Lawson v. Cesari et al

Filing 4

ORDER & REPORT RECOMMENDATION: It is Ordered that the # 2 Motion for Leave to Proceed in forma pauperis filed by Brodice Lawson, Sr., is GRANTED. The Clerk is directed to provide a copy of Fermin v. Moriarty to plaintiff. Further it is Recommended that the # 1 Complaint filed by Brodice Lawson, Sr., be DISMISSED against defendants Cesari and Meitz WITHOUT leave to amend, and DISMISSED against defendant Utica Police Department WITH leave to amend within 30 days of any Order adopting this Repo rt and Recommendation. (Objections to R&R due by 12/9/2013, Case Review Deadline 12/11/2013) Signed by Magistrate Judge Therese Wiley Dancks on 11/20/2013. (Attachments: # 1 Caselaw - Fermin v. Moriarty) {Copy sent to pro se plaintiff by regular mail} (jmb)

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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK _____________________________________________ BRODICE LAWSON, SR., Plaintiff, 6:13-CV-1420 (TJM/TWD) v. LIZ CESARI, SARA MEITZ, UTICA POLICE DEPARTMENT, Defendants. _____________________________________________ APPEARANCES: OF COUNSEL: BRODICE LAWSON, SR. Plaintiff pro se 1431 Genesee Street #312B Utica, New York 13501 THÉRÈSE WILEY DANCKS, United States Magistrate Judge ORDER and REPORT-RECOMMENDATION The Clerk has sent this pro se complaint together with an application to proceed in forma pauperis to the Court for review. (Dkt. Nos. 1 and 2.) For the reasons discussed below, I grant Plaintiff’s in forma pauperis application (Dkt. No. 2) and recommend that (1) the Court dismiss the claims against Defendants Liz Cesari and Sara Meitz without leave to amend; and (2) the Court dismiss the claim against the Utica Police Department with leave to amend. I. ALLEGATIONS OF THE COMPLAINT Plaintiff alleges that at midnight on January 11 he was looking at a black Cadillac at a dealership on Rutger Street in Utica. (Dkt. No. 1 at 3.) A Utica Police Department officer 1 The complaint does not specify the year. grabbed Plaintiff from behind, threw him against the officer’s car, and handcuffed Plaintiff’s left wrist. Id. The officer refused to answer when Plaintiff asked why he was being arrested. Id. at 3-4. The officer searched Plaintiff’s pockets and stated that he would shoot Plaintiff if Plaintiff moved. Id. at 4. The officer called for backup and two more officers arrived. Id. The officers continued to search Plaintiff until “the arresting officer came and said ‘look what I found’ [and] all of a sudden came up with [two packages] of some white substance in some kind of wrap.” Id. Plaintiff alleges that Defendant Liz Cesari, a public defender, was appointed to represent him. Id. at 2. Plaintiff alleges that Defendant Cesari “disregarded me and only wanted me to plead out,” failed to speak in court in Plaintiff’s defense, and told Plaintiff that she did not have a choice about whether to represent him or not. Id. Plaintiff alleges that Defendant Sara Meitz, also a public defender, took over the case from Defendant Cesari and “never defended me [] [e]specially during trial.” Id. Plaintiff alleges that in the course of his ensuing criminal trial the officers lied about the details of the arrest and about what they discovered while searching Plaintiff. Id. at 5. Plaintiff alleges that he lost his case as a result of the “malpractice” of Defendants Cesari and Meitz. Id. at 2-3. Plaintiff was sentenced to sixty days in jail. Id. at 5. Plaintiff alleges that during the seventy-five days he served in jail before trial he was placed in a cell naked for two weeks. Id. at 5. Plaintiff alleges that he hurt his toe and the whole toenail came off, causing pain and suffering. Id. Plaintiff filed the complaint in this action on November 14, 2013. (Dkt. No. 1.) Plaintiff names Liz Cesari, Sara Meitz, and the Utica Police Department as defendants. (Dkt. No. 1 at 67.) Plaintiff requests compensation for the fifteen days he spent in jail over and above the sixty days to which he was sentenced. Id. at 5-6. Plaintiff further requests the return of the money that 2 was on his person when he was arrested and compensatory damages for his pain and suffering. Id. at 9. II. PLAINTIFF’S APPLICATION TO PROCEED IN FORMA PAUPERIS Plaintiff has applied to proceed in forma pauperis. (Dkt. No. 2.) A court may grant in forma pauperis status if a party “is unable to pay” the standard fee for commencing an action. 28 U.S.C. § 1915(a)(1) (2006). After reviewing Plaintiff’s in forma pauperis application (Dkt. No. 2), I find that Plaintiff meets this standard. Therefore, Plaintiff’s application to proceed in forma pauperis is granted.2 III. LEGAL STANDARD FOR INITIAL REVIEW OF COMPLAINT 28 U.S.C. § 1915(e) (2006) directs that when a person proceeds in forma pauperis, “the court shall dismiss the case at any time if the court determines that . . . the action . . . (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) (2006). In order to state a claim upon which relief can be granted, a complaint must contain, inter alia, “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The requirement that a plaintiff “show” that he or she is entitled to relief means that a complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)) (emphasis added). “Determining whether a 2 Plaintiff should note that although the application to proceed in forma pauperis has been granted, Plaintiff will still be required to pay fees that he may incur in this action, including copying and/or witness fees. 3 complaint states a plausible claim for relief . . . requires the . . . court to draw on its judicial experience and common sense. . . . [W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged -- but it has not shown -- that the pleader is entitled to relief.” Id. at 679 (internal citation and punctuation omitted). “In reviewing a complaint . . . the court must accept the material facts alleged in the complaint as true and construe all reasonable inferences in the plaintiff’s favor.” Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994) (citation omitted). Courts are “obligated to construe a pro se complaint liberally.” Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009). However, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. When screening a complaint, the court has the duty to show liberality towards pro se litigants. Nance v. Kelly, 912 F.2d 605, 606 (2d Cir. 1990) (per curiam). “[E]xtreme caution should be exercised in ordering sua sponte dismissal of a pro se complaint before the adverse party has been served and [the] parties have had an opportunity to respond.” Anderson v. Coughlin, 700 F.2d 37, 41 (2d Cir. 1983). IV. ANALYSIS A. Claims Against Defendants Cesari and Meitz Plaintiff asserts claims against Defendants Cesari and Meitz, his criminal defense attorneys, under 42 U.S.C. § 1983 (2012). (Dkt. No. 1 at 1-3.) Section 1983 permits a person to recover damages for the deprivation of constitutional rights “under color of any statute, 4 ordinance, regulation, custom, or usage of any State or Territory.” 42 U.S.C. § 1983 (2012). It is well established that criminal defense attorneys, whether private or court-appointed, are not state actors for the purposes of § 1983. See Housand v. Heiman, 594 F.2d 923 (2d Cir. 1979); Rodriguez v. Weprin, 116 F.3d 62 (2d Cir. 1997); Fermin v. Moriarty, No. 96 Civ. 3022 (MBM), 2003 U.S. Dist. LEXIS 13367, 2003 WL 21787351 (S.D.N.Y. Aug. 4, 2003).3 Because of this lack of state action, Plaintiff’s claims against his criminal defense attorneys are not cognizable under § 1983. Therefore, I recommend that the Court dismiss these claims. Where a pro se complaint fails to state a cause of action, the court generally “should not dismiss 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.” Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (internal quotation and citation omitted). However, an opportunity to amend is not required where “the problem with [the plaintiff’s] causes of action is substantive” such that “better pleading will not cure it.” Id. (citation omitted). Here, the problem with Plaintiff’s claims against his criminal defense attorneys is substantive and could not be cured with better pleading. Therefore, I recommend that the Court dismiss the claims without leave to amend. B. Claim Against the Utica Police Department Plaintiff names the Utica Police Department as a defendant in this action. (Dkt. No. 1 at 7.) In order “to hold a [municipality] liable under § 1983 for the unconstitutional actions of its employees, a plaintiff is required to . . . prove three elements: (1) an official policy or custom that 3 The Court will provide Plaintiff with a copy of this unpublished decision in accordance with the Second Circuit’s decision in Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam). 5 (2) causes the plaintiff to be subjected to (3) a denial of a constitutional right.” Batista v. Rodriguez, 702 F.2d 393, 397 (2d Cir. 1983). An “official policy or custom” can be shown in several ways: (1) a formal policy officially endorsed by the municipality; (2) actions taken by government officials responsible for establishing municipal policies related to the particular deprivation in question; (3) a practice so consistent and widespread that it constitutes a custom or usage sufficient to impute constructive knowledge of the practice to policymaking officials; or (4) a failure by policymakers to train or supervise subordinates to such an extent that it amounts to deliberate indifference to the rights of those who come in contact with the municipal employees. Dorsett-Felicelli, Inc. v. Cnty. of Clinton, 371 F. Supp. 2d 183, 194 (N.D.N.Y. 2005) (citing Monell v. Dep’t of Soc. Servs., 436 U.S 658, 690-91 (1978), Pembaur v. City of Cincinnati, 475 U.S. 469, 483-84 (1986), and City of Canton v. Harris, 489 U.S. 378, 388 (1989)). Here, the complaint does not allege any facts plausibly suggesting an official policy or custom that caused Plaintiff to be subjected to the denial of his constitutional rights. Therefore, I recommend that the Court dismiss the claim against the Utica Police Department with leave to amend. WHEREFORE, it is hereby ORDERED that the application to proceed in forma pauperis (Dkt. No. 2) is GRANTED; and it is further ORDERED that the Clerk provide Plaintiff with a copy of Fermin v. Moriarty, No. 96 Civ. 3022 (MBM), 2003 U.S. Dist. LEXIS 13367, 2003 WL 21787351 (S.D.N.Y. Aug. 4, 2003); and it is further RECOMMENDED that the claims against Defendants Cesari and Meitz be dismissed 6 without leave to amend; and it is further RECOMMENDED that the Court dismiss the claim against Defendant Utica Police Department with leave to amend within thirty days of any Order adopting this ReportRecommendation; and it is further ORDERED that the Clerk serve a copy of this Order and Report-Recommendation on Plaintiff. Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Sec’y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1) (Supp. 2013); Fed. R. Civ. P. 72, 6(a). Dated: November 20, 2013 Syracuse, New York 7

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