LaPoint v. Vasiloff et al

Filing 11

ORDER adopting Report and Recommendations re 4 Report and Recommendations: The Court hereby ORDERS that Magistrate Judge Baxter's Order and Report-Recommendation (Dkt. No. 4) is ADOPTED in its entirety for the reasons stated therein; and the Court further ORDERS that Plaintiff's complaint (Dkt. No. 1) is DISMISSED as against the East Syracuse Police Department only; and the Court further ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision and Order on all parties in accordance with the Local Rules. Signed by U.S. District Judge Mae A. D'Agostino on 4/2/15. [copy mailed to plaintiff] (ban)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
LANCE LAPOINT,
Plaintiff,
vs.

5:15-cv-00185
(MAD/ATB)

SGT. PETER VASILOFF, individually and
in his official capacity, OFFICER DALE
BARHITE, individually and in his official
capacity, EAST SYRACUSE POLICE
DEPARTMENT, VILLAGE OF EAST
SYRACUSE, ONONDAGA COUNTY,
and JOHN DOES #1, 2, and 3,
Defendants.
____________________________________________
APPEARANCES:

OF COUNSEL:

LANCE LAPOINT
215 Edgemere Road
Syracuse, New York 13208
Plaintiff pro se

Mae A. D'Agostino, U.S. District Judge:
ORDER
On February 19, 2015, Plaintiff commenced this action pro se pursuant to 42 U.S.C. §
1983. See Dkt. No. 1. Plaintiff alleges that Defendants violated his constitutional rights by using
excessive force in the course of arresting him for "hopp[ing] a train" and by failing to provide
adequate medical care for his resulting injuries. See id. at 2-3.
In an Order and Report-Recommendation dated March 3, 2015, Magistrate Judge Andrew
T. Baxter granted Plaintiff's in forma pauperis ("IFP") application. Dkt. No. 4 at 1. Magistrate
Judge Baxter also directed the Clerk of the Court to substitute Onondaga County as a defendant in

place of the Onondaga County Sheriff's Department. See id. at 6-7. Additionally, Magistrate
Judge Baxter recommended that Plaintiff's complaint be dismissed as against the East Syracuse
Police Department. Id. at 4-6. Plaintiff has not objected to the Order and ReportRecommendation.
In reviewing a report and recommendation, a district court "may accept, reject, or modify,
in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. §
636(b)(1)(C). When a party makes specific objections to a magistrate judge's report, the district
court engages in de novo review of the issues raised in the objections. See Farid v. Bouey, 554 F.
Supp. 2d 301, 307 (N.D.N.Y. 2008) (citation omitted). When a party fails to make specific
objections, the court reviews the magistrate judge's report for clear error. See id. at 306; see also
Gamble v. Barnhart, No. 02CV1126, 2004 WL 2725126, *1 (S.D.N.Y. Nov. 29, 2004) (citations
omitted). Failure to object timely to any portion of a magistrate judge's report operates as a
waiver of further judicial review of those matters. See Roldan v. Racette, 984 F.2d 85, 89 (2d Cir.
1993) (quoting Small v. Sec'y of Health & Human Servs., 892 F.2d 15, 16 (2d Cir. 1989)).
When a plaintiff seeks to proceed IFP, "the court shall dismiss the case at any time if the
court determines that . . . the action or appeal (i) is frivolous or malicious; (ii) fails to state a claim
on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune
from such relief." 28 U.S.C. § 1915(e)(2)(B). In making this determination, "the court has the
duty to show liberality towards pro se litigants," however, "there is a responsibility on the court to
determine that a claim has some arguable basis in law before permitting a plaintiff to proceed
with an action in forma pauperis." Moreman v. Douglas, 848 F. Supp. 332, 333-34 (N.D.N.Y.
1994) (internal citations omitted). "[I]n a pro se case, the court must view the submissions by a
more lenient standard than that accorded to 'formal pleadings drafted by lawyers.'" Govan v.
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Campbell, 289 F. Supp. 2d 289, 295 (N.D.N.Y. 2003) (quoting Haines v. Kerner, 404 U.S. 519,
520 (1972)) (other citations omitted).
Applying the above standards, Magistrate Judge Baxter liberally construed Plaintiff's
complaint as stating claims against the defendant municipalities on the theory of municipality
liability set forth by the Supreme Court in Monell v. Department of Social Services, 436 U.S. 658
(1978), in addition to the individual defendants. Furthermore, Magistrate Judge Baxter correctly
determined that the East Syracuse Police Department, an administrative arm of Defendant Village
of East Syracuse, is not subject to suit separate from the municipality itself. The Court therefore
finds that Magistrate Judge Baxter correctly determined that Plaintiff's complaint should be
dismissed solely as to the East Syracuse Police Department.
After carefully reviewing Magistrate Judge Baxter's Report-Recommendation, Plaintiff's
submissions and the applicable law, and for the reasons stated herein, the Court hereby
ORDERS that Magistrate Judge Baxter's Order and Report-Recommendation (Dkt. No. 4)
is ADOPTED in its entirety for the reasons stated therein; and the Court further
ORDERS that Plaintiff's complaint (Dkt. No. 1) is DISMISSED as against the East
Syracuse Police Department only; and the Court further
ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision
and Order on all parties in accordance with the Local Rules.
IT IS SO ORDERED.
Dated: April 2, 2015
Albany, New York

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