Washington v. New York Police Department

• Court: District Court, S.D. New York
• Decided: August 8, 2023
• Docket: 1:23-cv-05820
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK CHARMEEN D. WASHINGTON, Plaintiff, 23-CV-5820 (LTS) -against- ORDER TO AMEND NEW YORK POLICE DEPARTMENT; MS. VASQUEZ, Defendants. LAURA TAYLOR SWAIN, Chief United States District Judge: Plaintiff, who is appearing pro se, brings this action invoking the Court’s federal question jurisdiction. By order dated July 11, 2023, the Court granted Plaintiff’s request to proceed in forma pauperis (IFP), that is, without prepayment of fees. Plaintiff also submits an application for the Court to request pro bono counsel. For the reasons set forth below, the Court grants Plaintiff leave to file an amended complaint within 60 days of the date of this order. STANDARD OF REVIEW The Court must dismiss an in forma pauperis complaint, or any portion of the complaint, that is frivolous or malicious, fails to state a claim on 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); see Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998). The Court must also dismiss a complaint when the Court lacks subject matter jurisdiction of the claims raised. 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.

Rule 8 requires a complaint to 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 invokes the Court’s federal question jurisdiction and asserts violations of her

“civil rights” and “grand lawseny.” (ECF 1 at 2.) She states that her claims arose on July 4, 2023, on the corner of 42nd Street and Third Avenue in Manhattan. Plaintiff was “talking to the radio in [her] auditory tube ben[ea]th [her] skin,” when someone in “plain clothing,” whom she had previously seen in an “NYPD suit,” turned suddenly to “jump in [Plaintiff’s] face.” (Id. at 5.) The person also “threatened to fight and hit” Plaintiff. (Id.) Plaintiff filed a complaint about this incident with NYPD Detective Vasquez. (Id.) The following day, the individual “came around [Plaintiff’s] neighborhood.” (Id.) Plaintiff contends that she suffered “harassment,” and a “slight stroke.” (Id. at 6.) Plaintiff sues the NYPD and Detective Vasquez, seeking “the largest amount of cash money [she] can get.” (Id.) DISCUSSION A. New York Police Department Plaintiff’s claims against the NYPD must be dismissed because the NYPD lacks the capacity to be sued in the name of the agency. 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.”). Moreover, there does not appear to be any proper basis for substituting the City of New York as a defendant in place of the NYPD. To assert a civil rights claim against the City of New York under 42 U.S.C. § 1983, it is not enough for the plaintiff to allege that one of the City of New York’s employees or agents engaged in some wrongdoing. The plaintiff must show that the

municipality itself caused the violation of the plaintiff’s rights. See Connick v. Thompson, 563 U.S. 51, 60 (2011) (“A municipality or other local government may be liable under this section [1983] if the governmental body itself ‘subjects’ a person to a deprivation of rights or ‘causes’ a person ‘to be subjected’ to such deprivation.”) (quoting Monell v. Dep’t of Soc. Servs. Of City of New York, 436 U.S. 658, 692 (1978)); Cash v. Cnty. Of Erie, 654 F.3d 324, 333 (2d Cir. 2011). In other words, to state a Section 1983 claim against a municipality, the plaintiff must allege facts showing (1) the existence of a municipal policy, custom, or practice, and (2) that the policy, custom, or practice caused the violation of the plaintiff’s constitutional rights. See Jones v. Town of East Haven, 691 F.3d 72, 80 (2d Cir. 2012); Bd. Of Cnty. Comm’rs of Bryan Cnty. V. Brown, 520 U.S. 397, 403 (1997). The allegations of the complaint do not show that the City of New York, through its policies, customs, or practices, caused a violation of Plaintiff’s rights, and therefore there is no proper basis for substituting the City of New York as a defendant in place of the NYPD.

B. Detective Vasquez Plaintiff alleges that she filed a complaint with NYPD Detective Vasquez about her interaction with someone at 42nd Street and Third Avenue. Plaintiff names Detective Vasquez as a defendant in this suit but Plaintiff’s allegation that Detective Vasquez accepted her complaint does not show that this defendant was personally involved in a violation of Plaintiff’s civil rights. See Spavone v. N.Y. State Dep’ t of Corr. Serv., 719 F.3d 127, 135 (2d Cir. 2013) (“It is well settled in this Circuit that personal involvement of defendants in the alleged constitutional deprivations is a prerequisite to an award of damages under § 1983.”) (internal quotation marks omitted). Plaintiff’s allegations against Detective Vasquez thus fail to state a claim upon which relief may be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii).

C. Excessive Force The gravamen of Plaintiff’s complaint is that an individual who was walking on a public street turned suddenly and “threatened to fight and hit” her. (ECF 1 at 5.) Plaintiff suggests that the individual, although wearing plain clothes,” was someone who she had seen previously in a different neighborhood wearing an NYPD uniform. Here, as an initial matter, Plaintiff has not named the “John Doe” or “Jane Doe” police officer who allegedly threatened her as a defendant in this matter. Moreover, even if Plaintiff had named a “Doe” officer, she does not plead enough facts about this individual to enable the NYPD to identify the person. Finally, as explained below, these allegations are insufficient to state a claim for a violation of Plaintiff’s constitutional rights. “[C]laims that law enforcement officers have used excessive force . . . in the course of an arrest, investigatory stop, or other ‘seizure’ of a free citizen should be analyzed under the Fourth Amendment and its ‘reasonableness’ standard.” Graham v. Connor, 490 U.S. 386, 395 (1989). In evaluating an excessive force claim against a police officer under the Fourth Amendment, the

central question is “whether the officers’ actions are objectively reasonable in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.” Id. at 396 (quotations omitted). The reasonableness of an officer’s force depends on the totality of the circumstances and involves a “careful balancing of the nature and quality of the intrusion on the individual’s Fourth Amendment interests’ against the countervailing governmental interests at stake.” Id. In some contexts, courts in this Circuit have found a Fourth Amendment violation in situations involving verbal threats. See, e.g., Green v. City of Mount Vernon, 96 F. Supp. 3d 263, 296 (S.D.N.Y. 2015) (concluding that “verbal threats, combined with the brandishing of the weapon, could be unreasonable and therefore constitute excessive force”); Lilakos v. New York

City, No. 14-CV-05288, 2016 WL 5928674, at *6 (E.D.N.Y. Sept. 30, 2016) (plaintiff stated a claim for excessive force where he alleged that “[w]hen he told [officers] he had a cramp in his leg . . . one cop threatened to hurt [him] with his gun if he didn’t stay on his knees”), aff’d, 808 F. App’x 4 (2d Cir. 2020). Moreover, a plaintiff need not always sustain lasting injuries to state a claim for excessive force. Graham v. City of New York, 928 F. Supp. 2d 610, 618 (E.D.N.Y. 2013) (“Defendants are liable as long as the force used exceeded the force needed for the factual circumstances, and the fact that Plaintiff may not have sustained serious long lasting harm is not dispositive.”). Even though verbal threats have been found sufficient to constitute excessive force in some contexts, Plaintiff’s allegation that an individual on 42nd Street threatened to hit her does not provide enough factual context to state a claim under Section 1983 for a violation of her right under the Fourth Amendment to be free from excessive force. 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). Indeed, the Second Circuit has cautioned that district courts “should not dismiss [a pro se complaint] without granting leave to amend at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated.” Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (quoting Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999)). Because Plaintiff may be able to allege additional facts to state a valid claim, the Court grants Plaintiff 60 days’ leave to amend her complaint to detail her claims. Plaintiff is granted leave to amend her complaint to provide more facts about her claims. First, Plaintiff must name as the defendant(s) in the caption and in the statement of claim those

individuals who were allegedly involved in the deprivation of his federal rights. If Plaintiff does not know the name of a defendant, she may refer to that individual as “John Doe” or “Jane Doe” in both the caption and the body of the amended complaint.1 The naming of John Doe defendants, however, does not toll the three-year statute of limitations period governing this action and Plaintiff shall be responsible for ascertaining the true identity of any “John Doe” defendants and amending his complaint to include the identity of any “John Doe” defendants

1 For example, a defendant may be identified as: “Correction Officer John Doe #1 on duty August 31, 2022, at Sullivan Correctional Facility, during the 7-3 p.m. shift.” before the statute of limitations period expires. In the “Statement of Claim” section of the amended complaint form, Plaintiff must provide a short and plain statement of the relevant facts supporting each claim against each defendant. If Plaintiff has an address for any named defendant, Plaintiff must provide it. Plaintiff should include all of the information in the

amended complaint that Plaintiff wants the Court to consider in deciding whether the amended complaint states a claim for relief. That information should include: a) the names and titles of all relevant people; b) a description of all relevant events, including what each defendant did or failed to do, the approximate date and time of each event, and the general location where each event occurred; c) a description of the injuries Plaintiff suffered; and d) the relief Plaintiff seeks, such as money damages, injunctive relief, or declaratory relief. Essentially, Plaintiff’s amended complaint should tell the Court: who violated her federally protected rights; how, when, and where such violations occurred; and why Plaintiff is entitled to relief. If Plaintiff seeks to assert a claim against the City of New York, she must plead facts showing that a policy or custom of the City of New York caused a violation of her rights. Because Plaintiff’s amended complaint will completely replace, not supplement, the original complaint, any facts or claims that Plaintiff wants to include from the original complaint must be repeated in the amended complaint. D. Application for the Court to request pro bono counsel Plaintiff has submitted an application for the Court to request pro bono counsel. The factors to be considered in ruling on an indigent litigant’s request for counsel include the merits of the case, Plaintiff’s efforts to obtain a lawyer, and Plaintiff’s ability to gather the facts and present the case if unassisted by counsel. See Cooper v. A. Sargenti Co., 877 F.2d 170, 172 (2d Cir. 1989); Hodge v. Police Officers, 802 F.2d 58, 60-62 (2d Cir. 1986). Of these, the merits are “[t]he factor which command[s] the most attention.” Cooper, 877 F.2d at 172. Because Plaintiff’s complaint fails to state a claim against any named defendant, Plaintiff’s motion for counsel is at this stage denied, without prejudice to renewal after she files an amended complaint.

Nevertheless, Plaintiff may wish to consider contacting the New York Legal Assistance Group’s (NYLAG) Clinic for Pro Se Litigants in the Southern District of New York, which is a free legal clinic staffed by attorneys and paralegals to assist those who are representing themselves in civil lawsuits in this court. The clinic is run by a private organization; it is not part of, or run by, the court. It cannot accept filings on behalf of the court, which must still be made by any pro se party through the Pro Se Intake Unit. A copy of the flyer with details of the clinic is attached to this order. CONCLUSION Plaintiff’s application for the Court to request pro bono counsel (ECF 4) is denied. 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 60

days of the date of this order, caption the document as an “Amended Complaint,” and label the document with docket number 23-CV-5820 (LTS). An Amended Complaint form is attached to this order. No summons will issue at this time. If Plaintiff fails to comply within the time allowed, and she cannot show good cause to excuse such failure, the complaint will be dismissed for failure to state a claim upon which relief may 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 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: August 8, 2023 New York, New York

/s/ Laura Taylor Swain LAURA TAYLOR SWAIN Chief United States District Judge UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

_____CV_______________ (Include case number if one has been Write the full name of each plaintiff. assigned)

AMENDED -against-

COMPLAINT

Do you want a jury trial? ☐ Yes ☐ No

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 II.

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

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

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

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

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. I 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

Telephone Number Email Address (if available)

I have read the Pro Se (Nonprisoner) Consent to Receive Documents Electronically: ☐ Yes ☐ No 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.