Hicks v. Ervin, et al
ORDER OF DISMISSAL: The Court dismisses this action. The Court dismisses Plaintiff's claims under 42 U.S.C. § 1983 for failure to state a claim on which relief may be granted. See 28 U.S.C. §1915(e)(2)(B)(ii). The Court, however, gr ants Plaintiff 60 days' leave to replead his claims under Section 1983 in an amended complaint. If Plaintiff fails to file an amended complaint in the time allowed, or fails to show cause why the Court should excuse such failure, the Court wi ll enter judgment dismissing this action; the Court will dismiss Plaintiff's claims under federal law for the reasons set forth in this order, see id., and will decline to consider, under its supplement jurisdiction, Plaintiffs claims under stat e law, see 28 U.S.C. § 1367(c)(3). The Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith, and therefore IFP status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).SO ORDERED. (Signed by Judge Laura Taylor Swain on 5/22/23) (rdz)
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
DARNELL R. HICKS,
-againstBEN ERVIN; JAMES KASTANIS; JOHN DOE;
ORDER OF DISMISSAL
LAURA TAYLOR SWAIN, Chief United States District Judge:
Plaintiff Darnell R. Hicks, of Peekskill, New York, who is appearing pro se, filed this
action invoking the court’s federal question jurisdiction. He sues Ben Ervin, James Kastanis, and
two unidentified “John Doe” defendants, all of whom appear to be members of the Village of
Ossining Police Department. Plaintiff asserts that the defendants have violated his federal
constitutional or statutory rights, including his“[r]ight to due process[,] [f]reedom [f]rom self
incrimination and double [j]eopardy/other rights of the people.” (ECF 2, at 2.) Plaintiff asks for
the following relief: “[T]hese officers should not be working in this field to lie on statement and
not put the truth shows that the cover up in that town is real [sic].” (Id. at 6.) The Court construes
Plaintiff’s complaint as asserting claims under 42 U.S.C. § 1983 and under state law.
By order dated March 3, 2023, the Court granted Plaintiff’s request to proceed in forma
pauperis (“IFP”), that is, without prepayment of fees. For the reasons discussed below, the Court
dismisses this action, but grants Plaintiff 60 days’ leave to replead his claims in an amended
STANDARD OF REVIEW
The Court must dismiss an IFP 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
Case 1:23-cv-01840-LTS Document 5 Filed 05/22/23 Page 2 of 6
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 of the claims raised. 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 –
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.
Rule 8 requires a complaint to 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. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In
reviewing the complaint, the Court must accept all well-pleaded factual allegations as true. Id.
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. Id. (citing 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. at 679.
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Plaintiff alleges the following: Plaintiff has “a full video of [his] being called [the] N
word by [a building’s] management and still [a police] report [that he filed] does not state
anything that th[o]se racist people did.” (ECF 2, at 5.) On April 8, 2021, at the building located
at 35 Snowden Avenue, in Ossining, New York, he showed the defendants, who appear to be
members of the Village of Ossining Police Department, “the full video of [his] . . . recording and
they still did not put anything in [the police report] that was true.” (Id.) Plaintiff “use[d] [his]
camera for [his own] protection because [he] know[s] [that the defendants] don’t like [him].”
(Id.) He showed them proof that he did not live in the building, but they “still . . . wrote a false
statement.” (Id.) The defendants and/or the Chief of the Village of Ossining Police Department
apparently did not include in the report that members of the building’s management had called
Plaintiff a racial slur. “The reason why [Plaintiff] recorded [his encounter with members of the
building’s management] is because . . . the [maintenance] man was running around tell[ing]
everyone he had a gun and it scared people.” (Id.)
Failure to investigate and protect
Plaintiff asserts that his federal constitutional or statutory rights that have been violated
include his“[r]ight to due process[,] [f]reedom [f]rom self incrimination and double
[j]eopardy/other rights of the people.” (ECF 2, at 2.) Plaintiff, who does not allege that he has
been arrested or has been taken into custody, however, does not provide any facts showing that
he has been denied procedural or substantive due process, or that his rights against selfincrimination or double jeopardy or, for that matter, any of his other federal constitutional rights,
have been violated.
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Instead, the Court understands Plaintiff’s complaint as asserting claims, under 42 U.S.C.
§ 1983, that the defendants, all seemingly police officers, violated his federal constitutional
rights when they failed to investigate his allegations or protect him from harm. The Court must,
however, dismiss those claims because government officials, including police officers, generally
have no federal constitutional duty to investigate or protect an individual from harm. See Town of
Castle Rock, Colo. v. Gonzales, 545 U.S. 748, 755-56 (2005); DeShaney v. Winnebago Cnty.
Dep’t of Soc. Servs., 489 U.S. 189, 195-96 (1989); Gagliardi v. Vill. of Pawling, 18 F.3d 188, 192
(2d Cir. 1994); see also Baltas v. Jones, 3:21-CV-0469, 2021 WL 6125643, at *14 (D. Conn.
Dec. 27, 2021) (The plaintiff “has no ‘constitutional right to an investigation of any kind by
government officials.’”) (citation omitted); Buari v. City of New York, 530 F. Supp. 3d 356, 389
(S.D.N.Y. 2021) (“[T]here is no constitutional right to an adequate investigation. . . .
Accordingly, a failure to investigate is not independently cognizable as a stand-alone claim under
Section 1983.”) (internal quotation marks and citation omitted).
There are two recognized exceptions to this general rule: (1) “when the State takes a
person into its custody and holds him there against his will, the Constitution imposes upon it a
corresponding duty to assume some responsibility for his safety and general well-being,”
DeShaney, 489 U.S. at 199-200; and (2) when government officials affirmatively create or
increase a danger to the plaintiff, see, e.g., Matican v. City of New York, 524 F.3d 151, 155 (2d
Cir. 2008). In this context, the plaintiff must also show that a government official’s “behavior
was ‘so egregious, so outrageous, that it may fairly be said to shock the contemporary
conscience.’” Id. (citation omitted).
To the extent that Plaintiff asserts that the defendants failed to protect him or investigate
harm that had come to him, he does not allege any facts suggesting that either of these two
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exceptions is applicable here. The Court therefore dismisses Plaintiff’s claims under Section
1983 for failure to state a claim on which relief may granted. See 28 U.S.C. § 1915(e)(2)(B)(ii).
The Court, however, grants Plaintiff leave to replead these claims in an amended complaint in
which he allege facts sufficient to state a claim under Section 1983.
Leave to amend
Plaintiff proceeds in this matter without the benefit of an attorney. District courts
generally should grant a self-represented plaintiff an opportunity to amend a complaint to cure its
defects, unless amendment would be futile. See Hill v. Curcione, 657 F.3d 116, 123-24 (2d Cir.
2011); Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988). Indeed, the United States Court for
Appeals for the Second Circuit has cautioned that district courts “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.” Cuoco v. Moritsugu, 222 F.3d 99, 112
(2d Cir. 2000) (quoting Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999)).
Because Plaintiff may be able to allege additional facts to state a valid claim under Section 1983,
the Court grants Plaintiff 60 days’ leave to replead his claims in an amended complaint.
The Court dismisses this action. The Court dismisses Plaintiff’s claims under 42 U.S.C.
§ 1983 for failure to state a claim on which relief may be granted. See 28 U.S.C.
§1915(e)(2)(B)(ii). The Court, however, grants Plaintiff 60 days’ leave to replead his claims
under Section 1983 in an amended complaint. If Plaintiff fails to file an amended complaint in
the time allowed, or fails to show cause why the Court should excuse such failure, the Court will
enter judgment dismissing this action; the Court will dismiss Plaintiff’s claims under federal law
for the reasons set forth in this order, see id., and will decline to consider, under its supplement
jurisdiction, Plaintiff’s claims under state law, see 28 U.S.C. § 1367(c)(3).
Case 1:23-cv-01840-LTS Document 5 Filed 05/22/23 Page 6 of 6
The Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this order would
not be taken in good faith, and therefore IFP status is denied for the purpose of an appeal. See
Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
May 22, 2023
New York, New York
/s/ Laura Taylor Swain
LAURA TAYLOR SWAIN
Chief United States District Judge
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