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dismissing with prejudice and without leave to amend, claims against police officers in their official capacities based on the doctrine of immunity pursuant to the Eleventh Amendment
Summary of this case from Sonnick v. BudlongOpinion
5:16-cv-00647 (GLS/TWD)
06-24-2016
KELVIN JACKSON, Plaintiff, v. JOHN GUNSALUS, et al., Defendants.
APPEARANCES: KELVIN JACKSON Plaintiff, pro se 157 Parkway Dr. Syracuse, New York 13207
APPEARANCES: KELVIN JACKSON
Plaintiff, pro se
157 Parkway Dr.
Syracuse, New York 13207 THÉRÈSE WILEY DANCKS, United States Magistrate Judge REPORT-RECOMMENDATION AND ORDER
The Clerk has sent this pro se complaint to the Court for review. (Dkt. No. 1.) Plaintiff commenced this action under 42 U.S.C. § 1983, naming the City of Syracuse, the Syracuse Police Department, and four members of the Syracuse Police Department as Defendants. Id. Generally, Plaintiff alleges he was subjected to excessive force during his arrest in violation of his civil rights and New York State tort law. Id. at ¶¶ 4-5. Plaintiff seeks monetary damages for his pain, suffering, and mental anguish. Id. at ¶ 6.
I. SCREENING OF THE COMPLAINT
Having previously found that Plaintiff meets the financial criteria for commencing this action in forma pauperis (Dkt. No. 4), the Court must consider the sufficiency of the allegations set forth in the complaint pursuant to 28 U.S.C. § 1915(e). Section 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).
II. COMPLAINT
Plaintiff alleges that Syracuse Police Officers John Gunsalus and William Lashomb used excessive force during an arrest. (Dkt. No. 1. at ¶ 4.) Specifically, Plaintiff alleges that Defendant Gunsalus struck Plaintiff in the face and body with a closed fist, causing facial contusions. Id. Plaintiff further alleges that Defendant Lashomb struck Plaintiff in the back, which led to multiple fractures. Id. Plaintiff also brings supervisory liability claims against Defendants Sergeant Michael Smith and Chief Frank Fowler. Id. Lastly, Plaintiff names the Syracuse Police Department and the City of Syracuse as Defendants because they are the entities that employ Defendants Gunsalus, Lashomb, Smith, and Fowler. Id.
III. ANALYSIS
A. Police Officers in their Official Capacities
Plaintiff seeks monetary damages from Defendants "as Police Officers and in [their] Individual capacity." Id. To the extent that Plaintiff's complaint can be construed to raise claims against Defendants Gunsalus, Lashomb, Smith, and Fowler in their official capacities for violations of the Fourth Amendment, such claims cannot stand.
The Eleventh Amendment provides that "[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." U.S. Const. amend. XI. Regardless of the nature of the relief sought, in the absence of the State's consent or waiver of immunity, a suit against the State or one of its agencies or departments is proscribed by the Eleventh Amendment. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984). "New York State has not consented to suit in federal court." Abrahams v. Appellate Div. of Supreme Court, 473 F. Supp. 2d 550, 556 (S.D.N.Y. 2007) (citing Trotman v. Palisades Interstate Park Comm'n, 557 F.2d 35, 38-40 (2d. Cir. 1977)).
Section 1983 claims do not abrogate the Eleventh Amendment immunity of the states. See Quern v. Jordan, 440 U.S. 332, 340-41 (1979). "[C]laims against a government employee in his official capacity are treated as a claim against the municipality," and, thus, cannot stand under the Eleventh Amendment. Hines v. City of Albany, 542 F. Supp. 2d 218, 227 (N.D.N.Y. 2008).
Accordingly, the Court recommends that all claims against Defendants Gunsalus, Lashomb, Smith, and Fowler in their official capacities be dismissed with prejudice and without leave to amend.
B. Gunsalus and Lashomb
"The Fourth Amendment protects individuals from the government's use of excessive force when detaining or arresting individuals." Jones v. Parmley, 465 F.3d 46, 61 (2d Cir. 2006) (citing Thomas v. Roach, 165 F.3d 137, 143 (2d Cir. 1999)). "When determining whether police officers have employed excessive force in the arrest context, the Supreme Court has instructed that courts should examine whether the use of force is objectively reasonable 'in light of the facts and circumstances confronting them, without regard to the officers' underlying intent or motivation.'" Id. (quoting Graham v. Connor, 490 U.S. 386, 397 (1989)) (punctuation omitted). Among the most relevant facts and circumstances are (1) the severity of the crime allegedly committed; (2) the threat of danger to the officer and society; and (3) whether the suspect was resisting or attempting to evade arrest. Thomas, 165 F.3d at 143. Reasonableness is generally a question of fact. See McKelvie v. Cooper, 190 F.3d 58 (2d Cir. 1999).
Plaintiff alleges that Defendants Gunsalus and Lashomb subjected him to excessive force during his arrest. (Dkt. No. 1 at ¶ 4.) Specifically, Plaintiff alleges that Defendant Gunsalus struck Plaintiff in the face and body with a closed first, causing facial contusions. Id. Plaintiff also alleges that Defendant Lashomb struck Plaintiff on the back, which lead to multiple fractures. Id.
Mindful of the Second Circuit's direction that a pro se plaintiff's pleadings must be liberally construed, Sealed Plaintiff, 537 F.3d at 191, the Court recommends that Plaintiff's § 1983 claims for excessive force and assault and battery against Defendants Gunsalus and Lashomb be found to survive initial review and require a response. In so recommending, the Court expresses no opinion as to whether these claims can withstand a properly filed motion to dismiss or for summary judgment.
Although Plaintiff fails to allege the date of his arrest, such information can be ascertained through discovery. The Court recommends exercising supplemental jurisdiction over Plaintiff's state law claims against Defendants Gunsalus and Lashomb pursuant to 28 U.S.C. § 1367(a).
Because Plaintiff does not include the date of his arrest, the Court is unable to discern whether or not Plaintiff's § 1983 claims for excessive force and assault and battery would be barred by the applicable statute of limitations. Owens v. Okure, 488 U.S. 235, 251 (1989) (statute of limitations on § 1983 claims to which New York law applies is three years); N.Y. C.P.L.R. § 215(3) (McKinney 2006) (an action for assault and battery shall be commenced within one year).
C. Smith and Fowler
Plaintiff brings a supervisory liability claim against Defendants Smith and Fowler. (Dkt. No. 1 at ¶ 4.) Under Second Circuit precedent, "'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)). In order to prevail on a § 1983 cause of action against an individual, a plaintiff must show some "tangible connection" between the unlawful conduct and the defendant. Bass v. Jackson, 790 F.2d 260, 263 (2d Cir. 1986). If the defendant is a supervisory official, a mere linkage to the unlawful conduct through the chain of command (i.e., under the doctrine of respondeat superior) is insufficient to show his or her personal involvement in that unlawful conduct. Polk Cnty. v. Dodson, 454 U.S. 312, 325 (1981); Richardson v. Goord, 347 F.3d 431, 435 (2d Cir. 2003) (per curiam); Wright, 21 F.3d at 501; Ayers v. Coughlin, 780 F.2d 205, 210 (2d Cir. 1985) (per curiam).
In other words, supervisory officials may not be held liable merely because they held positions of authority. Black v. Coughlin, 76 F.3d 72, 74 (2d Cir. 1996) (citations omitted). Rather, supervisory personnel may be considered personally involved if they: (1) directly participated in the violation; (2) failed to remedy that violation after learning of it through a report or appeal; (3) created, or allowed to continue, a policy or custom under which the violation occurred; (4) had been grossly negligent in managing subordinates who caused the violation; or (5) exhibited deliberate indifference by failing to act on information indicating that the violation was occurring. Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995) (citation omitted).
Here, Plaintiff claims that Defendant Sergeant Smith engaged in "nonfeasance," failed to properly investigate the "circumstances," and did not fill out the "use of force report properly." (Dkt. No. 1 at ¶ 4.) Plaintiff alleges Chief Fowler was responsible for "over seeing this misconduct" and failed to "reprimand[]" the individual officers. Id.
Based on the foregoing, the Court finds that Plaintiff has failed to alleged facts plausibly stating a supervisory liability claim under § 1983 against Defendants Smith or Fowler and recommends dismissal of those claims without prejudice and with leave to amend.
D. City of Syracuse
Plaintiff names the City of Syracuse as a Defendant. Id. "To establish liability under 42 U.S.C. § 1983 against a municipality . . . a plaintiff must show that the claimed constitutional violation resulted from a municipal custom or policy." Ahern v. City of Syracuse, 411 F. Supp. 2d 132, 139 (N.D.N.Y. 2006). 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. Cnty. of Clinton, 371 F. Supp. 2d 183, 194 (N.D.N.Y. 2005) (citing Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690-91 (1978)).
"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, 411 F. Supp. 2d at 139 (punctuation and citation omitted).
A local government entity's alleged failure to train its employees creates liability under § 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 Cnty. Comm'rs v. Brown, 520 U.S. 397, 409 (1997)). "A pattern of similar constitutional violations by untrained employees is 'ordinarily necessary' to demonstrate deliberate indifference for purposes of failure to train." Id.
Here, Plaintiff does not allege facts plausibly suggesting a custom or policy. Rather, Plaintiff simply brings this action against the City of Syracuse "for it being the entity these officers of the law work for." (Dkt. No. 1 at ¶ 4.)
Based upon the foregoing, the Court finds that Plaintiff has failed to state a municipal liability claim under § 1983 against the City of Syracuse and recommends dismissal of the claim without prejudice and with leave to amend.
E. Syracuse Police Department
Plaintiff names the Syracuse Police Department as a Defendant. Id. However, a municipal police department is not susceptible to suit under § 1983. La Grande v. Town of Bethlehem Police Dept., No. 1:08-CV-0738 (LEK/DRH), 2009 WL 2868231, at *2 (N.D.N.Y. Sept. 1, 2009); Davis v. Lynbrook Police Dept., 224 F. Supp. 2d 463, 477 (E.D.N.Y. 2002) (internal citations omitted). "Under New York law, departments which are merely administrative arms of a municipality do not have a legal identity separate and apart from the municipality and cannot sue or be sued." Walker v. U.S. Marshalls, No. 08-CV-959 (JG)(AKT), 2009 WL 261527, at *2 (E.D.N.Y. Feb. 4, 2009) (quoting Hall v. City of White Plains, 185 F. Supp. 2d 293, 303 (S.D.N.Y. 2002)); see also Nicholson v. Lenczewski, 356 F. Supp. 2d 157, 164 (D. Conn. 2005) (collecting cases).
The Court will provide Plaintiff with copies of unpublished decisions in accordance with the Second Circuit's decision in Lebron v. Sanders, 557 F.3d 76, 76 (2d Cir. 2009) (per curium).
Here, Plaintiff's § 1983 claim against the Syracuse Police Department, which has no legal, separate identity apart from the City of Syracuse, is not plausible. Therefore, the Court recommends dismissal of the claim with prejudice and without leave to amend.
ACCORDINGLY, it is hereby
RECOMMENDED that the complaint (Dkt. No. 1) be DISMISSED WITH PREJUDICE AND WITHOUT LEAVE TO AMEND against Defendants Gunsalus, Lashomb, Smith, and Fowler in their official capacities; and it is further
RECOMMENDED that the complaint be DISMISSED WITH PREJUDICE AND WITHOUT LEAVE TO AMEND against Defendant Syracuse Police Department; and it is further
RECOMMENDED that the complaint be DISMISSED WITHOUT PREJUDICE AND WITH LEAVE TO AMEND against Defendants Smith, Fowler, and the City of Syracuse; and it is further
RECOMMENDED, that this action be allowed to proceed against Defendants Gunsalus and Lashomb in their individual capacities on Plaintiff's § 1983 claims for excessive force and assault and battery, 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
RECOMMENDED that in the event the District Court allows Plaintiff to file an amended complaint, he be instructed that any amended complaint be a complete pleading that supersedes his original complaint in all respects (and does not incorporate by reference any portion of his original complaint), and that he not attempt to reassert any claims that have been dismissed with prejudice by the District Court; and it is hereby
ORDERED, that the Clerk provide Plaintiff with a copy of this Order and Report-Recommendation, along with copies of the unpublished decisions cited herein in accordance with the Second Circuit 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) (per curiam)); 28 U.S.C. § 636(b)(1) (Supp. 2013); Fed. R. Civ. P. 72, 6(a). Dated: June 24, 2016
Syracuse, New York
/s/_________
Thérèse Wiley Dancks
United States Magistrate Judge