Berfet v. New York

Filing 7

ORDER TO AMEND: The Clerk of Court is directed to mail a copy of this order to Plaintiff and note service on the docket. Plaintiff is granted leave to file an amended complaint that complies with the standards set forth above. Plaintiff must submit the amended complaint to this Court's Pro Se Intake Unit within sixty days of the date of this order, caption the document as an "Amended Complaint," and label the document with docket number 21-CV-0160 (LLS). An Amended Civil Rights Complaint form is attached to this order. No summons will issue at this time. If Plaintiff fails to comply within the time allowed, and he cannot show good cause to excuse such failure, the complaint will be dismissed for failure to state a claim upon which relief may be granted. (Signed by Judge Louis L. Stanton on 2/16/2021) (sac) Transmission to Docket Assistant Clerk for processing.

Case 1:21-cv-00160-LLS Document 7 Filed 02/16/21 Page 1 of 13

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
TERREL BERFET,
Plaintiff,
21-CV-0160 (LLS)
-againstORDER TO AMEND
NEW YORK,
Defendant.
LOUIS L. STANTON, United States District Judge:
Plaintiff, appearing pro se, brings this action invoking the Court’s federal question
jurisdiction. By order dated February 16, 2021, the Court granted Plaintiff’s request to proceed
without prepayment of fees, that is, in forma pauperis. For the reasons set forth below, the Court
grants Plaintiff leave to file an amended complaint within sixty days of the date of this order.
STANDARD OF REVIEW
The Court must dismiss an in forma pauperis complaint, or any portion of the complaint,
that is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks
monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B);
see Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998). The Court must
also dismiss a complaint when the Court lacks subject matter jurisdiction. See Fed. R. Civ. P.
12(h)(3).
While the law mandates dismissal on any of these grounds, the Court is obliged to
construe pro se pleadings liberally, Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), and interpret
them to raise the “strongest [claims] that they suggest,” Triestman v. Fed. Bureau of Prisons, 470
F.3d 471, 474 (2d Cir. 2006) (internal quotation marks and citations omitted) (emphasis in
original). But the “special solicitude” in pro se cases, id. at 475 (citation omitted), has its limits –

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to state a claim, pro se pleadings still must comply with Rule 8 of the Federal Rules of Civil
Procedure, which requires a complaint to make a short and plain statement showing that the
pleader is entitled to relief.
BACKGROUND
Plaintiff Terrell Berfet makes the following allegations in his complaint, without any
further details:
People such as police and other city offic[ia]ls [are] threatening to put a bullet in
my head and saying foul things and loved ones that pass. I know I can su[e]
because what the[y’]re doing is a treatie [sic] threat 5 years prison sentence.
(ECF 2 at 5.)
Plaintiff contends that his claim arose in New York on January 6, 2021. (Id.) Although
Plaintiff names only the State of New York in the caption of his complaint, he also lists “police”
as a defendant within the body of the complaint. He seeks $2.6 million in damages, alleging that
“this is something that’s [an] ongoing event.” (Id. at 6.)
DISCUSSION
Under Rule 8 of the Federal Rules of Civil Procedure, a complaint must include enough
facts to state a claim for relief “that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007). A claim is facially plausible if the plaintiff pleads enough factual detail to allow
the Court to draw the inference that the defendant is liable for the alleged misconduct. In
reviewing the complaint, the Court must accept all well-pleaded factual allegations as true.
Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). But it does not have to accept as true
“[t]hreadbare recitals of the elements of a cause of action,” which are essentially just legal
conclusions. Twombly, 550 U.S. at 555. After separating legal conclusions from well-pleaded
factual allegations, the Court must determine whether those facts make it plausible – not merely
possible – that the pleader is entitled to relief. Id.
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Plaintiff’s complaint fails to include any facts about what occurred. Plaintiff alleges, for
example, that his claims arose on January 6, 2021, but he fails to plead any facts about what
happened on that date, who was involved in the events giving rise to his claims, or where it took
place. The complaint therefore fails to state a claim on which relief can be granted.
Moreover, Plaintiff has not named a proper defendant. It appears that Plaintiff seeks to
asserts claims for violations of his civil rights, and the Court therefore construes his claims as
arising under 42 U.S.C. § 1983. Plaintiff names the State of New York as the sole defendant in
the caption of his complaint. But “as a general rule, state governments may not be sued in federal
court unless they have waived their Eleventh Amendment immunity, or unless Congress has
abrogated the states’ Eleventh Amendment immunity . . . .” Gollomp v. Spitzer, 568 F.3d 355,
366 (2d Cir. 2009). New York has not waived its Eleventh Amendment immunity to suit in
federal court, and Congress did not abrogate the states’ immunity in enacting 42 U.S.C. § 1983.
See Trotman v. Palisades Interstate Park Comm’n, 557 F.2d 35, 40 (2d Cir. 1977). Plaintiff’s
§ 1983 claims against the State of New York are therefore barred by the Eleventh Amendment
and must be dismissed for that reason.
The New York City Police Department (NYPD), which Plaintiff mentions in the body of
this complaint, is also not a proper defendant. Agencies of the City of New York cannot be sued
in the name of the agency. N.Y. City Charter ch. 17, § 396 (“[A]ll actions and proceedings for the
recovery of penalties for the violation of any law shall be brought in the name of the city of New
York and not in that of any agency, except where otherwise provided by law.”); Jenkins v. City of
New York, 478 F.3d 76, 93 n.19 (2d Cir. 2007); see also Emerson v. City of New York, 740 F.
Supp. 2d 385, 396 (S.D.N.Y. 2010) (“[A] plaintiff is generally prohibited from suing a municipal

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agency.”). Any claims that Plaintiff seeks to assert against the NYPD must therefore be brought
against the City of New York.
In order to state a claim against the City of New York, however, a plaintiff must show that
the municipality itself caused the violation of the plaintiff’s rights. See Connick v. Thompson,
131 S. Ct. 1350, 1359 (2011); Cash v. Cnty. of Erie, 654 F.3d 324, 333 (2d Cir. 2011). In other
words, to state a § 1983 claim against a municipality, the plaintiff must allege facts showing
(1) the existence of a municipal policy, custom, or practice, and (2) that the policy, custom, or
practice caused the violation of the plaintiff’s constitutional rights. See Jones v. Town of East
Haven, 691 F.3d 72, 80 (2d Cir. 2012); Bd. of Cnty. Comm’rs of Bryan Cnty. v. Brown, 520 U.S.
397, 403 (1997) (internal citations omitted). If Plaintiff chooses to file an amended complaint
and names the City of New York as a defendant, he must plead facts showing how some policy,
custom, or practice of the City of New York caused a violation of his rights.
LEAVE TO AMEND
Plaintiff is granted leave to amend his complaint to detail his claims. First, Plaintiff must
name as the defendant(s) in the caption and in the statement of claim those individuals who were
allegedly involved in the deprivation of his federal rights.
If Plaintiff does not know the name of a defendant, he may refer to that individual as
“John Doe” or “Jane Doe” in both the caption and the body of the amended complaint. 1 The
naming of John Doe defendants, however, does not toll the three-year statute of limitations
period governing this action and Plaintiff shall be responsible for ascertaining the true identity of
any “John Doe” defendants and amending his complaint to include the identity of any “John

1

For example, a defendant may be identified as: “Correction Officer John Doe #1 on
duty August 31, 2010, at Sullivan Correctional Facility, during the 7-3 p.m. shift.”

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Doe” defendants before the statute of limitations period expires. Should Plaintiff seek to add a
new claim or party after the statute of limitations period has expired, he must meet the
requirements of Rule 15(c) of the Federal Rules of Civil Procedure.
In the statement of claim, Plaintiff must provide a short and plain statement of the
relevant facts supporting each claim against each defendant named in the amended complaint.
Plaintiff is also directed to provide the addresses for any named defendants. To the greatest
extent possible, Plaintiff’s amended complaint must:
a) give the names and titles of all relevant persons;
b) describe all relevant events, stating the facts that support Plaintiff’s case including
what each defendant did or failed to do;
c) give the dates and times of each relevant event or, if not known, the approximate date
and time of each relevant event;
d) give the location where each relevant event occurred;
e) describe how each defendant’s acts or omissions violated Plaintiff’s rights and
describe the injuries Plaintiff suffered; and
f) state what relief Plaintiff seeks from the Court, such as money damages, injunctive
relief, or declaratory relief.
Essentially, the body of Plaintiff’s amended complaint must tell the Court: who violated
his federally protected rights; what facts show that his federally protected rights were violated;
when such violation occurred; where such violation occurred; and why Plaintiff is entitled to
relief. Because Plaintiff’s amended complaint will completely replace, not supplement, the
original complaint, any facts or claims that Plaintiff wishes to maintain must be included in the
amended complaint.
CONCLUSION
The Clerk of Court is directed to mail a copy of this order to Plaintiff and note service on
the docket. Plaintiff is granted leave to file an amended complaint that complies with the

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standards set forth above. Plaintiff must submit the amended complaint to this Court’s Pro Se
Intake Unit within sixty days of the date of this order, caption the document as an “Amended
Complaint,” and label the document with docket number 21-CV-0160 (LLS). An Amended Civil
Rights Complaint form is attached to this order. No summons will issue at this time. If Plaintiff
fails to comply within the time allowed, and he cannot show good cause to excuse such failure,
the complaint will be dismissed for failure to state a claim upon which relief may be granted.
SO ORDERED.
Dated:

February 16, 2021
New York, New York
Louis L. Stanton
U.S.D.J.

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U NITED S TATES D ISTRICT C OURT
S OUTHERN D ISTRICT OF N EW Y ORK

_____CV_______________
(Include case number if one has been
assigned)

Write the full name of each plaintiff.

AMENDED

-against-

COMPLAINT
Do you want a jury trial?
☐ Yes ☐ No

Write the full name of each defendant. If you need more
space, please write “see attached” in the space above and
attach an additional sheet of paper with the full list of
names. The names listed above must be identical to those
contained in Section II.

NOTICE
The public can access electronic court files. For privacy and security reasons, papers filed
with the court should therefore not contain: an individual’s full social security number or full
birth date; the full name of a person known to be a minor; or a complete financial account
number. A filing may include only: the last four digits of a social security number; the year of
an individual’s birth; a minor’s initials; and the last four digits of a financial account number.
See Federal Rule of Civil Procedure 5.2.

Rev. 2/10/17

Case 1:21-cv-00160-LLS Document 7 Filed 02/16/21 Page 8 of 13

I.

BASIS FOR JURISDICTION

Federal courts are courts of limited jurisdiction (limited power). Generally, only two types of
cases can be heard in federal court: cases involving a federal question and cases involving
diversity of citizenship of the parties. Under 28 U.S.C. § 1331, a case arising under the United
States Constitution or federal laws or treaties is a federal question case. Under 28 U.S.C. § 1332,
a case in which a citizen of one State sues a citizen of another State or nation, and the amount
in controversy is more than $75,000, is a diversity case. In a diversity case, no defendant may
be a citizen of the same State as any plaintiff.
What is the basis for federal-court jurisdiction in your case?
☐ Federal Question
☐ Diversity of Citizenship
A. If you checked Federal Question
Which of your federal constitutional or federal statutory rights have been violated?

B. If you checked Diversity of Citizenship
1. Citizenship of the parties
Of what State is each party a citizen?
The plaintiff ,

, is a citizen of the State of
(Plaintiff’s name)

(State in which the person resides and intends to remain.)
or, if not lawfully admitted for permanent residence in the United States, a citizen or
subject of the foreign state of
.
If more than one plaintiff is named in the complaint, attach additional pages providing
information for each additional plaintiff.

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If the defendant is an individual:
The defendant,

, is a citizen of the State of
(Defendant’s name)

or, if not lawfully admitted for permanent residence in the United States, a citizen or
subject of the foreign state of
.

If the defendant is a corporation:
The defendant,

, is incorporated under the laws of

the State of
and has its principal place of business in the State of
or is incorporated under the laws of (foreign state)
and has its principal place of business in

.

If more than one defendant is named in the complaint, attach additional pages providing
information for each additional defendant.

II. PARTIES
A. Plaintiff Information
Provide the following information for each plaintiff named in the complaint. Attach additional
pages if needed.

First Name

Middle Initial

Last Name

Street Address

County, City

State

Telephone Number

Zip Code

Email Address (if available)

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Case 1:21-cv-00160-LLS Document 7 Filed 02/16/21 Page 10 of 13

B. Defendant Information
To the best of your ability, provide addresses where each defendant may be served. If the
correct information is not provided, it could delay or prevent service of the complaint on the
defendant. Make sure that the defendants listed below are the same as those listed in the
caption. Attach additional pages if needed.
Defendant 1:

First Name

Last Name

Current Job Title (or other identifying information)
Current Work Address (or other address where defendant may be served)
County, City

State

Zip Code

Defendant 2:

First Name

Last Name

Current Job Title (or other identifying information)
Current Work Address (or other address where defendant may be served)
County, City

State

Zip Code

Defendant 3:
First Name

Last Name

Current Job Title (or other identifying information)
Current Work Address (or other address where defendant may be served)
County, City

State

Zip Code

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Defendant 4:
First Name

Last Name

Current Job Title (or other identifying information)
Current Work Address (or other address where defendant may be served)
County, City

State

Zip Code

III. STATEMENT OF CLAIM
Place(s) of occurrence:

Date(s) of occurrence:

FACTS:

State here briefly the FACTS that support your case. Describe what happened, how you were
harmed, and what each defendant personally did or failed to do that harmed you. Attach
additional pages if needed.

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INJURIES:

If you were injured as a result of these actions, describe your injuries and what medical
treatment, if any, you required and received.

IV. RELIEF
State briefly what money damages or other relief you want the court to order.

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Case 1:21-cv-00160-LLS Document 7 Filed 02/16/21 Page 13 of 13

V. PLAINTIFF’S CERTIFICATION AND WARNINGS
By signing below, I certify to the best of my knowledge, information, and belief that: (1) the
complaint is not being presented for an improper purpose (such as to harass, cause
unnecessary delay, or needlessly increase the cost of litigation); (2) the claims are supported
by existing law or by a nonfrivolous argument to change existing law; (3) the factual
contentions have evidentiary support or, if specifically so identified, will likely have
evidentiary support after a reasonable opportunity for further investigation or discovery;
and (4) the complaint otherwise complies with the requirements of Federal Rule of Civil
Procedure 11.
I agree to notify the Clerk's Office in writing of any changes to my mailing address. I
understand that my failure to keep a current address on file with the Clerk's Office may
result in the dismissal of my case.
Each Plaintiff must sign and date the complaint. Attach additional pages if necessary. If seeking to
proceed without prepayment of fees, each plaintiff must also submit an IFP application.

Dated

Plaintiff’s Signature

First Name

Middle Initial

Last Name

Street Address
County, City
Telephone Number

State

Zip Code
Email Address (if available)

I have read the Pro Se (Nonprisoner) Consent to Receive Documents Electronically:
☐ Yes

☐ No

If you do consent to receive documents electronically, submit the completed form with your
complaint. If you do not consent, please do not attach the form.

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