are taken from Plaintiff’s Complaint and
are presumed to be true for the purposes of this Memorandum and
Order.
2

The excerpts from the Complaint are reproduced here exactly as
they appear in the original and errors in spelling, punctuation,
and grammar have not been corrected or noted.
2

11768, Veteran’s Hospital Patient-Advocate
(Frank Marengo, R.N.) Fees (2) reimbursement.
(Compl. ¶ V.)
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’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 upon 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).

The

Court is required to dismiss the action as soon as it makes such a
determination.
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,
3

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) (citing Twombly, 550 U.S. at
556).

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 the elements of a cause of action will not
do.’”
III.

Iqbal, 556 U.S. at

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

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, 566 U.S. 356, 361, 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
4

of the United States.’”

Rae v. Cty. 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
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 Carthew v. Cty. of Suffolk, 709 F. Supp. 2d 188, 195
(E.D.N.Y. 2010) (“It is well settled that an entity such as the
Suffolk County Police Department is an ‘administrative arm’ of the
same municipal entity as Suffolk County and thus lacks the capacity
to be sued.”); Martinez v. Cty. of Suffolk, 999 F. Supp. 2d 424,
429 (E.D.N.Y. 2014) (dismissing Section 1983 claims against the
Suffolk

County

Police

Department).

Thus,

Plaintiff’s

claims

against the Police Department are not plausible because the Police
Department has no legal identity separate and apart from Suffolk
County.

Accordingly, these claims are DISMISSED WITH PREJUDICE

pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).
However, given Plaintiff’s pro se status and affording
his Complaint a liberal construction, the Court next considers
whether he has alleged a plausible Section 1983 claim against the
municipality, Suffolk County.

For the reasons that follow, the
5

Court finds that he has not.
B.

Claim as Construed Against Suffolk County
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. City,

436 U.S. 658, 690-91, 98 S. Ct. 2018, 2036, 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 “that ‘action pursuant to official municipal
policy’ caused the alleged constitutional injury.” Cash v. Cty. of
Erie,

654

F.3d

324,

333

(2d

Cir.

2011)

(quoting

Connick

v.

Thompson, 563 U.S. 51, 60, 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

channels.”

through

the

body’s

official

decisionmaking

Monell, 436 U.S. at 690-91.
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
6

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
construction, there are no factual allegations from which the Court
could reasonably construe a plausible Section 1983 cause of action
against Suffolk County.

Accordingly, Plaintiff’s Complaint does

not allege a plausible Section 1983 claim as construed against
Suffolk County.

Accordingly, Plaintiff’s Complaint, as construed

against Suffolk County is DISMISSED WITHOUT PREJUDICE pursuant to
28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A(b)(1).
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 Order.

Any

Amended Complaint shall be filed within thirty (30) days from the
date of this Order, shall be titled “Amended Complaint,” and shall
bear the same docket number as this Order, No. 17-CV-2463(JS)(ARL).
7

Plaintiff is cautioned that an Amended Complaint supercedes the
original

Complaint.

Therefore,

all

claims

and

allegations

Plaintiff wishes to pursue against any and all defendants must be
included in the Amended Complaint.
CONCLUSION
For the reasons set forth above, Plaintiff’s application
to proceed in forma pauperis is GRANTED, however the Complaint is
sua

sponte

DISMISSED

WITH

PREJUDICE

as

against

the

Police

Department for failure to state a claim pursuant to 28 U.S.C.
§ 1915(e)(2)(B)(ii).

Plaintiff is GRANTED LEAVE TO AMEND his

Complaint in accordance with this Order.

Any Amended Complaint

shall be filed within thirty (30) days from the date of this Order,
shall be titled “Amended Complaint,” and shall bear the same docket
number as this Order, No. 17-CV-2463(JS)(ARL).
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.
Dated: October
11 , 2017
Central Islip, New York

/s/ JOANNA SEYBERT
Joanna Seybert, U.S.D.J.
8