Opinion
6:16-cv-01185 (NAM/TWD)
11-28-2016
NAKIA CHANEY, Plaintiff, v. ALBANY POLICE DEPARTMENT, et al., Defendants.
APPEARANCES: NAKIA CHANEY Plaintiff, pro se 913 Lincoln Avenue Schenectady, NY 13207
APPEARANCES: NAKIA CHANEY
Plaintiff, pro se
913 Lincoln Avenue
Schenectady, NY 13207 THÉRÈSE WILEY DANCKS, United States Magistrate Judge ORDER AND REPORT-RECOMMENDATION
The Clerk has sent for review a complaint brought by pro se Plaintiff Nakia Chaney. (Dkt. No. 1.) Plaintiff, a former inmate in the custody of the New York State Department of Corrections and Community Supervision ("DOCCS"), has not paid the filing fee for this action and seeks leave to proceed in forma pauperis ("IFP Application"). (Dkt. Nos. 2 and 3.)
At the time Plaintiff commenced this action, he was an inmate at the Mid-State Correctional Facility. (Dkt. No. 1.) Because Plaintiff has been released from DOCCS custody, his inmate authorization (Dkt. No. 3) is no longer necessary. (See Text Entry 10/03/2016.)
I. PLAINTIFF'S IFP APPLICATION
A court may grant in forma pauperis status if a party "is unable to pay" the standard fee for commencing an action. 28 U.S.C. § 1915(a)(1) (2006). After reviewing Plaintiff's IFP Application, the Court finds that Plaintiff meets this standard. Therefore, Plaintiff's IFP Application (Dkt. No. 2) is granted.
II. SUFFICIENCY OF THE COMPLAINT
A. Standard of Review
Even when a plaintiff meets the financial criteria for in forma pauperis, 28 U.S.C. § 1915(e) directs that when a person proceeds in forma pauperis, "the court shall dismiss the case at any time 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)(i)-(iii).
In determining whether an action is frivolous, the court must look to see whether the complaint lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). "An action is frivolous when either: (1) the factual contentions are clearly baseless such as when the claims 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) (citations and internal quotation marks omitted). Although extreme caution should be exercised in ordering sua sponte dismissal of a pro se complaint before the adverse party has been served and the parties have had an opportunity to respond, Anderson v. Coughlin, 700 F.2d 37, 41 (2d Cir. 1983), the court still has a responsibility to determine that a claim is not frivolous before permitting a plaintiff to proceed. See, e.g., Thomas v. Scully, 943 F.2d 259, 260 (2d Cir. 1991) (per curiam) (holding that a district court has the power to dismiss a complaint sua sponte if the complaint is frivolous).
To survive dismissal for failure to state a claim, a complaint must plead enough facts to state a claim that is "plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While Rule 8(a) of the Federal Rules of Civil Procedure, which sets forth the general rules of pleading, "does not require detailed factual allegations, . . . it demands more than an unadorned, the-defendant-harmed-me accusation." Id. In determining whether a complaint states a claim upon which relief may be granted, "the court must accept the material facts alleged in the complaint as true and construe all reasonable inferences in the plaintiff's favor." Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994) (citation omitted). "[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Iqbal, 556 U.S. at 678. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id.
Where a plaintiff proceeds pro se, the pleadings must be read liberally and construed to raise the strongest arguments they suggest. Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008) (citation omitted). A pro se complaint should not be dismissed "without giving leave to amend at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated." Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999) (citation and internal quotation marks omitted). An opportunity to amend is not required where "the problem with [the plaintiff's] causes of action is substantive" such that "better pleading will not cure it." Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000).
B. Summary of the Complaint
In his complaint, Plaintiff asserts claims against the Albany Police Department; Steven Krokoff, Albany Police Chief; Scott Gavigan, Badge #1826; Gorleski, Badge #2232; Koon, Badge #1952; Kevin Meehan, Badge #2407; John Doe Badge #889; Sheriff Craig Apple, Albany County Jail; the City of Albany; unknown John Does at the Albany County Jail; unknown John Does from the Albany Police; Vanhoesen, Badge #291, Schenectady County Jail; Reaulo, Badge #248, Schenectady County Jail; Sinatra, Badge #270, Schenectady County Jail; unknown John Does at the Schenectady County Jail; Schenectady County Sherriff Badge # SCP 065; unknown John Does from Schenectady Sherriff; Alan Bell, Niskayuna Police; the County of Albany; Albany County District Attorney David Soares; and the County of Schenectady. (Dkt. No. 1.) The following facts are set forth as alleged in the complaint.
The Clerk is directed to amend the caption of the complaint to add County of Albany, Albany County District Attorney David Soares, and County of Schenectady as Defendants.
Plaintiff's twenty-four page complaint combines the form "Inmate Civil Rights Complaint" and seventeen typewritten pages. (See generally Dkt. No. 1.) Page references identified by docket number are to the page number assigned by the Court's CM/ECF electronic docketing system. Where feasible, the Court references the order of paragraphs assigned by Plaintiff. Specifically pages six through twelve of Plaintiff's complaint are alphabetically ordered, whereas pages fourteen through twenty-one are numerically ordered. Id.
On December 28, 2013, Plaintiff was subjected to excessive force during an arrest by Schenectady County Sheriff Badge #065. Id. at ¶ F. Plaintiff was thrown to the ground and tasered while in handcuffs. Id. Plaintiff was also denied medical care. Id.
Plaintiff alleges he was subjected to visual body cavity searches performed by various Defendants at the Schenectady County Jail. Id. at ¶¶ A-D. Specifically, Vanhoesen performed an "unlawful admission visual body cavity search" on Plaintiff on August 8, 2014, August 15, 2014, and September 14, 2014. Id. at ¶ A. Reaulo performed an unlawful visual body cavity search on August 29, 2014. Id. at ¶ B. Sinatra performed an unlawful visual body cavity search on October 17, 2014. Id. ¶ C. Plaintiff also alleges John Does of the Schenectady County Sherriff's Department performed unlawful visual body cavity searches on December 28, 2013, May 8, 2014, August 1, 2014, and May 7, 2014. Id. at ¶ D.
On August 14, 2014, while Plaintiff was attempting to enter a store on Central Avenue, Plaintiff was subjected to excessive force by John Doe Badge #889 of the Albany Police Department. Id. at ¶ F. Specifically, Plaintiff was tackled, thrown to the ground, and placed in handcuffs. Id. Plaintiff alleges John Doe Badge #889 lacked probable cause for any use of excessive force, arrest, stop, or frisk, which took place at "gun point." Id. Plaintiff was also "humiliated as both of his private areas were searched in the public without probable cause." Id. Plaintiff alleges Defendant John Doe Badge #889 "had no justification to place his hands into [Plaintiff's] pants to conduct any searches." Id. Moreover, when Gavigan and members of his unit arrived at the scene, they performed their own search of Plaintiff's private areas. Id. at ¶ G. Plaintiff alleges Gavigan did not have probable cause to put his hands into Plaintiff's pants, and that there was no justified reason for this search. Id. Ultimately, Plaintiff was released at the scene and never charged with a crime. However, Plaintiff's vehicle was "unlawfully towed" by the Albany Police Department. Id.
On October 13, 2014, Gavigan, Gorleski, Koon, and Meehan, subjected Plaintiff to excessive force when they "roadblocked" Plaintiff's vehicle "at gun point and strong armed Plaintiff face down in the middle of interstate I-90." Id. at ¶ H. While Plaintiff was handcuffed, Gavigan and Koon performed a search of Plaintiff's private areas. Id. Plaintiff alleges Defendants lacked probable cause to "forcibly search" Plaintiff's underwear in public. Id. Thereafter, at the Albany Police Station, Gavigan ordered Plaintiff to be strip searched while "flanked and surrounded" by Gorleski, Koon, and Meehan. Id. at 9. During this "visual body cavity search," Defendants collected and searched Plaintiff's clothes and "shined flashlights into Plaintiff's anus." Id.
On October 13, 2014, Gavigan "falsified the arrest report/accusatory instrument" by indicating the red jacket found in the trunk belonged to Plaintiff as opposed to the owner and operator of the vehicle. Id. at ¶ J. As a result, Plaintiff alleges his due process rights were violated because the "perjured arrest report/accusatory instrument" did not meet the "requirements of CPL 100.40 and CPL 100.15" because Gavigan "failed to provide any facts to support his conclusory statements[.]" Id.
Plaintiff claims Gavigan used an "unlawful GPS tracking device to track several" of Plaintiff's vehicles without a warrant or probable cause. Id. at ¶ L. Gavigan also "used a device without a warrant that GPS tracked" Plaintiff's location through his cellular telephone in violation of the New York State Constitution and United States Constitution. Id. Gavigan "seized" $5,832.00 from Plaintiff. Id. at ¶ U. Plaintiff has "yet to receive a voucher or notification of forfeiture proceedings," and requests the return of his confiscated money. Id.
Plaintiff claims Bell, of the Niskayuna Police Department, requested that Gavigan "use the unlawful GPS tracking device." Id. at ¶ M. Specifically, Bell "controlled the GPS device" in the Town of Niskayuna and Gavigan "covered the GPS device" for the Albany Police Department without a warrant or probable cause. Id. Plaintiff alleges he was "unlawfully tracked" by his cellular telephone and/or vehicle for approximately nine months in violation of his right to privacy. Id.
Plaintiff alleges Apple and John Does conducted "unlawful visual body cavity searches" at the Albany County Jail on June 20, 2014, July 9, 2014, October 14, 2014, and October 17, 2014. Id. at ¶ I.
Plaintiff also alleges the City of Albany, the County of Albany, Albany County Police Chief Krokoff, and Albany County District Attorney David Soares created a "blanket policy" that led to the above violations of Plaintiff's constitutional rights as a result of their failure to discipline, lack of training, failure to hold officers accountable for intentional acts, and other acts that were foreseeable. Id. at ¶¶ K, T.
Plaintiff further alleges Police Chief Krokoff created a "blanket policy" allowing subordinate officers to file false police reports and to commit perjury in court proceedings. Id. at ¶ N. Krokoff also failed to discipline and hold the officers accountable for their illegal actions. Id. Plaintiff further alleges Krokoff created a blanket policy that that allowed all officers to arrest in the absence of probably cause. Id. Plaintiff further alleges the City of Albany, the County of Albany, and Albany County District Attorney David Soares created "a custom and policy that allowed the officers to get away with perjury within arrest/reports/accusatory instruments, trials, suppression hearings[.]" Id. at ¶ O.
Paragraphs P, Q, R, and S of Plaintiff's complaint do not state a claim upon which relief can be granted. In deference to Plaintiff's pro se status, the Court interprets Paragraphs P, Q, R, and S, as further support for the claims against the City of Albany, the County of Albany, Albany Police Chief Krokoff, and Albany County District Attorney Soares.
Lastly, Plaintiff claims that the admission policy at the Albany County Jail and the Schenectady County Jail to "conduct visual body cavity searches and other searches" in which Plaintiff was "forced to undress and spread apart his rectal and lift up his penis was without justification as there was no reason to believe that weapons or contraband was being concealed on or in the body" violated his constitutional rights. Id. at ¶ 45.
Plaintiff has organized the above events into nine causes of actions:
1. For the unlawful admission visual body cavity searches conducted on the various dates at the Schenectady County Jail by various Defendants, Plaintiff seeks 47 million dollars in damages;
2. For the unlawful admission visual body cavity searches conducted on the various dates at the Albany County Jail by various Defendants, Plaintiff seeks 33 million dollars in damages;
3. For the unlawful visual cavity body searches conducted on various dates by various Defendants at the Albany Police Station, Plaintiff seeks 27 million dollars in damages;Id. at 22-23. Plaintiff also seeks an award of punitive damages. Id. at 23. For a complete statement of Plaintiff's claims and the facts he relies on in support of those claims, reference is made to the complaint.
4. For the August 14, 2014, "unlawful gun point stop, arrest or frisk, forcible touching of both private areas in the public, excessive force, and legal abuse of process" against the Albany police involved, Plaintiff seeks 77 million dollars in damages;
5. For the October 13, 2014, "unlawful gunpoint arrest, stop, or frisk, forcible touching of both private areas, sexual assault, excessive force, and abuse of legal process" against the Albany police involved, Plaintiff seeks 77 million dollars in damages;
6. For "unlawfully tracking" Plaintiff's "every move" for over nine months without a warrant, Plaintiff seeks 44 million dollars in damages;
7. Likewise, for the "unlawful tracking" for over nine months without a warrant, plaintiff seeks 100 million dollars in damages as to all Defendants;
8. For the December 28, 2013, use of excessive force, including unlawfully tasering Plaintiff while he was in handcuffs, Plaintiff seeks 150 million dollars against Defendant SCP 065 of the Schenectady County Sheriff's Department; and
9. For the October 13, 2014, and August, 14, 2014, "touching of Plaintiff's private parts," Plaintiff seeks 200 million dollars.
Because the relationship, if any, between the claims asserted in this action, Plaintiff's incarceration at the Mid-State Correctional Facility at the time he commenced this action, and his subsequent release from DOCCS custody is unclear, the Court finds that any determination as to the applicability of Heck v. Humphrey, 512 U.S. 477 (1994) is premature and has undertaken its initial review of the sufficiency of Plaintiff's claims without regard to Heck.
Plaintiff commenced this action pursuant to 42 U.S.C. § 1983, alleging numerous claims sounding in illegal search and seizure, excessive force, false arrest, violations of due process and privacy, and negligence in violation of his constitutional rights and the laws of New York State. (See generally Dkt. No. 1.)
As a general matter, section 1983 "establishes a cause of action for 'the deprivation of any rights, privileges, or immunities secured by the Constitution and laws' of the United States." German v. Fed. Home Loan Mortg. Corp., 885 F. Supp. 537, 573 (S.D.N.Y. 1995) (citing Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983)). "Section 1983 'is not itself a source of substantive rights[,]' . . . but merely provides 'a method for vindicating federal rights elsewhere conferred[.]" Patterson v. Cty. of Oneida, 375 F.3d 206, 225 (2d Cir. 2004) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3, 99 (1979)). In order to state a claim pursuant to section 1983, a plaintiff must allege "(1) 'that some person has deprived him of a federal right,' and (2) 'that the person who has deprived him of that right acted under color of state . . . law.'" Velez v. Levy, 401 F.3d 75, 84 (2d Cir. 2005) (quoting Gomez v. Toledo, 446 U.S. 635, 640 (1980)).
1. Individual Defendants
It is well-settled that "personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983." Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994) (quoting Moffitt v. Town of Brookfield, 950 F.2d 880, 885 (2d Cir. 1991)); Iqbal, 556 U.S. at 676. "[A] Section 1983 plaintiff must 'allege a tangible connection between the acts of the defendant and the injuries suffered.'" Austin v. Pappas, No. 04-CV-7263, 2008 WL 857528, at *2 (S.D.N.Y. Mar. 31, 2008) (quoting Bass v. Jackson, 790 F.2d 260, 263 (2d Cir. 1986)) (other citation omitted). "[V]icarious liability is inapplicable to . . . § 1983 suits." Iqbal, 556 U.S. at 676.
Copies of all unpublished decisions will be provided to Plaintiff in accordance with LeBron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
Plaintiff alleges Defendants Gavigan, Gorleski, Koon, Meehan, John Doe Badge #889, Sheriff Apple, Vanhoesen, Reaulo, Sinatra, Schenectady County Sherriff Badge # SCP 065, Bell, John Does at the Albany County Jail, John Does from the Albany Police, John Does at the Schenectady County Jail, and John Does from Schenectady Sherriff's Office, subjected Plaintiff on numerous occasions to, inter alia, illegal search and seizures, excessive force, denial of medical care, and violations of due process and privacy under the Fourth, Fifth, and Fourteenth Amendments. (Dkt. No. 1 at ¶¶ A-I; L-M.)
Mindful of the Second Circuit's instruction that a pro se plaintiff's pleadings must be liberally construed, the Court recommends that Plaintiff's § 1983 claims against individual Defendants Gavigan, Gorleski, Koon, Meehan, John Doe Badge # 889, Sheriff Apple, Vanhoesen, Reaulo, Sinatra, Schenectady County Sherriff Badge # SCP 065, Bell, and all John Does survive initial review and require a response. In so recommending, the Court expresses no opinion as to whether Plaintiff's claims can withstand a properly filed motion to dismiss or for summary judgment.
2. Steven Krokoff, Albany Police Chief
Plaintiff also bring supervisory liability claims against Steven Krokoff, Albany Police Chief. (Dkt. No. 1 at ¶¶ K, N, P, T.) "Because vicarious liability is inapplicable to . . . § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution." Iqbal, 556 U.S. at 676 ("Government officials may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior."). "Holding a position in a hierarchical chain of command, without more, is insufficient to support a showing of personal involvement." Groves v. Davis, No. 9:11-CV-1317 (GTS/RFT), 2012 WL 651919, at *6 (N.D.N.Y. Feb. 28, 2012) (citing McKinnon, 568 F.2d at 934); see also Richardson v. Goord, 347 F.3d 431, 435 (2d Cir. 2003) (a "mere 'linkage in the prison chain of command' is insufficient to implicate a state commissioner of corrections . . . in a § 1983 claim") (quoting Ayers v. Coughlin, 780 F.2d 205, 210 (2d Cir. 1985)). Therefore, "a plaintiff must . . . allege a tangible connection between the acts of a defendant and the injuries suffered." Bass v. Jackson, 790 F.2d 260, 263 (2d Cir. 1986).
The Second Circuit has held that personal involvement by a supervisor necessary to state a claim under § 1983 maybe found where: "(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 inmates by failing to act on information indicating that unconstitutional acts were occurring." Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995).
Here, Plaintiff alleges Krokoff failed to properly discipline and train his subordinates, which led to the above-referenced constitutional violations. (Dkt. No. 1 at ¶ K.) Plaintiff also alleges Krokoff "failed to implement a policy as a check and balance to detect perjury with the arrest reports or accusatory instruments" by: (1) failing to discipline and hold the officers accountable for perjury within the arrest reports/accusatory instrument or when testifying at suppression hearings and/or trials, (2) failing to train officers as to the requirements of "CPL 100.40 and CPL 100.15," and also by failing to hold his officers accountable for such violations, (3) creating a "blanket policy" that allowed his officers to commit perjury, as they would not be held accountable, (4) creating a "blanket policy" that allowed his officers to violate due process rights by committing perjury and filing false reports, (5) failing to implement a policy that "screened all arrest reports/accusatory instruments for facial and jurisdictional defects prior to infringing upon" due process liberty rights, and (6) creating a "blanket policy" that allowed all officers to arrest in the "absence of probable cause" and in the "absence of a procedure that detects perjury, facial sufficiency or jurisdictional defects." Id. at ¶ N. Plaintiff further alleges Defendant Krokoff "created a blanket policy/custom" by permitting unlawful stops, frisks without probable cause or the filings of "perjurous" police reports that led to unwarranted malicious prosecution or deprivation of due process liberty rights, by failing to discipline, train, or hold officers accountable for their actions. Id.
Mindful of the Second Circuit's instruction that a pro se plaintiff's pleadings must be liberally construed, the Court recommends that Plaintiff's § 1983 claims against Krokoff survive initial review and require a response. In so recommending, the Court expresses no opinion as to whether Plaintiff's claims can withstand a properly filed motion to dismiss or for summary judgment.
3. Municipal Defendants
While amenable to suit under section 1983, a municipality may not be held liable under that section for the acts of its employees based on a theory of respondeat superior. Monell v. Dep't of Social Servs. of City of New York, 436 U.S. 658, 691 (1978); Blond v. City of Schenectady, No. 10-CV-0598 (TJM), 2010 WL 4316810, at *3 (N.D.N.Y. Oct. 26, 2010). In order to sustain a section 1983 claim for municipal liability, a plaintiff must show that he suffered a constitutional violation, and that the violation resulted from an identified municipal policy or custom. Monell, 436 U.S. at 694-695.
An "official policy or custom" can be shown in several ways: (1) a formal policy officially endorsed by the municipality; (2) actions taken by government officials responsible for establishing municipal policies related to the particular deprivation in question; (3) a practice so consistent and widespread that it constitutes a custom or usage sufficient to impute constructive knowledge of the practice to policymaking officials; or (4) a failure by policymakers to train or supervise subordinates to such an extent that it amounts to deliberate indifference to the rights of those who come in contact with the municipal employees. Dorsett-Felicelli, Inc. v. Cty. of Clinton, 371 F. Supp. 2d 183, 194 (N.D.N.Y. 2005) (citing Monell, 436 U.S. at 690-91). "Custom denotes persistent and widespread practices, and thus proof of a single incident of unconstitutional activity is not sufficient to impose liability under Monell . . . ." Ahern v. City of Syracuse, 411 F. Supp. 2d 132, 139 (N.D.N.Y. 2006) (punctuation and citation omitted).
A local government entity's alleged failure to train its employees creates liability under section 1983 only "[i]n limited circumstances." Connick v. Thompson, 563 U.S. 51, 61 (2011). Indeed, a "municipality's culpability for a deprivation of rights is at its most tenuous where a claim turns on a failure to train." Id. The "stringent standard" of deliberate indifference applies to failure-to-train claims. Id. In order to prevail, the plaintiff must demonstrate that the municipality was "on actual or constructive notice that a particular omission in [its] training program causes . . . employees to violate citizens' constitutional rights [and] the policymakers chose to retain that program." Id. (citing Bd. of Cty. Comm'rs v. Brown, 520 U.S. 397, 409 (1997)).
Plaintiff appears to allege, under the fourth theory, that the City of Albany, the County of Albany, and the County of Schenectady all had a custom or policy of tolerating the use of excessive force and police misconduct in executing arrests, and engaging in illegal search and seizures, including visual body cavity searches without probable cause, and that each municipality failed to properly train or supervises it officers in these areas. (Dkt. No. 1 at ¶¶ K, T, N, O.) "A pattern of similar constitutional violations by untrained employees is 'ordinarily necessary' to demonstrate deliberate indifference for purposes of failure to train." Connick v. Thompson, 563 U.S. 51, 62 (2011). Plaintiff's assertions, read liberally and in combination with the facts in the complaint, sufficiently allege a "series of incidents" during with Plaintiff was subjected to excessive force and illegal search and seizures, "to warrant an inference that their conduct was attributable to inadequate training or supervision amounting to deliberate indifference." Watson v. Doe, No. 1:15-cv-1356 (BKS/DEP), 2016 WL 347339, at *3 (N.D.N.Y. Jan. 28, 2016) (collecting cases).
Plaintiff also appears to allege, under the first theory, that the admission policy at both the Albany County Jail and Schenectady County Jail to conduct visual body cavity searches "without justification as there was no reason to believe that weapons or contract was being concealed on or in the body" violated his constitutional rights. (Dkt. No. 1 at ¶ 45.)
Mindful of the Second Circuit's instruction that a pro se plaintiff's pleadings must be liberally construed, the Court recommends that Plaintiff's § 1983 claims against the City of Albany, the County of Albany, and the County of Schenectady survive initial review and require a response. In so recommending, the Court expresses no opinion as to whether Plaintiff's claims can withstand a properly filed motion to dismiss or for summary judgment.
4. Albany Police Department
Although "[a] police department is an administrative arm of [a] municipal corporation[,] . . . [it] cannot sue or be sued because it does not exist separate and apart from the municipality and does not have its own legal identity." Baker v. Willett, 42 F. Supp. 2d 192, 198 (N.D.N.Y. 1999) (citing Loria v. Town of Irondequoit, 775 F. Supp. 599, 606 (W.D.N.Y. 1990)); accord Jenkins v. Liadka, No. 10-CV-1223 (GTS/DEP), 2012 WL 4052286, at *5 (N.D.N.Y. Sept. 13, 2012). Therefore, the Court recommends dismissing Plaintiff's § 1983 claims against Defendant Albany Police Department with prejudice.
5. Albany County District Attorney David Soares
There are no allegations in the complaint that support a cognizable claim against Albany County District Attorney Soares. (See Dkt. No. 1 at ¶¶ K, O, P, R.) Plaintiff alleges Soares "created a blanket policy as no police officer has been held accountable by his office in regard to perjury, stops or frisks without probably cause, searching both private areas without a warrant, filing accusatory instruments that failed to meet the requirements of CPL 100.40 and CPL 100.15, infringing upon plaintiff due process liberty rights." Id. at ¶ R. Plaintiff alleges Soares "also prosecutes in the absence of the jurisdictional requirement of CPL 100.40 and CPL 100.15 as there are never no factual allegations used in [ ] support of the [A]lbany police conclusory allegations." Id.
It is well-settled that "prosecutors are entitled to absolute immunity for that conduct 'intimately associated with the judicial phase of the criminal process.'" Hill v. City of New York, 45 F.3d 653, 660-61 (2d Cir. 1995) (quoting Imbler v. Pachtman, 424 U.S. 409, 430 (1976)). "In determining whether absolute immunity obtains, we apply a 'functional approach,' looking at the function being performed rather than to the office or identity of the defendant." Id. at 660 (quoting Buckley v. Fitzsimmons, 509 U.S. 259, 269 (1993)); see also Bernard v. County of Suffolk, 356 F.3d 495, 504 (2d Cir. 2004) ("The appropriate inquiry . . . is not whether authorized acts are performed with a good or bad motive, but whether the acts at issue are beyond the prosecutor's authority."); Dory v. Ryan, 25 F.3d 81, 83 (2d Cir. 1994) (finding that prosecutorial immunity protects prosecutors from liability under § 1983 "for virtually all acts, regardless of motivation, associated with his function as an advocate").
Further, because the police and district attorneys have complete discretion over the decision to investigate, arrest and prosecute, and private citizens lack a judicially cognizable interest in prosecution or non-prosecution of a third party, Plaintiff has no claim against Soares. See Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973) (a private citizen lacks a judicially cognizable interest in the prosecution or non-prosecution of another).
Based on the foregoing, the Court recommends dismissing Plaintiff's § 1983 claims against Albany County District Attorney David Soares with prejudice.
6. Request for Counsel and Private Investigator
Plaintiff's request for counsel and a private investigator is denied. (Dkt. No. 1 at ¶ 13.) Plaintiff states that if an attorney was assigned to represent him in this action, he would have a "better success rate and more accountability." Id. Plaintiff further states that Defendants "should not be allowed to escape accountability" because Plaintiff is a layman and did not attend law school. Id. Plaintiff also claims if counsel and a private investigator were assigned to him, "there will be countless cases to establish a pattern" and policy violating constitutional rights. Id. at ¶ 54.
When moving for the appointment of counsel, a party must demonstrate that he is unable to obtain counsel through the private sector or public interest firms. Cooper v. A. Sargenti Co., Inc., 877 F.2d 170, 173-74 (2d Cir. 1989) (quoting Hodge v. Police Officers, 802 F.2d 58, 61 (2d Cir. 1986)). Here, Plaintiff has made no such showing. Even if Plaintiff had shown that he is unable to obtain counsel through the private sector or public interest firms, a more fully developed record would be necessary before an assessment can be made as to whether counsel should be appointed. See Hendricks v. Coughlin, 114 F.3d 390, 392 (2d Cir. 1997) (court must look to the likelihood of merit of the underlying dispute in determining whether to appoint counsel). Similarly, Plaintiff has not provided a sufficient explanation for why the Court should appoint a private investigator. See, e.g., Barnes v. Alves, No. 01-cv-6559 EAW, 2014 WL 2435807, at *8 (W.D.N.Y. May 30, 2014) (denying request for appointment of private investigator, and noting if he was able to do so, the plaintiff could personally hire and utilize the services of a private investigator).
In the event the District Court allows this action to proceed, Plaintiff is directed to attempt to obtain counsel from the private sector or public interest firms prior to filing a motion for appointment of counsel.
7. Plaintiff's Remaining Claims
The Court has reviewed the remaining allegations of Plaintiff's complaint, all of which seek discovery, are confusing, state legal conclusions, and/or fail to state a claim upon which relief can be granted. (See Dkt. No. 1 at ¶¶ 1-12, 14-44; 46-54.)
D. Conclusion
Based on the foregoing, Plaintiff's section 1983 claims asserted against the Albany Police Department and Albany County District Attorney David Soares fail to state a claim upon which relief may be granted due to deficient pleadings and/or because named Defendants are immune from suit. Further, Plaintiff's request for discovery, counsel, and a private investigator is denied without prejudice.
The Court finds that the remaining claims asserted in Plaintiff's complaint, which contain a fair number of detailed factual allegations against the Defendants, is sufficient to pass muster under the relatively modest test of 28 U.S.C. § 1915(e). No determination is made by the Court, however, as to the merits of those remaining claims, and whether they may withstand a properly filed motion to dismiss or for summary judgment.
ACCORDINGLY, it is hereby
ORDERED that Plaintiff's IFP Application (Dkt. No. 2) is GRANTED; and it is further
Plaintiff should note that although his IFP application has been granted, Plaintiff will still be required to pay fees that he may incur in this action, including copying and/or witness fees. --------
ORDERED that the Clerk is directed to amend the caption of the complaint to add County of Albany, Albany County District Attorney David Soares, and County of Schenectady as Defendants; and it is further
RECOMMENDED that the complaint be DISMISSED WITH PREJUDICE as against Albany Police Department and Albany District Attorney David Soares; and it is further
RECOMMENDED that this action be allowed to proceed against all other Defendants, and that Defendants or their counsel be required to file a response as provided for in Rule 12 of the Federal Rules of Civil Procedure; and it is further
ORDERED that Plaintiff's requests for discovery, appointment of counsel, and a private investigator are DENIED WITHOUT PREJUDICE; and it is further
ORDERED that the Clerk serve a copy of this Order and Report-Recommendation on Plaintiff, along with a copy of the unpublished decisions cited herein in accordance with the Second Circuit's decision in Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Sec'y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1) (Supp. 2013); Fed. R. Civ. P. 72, 6(a). Dated: November 28, 2016
Syracuse, New York
/s/_________
Théfèse Wiley Dancks
United States Magistrate Judge