Opinion
1:16-CV-00887 (GTS/TWD)
10-04-2016
JULIAN CORYE AND CHRISTINA FERKEY, Plaintiff, v. POLICE OFFICER MICHEL (supervisor on duty), SERGEANT ANDERSON, ALBANY DISTRICT ATTORNEY DAVID SOARES, Defendants.
APPEARANCES: JULIAN CORYE Plaintiff pro se 17960 Ranchera Road Shasta Lake, California 96019 CHRISTINA FERKEY Plaintiff pro se 17960 Ranchera Road Shasta Lake, California 96019
APPEARANCES: JULIAN CORYE
Plaintiff pro se
17960 Ranchera Road
Shasta Lake, California 96019 CHRISTINA FERKEY
Plaintiff pro se
17960 Ranchera Road
Shasta Lake, California 96019 THÉRÈSE WILEY DANCKS, United States Magistrate Judge ORDER AND REPORT-RECOMMENDATION
The Clerk has sent to the Court for initial review the amended complaint in this 42 U.S.C. § 1983 civil rights action brought by Plaintiffs Julian Corye and Christina Ferkey against Defendants Police Officer Michel (supervisor on duty), Sergeant Anderson, and Albany County District Attorney David Soares. (Dkt. No. 5.) Also before the Court are Plaintiffs' applications for leave to proceed in forma pauperis ("IFP Application"). (Dkt. Nos. 2 and 3.)
The Albany Police Department was named as a defendant in Plaintiff's original complaint. (Dkt. No. 1.) The Police Department has been deleted as a defendant in the amended complaint. (Dkt. No. 5.)
I. PLAINTIFF'S IFP APPLICATION
A court may grant in forma pauperis status if a party "is unable to pay" the standard fee for commencing an action. 28 U.S.C. § 1915(a)(1) (2006). After reviewing Plaintiffs' IFP Applications, the Court finds that both Plaintiffs meet this standard. Therefore, Plaintiffs' IFP Applications (Dkt. Nos. 2 and 3) are granted.
II. LEGAL STANDARD FOR INITIAL REVIEW OF COMPLAINT
Even when a plaintiff meets the financial criteria for in forma pauperis, 28 U.S.C. § 1915(e) directs that when a plaintiff proceeds in forma pauperis, "the court shall dismiss the case at any time if the court determines that . . . the action . . . (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B)(i)-(iii).
In determining whether an action is frivolous, the court must look to see whether the complaint lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). "An action is frivolous when either: (1) the factual contentions are clearly baseless such as when the claims are the product of delusion or fantasy; or (2) the claim is based on an indisputably meritless legal theory." Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998) (citations and internal quotation marks omitted). Although extreme caution should be exercised in ordering sua sponte dismissal of a pro se complaint before the adverse party has been served and the parties have had an opportunity to respond, Anderson v. Coughlin, 700 F.2d 37, 41 (2d Cir. 1983), the court still has a responsibility to determine that a claim is not frivolous before permitting a plaintiff to proceed. See, e.g., Thomas v. Scully, 943 F.2d 259, 260 (2d Cir. 1991) (per curiam) (holding that a district court has the power to dismiss a complaint sua sponte if the complaint is frivolous).
To survive dismissal for failure to state a claim, a complaint must plead enough facts to state a claim that is "plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While Rule 8(a) of the Federal Rules of Civil Procedure, which sets forth the general rules of pleading, "does not require detailed factual allegations, . . . it demands more than an unadorned, the-defendant-harmed-me accusation." Id. In determining whether a complaint states a claim upon which relief may be granted, "the court must accept the material facts alleged in the complaint as true and construe all reasonable inferences in the plaintiff's favor." Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir.), cert. denied, 513 U.S. 836 (1994) (citation omitted). "[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Iqbal, 556 U.S. at 678. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id.
Where a plaintiff proceeds pro se, the pleadings must be read liberally and construed to raise the strongest arguments they suggest. Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008) (citation omitted). A pro se complaint should not be dismissed "without giving leave to amend at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated." Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999) (citation and internal quotation marks omitted). An opportunity to amend is not required where "the problem with [the plaintiff's] causes of action is substantive" such that "better pleading will not cure it." Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000).
III. COMPLAINT
On September 11, 2015, Christina Ferkey ("Ferkey") was walking with her puppy when the puppy vomited on the sidewalk in front of a hair salon/dance studio where a few women were sitting. (Dkt. No. 5 at 2.) The women became angry even after Ferkey apologized and asked if they had something she could use to clean it up, refused to help her, and ultimately threatened her with bodily harm if she did not clean up the mess. Id. She cleaned up the mess after a lady in the store next to the salon gave her a plastic bag, and she then went home and told her fiancé, Julian Corye ("Corye") what had happened. Id. at 2-3.
Page references to documents identified by docket number are to the numbers assigned by the CM/ECF docketing system maintained by the Clerk's Office.
When Corye offered to take the couple's other dog out so Corye could buy cigarettes, he went to talk to the women at the salon. Id. at 3. Ferkey saw him and went there too, at which point the women began screaming at her and getting in her face. Id. Corye was hit from the side by a man, and around fifty people started assaulting both Corye and Ferkey. Id. at 4. When the police arrived, Corye was already on the ground, and he saw the arresting officer slam Ferkey, who was by that time naked, against the car. Id. When he asked the arresting police officer why he was being rough with Ferkey when she had done nothing, he came over and kicked Corye twice in the shoulder. Id. Another officer then lifted Corye, and the arresting officer punched him in the stomach causing him to vomit blood. Id.
Corye, who was bleeding everywhere, was taken to the hospital by ambulance and required to have an HIV blood test because his blood had gotten on the arresting officer. Id. Ferkey, who had been handcuffed and placed in a police car, was taken to the hospital when she complained of feeling dizzy. Id. at 3. When Corye was taken to the station, he told the sergeant what had happened and that there were cameras on the streetlights at the site of the incident. Id. at 5. The Sergeant told Corye he would look into it. Id. Corye and Ferkey were not released from jail for six or seven days and had to use his rent money for bail. Id. at 4. Ultimately, assault charges were dismissed against Corye and Ferkey because they were the ones who had been assaulted. Id. at 5. According to Corye, he asked his attorney to request that the District Attorney review tapes of the assault, but it never happened that everyone assumed he and Ferkey were guilty with no proof because they were Black. Id. at 8.
Plaintiffs have alleged claims for Fourteenth Amendment denial of due process against District Attorney Soares; false arrest, false imprisonment, and excessive force against Officer Michel; and negligence, false arrest and imprisonment, and racial discrimination against Sergeant Anderson. Id. at 5-8.
IV. ANALYSIS
A. Claim Against Albany County District Attorney David Soares
According to Plaintiffs, they and their attorney asked District Attorney Soares on several occasions to review the cameras on the street lights in the area of the incident alleged in the amended complaint to see if a crime had been committed, and it was not done. (Dkt. No. 5 at 8.) Plaintiffs assert that Albany County District Attorney David Soares thus failed in his responsibility to properly investigate and establish a solid case against Plaintiffs in violation of their right to due process under the Fourteenth Amendment. Id.
"Because a public prosecutor cannot zealously perform the prosecutorial duties of the office if compelled to work under the constant threat of legal reprisals, such official is shielded from liability for civil wrongs by the doctrine of absolute immunity." Hill v. City of New York, 45 F.3d 653, 656 (2d Cir. 1995). The Second Circuit explained in Hill, id. at 660-61, that:
In determining whether absolute immunity obtains, we apply a "functional approach," looking at the function being performed rather than to the office or identity of the defendant. See Buckley v. Fitzsimmons, 509 U.S. 259, 268-69 (1993). State prosecutors are entitled to absolute immunity for that conduct "intimately associated with the judicial phase of the criminal process." Imbler [v. Pachtman, 424 U.S. 409, 430 (1976)]. Thus, a district attorney is absolutely immune from civil liability for initiating a prosecution and presenting the case at trial. Id. at 430-31; Buckley, 509 U.S. at 273. Such official is also immune for conduct in preparing for those functions; for example, evaluating and organizing evidence for presentation at trial or to a grand jury, Buckley, 509 U.S. at 273, or determining which offenses are to be charged. See Ying Jing Gan v. City of New York, 996 F.2d 522, 530 (2d Cir. 1993). Prosecutorial immunity from § 1983 liability is broadly defined, covering "virtually all acts, regardless of motivation, associated with [the prosecutor's] function as an advocate." Dory v. Ryan, 25 F.3d 81, 83 (2d Cir. 1994).
"A prosecutor . . . has absolute immunity in connection with the decision whether or not to commence a prosecution." Imbler v. Pachtman, 424 U.S. 409, 430 (1976); see also Broam v. Bogan, 320 F.3d 1023, 1029 (9th Cir. 2003) ("A prosecutor is absolutely immune from liability for failure to investigate the accusations against a defendant before filing charges."); Johnson v. City of New York, No. 00CIV.3626(SHS), 2000 WL 1335865, at *2 (S.D.N.Y. Sept. 15, 2000) (prosecutorial functions that are protected by absolute immunity "include the decision to bring charges against a defendant"); Halpern v. City of New Haven, 489 F. Supp. 841, 843 (D. Conn. 1980) (prosecutorial immunity found where the prosecutor undertook no independent investigation of the charges and continued prosecution even after finding insufficient evidence to support the charges).
Copies of all unpublished decisions cited herein will be provided to Plaintiff in accordance with LeBron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
Because Plaintiffs' claim against District Attorney Soares is limited to his alleged failure to view the tapes from the cameras on the street lights before prosecuting them as Plaintiffs had requested, the Court recommends dismissal of the case with prejudice against District Attorney Soares.
B. Defendant Police Officer Michel and Sergeant Anderson
In their original complaint, Plaintiffs named as defendants Officer John Doe and Sergeant John Doe. (Dkt. No. 1 at 1.) In their amended complaint, they have named Police Officer Michel and Sergeant Anderson as defendants, and they have deleted the two Doe defendants from the caption and list of defendants, leading the Court to assume that Plaintiffs ascertained the names of the Doe defendants and made the substitution. (Dkt. No. 5 at 1.) The Plaintiffs, however, have continued to refer to Officer John Doe and Sergeant John Doe in the body of the amended complaint and have not referred to either Officer Michel or Sergeant Anderson by name other than in the caption and the listing of defendants. Id. at 1, 5-7. Construing the amended complaint liberally as required given Plaintiffs' pro se status, the Court has nonetheless assumed solely for purposes of initial review that Officer John Doe is Officer Michel and Sergeant John Doe is Sergeant Anderson.
A July 20, 2016, Text Notice, sent to Plaintiff by regular mail, informed Plaintiffs that in the event they wished to pursue claims against the John Doe defendants, they should take reasonable steps to ascertain their identities. Plaintiffs were advised that when they determined the identity of the John Doe defendants, they could seek to amend their complaint to add the properly named defendants pursuant to Rule 15 of the Federal Rules of Civil Procedure.
1. Claims Against Officer Michel
a. False Arrest and False Imprisonment
Plaintiffs Corye and Ferkey were arrested and charged with assault and incarcerated for six and seven days in jail until bailed out. (Dkt. No. 5 at 4-5, 8.) The charges were subsequently dismissed. Id. at 9. Plaintiffs have alleged claims for false arrest and false imprisonment. Id. at 5, 8. Plaintiffs have not identified the defendant(s) against whom the claims are asserted. Id. The Court has assumed for purposes of initial review, that they intend to assert the claims against Officer Michel as the arresting officer.
To state a claim for false arrest under § 1983 or New York law, a plaintiff must allege that (1) the defendant intended to confine him; (2) plaintiff was conscious of the confinement; (3) plaintiff did not consent to the confinement; and (4) the confinement was not otherwise privileged. See Posr v. Doherty, 944 F.2d 91, 96 (2d Cir. 1991). "False arrest is simply an unlawful detention or confinement brought about by means of an arrest rather than in some other way and is in all other respects synonymous with false imprisonment." Vasquez v. City of New York, No. 99 Civ. 4606(DC), 2000 WL 869492, at *3 (S.D.N.Y. June 29, 2000) (quoting Covington v. City of New York, 171 F.3d 117, 125 (2d Cir. 1999) (Glasser, J. dissenting)).
b. Excessive Force
Plaintiffs allege that Officer Michel, who was the arresting officer, slammed a naked Ferkey against the car, kicked Corye twice in the shoulder, punched him in the stomach, causing him to spit up blood, and forced him to take an HIV test because Corye had been bleeding and got blood on Michel. (Dkt. No. 5 at 4.) Plaintiffs also allege that they were both arrested for assault and have both asserted claims for excessive force. Id. at 5.
Claims arising out of the use of force during an arrest are judged by the "objective reasonableness" standard of the Fourth Amendment. See Graham v. Connor, 490 U.S. 386, 388 (1989). "Determination of whether the amount of force used to seize someone was reasonable 'requires a careful balance of the nature and quality of the intrusion of the individual's Fourth Amendment interests against the countervailing governmental interests at stake.'" Piper v. City of Elmira, 12 F. Supp. 3d 577, 587 (W.D.N.Y. 2014) ( quoting Graham, 490 U.S. at 396). For a claim of excessive force to be actionable, a plaintiff must demonstrate that it was "objectively sufficiently serious or harmful." United States v. Walsh, 194 F.3d 37, 50 (2d Cir. 1999).
Mindful of the Second Circuit's direction that a pro se plaintiff's pleadings must be liberally construed, Sealed Plaintiff, 537 F.3d at 191, the Court recommends that Plaintiffs' § 1983 claims for false arrest, false imprisonment, and excessive force in violation of their Fourth Amendment rights against Defendant Michel be found to survive initial review and require a response. In so recommending, the Court expresses no opinion as to whether any of the claims can withstand a properly filed motion to dismiss or for summary judgment.
2. Claims Against Sergeant Anderson
Plaintiff Corye alleges that when he was taken to the police station following his arrest, he explained what had happened to Sergeant Anderson, whom Corye asserts was in charge of the case albeit not the arresting officer, and told Anderson about the cameras on the street lights. (Dkt. No. 5 at 4.) According to Corye, the Sergeant told him he would look into it and failed to do so. Id. The Court construes the amended complaint as having alleged claims by Plaintiffs against Sergeant Anderson for negligence, false arrest and false imprisonment, and racial discrimination in violation of their Fourteenth Amendment right to equal protection of the law. Id. at 5, 9.
a. Negligence
With regard to Plaintiff's state law negligence claim, "New York does not recognize an action alleging negligent investigation or prosecution of a crime, as the police are not required to follow every lead that may yield evidence beneficial to the accused." Hernandez v. State of New York, 644 N.Y.S.2d 380, 382 (3d Dep't 1996) (citing Gisondi v. Town of Harrison, 532 N.Y.S.2d 234 (1988). Therefore, the Court recommends that Plaintiff's negligence claim against Sergeant Anderson be dismissed with prejudice.
b. False Arrest and False Imprisonment
Plaintiffs also appear to have alleged a false arrest and false imprisonment claims against Defendant Anderson. (Dkt. No. 5 at 5.) In order to survive dismissal, a complaint must plead enough facts to state a claim that is "plausible on its face." Twombly, 550 U.S. at 570. The Court finds that Plaintiffs' conclusory allegation that Sergeant Anderson was "in charge of the case" is inadequate to make a plausible showing in support of their false arrest claim. Furthermore, if Plaintiffs' false arrest claim is based solely on Sergeant Anderson's alleged failure to view the tapes from the cameras located at the site of the incident resulting in Plaintiffs' arrests, it fails to state a claim because law enforcement officers have no duty to investigate exculpatory defenses. See Mistretta v. Prokesch, 5 F. Supp. 2d 128, 135 (E.D.N.Y. 1998).
Based upon the foregoing, the Court recommends that Plaintiffs' false arrest claim against Sergeant Anderson be dismissed without prejudice and that Plaintiff be allowed an opportunity to submit an amended complaint.
c. Equal Protection
Finally, Plaintiffs claim that Sergeant Anderson discriminated against them on account of their race because they were treated differently than Caucasians would have been treated. (Dkt. No. 5 at 8.) The Court has construed the claim as an enforcement claim under the Equal Protection Clause of the Fourteenth Amendment.
Plaintiffs have identified themselves as Black. (Dkt. No. 5 at 5.)
The only factual allegations made with respect to Plaintiffs' racial discrimination cause of action involve Sergeant Anderson's failure to look at the tapes. Neither Officer Michel nor District Attorney Soares has been implicated in the claim by Plaintiffs. (See Dkt. No. 5 at 8.) --------
According to Plaintiffs, if a White person had asked the sergeant handling the case to check the cameras to see if that person had committed a crime, the cameras would have been checked. Id. Plaintiffs contend that because they are Black, no one took steps to see the truth; that they were already seen as guilty because of their skin color. Id. To prevail on their claim, Plaintiffs must show that "(1) the [plaintiff], compared with others similarly situated, was selectively treated; and (2) that such selective treatment was based on impermissible considerations such as race, religion, intent to inhibit or punish the constitutional rights, or malicious or bad faith intent to injure a person." LeClair v. Saunders, 627 F.2d 606, 609-10 (2d Cir. 1980). "A showing that the plaintiff was treated differently compared to others similarly situated is a 'prerequisite' and a 'threshold' matter to a selective treatment claim." Dava v. City of New York, No. 1:15-cv-08575 (ALC), 2016 WL 4532203, at * 8 (S.D.N.Y. Aug. 29, 2016) (citation and internal quotation marks omitted). Courts within this Circuit have held that individuals are similarly situated for purposes of a selective enforcement claim when they are similarly situated in all material respects. See Mosdos Chofetz Chaim, Inc. v. Vill. of Wesley Hills, 815 F. Supp. 2d 679, 692 (S.D.N.Y. 2011). "A plaintiff's naked assertions of discrimination are insufficient to survive the pleading stage." Wright v. Nypd Officer Michael Manetta, No. 14-cv-8976 (KFB), 16 WL 482973, at * 3 (S.D.N.Y. Feb. 5, 2016); Dava, 2016 WL 4532203, at *7 ("naked assertions of discrimination, absent any factual allegations regarding his own treatment in comparison to the treatment of other similarly situated individuals, are insufficient to support [an equal protection] claim").
The Court finds that Plaintiffs' conclusory assertion that Sergeant Anderson violated their rights to equal protection by failing to view the tapes from cameras at the site of the incident when he would have viewed them had the arrestee been White is insufficient to state a claim and recommends dismissal of Plaintiffs' equal protection claim with leave to amend.
ACCORDINGLY, it is hereby
ORDERED that Plaintiffs' IFP Applications (Dkt. Nos. 2 and 3) be GRANTED; and it is
RECOMMENDED that the amended complaint (Dkt. No. 5) be DISMISSED WITH PREJUDICE against Defendant Albany County District Attorney David Soares; and it is further
RECOMMENDED that Plaintiffs' negligence claim against Defendant Sergeant Anderson be DISMISSED WITH PREJUDICE; and it is further
RECOMMENDED that Plaintiffs' claims for false arrest and imprisonment and violation of their right to equal protection against Defendant Sergeant Anderson be DISMISSED WITHOUT PREJUDICE AND WITH LEAVE TO AMEND; and it is further
RECOMMENDED that the action be allowed to proceed against Defendant Officer Michel, and that the Defendant, or his counsel, be required to file a response as provided for in Rule 12 of the Federal Rules of Civil Procedure; and it is further
RECOMMENDED that in the event the District Court allows Plaintiffs to file a second amended complaint, they be instructed that any second amended complaint be a complete pleading that supersedes their amended complaint (Dkt. No. 5) in all respects (and does not incorporate by reference any portion of their amended complaint); and that they not attempt to reassert any claims that have been dismissed with prejudice by the District Court, and that they not attempt to effect service on any defendant until such time as authorized by court order; and it is hereby
ORDERED, that the Clerk provide Plaintiffs with copies of this Order and Report-Recommendation, along with copies of the unpublished decisions cited herein in accordance with the Second Circuit decision in Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72. Dated: October 4, 2016
Syracuse, New York
/s/_________
Thérèse Wiley Dancks
United States Magistrate Judge