Opinion
19-CV-6497 (CM)
08-21-2019
ALEX DeJESUS, Plaintiff, v. DETECTIVE SQUAD, Defendant.
ORDER OF DISMISSAL :
Plaintiff, appearing pro se, brings this action under the Court's federal question jurisdiction, alleging that the Defendant violated his federal constitutional rights. By order dated August 7, 2019, the Court granted Plaintiff's request to proceed without prepayment of fees, that is, in forma pauperis ("IFP"). The Court dismisses this action for the reasons below.
STANDARD OF REVIEW
The Court must dismiss an IFP complaint, or portion thereof, 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. 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).
BACKGROUND
Plaintiff Alex DeJesus, a resident of the Bronx, brings this action against the Detective Squad of the 42nd Precinct of the New York City Police Department ("NYPD"). The following allegations are taken from Plaintiff's complaint. On June 11, 2019, Plaintiff looked out his window and saw an unknown person breaking into his vehicle and stealing his belongings. He called 911 and Officer Morello arrived at the scene. Officer Morello wrote up a police report in which he classified the crime as "petit larceny" and instructed Plaintiff to call the precinct the following day to obtain a copy of the report. On the following day, Plaintiff called the 42nd Precinct and was transferred to the "Detective Squad." Plaintiff alleges that a female answered the phone and told him that the precinct does not investigate petit larceny cases but refused to provide him with a reason why they do not investigate such cases. When Plaintiff asked her for her name, she hung up on him.
Plaintiff asserts that Defendant violated his First Amendment rights to petition the government and to freedom of speech, his right to equal protection under the Fourteenth Amendment, the Right to Know Act, a New York City Municipal Law, and the Americans with Disabilities Act of 1990, 42 U.S.C. § 12132. He asserts that Defendant's actions have caused him emotional distress, mental anguish, sadness, torment, depression, and humiliation. He seeks $75,000 in damages and an order "enforc[ing] her to do her job." (Id.)
DISCUSSION
A. Claims under 42 U.S.C. § 1983
Plaintiff asserts that his constitutional rights were violated, and the Court therefore construes his claims as arising under 42 U.S.C. § 1983. To state a claim under 42 U.S.C. § 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's claims against the 42nd Precinct Detective Squad must be dismissed. Section 1983 provides that an action may be maintained against a "person" who has deprived another of rights under the "Constitution and Laws." 42 U.S.C. § 1983. The 42nd Precinct Detective squad is not a "person" within the meaning of § 1983. See Will v. Mich. Dep't of State Police, 491 U.S. 58 (1989) (state is not a "person" for the purpose of § 1983 claims); Zuckerman v. Appellate Div., Second Dep't Supreme Court, 421 F.2d 625, 626 (2d Cir. 1970) (court not a "person" within the meaning of 42 U.S.C. § 1983); Whitley v. Westchester Cnty. Corr. Fac. Admin., No. 97-CV-420 (SS), 1997 WL 659100, at *7 (S.D.N.Y. Oct. 22, 1997) (correctional facility or jail not a "person" within the meaning of § 1983). The Court therefore dismisses Plaintiff's claims against the 42nd Precinct Detective Squad. See 28 U.S.C. § 1915(e)(2)(B)(ii).
To the extent Plaintiff is seeking to compel the Defendant or any other unit of the NYPD to investigate his case, those claims must be dismissed. The government generally has no duty under the Fourteenth Amendment to investigate or protect an individual against harm from others. DeShaney v. Winnebago Cnty. Dep't of Soc. Servs., 489 U.S. 189, 195-96 (1989); Lewis v. Gallivan, 315 F. Supp. 2d 313, 316-17 (W.D.N.Y. 2004) (holding that there is "no constitutional right to an investigation by government officials"); Lewis v. New York City Police Dep't, 2000 WL 16955, *4 (S.D.N.Y. Jan. 10, 2000) ("There is no constitutional right to force an officer to make an arrest.").
The Second Circuit has recognized two exceptions to this general rule. First, "when 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 well-being." DeShaney, 489 U.S. at 199-200. This affirmative duty to protect arises "not from the State's knowledge of the individual's predicament or from its expressions of intent to help him, but from the limitation which it has imposed on his freedom to act on his own behalf." Id. at 200.
Second, the government may assume some obligation when it affirmatively creates or increases the danger to the plaintiff. See Dwares v. City of N.Y., 985 F.2d 94, 98-99 (2d Cir. 1993). The state-created danger doctrine has been applied where state actors actively facilitate harm, such as "where police officers told skinheads that they would not prevent them from beating up protesters in the park . . . [or] where a prison guard told inmates that it was 'open season' on a prisoner, and the inmates beat up the prisoner." Matican v. City of N.Y., 524 F.3d 151, 157 (2d Cir. 2008); Clarke v. Sweeney, 312 F. Supp. 2d 277, 291 (D. Conn. Mar. 30, 2004) (citations omitted) ("The cases where the state-created danger theory was applied were based on discrete, grossly reckless acts committed by the state or state actors leaving a discrete plaintiff vulnerable to a foreseeable injury.").
Plaintiff's allegations do not show that the 42nd Precinct's Detective Squad or any of its employees created or increased the danger to him. These allegations fail to state a claim under § 1983 on which relief can be granted. See 28 U.S.C. § 1915(e)(2(B)(ii).
B. Claims under the ADA
Plaintiff makes the threadbare assertion that Defendant violated his rights under the ADA, but provides no further explanation. The ADA generally prohibits discrimination against individuals with disabilities in all areas of public life, including employment, education, and provision of public services. See 42 U.S.C. 12101 et seq. Plaintiff fails to allege that he meets the definition of a individual with a disability, § 12102, or how Defendant discriminated against him on the basis of his disability. Plaintiff has not alleged facts sufficient to state a claim under the ADA. The Court therefore dismisses any claims Plaintiff makes under the ADA. See 28 U.S.C. § 1915(e)(2)(B)(ii).
C. Non-federal claims
Plaintiff asserts that Defendant violated his rights under New York City's Right to Know Act. A district court may decline to exercise supplemental jurisdiction over non-federal 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 over which the Court has original jurisdiction, the Court declines to exercise its supplemental jurisdiction over any state or municipal 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)).
D. Leave to amend
District courts generally grant a pro se plaintiff an opportunity to amend a complaint to cure its defects, but leave to amend is not required where it 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). Because the defects in Plaintiff's complaint cannot be cured with an amendment, the Court declines to grant Plaintiff leave to amend his complaint.
CONCLUSION
The Clerk of Court is directed to assign this matter to my docket, mail a copy of this order to Plaintiff, and note service on the docket. Plaintiff's complaint, filed IFP under 28 U.S.C. § 1915(a)(1), is dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).
The Court dismisses Plaintiff's application to request pro bono counsel as moot.
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 Clerk of Court is directed to docket this as a "written opinion" within the meaning of Section 205(a)(5) of the E-Government Act of 2002. SO ORDERED. Dated: August 21, 2019
New York, New York
/s/_________
COLLEEN McMAHON
Chief United States District Judge