Livingston v. Doe

Opinion

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK CLARENCE LIVINGSTON, Plaintiff, -against- 20-CV-2009 (LTS) DETECTIVE JOHN DOE; NEW YORK ORDER OF SERVICE COUNTY DISTRICT ATTORNEY OFFICE; MANHATTAN CRIMINAL SUPREME COURT; CITY OF NEW YORK, Defendants. LAURA TAYLOR SWAIN, United States DistrictJudge: Plaintiff, currently incarcerated at Groveland Correctional Facility, brings this pro se action under 42 U.S.C. § 1983, alleging that he was arrested without probable cause, and that after he spent 23 months in pretrial detention, the charges were dismissed.By order dated March 9, 2020, the Court granted Plaintiff’s request to proceed without prepayment of fees, that is, in forma pauperis.1 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 in forma pauperis 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 1 Prisoners are not exempt from paying the full filing fee even when they have been granted permission to proceed in forma pauperis.See 28 U.S.C. §1915(b)(1). 636, 639 (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. DISCUSSION A. Improper Defendants New York County District Attorney’s Office 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 Imbler 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 v. Goldstein, 555 U.S. 335, 344 (2009). Here, Plaintiff’s claims against the New York County District Attorney’s Office are based on actions within the scope of the District Attorney’s official duties and associated with the conduct of a trial. Therefore, these claims are dismissed because they seek monetary relief against a defendant who is immune from suit and as frivolous.28 U.S.C. § 1915(e)(2)(b)(i), (iii);

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”). New York County Supreme Court Section 1983 protects against deprivations of one’s federally protected rights by any “person” acting under color of state law. 42 U.S.C. § 1983. A court is not a “person” within the meaning of § 1983. Zuckerman v. Appellate Div., Second Dep’t, Sup.Ct. of State of N. Y., 421 F.2d 625, 626 (2d Cir. 1970). Moreover, as an agency of the state of New York, “New York state courts are immune from suit under the Eleventh Amendment.” Goldberg v. Roth, No. 99-CV- 11591, 2001 WL 1622201, at *4 (S.D.N.Y. Dec. 17, 2001) (citations omitted). For these reasons, the court is not a proper defendant, and Plaintiff’s claims against it are dismissed for failure to state a claim on which relief may be granted, and on immunity grounds. B. Order of Service

Because Plaintiff has been granted permission to proceed IFP, Plaintiffis entitled to rely on the Court and the U.S. Marshals Service to effect service. Walker v. Schult, 717 F.3d. 119, 123 n.6(2d Cir. 2013); see also 28 U.S.C. § 1915(d) (“The officers of the court shall issue and serve all process ... in [IFP] cases.”); Fed. R. Civ. P. 4(c)(3) (the court must order the Marshals Service to serve if the plaintiff is authorized to proceed IFP)). Although Rule 4(m) of the Federal Rules of Civil Procedure generally requires that the summons and complaint be served within 90 days of the date the complaint is filed, Plaintiff is proceeding IFP and could not have served the summons and complaint until the Court reviewed the complaint and ordered that a summons be issued. The Court therefore extends the time to serve until 90 days after the date the summons is issued. If the complaint is not served within that time, Plaintiff should request an extension of

time for service. See Meilleur v. Strong, 682 F.3d 56, 63 (2d Cir. 2012) (holding that it is the plaintiff’s responsibility to request an extension of time for service); see also Murray v. Pataki, 378 F. App’x 50, 52 (2d Cir. 2010) (“As long as the [plaintiff proceeding IFP] provides the information necessary to identify the defendant, the Marshals’ failure to effect service automatically constitutes ‘good cause’ for an extension of time within the meaning of Rule 4(m).”). To allow Plaintiff to effect service on Defendant the City of New Yorkthrough the U.S. Marshals Service, the Clerk of Court is instructed to fill out a U.S. Marshals Service Process Receipt and Return form (USM-285 form) for this defendant. The Clerk of Court is further instructed to issue a summons and deliver to the Marshals Service all the paperwork necessary for the Marshals Service to effect service upon this defendant. Plaintiff must notify the Court in writing if Plaintiff’s address changes, and the Court may dismiss the action if Plaintiff fails to do so.2 C. John Doe Detective

Under Valentin v. Dinkins, a pro se litigant is entitled to assistance from the district court in identifying a defendant.121 F.3d 72, 76(2d Cir. 1997).In the complaint, Plaintiff supplies sufficient information to permit the New York City Law Department to identify the John Doe detective who arrested Plaintiff on May 18, 2016, at the subway station at Eighth Avenue and 14th Street in Manhattan. It is therefore ordered that the New York City Law Department,which is the attorney for andagent of the New York City Police Department,must ascertain the identity of the John Doe whom Plaintiff seeks to sue here and the address where the defendant may be served.The New York City Law Departmentmust provide this information to Plaintiff andthe Court within sixty days of the date of this order. Within thirty days of receiving this information, Plaintiff must file an amended complaint

naming the John Doe defendant.The amended complaint will replace, not supplement, the original complaint.Anamended complaint form that Plaintiff should complete is attached to this order. Once Plaintiff has filed an amended complaint, the Court will screen the amended

2To challenge his current sentence, Plaintiff would need to file a petition for a writ of habeas corpusafter he exhausts his state court remedies. A habeas corpus petition brought under 28 U.S.C. § 2254 is the proper vehicle for a state prisoner who is in custody under a judgment of a state court and challenges the constitutionality of his custody, see Cook v. New York State Division of Parole, 321 F.3d 274, 278 (2d Cir. 2003); James v. Walsh, 308 F.3d 162, 166 (2d Cir. 2002). A petition for a writ of habeas corpusunder 28 U.S.C. § 2241 “is the proper means to challenge the executionof a sentence.” Adams v. United States, 372 F.3d 132, 135 (2d Cir. 2004) (emphasis in original). complaint and, if necessary, issue an order directing the Clerk of Court to complete the USM-285 form with the address for the named John Doe Defendant and deliver all documents necessary to effect service to the U.S. Marshals Service. CONCLUSION The Clerk of Court is directed to mail a copy of this order to Plaintiff, together with an

information package. The Court dismisses Plaintiff’s claims against the New York County District Attorney’s Office and the “Manhattan Criminal Supreme Court.” See 28 U.S.C. § 1915(e)(2)(B)(ii), (iii). The Clerk of Court is directed to complete the USM-285 form with the addresses for the City of New York and deliver all documents necessary to effect service to the U.S. Marshals Service. The Clerk of Court is further instructed to mail a copy of this order and the complaint to the New York City Law Department at: 100 Church Street, New York, N.Y. 10007. 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 in forma pauperis 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). SO ORDERED. Dated: March 25, 2020 New York, New York /s/ Laura Taylor Swain LAURA TAYLOR SWAIN United States District Judge DEFENDANTAND SERVICE ADDRESS

City of New York New York City Law Department 100 Church Street New York, N.Y. 10007