Opinion
5:22-CV-1188 (BKS/ML)
03-06-2023
JUSTIN JONES, Plaintiff, v. JOHN DOE #1, State Police Officer K-9 Handler; and JOHN DOE #2, State Police Officer, Defendants.
JUSTIN JONES Pro se Plaintiff
JUSTIN JONES Pro se Plaintiff
ORDER and REPORT-RECOMMENDATION
MIROSLAV LOVRIC, UNITED STATES MAGISTRATE JUDGE
The Clerk has sent this Pro se Complaint (Dkt. No. 1) together with (1) an amended in forma pauperis application, and (2) letter motion requesting assistance in naming the Doe Defendants to the Court for review. (Dkt. Nos. 1, 4, 5, 6.) For the reasons discussed below, I (1) grant Plaintiff's amended in forma pauperis application, (2) recommend that Plaintiff's motion requesting assistance in naming the Doe Defendants be granted, and (3) recommend that Plaintiff's Complaint be accepted in part for filing and dismissed in part without leave to replead. (Dkt. Nos. 1, 4, 5, 6.)
I. BACKGROUND
Construing the Complaint as liberally as possible, Plaintiff Justin Jones (“Plaintiff”) brings this action alleging that Defendants John Doe #1 and John Doe #2-who are both New York State police officers-violated his civil rights. (See generally Dkt. No. 1.) More specifically, Plaintiff alleges that on February 27, 2021, at approximately 11:30 p.m., he was operating a vehicle with a suspended drivers license in Auburn, New York, when he encountered Defendants. (Dkt. No. 1 at 2.) Plaintiff alleges that Defendants turned on their lights to initiate a traffic stop, Plaintiff did not stop his vehicle immediately, then stopped his vehicle, exited his vehicle, and ran into the “bushes.” (Id.) Plaintiff alleges that Defendants directed him to stop then Defendant John Doe #1 released his K-9, who ran after Plaintiff. (Id.) Plaintiff alleges that when the K-9 reached him, he stopped because he did not want to get bit, but that the K-9 “attacked anyway, latching onto his lower leg.” (Id.) Plaintiff alleges that Defendants restrained him, face down on the ground, and placed handcuffs on him behind his back. (Id.) Plaintiff alleges that the K-9 continued to bite him “for a few minutes resulting in 13 different bites and over 70 staples and stitches.” (Id. at 2-3.)
The court must interpret Pro se complaints to raise the strongest arguments they suggest. Soto v. Walker, 44 F.3d 169, 173 (2d Cir. 1995) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)).
Based on these factual allegations, Plaintiff appears to assert the following two claims: (1) a claim of excessive force against Defendants pursuant to 42 U.S.C. § 1983 and the Fourth Amendment; and (2) a claim of failure to intervene against Defendants pursuant to 42 U.S.C. § 1983 and the Fourth Amendment. (See Dkt. No. 1.) As relief, Plaintiff seeks damages in the amount of $2,500,000.00. (Dkt. No. 1 at 4.)
Plaintiff also filed an amended application to proceed in forma pauperis. (Dkt. No. 4.)
II. PLAINTIFF'S AMENDED APPLICATION TO PROCEED IN FORMA PAUPERIS
“28 U.S.C. § 1915 permits an indigent litigant to commence an action in a federal court without prepayment of the filing fee that would ordinarily be charged.” Cash v. Bernstein, 09-CV-1922, 2010 WL 5185047, at *1 (S.D.N.Y. Oct. 26, 2010). “Although an indigent, incarcerated individual need not prepay the filing fee at the time of filing, he must subsequently pay the fee, to the extent he is able to do so, through periodic withdrawals from his inmate accounts.” Cash, 2010 WL 5185047, at *1 (citing 28 U.S.C. § 1915(b); Harris v. City of New York, 607 F.3d 18, 21 (2d Cir. 2010)).
Section § 1915(g) prohibits a prisoner from proceeding in forma pauperis where, absent a showing of “imminent danger of serious physical injury,” a prisoner has filed three or more actions that were subsequently dismissed as frivolous, malicious, or failing to state a claim upon which relief may be granted. See 28 U.S.C. § 1915(g). The Court has reviewed Plaintiff's litigation history on the Federal Judiciary's Public Access to Court Electronic Records (“PACER”) Service. See http://pacer.uspci.uscourts.gov. It does not appear from that review that Plaintiff accumulated three strikes for purposes of 28 U.S.C. § 1915(g) as of the date this action was commenced.
Upon review, the Court finds that Plaintiff has submitted a completed amended IFP application which has been certified by an appropriate official at his facility (Dkt. No. 4), and which demonstrates economic need. See 28 U.S.C. § 1915(a)(2). Plaintiff has also filed the inmate authorization required in the Northern District. (Dkt. No. 5.)
Accordingly, Plaintiff's amended application to proceed with this action IFP is granted. (Dkt. No. 4.)
III. RELEVANT LEGAL STANDARD GOVERNING INTIAL REVIEW OF A COMPLAINT
Having found that Plaintiff meets the financial criteria for commencing this action in forma pauperis, and because Plaintiff seeks relief from an officer or employee of a governmental entity, the Court must consider the sufficiency of the allegations set forth in the Complaint in light of 28 U.S.C. §§ 1915(e) and 1915A(a). Section 1915(e) of Title 28 of the United States Code directs that, when a plaintiff seeks to proceed in forma pauperis, “the court shall dismiss the case at any time if the court determines that- . . . (B) 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).
To determine whether an action is frivolous, a court must look to see whether the complaint “lacks an arguable basis in either law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989).
Similarly, under 28 U.S.C. § 1915A, a court must review any “complaint in a civil action in which a prisoner seeks redress from a government entity or officer or employee of a government entity” and must “identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint . . . is frivolous, malicious, or 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. § 1915A(b); see also Carr v. Dvorin, 171 F.3d 115, 116 (2d Cir. 1999) (per curium) (noting that Section 1915A applies to all actions brought by prisoners against governmental officials even when plaintiff paid the filing fee).
Additionally, when reviewing a complaint, a court may also look to the Federal Rules of Civil Procedure. Rule 8 of the Federal Rules of Civil Procedure provides that a pleading which sets forth a claim for relief shall contain, inter alia, “a short and plain statement of the claim showing that the pleader is entitled to relief.” See Fed.R.Civ.P. 8(a)(2). The purpose of Rule 8 “is to give fair notice of the claim being asserted so as to permit the adverse party the opportunity to file a responsive answer, prepare an adequate defense and determine whether the doctrine of res judicata is applicable.” Powell v. Marine Midland Bank, 162 F.R.D. 15, 16 (N.D.N.Y. 1995) (McAvoy, C.J.) (quoting Brown v. Califano, 75 F.R.D. 497, 498 (D.D.C. 1977)).
A court should not dismiss a complaint if the plaintiff has stated “enough facts to state a claim to relief 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 the court should construe the factual allegations in the light most favorable to the plaintiff, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Ashcroft, 556 U.S. at 678. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. (citing Twombly, 550 U.S. at 555). Rule 8 “demands more than an unadorned the-defendant-unlawfully-harmed-me accusation.” Id. Thus, a pleading that contains only allegations which “are so vague as to fail to give the defendants adequate notice of the claims against them” is subject to dismissal. Sheehy v. Brown, 335 Fed.Appx. 102, 104 (2d Cir. 2009).
IV. ANALYSIS
Having reviewed the Complaint, and construing the allegations liberally, I recommend that it be dismissed in part without leave to replead and accepted in part for filing.
A. Official Capacity Claims
The Eleventh Amendment has long been construed as barring a citizen from bringing a suit against his or her own state in federal court, under the fundamental principle of “sovereign immunity.” U.S. Const. amend. XI (“The 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."); Hans v. Louisiana, 134 U.S. 1, 10-21 (1890); Idaho v. Coeur d'Alene Tribe of Idaho, 521 U.S. 261, 267 (1997); Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984). Eleventh Amendment immunity is lost only if Congress unequivocally abrogates states' immunity or a state expressly consents to suit. Gollomp v. Spitzer, 568 F.3d 355, 365-66 (2d Cir. 2009). It is well-settled that Congress did not abrogate states' immunity through Section 1983, see Quern v. Jordan, 440 U.S. 332, 343-45 (1979), and that New York State has not waived its immunity from suit on the claims asserted in Plaintiff's Complaint. See generally Trotman v. Palisades Interstate Park Comm'n, 557 F.2d 35, 38-40 (2d Cir. 1977); Dawkins v. State of New York, 93-CV-1298, 1996 WL 156764 at *2 (N.D.N.Y. 1996) (Pooler, J.).
The Eleventh Amendment bars suits for damages against state officials acting in their official capacities. See Kentucky v. Graham, 473 U.S. 159, 169 (1985) (a claim for damages against state officials in their official capacity is considered to be a claim against the State and is therefore barred by the Eleventh Amendment); Ying Jing Gan v. City of New York, 996 F.2d 522, 529 (2d Cir. 1993) (“To the extent that a state official is sued for damages in his official capacity, such a suit is deemed to be a suit against the state, and the official is entitled to invoke the Eleventh Amendment immunity belonging to the state.”); Severino v. Negron, 996 F.2d 1439, 1441 (2d Cir. 1993) (“[I]t is clear that the Eleventh Amendment does not permit suit [under Section 1983] for money damages against state officials in their official capacities.”)
Accordingly, to the extent that Plaintiff seeks monetary damages under Section 1983 against any Defendant in his or her official capacity, I recommend that such claims be dismissed with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b) as barred by the Eleventh Amendment.
B. Individual Capacity Claims
The Fourth Amendment to the Constitution (as applicable to the actions of local police departments and police officers through the Fourteenth Amendment) protects the right of the people to be free from unreasonable searches or seizures. See U.S. Const. amend. IV. In particular, the Fourth Amendment prohibits the police from using unreasonable or excessive force when they engage in the arrest of a person. See Graham v. Connor, 490 U.S. 386 (1989); Cugini v. City of New York, 941 F.3d 604, 612 (2d Cir. 2019). But “[b]ecause ‘the right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it, determining whether the amount of force an officer used is reasonable ‘requires 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.'” Cugini, 941 F.3d at 612 (quoting Graham, 490 U.S. at 396). Thus, the determination whether the police have used excessive force in the course of arresting a suspect “‘requires careful attention to the facts and circumstances of each particular case, including' (1) ‘the severity of the crime at issue,' (2) ‘whether the suspect poses an immediate threat to the safety of the officers or others,' and (3) ‘whether [the suspect] is actively resisting arrest or attempting to evade arrest by flight.'” Id. (quoting Graham, 490 U.S. at 397).
In addition, “[i]t is widely recognized that all law enforcement officials have an affirmative duty to intervene to protect the constitutional rights of citizens from infringement by other law enforcement officers in their presence.” Terebesi v. Torreso, 764 F.3d 217, 243 (2d Cir. 2014) (quoting Anderson v. Branen, 17 F.3d 552, 557 (2d Cir. 1994)); accord Sloley v. VanBramer, 945 F.3d 30, 46-47 (2d Cir. 2019). “As such, an officer who fails to intervene where he or she observes or has reason to know that excessive force is being used or a constitutional violation has been committed by a fellow officer is liable for the preventable harm caused by that officer.” Portillo v. Webb, 16-CV-4731, 2017 WL 4570374, at *4 (S.D.N.Y. Oct. 11, 2017) (collecting cases), report and recommendation adopted by 2018 WL 481889 (S.D.N.Y. Jan. 17, 2018).
Mindful of the Second Circuit's direction that a Pro se plaintiff's pleadings must be liberally construed, Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008), I recommend that Plaintiff's Fourth Amendment excessive force and failure to intervene claims against Defendants John Doe #1 and John Doe #2 in their individual capacities survive initial review under 28 U.S.C. §§ 1915(e) and 1915A. See Jackson v. Cnty. of Ulster, 22-CV-0148, 2022 WL 2954370, at *5 (N.D.N.Y. July 26, 2022) (McAvoy, J.) (denying motion to dismiss an excessive force claim where the plaintiff alleged that “the K-9 handled by [the defendant] bit Plaintiff while Plaintiff was handcuffed behind his back and offering no resistance or threat” and holding that “the use of a police K-9 to bite, or to bite and hold, a suspect can constitute a significant degree of force.”). In making such finding, I express no opinion regarding whether the claims could survive a properly filed motion to dismiss or motion for summary judgment.
V. OPPORTUNITY TO REPLEAD
Generally, a court should not dismiss claims contained in a complaint filed by a pro se litigant without granting leave to replead at least once “when a liberal reading of the complaint gives any indication that a valid claim might be stated.” Branum v. Clark, 927 F.2d 698, 704-05 (2d Cir. 1991); see also Fed.R.Civ.P. 15(a)(2) (“The court should freely give leave when justice so requires.”). An opportunity to replead is not required, however, 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); see also Cortec Indus. Inc. v. Sum Holding L.P., 949 F.2d 42, 48 (2d Cir. 1991) (“Of course, where a plaintiff is unable to allege any fact sufficient to support its claim, a complaint should be dismissed with prejudice.”). Stated differently, “[w]here it appears that granting leave to amend is unlikely to be productive, . . . it is not an abuse of discretion to deny leave to amend.” Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir. 1993); accord, Brown v. Peters, 95-CV-1641, 1997 WL 599355, at *1 (N.D.N.Y. Sept. 22, 1997) (Pooler, J.).
See also Carris v. First Student, Inc., 132 F.Supp.3d 321, 340-41 n.1 (N.D.N.Y. 2015) (Suddaby, C.J.) (explaining that the standard set forth in Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 796 (2d Cir. 1999)-that the Court should grant leave to amend “unless the court can rule out any possibility, however unlikely it might be, that an amended complaint would be successful in stating a claim”-is likely not an accurate recitation of the governing law after Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)), rev'd on other grounds, 682 Fed.Appx. 30.
With respect to Plaintiff's claims against Defendants in their official capacities “[b]ecause these claims are barred by the Eleventh Amendment, leave to amend would be futile.” Verdi v. Farah, 22-CV-0825, 2022 WL 4236401, at *9 n.9 (N.D.N.Y. Sept. 14, 2022) (Sannes, C.J.). As a result, I recommend that those claims be dismissed without leave to replead.
VI. PLAINTIFF LETTER MOTION REQUESTING ASSISTANCE IDENTIFIYING DEFENDANTS AND SERVICE OF THE COMPLAINT
Should the District Judge adopt the undersigned's recommendation, the only defendants are Doe defendants, whose identities are not presently known. Generally, when a Pro se plaintiff includes Doe defendants, together with named defendants, the complaint is served upon the named defendants and the plaintiff pursues discovery to identify the Doe defendants. In this case, however, no named defendants are parties to the litigation.
Pursuant to Valentin v. Dinkins, 121 F.3d 72 (2d. Cir. 1997) (per curiam), the undersigned recommends that the New York State Attorney General's Office be directed to take reasonable steps to attempt to ascertain the full names of the remaining Doe defendants. It is further recommended that the Attorney General's Office be requested, to the extent that it is able to identify the Doe defendants, to provide the address where the Doe defendants can currently be served. It is recommended that the Attorney General's Office be advised that it need not undertake to defend or indemnify the individuals at this juncture. Such a directive would merely provide a means by which Plaintiff may name and properly serve the defendants as instructed by the Second Circuit in Valentin.
In Valentin, 121 F.3d at 75-75, the Second Circuit held that district courts must assist Pro se incarcerated litigants with their inquiry into the identities of unknown defendants.
ACCORDINGLY, it is
ORDERED that Plaintiff's amended application to proceed IFP (Dkt. No. 4) is GRANTED only for purposes of filing and any appeal unless the trial court certifies in writing that the appeal is not taken in good faith. See 28 U.S.C. § 1915(a)(3); and it is further
ORDERED that the Clerk of the Court (1) provide the Superintendent of the facility that Plaintiff has designated as his current location with a copy of Plaintiff's inmate authorization form (Dkt. No. 5) and notify that official that Plaintiff has filed this action and is required to pay the Northern District of New York the entire statutory filing fee of $350.00 in installments, over time, pursuant to 28 U.S.C. § 1915; and (2) provide a copy of Plaintiff's inmate authorization form (Dkt. No. 5) to the Financial Deputy of the Clerk's office; and it is further respectfully
RECOMMENDED that Plaintiff's Complaint (Dkt. No. 1) be ACCEPTED for filing to the extent that it asserts claims pursuant to the Fourth Amendment for excessive force and failure to intervene against Defendants John Doe #1 and John Doe #2 in their individual capacities, and DISMISSED WITHOUT LEAVE TO REPLEAD to the extent that it asserts claims pursuant to 42 U.S.C. § 1983 against Defendants in their official capacity, pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b) as barred by the Eleventh Amendment; and it is further respectfully
RECOMMENDED that the Court grant Plaintiff's Letter Motion (Dkt. No. 6); and it is further respectfully
RECOMMENDED that, should the District Judge adopt the Report-Recommendation, to the extent possible, the New York State Attorney General's Office be requested to produce the information specified above regarding the identities of the Doe Defendants within thirty (30) days of the filing date of the Decision and Order accepting this recommendation, and that, upon receipt of a response from the New York State Attorney General's Office, the Clerk return this file to the Court for further review; and it is further
ORDERED that the Clerk of the Court shall file a copy of this order, report, and recommendation on the docket of this case and serve a copy upon the parties in accordance with the local rules.
The Clerk shall also provide Plaintiff with copies of all unreported decisions cited herein in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
NOTICE: 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. 28 U.S.C. § 636(b)(1) (Supp. 2013); Fed. R. Civ. P. 6(a), 6(d), 72; 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)).
If you are proceeding Pro se and served with this report, recommendation, and order by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date that the report, recommendation, and order was mailed to you to serve and file objections. Fed.R.Civ.P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. Fed.R.Civ.P. 6(a)(1)(C).