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dismissing the First Amendment mail claim because the plaintiff only speculated that the defendants tampered with his mail on more than one occasion
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10 CV 6142 (NRB)
06-21-2011
GIOVANNI WHITE, Plaintiff, v. CYRUS VANCE JR. (CHIEF DISTRICT ATTORNEY), NYC'S 23RD PRECINCT, ISLAMIC CULTURAL CENTER, DEPARTMENT OF CORRECTIONS, LAWRENCE D. GERZOG, ESQ., MARIA G. WORLEY, ESQ., HOWARD D. SIMMONS, ESQ., CARLOS FORTUNATO, NEW YORK STATE POLICE FORENSIC INVESTIGATION CENTER, and AFRICAN ISLAMIC MISSION, Defendants.
Plaintiff Giovanni S. White 349-10-12721 Anna M. Kross Center (AMKC), C-95 18-18 Hazen Street East Elmhurst, NY 11370 Attorney for Defendant NYSPFIC Inna Reznik, Esq. Assistant Attorney General State of New York Office of the Attorney General 120 Broadway New York, NY 10271 Attorney for Defendant Vance Cynthia Sittnick, Esq. Assistant District Attorney County of New York 1 Hogan Place New York, NY 10013 Attorney for Defendant DOC Joseph A. Marutollo, Esq. Law Department City of New York 100 Church Street New York, NY 10007 Attorney for Defendant Simmons (pro se) Howard D. Simmons, Esq. Howard D. Simmons P.C. 217 Broadway, Suite 603 New York, NY 10007
MEMORANDUM AND ORDER
Plaintiff Giovanni White ("plaintiff"), currently incarcerated at the Anna M. Kross Correctional Facility on Rikers Island, brings this pro se action for damages pursuant to 42 U.S.C. § 1983. Plaintiff names various institutional and individual defendants and alleges, inter alia, that he was wrongfully arrested, wrongfully prosecuted, subjected to DNA testing without a warrant, assaulted while incarcerated, and that his personal mail was improperly opened and/or confiscated at the correctional facility.
Four motions are presently pending before this Court: (i) a motion to dismiss by defendant New York State Police Forensic Investigation Center ("NYSPFIC"), in which the NYSPFIC contends, among other things, that it is immune from suit under the Eleventh Amendment to the United States Constitution; (ii) a motion to dismiss by defendant Cyrus Vance Jr. ("Vance"), in which Vance contends, among other things, that there exists no plausible claim for relief against Vance or against the New York County District Attorney's Office; (iii) a motion to dismiss by defendant New York City Department of Correction ("DOC"), in which the DOC contends, among other things, that it is not a suable entity; and (iv) a motion to dismiss by defendant Howard D. Simmons, Esq. ("Simmons"), in which Simmons contends that plaintiff does not assert a plausible claim against him.
For the reasons discussed herein, we grant each of the above-mentioned motions.
BACKGROUND
On October 27, 2008, plaintiff was arrested near the intersection of 97th Street and Second Avenue in Manhattan. (Compl. at 3.) At the time of his arrest, plaintiff was suspected of committing a burglary a few days earlier. (Compl. at 3.) Shortly thereafter, plaintiff was charged with trespassing and was arraigned on those charges. (Compl. at 3.)
Except where noted, the following facts are drawn from plaintiff's complaint and the exhibits attached thereto. For purposes of reviewing this motion to dismiss, all nonconclusory allegations are accepted as true. See S. Cherry St., LLC v. Hennessee Grp. LLC, 573 F.3d 98, 100 (2d Cir. 2009). Because plaintiff's complaint does not include numbered paragraphs, citations to the complaint ("Compl. at ___") are citations to the page number of the complaint where the allegation appears.
Plaintiff was represented by appointed counsel at the arraignment. On the date of the arraignment, a detective allegedly took two buccal swabs from plaintiff to obtain a DNA sample. Plaintiff alleges that the detective did not have a warrant for the sample and further alleges that government authorities failed to obtain a warrant before accessing his DNA profile information, which was on file at the NYSPFIC. (Compl. at 3-4.)
A few months later, plaintiff pleaded guilty to the October 2008 trespass charge and received a sentence of 90 days' time served. (Compl. at 3-4.) However, on February 23, 2009, when plaintiff remained incarcerated on the trespass charge, plaintiff was indicted and charged with burglary stemming from the same October 2008 incident. (Compl. at 3-4.)
Plaintiff remained incarcerated while his criminal case continued. Plaintiff alleges that, while incarcerated, he was housed with a possible sex offender, he suffered physical injuries, and inmates and/or DOC personnel opened or confiscated his correspondence. (Compl. at 4.)
In or around October of 2009, plaintiff filed a notice of claim against the City of New York, which included allegations of wrongful arrest, malicious prosecution, and a litany of complaints about his treatment while incarcerated. (Compl. at 8.) Thereafter, plaintiff submitted a complaint under 42 U.S.C. § 1983, which was received by the Pro Se Office on June 8, 2010 and which was filed on August 17, 2010. In his complaint, plaintiff seeks $7.5 million in damages. (Compl. at 7.)
DISCUSSION
I. Legal Standard
When deciding a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, the Court must accept as true all well-pleaded facts alleged in the complaint and draw all reasonable inferences in plaintiffs' favor. Kassner v. 2nd Ave. Delicatessen, Inc., 496 F.3d 229, 237 (2d Cir. 2007). A complaint must include "enough facts to state a claim for relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 1974, 167 L. Ed. 2d 929, 949 (2007). Where a plaintiff has not "nudged [his] claims across the line from conceivable to plausible, [his] complaint must be dismissed." Id. This pleading standard applies in "all civil actions." Aschroft v. Iqbal, ___ U.S. ___, 129 S. Ct. 1937, 1953, 173 L. Ed. 2d 868, 887 (2009).
Where, as here, a complaint is filed by a pro se plaintiff, the complaint should be reviewed under a more lenient standard than that applied to "formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520, 92 S. Ct. 594, 596, 30 L. Ed. 2d 652, 654 (1972) (per curiam). In other words, courts must interpret such pleadings "to raise the strongest arguments that they suggest." Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994). Nevertheless, pro se plaintiffs remain subject to the general standard applicable to all civil complaints under the Supreme Court's decisions in Twombly and Iqbal. See Schwamborn v. County of Nassau, 348 F. App'x 634, 635 (2d Cir. 2009).
To maintain a § 1983 action, a plaintiff must allege two essential elements. First, "the conduct complained of must have been committed by a person acting under color of state law." Pitchell v. Callan, 13 F.3d 545, 547 (2d Cir. 1994). Second, "the conduct complained of must have deprived a person of rights, privileges, or immunities, secured by the Constitution or laws of the United States." Id. (internal citation omitted).
The statute of limitations that applies to claims brought under § 1983 is three years. Owens v. Okure, 488 U.S. 235, 249-51, 109 S. Ct. 573, 581-82, 102 L. Ed. 2d 594, 604-06 (1989) (New York's three-year statute of limitations for general personal injury claims applies to claims brought under § 1983); Patterson v. County of Oneida, 375 F.3d 206, 225 (2d Cir. 2004); see also N.Y. C.P.L.R. 214(5).
II. Moving Defendants
A. Defendant New York State Police Forensic Investigation Center
In his complaint, plaintiff alleges that unnamed authorities failed to obtain a search warrant before accessing plaintiff's pre-existing DNA profile information from the NYSPFIC. (Compl. at 4.) In its motion, the NYSPFIC contends that, as a state agency, it is immune from suit and therefore this action should be dismissed pursuant to Federal Rule 12(b)(1) for lack of subject matter jurisdiction.
A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it. Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). The plaintiff has the burden of proving that subject matter jurisdiction exists by a preponderance of the evidence. Id.
We agree. The Eleventh Amendment bars from federal court all suits by private parties against a state unless the state consents to such a suit or Congress has expressly abrogated the state's immunity. See Bd. of Trs. of the Univ. of Ala. v. Garrett, 531 U.S. 356, 363-64, 121 S. Ct. 955, 961-62, 148 L. Ed. 2d 866, 876-77 (2001); Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 72-73, 120 S. Ct. 631, 640, 145 L. Ed. 2d 522, 535-36 (2000). Additionally, a state's immunity extends to state agencies such as NYSPFIC. See Alabama v. Pugh, 438 U.S. 781, 782, 98 S. Ct. 3057, 3057, 57 L. Ed. 2d 1114, 1116 (1978); Dube v. State Univ. of New York, 900 F.2d 587, 594-95 (2d Cir. 1990).
Because neither the State of New York nor its agencies have consented to be sued in federal court under 42 U.S.C. § 1983, and because Congress has not abrogated the state's immunity, see Garrett, 531 U.S. at 363-64, plaintiff's claims against NYSPFIC are barred by the Eleventh Amendment and are dismissed.
The NYSPFIC also moves to dismiss pursuant to Federal Rule 12(b)(4), on the grounds that it was not properly served. Because we conclude that plaintiff's claims against NYSPFIC are barred by the Eleventh Amendment, we do not address the arguments regarding service. That said, we understand NYSPFIC's argument to be that the method of service was improper, and challenges to the method of service, rather than to deficiencies in the papers served, are properly raised under Federal Rule of Civil Procedure 12(b)(5). See 2 James Wm. Moore et al., Moore's Federal Practice § 12.33[1] (3d ed. 2010) ("[A] Rule 12(b)(4) motion challenges the form of process, and a Rule 12(b)(5) motion challenges the method of serving process.") (emphasis in original).
B. Defendant Cyrus Vance Jr.
As briefly noted above, plaintiff alleges that he was wrongfully arrested and prosecuted for trespassing and burglary in the third degree. According to plaintiff, he was arrested for trespassing in late October 2008, later pleaded guilty to that charge, and then was indicted for burglary in February 2009, when he remained incarcerated on the trespassing charge. (Compl. at 3-4.) Vance moves to dismiss pursuant to Federal Rule 12(b)(6), arguing that plaintiff has failed to state a claim upon which relief may be granted. In his motion, Vance advances three principal arguments, which we address in turn.
First, Vance argues that the claims against him must be dismissed because there are no allegations that Vance was personally involved in any misconduct.
We agree. The Supreme Court recently reiterated that vicarious liability is inapplicable to claims under § 1983. Iqbal, 129 S. Ct. at 1948. Rather, "a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution." Id.; see also Blyden v. Mancusi, 186 F.3d 252, 264 (2d Cir. 1999) ("Because Section 1983 imposes liability only upon those who actually cause a deprivation of rights, 'personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983.'") (quoting Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994)); Ying Jing Gan v. City of New York, 996 F.2d 522, 536 (2d Cir. 1993) ("To the extent that the complaint sought to assert individual-capacity claims against Morgenthau, plaintiffs fare no better, for a supervisory official cannot be held liable under § 1983 on a theory of respondeat superior.").
Here, plaintiff has failed to allege that Vance was personally involved in underlying events. The prosecutions about which plaintiff complains stem from an arrest that occurred in late 2008 and an indictment returned by a grand jury in February 2009 -- plainly before Vance took office as the District of Attorney of New York County in January 2010. Moreover, even though one of the prosecutions appears to have extended into 2010, plaintiff does not allege that Vance was personally involved in any misconduct.
Second, according to Vance, even if plaintiff had named Vance's predecessor, then-District Attorney Robert M. Morgenthau, as a defendant in this action, Morgenthau would be protected by absolute immunity.
Again, we agree. Absolute immunity for prosecutors exists to protect them from "harassment by unfounded litigation [that] would cause a deflection of the prosecutor's energies from his public duties, and the possibility that he would shade his decisions instead of exercising the independence of judgment required by the public trust." Imbler v. Pachtman, 424 U.S. 409, 423, 96 S. Ct. 984, 991, 47 L. Ed. 2d 128, 139 (1976). Such immunity typically applies when a prosecutor acts as "an officer of the court," Van de Kamp v. Goldstein, 555 U.S. 335, 129 S. Ct. 855, 861, 172 L. Ed. 2d 706, 713 (2009), or performs activities "closely associated with the judicial process." See Doe v. Phillips, 81 F.3d 1204, 1209 (2d Cir. 1996). On the other hand, absolute immunity is unavailable when the challenged conduct does not concern a traditional function of a prosecutor or is unconnected with the judicial process. See, e.g., Burns v. Reed, 500 U.S. 478, 495, 111 S. Ct. 1934, 1944, 114 L. Ed. 2d 547, 564 (1991); Phillips, 81 F.3d at 1209.
In the instant action, plaintiff makes no allegations that would enable us to infer that prosecutorial immunity would be unavailable to Morgenthau or, for that matter, to any Assistant District Attorneys acting as officers of the court.
Third, Vance argues that plaintiff could not name the New York County District Attorney's Office ("Office") as a defendant because the Office is not a suable entity and because it is protected from suits for money damages by the Eleventh Amendment.
We agree that plaintiff could not properly name the Office as a defendant in this action. The capacity of the Office to be sued is determined by New York law, see Woodward v. Office of DA, 689 F. Supp. 2d 655, 658 (S.D.N.Y. 2010), and "[u]nder New York law, the [Office] does not have a legal existence separate from the District Attorney." Id. (quoting Gonzalez v. City of New York, No. 98 Civ. 6081 (MBM), 1999 WL 549016, at *1 (S.D.N.Y. July 28, 1999)); see also Steed v. Delohery, No. 96 Civ. 2449 (RPP), 1998 WL 440861, at *1 (S.D.N.Y. Aug. 4, 1998) ("The New York County District Attorney's Office is not a suable entity."). Thus, if we construed the complaint as asserting a claim against the Office, we would dismiss such a claim.
Moreover, because plaintiff asserts claims for monetary relief, any claims against the Office are also barred by the Eleventh Amendment. See Woodward, 689 F. Supp. 2d at 659. Because the Office is an agency of the State of New York, see Ying Jing Gan, 996 F.2d at 536 (when prosecuting a criminal matter, the Office represents the State of New York), and because the state has not consented to suit nor has Congress abrogated the state's immunity, any claims against the Office are also barred by the Eleventh Amendment and must be dismissed.
Accordingly, we grant Vance's motion to dismiss.
Vance also argues that any purported state law claims should be dismissed. We address this argument in section IV, infra.
C. Defendant Department of Corrections
Plaintiff makes a number of allegations against the DOC, including that he suffered physical injuries while incarcerated, that his mail was tampered with by fellow inmates and by corrections officers, that he was housed with a possible sex offender, and that he was retaliated against for filing a civil lawsuit against the New York State Department of Correctional Services in 2004 for negligence. The DOC moves to dismiss pursuant to Federal Rule 12(b)(6), arguing that plaintiff has failed to state a claim upon which relief may be granted. In its motion, the DOC raises three principal arguments, which we address in turn.
Plaintiff alleges a series of grievances related to his mail: that his pen pal's address and phone number were stolen in August 2003; that other inmates have doctored his letters and then claimed that plaintiff authored the doctored letters; that a magazine and forty photocopies of his female friend in lingerie were stolen from the package facility at the Manhattan Detention Complex; that Corrections Officers passed out the contact information of plaintiff's friends to other inmates; and that plaintiff has not received responses to the letters he sends out. (Compl. at 4-5.)
First, the DOC asserts that, as a municipal agency, it cannot be sued. We agree. Under the New York City Charter, "[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 that of any agency, except where otherwise provided by law." New York City Charter Ch. 17, § 396. Thus, as an agency of the City of New York, the DOC is not a suable entity. See New York City Charter Ch. 25, § 621 et seq.; see also Renelique v. Doe, No. 99 Civ. 10425 (LTS) (HBP), 2003 WL 23023771, at *6 (S.D.N.Y. Dec. 29, 2003) (collecting cases).
Second, the DOC argues that if the Court were to construe the complaint as including a claim against the City of New York ("City"), such a claim should be dismissed. It is well settled that a municipality can only be sued under § 1983 if the alleged injury was the result of an official policy, custom, or practice of the municipality. Monell v. Dep't of Soc. Servs., 436 U.S. 658, 644, 98 S. Ct. 2018, 2037-38, 56 L. Ed. 2d 611, 638 (1978); see also Zahra v. Town of Southold, 48 F.3d 674, 685 (2d Cir. 1995). Plaintiff, however, has pointed to no policy, custom, or practice on the part of the City that might plausibly have caused any of plaintiff's alleged constitutional injuries. Thus, even if plaintiff had properly joined the City in this lawsuit -- which he did not -- we would be compelled to dismiss any Monell claim.
Third, the DOC contends that even if plaintiff were to name a proper defendant, plaintiff fails to allege any cognizable constitutional violations. We address the plausible violations, interpreting the complaint to raise the strongest arguments that it suggests.
Regarding plaintiff's alleged physical injuries, plaintiff states that he was treated for those injuries at Albany Medical Center and Erie County Hospital. (Compl. at 4.) Thus, the allegations appear to date back to the early 2000s, when plaintiff was incarcerated at correctional facilities in upstate New York, rather than to his present period of incarceration at correctional facilities in New York City. If the injuries occurred during that time frame, any excessive force or deliberate indifference claim (if asserted against an appropriate defendant) would be time-barred.
With respect to plaintiff's allegations that he was housed with a possible sex offender and that he was retaliated against for having filed a lawsuit against the state corrections agency in 2004, plaintiff makes no more than the most conclusory of allegations. Accordingly, even assuming these claims were timely filed, plaintiff does not meet his pleading obligations under Iqbal and Twombly.
With respect to the alleged mail tampering, prisoners have a right to "the free flow of incoming and outgoing mail" under the First Amendment. Johnson v. Goord, 445 F.3d 532, 534 (2d Cir. 2006) (citing Davis v. Goord, 320 F.3d 346, 351 (2d Cir. 2003)). However, it is well-settled that "[a] prisoner's right to receive and send mail . . . may be regulated," and "[s]uch regulation is valid if it is reasonably related to legitimate penological interests." Johnson, 445 F.3d at 534 (internal quotations omitted). Thus, to assert a violation of the First Amendment, an inmate must allege that "prison officials 'regularly and unjustifiably' interfered with his personal mail." DeLeon v. Doe, 361 F.3d 93, 94 (2d Cir. 2004) (per curiam).
As a threshold matter, a correctional facility may authorize the confiscation of nude or semi-nude photographs of the spouses or girlfriends of inmates. See Giano v. Senkowski, 54 F.3d 1050, 1053-56 (2d Cir. 1995) (upholding prison policy that banned inmates' possession of nude or semi-nude photographs of spouses or girlfriends); see also Thornburgh v. Abbott, 490 U.S 401, 403-05, 109 S. Ct. 1874, 1876-77, 104 L. Ed. 2d 459, 466-68 (1989) (upholding the facial validity of regulations barring "sexually explicit material which by its nature or content poses a threat to the security, good order, or discipline of the institution, or facilitates criminal activity"). Thus, if plaintiff's allegations are limited to the facility's confiscation of a magazine and 40 semi-nude photographs, then such allegations do not state a plausible claim that prison officials "regularly and unjustifiably" interfered with his personal mail. See DeLeon, 361 F.3d at 94.
Furthermore, plaintiff attaches to his complaint a summary of DOC regulations regarding the monitoring and confiscation of mail. Pursuant to these regulations, DOC personnel may monitor or confiscate incoming or outgoing mail if: (i) DOC personnel have a reasonable belief that an inmate's mail poses a threat to public safety or to the security and order of the facility; (ii) the facility's warden issues a written order documenting that belief; and (iii) the inmate is notified of the warden's order. As alleged, plaintiff does not challenge the validity of the policy, does not allege a policy, practice, or custom of improper monitoring or confiscation of personal mail, nor does he allege that the facility failed to provide notice to him of the items that were confiscated. Rather, plaintiff alleges that his mail was confiscated on a single occasion and speculates that inmates and/or DOC personnel tampered with his mail on other occasions.
Given the precise detail of what plaintiff believes is missing (i.e., a magazine and 40 photocopies of a photograph of a semi-nude woman), we must conclude that plaintiff was notified that DOC personnel reviewed his correspondence. Moreover, based on plaintiff's description of the confiscated material, and in light of the age of the young woman in the photographs, it appears that it is within the DOC's legitimate penological interests to confiscate the material.
As a result, we conclude that plaintiff has failed to assert a plausible First Amendment claim. If plaintiff has additional evidence upon which to ground a viable First Amendment claim (i.e., additional facts regarding the regular and unjustified interference with his mail), plaintiff may file an amended pleading limited to this issue.
Accordingly, we grant the DOC's motion to dismiss.
Like Vance, the DOC argues that any purported state law claims should be dismissed. We address the purported state law claims in section IV, infra. In addition, the DOC contends that it was improperly served, and that the complaint should be dismissed pursuant to Federal Rule 12(b)(5). According to the DOC, service was improper because it was not affected by the United States Marshals Service and because the affidavit of service lacked certain requisite information. Again, because we dismiss the complaint pursuant to Rule 12(b)(6), we decline to address the DOC's argument that service was improper.
D. Defendant Howard D. Simmons, Esq.
In his complaint, plaintiff mentions Simmons once, explaining that Simmons was appointed to represent plaintiff in connection with a state criminal case against him. (Compl. at 3 ("Representing 18-B Lawyers that were assigned to Plaintiff's Felony case were: Lawrence Schwartz, Esq., Howard D. Simmons, Esq., [and] Chris J. Johnson, Esq.").)
Simmons moves to dismiss pursuant to Federal Rule 12(b)(6), arguing that plaintiff has failed to state a claim upon which relief may be granted. In response, plaintiff asserts that Simmons failed to act in plaintiff's best interests, that Simmons tampered with DNA evidence in an attempt to convict plaintiff, and that Simmons requested unnecessary adjournments and failed to show up to court.
We agree that plaintiff has not stated a plausible claim against Simmons. Plaintiff nowhere asserts that Simmons was acting under color of state law. See Dennis v. Sparks, 449 U.S. 24, 29 n.4, 101 S. Ct. 183, 187 n.4, 66 L. Ed. 2s 185, 190 n.4 (1980) (to act under color of state law, a plaintiff must allege that a private person was "a willful participant in joint activity with the State or its agents"); Dahlberg v. Becker, 748 F.2d 85, 92-93 (2d Cir. 1984) (dismissing complaint for failure to state a claim and holding that "mere invocation by [the individual] defendants of New York's legal procedures does not constitute joint participation" for the purpose of alleging that the defendants acted under color of state law). More generally, plaintiff's complaint fails to include "a short and plain statement of the claim showing that the pleader is entitled to relief," Twombly, 550 U.S. at 555 (citing Fed. R. Civ. P. 8(a)(2)), and thus fails to give Simmons "fair notice of what the . . . claim is and the grounds upon which it rests." Id. (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S. Ct. 99, 103, 2 L. Ed. 2d 80, 85 (1957)). Indeed, this complaint is wholly devoid of any factual allegations regarding Simmons' actions or inactions that would raise plaintiff's right to relief above a merely speculative level.
Thus, we grant Simmons' motion to dismiss.
III. Non-Moving Defendants
Apart from the four moving defendants, there are six additional defendants named in the complaint, none of whom has made an appearance in this case. Although the non-moving defendants have not made an appearance in this action, the Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). In light of this authority, a court must dismiss a complaint, or portion thereof, that states a frivolous or malicious claim, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. See 28 U.S.C. §§ 1915(e)(2)(B), 1915A(b); see also Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007).
To date, the Court has authorized the mailing of three service packages to plaintiff and has granted plaintiff extensions of time to serve.
Additionally, while the pleading of a pro se litigant should be liberally construed in his favor, a complaint that is "so confused, ambiguous, vague or otherwise unintelligible that its true substance, if any, is well disguised," fails to comply with Rule 8, and may be dismissed sua sponte. Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988); see also Fitzgerald v. First E. Seventh St. Tenants Corp., 221 F.3d 362, 363-64 (2d Cir. 2000).
With these standards in mind, we review plaintiff's allegations concerning the remaining six defendants.
A. Defendant "NYC's 23rd Precinct"
Pursuant to our authority to screen complaints brought by prisoners against a governmental entity, we dismiss the claims against defendant "NYC's 23rd Precinct" ("Precinct"). As discussed above, under the New York City Charter, a private plaintiff is generally prohibited from suing a municipal agency. See New York City Charter Ch. 17, § 396. Like the DOC, the New York Police Department ("NYPD") and its subdivisions are agencies of the City that may not be sued. See, e.g., Jenkins v. City of New York, 478 F.3d 76, 93 n.19 (2d Cir. 2007) (NYPD is not a suable entity); Morris v. New York City Police Dep't, 59 F. App'x 421, 422 (2d Cir. 2003) (same); Emerson v. City of New York, 740 F. Supp. 2d 385, 395-96 (S.D.N.Y. 2010) (NYPD Firearms Division and police precinct are not suable entities); Wingate v. City of New York, No. 08 Civ. 217 (ARR), 2008 WL 203313, at *2 (E.D.N.Y. Jan. 23, 2008) (police precinct is not a suable entity).
Accordingly, plaintiff's claims against the Precinct are dismissed.
B. Defendant Islamic Cultural Center
Pursuant to our authority to dismiss a complaint sua sponte, we find that plaintiff's claims against the Islamic Cultural Center ("Center") fail to meet the pleading requirements of Rule 8. See Fitzgerald, 221 F.3d at 364. Other than stating that he was arrested in 2008 "in an attempt to make a short cut[] through the [Center's] yard," (Compl. at 3), plaintiff fails to make any allegations against the Center. As currently alleged, the complaint fails to assert that the Center was acting under color of state law. Likewise, plaintiff fails to allege that the Center engaged in conduct that deprived plaintiff of his constitutional rights. Thus, we dismiss plaintiff's claims against the Center.
C. Defendant Lawrence D. Gerzog, Esq. and Defendant Maria G. Worley, Esq.
According to plaintiff, defendants Lawrence D. Gerzog, Esq. ("Gerzog") and Defendant Maria G. Worley, Esq. ("Worley"), were lawyers who were appointed to represent him in one or more of the state criminal cases against him. Plaintiff contends that Gerzog and Worley requested unnecessary adjournments of those cases and that those adjournments resulted in the violation of his rights under the Fourth Amendment to the United States Constitution. (Compl. at 3-4.)
To state a claim for relief under § 1983, plaintiff must allege that Gerzog and Worley acted under color of state law and that their conduct resulted in a constitutional violation. Here, however, plaintiff does not allege that either Gerzog or Worley were acting under color of state law. See Dennis, 449 U.S. at 27-28 (1990).
Moreover, plaintiff's allegations that Gerzog and Worley sought unnecessary adjournments do not rise to the level of a constitutional violation. Assuming plaintiff intended to allege that Gerzog and Worley provided ineffective assistance of counsel, plaintiff must satisfy a two-part test. First, plaintiff must allege that a lawyer's performance "fell below an objective standard of reasonableness." Strickland v. Washington, 466 U.S. 668, 688, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). Second, he must allege that there is a reasonable probability that but for counsel's error, the outcome of the proceeding in which the constitutionally deficient representation occurred would have been different. See id. at 694-95. Plaintiff's allegations fall far short of doing that.
Thus, because plaintiff's complaint fails to state a plausible claim for relief against Gerzog and Worley, we dismiss plaintiff's claims against them.
D. Defendant Carlos Fortunato
Plaintiff's sole allegation against defendant Carlos Fortunato ("Fortunato") is that "Carlos Fortunato's father, Mario Fortunato were both responsible for the stolen pictures. They stole them from plaintiff's place of residence." (Compl. at 5.) Again, plaintiff fails to adequately allege that Simmons was acting under color of state law. Moreover, the complaint fails to include "a short and plain statement of the claim showing that the pleader is entitled to relief," Twombly, 550 U.S. at 555, and therefore plaintiff fails to give Fortunato fair notice as required under the Federal Rules of Civil Procedure.
Plaintiff's complaint does not place this allegation in context. However, earlier in the complaint, plaintiff alleges that "[p]laintiff's young (19) year old pen-pal's pictures, phone number and addresses were stolen (in the month of August 2003)." (Compl. at 4.) Assuming that plaintiff is alleging that Fortunato stole photographs in 2003, and assuming that plaintiff could allege that Fortunato was acting under color of state law (which he does not), plaintiff's claims against Fortunato would be time-barred.
Accordingly, we dismiss plaintiff's claims against Fortunato.
E. Defendant African Islamic Mission
Plaintiff's complaint includes three sentences pertaining to the African Islamic Mission ("Mission"), none of which gives fair notice to the Mission about the nature of the claim and the grounds upon which the claim rests. (Compl. at 4 ("Plaintiff was informed two (2) years ago, about a family member, from the African Islamic Mission, had been serving State time, around the exact time as plaintiff and also was informed that this once Orthodox Muslim group, are Blood gang-members. Plaintiff joined the African Islamic Mission, in the month of 1994. Yet, left on bad terms about four (4) months later.").) If plaintiff's claims relate to events in 1994, they are plainly time-bared. However, even assuming that plaintiff's claims against the Mission were timely filed, plaintiff neither alleges that the Mission acted under color of state law nor does he allege a plausible constitutional violation by the Mission.
Because plaintiff does not include any substantive allegations concerning the Mission, we find that plaintiff's claims against the African Islamic Mission fail to meet the pleading requirements of Rule 8.
IV. State Law Claims
It is unclear whether plaintiff seeks to assert state tort law claims. Indeed, in his oppositions papers, plaintiff states that he is simply filing a civil rights action pursuant to § 1983. However, to the extent that plaintiff did intend to assert state tort claims, defendants argue that these must be dismissed due to the plaintiff's failure to comply with New York's notice of claim requirement.
Sections 50-e and 50-i of New York's General Municipal Law require that a plaintiff asserting state tort law claims against a municipal entity or its employees acting in the scope of employment must: (1) file a notice of claim within ninety days of the incident giving rise to the claim; and (2) commence a lawsuit within a year and ninety days from the date on which the cause of action accrues. Additionally, a plaintiff must allege in his complaint or in his moving papers that a notice of claim has been served, that at least thirty days elapsed between the filing of the notice of claim and the filing of the complaint, and that the defendant has either neglected or refused to satisfy the claim. See N.Y. Gen. Mun. Law § 50-i(1)(b); see also Arum v. Miller, 304 F. Supp. 2d 344, 348 (S.D.N.Y. 2003).
State notice of claim requirements apply to state law claims regardless of whether those claims were brought in state or federal court. Felder v. Casey, 487 U.S. 131, 151, 108 S. Ct. 2302, 2313, 101 L. Ed. 2d 123, 146 (1988); Hardy v. New York City Health & Hosps. Corp., 164 F.3d 789, 793 (2d Cir. 1999). Notice of claim requirements "are construed strictly by New York state courts," AT&T v. New York City Dep't of Human Res., 736 F. Supp. 496, 499 (S.D.N.Y. 1990), and "apply with equal force to actions prosecuted by pro se plaintiffs," McNeil v. Aguilos, 831 F. Supp. 1079, 1085 (S.D.N.Y. 1993). Failure to comply with these requirements may result in a dismissal for failure to state a cause of action. Brown v. Metro. Transp. Auth., 717 F. Supp. 257, 259 (S.D.N.Y. 1989).
Here, plaintiff filed a notice of claim in October 2009. That notice of claim was plainly filed more than ninety days after the October 27, 2008 arrest and the February 23, 2009 indictment. Thus, if plaintiff intended to assert a state law claim for wrongful arrest, we would be obliged to dismiss such a claim in light of plaintiff's failure to file a timely notice of claim.
In his complaint, plaintiff alleges that his notice of claim has "[b]een on file since Nov. 12th, 2009." (Compl. at 8.) However, in its opposition, the DOC attaches a copy of plaintiff's notice of claim, which appears to have been filed on October 9, 2009.
Unlike a possible claim for wrongful arrest, which is untimely on its face, the burglary prosecution apparently continued into 2010. Thus, if plaintiff intended to assert a state law claim for malicious prosecution, we assume, for the sake of argument only, that the October 2009 notice of claim was timely filed.
To assert a state law claim for malicious prosecution, plaintiff must allege: "(1) the initiation of a proceeding, (2) its termination favorably to the plaintiff, (3) lack of probable cause, and (4) malice." Colon v. City of New York, 60 N.Y.2d 78, 82 (1983); see also Savino v. City of New York, 331 F.3d 63, 72-73 (2d Cir. 2003). A grand jury's indictment creates a "presumption of probable cause" that "may be overcome only by evidence establishing that police witnesses have not made a complete and full statement of facts either to the Grand Jury or to the District Attorney, that they have misrepresented or falsified evidence, that they have withheld evidence or otherwise acted in bad faith." Colon, 60 N.Y.2d at 82-83; see also Navarez v. City of New York, 2011 N.Y. Slip. Op. 2961, at *1, 922 N.Y.S.2d 12 (1st Dep't Apr. 14, 2011).
Here, plaintiff alleges that the October 2008 arrest for trespassing resulted in a guilty plea. In light of this allegation, plaintiff cannot also allege, as required, that the trespass proceeding terminated favorably to him. See Bennett v. New York City Hous. Auth., 245 A.D.2d 254, 254, 665 N.Y.S.2d 91, 92 (2d Dep't 1997) (holding that guilty plea "conclusively established probable cause for [the] arrest, thus negating an essential element of his cause of action sounding in malicious prosecution. . ."). Additionally, plaintiff alleges that he was indicted by a grand jury in connection with the February 2009 burglary charge, which gives rise to a presumption of probable cause. Because plaintiff does not allege facts to rebut that presumption, he fails to state a state law claim for malicious prosecution with respect to the burglary charge.
Finally, "district courts may decline to exercise supplemental jurisdiction over a claim if the district court has dismissed all claims over which it has original jurisdiction." 28 U.S.C. § 1367(c). Consequently, "where the federal claims are dismissed before trial, the state claims should be dismissed as well." Marcus v. AT&T Corp., 138 F.3d 46, 57 (2d Cir. 1998). Having dismissed plaintiff's § 1983 claims, this Court declines to exercise supplemental jurisdiction over any remaining state law claims, which are dismissed without prejudice.
CONCLUSION
For the foregoing reasons, the motions to dismiss (docket nos. 7, 19, 20, and 26) are granted. Leave to amend is granted only to the extent that plaintiff has additional evidence to support a plausible claim for a violation of his First Amendment rights. Any amendment shall be filed within thirty (30) days of the date of this Memorandum and Order.
The Court certifies, pursuant to 28 U.S.C. § 1915(a) (3), that any appeal from this Order would not be taken in good faith, and therefore in forma pauperis status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45, 82 S. Ct. 917, 8 L. Ed. 2d 21 (1962). Dated: New York, New York
June 21, 2011
/s/_________
NAOMI REICE BUCHWALD
UNITED STATES DISTRICT JUDGE Copies of the foregoing Order have been mailed on this date to the following: Plaintiff
Giovanni S. White
349-10-12721
Anna M. Kross Center (AMKC), C-95
18-18 Hazen Street
East Elmhurst, NY 11370 Attorney for Defendant NYSPFIC
Inna Reznik, Esq.
Assistant Attorney General
State of New York
Office of the Attorney General
120 Broadway
New York, NY 10271 Attorney for Defendant Vance
Cynthia Sittnick, Esq.
Assistant District Attorney
County of New York
1 Hogan Place
New York, NY 10013 Attorney for Defendant DOC
Joseph A. Marutollo, Esq.
Law Department
City of New York
100 Church Street
New York, NY 10007 Attorney for Defendant Simmons (pro se)
Howard D. Simmons, Esq.
Howard D. Simmons P.C.
217 Broadway, Suite 603
New York, NY 10007