Gause v. Suffolk County Police Department et al

Filing 14

MEMORANDUM & ORDER denying 3 Motion for TRO; granting 2 Motion for Leave to Proceed in forma pauperis; For the reasons set forth above, Plaintiff's application to proceed in forma pauperis is GRANTED and his application for a Preliminary Injunction is DENIED. The Court ORDERS that the Clerk of the Court serve a copy of the Complaint together with this Order on the Suffolk County Attorney. Plaintiff's Section 1983 claims against the First Precinct are DISMISSED WITH PREJUDICE p ursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A(b)(1). 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 pu rpose of any appeal. The Clerk of the Court is directed to amend the caption as outlined supra at 1, n.1 and n.2. The Clerk of the Court is further directed to mail a copy of this Order to the pro se Plaintiff. So Ordered by Judge Joanna Seybert on 7/20/2017. C/M; C/ECF (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-------------------------------------X
DESI GAUSE,
Plaintiff,
-against-

MEMORANDUM & ORDER
17-CV-2543(JS)(GRB)

SUFFOLK COUNTY POLICE, FIRST PRECINCT;
TOWN OF BABYLON, MARYANN ANDERSON,
Town Inspector1; SUFFOLK COUNTY POLICE
SERGEANT (1); SUFFOLK COUNTY POLICE
IN PATROL CAR (2); and SUFFOLK POLICE
IN PATROL CAR PARTNER;2
Defendants.
--------------------------------------X
APPEARANCES:
For Plaintiff:
Desi Gause, pro se
55 Irving Avenue
Wyandanch, NY 11798
For Defendants:
Suffolk County Police,
First Precinct

Maryann Andersen, Senior
Zoning Inspector for the
Town of Babylon

Arlene S. Zwilling, Esq.
Suffolk County Attorney
H. Lee Dennison Building, Fifth Floor
100 Veterans Memorial Highway
P.O. Box 6100
Hauppauge, NY 11788-0099

Mark A. Cuthbertson, Esq.
Matthew Joseph DeLuca, Esq.
Law Offices of Mark A. Cuthbertson
434 New York Avenue

1

Maryann Andersen, improperly named as “Maryan Anderson” or
“Mary Anderson” is the Senior Zoning Inspector for the Town of
Babylon. (See, Anderson Aff., Docket Entry 10-3, ¶ 1.) The
Clerk of the Court is directed to amend the caption to reflect
the correct spelling of defendant’s name.

2

The Clerk of the Court is directed to amend the caption and add
the following three defendants: Suffolk County Police Sergeant
(1); Suffolk County Police in Patrol Car (2); and Suffolk County
Police in Patrol Car Partner. (See, Compl. ¶ III.)

Huntington, NY 11743
SEYBERT, District Judge:
On

April

28,

2017,

pro

se

plaintiff

Desi

Gause

(“Plaintiff”) filed a Complaint against the Suffolk County Police,
First Precinct (the “First Precinct”); Maryann Andersen, Town
Inspector

for

the

Town

of

Babylon

(“Andersen”)3;

and

three

unidentified Suffolk County law enforcement officers--one police
sergeant and two patrol car officers--alleged to have visited
Plaintiff’s property on April 27, 2017 (“John Doe Officers” and
collectively, “Defendants”).

The Complaint alleges a deprivation

of Plaintiff’s civil rights pursuant to 42 U.S.C. § 1983 (“Section
1983”).
Plaintiff’s Complaint is accompanied by an application
to proceed in forma pauperis and an Order to Show Cause seeking the
entry

of

a

Injunction.
Entry 2;
Entry 3.)

Temporary
(See,

In

Restraining
Forma

Order

Pauperis

and

(“IFP”)

a

Preliminary

Motion,

Docket

Gause Temporary Restraining Order (“TRO”) Motion, Docket
By Electronic Order dated May 2, 2017 (the “Electronic

Order”), the undersigned denied Plaintiff’s application for a TRO
and deferred ruling on the application for a Preliminary Injunction
3

Plaintiff lists only four Defendants (see Compl. ¶ III.B.), and
does not include the Town of Babylon as a separate Defendant.
Thus, it appears that Plaintiff’s inclusion of the Town of
Babylon, together with Andersen, is to indicate that she is the
Town Inspector for the Town of Babylon. If Plaintiff intended
to include the Town of Babylon as a party separate from
Andersen, he may so amend his Complaint in this regard.
2

pending

the

Electronic

determination

Order

also

of

Plaintiff’s

directed

Defendants

IFP
to

Motion.
respond

The
to

the

Plaintiff’s application for a Preliminary Injunction within two
weeks of service of the Electronic Order and Defendants have timely
complied with the Electronic Order. (See Docket Entries 6, 10, 11,
and 12.)
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).
Accordingly, Plaintiff’s application to proceed in forma pauperis
is GRANTED and the Court ORDERS service of the Complaint by the
United States Marshal Service (“USMS”) without prepayment of the
filing fee on Defendants.

Plaintiff’s Order to Show Cause seeking

the entry of a Preliminary Injunction is DENIED for the reasons
that follow.
BACKGROUND
I.

The Complaint
Plaintiff’s sparse Complaint is submitted on the Court’s

Section 1983 complaint form and, liberally construed, purports to
allege a deprivation of his Fourth and Fourteenth Amendment rights.
More specifically, Plaintiff’s statement of claim alleges, in its

3

entirety:4
On or about 4/27/2017, the Suffolk County
Police along with the Town of Babylon violated
my home and property and without a warrant or
my presence Broke in my home kicking my door
open and unlawfully entered my home without my
or anybody’s permission to do so, and boarded
up my home, leaving me homeless on the street
for more repairs that could of been repaired
as I was doing. “Deprivation of property”,
Blacks are targeted and treated unfair by the
Town of Babylon, we are treated like animals,
unhumane, our rights are violated.
(Compl. ¶ IV.)

Plaintiff has annexed to his Complaint a two-page,

handwritten supplement (Compl. at 6-7), that reads as follows:
This is an incident that occurred 04/27/2017,
round 10 and 1 p.m., 8 a.m., I went to the
Huntington
Jeep
and
Chrysler
building,
received a call the Town of Babylon with Marie
Anderson and Suffolk Police broke in to your
house without a search warrant and kicked the
door in and went through my home violating my
privacy and fourth amendment, because of
people sleeping in a tent in the backyard.
“1973 Wounded Knee Act” then the begin to
board the house up and said I have to repair
a code violation, which I did and I have the
documents showing an inspection was made and
passed, the people in the tent were grown
adults, drinking, and smoking their stuff or
partying in privacy, and enemy of mine Tony
Harrison and Kity, his girl, make anomynus
calls by the dozen and threatens me and my
family in the tent because they won’t let her
enter, so now she involves the Town and Police
with dozens of bogus calls as if she is my
neighbor. She lives six houses down the block
and noone will let her come inside to chill.
4

Excerpts from the Complaint and Order to Show Cause are
reproduced here exactly as they appear in the original. Errors
in spelling, punctuation, and grammar have not been corrected or
noted.
4

They have their own jet set and crowd that
pays rent to the tent holder, “Gia Calloway”,
my niece. My rights are being violated and I
am being deprived of entrance to my home.
Mary Anderson of the Town of Babylon, along
with
the
Suffolk
County
Police,
First
Precinct, took the law in their hand without
a warrant from a judge and unlawfully broke
into my home and boarded it up, which was
unlawful and unconstitutional. They give the
white people time to fix any violations from
30 days up to a year, one of the Town workers
explained to me today and said they only board
the blacks up because they don’t know their
rights and usually they don’t do nothing about
it and walk away from their home, “deprivation
of property” under the fifth, fourth, sixth
and 14 Amendment of the US Constitutions. I
was like an Order to Show Cause to take off
the boards and go back into my home. I have
children coming home from college for the
Summer, Temple University, and we have no
where to go.
That’s been our home over 18
years my parents own it, it’s the Estate of
Della L. Gause.
I was an Order letting me
enter my home with No Town or Police
consequences until this can be resolved.
(Compl. at 6-7.)
In the space on the form Complaint that calls for a
description of any claimed injuries, Plaintiff alleges: “mental
anguish, mental depression and anxiety inter-alia, high blood
pressure cold at night from sleeping in car.”

(Compl. ¶ IV.A.)

For relief, Plaintiff seeks a damages award in the amount of one
million dollars as well as an order directing Defendants to “take
the boards off of my home and stop violation of my fourth and fifth
amendment [rights] . . . .”

(Compl. ¶ V.)

5

II.

The Application for a Preliminary Injunction
Plaintiff’s Order to Show Cause seeks an order, “pursuant

to Rule 65 FRCP enjoining the defendant during the pendency of this
action from keeping me from going inside my home and putting boards
on my home” and “depriving m3 of my home and property under the
Fifth Amendment U.S.C.A.”

(See Proposed Order for Preliminary

Injunction and Restraining Order, Docket Entry 3-1.)

Plaintiff

alleges, as grounds for his motion, that he and his family members
have suffered “constant harrassment and violation of [his] quiet
time.”

(See Gause TRO Motion at 1.)

Plaintiff claims that he will

suffer “immediate and irreparable harm”, absent injunctive relief,
because he is “on the outside of my home with all my valuables, and
I have very important documents needed answer and I need access in
and out of my home, my children will be home from college with no
where to go.”

(See Gause TRO Motion at 2, ¶ 1.)

Plaintiff also claims that he is suffering serious,
immediate harm in the form of “mental deprivation, mental anguish,
depression, all of my medication and clothes are in my home, I need
bath . . . .”

(See Gause TRO Motion at 2, ¶ 2.)

Plaintiff alleges

that he hasn’t “caused no harm to no one and only want to be back
in my home” and that the harm to him absent an injunction is
greater than the harm to the Defendants is an injunction is entered
“[b]ecause my opponent goes home to the luxury of his home and can
cook, be the lay down to watch tv, make love to their spouse and
6

children, my children are coming home from college to be sleeping
in care and the street.”

(See Gause TRO Motion at 2, ¶ 4.)

In response to the Court’s Electronic Order, Andersen
filed

papers

in

opposition

to

the

Plaintiff’s

Motion

for

a

Preliminary Injunction on May 17, 2017 (see Anderson’s Opp., Docket
Entry 10) and the County filed opposition papers on May 10, 2017,
May 18, 2017, and May 30, 2017 (see Docket Entries 6, 11, and 12.)5
DISCUSSION
I.

In Forma Pauperis Application
Upon review of Plaintiff’s 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 fees.

See 28 U.S.C. § 1915(a)(1).

5

Therefore,

Relying on the date of the alleged event included in the
Complaint, April 27, 2017, the County apprised the Court by
letter dated May 10, 2017 that, following a search of the
Suffolk County Police Department records, the County has no
records of any incident on April 27, 2017 concerning the
boarding up of Plaintiff’s home. (See Docket Entry 6.) By
letter dated May 18, 2017 the County supplemented its response
to advise that it has learned that the event in question may
have occurred on April 21, 2017, and that it would search its
records for any incidents at Plaintiff’s address on that date.
(See Docket Entry 11.) By letter dated May 30, 2017, the County
apprised the Court that the search of its records revealed that
a search warrant was executed at Plaintiff’s residence on April
21, 2017 and that, “[i]n conjunction with that warrant
execution, seven people were arrested at the premises on charges
related to illegal drugs, including [Plaintiff].” (See Docket
Entry 12.) A copy of the Search Warrant, signed by the
Honorable William J. Condon, Supreme Court, State of New York,
Suffolk County, is attached to the County’s letter together with
the Application and Affidavit for Search Warrant.
7

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

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.

28 U.S.C. § 1915A(a).

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, 1949, 173 L. Ed. 2d 868 (2009) (citation 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., 671 F.3d 120, 128 (2d Cir. 2011).

While

“‘detailed factual allegations’” are not required, “[a] pleading
8

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).
III.

Application For a Preliminary Injunction
It is well-established that “interim injunctive relief

is

an

extraordinary

routinely granted.”

and

drastic

remedy

which

should

not

be

Buffalo Forge Co. v. Ampco–Pittsburgh Corp.,

638 F.2d 568, 569 (2d Cir. 1981) (internal quotation marks and
citation omitted).

To obtain a preliminary injunction, the movant

“must show irreparable harm absent injunctive relief, and either
a likelihood of success on the merits, or a serious question going
to the merits to make them a fair ground for trial, with a balance
of hardships tipping decidedly in plaintiff’s favor.”

Louis

Vuitton Malletier v. Dooney & Bourke, Inc., 454 F.3d 108, 113-14
(2d Cir. 2006) (citing Jackson Dairy, Inc. v. H.P. Hood & Sons,
Inc., 596 F.2d 70, 72 (2d Cir. 1979) (per curiam)); see also
Christian Louboutin S.A. v. Yves Saint Laurent Am. Holdings, Inc.,
696 F.3d 206, 215 (2d Cir. 2012); Citigroup Global Mkts., Inc. V.
VCG Special Opportunities Master Fund, Ltd., 598 F.3d 30, 35 (2d
Cir. 2010); see also FED. R. CIV. P. 65.
“Such relief, however, ‘is an extraordinary and drastic
remedy, one that should not be granted unless the movant, by a
clear showing, carries the burden of persuasion.’”

Moore v.

Consol. Edison Co. of N.Y., 409 F.3d 506, 510 (2d Cir. 2005)
9

(quoting Mazurek v. Armstrong, 520 U.S. 968, 972, 117 S. Ct. 1865,
1867, 138 L. Ed. 2d 162 (1997)).

When the moving party seeks a

“mandatory injunction that alters the status quo by commanding a
positive act,” as is the case here, the burden is even higher.
Citigroup Global Mkts., 598 F.3d at 35, n. 4 (internal quotation
marks and citation omitted); see also Jolly v. Coughlin, 76 F.3d
468, 473 (2d Cir. 1996).

A mandatory preliminary injunction

“should issue only upon a clear showing that the moving party is
entitled to the relief requested, or where extreme or very serious
damage will result from a denial of preliminary relief.” Citigroup
Global Mkts., 598 F.3d at 35 n.4 (internal quotation marks and
citations omitted). Ultimately, the decision to grant or deny this
“drastic” remedy rests in the district court’s sound discretion.
See, e.g., Moore, 409 F.3d at 511 (A district court has “wide
discretion

in

determining

whether

to

grant

a

preliminary

injunction.”).
A.

Likelihood of Success on the Merits or Sufficiently
Serious Questions Going to the Merits to Make Them a Fair
Ground for Litigation and Balance of the Hardships
Plaintiff’s claims are premised on his allegations that

the Defendants: (1) “[W]ithout a warrant or my presence, broke in
my home . . . and unlawfully entered . . .”; and (2) unlawfully
“boarded up my home, leaving me homeless.”
1.

(Compl. ¶ IV.)

Fourth Amendment Claim Arising from the Alleged
Warrantless Search of Plaintiff’s Home

It is a “basic principle of Fourth Amendment law that
10

searches

and

seizures

inside

presumptively unreasonable.”

a

home

without

a

warrant

are

Groh v. Ramirez, 540 U.S. 551, 559,

124 S. Ct. 1284, 1290, 157 L. Ed. 2d 1068 (2004) (quoting Payton
v. New York, 445 U.S. 573, 586, 100 S. Ct. 1371, 1380, 63 L. Ed.
2d 639 (1980) (internal quotation marks and citation omitted)).
However,

“the

warrant

requirement

is

subject

to

certain

exceptions.” Brigham City v. Stuart, 547 U.S. 398, 403, 126 S. Ct.
1943, 1947, 164 L. Ed. 2d 650 (2006).
Here, in response to the Order to Show Cause, the County
has submitted a copy of a Search Warrant, bearing CC# 17-227112,
that

authorizes the “search of the premises located at 55 Irving

Avenue, Wyandanch, NY.”

(See Docket Entry 12-1 at 1.)

The search

warrant reflects that it was signed by the Honorable William J.
Condon, Supreme Court, State of New York, Suffolk County, on
April 20, 2017, the day before the April 21st search.
Entry 12-1 at 2.)

(See Docket

Thus, Plaintiff’s claim that Defendants’ entry

to his home was unauthorized and was without a warrant is unlikely
to be successful.

Nor has Plaintiff established that there are

sufficiently serious questions going to the merits of his Fourth
Amendment claim with a balance of hardships tipping decidedly in
his favor.

Ivy Mar Co. v. C.R. Seasons Ltd., 907 F. Supp. 547, 561

(E.D.N.Y.

1995)

(“[B]are

allegations,

without

more,

are

insufficient for the issuance of a preliminary injunction.”);
Hancock v. Essential Resources, Inc., 792 F. Supp. 924, 928
11

(E.D.N.Y. 1992) (“Preliminary injunctive relief cannot rest on mere
hypotheticals. . . .”).

Thus, Plaintiff has not established a

proper basis for the entry of a Preliminary Injunction on his
Fourth Amendment claim.
2.

Fourteenth Amendment Claim That The Defendants Unlawfully
Boarded Up Plaintiff’s Home
Plaintiff also appears to claim that Defendants have

deprived him of his Fourteenth Amendment right to due process in
connection with the alleged unlawful boarding up of Plaintiff’s
home and denying him access thereto.

“Causes of action based on

due process violations require ‘the existence of a federally
protectable property right and the denial of such a right in the
absence of either procedural or substantive due process.’”

Dibbs

v. Roldan, 356 F. Supp. 2d 340, 353 (S.D.N.Y. 2005) (quoting Natale
v.

Town

of

Ridgefield,

170

F.3d

258,

262

(2d

Cir.

1999)).

“‘Substantive due process protects against government action that
is

arbitrary,

conscience-shocking,

constitutional sense.’”

or

oppressive

in

a

Dibbs, 356 F. Supp. 2d at 353 (quoting

Kaluczky v. City of White Plains, 57 F.3d 202, 211 (2d Cir. 1995)).
To succeed on this claim, Plaintiff must show that the
Defendants “so grossly abused their authority that they deprived
him of a constitutionally protected property interest.”

Rackley

v. City of New York, 186 F. Supp. 2d 466, 479 (S.D.N.Y. 2002).
“Gross abuse occurs ‘only where the government action challenged
is so outrageous and arbitrary that it ‘shocks the conscience.’”
12

Dibbs, 356 F. Supp. 2d 353 (quoting Rackley, 186 F. Supp. 2d at
479. “Procedural due process ‘require[s] notice and an opportunity
to be heard prior to the deprivation of a property interest . . .
.’”

Dibbs, 365 F. Supp. 2d at 353 (quoting United States v.

Premises & Real Prop. at 4492 S. Livonia Rd., Livonia, N.Y., 889
F.2d 1258, 1263 (2d Cir. 1989)) (ellipsis in original).
Here, in response to the Order to Show Cause, Andersen
has

submitted

an

affidavit

wherein

she

alleges

that,

on

September 1, 2016, she was called by the First Precinct to inspect
the premises known as 55 Irving Avenue, Wyandanch, New York,
concurrent with the Suffolk County Police Department’s (“SCPD”)
execution of a search warrant.
alleges

that

representative

she,

together

from

the

(See Andersen Aff. ¶ 4.)
with

Fire

a

plumbing

Marshal’s

Andersen

inspector

Office,

and

inspected

a

the

property and discovered that Plaintiff was illegally operating the
property as a rooming house.

(Anderson Aff. ¶ 4.)

Based upon

Andersen’s observations at the inspection, she cited Plaintiff for
five violations of the Town Code, and has attached copies of the
accusatory instruments to her affidavit.

(Andersen Aff. ¶ 6 and

Ex. B annexed thereto.)
Andersen also alleges that the Fire Marshal and plumbing
inspector discovered, respectively, that the wiring and plumbing
in the house was substandard and that a permit had not been issued.
(Andersen Aff. ¶ 7.)

As a result of these findings, Andersen
13

“determined that the house should be condemned and deemed unsafe
for occupancy until the house was brought into compliance with the
applicable codes and regulations.” (Andersen Aff. ¶ 7.) Plaintiff
was advised that a contractor employed by the Town (CIPCO) would
arrive later that day to board up the house, and that, upon his
“submission of the appropriate documentation to the Fire Marshal’s
Office certifying that the house’s electrical wiring were to code,
the boards would be removed and Plaintiff could again occupy the
house.”

(Andersen Aff. at ¶¶ 7-8.)
Andersen alleges that she next returned to the premises

on December 27, 2016, accompanied by Plaintiff and a plumber he had
employed, to confirm whether Plaintiff had remedied the violations
for which he had been cited on September 1, 2016.
¶ 9.)

(Andersen Aff.

Andersen alleges that it appeared to her that the premises

were no longer being used as a rooming house, and that the plumber
and Plaintiff advised her that the problems with the plumbing and
electrical work had not yet been completed.

(Andersen Aff. ¶ 9.)

In addition, although the property remained condemned, Andersen
observed

that

some

of

the

boards

had

been

removed

Plaintiff may have illegally entered the premises.

and

that

(Andersen Aff.

¶ 10.)
Andersen alleges that she next had contact with the
Plaintiff during the first week of April 2017 when she was again
called by the SCPD to inspect Plaintiff’s property.
14

Andersen

describes that, even though Plaintiff was unauthorized to be inside
his home, he answered the door and was dressed in only his
underwear.

(Andersen Aff. ¶ 11.)

Andersen alleges that they

agreed that she would return the following Tuesday to inspect the
property.

(Andersen Aff. ¶ 11.)

On April 11, 2017, Andersen

alleges that she returned to the property with two SCPD officers.
(Andersen Aff. ¶ 12.)

Upon her entry to the property, Andersen

describes that the electrical wiring remained visibly substandard.
(Andersen Aff. at ¶ 12.)

Plaintiff informed Andersen that he had

submitted the appropriate documentation for the electrical work
and, upon further investigation, Andersen discovered that the
documentation had not been filed and thus the home should not have
been occupied.

(Andersen Aff. ¶ 12.)

Accordingly, Andersen

returned to the property on April 27, 2017 with the SCPD and
employees from the Town’s Department of Public Works and CIPCO and
CIPCO re-boarded all of the doors and windows.
¶ 15.)

(Anderson Aff.

Andersen alleges that she has reviewed the records kept by

the Town and, as of the May 16, 2017 date of her affidavit,
Plaintiff has failed to submit the required documentation to unboard the house.

(Andersen Aff. ¶ 16.)

Given that the reasons set forth by Andersen for the
boarding

up

of

Plaintiff’s

property

are

not

“arbitrary,

conscience-shocking, or oppressive in a constitutional sense,”
Plaintiff’s substantive due process claim has little likelihood of
15

success.

Nor

has

Plaintiff

set

forth

sufficiently

serious

questions going to the merits of his substantive due process claim
and that the balance of the hardships tips decidedly in Plaintiff’s
favor.

Similarly, Plaintiff’s procedural due process claim is

unlikely to be successful given that Defendants have submitted
copies of the Notice provided to Plaintiff back in September 2016
of the alleged plumbing and electrical wiring violations that
caused the boards to be installed on September 1, 2016.
Andersen Aff. ¶ 6, and Ex. B annexed thereto.)
affidavit

makes

clear,

once

Plaintiff

files

(See

As Andersen’s
the

proper

documentation with the Town concerning the plumbing and electrical
work, the boards will be removed and Plaintiff will be permitted
to occupy his property.

(Andersen Aff. ¶ 8.)

Because Plaintiff

has not provided proper documentation to the Town, nor does he even
claim that he has completed the necessary repairs, the safety
hazards cited by the Town apparently continue and Plaintiff was
unauthorized to remove the boards and re-enter the property. Thus,
Plaintiff’s procedural due process claim has little likelihood of
success, nor are there sufficiently serious questions going to the
merits with a balance of hardships tipping decidedly in Plaintiff’s
favor.
Given that Plaintiff has not established that there is
either a likelihood of success on the merits or that there are
sufficiently serious questions going to the merits with a balance
16

of hardships tipping decidedly in his favor, the Court need not
address the irreparable harm prong and Plaintiff’s application for
a Preliminary Injunction is DENIED.
IV.

Valentin Order
The USMS will not be able to effect service of the

Summonses and the Complaint on the unidentified Defendants without
more information. The Second Circuit has held that district courts
must

provide

assistance
defendants.

in

incarcerated
investigating

pro
the

se

litigants

identity

of

with
such

reasonable
“John

Doe”

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
Suffolk County Attorney.

The Suffolk County Attorney’s Office is

requested to attempt to ascertain the full names of the unnamed
individuals who are described in the Complaint and to provide to
the Court and to Plaintiff their names and the address(es) where
these individuals can be served 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
names of the unnamed Defendants, Summonses shall be issued as to
these Defendants, and the USMS shall serve them.
The Suffolk County Attorney need not undertake to defend
17

or indemnify these individuals at this juncture. This Order merely
provides a means by which Plaintiff may properly name and serve the
unnamed Defendants as instructed by the Second Circuit in Valentin.
V.

Claims Against the First Precinct
Plaintiff’s claims against the First Precinct are not

plausible because it has no independent legal identity.

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 from the municipality and, therefore,
cannot sue or be sued.”

Davis v. Lynbrook Police Dep’t, 224 F.

Supp. 2d 463, 477 (E.D.N.Y. 2002); see also Jenkins v. City of
N.Y., 478 F.3d 76, 93 n. 19 (2d Cir. 2007) (holding that New York
City Police Department is a non-suable entity); Lawrence v. Suffolk
Cty. Police Dep’t, 13–CV–2357, 2013 WL 3364344, at *3 (E.D.N.Y.
June 28, 2013) (Suffolk County Police Department and First Precinct
are not a suable entities).

Thus, Plaintiff’s claims against the

First Precinct are not plausible and are DISMISSED WITH PREJUDICE
pursuant to 28 U.S.C. §§ 1915(e)(2)(b)(ii); 1915A(b).6
6

Even liberally construing the Complaint to assert claims
against Suffolk County, Plaintiff’s claims must fail. In order
to state a plausible claim against a municipality, Plaintiff
must allege that the unconstitutional “‘action pursuant to
official municipal policy’ caused their injury.” Connick v.
Thompson, 563 U.S. 51, 60, 131 S. Ct. 1350, 1359, 179 L. Ed. 2d
417 (2011) (quoting Monell v. Dep’t of Soc. Servs., 436 U.S.
658, 690, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978)). Plaintiff
fails to allege the existence of any formal policy, practice, or
custom of Suffolk County which caused his alleged constitutional
deprivations. Accordingly, Plaintiff has failed to state a
18

CONCLUSION
For the reasons set forth above, Plaintiff’s application
to proceed in forma pauperis is GRANTED and his application for a
Preliminary Injunction is DENIED.

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 directed to attempt to ascertain the full names of the
unnamed individuals who are described in the Complaint and to
provide

to

the

Court

and

to

Plaintiff

their

names

and

the

address(es) where these individuals can be served within thirty
(30) days of the date that this Order is served upon it.
information

is

provided

to

the

Court

by

the

Once the

Suffolk

County

Attorney’s Office, Plaintiff’s Complaint shall be deemed amended
to reflect the full names of the unnamed Defendants, Summonses
shall be issued as to these Defendants, and the USMS shall serve
them.
Plaintiff’s
Precinct

are

Section

DISMISSED

WITH

1983

claims

PREJUDICE

against

pursuant

to

the
28

First
U.S.C.

§§ 1915(e)(2)(B)(ii), 1915A(b)(1).
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-

claim against Suffolk County.
19

45, 82 S. Ct. 917, 8 L. Ed. 2d 21 (1962).
The Clerk of the Court is directed to amend the caption
as outlined supra at 1, n.1 and n.2.

The Clerk of the Court is

further directed to mail a copy of this Order to the pro se
Plaintiff.

SO ORDERED.

/s/ JOANNA SEYBERT
Joanna Seybert, U.S.D.J.
Dated: July
20 , 2017
Central Islip, New York

20