Debellis v. Massing

Opinion

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ANTHONY F. DEBELLIS, also known as Gianfranco, Plaintiff, 19-CV-7834 (CM) -against- ORDER TO AMEND JOANNE MASSING, et al., Defendants. COLLEEN McMAHON, Chief United States District Judge: Plaintiff, currently incarcerated in the Anna M. Kross Center on Rikers Island, brings this pro se action under 42 U.S.C. § 1983, alleging that Defendants wrongfully accused him of a crime. By order dated October 9, 2019, the Court granted Plaintiff’s request to proceed without prepayment of fees, that is, in forma pauperis (“IFP”).1 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 Prison Litigation Reform Act requires that federal courts screen complaints brought by prisoners who seek relief against a governmental entity or an officer or employee of a governmental entity. See 28 U.S.C. § 1915A(a). The court must dismiss a prisoner’s IFP complaint, or any portion of the complaint, that is frivolous or malicious, fails to state a claim upon 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), 1915A(b); see Abbas v. Dixon, 480 F.3d 636, 639

1 Prisoners are not exempt from paying the full filing fee even when they have been granted permission to proceed IFP. See 28 U.S.C. § 1915(b)(1). (2d Cir. 2007). The court must also dismiss a complaint if 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 – 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. The Supreme Court has held that under Rule 8, 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. BACKGROUND Plaintiff brings his claims using the Court’s Civil Rights Complaint form. The “Facts” section of the complaint form states in its entirety: “WRONGFULLY ACCUSED OF STEALING A MOTOR VEHICLE. ARRESTED, INCAR[C]ERATED[,] TRIED AND AQUITTED. SUFFERED EMOTIONAL TRA[U]MA, DEFAMATION, SLANDER, MENTAL ANGUISH[,] P.T.S.D.” (ECF No. 1, at 5) (capitalization in original.) Plaintiff indicates that he was arrested on August 30, 2018, and again on December 14, 2018, and was acquitted on May 20, 2019. He sues Joanna Massing, who he identifies as a “civilian”; Carmel Police Officers

Michael Russo and Michael Nagle; Putnam County Assistant District Attorneys Patricia Rav, Larry Glasser, Brianne Smith, and MacKenzie Ferguson; and New York State Police Troopers Daniel Dworkin and Stephen Schmoke. He seeks a “written apology,” return of property, and money damages. The Court construes Plaintiff’s complaint as asserting claims under 42 U.S.C. § 1983 of false arrest and malicious prosecution. DISCUSSION A. Section 1983 and Personal Involvement To state a claim under 42 U.S.C. § 1983, a plaintiff must allege facts showing the defendants’ direct and personal involvement in the alleged constitutional deprivation. See Spavone v. N.Y. State Dep’t of Corr. Serv., 719 F.3d 127, 135 (2d Cir. 2013) (citing Colon v.

Coughlin, 58 F.3d 865, 873 (2d Cir. 1995)). A defendant may not be held liable under § 1983 solely because that defendant employs or supervises a person who violated the plaintiff’s rights. See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009) (“Government officials may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior.”). An individual defendant can be personally involved in a § 1983 violation if: (1) the defendant participated directly in the alleged constitutional violation, (2) the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong, (3) the defendant created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom, (4) the defendant was grossly negligent in supervising subordinates who committed the wrongful acts, or (5) the defendant exhibited deliberate indifference to the rights of [the plaintiff] by failing to act on information indicating that unconstitutional acts were occurring. Colon, 58 F.3d at 873.2 Plaintiff’s complaint does not contain facts showing how each named Defendant was personally involved in violating his constitutional rights. B. False Arrest and Malicious Prosecution The Court construes Plaintiff’s complaint as asserting claims of false arrest and malicious prosecution. A claim for false arrest under § 1983 incorporates the elements of a false arrest claim under state law. See Boyd v. City of New York, 336 F.3d 72, 75 (2d Cir. 2003). To establish a false arrest claim under New York law, a plaintiff must show that: “(1) the defendant intended to confine [the plaintiff], (2) the plaintiff was conscious of the confinement, (3) the plaintiff did

not consent to the confinement and (4) the confinement was not otherwise privileged.” Liranzo v. United States, 690 F.3d 78, 95 (2d Cir. 2012). An arrest is privileged if it is based on probable cause. Jenkins v. City of New York, 478 F.3d 76, 84 (2d Cir. 2007) (“The existence of probable cause to arrest constitutes justification and is a complete defense to an action for false arrest.”) (quoting Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996)) (internal quotation marks omitted). A § 1983 claim of malicious prosecution “remedies detention accompanied, not by absence of legal process, but by wrongful institution of legal process.” Wallace v. Kato, 549 U.S. 384, 390 (2007) (emphasis in original). To state a § 1983 claim for malicious prosecution, a plaintiff must allege facts showing: (1) that the defendant initiated or continued a prosecution against the plaintiff; (2) that the defendant lacked probable cause to commence the proceeding or

2 “Although the Supreme Court’s decision in [Ashcroft v. Iqbal, 556 U.S. 662 (2009)] may have heightened the requirements for showing a supervisor’s personal involvement with respect to certain constitutional violations,” the Second Circuit has not yet examined that issue. Grullon v. City of New Haven, 720 F.3d 133, 139 (2d Cir. 2013). believe the proceeding could succeed; (3) that the defendant acted with malice; and (4) that the prosecution was terminated in the plaintiff's favor. See Fulton v. Robinson, 289 F.3d 188, 195 (2d Cir. 2002). For the purpose of a § 1983 claim of malicious prosecution, a prosecution terminates in a plaintiff's favor when “the criminal proceedings against him [are] terminated in a manner indicating his innocence.” Lanning v. City of Glens Falls, 908 F.3d 19, 29 (2d Cir. 2018). Plaintiff asserts that he was “wrongfully accused” of stealing a motor vehicle and was subsequently acquitted of the charges, but alleges no other facts in support of his claims. Plaintiff therefore fails to state a claim on which relief can be granted. 28 U.S.C. § 1915(e)(2)(B)(ii). Should Plaintiff file an amended complaint, he must allege facts supporting his false arrest and malicious prosecution claims, including facts indicating that Defendants lacked probable cause to arrest and prosecute him. Plaintiff should explain how each Defendant was personally involved in the events giving rise to those claims. Claims Against Particular Defendants I. Claims against Putnam County Assistant District Attorneys Prosecutors are immune from civil suits for damages for acts committed within the scope of their official duties where the challenged activities are not investigative in nature but, rather, are “intimately associated with the judicial phase of the criminal process.” Simon v. City of New York, 727 F.3d 167, 171 (2d Cir. 2013) (quoting /mbler v. Pachtman, 424 U.S. 409, 430 (1976)); see also Buckley v. Fitzsimmons, 509 U.S. 259 (1993) (holding that absolute immunity is analyzed under “functional approach” that “looks to the nature of the function performed, not the identity of the actor who performed it”). In addition, prosecutors are absolutely immune from suit for acts that may be administrative obligations but are “directly connected with the conduct of a trial.” Van de Kamp vy. Goldstein, 555 U.S. 335, 344 (2009).

Here, Plaintiffs claims against Putnam County Assistant District Attorneys Patricia Rav, Larry Glasser, Brianne Smith, and Mackenzie Ferguson are based on actions taken within the scope of their official duties and associated with the conduct of a trial. The Court therefore dismisses these claims because they seek monetary relief against a defendant who is immune from suit and as frivolous. 28 U.S.C. § 1915(e)(2)(b)(), (a1); see Collazo v. Pagano, 656 F. 3d 131, 134 (2d Cir. 2011) (holding that claim against prosecutor is frivolous if it arises from conduct that is “intimately associated with the judicial phase of the criminal process”). 2. Claims against Joanne Massing A claim for relief under § 1983 must allege facts showing that each defendant acted under the color of a state “statute, ordinance, regulation, custom or usage.” 42 U.S.C. § 1983. Private parties are therefore not generally liable under the statute. Sykes v. Bank of America, 723 F.3d 399, 406 (2d Cir. 2013) (citing Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass’n, 531 US. 288, 295 (2001)); see also Ciambriello v. Cnty. of Nassau, 292 F.3d 307, 323 (2d Cir. 2002) (“[T]he United States Constitution regulates only the Government, not private parties.”). As it appears that Defendant Joanne Massing 1s a private party who does not work for any state or other government body, the Court dismisses Plaintiff's claims under § 1983 against Joanne Massing. See 28 U.S.C. § 1915(e)(2)(B)(11). 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). In light of Plaintiff's pro se status,

the Court grants Plaintiff leave to amend his complaint within sixty days of the date of this order.3 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. 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. Plaintiff’s amended complaint must not assert claims for money damages against defendants who are immune from suit. 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.

3 It is unclear from the complaint whether Plaintiff intends to assert state-law claims for slander or defamation. The Court will determine at a later stage whether or not to exercise supplemental jurisdiction over any state-law claims Plaintiff is asserting. See 28 U.S.C. § 1367(c)(3). CONCLUSION The Clerk of Court is directed to assign this matter to my docket, mail a copy of this order to Plaintiff, and note service on the docket. The Court dismisses Plaintiff’s claims against Joanne Massing. 28 U.S.C. § 1915(e)(2)(B)(ii).

The Court dismisses Plaintiff’s claims against Patricia Rav, Brianne Smith, MacKenzie Ferguson, and Larry Glasser. 28 U.S.C. § 1915(e)(2)(B)(i), (iii). 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 19-CV-7834 (CM). 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 Court will dismiss the complaint for failure to state a claim on which relief can be granted. 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. Cf. Coppedge v. United States, 369 U.S. 438, 444-45 (1962) (holding that an appellant demonstrates good faith when he seeks review of a nonfrivolous issue). The Clerk of Court is directed to docket this as a “written opinion” within the meaning of Section 205(a)(5) of the E-Government Act of 2002. SO ORDERED. Dated: October 30, 2019 , New York, New York hie l Wek COLLEEN McMAHON Chief United States District Judge