Opinion
23-CV-10523 (LTS)
01-08-2024
JAMAR POWELL, Plaintiff, v. CITY OF NEW YORK; NEW YORK CITY POLICE; UNITED STATES OF AMERICA, Defendants.
ORDER OF DISMISSAL WITH LEAVE TO REPLEAD
LAURA TAYLOR SWAIN, CHIEF UNITED STATES DISTRICT JUDGE
Plaintiff, who is appearing pro se, brings this action invoking the court's federal question jurisdiction and diversity of citizenship jurisdiction, alleging that Defendants violated his rights. He sues the City of New York, the New York City Police Department (“NYPD”), and the United States of America. By order dated December 6, 2023, the Court granted Plaintiff's request to proceed in forma pauperis (“IFP”), that is, without prepayment of fees. For the reasons set forth below, the Court dismisses the complaint, but grants Plaintiff 30 days' leave to replead his claims in an amended complaint.
STANDARD OF REVIEW
The Court must dismiss an IFP 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.
BACKGROUND
Plaintiff brings his claims using the court's general complaint form. He checks boxes on the forms to invoke both the court's federal question jurisdiction and its diversity of citizenship jurisdiction. In response to the question asking which of his federal constitutional or federal statutory rights have been violated, Plaintiff writes, “The City of New York and police department devised a plan to have me raped leaving me with HIV and they are calling it the death penalty while human traffic[k]ing me while conspiring to have me arrested to die from virus in jail.” (ECF 1, at 2.)In addition to the defendants listed in the caption of the complaint -the City of New York, the NYPD, and the United States - the complaint also references Carrie B. Fields of New Jersey and, possibly, New York, as a defendant. (See id. at 3.)
Plaintiff writes using irregular capitalization. For readability, the Court uses standard capitalization when quoting from the complaint. All other spelling, grammar, and punctuation are as in the original unless otherwise indicated.
Plaintiff states that the events giving rise to his claims occurred in the City of New York on November 27, November 28, and November 29, 2023. Plaintiff alleges the following,
The City of New York and the police department devised a plan to have someone transmit me HIV and now they are calling it the death penalty, while having me human traffic[k]ed and threatening to have someone take my life by string people along to a rally and tell me how they are going to get me killed to cover up the
secret of purposely transmitting me HIV[.] They are currently trying to get civil[i]ans to start fights with me walking down the street.(Id. at 5.)
Plaintiff describes his injuries as “HIV diagnosis, scars on body and face and other STIs.”(Id. at 6.)
Plaintiff seeks $20,000,000 in damages.
DISCUSSION
Because Plaintiff invokes the court's federal question jurisdiction and attempts to assert claims against governmental entities, the Court construes the complaint has attempting to assert constitutional claims under 42 U.S.C. § 1983.To state a claim under Section 1983, a plaintiff must allege both that: (1) a right secured by the Constitution or laws of the United States was violated, and (2) the right was violated by a person acting under the color of state law, or a “state actor.” West v. Atkins, 487 U.S. 42, 48-49 (1988).
Plaintiff also invokes the Court's diversity of citizenship jurisdiction. To establish jurisdiction under 28 U.S.C. § 1332, a plaintiff must first allege that the plaintiff and the defendant are citizens of different states. Wis. Dep't of Corr. v. Schacht, 524 U.S. 381, 388 (1998). In addition, the plaintiff must allege to a “reasonable probability” that the claim is in excess of the sum or value of $75,000.00, the statutory jurisdictional amount. See 28 U.S.C. § 1332(a); Colavito v. N.Y. Organ Donor Network, Inc., 438 F.3d 214, 221 (2d Cir. 2006) (citation and internal quotation marks omitted). Because Plaintiff alleges that he and City of New York and NYPD are citizens of the State of New York, the Court lacks diversity of citizenship jurisdiction of this action.
A. Claims against the United States of America
Plaintiff asserts claims seeking money damages from the United States. Plaintiff's claims for damages against the United States must be dismissed as barred by sovereign immunity. See United States v. Mitchell, 445 U.S. 535, 538 (1980) (citing United States v. Sherwood, 312 U.S. 584, 586 (1941)); Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 510 (2d Cir. 1994) (“Because an action against a federal agency or federal officers in their official capacities is essentially a suit against the United States, such suits are . . . barred under the doctrine of sovereign immunity, unless such immunity is waived.”).The Court therefore dismisses Plaintiff's claims against the United States as barred by the doctrine of sovereign immunity.
The Federal Tort Claims Act (“FTCA”) provides a waiver of sovereign immunity for certain claims arising from the tortious conduct of federal officers or employees acting within the scope of their office or employment. See 28 U.S.C. §§ 1346(b)(1). A plaintiff may seek damages against the United States under the FTCA, but such relief is not available for the violation of a constitutional right. See FDIC v. Meyer, 510 U.S. 471, 477-78 (1994) (“[T]he United States simply has not rendered itself liable under [the FTCA] for constitutional tort claims.”). Moreover, an FTCA claim may only be brought after exhausting administrative remedies with the appropriate federal agency. See Johnson v. Smithsonian Inst., 189 F.3d 180, 189 (2d Cir. 1999) (holding that before filing an action in federal court, a plaintiff must comply with the FTCA's procedural requirements), abrogated on other grounds, United States v. Kwai Fun Wong, 575 U.S. 402 (2015). Because Plaintiff does not allege any facts suggesting that a federal officer or employee committed a tort against him, or that he exhausted his administrative remedies, the Court dismisses any FTCA claim he may be asserting.
B. Claims against the NYPD
Plaintiff's claims against the NYPD must be dismissed because an agency of the City of New York is not an entity that can be sued. N.Y. City Charter ch. 17, § 396 (“[A]ll actions and proceedings for the recovery of penalties for the violation of any law shall be brought in the name of the city of New York and not in that of any agency, except where otherwise provided by law.”); Jenkins v. City of New York, 478 F.3d 76, 93 n.19 (2d Cir. 2007); see also Emerson v. City of New York, 740 F.Supp.2d 385, 396 (S.D.N.Y. 2010) (“[A] plaintiff is generally prohibited from suing a municipal agency.”).
In light of Plaintiff's pro se status, the Court will construe Plaintiff's allegations against the NYPD as being asserted against the City of New York, which is also named as a defendant.
C. Claims against the City of New York
When a plaintiff sues a municipality under Section 1983, it is not enough for the plaintiff to allege that one of the municipality'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., 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 v. Brown, 520 U.S. 397, 403 (1997) (internal citations omitted).
Here, Plaintiff alleges no facts suggesting that the City of New York has a policy, custom, or practice that has caused a violation of his constitutional rights. The Court therefore dismisses Plaintiff's Section 1983 claims against the City of New York for failure to state a claim on which relief may be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii).
D. Rule 8
Even if Plaintiff had named a suable defendant, the complaint does not comply with Rule 8 of the Federal Rules of Civil Procedure. Rule 8 requires a complaint to make a short and plain statement showing that the pleader is entitled to relief. A complaint states a claim for relief if the claim is plausible. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). To review a complaint for plausibility, the court accepts all well-pleaded factual allegations as true and draws all reasonable inferences in the pleader's favor. Id. (citing Twombly, 550 U.S. at 555). But the court need not accept “[t]hreadbare recitals of the elements of a cause of action,” which are essentially legal conclusions. Id. at 678 (citing Twombly, 550 U.S. at 555). As set forth in Iqbal:
[T]he pleading standard Rule 8 announces does not require detailed factual allegations, but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation. A pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do. Nor does a complaint suffice if it tenders naked assertions devoid of further factual enhancement.Id. (internal citations, quotation marks, and alteration omitted). 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.
Here, Plaintiff asserts that the City of New York and the NYPD have devised a plan to infect him with HIV and have engaged in human trafficking, but he does not allege sufficient facts to render his claims plausible. For example, he alleges no facts suggesting that the City of New York or any other institutional or individual defendant has engaged in any activities to infect him with HIV, or that such a scheme would be plausible. Plaintiff instead puts forth “naked assertions devoid of further factual enhancement,” which are insufficient to state a viable legal claim. Iqbal, 556 U.S. at 678.
In light of Plaintiff's pro se status, the Court grants him leave to replead his claims in an amended complaint that names as a defendant the individuals or suable entities that violated his rights and alleges plausible facts suggesting a viable claim for relief.
E. State law claims
A district court may decline to exercise supplemental jurisdiction over state law claims when it “has dismissed all claims over which it has original jurisdiction.” 28 U.S.C. § 1367(c)(3). Generally, “when the federal-law claims have dropped out of the lawsuit in its early stages and only state-law claims remain, the federal court should decline the exercise of jurisdiction.” Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988)). Having dismissed the federal claims of which the Court has original jurisdiction, the Court declines to exercise its supplemental jurisdiction of any state law claims Plaintiff may be asserting. See Kolari v. New York-Presbyterian Hosp., 455 F.3d 118, 122 (2d Cir. 2006) (“Subsection (c) of § 1367 ‘confirms the discretionary nature of supplemental jurisdiction by enumerating the circumstances in which district courts can refuse its exercise.'” (quoting City of Chicago v. Int'l Coll. of Surgeons, 522 U.S. 156, 173 (1997))).
LEAVE TO AMEND GRANTED
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)). Although it is unclear whether Plaintiff can allege additional facts to state a viable claim for relief, in light of his pro se status, the Court grants Plaintiff 30 days' leave to amend his complaint to detail his claims.
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, he may refer to that individual as “John Doe” or “Jane Doe” in both the caption and the body of the amended complaint.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 before the statute of limitations period expires. Should Plaintiff seek to add a new claim or party after the statute of limitations period has expired, he must meet the requirements of Rule 15(c) of the Federal Rules of Civil Procedure.
The caption is located on the front page of the complaint. Each individual defendant must be named in the caption. Plaintiff may attach additional pages if there is not enough space to list all of the defendants in the caption. If Plaintiff needs to attach an additional page to list all defendants, he should write “see attached list” on the first page of the Amended Complaint. Any defendants named in the caption must also be discussed in Plaintiff's statement of claim.
For example, a defendant may be identified as: “Correction Officer John Doe #1 on duty August 31, 2010, at Sullivan Correctional Facility, during the 7-3 p.m. shift.”
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 Choose an item. federally protected rights and how; when and where such violations occurred; and why Plaintiff is entitled to relief.
Because Plaintiff's amended complaint will completely replace, not supplement, the original complaint, any facts or claims that Plaintiff wants to include from the original complaint must be repeated in the amended complaint.
If Plaintiff does not file an amended complaint within the time allowed, the Court will direct the Clerk of Court to enter judgment in this action.
CONCLUSION
The Court dismisses the complaint under the doctrine of sovereign immunity and for failure to state a claim on which relief may be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii).
The Court grants Plaintiff 30 days' leave to replead his claims in an amended complaint.
If Plaintiff fails to file an amended complaint within the time allowed, and does not show cause to excuse such failure, the Court will direct the Clerk of Court to enter judgment dismissing this action for the reasons stated in this order and declining, under 28 U.S.C. § 1367(c)(3), to exercise supplemental jurisdiction of any state law claims Plaintiff may be asserting.
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 IFP status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
The Court directs the Clerk of Court to hold this matter open on the docket until a civil judgment is entered.
SO ORDERED.