NOT FOR PUBLICATION
MEMORANDUM & ORDER
MARGO K. BRODIE, District Judge.
Plaintiff Memphis Morgan,
The Court assumes the truth of the allegations in the Complaint for the purpose of this Memorandum and Order. Plaintiff challenges his current incarceration. (Compl. 17)
Plaintiff states that as a result of his incarceration and pending criminal charges, he suffers from emotional distress, lack of sleep and "deteriorating self." (Id. at 4.) In addition, Plaintiff's daughter is disturbed as a result of his situation and is missing school and "tells teachers she will commit suicide because of separation anxiety." (Id.) Plaintiff has lost his apartment, personal possessions, and his job. (Id.) His mother "is getting sicker by the day because of depression due to [his] settings." (Id.) Plaintiff alleges that ADA Perez and his appointed attorney Klein "are abusing the fact that [he is] a mental health patient." (Id. at 16-17.)
In the Complaint, Plaintiff seeks damages of eight million dollars for "loss of [his] liberty." (Id. at 5.) On April 15, 2017, Plaintiff submitted a letter to the Court reiterating his claims, and stating that he seeks damages of twenty-five million dollars. (Pl. Letter dated Apr. 15, 2017, Docket Entry No. 7.) Plaintiff also encloses several court filings relating to the bail jumping charges and the above-captioned civil action, including additional copies of the Complaint.
a. Standard of review
A complaint must plead "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Matson v. Bd. of Educ., 631 F.3d 57, 63 (2d Cir. 2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). Although all allegations contained in the complaint are assumed to be true, this tenet is "inapplicable to legal conclusions." Iqbal, 556 U.S. at 678. In reviewing a pro se complaint, the court must be mindful that a plaintiff's pleadings should be held "to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (quoting Estelle v. Gamble, 429 U.S. 97, 104-105 (1976)); see Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (noting that even after Twombly, the court "remain[s] obligated to construe a pro se complaint liberally"). Nevertheless, the court must screen "a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity" and "dismiss the complaint or any portion of the complaint," if it is frivolous, malicious, or fails to state a claim upon which relief may be granted. 28 U.S.C. 1915A; see Abbas v. Dixon, 480 F.3d 636, 639 (2d. Cir. 2007). Similarly, the Court is required to dismiss sua sponte an in forma pauperis action if the Court determines it "(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); see also Abbas, 480 F.3d at 639.
b. Plaintiff cannot bring an action against the 75th Precinct
Section 396 of the New York City Charter provides that "[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." N.Y. City Charter, chap. 17 § 396. This provision "has been construed to mean that New York City departments, as distinct from the City itself, lack the capacity to be sued." Ximines v. George Wingate High Sch., 516 F.3d 156, 159-60 (2d Cir. 2008) (per curiam). Because the 75th Precinct is a subdivision of the New York City Police Department, which is an agency of the City of New York, the 75th Precinct is not amenable to suit. See Jenkins v. City of New York, 478 F.3d 76, 93 n.19 (2d Cir. 2007) ("[T]he NYPD is a non-suable agency of the City."); Morris v. NEC. Police Dep't, 59 F. App'x 421, 422 (2d Cir. 2003) (affirming dismissal of claims asserted against the NYPD due to non-suable-entity status). Any action against the 75th Precinct must be brought against the City of New York. Accordingly, Plaintiff's claims against the 75th Precinct are dismissed.
In order to sustain a claim for relief under 42 U.S.C. § 1983, a plaintiff must allege (1) that the challenged conduct was "committed by a person acting under color of state law," and (2) that such conduct "deprived [the plaintiff] of rights, privileges, or immunities secured by the Constitution or laws of the United States." Cornejo v. Bell, 592 F.3d 121, 127 (2d Cir. 2010) (quoting Pitchell v. Callan, 13 F.3d 545, 547 (2d Cir. 1994)). Section 1983 "constrains only state conduct, not the `acts of private persons or entities.'" Hooda v. Brookhaven Nat'l Lab., 659 F.Supp.2d 382, 393 (E.D.N.Y. 2009) (quoting Rendell-Baker v. Kohn, 457 U.S. 830, 837 (1982)); see also Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999) ("[T]he under color-of-state-law element of § 1983 excludes from its reach merely private conduct, no matter how discriminatory or wrongful." (citation and internal quotation marks omitted)); Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 173 (1972). Thus, a claim for relief pursuant to section 1983 must allege facts showing that the challenged conduct was "committed by a person acting under color of state law." 42 U.S.C. § 1983.
It is well established that court-appointed attorneys do not act under color of state law when they perform traditional functions of counsel. Polk Cty. v. Dodson, 454 U.S. 312, 325 (1981) ("[A] public defender does not act under color of state law when performing a lawyer's traditional functions as counsel to a defendant in a criminal proceeding."); Sash v. Rosahn, 450 F. App'x 42, 43 (2d Cir. 2011) ("[A] court appointed criminal defense attorney does not act under color of state law when representing a client" (citing Rodriguez v. Weprin, 116 F.3d 62, 65-66 (2d Cir. 1997))); Garcia v. City of New York, No. 13-CV-4655, 2013 WL 153756, at *3 (E.D.N.Y. Jan. 14, 2013) (finding that a Legal Aid Society attorney was not acting under color of state law when he represented a plaintiff in criminal court); Pecou v. Hirschfeld, No. 07-CV-5449, 2008 WL 957919, at *2 (E.D.N.Y. Apr. 3, 2008) ("Court-appointed attorneys do not act under color of state law merely by virtue of their appointment." (citing Polk Cty., 454 U.S. at 325)). Because Plaintiff has failed to plead any facts that would support a finding that Klein was acting under color of state law at the time of the alleged civil rights violations, Plaintiff's claim against Klein is dismissed. 28 U.S.C. § 1915(e)(2)(B).
d. Plaintiff fails to state a claim against ADA Perez and DA Gonzalez
"It is well established that a state prosecuting attorney who acted within the scope of his duties in initiating and pursuing a criminal prosecution is immune from a civil suit for damages under § 1983." Shmueli v. City of New York, 424 F.3d 231, 236 (2d Cir. 2005) (internal quotation marks omitted). "Prosecutorial immunity from § 1983 liability is broadly defined, covering virtually all acts, regardless of motivation, associated with [the prosecutor's] function as an advocate." Hill v. City of New York, 45 F.3d 653, 661 (2d Cir. 1995) (internal quotation marks and brackets omitted). Immunity extends to deciding which offenses to charge, initiating a prosecution, presenting the case at trial, and evaluating and organizing evidence for presentation at trial or to a grand jury. Id. Absolute immunity for prosecutorial acts can be defeated only if the prosecutor is alleged to have acted in the complete absence of jurisdiction. Shmueli, 424 F.3d at 237.
Here, Plaintiff's claims against ADA Perez involve her decisions to bring bail jumping charges which Plaintiff alleges were barred by the statute of limitations
Moreover, because Plaintiff fails to allege any conduct by DA Gonzalez that contributed to the violation of his constitutional rights, Plaintiff fails to state a claim against DA Gonzalez because there is no supervisory liability under section 1983. See, e.g., Iqbal, 556 U.S. at 676 ("Because vicarious liability is inapplicable to Bivens and [section] 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution."); Hernandez v. Keane, 341 F.3d 137, 144 (2d Cir. 2003) ("Absent some personal involvement by [the supervisory official] in the allegedly unlawful conduct of his subordinates,' he cannot be liable under section 1983." (alteration in original) (quoting Gill v. Mooney, 824 F.2d 192, 196 (2d Cir. 1987))).
Thus, the claims against ADA Perez and DA Gonzalez are dismissed pursuant to 28 U.S.C. § 1915A(b)(2) and 28 U.S.C. § 1915(e)(2)(B)(iii).
e. Leave to amend
While it is unclear that Plaintiff can cure the defects with the Complaint, the Court grants Plaintiff leave to amend the Complaint to attempt to assert a claim against the City of New York to the extent Plaintiff can articulate a constitutional violation that would not call into question any pending charges against him or any conviction.
However, because Plaintiff cannot bring a section 1983 claim against his attorney Klein, who was not acting under color of state law, and because Plaintiff cannot bring a claim against ADA Perez and DA Gonzalez for actions taken pursuant to their prosecutorial duties, Plaintiff cannot amend his claims as to Defendants Klein, ADA Perez or DA Gonzalez.
For the foregoing reasons, the Complaint is dismissed pursuant to 28 U.S.C. § 1915A(b) and 28 U.S.C. § 1915(e)(2)(B). The Court grants Plaintiff thirty (30) days from the date of this Memorandum and Order to file an amended complaint. Should Plaintiff elect to file an amended complaint, the amended complaint must comply with Rule 8(a) of the Federal Rules of Civil Procedure, and it must "plead enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570. Plaintiff is advised that the amended complaint will completely replace the original complaint, must be captioned "Amended Complaint," and must bear the same docket number as this Memorandum and Order. If Plaintiff fails to file an amended complaint within the time allowed, the Court will enter judgment dismissing this action for the reasons set forth above. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal would not be taken in good faith and therefore in forma pauperis status is denied for purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
Alphonse Pecou, Queens Village, NY, pro se.
OPINION AND ORDER
Dismissing Plaintiffs Complaint
FEUERSTEIN, District Judge.
On January 5, 2007, Plaintiff filed a previous civil action against the Office of Health Information and several other defendants, in which he sought to challenge information contained in his mental health records, which he alleged had affected his liberty interests. That case was ultimately dismissed by this Court. See Pecou v. Forensic Committee Personnel, et al., No. 06-cv-3714 (SJF), 2007 WL 1774693 (E.D.N.Y. June 18, 2007). In the instant Complaint, Plaintiff names as defendants several attorneys at Mental Hygiene Legal Services and the Commissioner of Mental Health. He alleges that his recent retention hearing violated his right to Due Process and that his attorneys failed to file an appeal of the unfavorable judgment. He seeks $10 million in damages.
A. Standard of Review
Title 28, Section 1915(e)(2)(B) of the United States Code requires a district court to dismiss a case 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)(B). A pro se plaintiffs submissions are held "`to less stringent standards than formal pleadings drafted by lawyers.'" Hughes v. Rowe, 449 U.S. 5, 9, 101 S.Ct. 173, 66 L.Ed.2d 163 (1980) (quoting Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972)). Indeed, a court must "read the pleadings of a pro se plaintiff liberally and interpret them `to raise the strongest arguments that they suggest.'" McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir.1999) (quoting Burgos v. Hopkins, 14 F.3d 878, 790 (2d Cir.1994)). Nonetheless, a pro se plaintiff is not exempt from compliance with relevant rules of procedural and substantive law. See Traguth v. Zuck, 710 F.2d 90, 92 (2d Cir.1983).
B. Alleged Civil Rights Violations
Plaintiff alleges that Defendants' actions violated his civil rights. A claim for violations of constitutional rights is cognizable under 42 U.S.C. § 1983 (" § 1983"). Claims alleging conspiracy or failure to prevent a conspiracy to violate civil rights may be brought pursuant to 42 U.S.C. § 1985(3) and § 1986.
A § 1983 plaintiff seeking to recover money damages must establish that the named individual defendants were personally involved in the wrongdoing or misconduct of which complained. A supervisory official is deemed to have been personally involved only if: (1) that official directly participated in the infraction; (2) after learning of a violation through a report or appeal, the official failed to remedy the wrong; (3) the official either created a policy or custom under which unconstitutional practices occurred or allowed such a policy or custom to continue; or (4) the official was grossly negligent in managing subordinates who caused the unlawful condition or event. See Wright v. Smith, 21 F.3d 496, 501 (2d Cir.1994) (quoting Williams v. Smith, 781 F.2d 319, 323-24 (2d Cir.1986)). Defendant Sharon Carpinello, the Commissioner of Mental Health, is a supervisory official. Plaintiff has not alleged any direct personal involvement by this individual, nor has he identified any specific acts or failures to act that may be attributed to her. Therefore, this claim, too, must be dismissed for failure to state a claim, pursuant to 28 U.S.C. § 1915(e)(2) (B)(ii).
For the foregoing reasons, Plaintiffs Complaint is dismissed with prejudice, sua sponte, pursuant to 28 U.S.C. § 1915(e)(2) (B)(ii). The Clerk of Court is directed to close this case. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith and therefore in forma pauperis status is denied for the purpose of any appeal. See Coppedge v. United States, 369 U.S. 438, 444-45, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962).
Not Reported in F.Supp.2d, 2008 WL 957919
Germaine Garcia, Ossining, NY, pro se.
MEMORANDUM & ORDER
MARGO K. BRODIE, District Judge.
On or about October 9, 2009, Plaintiff was arraigned in Kings County Criminal Court on the following charges: burglary in the first degree; burglary in the second degree; assault in the second degree; burglary in the third degree; aggravated criminal contempt; criminal contempt in the first degree; assault in the third degree; criminal trespass in the second degree; criminal mischief in the fourth degree; criminal contempt in the second degree; menacing in the third degree; criminal trespass in the third degree; trespass; and harassment in the second degree. (Compl. at 31.) According to Plaintiff, he waived indictment by the Grand Jury on October 11, 2009, and an indictment was returned by the Grand Jury on or about November 19, 2009 to include the following charges: burglary in the second degree; burglary in the third degree; aggravated criminal contempt; criminal contempt in the first degree; criminal contempt in the second degree; menacing in the third degree; criminal mischief in the fourth degree; attempted assault in the third degree. (Id. at 19, 31, 5152, 58.) Plaintiff appears to allege that the waiver of indictment was "illegal" as he did not sign the waiver in open court. (Id. at 35.) Plaintiff also alleges violations of the Federal Rules of Evidence. (See, e.g., id. at 36, 38, 50.)
a. Standard of Review
Under 28 U.S.C. § 1915(e)(2)(B), a district court shall dismiss an in forma pauperis action where it is satisfied 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." An action is "frivolous" when either: (1) "the `factual contentions are clearly baseless,' such as when allegations are the product of delusion or fantasy"; or (2) "the claim is `based on an indisputably meritless legal theory.'" Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir.1998) (internal citation omitted); see also Pacheco v. Connecticut, 471 F. App'x 46, 47 (2d Cir.2012) (summary order) (upholding sua sponte dismissal of a pro se complaint under § 1915A); Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir.2007) (discussing dismissal under the statute).
Pro se complaints are held to less stringent standards than pleadings drafted by attorneys and the Court is required to read the plaintiffs pro se complaint liberally and interpret it as raising the strongest arguments it suggests. Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) ("A document filed pro se is `to be liberally construed,' and `a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.'" (citations omitted)); see also Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191-93 (2d Cir.2008) (When "[a] plaintiff proceeds pro se, . . . a court is obliged to construe his pleadings liberally." (alteration in original)); Abbas, 480 F.3d at 639. (A court "must liberally construe [pro se] pleadings, and must interpret [pro se] complaint to raise the strongest arguments it suggests."). If a liberal reading of the complaint "gives any indication that a valid claim might be stated," the Court must grant leave to amend the complaint. Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir.2000); see Abbas, 480 F.3d at 639 (A court "must accord the inmate an opportunity to amend the complaint `unless the court can rule out any possibility, however unlikely it might be, that an amended complaint would succeed in stating a claim.'").
b. Defendant Seaman
Plaintiff cannot sustain a § 1983 claim against Defendant Seaman. In order to maintain a § 1983 action, Plaintiff must allege two essential elements. First, "the conduct complained of must have been committed by a person acting under color of state law." Pitchell v. Callan, 13 F.3d 545, 547 (2d Cir.1994); see Filarsky v. Delia, 566 U.S. ___, ___, 132 S.Ct. 1657, 1661-62, 182 L.Ed.2d 662 (2012) ("Section 1983 provides a cause of action against any person who deprives an individual of federally guaranteed rights `under color' of state law."). Second, "the conduct complained of must have deprived a person of rights, privileges or immunities secured by the Constitution or laws of the United States." Pitchell, 13 F.3d at 547; see Isaacs v. City of New York, No. 10 Civ. 4177, 2012 WL 314870, at *2 (E.D.N.Y. Feb. 1, 2012). "Section 1983 itself creates no substantive rights; it provides only a procedure for redress for the deprivation of rights established elsewhere." Sykes v. James, 13 F.3d 515, 519 (2d Cir.1993) (citing City of Oklahoma City v. Tuttle, 471 U.S. 808, 816, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985)). A private actor acts under color of state law when his or her actions are "fairly attributable to the state." Filarsky, 566 U.S. at ___, 132 S.Ct. at 1661-62; see also Abdullahi v. Pfizer, Inc., 562 F.3d 163, 188 (2d Cir.2009) ("Under § 1983, state action may be found when there is such a close nexus between the State and the challenged action that seemingly private behavior may be fairly treated as that of the State itself." (quoting Brentwood Acad. v. Tenn. Secondary Schl. Athletic Ass'n, 531 U.S. 288, 295, 121 S.Ct. 924, 148 L.Ed.2d 807 (2001) (internal quotation marks omitted)). "[T]he under-color-of-state-law element of § 1983 excludes from its reach merely private conduct, no matter how discriminatory or wrongful." American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50, 119 S.Ct. 977, 143 L.Ed.2d 130 (1999) (internal quotation marks omitted).
c. Defendant City of New York
Plaintiff cannot sustain a § 1983 action against the City of New York. In order to sustain a claim for relief under § 1983 against a municipal defendant, a plaintiff must show the existence of an officially adopted policy or custom that caused injury, and a direct causal connection between that policy or custom and the deprivation of a constitutional right. Monell v. Dep't of Social Servs. of City of N.Y., 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) ("[A] local government may not be sued under § 1983 for an injury inflicted solely by its employees or agents. Instead, it is when execution of a government's policy or custom . . . inflicts the injury that the government as an entity is responsible under § 1983."); see Torraco v. Port Auth. of N.Y. & N.J., 615 F.3d 129, 140 (2d Cir.2010) ("[T]o hold a city liable under § 1983 for the unconstitutional actions of its employees, a plaintiff is required to plead and prove three elements: (1) an official policy or custom that (2) causes the plaintiff to be subjected to (3) a denial of a constitutional right." (alteration in original) (quoting Wray v. City of New York, 490 F.3d 189, 195 (2d Cir.2007))). "[A] municipality cannot be made liable [under § 1983] by the application of the doctrine of respondeat superior." Pembaur v. City of Cincinnati, 475 U.S. 469, 478, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986); see Perez v. Metro. Transp. Auth., No. 11 Civ. 8655, 2012 WL 3195078 (S.D.N.Y. Aug. 7, 2012).
The Complaint fails to allege facts from which the Court could infer that any alleged injury was caused by any policy or custom of the City of New York. Conclusory claims that Plaintiffs rights were violated due to an allegedly "illegal" waiver of indictment do not give rise to an inference of the existence of a custom, policy or practice that would hold the City of New York liable.
Not Reported in F.Supp.2d, 2013 WL 153756.