McDaniel v. NYC Fire Department

Opinion

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK CURTIS McDANIEL, Plaintiff, 20-CV-0995 (LLS) -against- ORDERTO AMEND NYC FIRE DEPARTMENT, et al., Defendants. LOUIS L. STANTON, United States District Judge: Plaintiff, currently incarcerated at Bare Hill Correctional Facility, brings this pro se action under 42 U.S.C. § 1983, alleging that while searching his apartment, Defendants destroyed his property and injured his dog.By order datedMay 14, 2020,the Court granted Plaintiff’s request to proceed without prepayment of fees, that is, in forma pauperis.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 OFREVIEW 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 ifthe 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 alleges that on three separate occasions,officers from the New York City Police Department (NYPD) and employees of the New York City Fire Department (FDNY) conducted illegal searches of his Manhattan apartment, which resulted in destruction of his property and injuries to his dog. He claims violations of the Fourth and Fourteenth Amendments to the United States Constitution. The following facts are taken from the complaint: on July 11, 2018,“after [Plaintiff] was arrested,” two female officers “took [his] keys and turned over stole and broke things.” (Id.) On February 25, 2019, Plaintiff’s“house was broken into and search[ed] by the same w[h]ich [was]

a lie saying it was a life alert [because they] know [Plaintiff] and [his] father stay here only.” (Id.) And “[o]n or around the same time [in] March 2019 while [Plaintiff] was arrested [his] house was broken into for court warr[a]nt to get [his] dog but [his] house was search[ed] and left openand things were missing.” (Id.) After each incident, Plaintiff’s “dog was hit by the door to the apartment [and] she has been very scared after each event and since each event of everyone.” (Id.at 6.) “The injuries were to [Plaintiff’s] dog and propertyin [his] home.” (Id.) He seeks money damages in the amount of $100,000. DISCUSSION A. New York City agencies Plaintiff’s claims against the NYPD and the FDNYmust be dismissed because an agency

of the City of New York is not an entity that can be sued. N.Y. City Charter ch. 17, § 396 (“[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.”); Jenkins v. City of New York, 478 F.3d 76, 93 n.19 (2d Cir. 2007); see also Emerson v. City of New York, 740 F. Supp. 2d 385, 396 (S.D.N.Y. 2010) (“[A] plaintiff is generally prohibited from suing a municipal agency.”). B. Fourth Amendment The Fourth Amendmentstates that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause .. . particularly describing the place to be searched, and the persons or things to be seized.” The Supreme Court has held that searches

“inside a home without a warrant are presumptively unreasonable.” Brigham City, Utah v. Stuart, 547 U.S. 398, 403, (2006) (internal quotation marks and citations omitted).A warrantless search may be permissible, however, if “exigent circumstances” exist. Kirk v. Louisiana, 536 U.S. 635, 638 (2002).“The essential question in determining whether exigent circumstances justified a warrantless entry is whether law enforcement agents were confronted by an urgent need to render aid or take action.” Loria v. Gorman, 306 F.3d 1271, 1284–85 (2d Cir.2002) (alteration and internal quotation marks omitted).For example, law enforcement officers who require entry onto private property to fight a fire and investigate its cause may be excused from entering the property without a warrant.See Brigham City, Utah, 547U.S. at 403 (citing Michigan v. Tyler, 436 U.S. 499, 509 (1978))

Here, Plaintiff does not allege enough facts to state a claim under the Fourth Amendment. With respect to the July 11, 2018 search, Plaintiff states that officers searched his apartment after they arrested him, but he does not state whether the arrest andsearch were pursuant to a warrant. As for the February 25, 2019 search, Plaintiff states that Defendants entered his apartment because authorities had been notified by a “life alert.” (ECF No. 2, at 5.) These facts suggest that employees of the FDNY responded to a call and entered the apartment based on the “life alert” call. (Id.) Finally, as for Plaintiff’s challenge to the final search, which occurred in March 2019, Plaintiff states that Defendants arrived at his apartment pursuant to a “court warrant,” suggesting that the search may have been lawful. Because Plaintiff does not allege enough facts to state a Fourth Amendment claim as to anyof these searches, the Court grants him leave to file an amended complaint to state more

facts with respect to each search and whether Defendants searched his apartment pursuant to a warrant or an emergency circumstance. C. Fourteenth Amendment The Court construes the complaint as asserting a procedural due process claim under the Fourteenth Amendmentbecause he claims that Defendants destroyed or stole his property and injured his dog.“The two threshold questions in any §1983 claim for denial of procedural due process are whether the plaintiff possessed a liberty or property interest . . . and, if so, what process was due before plaintiff could be deprived of that interest.” Green v. Bauvi, 46 F.3d 189, 194 (2d Cir. 1995) (citing Logan v. Zimmerman Brush Co., 455 U.S. 422, 428 (1982)). Agovernment agent’s random and unauthorized act does not violate due process if a

meaningful post-deprivation remedy is available; that is, when the government cannot predict precisely when the loss will occur, it would be impossible to provide a meaningful hearing before the deprivation. See Hudson v. Palmer, 468 U.S. 517, 533 (1986); see also Rivera–Powell v. New York City Bd. of Elections, 470 F.3d 458, 465 (2d Cir. 2006) (holding that “[w]hen the state conduct in question is random and unauthorized, the state satisfies procedural due process requirements so long as it provides meaningful post-deprivation remedy.”).If the state provides a procedure to address a deprivation, “there will be no claim before the federal court, whether or not [the] plaintiff took advantage of the state procedure.” Vialez v. New York City Hous. Auth., 783 F. Supp. 109, 114 (S.D.N.Y. 1991). New York law provides adequate remedies for any loss of property. See, e.g.,Cook v. City of New York, 607 F. Supp. 702, 704 (S.D.N.Y. 1985) (noting that the plaintiff had “a state law cause of action against [the] defendants for negligence, replevin, or conversion which could fully compensate him for his alleged property loss”); David v. N.Y.P.D 42nd Precinct Warrant Squad, No.02-CV-2581, 2004 WL 1878777, at *5 (S.D.N.Y. Aug. 23, 2004) (same).

Here, because New York provides adequate remedies to compensate Plaintiff for his allegedproperty loss, he cannot claim a denial of due process under the Fourteenth Amendment, even if he failed to take advantage of those remedies.The Court therefore dismisses Plaintiff’s due process claims, brought under §1983,for failure to state a claim on which relief may be granted. See28 U.S.C. § 1915(e)(2)(B)(ii). LEAVE TO AMEND Plaintiff is granted leave to amend his complaint to detail his Fourth Amendment claims. In the caption2 of the complaint and in the statement of claim, Plaintiff must name as the defendant(s) those individuals who were allegedly involved in the deprivation of his federal rights. If Plaintiff does not know the name of a defendant, he may refer to that individual as

“John Doe” or “Jane Doe” in both the caption and the body of the amended complaint.3The naming of “John Doe” or “Jane Doe” defendants, however, does not toll the limitations period governing this action, and Plaintiff shall be responsible for ascertaining the true identity of any

2The caption is located on the first page of the amended complaint. Each individual defendant must be named in the caption. Plaintiff may attach additional pages if there is not enough space to list all of the defendants in the caption. If Plaintiff needs to attach an additional page to list all defendants, he should write “see attached list” on the first page of the amended complaint. Any defendants named in the caption must also be discussed in the amended complaint’s statement of claim. 3 For example, a defendant may be identified as: “NYPDJane Doe #1 on dutyon July 11, 2018.” “John Doe” or “Jane Doe” defendants and amending his complaint to include the identity of any “John Doe” or “Jane Doe” defendants before the statute of limitations period expires. Should Plaintiff seek to add a new claim or party after the statute of limitations period has expired, he must meet the requirements of Rule 15(c) of the Federal Rules of Civil Procedure. 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. Plaintiff is also directed to provide the addresses for any named defendants. 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 violationoccurred; where such violationoccurred; and why Plaintiff is entitled to relief. 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. CONCLUSION The Court directs the Clerk of Court to mail a copy of this order to Plaintiff and note service on the docket. The Court grants Plaintiff 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 60 days of the date of this order, caption the document as an “Amended Complaint,” and label the document with docket number 20-CV-0995 (LLS). 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. SO ORDERED. Dated: September 2, 2020 New York, New York Leis Lo Staaten Louis L. Stanton U.S.D.J.

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

CVE TT a (clu ber if has b Write the full name of each plaintiff. evened) me eNews

against AMENDED

□ COMPLAINT ee Do you want a jury trial? LlYes ULINo

Write the full name of each defendant. If you need more space, please write “see attached” in the space above and attach an additional sheet of paper with the full list of names. The names listed above must be identical to those contained in Section Il.

NOTICE The public can access electronic court files. For privacy and security reasons, papers filed with the court should therefore not contain: an individual’s full social security number or full birth date; the full name of a person known to be a minor; or a complete financial account number. A filing may include only: the last four digits of a social security number; the year of an individual’s birth; a minor’s initials; and the last four digits of a financial account number. See Federal Rule of Civil Procedure 5.2.

Rev. 2/10/17

I. BASIS FOR JURISDICTION Federal courts are courts of limited jurisdiction (limited power). Generally, only two types of cases can be heard in federal court: cases involving a federal question and cases involving diversity of citizenship of the parties. Under 28 U.S.C. § 1331, a case arising under the United States Constitution or federal laws or treaties is a federal question case. Under 28 U.S.C. § 1332, a case in which a citizen of one State sues a citizen of another State or nation, and the amount in controversy is more than $75,000, is a diversity case. In a diversity case, no defendant may be a citizen of the same State as any plaintiff. What is the basis for federal-court jurisdiction in your case? [] Federal Question L] Diversity of Citizenship A. If you checked Federal Question Which of your federal constitutional or federal statutory rights have been violated?

B. If you checked Diversity of Citizenship 1. Citizenship of the parties Of what State is each party a citizen? The plaintiff , ,is a citizen of the State of (Plaintiff's name)

(State in which the person resides and intends to remain.) or, if not lawfully admitted for permanent residence in the United States, a citizen or subject of the foreign state of

If more than one plaintiff is named in the complaint, attach additional pages providing information for each additional plaintiff.

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If the defendant is an individual:

The defendant, , is a citizen of the State of (Defendant’s name)

or, if not lawfully admitted for permanent residence in the United States, a citizen or subject of the foreign state of . If the defendant is a corporation: The defendant, , is incorporated under the laws of the State of and has its principal place of business in the State of or is incorporated under the laws of (foreign state) and has its principal place of business in . If more than one defendant is named in the complaint, attach additional pages providing information for each additional defendant.

II. PARTIES A. Plaintiff Information Provide the following information for each plaintiff named in the complaint. Attach additional pages if needed.

First Name Middle Initial Last Name

Street Address

County, City State Zip Code

Telephone Number Email Address (if available) B. Defendant Information To the best of your ability, provide addresses where each defendant may be served. If the correct information is not provided, it could delay or prevent service of the complaint on the defendant. Make sure that the defendants listed below are the same as those listed in the caption. Attach additional pages if needed. Defendant 1: First Name Last Name

Current Job Title (or other identifying information)

Current Work Address (or other address where defendant may be served)

County, City State Zip Code Defendant 2: First Name Last Name

Current Job Title (or other identifying information)

Current Work Address (or other address where defendant may be served)

County, City State Zip Code Defendant 3: First Name Last Name

Current Job Title (or other identifying information)

Current Work Address (or other address where defendant may be served)

County, City State Zip Code Defendant 4: First Name Last Name

Current Job Title (or other identifying information)

Current Work Address (or other address where defendant may be served)

County, City State Zip Code III. STATEMENT OF CLAIM Place(s) of occurrence:

Date(s) of occurrence: FACTS: State here briefly the FACTS that support your case. Describe what happened, how you were harmed, and what each defendant personally did or failed to do that harmed you. Attach additional pages if needed. INJURIES: If you were injured as a result of these actions, describe your injuries and what medical treatment, if any, you required and received.

IV. RELIEF State briefly what money damages or other relief you want the court to order. V. PLAINTIFF’S CERTIFICATION AND WARNINGS By signing below, I certify to the best of my knowledge, information, and belief that: (1) the complaint is not being presented for an improper purpose (such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation); (2) the claims are supported by existing law or by a nonfrivolous argument to change existing law; (3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and (4) the complaint otherwise complies with the requirements of Federal Rule of Civil Procedure 11. agree to notify the Clerk's Office in writing of any changes to my mailing address. I understand that my failure to keep a current address on file with the Clerk's Office may result in the dismissal of my case.

Each Plaintiff must sign and date the complaint. Attach additional pages if necessary. If seeking to proceed without prepayment of fees, each plaintiff must also submit an IFP application.

Dated Plaintiff's Signature

First Name Middle Initial Last Name

Street Address

County, City State Zip Code

Telephone Number Email Address (if available)

I have read the Pro Se (Nonprisoner) Consent to Receive Documents Electronically: OYes [LINo If you do consent to receive documents electronically, submit the completed form with your complaint. If you do not consent, please do not attach the form.

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