Opinion
5:23-cv-00508-GTS-TWD
06-29-2023
ISHMEAL ELMORE, Plaintiff, v. ONONDAGA COUNTY SHERIFFS et al., Defendants.
ISHMEAL ELMORE Plaintiff, pro se 1012 Cadillac St. Apt. 1 Syracuse, NY 13208
ISHMEAL ELMORE Plaintiff, pro se 1012 Cadillac St. Apt. 1 Syracuse, NY 13208
ORDER AND REPORT-RECOMMENDATION
THERESE WILEY DANCKS, UNITED STATES MAGISTRATE JUDGE
The Clerk has sent the Court a civil rights complaint filed by Ishmeal Elmore (“Plaintiff”) for initial review pursuant to 28 U.S.C. § 1915. (Dkt. No. 1.) Plaintiff filed a motion to proceed in forma pauperis (“IFP”), and he also requests the appointment of counsel. (Dkt. Nos. 2, 3.) For the reasons discussed below, the undersigned recommends the Court conclude Plaintiff's Fourth Amendment claim brought pursuant to 42 U.S.C. § 1983 for an unreasonable search survives initial review and requires a response. (See Dkt. No. 1.) The undersigned further recommends the Court dismiss Plaintiff's other claims with leave to amend. See id.
I. IFP APPLICATION
Plaintiff has not paid the filing fee for this action and seeks leave to proceed IFP. (Dkt. No. 2.) After reviewing Plaintiff's application, this Court finds he is financially eligible for IFP status. Therefore, Plaintiff's IFP application is granted.
II. SUFFICIENCY OF THE COMPLAINT
Having found Plaintiff meets the financial criteria for commencing this action IFP, the Court must consider the sufficiency of the allegations set forth in the complaint in light of 28 U.S.C. § 1915(e).
A. Standard of Review
Section 1915 “provide[s] an efficient means by which a court can screen for and dismiss legally insufficient claims.” Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007) (citing Shakur v. Selsky, 391 F.3d 106, 112 (2d Cir. 2004)). The Court shall dismiss a complaint in a civil action if the Court determines it is frivolous, malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. See 28 U.S.C. § 1915(e)(2)(B)(i)-(iii).
A claim is frivolous when it “lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989), abrogated on other grounds by Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007); see also Denton v. Hernandez, 504 U.S. 25, 33 (1992) (holding that “a finding of factual frivolousness is appropriate when the facts alleged rise to the level of the irrational or the wholly incredible”); Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998) (“[A]n action is frivolous when either: (1) the factual contentions are clearly baseless . . . or (2) the claim is based on an indisputably meritless legal theory.”) (internal citation and quotations omitted).
A complaint must contain a short and plain statement of the claim showing that the pleader is entitled to relief. Fed.R.Civ.P. 8(a)(2). This short and plain statement of the claim must be “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). The statement of the claim must do more than present “an unadorned, the-defendant-harmed-me accusation.” Id. It must “give the defendant fair notice of what the claim is and the grounds upon which it rests.” Twombly, 550 U.S. at 555 (internal quotations, citation, and alterations omitted); see also Fed.R.Civ.P. 8(a)(2).
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. 1994). “[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.
In reviewing a pro se complaint, the court has a duty to show liberality toward pro se litigants. See Nance v. Kelly, 912 F.2d 605, 606 (2d Cir. 1990). The court should exercise “extreme caution . . . in ordering sua sponte dismissal of a pro se complaint before the adverse party has been served and both parties (but particularly the plaintiff) have had an opportunity to respond.” Anderson v. Coughlin, 700 F.2d 37, 41 (2d Cir. 1983) (emphasis in original) (citations omitted). While the Court will generally afford a pro se plaintiff an opportunity to amend or to be heard prior to dismissal, leave to amend pleadings may be denied when any amendment would be futile. See Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000).
B. Summary of the Complaint
On August 1, 2022, at approximately 5:30PM, Plaintiff was pulled over by Onondaga Sheriff's Deputy C. Atieh, shield number 2911, in the parking lot of Hometown Inn located at 6611 Old Collamer Rd. S., East Syracuse, NY 13057. (Dkt. No. 1 at 5.) Deputy Atieh told Plaintiff he pulled him over due to his car's illegal window tint. Id. Plaintiff claims his vehicle “met all DMV requirements to operate on New York State roadways.” Id. Plaintiff nonetheless handed Deputy Atieh his license and other requested documents and Deputy Atieh returned to his vehicle. Id. While Deputy Atieh was in his vehicle, Unknown Sheriff's Deputy arrived on the scene. Id. Deputy Atieh and Unknown Sheriff's Deputy then approached each side of Plaintiff's vehicle. Id. Plaintiff explained to both officers he was returning to his hotel room with his passenger, then-girlfriend Monica Landry, for the evening. Id.
Plaintiff does not identify this Defendant by name. He will therefore be referred to as “Unknown Sheriff's Deputy” throughout the decision. (See Dkt. No. 1 at 2.)
Deputy Atieh then stated he smelled marijuana coming from Plaintiff's vehicle and saw a marijuana cigarette, or “joint,” in his ashtray. Id. Ms. Landry told the officers “the joint's mine,[] I was smoking it earlier, and he . . . does not smoke marijuana.” Id. Plaintiff repeated that the joint was not his and he does not smoke marijuana. Id. Deputy Atieh directed Plaintiff to get out of his vehicle and he complied. Id. Deputy Atieh ushered Plaintiff to the back of his vehicle, told Plaintiff he was going to be frisked for weapons, and then “roughly” frisked Plaintiff in front of the “growing crowd of other hotel guests and on-lookers.” Id. Deputy Atieh then told Plaintiff he was going to conduct a field sobriety test. Id. Plaintiff repeated that he was not under the influence of marijuana and does not smoke marijuana. Id. While Deputy Atieh conducted the sobriety test, Unknown Sherriff's Deputy told Ms. Landry to exit and move away from Plaintiff's vehicle so he could conduct a search. Id. Plaintiff told Deputy Atieh he did not consent to a search of his vehicle and “what his partner [was] doing is illegal.” Id. Unknown Sheriff's Deputy continued to search the vehicle for “the next five minutes.” Id.
During the sobriety test, Plaintiff was “unexpectedly and roughly pulled backwards from behind by an unknown arriving officer” and was “tripped by that officer's foot.” Id. at 6. “While stumbling trying to gain footing,” Plaintiff “was tackled to the ground extremely roughly” and approximately six more officers became involved. Id. “From the momentum of being yanked backwards unexpectedly coupled with the added force of being tackled” Plaintiff's head hit the bumper of his car “tremendously hard” which caused him to “temporarily black out” while four to five other officers “took turns bending” his arms and legs “to impossible angles.” Id. One officer then put his knee on Plaintiff's neck, and Plaintiff struggled to breathe. Id. Plaintiff felt “an instinctive sense of panic” as if he was “going to die” with the officer's knee on his neck. Id. Plaintiff “screamed in panic” with “the last breath [he] could muster” that he was “not resisting.” Id. Ms. Landry began to record the incident with her cellphone, but an officer stepped in front of her phone and “shout[ed]” she was not allowed to record. Id. Ms. Landry attempted to side step the officer but was then also placed under arrest. Id.
Plaintiff and Ms. Landry were taken to the Onondaga County Sheriff's Office North Station located at 7120 Henry Clay Blvd., Liverpool, NY 13088. Id. Plaintiff complied with another field sobriety test which he passed “without incident.” Id. Plaintiff and Ms. Landry stayed in the holding cell for over four hours and in the early morning of August 2, 2022, they were transferred to the Onondaga County Justice Center to await arraignment. Id. At his arraignment, the judge ordered Plaintiff to be detained without bail. Id. On August 5, 2022, a preliminary hearing was held and Plaintiff's lawyer, Nikki Platenik, told him “that all physical evidence recovered from the traffic stop ha[d] been suppressed and that [he] was due to be released from jail.” Id. Plaintiff was released from jail later that evening. Id.
Plaintiff lists his first cause of action as “Racial Profiling/Unreasonable Search & Seizure.” Id. at 7. Plaintiff alleges his stop, seizure, search of his vehicle, and arrest were “constitutionally unreasonable” and was the result of racial profiling because there was “no probable cause.” Id. He also alleges his incarceration violated his Fourth Amendment rights. Id. Liberally construed, Plaintiff alleges Deputy Atieh, Unknown Sheriff's Deputy, and the Onondaga County Sheriff falsely arrested, falsely imprisoned, and maliciously prosecuted him.
Because Plaintiff alleges he was arrested but never convicted, the Court construes the complaint as asserting a malicious prosecution claim under the Fourth Amendment. See Lanning v. City of Glens Falls, 908 F.3d 19, 28 (2d Cir. 2018) (“A § 1983 claim for malicious prosecution essentially alleges a violation of the plaintiff's right under the Fourth Amendment to be free from unreasonable seizure.”).
Plaintiff lists “Excessive Force” as his second cause of action. Id. Plaintiff claims he never resisted arrest and “was compliant throughout the entire encounter.” Id. He alleges “the level of force, tactics, and number of officers employed” to place Plaintiff under arrest “was unjustifiable” and violated his Fourth Amendment rights. Id. Since his arrest, Plaintiff alleges he has developed anxiety, he experiences infrequent migraines from hitting his head, and experiences infrequent muscle spasms in his hand and numbness in his finger due to “the severe tightness” of the handcuffs that were placed on him. Id.
Plaintiff lists his third cause of action as “Impound Fees And Damages To Vehicle.” Id. Plaintiff claims it cost him $536 to get his car out of the impound. Id. Additionally, his vehicle's convertible top sensors were damaged during “a later” police search and there were paw prints and scratches on the top of his hood which required repair and a paint job. Id.
C. Analysis
Plaintiff brings this action pursuant to 42 U.S.C. § 1983, which establishes a cause of action for “the deprivation of any rights, privileges, or immunities secured by the Constitution and laws of the United States.” Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990) (internal quotations and citations omitted). To state a valid claim under 42 U.S.C. § 1983, a plaintiff must allege that the challenged conduct: (1) was attributable to a person acting under color of state law; and (2) deprived the plaintiff of a right, privilege, or immunity secured by the Constitution or laws of the United States. Whalen v. Cty. of Fulton, 126 F.3d 400, 405 (2d Cir. 1997). To establish liability under the statute, a plaintiff must plead that each government official defendant violated the Constitution through that official's own individual actions. Tangreti v. Bachmann, 983 F.3d 609, 618 (2d Cir. 2020). An official may not be held liable for constitutional violations simply because he held a high position of authority. Victory v. Pataki, 814 F.3d 47, 67 (2d Cir. 2016). “Section 1983 claims against municipal employees sued in their official capacity are treated as claims against the municipality itself.” Ortiz v. Wagstaff, 523 F.Supp.3d 347, 361 (W.D.N.Y. 2021) (internal quotations and citation omitted). A municipality cannot be held liable under Section 1983 unless the challenged action was undertaken pursuant to a municipal policy, custom, or practice. See Monell v. Dep't of Soc. Servs. of City of N.Y., 436 U.S. 658, 694 (1978).
1. Onondaga County Sheriffs
Plaintiff lists “Onondaga County Sheriffs” as a defendant in the caption of his complaint. To the extent Plaintiff meant to list the Onondaga County Sheriff's Office as a defendant, “[a] police department cannot sue or be sued because it does not exist separate and apart from the municipality and does not have its own legal identity.” Baker v. Willett, 42 F.Supp.2d 192, 198 (N.D.N.Y. 1999) (dismissing claims against county sheriff's department) (citations omitted); see also Jackson v. Cty. of Nassau, 07-CV-245, 2010 WL 335581, at *5 (E.D.N.Y. Jan. 22, 2010) (“Under New York law, departments which are merely administrative arms of a municipality do not have a legal identity separate and apart from the municipality and cannot sue or be sued.”); see, e.g., La Grande v. Town of Bethlehem Police Dep't, No. 1:08-CV-0738 (LEK/DRH), 2009 WL 2868231, at *2 (N.D.N.Y. Sept. 1, 2009) (“Since the Bethlehem Police Department cannot be sued pursuant to 42 U.S.C. § 1983, [the plaintiff's] [c]omplaint is dismissed as against the Town of Bethlehem Police Department.”); Jenkins v. Liadka, No. 5:10-CV-1223 (GTS/DEP), 2012 WL 4052286, at *5 (N.D.N.Y. Sept. 13, 2012) (“Because the Syracuse Police Department is merely an administrative arm of the City of Syracuse, it is not a proper defendant.”).
Therefore, the Court recommends dismissing the complaint against the Onondaga County Sheriffs with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B).
2. Deputy Atieh and Unknown Sheriff's Deputy
a. Racial Profiling
Plaintiff's Fourth Amendment claim is frivolous because a dispositive defense exists on the face of the complaint. See Livingston, 141 F.3d at 437. The constitutional reasonableness of a traffic stop does not depend on the actual motivations of the individual officers involved-“the Fourth Amendment's concern with reasonableness allows certain actions to be taken in certain circumstances, whatever the subjective intent.” Whren v. United States, 517 U.S. 806, 813-14 (1996) (internal quotations omitted). “As a general matter, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred.” Id. at 810. “[C]ourts have found that a violation of New York's Vehicle and Traffic Law prohibiting the operation of vehicles with excessively tinted windows provides the police with probable cause or reasonable suspicion to stop a car.” United States v. Ferguson, 130 F.Supp.2d 560, 565 (S.D.N.Y. 2001) (citations omitted); United States v. Harrell, 268 F.3d 141, 148-49 (2d Cir. 2001) (police officers' observation that car had tinted windows and a defective brake light sufficient cause to stop car); Woods v. Candela, 921 F.Supp. 1140, 1144-45 (S.D.N.Y. 1996) (officer “was authorized to stop [driver] for excessively tinted windows .... As [the officer] witnessed the infraction, under New York law, he was therefore authorized to arrest the” driver.); see also United States v. Garcia, 279 F.Supp.2d 294, 298 (S.D.N.Y. 2003) (suspected violation of excessively tinted windows sufficient cause for vehicle stop).
Plaintiff's Fourth Amendment racial profiling claim against Deputy Atieh is accordingly frivolous because a dispositive defense (i.e., there was probable cause for the traffic stop) appears on the face of the Complaint. See, e.g., Aikman v. Cnty. of Westchester, 491 F.Supp.2d 374, 381 (S.D.N.Y. 2007) (dismissing the claimant's Fourth Amendment racial profile claim where the officers “had probable cause to believe [he] violated New York traffic laws”); Viator v. City of Rochester, No. 02-CV-6453, 2005 WL 1876064, at *5 (W.D.N.Y. Aug. 8, 2005) (dismissing the claimant's Fourth Amendment racial profile claim because the officer observed him fail to signal in violation of New York State Vehicle and Traffic Law § 1163(a)). Plaintiff claims the traffic stop was the result of racial profiling because the stop was unjustified. (Dkt. No. 1 at 7.) However, at the same time, the complaint alleges Deputy Atieh told Plaintiff he pulled him over due to the tinted windows of his car. Id. at 5. The undersigned accordingly recommends that the Court dismiss Plaintiff's Fourth Amendment traffic stop claim on the grounds that it is frivolous. See 28 U.S.C. § 1915(e)(2)(B)(i).
b. Unreasonable Search and Seizure
The Fourth Amendment recognizes “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV. The “ultimate touchstone” of the Fourth Amendment is “reasonableness,” which is “a matter generally determined by balancing the particular need to search or seize against the privacy interests invaded by such action.” United States v. Singletary, 798 F.3d 55, 59 (2d Cir. 2015) (quoting Riley v. California, 573 U.S. 373, 381-82 (2014), and United States v. Bailey, 743 F.3d 322, 331 (2d Cir. 2014)). Although this balancing “usually demands that searches be conducted pursuant to judicial warrants supported by probable cause,” it is well-settled that “neither a warrant nor probable cause . . . is an indispensable component of reasonableness in every circumstance.” Id. (alteration in original) (quoting, in part, Nat'l Treasury Emps. Union v. Von Raab, 489 U.S. 656, 665 (1989)).
i. Unreasonable Seizure
“Temporary detention of individuals during the stop of an automobile by the police, even if only for a brief period and for a limited purpose, constitutes a seizure of persons within the meaning of the Fourth Amendment.” United States v. Gomez, 877 F.3d 76, 86 (2d Cir. 2017) (internal punctuation omitted) (quoting Whren, 517 U.S. at 809-10). In Terry v. Ohio, 392 U.S. 1 (1968), however, the Supreme Court recognized that “police officers may in ‘appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest.'” Dancy v. McGinley, 843 F.3d 93, 106 (2d Cir. 2016) (quoting Terry, 392 U.S. at 22). The Supreme Court has described routine traffic stops as “relatively brief” encounters that are more analogous to Terry stops than to formal arrests. Rodriguez v. United States, 575 U.S. 348, 354 (2015); see Arizona v. Johnson, 555 U.S. 323, 330 (2009) (observing that most traffic stops “resemble, in duration and atmosphere, the kind of brief detention authorized in Terry”).
In general, to justify a Terry stop, an officer must have “reasonable suspicion,” defined as “a reasonable basis to think that the person to be detained is committing or has committed a criminal offense.” Dancy, 843 F.3d at 106 (internal quotation marks omitted) (quoting Bailey, 743 F.3d at 332). Reasonable suspicion requires “more than an ‘inchoate suspicion or mere hunch,'” id. (quoting United States v. Bayless, 201 F.3d 116, 133 (2d Cir. 2000)); it “demands specific and articulable facts which, taken together with rational inferences from those facts, provide detaining officers with a particularized and objective basis for suspecting legal wrongdoing,” Singletary, 798 F.3d at 59 (citations and internal quotation marks omitted). The reasonable suspicion standard is not high. United States v. Weaver, 9 F.4th 129, 140 (2d Cir. 2021). Rather, it requires “only facts sufficient to give rise to a reasonable suspicion that criminal activity may be afoot.” Dancy, 843 F.3d at 106 (internal quotation marks omitted).
Plaintiff alleges that “footage will show that [his] windows were rolled down on this hot summer day,” he has “not received any tickets stemming from this encounter,” and despite “Deputy Atieh's claim alleging illegal window tint[, his] vehicle met all DMV requirements to operate on New York State roadways.” (Dkt. No. 1 at 5.) But, as noted, reasonable suspicion of any traffic violation provides a sufficient basis for a traffic stop. See Stewart, 551 F.3d at 193. Plaintiff states Deputy Atieh told Plaintiff he pulled him over due to illegal window tint. (Dkt. No. 1 at 5.) With what information Plaintiff has provided and without more, Plaintiff essentially pleads Deputy Atieh had at least reasonable suspicion to conduct a traffic stop.
Plaintiff's Fourth Amendment unreasonable seizure claim against Deputy Atieh is therefore also frivolous because a dispositive defense (i.e., there was probable cause for the traffic stop) appears on the face of the complaint. Ferguson, 130 F.Supp.2d at 565; Harrell, 268 F.3d at 148-49; Woods, 921 F.Supp. at 1144-45; see also Garcia, 279 F.Supp.2d at 298. The undersigned accordingly recommends the Court dismiss Plaintiff's Fourth Amendment unreasonable seizure claim because it is frivolous. See 28 U.S.C. § 1915(e)(2)(B)(i).
ii. Unreasonable Search
“A ‘search' in the context of the Fourth Amendment occurs when the police intrude upon a person's reasonable expectation of privacy or if the police otherwise trespass upon one's person, house, papers, or effects for the purpose of acquiring information.” Jennings v. Decker, 359 F.Supp.3d 196, 207-08 (N.D.N.Y. 2019) (citations omitted).
The automobile exception to the warrant requirement of the Fourth Amendment permits officers to “conduct a warrantless search of a vehicle if they have probable cause to believe it contains contraband or other evidence of a crime.” United States v. Wilson, 699 F.3d 235, 245 (2d Cir. 2012). Probable cause requires only a “fair probability” that evidence of a relevant violation will be found in the place to be searched. Illinois v. Gates, 462 U.S. 213, 238 (1983). When the exception applies, officers may search any area of the vehicle in which they have “probable cause to believe contraband or evidence is contained.” California v. Acevedo, 500 U.S. 565, 580 (1991); see also United States v. Ross, 456 U.S. 798, 825 (1982) (“If probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search.”); see also United States v. Harris, No. 21-CR-376(EK), 2022 WL 13798289, at *2 (E.D.N.Y. Oct. 21, 2022).
Courts within this Circuit have previously found the sight of marijuana was enough to conduct a warrantless search of a vehicle. See United States v. Carter, 173 Fed.Appx. 79, 81 (2d Cir. 2006) (“the fact that a marijuana cigarette was seen in the open ashtray . . . gave rise to a fair probability that contraband or evidence of a crime would be found elsewhere in the vehicle”) (citation and internal punctuation omitted); United States v. Forbes, No. 20-CR-6140-FPG-MJP, 2022 WL 6786271, at *25 (W.D.N.Y. June 10, 2022) report and recommendation adopted, No. 20-CR-06140-FPG, 2022 WL 4545256 (W.D.N.Y. Sept. 29, 2022) (concluding that “probable cause existed to search the vehicle because when law enforcement approached the [vehicle] they ‘smell[ed] marijuana emanating from the car and observ[ed] marijuana in plain view in the car.'”) (citation omitted); see also United States v. Balkissoon, 579 F.Supp.3d 367, 371-73 (E.D.N.Y. 2022) (finding officers had probable cause to search Balkisoon's backpack pursuant to the automobile exception to the warrant requirement after observing rolling paper and marijuana in plain view). However, the circumstances here appear to be different.
Plaintiff alleges when Deputy Atieh and Unknown Sheriff's Deputy approached his car, Deputy Atieh stated he smelled marijuana and saw a joint in the ashtray. (Dkt. No. 1 at 5.) Deputy Atieh then ordered him out of his vehicle and Unknown Sheriff's Deputy told Ms. Landry to step out of the vehicle because he was going to conduct a search. Id. Plaintiff told the officers he objected to the search of his vehicle. Id. at 6. Plaintiff alleges he asked “each officer involved in [his] arrest ‘what was the probable cause for the stop and search of my vehicle?'” Id. Deputy Atieh replied “he had a right to search [Plaintiff's] vehicle because he had smelled and seen marijuana.” Id. Plaintiff told the officers the search was illegal under New York State law. Id.
Plaintiff is correct to an extent. Pursuant to N.Y. Penal Law § 222.05 (McKinney), effective March 31, 2021,
Except as provided in subdivision four of this section, in any criminal proceeding including proceedings pursuant to section 710.20 of the criminal procedure law, no finding or determination of reasonable cause to believe a crime has been committed shall be
based solely on evidence of the following facts and circumstances, either individually or in combination with each other: (a) the odor of cannabis; (b) the odor of burnt cannabis; [and] (c) the possession of or the suspicion of possession of cannabis or concentrated cannabis in the amounts authorized in this article.Id.
At the same time, (3)(b) does not apply when a law enforcement officer is investigating whether a person is operating a motor vehicle while impaired by drugs or the combined influence of drugs or of alcohol and any drug or drugs. N.Y. Penal Law § 222.05(4) (McKinney). “During such investigations, the odor of burnt cannabis shall not provide probable cause to search any area of a vehicle that is not readily accessible to the driver and reasonably likely to contain evidence relevant to the driver's [alleged] condition.” Id. While Plaintiff alleges the officers made him take at least two field sobriety tests, Deputy Atieh specifically told Plaintiff he was allowed to search his vehicle because he had smelled and seen marijuana. Id. at 6.
It is not entirely clear if Deputy Atieh and Unknown Sherriffs Deputy searched the vehicle to investigate whether Plaintiff was “operating a motor vehicle while impaired by drugs” or whether they based their search solely on the sight and smell of marijuana. See N.Y. Penal Law § 222.05(4). Given what is alleged, albeit tenuous, the Court recommends Plaintiff's unreasonable search claim survives initial review under 28 U.S.C. § 1915(e) and requires a response. In so recommending, the undersigned expresses no opinion regarding whether the claim could survive a properly filed motion to dismiss or motion for summary judgment.
c. False Arrest, False Imprisonment, and Malicious Prosecution
The Court liberally construes Plaintiff's complaint as alleging false arrest, false imprisonment, and malicious prosecution claims against the Deputy Atieh and Unknown Sherriff's Deputy. “A Section 1983 claim for false arrest [or false imprisonment] rest[s] on the Fourth Amendment right of an individual to be free from unreasonable seizures, including arrest without probable cause.” Cea v. Ulster Cty., 309 F.Supp.2d 321, 329 (N.D.N.Y. 2004) (citations and quotations omitted). Such claims are one and the same because “[f]alse arrest and false imprisonment overlap; the former is a species of the latter.” Wallace v. Kato, 549 U.S. 384, 388 (2007).
The elements of a claim for false arrest under § 1983 are the same elements as a claim for false arrest under New York law. Lewis v. City of New York, 18 F.Supp.3d 229, 235 (E.D.N.Y. 2014) (citing Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996)). “Under New York law, the elements of a false arrest and false imprisonment claim are: ‘(1) the defendant intended to confine the plaintiff, (2) the plaintiff was conscious of the confinement, (3) the plaintiff did not consent to the confinement and (4) the confinement was not otherwise privileged.'” Hernandez v. United States, 939 F.3d 191, 199 (2d Cir. 2019) (quoting McGowan v. United States, 825 F.3d 118, 126 (2d Cir. 2016)). “For purposes of the privilege element of a false arrest and imprisonment claim, an act of confinement is privileged if it stems from a lawful arrest supported by probable cause.” De Lourdes Torres v. Jones, 26 N.Y.3d 742, 759 (N.Y. 2016); Ackerson v. City of White Plains, 702 F.3d 15, 19 (2d Cir. 2012) (“Probable cause is a complete defense to an action for false arrest.”) (citation and internal quotation marks omitted).
“To prevail on a Section 1983 claim for malicious prosecution, ‘a plaintiff must show a violation of his rights under the Fourth Amendment . . . and must establish the elements of a malicious prosecution claim under state law.'” Butler v. Hesch, 286 F.Supp.3d 337, 355 (N.D.N.Y. Feb. 15, 2018) (quoting Manganiello v. City of New York, 612 F.3d 149, 161 (2d Cir. 2010) (citations omitted)). “The elements of a malicious prosecution claim under § 1983 are substantially the same as the elements under New York law.” Kelly v. Guzy, No. 8:20-cv 721 (GTS/CFH), 2021 WL 5232749, at *4 (N.D.N.Y. Nov. 10, 2021), report-recommendation adopted, 2022 WL 160305 (N.D.N.Y. Jan. 18, 2022) (internal quotations and citations omitted).
To state a malicious prosecution claim under New York law, the plaintiff must allege facts plausibly showing: (1) the initiation of a criminal proceeding; (2) its termination favorably to plaintiff; (3) lack of probable cause; and (4) malice. Manganiello v. City of N.Y., 612 F.3d 149, 161 (2d Cir. 2010). “Under New York law, police officers ‘initiate' prosecution by filing charges or other accusatory instruments.” Cameron v. City of New York, 598 F.3d 50, 63 (2d Cir. 2010) (citation omitted). A police officer may also be liable for malicious prosecution when he provides false information. Watkins v. Town of Webster, 592 F.Supp.3d 96, 113 (W.D.N.Y. 2022); see also Oudekerk v. Doe 1, No. 5:23-cv-00288 (BKS/TWD), 2023 WL 3267908, at *5 (N.D.N.Y. May 5, 2023) (cleaned up).
Plaintiff's false arrest, false imprisonment, and malicious prosecution claims all fail for the same reason: the dispositive defense of probable cause appears on the face of the complaint. Ferguson, 130 F.Supp.2d at 565 (excessively tinted windows provided police with probable cause or reasonable suspicion to stop a car); Woods, 921 F.Supp. at 1144-45 (same). The undersigned accordingly recommends the Court dismiss Plaintiff's false arrest, false imprisonment, and malicious prosecution claims on the grounds that they are frivolous. See 28 U.S.C. § 1915(e)(2)(B)(i).
d. Excessive Force
“The Fourth Amendment prohibits the use of unreasonable and therefore excessive force by a police officer in the course of effecting an arrest.” Tracy v. Freshwater, 623 F.3d 90, 96 (2d Cir. 2010). The standard governing excessive force is “whether the officers' actions [were] ‘objectively reasonable' in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.” Graham v. Connor, 490 U.S. 386, 397 (1989). “[T]he Second Circuit has held that even minor injuries, including scrapes and bruises, can support an excessive-force claim.” Matthews v. City of New York, 889 F.Supp.2d 418, 442 (E.D.N.Y. 2012) (internal quotations and citations omitted).
i. Pat and Frisk
Plaintiff summarily states that Deputy Atieh and Unknown Sherriff's Deputy “roughly [f]risked” him. (Dkt. No. 1 at 5.) No other facts are alleged and Plaintiff does not contend he sustained any injury as a result of the frisk. To the extent Plaintiff's complaint may be construed to assert an excessive force claim against Deputy Atieh and Unknown Sherriff's Deputy for the frisk, the Court recommends that claim be dismissed. See Burroughs v. Petrone, 138 F.Supp.3d 182, 214 (N.D.N.Y. 2015) (excessive force claim based on rough pat and frisk and push by officers, without other facts or injury alleged, dismissed).
ii. Other Force
Plaintiff alleges during his arrest he was “unexpectedly and roughly pulled backwards from behind by an unknown arriving officer” and was then “tripped by that officer's foot.” (Dkt. No. 1 at 6.) He was then “tackled to the ground extremely roughly by the help of a half dozen officers.” Id. “From the momentum of being yanked backwards unexpectedly coupled with the added force of being tackled, [Plaintiff's] head hit [his] car bumper tremendously hard causing [him] to temporarily black out” while “4 to 5 officers took[] turns bending [his] arms and legs to impossible angles.” Id. Plaintiff further alleges another officer put “his knee [on Plaintiff's] neck disrupting [his] breathing” and felt as if he was “going to die.” Id. Since his arrest, Plaintiff alleges he has developed anxiety, he experiences infrequent migraines from hitting his head, and experiences infrequent muscle spasms in his hand and numbness in his finger due to “the severe tightness” of the handcuffs that were placed on him. (Dkt. No. 1 at 7.)
While these allegations are certainly troubling, Plaintiff has not alleged Deputy Atieh or Unknown Sherriff's Deputy took part in these instances of force. Instead, he alleges multiple other Sherriff's deputies, who remain unidentified, tripped him, tackled him, bent his arms and legs, and put a knee on his neck. Id. Plaintiff also does not identify who handcuffed him. Id.
A party not named in the caption of the complaint is not a party to the action. Abbas v. U.S., No. 10-CV-0141, 2014 WL 3858398, at *2 (W.D.N.Y. Aug. 1, 2014) (the failure to name a party in the caption makes it “infeasible for the Court to determine which of the individual officers mentioned in the body of the complaint should be deemed to be defendants to which claims”). If “people are not also named in the caption of the [ ] complaint, they will not be defendants in the case.” Whitley v. Krinser, No. 06- CV-0575, 2007 WL 2375814, at *1 (W.D.N.Y. Aug. 15, 2007). In this instance, while Plaintiff describes the actions of other Sheriff's deputies, the aforementioned individuals are not identified as defendants in the caption of the complaint or the list of parties. Thus, the Court will not and cannot construe the complaint to include any claims or causes of action against these individuals. The Court therefore recommends dismissing the excessive force claims with leave to amend so that Plaintiff may include the names of the other Sherriff's deputies in the caption of his complaint, should he choose to pursue such claims.
e. Impound Fees and Damages to Vehicle
“District courts have supplemental jurisdiction over all state law claims that are so related to federal claims over which they exercise original jurisdiction that they form part of the same case or controversy under Article III of the Constitution.” Ramrattan v. New York, No. 9:22-CV-0025 (GTS/ATB), 2022 WL 4225226, at *6 (N.D.N.Y. Sept. 13, 2022), reconsideration denied sub nom. Ramrattan v. Guzman, No. 9:22-CV-0025 (GTS/ATB), 2022 WL 16744278 (N.D.N.Y. Nov. 7, 2022) (citing 28 U.S.C. § 1367(a) (2000)).
“Supplemental jurisdiction turns on whether those federal claims and the parties' many and varied state claims stem from the same common nucleus of operative fact.” LaChapelle v. Torres, 37 F.Supp.3d 672, 680 (S.D.N.Y. 2014) (citations and internal quotations omitted). “Put differently, the question at hand is whether the relationship between the federal and state claims is such that the plaintiff would ordinarily be expected to try them all in one judicial proceeding.” Id. (citations and internal quotations omitted). To make this determination, courts have traditionally asked whether “the facts underlying the federal and state claims substantially overlapped . . . [or] the federal claim necessarily brought the facts underlying the state claim before the court.” Id. (quoting Achtman v. Kirby, McInerney & Squire LLP, 464 F.3d 328, 335 (2d Cir. 2006)) (cleaned up); see also Lyndonville Sav. Bank & Tr. Co. v. Lussier, 211 F.3d 697, 704 (2d Cir. 2000) (supplemental jurisdiction exists where “the federal claim necessarily brought the facts underlying the state claim before the court”). Supplemental jurisdiction is lacking “when the federal and state claims rest[ ] on essentially unrelated facts.” LaChapelle, 37 F.Supp.3d at 680 (quoting Lyndonville Sav. Bank, 211 F.3d at 704) (internal quotations omitted) (alteration in original).
In this case, the complaint purports to raise state law claims for property damage and reimbursement of impound fees. (Dkt. No. 1 at 7.) Specifically, Plaintiff claims his vehicle was impounded and “was damaged during a later police search.” Id. To the extent these claims resulted from the alleged unreasonable search of Plaintiff's car, the Court recommends exercising supplemental jurisdiction. See LaChapelle, 37 F.Supp.3d at 686 (finding “Defendants' [state law] claims related to theft of fabricated works is sufficiently related to Plaintiffs' federal claims to fall within the Court's supplemental jurisdiction”); Ramrattan, 2022 WL 4225226, at *6 (“Because plaintiff's negligence claim arises out of the same facts upon which his federal claims are based, the Court will exercise supplemental jurisdiction over this claim”); Yourman v. Verizon Commc'ns, No. 20-CV-336 (BMC), 2020 WL 532457, at *2 (E.D.N.Y. Feb. 3, 2020) (holding the Court would exercise supplemental jurisdiction where Plaintiff's federal claim against Defendant Verizon and state law claim for property damage against Defendant repairman were related and arose from the same set of facts). Accordingly, the undersigned recommends the District Court exercise supplemental jurisdiction over Plaintiff's state law claims inasmuch as they are a result of the alleged unreasonable search.
Plaintiff's third cause of action is “Impound Fees And Damages to Vehicle.” (Dkt. No. 1 at 7.) All Plaintiff provides is “[t]he amount to get my vehicle out of the impound was $536.00.” Id. The Court infers Plaintiff is seeking reimbursement for that amount.
III. MOTION FOR APPOINTMENT OF COUNSEL
Plaintiff has filed a motion for appointment of counsel. (Dkt. No. 3.) The Court finds that a more fully developed record would be necessary for an assessment to be made as to whether counsel should be appointed. See Hendricks v. Coughlin, 114 F.3d 390, 392 (2d Cir. 1997) (court must look to the likelihood of merit of the underlying dispute in determining whether to appoint counsel). Moreover, Plaintiff's motion does not include evidence of an attempt by him to find counsel to represent him on his own as is required before seeking appointment of counsel from the court. See Terminate Control Corp. v. Horowitz, 28 F.3d 1335 (2d Cir. 1994). Therefore, the motion is denied without prejudice at this time.
ACCORDINGLY, it is hereby
ORDERED that Plaintiff's motion to proceed in forma pauperis (Dkt. No. 2) is GRANTED, and it is
Plaintiff should note that although his motion to proceed IFP has been granted, he will still be required to pay fees that he may incur in this action, including copying and/or witness fees.
RECOMMENDED that Plaintiff's unreasonable search claim against Deputy Atieh and Unknown Sheriff's Deputy survive sua sponte review; and it is further
RECOMMENDED that Plaintiff's racial profiling, unreasonable seizure, false arrest, false imprisonment, malicious prosecution, and excessive force claims against Deputy Atieh and Unknown Sheriff's Deputy be DISMISSED WITH LEAVE TO AMEND; and it is further
RECOMMENDED that the District Court exercise supplemental jurisdiction over Plaintiff's state law claims for property damage and reimbursement of impound fees to the extent they are a result of the alleged unreasonable search of Plaintiff's vehicle; and it is further
ORDERED Plaintiff's Motion for Appointment of Counsel (Dkt. No. 3) be DENIED WITHOUT PREJUDICE; and it is further
ORDERED that the Clerk provide Plaintiff with a copy of this Order and Report Recommendation, along with copies of the unpublished decisions cited herein in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
Pursuant to 28 U.S.C. § 636(b)(1), Plaintiff has 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. Sec'y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1) (Supp. 2013); Fed.R.Civ.P. 72, 6(a).
If you are proceeding pro se and are served with this Order and Report-Recommendation by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date the Order and Report-Recommendation was mailed to you to serve and file objections. Fed.R.Civ.P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. Fed. R. Civ. 6(a)(1)(C).