Okongwu v. County of Erie et al

Filing 12

DECISION AND ORDER DENYING Plaintiff's 10 11 Motions for a Summons; DIRECTING the Clerk of Court to terminate as Defendants the Erie County District Attorney's Office, the Erie County Sheriff's Office, the Erie County Department of Social Services, and the City of Buffalo Police Department as Defendants; DIRECTING the Clerk of Court to restrict access to the Complaint and Amended Complaint (Docket Nos. 1 and 6) to court users and the parties only; GRANTING Plaintiff leave t o file a second amended complaint only as directed by November 15, 2016; DIRECTING the dismissal of the Amended Complaint with prejudice if Plaintiff does not file a second amended complaint as directed and DIRECTING the Clerk of Court to then close this case as dismissed with prejudice without further order and denying leave to appeal as a poor person as specfied. Signed by William M. Skretny, United States District Judge on 9/7/2016. (MEAL) - CLERK TO FOLLOW UP - Copy mailed to Plaintiff.

PS

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
___________________________________
EMEKA DOMINIC OKONGWU,
Plaintiff,
-v-

14-CV-0832WMS
ORDER

COUNTY OF ERIE et al.,
Defendants.
___________________________________
Introduction
Plaintiff, Emeka Dominic Okongwu, proceeding pro se, seeks relief under 42
U.S.C. § 1983. Plaintiff has filed an Amended Complaint (Docket No. 6), which is now
the operative pleading, and has moved for the issuance of a Summons (Docket Nos. 10
& 11). Plaintiff alleges that he was wrongfully charged and convicted in Supreme Court,
Erie County, of sexually abusing his twin daughters and that as a result he was falsely
imprisoned for nearly nineteen years, as more particularly stated in his Amended
Complaint.

For the reasons discussed below, Plaintiff's claims will be dismissed

pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A unless he files a second amended
complaint as directed.
Discussion
Plaintiff was previously granted permission to proceed in forma pauperis.
(Docket No. 3). Section 1915(e)(2)(B) of 28 U.S.C. therefore requires the Court to
conduct an initial screening of this Amended Complaint. In evaluating the Amended
Complaint, the Court must accept as true all of the factual allegations and must draw all
inferences in Plaintiff’s favor. See Larkin v. Savage, 318 F.3d 138, 139 (2d Cir. 2003)

(per curiam); King v. Simpson, 189 F.3d 284, 287 (2d Cir. 1999). While “a court is
obliged to construe [pro se] pleadings liberally, particularly when they allege civil rights
violations,” McEachin v. McGuinnis, 357 F.3d 197, 200 (2d Cir. 2004), even pleadings
submitted pro se must meet the notice requirements of Rule 8 of the Federal Rules of
Civil Procedure. Wynder v. McMahon, 360 F.3d 73 (2d Cir. 2004). “Specific facts are
not necessary,” and the Plaintiff “need only ‘give the defendant fair notice of what the . .
. claim is and the grounds upon which it rests.’” Erickson v. Pardus, 551 U.S. 89, 93,
(2007) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal
quotation marks and citation omitted); see also Boykin v. Keycorp, 521 F.3d 202, 213
(2d Cir 2008) (discussing pleading standard in pro se cases after Twombly - “even after
Twombly, dismissal of a pro se claim as insufficiently pleaded is appropriate only in the
most unsustainable of cases.”). Generally, the Court will afford a pro se plaintiff an
opportunity to amend or to be heard prior to dismissal “unless the court can rule out any
possibility, however unlikely it might be, that an amended complaint would succeed in
stating a claim.” Abbas v. Dixon, 480 F.3d 636, 639 (quoting Gomez v. USAA Federal
Savings Bank, 171 F.3d 794, 796 (2d Cir. 1999) (per curiam)).
Plaintiff brings this action pursuant to 42 U.S.C. § 1983. “To state a valid claim
under 42 U.S.C. § 1983, the plaintiff must allege that the challenged conduct (1) was
attributable to a person acting under color of state law, and (2) deprived the plaintiff of a
right, privilege, or immunity secured by the Constitution or laws of the United States.”
Whalen v. County of Fulton, 126 F.3d 400, 405 (2d. Cir. 1997) (citing Eagleston v.
Guido, 41 F.3d 865, 875-76 (2d Cir.1994)). Based on its evaluation of the Amended

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Complaint, the Court finds that Plaintiff’s claims must be dismissed pursuant to 28
U.S.C. § 1915(e)(2)(B) unless he files a second amended complaint as directed below.
Plaintiff’s Allegations
Plaintiff states that in 1978, aged 28, he moved to the United States from Nigeria
on a student visa. He completed his studies and received his undergraduate degree in
either 1982 or 1983, and a Master of Business Administration in 1984. By 1983 Doris
Agbala had also moved to the United States. Plaintiff states that he and Ms. Agbala
had “formed a traditional Nigerian marriage” prior to her departure for America, but that
the union was not recognized under the laws of New York state. In 1984, the couple
had twin daughters, born prematurely. In 1986, Ms. Agbala returned to Nigeria due to ill
health, leaving Plaintiff with sole custody of the two girls. Plaintiff states that he relied
heavily on friends to care for the children.
In 1988, a complaint was lodged against Plaintiff in Family Court, alleging that he
had sexually abused the two children. Plaintiff states that he was cleared of these
accusations, but found “negligent” by Family Court. Presumably, Plaintiff refers to a
finding of Neglect, as he indicates that he “enjoyed regular visitations with his children
who remained under the custody and care of foster guardian[s]” until his arrest on
September 18, 1992 (Docket No. 6 p. 18). Plaintiff alleges that his daughters were
coerced into testifying that he sexually abused them, that they were promised a trip to
Disney World if they cooperated, and threatened with deportation to rural Nigeria if they
did not. On February 1, 1994, Plaintiff was convicted of 68 counts of sexual abuse and
related charges, and sentenced to an aggregate term of thirty-five and two thirds to onehundred and seven years in prison.

Plaintiff states that he was incarcerated for

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eighteen years, eleven months and twenty-seven days until finally released in
December of 2011.
Heck v Humphrey
Before Plaintiff may proceed with his claim, he must establish that the
prosecution ended favorably to him:
One element that must be alleged and proved in a malicious prosecution
action is termination of the prior criminal proceeding in favor of the
accused. This requirement avoids parallel litigation over the issues of
probable cause and guilt . . . and it precludes the possibility of the claimant
succeeding in the tort action after having been convicted in the underlying
criminal prosecution, in contravention of a strong judicial policy against the
creation of two conflicting resolutions arising out of the same or identical
transaction.
Heck v. Humphrey, 512 US 477, 484 (1994) (citations and quotation marks omitted).
Under Heck, “to recover damages for allegedly unconstitutional conviction or
imprisonment” a § 1983 plaintiff must “prove that the conviction or sentence has been
reversed on direct appeal, expunged by executive order, declared invalid by a state
tribunal authorized to make such determination, or called into question by a federal
court's issuance of a writ of habeas corpus.” Id. at 486–87. The Court infers, from
Plaintiff’s claim his imprisonment ended with his “judicially compelled release” (Docket
No. 6 p. 7), that his criminal conviction was overturned, but the Amended Complaint
makes no statement regarding the final outcome of the prosecution and therefore does
not meet that requirement. Plaintiff will be permitted to amend further to explicitly state
the final outcome of the prosecution against him in his amended complaint, and thereby
meet the requirements of Heck.

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Personal Involvement of Defendants
In the case of an individual defendant, a plaintiff must show that the defendant
was personally involved in a constitutional deprivation, Sealey v. Giltner, 116 F.3d 47,
51 (2d Cir. 1997), or that the defendant, employed in a position of control, failed to
remedy the alleged wrong after learning of it, or created a policy or custom under which
unconstitutional practices occurred, or was grossly negligent in managing subordinates,
Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994); see also Colon v. Coughlin, 58 F.3d
865, 873 (2d Cir. 1995).

Plaintiff has alleged personal involvement of Defendants

McNair, Henry, and Lazoritz, who Plaintiff claims are guilty of providing false testimony.
With the exception of these Defendants, Plaintiff’s allegations against all other individual
Defendants take the form of conclusory statements that, based upon information and
belief, Plaintiff believes that there was a conspiracy of all Defendants to procure his
conviction, motivated by inter alia, the desire to conduct scientific and medical
experiments on twins born prematurely, or to adversely impact Plaintiff’s employment
opportunities and ability to enter into contracts.
The Federal Rules of Civil Procedure provide that:
[a] pleading which sets forth a claim for relief . . . shall contain (1) a short
and plain statement of the grounds upon which the court’s jurisdiction
depends . . . , (2) a short and plain statement of the claim showing that the
pleader is entitled to relief, and (3) a demand for judgment for the relief the
pleader seeks.
Federal Rules of Civil Procedure 8(a).

The Amended Complaint submitted by the

Plaintiff does not comply with these rules. In this regard, the Court of Appeals for the
Second Circuit has said:
The function of pleadings under the Federal Rules is to give fair notice of
the claim asserted. Fair notice is that which will enable the adverse party
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to answer and prepare for trial, allow the application of res judicata, and
identify the nature of the case so it may be assigned the proper form of
trial.
Simmons v. Abruzzo, 49 F.3d 83, 86-87 (2d Cir. 1995) (citations omitted).
Therefore, as to each defendant, a complaint must provide the party with fair
notice of the allegations against that party.

General statements that all of the

Defendants collectively conspired to violate the Plaintiff’s constitutional rights do not
comply with the requirements of either Rule 8(a) or 28 U.S.C. § 1915(e)(2)(B).
Plaintiff’s claims are thus subject to dismissal. However, Plaintiff will be offered an
opportunity to file a second amended complaint in which the necessary allegations
regarding the personal involvement of Defendants are included. Davidson v. Flynn, 32
F.3d 27, 31 (2d Cir. 1994) (“Sparse pleadings by a pro se litigant unfamiliar with the
requirements of the legal system may be sufficient at least to permit the plaintiff to
amend his complaint to state a cause of action”); Fed. R. Civ. P. 15(a)(2) (“court should
freely give leave when justice so requires”). Plaintiff may amend further to set forth
allegations which would establish the personal involvement of Defendants in the
constitutional deprivation(s) attributed to each so that the Defendants may answer the
Complaint.
County of Erie and City of Buffalo
While Plaintiff has named the Erie County District Attorney’s Office, Erie County
Sheriff’s Office, and the Erie County Department of Social Services as Defendants to
this action, the real party in interest is Erie County.

The Court would ordinarily

substitute Erie County in place of these named Defendants.

St. John Rennalls v.

County of Westchester, 159 F.R.D. 418, 419 n. 1 (S.D.N.Y.1994) (substituting the real

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party in interest, the County of Westchester, for the originally named defendant,
Westchester County Jail).

However, Plaintiff has also named Erie County as a

Defendant. Therefore, the Court will terminate as Defendants the Erie County District
Attorney’s Office, the Erie County Sheriff’s Office, and the Erie County Department of
Social Services, and direct Plaintiff to address his claims against Erie County. Likewise,
Plaintiff has named both the City of Buffalo and the City of Buffalo Police Department as
Defendants. For the same reasons, the Court will terminate the City of Buffalo Police
Department as Defendant, and direct Plaintiff to address his claims against the City of
Buffalo.
Although municipalities are considered “persons” for purposes of 42 U.S.C. §
1983, local governments such as Erie County or the City of Buffalo may not be held
liable under § 1983 unless the challenged action was performed pursuant to a municipal
policy or custom. Monell v. New York City Dept. of Social Services, 436 U.S. 658, 694
(1978).

Municipalities are not subject to § 1983 liability solely on the basis of a

respondeat superior theory. Collins v. City of Harker Heights, 503 U.S. 115, 121 (1992);
Monell, 436 U.S. at 694. To hold a municipality liable in a § 1983 action, a plaintiff is
required to plead and prove three elements: (1) an official custom or policy that (2)
causes the plaintiff to be subjected to (3) a denial of a constitutional right. Zahra v.
Town of Southold, 48 F.3d 674, 685 (2d Cir. 1995) (citations and quotations omitted);
see Gottlieb v. County of Orange, 84 F.3d 511, 518 (2d Cir. 1996) (“In order to establish
the liability of a municipality in an action under § 1983 for unconstitutional acts by a
municipal employee below the policymaking level, a plaintiff must show that the violation
of his constitutional rights resulted from a municipal custom or policy.”).

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To plead a Monell claim, a plaintiff must allege the existence of a formal policy
which is officially endorsed by the municipality, or a practice so persistent and
widespread that it constitutes a custom or usage of which supervisory authorities must
have been aware, or that a municipal custom, policy, or usage can be inferred from
evidence of deliberate indifference of supervisory officials to such abuses. See, e.g.,
Jones v. Town of East Haven, 691 F.3d 72, 80–81 (2d Cir. 2012). Here, Plaintiff does
not contend that any of the alleged constitutional deprivations were caused by or
occurred pursuant to an official custom or policy of either the County of Erie or the City
of Buffalo, and thus Plaintiff has failed to state a § 1983 claim against these Defendants.
Plaintiff’s claims against Defendants County of Erie and the City of Buffalo are thus
subject to dismissal with prejudice. However, the Court will permit Plaintiff to file a
second amended complaint in which the necessary allegations regarding this issue are
included.
Claims Regarding Conduct During Plaintiff’s Imprisonment
Plaintiff names as Defendants the State of New York, and the New York State
Department of Corrections and Community Supervision.

The Eleventh Amendment

bars federal courts from exercising subject matter jurisdiction over claims against states
absent their consent to such suit or an express statutory waiver of immunity. See
Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 98-100 (1984). It is wellsettled that states are not “persons” under § 1983, and thus Eleventh Amendment
immunity is not abrogated by that statute. Will v. Michigan Dept. of State Police, 491
U.S. 58, 65-66 (1989). The Eleventh Amendment bar extends to agencies and officials
sued in their official capacities.

Kentucky v. Graham, 473 U.S. 159, 166 (1985).

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Plaintiff may therefore sue these Defendants only if they consent to be sued.
Pennhurst, 465 U.S. 89 at 199-201.

Since neither has consented, the Eleventh

Amendment bars the Plaintiff's suit against them. Plaintiff’s claims against New York
State and the New York State Department of Corrections and Community Supervision
are therefore dismissed with prejudice.
To the extent that Plaintiff seeks to raise distinct claims regarding his treatment
while confined, as against Defendants Leary and John Does 21-30 of the Erie County
Holding Center, and John Does 41-50 of the Department of Corrections and Community
Supervision, Plaintiff must bring these claims against the individuals responsible for any
constitutional violations which may have taken place by setting forth allegations
specifying the nature of the claims against each individual as directed above.
Other Claims Brought Against State Agencies
Plaintiff has also named as Defendants two other agencies of New York State,
the New York State Office of Children and Family Services, identified as “a division and
agent of defendant New York State”, and the Jacob’s School of Medicine and
Biomedical Sciences, State University of New York at Buffalo. Plaintiff’s claims against
these Defendants as agencies of the state of New York are dismissed for the reasons
stated above. See Kentucky v. Graham, 473 U.S. 159, 166 (1985).
HIPAA CLAIMS
Plaintiff sets forth allegations that Defendants “individually and in the aggregate”
transmitted Plaintiff’s and his children’s medical records without authorization. Plaintiff
thus appears to make claims under Health Insurance Portability and Accountability Act
of 1996 (“HIPAA”), Pub. L. 104-191, 110 Stat. 1936 (codified as amended in scattered

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sections of 42 U.S.C.). However, Courts have found no private right of action under
HIPAA. Mele v. Hill Health Ctr., 609 F. Supp. 2d 248, 254 (D. Conn. 2009). HIPAA
regulates the privacy of medical records, and “enforcement of HIPAA is reserved
exclusively to the Secretary of Health and Human Services.” Rzayeva v. United States,
492 F Supp 2d 60, 83 (D. Conn. 2007); 42 U.S.C. §§ 1320d-5, d-6. To the extent that
Plaintiff has made claims under HIPAA, they are therefore dismissed with prejudice.
Racketeering
Plaintiff has further made claims that under the Racketeer Influenced and Corrupt
Organizations Act (“RICO”) U.S.C. § 1961 et seq., alleging that Defendants engaged in
a conspiracy involving “enterprises that affect interstate commerce”.

A plaintiff’s

conclusory allegation of a violation, without more, fails to state a claim upon which relief
may be granted. See e.g. Barr v. Abrams, 810 F.2d 358, 363 (2d Cir. 1987). Plaintiff’s
claims that Defendants engaged in acts in violation of 18 U.S.C. § 1962 fail to set forth
any allegations of activities which would meet the definition of “racketeering activity”
enumerated in 18 U.S.C. § 1961(1) or otherwise satisfy the requirements of a RICO
claim.
For a plaintiff to adequately plead a claim of Racketeering:
First, he must allege that the defendant has violated the substantive RICO
statute, 18 U.S.C. § 1962 (1976), commonly known as “criminal RICO.” In
so doing, he must allege the existence of seven constituent elements: (1)
that the defendant (2) through the commission of two or more acts (3)
constituting a “pattern” (4) of “racketeering activity” (5) directly or indirectly
invests in, or maintains an interest in, or participates in (6) an “enterprise”
(7) the activities of which affect interstate or foreign commerce.
Moss v Morgan Stanley Inc., 719 F2d 5, 17 (2d Cir 1983) (citation omitted). Plaintiff’s
conclusory allegations do not meet even this preliminary requirement.

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Plaintiff’s

racketeering claims are therefore subject to dismissal. However, Plaintiff will be given
an opportunity to set forth allegations which would permit the Court to determine that
Defendants have engaged in “racketeering activity” which meets the requirements
enumerated above.
Prosecutorial Immunity
Prosecutors performing traditional prosecutorial activities are given absolute
immunity in § 1983 suits. See Imbler v. Pachtman, 424 U.S. 409, 427-28 (1976).
The absolute immunity accorded to government prosecutors
encompasses not only their conduct of trials but all of their activities that
can fairly be characterized as closely associated with the conduct of
litigation or potential litigation, including presentation of evidence to a
grand jury to initiate a prosecution . . . , activities in deciding not to do so .
. . , and conduct of plea bargaining negotiations. . . .”
Barrett v. United States, 798 F.2d 565, 571-572 (2d Cir. 1986) (citing Lee v. Willins, 617
F.2d 320 (2d Cir.), cert. denied, 449 U.S. 861 (1980); Dacey v. Dorsey, 568 F.2d 275,
278 (2d Cir.), cert. denied, 436 U.S. 906 (1978); Taylor v. Kavanagh, 640 F.2d 450 (2d
Cir. 1981)). As the Second Circuit has observed: “Absolute immunity bars a civil suit
against a prosecutor for advocatory conduct that is intimately associated with the
judicial phase of the criminal process. This immunity attaches to conduct in court, as
well as conduct preliminary to the initiation of a prosecution and actions apart from the
courtroom.” Giraldo v. Kessler, 694 F3d 161, 165 (2d Cir 2012) (citations and internal
quotation marks omitted). Plaintiff’s claims against Defendants Dillion, Bridge, Cooper,
and John Does 1-10 are therefore subject to dismissal as barred by prosecutorial
immunity. To proceed, Plaintiff’s second amended complaint must set forth allegations
of constitutional violations which occurred outside of “advocatory conduct that is
intimately associated with the judicial phase of the criminal process”.
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CONCLUSION
For the reasons set forth above, Plaintiff’s claims must be dismissed pursuant to
28 U.S.C. § 1915(e)(2)(B) unless he files a second amended complaint by November
15, 2016 in which he includes the necessary allegations as directed above and in a
manner that complies with Rules 8 and 10 of the Federal Rules of Civil Procedure.
Because this action is not going forward unless Plaintiff files an amended complaint as
directed, his motions for a Summons are denied without prejudice.
Plaintiff is advised that an amended complaint is intended to completely replace
the prior complaint in the action, and thus it “renders [any prior complaint] of no legal
effect.” International Controls Corp. v. Vesco, 556 F.2d 665, 668 (2d Cir. 1977), cert.
denied sub nom., Vesco & Co., Inc. v. International Controls Corp., 434 U.S. 1014
(1978); see also Shields v. Citytrust Bancorp, Inc., 25 F.3d 1124, 1128 (2d Cir. 1994).
Therefore, Plaintiff’s second amended complaint must include all of the allegations
against each of the Defendants so that the second amended complaint may stand alone
as the sole Complaint in this action which the Defendants must answer.
ORDER
IT HEREBY IS ORDERED, that Plaintiff’s motions for a Summons are denied;
FURTHER, the Clerk of Court is directed to terminate as Defendants the Erie
County District Attorney’s Office, the Erie County Sheriff’s Office, the Erie County
Department of Social Services, and the City of Buffalo Police Department;
FURTHER, that because the documents identify the victims of sex offenses, the
Clerk of Court is directed to restrict access to the Complaint and Amended Complaint
(Docket Nos. 1 and 6) to court users and the parties only;

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FURTHER, that Plaintiff is granted leave to file a second amended complaint
only as directed above by November 15, 2016;
FURTHER, that if Plaintiff does not file a second amended complaint as directed
above, that the Amended Complaint is dismissed with prejudice;
FURTHER, that in the event the Amended Complaint is dismissed because
Plaintiff has failed to file a second amended complaint, the Clerk of Court shall close
this case as dismissed with prejudice without further order;
FURTHER, that in the event the Amended Complaint is dismissed because
Plaintiff has failed to file a second amended complaint, the Court hereby certifies,
pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this Order would not be taken
in good faith, and leave to appeal to the Court of Appeals as a poor person is denied.
Coppedge v. United States, 369 U.S. 438 (1962).

Further requests to proceed on

appeal as a poor person should be directed, on motion, to the United States Court of
Appeals for the Second Circuit, in accordance with Rule 24 of the Federal Rules of
Appellate Procedure.
SO ORDERED.
/s/William M. Skretny
William M. Skretny
United States District Judge
DATED:

September 7, 2016
Buffalo, NY

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