Opinion
22-CV-9829 (LTS)
02-06-2023
ROBINSON PERALTA, Plaintiff, v. CITY OF NEW YORK, Defendant.
ORDER TO AMEND
LAURA TAYLOR SWAIN, CHIEF UNITED STATES DISTRICT JUDGE:
Plaintiff, who is appearing pro se, brings this action alleging that a New York City police officer committed misconduct, was negligent, and engaged in “selective enforcement.” (ECF 1 ¶ I.A.) By order dated November 18, 2022, 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 grants Plaintiff leave to file an amended complaint within 60 days of the date of this order.
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.
Rule 8 requires a complaint to 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 (2007). A claim is facially plausible if the plaintiff pleads enough factual detail to allow the Court to draw the inference that the defendant is liable for the alleged misconduct. In reviewing the complaint, the Court must accept all well-pleaded factual allegations as true. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). But it does not have to accept as true “[t]hreadbare recitals of the elements of a cause of action,” which are essentially just legal conclusions. Twombly, 550 U.S. at 555. 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.
BACKGROUND
The complaint sets forth the following facts. On September 11, 2022, Plaintiff's car was “destroyed” after he was in a car accident on Broadway and West 148th Street in Manhattan. (ECF 1 at 9.) Plaintiff told Police Officer Jean Paul Rosenbenz that someone had “hit him on the left side and made [him] hit someone that was double parked on the right side.” (Id.) Rosenbenz “disregarded” Plaintiff's statement, and said that there were no witnesses or video evidence of what had taken place. (Id.) Plaintiff found video confirming his version of events, and he brought it to the 30th Precinct so that Rosenbenz could “write the accident report correctly.” (Id.) A supervising officer agreed with Plaintiff's position of what the video showed, but Rosenbenz “kept saying that [Plaintiff] wasn't hit.” (Id.) The supervising officer told Rosenbenz that he was “disobeying” an order, and he told Plaintiff that the accident report would be corrected. Eleven days later, Plaintiff received the accident report, which still stated that Plaintiff “crashed into a parked car.” (Id. at 10.) Plaintiff twice returned to the precinct to complain, and each time he was told by a supervising officer that the accident report would be corrected. On October 23, 2022,the accident report was amended to state that another driver hit Plaintiff, but the report still omitted the fact that the car Plaintiff hit was double parked. (Id. at 11.)
Plaintiff mistakenly states that this occurred on October 23, 2023.
The incident was referred to a detective, who told Plaintiff that she was “surprised” that she had received his complaint “so late” because “30 days had passed and any evidence would be gone.” (Id.) On November 16, 2022, the detective notified Plaintiff that she was “unable to identify the driver of the vehicle that hit [Plaintiff's] car.” (Id.) Plaintiff filed a complaint with the Civilian Complaint Review Board (CCRB), and the matter was reportedly sent to Internal Affairs, but was closed with no action taken. (Id.)
Plaintiff “lost his car and his job all in the same day, and because of [Officer Rosenbenz's] actions, [Plaintiff] cannot sue the other driver for damages and lost wages.” (Id.) Plaintiff seeks to have his car replaced, or $140,000 to buy a new car and for “lost income.” (Id. ¶ IV.)
DISCUSSION
A. Due process claim
Plaintiff does not specify the basis for the Court's jurisdiction. Because Plaintiff seeks money damages from the City of New York, the Court construes the complaint as asserting a constitutional claim 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). The Court construes Plaintiff's allegation that the police failed to adequately investigate or document the accident as asserting a procedural due process claim.
The constitutional requirement of procedural due process imposes constraints on governmental decisions which deprive individuals of liberty or property interests within the meaning of the Due Process Clause. Mathews v. Eldridge, 424 U.S. 319, 332 (1976). “A procedural due process claim is composed of two elements: (1) the existence of a property or liberty interest . . . and (2) deprivation of that interest without due process.” Bryant v. New York State Educ. Dep't, 692 F.3d 202, 218 (2d Cir. 2012). “A ‘unilateral expectation' is not sufficient to establish a constitutionally protected property right. Rather, a plaintiff must have ‘a legitimate claim of entitlement to' the alleged property interest.” Looney v. Black, 702 F.3d 701, 706 (2d Cir. 2012) (quoting Regents of State Colls. v. Roth, 408 U.S. 564, 576-77 (1972).
The Constitution of the United States does not provide individuals with an affirmative right to an investigation of their claims by the government that is protected by the Due Process Clause of the Fourteenth Amendment. DeShaney v. Winnebago Cnty. Dep't of Social Servs., 489 U.S. 189, 196-97 (1989) (holding that the Due Process Clauses “generally confer no affirmative right to governmental aid, even where such aid may be necessary to secure life, liberty, or property interests of which the government itself may not deprive the individual.”); Harrington v. Cnty. of Suffolk, 607 F.3d 31, 35 (2d Cir. 2010) (holding that parents had no constitutional right to an adequate police investigation of fatal motor vehicle collision); Bernstein v. New York, 591 F.Supp.2d 448, 460, 465 (S.D.N.Y. 2008) (“Courts within the Second Circuit have determined that there is no constitutional right to an investigation by government officials.” (collecting cases)). Thus, an “allegation that a police officer refused to take police action is not a cognizable constitutional violation.” Olabopo v. Gomes, No. 13-CV-5052, 2016 WL 5477586, at *4 (E.D.N.Y. Sept. 29, 2016) (citing Matican v. City of New York, 524 F.3d 151, 155 (2d Cir. 2008)).
Two exceptions to this no-duty-to-investigate rule apply: (1) if “the State takes a person into its custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general wellbeing,” DeShaney, 489 U.S. at 199-200; and (2) the government may assume some obligation when it “assist[s] in creating or increasing the danger,” see Matican v. City of New York, 524 F.3d 151, 155 (2d Cir. 2008). These exceptions do not apply to this case.
Moreover, the mere filing of a false, misleading, or incomplete police report, without more, does not create a right of action in damages under section 1983. Graham v. City of Albany, No. 08-CV-892, 2009 WL 4263510, at *9-10 (N.D.N.Y. Nov. 23, 2009) (declining to recognize a due process violation arising from a claim that police hindered plaintiff's ability to recover damages in a civil action arising out of an automobile accident) (citing Landrigan v. City of Warwick, 628 F.2d 736, 744-45 (1st Cir. 1980)). The “filing of a false police report is not itself a constitutional violation, even when the report is the result of an intentional conspiracy among police officers to cover up police misconduct.” Jarrett v. Twp. of Bensalem, No. 07-CV-1480, 2008 WL 818615 at *4 (E.D. Pa. Mar. 26, 2008) (holding that the plaintiff had no property interest in “obtaining a large insurance settlement”).
Here, Plaintiff's allegations concerning these events do not give rise to a constitutional claim, because he has no entitlement under the Constitution to a police report, an insurance settlement, or to prevail in a lawsuit against the other driver. Plaintiff therefore does not state a due process claim under Section 1983.
B. Claim 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. of City of New York, 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 § 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 of Bryan Cnty. v. Brown, 520 U.S. 397, 403 (1997) (internal citations omitted).
Here, Plaintiff alleges that Officer Rosenbenz failed to include information about the double parked car in the police report about the car accident. There are no facts in the complaint suggesting that a municipal policy, custom, or practice contributed to or caused the violation of Plaintiff's constitutional rights.
LEAVE TO AMEND
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)). It is unclear whether the defects in Plaintiff's complaint can be cured by amendment. In light of his pro se status, and in an abundance of caution, the Court grants Plaintiff 60 days' leave to amend his complaint to detail his claims.
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 his 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.
CONCLUSION
Plaintiff is granted leave to file an amended complaint that complies with the standards set forth above. Plaintiff must submit the amended complaint to this Court's Pro Se Intake Unit within 60 days of the date of this order, caption the document as an “Amended Complaint,” and label the document with docket number 22-CV-9829 (LTS). An Amended Complaint form is attached to this order. No summons will issue at this time. If Plaintiff fails to comply within the time allowed, and he cannot show good cause to excuse such failure, the complaint will be dismissed for failure to state a claim upon which relief may be granted.
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. Cf. Coppedge v. United States, 369 U.S. 438, 444-45 (1962) (holding that an appellant demonstrates good faith when he seeks review of a nonfrivolous issue).
SO ORDERED.