Opinion
6:23-cv-1485 (DNH/TWD)
03-08-2024
WILLIE THOMAS GOSIER, Plaintiff, v. DAVID J. COLLINS, et al., Defendants.
WILLIE THOMAS GOSIER Plaintiff, pro se
WILLIE THOMAS GOSIER Plaintiff, pro se
ORDER AND REPORT-RECOMMENDATION
TFIERESE WILEY DANCKS UNITED STATES MAGISTRATE JUDGE
I. INTRODUCTION
The Clerk has sent to the Court for review a pro se civil rights complaint filed by Willie Thomas Gosier (“Plaintiff”) pursuant to 42 U.S.C. § 1983 (“Section 1983”), asserting claims arising out of June 11, 2023, traffic stop in Rome, New York. (Dkt. No. 1.) Plaintiff has not paid the filing fee for this action and seeks leave to proceed in forma pauperis (“IFP”). (Dkt. No. 2.)
II. IFP APPLICATION
“28 U.S.C. § 1915 permits an indigent litigant to commence an action in a federal court without prepayment of the filing fee that would ordinarily be charged.” Cash v. Bernstein, No. 09-CV-1922, 2010 WL 5185047, at *1 (S.D.N.Y. Oct. 26, 2010). “Although an indigent, incarcerated individual need not prepay the filing fee at the time of filing, he must subsequently pay the fee, to the extent he is able to do so, through periodic withdrawals from his inmate accounts.” Id. (citing 28 U.S.C. § 1915(b) and Harris v. City of New York, 607 F.3d 18, 21 (2d Cir. 2010)).
At the time Plaintiff commenced this action, he was an inmate at the Oneida County Correctional Facility. (Dkt. Nos. 1, 2.) Section 1915(g) prohibits a prisoner from proceeding IFP where, absent a showing of “imminent danger of serious physical injury,” a prisoner has filed three or more actions that were subsequently dismissed as frivolous, malicious, or failing to state a claim upon which relief may be granted. See 28 U.S.C. § 1915(g). The Court has reviewed Plaintiff's litigation history on the Federal Judiciary's Public Access to Court Electronic Records (“PACER”) Service. Based on that review, it does not appear Plaintiff had acquired three strikes for purposes of Section 1915(g) as of the date this action was commenced.
See http://pacer.uspci.uscourts.gov (last visited Mar. 8, 2024).
See Gosier v. Oneida Cnty. District Atty's Office, No. 6:23-cv-01118- (DNH/TWD) (N.D.N.Y. filed on Sept. 1, 2023; closed on Nov. 2, 2023) (“Gosier I”); Gosier v. Utica Police Dep't, No. 6:23-cv-01119 (DNH/TWD) (N.D.N.Y. filed on Sept. 1, 2023) (“Gosier II”); Gosier v. Oneida Cnty. Corr. Fac., No. 9:23-cv-01134 (DNH/CFH) (N.D.N.Y. filed on Sept. 5, 2023) (“Gosier III”); Gosier v. Paolozzi, No. 9:23-cv-01135 (GTS/TWD) (N.D.N.Y. filed on Sept. 5, 2023; closed on Jan. 30, 2024) (“Gosier IV”). The Court notes Gosier I and Gosier IV were sua sponte dismissed on initial review and Plaintiff has been granted leave to file amended complaints in Gosier II and Gosier III.
Upon review of Plaintiff's IFP application, the Court finds Plaintiff has demonstrated sufficient economic need and filed the inmate authorization form required in this District. (Dkt. Nos. 2, 3.) Accordingly, Plaintiff's IFP application is granted.
“Although an indigent, incarcerated individual need not prepay the filing fee at the time . . . of filing, he must subsequently pay the fee, to the extent he is able to do so, through periodic withdrawals from his inmate accounts.” Cash, 2010 WL 5185047, at *1 (citing 28 U.S.C. § 1915(b); Harris v. City of New York, 607 F.3d 18, 21 (2d Cir. 2010)). Plaintiff should also 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.
III. SUFFICENCY OF THE COMPLAINT
A. Standard of Review
Having found Plaintiff meets the financial criteria for commencing this action IFP, and because Plaintiff seeks relief from an officer or employee of a governmental entity, the Court must consider the sufficiency of the allegations set forth in the complaint in light of 28 U.S.C. §§ 1915(e) and 1915A. Section 1915(e) of Title 28 of the United States Code directs that, when a plaintiff seeks to proceed IFP, “the court shall dismiss the case at any time if the court determines that . . . (B) 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).
To determine whether an action is frivolous, a 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).
Similarly, under 28 U.S.C. § 1915A, a court must review any “complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity” and must “identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint . . . is frivolous, malicious, or fails to state a claim upon which relief may be granted; or . . . seeks monetary relief from a defendant who is immune from such relief.” 28 U.S.C. § 1915A(b); see also Carr v. Dvorin, 171 F.3d 115, 116 (2d Cir. 1999) (per curiam) (noting Section 1915A applies to all actions brought by prisoners against government officials even when plaintiff paid the filing fee).
Additionally, when reviewing a complaint, the Court looks to the Federal Rules of Civil Procedure. Rule 8 provides that a pleading which sets forth a claim for relief shall contain, inter alia, “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Rule 10 provides in pertinent part that: “[a] party must state its claims or defenses in numbered paragraphs, each limited as far as practicable to a single set of circumstances.” Fed.R.Civ.P. 10(b). Rule 10's purpose is to “provide an easy mode of identification for referring to a particular paragraph in a prior pleading[.]” Clervrain v. Robbins, No. 22-CV-1248 (MAD/DJS), 2022 WL 17517312, at *2 (N.D.N.Y. Dec. 8, 2022) (citation omitted), report and recommendation adopted, 2023 WL 3170384 (N.D.N.Y. May 1, 2023). A complaint that does not comply with these Rules “presents far too heavy a burden in terms of defendants' duty to shape a comprehensive defense and provides no meaningful basis for the Court to assess the sufficiency of [the plaintiff's] claims,” and may properly be dismissed by the Court. Gonzales v. Wing, 167 F.R.D. 352, 355 (N.D.N.Y. 1996).
A court should not dismiss a complaint if the plaintiff has stated “enough facts to state a claim to relief 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 the court should construe the factual allegations in the light most favorable to the plaintiff, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Id. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. (citing Twombly, 550 U.S. at 555). Thus, a pleading that contains only allegations which “are so vague as to fail to give the defendants adequate notice of the claims against them” is subject to dismissal. Sheehy v. Brown, 335 Fed.Appx. 102, 104 (2d Cir. 2009).
B. Background
The complaint in this action, brought against defendants David J. Collins, Chief of Police of the Rome Police Department, and two unknown police officers, consists of two form complaints-one on the form complaint for civil rights violations pursuant to 42 U.S.C. § 1983 and one on the form complaint for pro se prisoner complaints-and four attached narrative pages. (Dkt. No. 1.) The narrative section spans five handwritten pages and is essentially one paragraph with limited punctuation. See id. at 8-13. The Court will construe the allegations in the complaint with the utmost leniency. See Haines v. Kerner, 404 U.S. 519, 520 (1972) (holding that a pro se litigant's complaint is to be held “to less stringent standards than formal pleadings drafted by lawyers”). The following facts are taken from Plaintiff's complaint.
The Court will refer to the CM/ECF pagination when citing to the complaint. Unless otherwise indicated, excerpts from the complaint are reproduced exactly as they appear in the original and errors in spelling, punctuation, and grammar have not been corrected.
On June 11, 2023, between the hours of 6:00 a.m. and 5:00 p.m., Plaintiff was “stopped” by Rome Police Officers “John Doee and John Doee” (the “defendant police officers”) in the City of Rome for “speeding” near the Colonial Laundromat. Id. at 8. The defendant police officers claimed Plaintiff was going “50 in a 30 zone.” Id. But Plaintiff “was only doing 35 in a 30 zone which is legal.” Id. Plaintiff believes he was “targeted and labeled” because he is a young “black mixed person.” Id. at 11. Plaintiff claims when a “person of color” has “valuable things” like a car, “they . . . label you as a drug dealer or a person who conduct's crime.” Id.
During the traffic stop, the defendant police officers “searched” Plaintiff's name, told Plaintiff he “was under suspention,” and instructed him to “get out of [the] car.” Id. at 8. Plaintiff was “unlawfully” handcuffed, and the defendant police officers conducted a “patdown search” and “searched” the car. Id. He was “placed” in the back of the patrol car and “witntnessed” the defendant police officers “pull” his female friend out of the car. Id. at 8-9. While holding her arms, “one officer pulled her pant's/panties a way from her body” and “the other reached into her pant's/panties and pulled some thing out completely illegal search.” Id. at 9. They then took Plaintiff's “book bag's out of the car and trunk 1 book bag was her's with personal paper's, document's item's and looked thru it all[.]” Id. “They even took our cell phones” and “searched thru them with no warrent.” Id. “Still to this date have not gotten my property back none of it they impounded my car. Id.
Plaintiff was able to “get” his car “out” but it “cost me a lot” on a Sunday. (Dkt. No. 1 at 9.) But when he picked up his car, he “had a flat tire and a dent on the passenger side . . [and] had to pay to get inside of car done due to coffiee being spilt on . . . swade seats and glitter being all over.” Id.
Plaintiff claims “driving under a suspention is a misdemeaner and dose not justify handcuffing or conducting a pat down search.” Id. at 12. “It was a complete unlawful stop and all evidence need's to be suppressed.” Id.
When Plaintiff “arrived at RPD” on June 11, 2023, the “RPD” did not read Plaintiff his Miranda rights, and he was “interrogated” without a lawyer being present and without being told he could have a lawyer. Id. at 9-12. “They” asked him questions like, “why was i in Rome what was i doing where did i go in rome why how long ect.” Id. at 12.
A “couple” of months later, Plaintiff was “charged with what they found in her pant's/panties.” Id. at 9. On July 15, 2023, he also was “charged with criminal possession of weapon 2nd: loaded firearm -other than person's home/business which charge is still pending against me till this day.” Id. at 9-10.
Plaintiff alleges the “Rome Police Officers and Chief of Police all took part in such conduct and letting such conduct commence” and violated his constitutional rights. Id. at 10. Plaintiff claims “they” had “no ground's to pull me over” and the defendant police officers “should have had a female cop come and conduct that search” of his female friend. Id. at 9. “But even so it would still have been unlawful due to them not having probable cause to search me, my car, or my friend what so ever.” Id. According to Plaintiff, “it is 100% legal” to drive “35 in a 30 zone” therefore, the stop was “1000% not a valid traffic stop at all” and that he “did not [break] any traffic violations or rule/law's.” Id. at 10. Plaintiff further claims “it is said in supreme and other higher courts that you do not need a license to drive a car, SUV, truck in the United States . . . it is protected by my con. Amendment right travel 4th, 5th amendment rights's.” Id.
In his prayer for relief, Plaintiff seeks $2,000,000 and “for the officer's to be charged and procicuted for act's and investigate RPD misconduct.” Id. at 4,13.
C. Nature of Action
Plaintiff seeks relief 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) (citations omitted); see also Myers v. Wollowitz, No. 95-CV-0272, 1995 WL 236245, at *2 (N.D.N.Y. Apr. 10, 1995) (finding that “§ 1983 is the vehicle by which individuals may seek redress for alleged violations of their constitutional rights”).
“Section 1983 itself creates no substantive rights, [but] . . . only a procedure for redress for the deprivation of rights established elsewhere.” Sykes v. James, 13 F.3d 515, 519 (2d Cir. 1993). To establish liability against a government official under section 1983, “a plaintiff must plead and prove ‘that each Government-official defendant, through the official's own individual actions, has violated the Constitution.'” Tangreti v. Bachmann, 983 F.3d 609, 618 (2d Cir. 2020) (quoting Iqbal, 556 U.S. at 676). Moreover, the theory of respondeat superior is not available in a section 1983 action. See Hernandez v. Keane, 341 F.3d 137, 144 (2d Cir. 2003). Instead, “[t]he violation must be established against the supervisory official directly.” Tangreti, 983 F.3d at 618.
IV. ANALYSIS
The Court construes the allegations in the complaint with the utmost leniency. See, e.g., Haines v. Kerner, 404 U.S. 519, 520 (1972) (holding that a pro se litigant's complaint is to be held “to less stringent standards than formal pleadings drafted by lawyers.”). Upon review and for the reasons below, the Court finds Plaintiff's complaint fails to comply with the basic pleading requirements and fails to state a claim. Accordingly, the Court recommends dismissal of the complaint in its entirety pursuant to 28 U.S.C. §§ 1915(e)(2)(B), 1915A(b) for failure to state a claim.
A. Rules 8 and 10
A complaint is subject to dismissal if its “form or substance prevents the defendant from forming a ‘fair understanding' of the plaintiff's allegations or otherwise prejudices the defendant in responding to the complaint.” Ong v. Park Manor (Middletown Park) Rehab. & Healthcare Ctr., 51 F.Supp.3d 319, 345 (S.D.N.Y. 2014). Ultimately, a complaint must give “fair notice” to the defendants. See Simmons v. Abruzzo, 49 F.3d 83, 86 (2d Cir. 1995) (“The function of pleadings under the Federal Rules is to give fair notice of the claims asserted.” (internal quotation marks omitted)). Rule 8 “demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678.
In this instance, Plaintiff's rambling complaint consists almost entirely of legal conclusions, rather than well-pleaded factual allegations. As explained in more detail below, Plaintiff's complaint does not comply with Rule 8 because Plaintiff does not make a short and plain statement showing that he is entitled to relief from the named defendants. Additionally, Plaintiff's complaint does not comply with Rule 10 because it lacks numbered paragraphs, each limited as far as practicable to a single set of circumstances.
B. Official Capacity Claims
Plaintiff's complaint does not specify whether he intends to bring claims against the named defendants in their individual or official capacities. “A claim asserted against an individual in his official capacity . . . is in effect a claim against the governmental entity itself, rather than a suit against the individual personally, for ‘official-capacity suits generally represent only another way of pleading an action against an entity of which an officer is an agent.'” Lore v. City of Syracuse, 670 F.3d 127, 164 (2d Cir. 2012) (quoting Monell v. Dep't of Soc. Servs. of City of N.Y., 436 U.S. 658, 691 n.55 (1978)); Bryant v. Maffucci, 923 F.2d 979, 986 (2d Cir. 1991) (“In bringing suit against defendants in their official capacities, Bryant has effectively brought suit against the governmental unit that employs them, Westchester County[.]”). Thus, the Court considers whether Plaintiff has stated constitutional claims against the City of Rome, who is the real party in interest.
“A municipality is liable under section 1983 only if the deprivation of the plaintiff's rights under federal law is caused by a governmental custom, policy, or usage of the municipality.” Matusick v. Erie Cnty. Water Auth., 757 F.3d 31, 62 (2d Cir. 2014) (citing Monell, 436 U.S. at 691). Thus, to hold a municipality liable under Section 1983 for the unconstitutional actions of its employees, “a plaintiff is required to plead and prove three elements: (1) an official policy or custom that (2) causes the plaintiff to be subjected to (3) a denial of a constitutional right.” Wray v. City of New York, 490 F.3d 189, 195 (2d Cir. 2007) (quoting Batista v. Rodriguez, 702 F.2d 393, 397 (2d Cir. 1983)).
Here, Plaintiff's claim construed against the City of Rome appears to stem from an isolated instance of alleged unconstitutional conduct by the defendant police officers in the course of a traffic stop. Such an isolated act by a non-policymaking municipal employee is “generally not sufficient to demonstrate a municipal custom, policy, or usage that would justify liability.” Matusick, 757 F.3d 31 at 62 (2d Cir. 2014) (quoting Jones v. Town of E. Haven, 691 F.3d 72, 82 (2d Cir. 2012)). But such isolated instances would be a basis for municipal liability if they were done
pursuant to municipal policy, or were sufficiently widespread and persistent to support a finding that they constituted a custom, policy, or usage of which supervisory authorities must have been aware, or if a municipal custom, policy, or usage would be inferred from evidence of deliberate indifference of supervisory officials to such abuses.Jones, 691 F.3d at 81. The only factual allegations potentially bearing on any such basis for municipal liability are the allegations that Plaintiff is “being targeted” for being a “young and black mixed person of color.” (Dkt. No. 1 at 11.) Plaintiff states:
i feel this is at most descrimination at it's finest and racel profiling. That's a huge violation of my con. Amendment right's. it's not okay or right one bit. Just because im a young black mixed person of color. it is not right that RPD get's a way with thing's like this all the time, nothing ever get's done about it. They do as they please and they find it okay to do such conduct's its completely not okay or right for such act's. This need's to change it's not right at all, right is right wrong is wrong.”Id. at 12. The Court infers this is an allegation of racially motivated police conduct. Plaintiff also list “harassment” as a cause of action. Id. at 13.
To the extent the complaint could be construed as asserting a verbal harassment claim, allegations of verbal harassment are insufficient to support a Section 1983 claim. See Johnson v. Eggersdorf, 8 Fed.Appx. 140, 143 (2d Cir. 2001) (citing Purcell v. Coughlin, 790 F.2d 263, 265 (2d Cir. 1986) (“allegations of verbal harassment are insufficient to base a § 1983 claim if no specific injury is alleged”)); Shabazz v. Pico, 994 F.Supp. 460, 474 (S.D.N.Y. 1998) (holding that “verbal harassment or profanity alone, unaccompanied by any injury no matter how inappropriate, unprofessional, or reprehensible it might seem, does not constitute the violation of any federally protected right and therefore is not actionable under 42 U.S.C. § 1983”) (quotation omitted); see also Rivera v. Goord, 119 F.Supp.2d 327, 342 (S.D.N.Y. 2000) (collecting cases).
“The Second Circuit has admonished that courts should ‘not condone racially motivated police behavior' and must ‘take seriously an allegation of racial profiling.'” Floyd v. City of New York, 959 F.Supp.2d 540, 660 (S.D.N.Y. 2013) (quoting United States v. Davis, 11 Fed.Appx. 16, 18 (2d Cir. 2001)). In this case, however, Plaintiff's “general and conclusory” allegations are insufficient to establish any plausible claim of municipal liability. Littlejohn v. City of New York, 795 F.3d 297, 315 (2d Cir. 2015). Plaintiff alleges no other specific conduct by City of Rome officials, nor does he cite any other facts or circumstances in support of any claim that a policy of racial profiling or racial animus exists in the City. Moreover, insofar as the complaint may allege that employees of the Rome Police Department violated Plaintiff's constitutional rights, those allegations fail to state a claim against the City of Rome because a municipality may not be liable on the basis of respondeat superior. See Monell, 436 U.S. at 691.
Accordingly, it is recommended that Plaintiff's official capacity claims be dismissed pursuant to 28 U.S.C. §§ 1915(e)(2)(B), 1915A(b) for failure to state a claim. If Plaintiff intends to pursue claims against the City of Rome, he must name the City of Rome as a defendant in the list of parties and state facts suggesting that a City policy, custom, or practice caused the violation of his rights during or after the traffic stop.
C. Individual Capacity Claims Against Defendant David J. Collins
It is well-settled that “[d]ismissal is appropriate where a defendant is listed in the caption, but the body of the complaint fails to indicate what the defendant did to the plaintiff.” Cipriani v. Buffardi, No. 9:06-CV-889 (GTS/DRH), 2007 WL 607341, at *1 (N.D.N.Y. Feb. 20, 2007) (citing Gonzalez v. City of New York, No. 97-CV-2246, 1998 WL 382055, at *2 (S.D.N.Y. July 9, 1998)); see also Crown v. Wagenstein, No. 96-CV-3895, 1998 WL 118169, at *1 (S.D.N.Y. Mar. 16, 1998) (mere inclusion of warden's name in complaint insufficient to allege personal involvement); Taylor v. City of New York, 953 F.Supp. 95, 99 (S.D.N.Y. 1997) (same).
In this case, Plaintiff names David J. Collins as a defendant in the recitation of parties, but the complaint lacks any specific allegations of wrongdoing by this defendant. Rather, it appears Plaintiff has sued defendant Collins due to the supervisory position he holds. The only reference to defendant Collins in the body of the complaint is as follows, “Rome Police Officers and Chief of Police all took part in such conduct and letting such conduct commence violated my Con. Amendment right's 2nd, 4th, 5th, 14th. So i Willie T. Gosier's Jr's right's have been violated due to an illegal/unlawful stop they had no ground's to pull me over.” (Dkt. No. 1 at 10.) Thus, the complaint does not include any plausible allegations of personal involvement by defendant Collins.
Accordingly, it is recommended that Plaintiff's Section 1983 claims against defendant Collins be dismissed pursuant to 28 U.S.C. §§ 1915(e)(2)(B), 1915A(b) for failure to state a claim. If Plaintiff intends to pursue Section 1983 claims against defendant Collins, Plaintiff must sufficiently alleged defendant Collins' personal involvement in the claimed violations.
D. Individual Capacity Claims Against Defendants John Doee # 1 and # 2
1. Unlawful Search and Seizure
The Fourth Amendment protects “against unreasonable searches and seizures.” U.S. Const. amend. IV. A police officer may briefly detain a suspect, consistent with the Fourth Amendment, when the officer has a reasonable suspicion that “criminal activity may be afoot.” Terry v. Ohio, 392 U.S. 1, 30 (1968).
In the context of traffic laws, “reasonable suspicion of a traffic violation provides a sufficient basis under the Fourth Amendment for law enforcement officers to make a traffic stop.” United States v. Stewart, 551 F.3d 187, 193 (2d Cir. 2009). Even a “minor” traffic violation meets this standard and provides probable cause for a stop. United States v. Scopo, 19 F.3d 777, 782 (2d Cir. 1994) (finding police had probable cause to arrest defendant for “not signaling lane changes”), cert. denied, 513 U.S. 877 (1994).
Here, Plaintiff's claims alleging violations of constitutional rights arising from the traffic stop are undermined by his own admissions in the complaint. Specifically, Plaintiff claims he was pulled over for speeding. (Dkt. No. 1 at 8.) Contrary to Plaintiff's assertion, travelling over maximum speed limits is a violation of New York State Vehicle and Traffic Law, thus providing probable cause for the traffic stop. See N.Y. Veh. & Traf. Law § 1180(d).
As described above, Plaintiff also takes issue with the June 11, 2023, search of his female friend. However, a pro se plaintiff cannot bring any claims on behalf of any other plaintiff. See Iannaccone v. Law, 142 F.3d 553, 558 (2d Cir. 1998) (because pro se means to appear for oneself, a person may not appear on another person's behalf in the other's cause).
Though Plaintiff contends the reason cited by the defendant police officers was pretextual, the subjective intent of an officer performing a traffic stop is irrelevant. United States v. Dhinsa, 171 F.3d 721, 724-25 (2d Cir. 1998) (“[A]n officer's use of a traffic violation as a pretext to stop a car in order to obtain evidence for some more serious crime is of no constitutional significance.”); see, e.g., Aikman v. Cnty. of Westchester, 491 F.Supp.2d 374, 381 (S.D.N.Y. 2007) (dismissing the plaintiff's Fourth Amendment “racial profile claim” where the officers “had probable cause to believe [the plaintiff] violated New York traffic laws”).
Once a lawful traffic stop based on probable cause has occurred, a police officer may make “ordinary inquiries incident to the traffic stop,” and “[t]ypically such inquiries involve checking the driver's license, determining whether there are outstanding warrants against the driver, and inspecting the automobile's registration and proof of insurance.” Rodriguez v. United States, 575 U.S. 348, 355 (2015) (alterations omitted). Additionally, if the traffic stop is lawful, neither the driver nor any passengers have a “Fourth Amendment interest in not being ordered out of the stopped vehicle.” Mollica v. Volker, 229 F.3d 366, 369 (2d Cir. 2000). Indeed, “a police officer may as a matter of course, order” a passenger or a driver out of “a lawfully stopped car.” Maryland v. Wilson, 519 U.S. 408, 410 (1997) (citing Pennsylvania v. Mimms, 434 U.S. 106, 108-09 (1977) (per curiam)).
Based on the information provided in the complaint, it appears the defendant police officers learned Plaintiff did not have a valid driver's license. Plaintiff alleges after the stop, the defendant police officers “searched my name they then returned told me i was under suspention which i was not under suspention told me get out of my car and unlawfully handcuffed me conducted a patdown search of me searched my car with out probable cause place me in the back of the patrole car.” (Dkt. No. 1 at 8.) The defendant police officers also searched Plaintiff's friend and “some thing” was “pulled” from her “pant's/panties.” Id. at 8-9. Plaintiff also accuses the defendant police officers of invading his “privacy” when they conducted a “pat down search,” searched his car, and “took” his personal belongings including paperwork, documents, cell phones, and book bags without consent or a warrant. (Dkt. No. 1 at 3.) Plaintiff was then apparently taken to the Rome Police Department. Id. at 11-12. There are no allegations that the stop lasted any longer than necessary. As such, Plaintiff has not stated a constitutional claim concerning a prolonged and unconstitutional seizure. See Rodriguez, 575 U.S. at 354.
Insofar as Plaintiff claims that “driving under a suspention is a misdemeanor” and does “not justify handcuffing and or conducting a patdown search,” and “you do not need a license to drive a car . . . in the United States of America,” Plaintiff is mistaken. (Dkt. No. 1 at 10, 12.) Under New York's Vehicle & Traffic Laws, a valid driver's license is required to operate a motor vehicle. See N.Y. Veh. & Traf. Law § 509; see also id. § 511 (prohibiting operating a car without a valid license). Thus, while the precise details are unclear, it appears the defendant police officers likely had probable cause to believe Plaintiff had committed a criminal offense. And a search incident to an arrest, “constitutes an exception to the warrant requirement” imposed by the Fourth Amendment. Riley v. California, 573 U.S. 373, 382 (2014).
In New York a person is guilty of Criminal Possession of a Weapon in the second degree if he or she possesses a loaded firearm and does not have a license to possess such a firearm. See Bannister v. Luis, No. 18-CV-7285, 2022 WL 19402512, at *45 (E.D.N.Y. Feb. 16, 2022) (citing N.Y. Penal Law § 265.03), report and recommendation adopted as modified, 2023 WL 2325680 (E.D.N.Y. Mar. 2, 2023). Under New York law, the existence of a firearm in an automobile creates a permissive presumption that all occupants of the vehicle have common constructive possession of the firearm, absent certain statutory exceptions which are inapplicable here. Id. “If a jury may make a presumption of possession under the law, it is reasonable for a police officer to do the same.” Id. Thus, regardless of whether the firearm was found on the Plaintiff's person or in his car, the officers had probable cause for his arrest.
Additionally, 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, 2022 WL 13798289, at *2 (E.D.N.Y. Oct. 21, 2022).
In sum, based on the information provided in Plaintiff's complaint, it appears the defendant police officers likely had probable cause to stop and arrest Plaintiff. Armed with probable cause, the search of Plaintiff's person and vehicle appears to have been a lawful search incident to arrest. See United States v. Jenkins, 496 F.2d 57, 79 (2d Cir. 1974) (finding search prior to arrest to be lawful “as long as probable cause to arrest existed at the time of the search”); see generally Thornton v. United States, 541 U.S. 615, 617 (2004) (holding search of vehicle's passenger compartment to be contemporaneous incident of arrest, though driver arrested outside vehicle).
Accordingly, it is recommended that Plaintiff's Section 1983 illegal search and seizure claim against the defendant police officers be dismissed pursuant to 28 U.S.C. §§ 1915(e)(2)(B), 1915A(b) for failure to state a claim.
Plaintiff claims he was “charged” with “what they found” on his friend's person and also charged with “possession of a weapon 2nd: loaded firearm -other than person's home/business.” (Dkt. No. 1 at 9-10.) Plaintiff states “the loaded firearm charge” is “still pending against me till this day.” Id. at 10. The Court notes, however, that under abstention principles, the Court typically refrains from intervening in a state-court criminal proceeding. See, e.g., Sprint Commc'ns, Inc. v. Jacobs, 571 U.S. 69, 73 (2013). Moreover, to the extent that Plaintiff seeks the remedy of “suppression” of any items seized during the search, that remedy is simply inapplicable in a § 1983 suit. See Townes v. City of New York, 176 F.3d 138, 145 (2d Cir. 1999) (“The fruit of the poisonous tree doctrine . . . is inapplicable to civil § 1983 actions.”).
2.False Arrest
“A [Section] 1983 claim for false arrest[] resting on the Fourth Amendment . . . is substantially the same as a claim for false arrest under New York law.” Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996) (citations omitted). “Under New York law, a plaintiff claiming false arrest must show, inter alia, that the defendant intentionally confined him without his consent and without justification.” Id. Probable cause “is a complete defense to an action for false arrest” brought under New York law or section 1983. Id. (citation omitted). Police officers have probable cause to arrest when they possess “knowledge of, or reasonably trustworthy information as to, facts and circumstances that are sufficient to warrant a person of reasonable caution in the belief that an offense has been or is being committed by the person to be arrested.” Zellner v. Summerlin, 494 F.3d 344, 368 (2d Cir. 2007) (collecting cases); see, e.g., Johnson v. Harron, No. 91 Civ. 1460, 1995 WL 319943, at *9 (N.D.N.Y. May 23, 1995) (concluding that DMV computer information showing driver's license was suspended established probable cause for arrest).
Read liberally, the complaint may raise a claim for false arrest. Plaintiff claims he was handcuffed, placed in the patrol car, was taken to the Rome Police Department, and was not read his Miranda rights. (Dkt. No. 1 at 8-12.) But the complaint focuses on the initial traffic stop and search and does not include details about the basis for the arrest that would allow the Court to evaluate whether he was arrested without justification. Accordingly, it is recommended that Plaintiff's Section 1983 false arrest claim be dismissed pursuant to 28 U.S.C. §§ 1915(e)(2)(B), 1915A(b) for failure to state a claim.
If Plaintiff intends to bring such a claim, he should amend his complaint to add facts establishing that he was arrested without justification and the disposition of any charges.
3.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). To succeed on an excessive force claim, “a plaintiff must ultimately demonstrate that the defendant's use of force was objectively unreasonable in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.” Hulett v. City of Syracuse, 253 F.Supp.3d 462, 491 (N.D.N.Y. 2017) (internal quotations omitted). The “objective reasonableness” inquiry is “case and fact specific and requires balancing the nature and quality of the intrusion on the plaintiff's Fourth Amendment interests against the countervailing governmental interests at stake.” Tracy, 623 F.3d at 96 (citing Amnesty America v. Town of West Hartford, 361 F.3d 113, 123 (2d Cir. 2004)).
Here, “excessive force” is listed as a cause of action. (Dkt. No. 1 at 13.) Plaintiff claims he was “unlawfully pulled out of [his] car,” “handcuffed” and subjected to a “pat down search.” Id. at 8. With this allegation and nothing more, there are simply not enough facts present to establish a plausible excessive force claim. 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); see also Bancroft v. City of Mount Vernon, 672 F.Supp.2d 391, 406 (S.D.N.Y. 2009) (declining to find any constitutional violation from plaintiff's allegations of officers' forceful behavior, including a “single push,” during the time he was handcuffed).
Accordingly, it is recommended that Plaintiff's Section 1983 excessive force claim be dismissed pursuant to 28 U.S.C. §§ 1915(e)(2)(B), 1915A(b) for failure to state a claim.
4.Due Process
The complaint lists “5th Due Prosses” as a claim and Plaintiff states “I also have a privilege aganced self incrimination suspect's statement's, comment's remark's before Miranda rights cant be used in court.” (Dkt. No. 1 at 12, 13.) “While a defendant has a constitutional right not to have a coerced statement used against him, the failure to provide Miranda warnings does not constitute a Fifth Amendment violation or a violation of federal law.” Jallow v. Geffner, No. 23-CV-3969, 2024 WL 37073, at *10 (S.D.N.Y. Jan. 2, 2024) (citing Vega v. Tekoh, 597 U.S. 134, 142-152 (2022)); see also Deshawn E. by Charlotte E. v. Safir, 156 F.3d 340, 346 (2d Cir. 1998) (relying on New York v. Quarles, 467 U.S. 649, 654 (1984) (a defendant does not have a constitutional right to receive Miranda warnings because warnings are only a procedural safeguard designed to protect a person's right against self-incrimination)).
Generally, “‘no cause of action exists under 42 U.S.C. § 1983 for Miranda violations.” Gentry v. New York, No. 1:21-CV-319 (GTS/ML), 2021 WL 3037709, at *7-8 (N.D.N.Y. June 14, 2021), report and recommendation adopted, 2021 WL 3032691 (N.D.N.Y. July 19, 2021) (quoting Hernandez v. Llukaci, No. 16-CV-1030, 2019 WL 1427429, at *7 (N.D.N.Y. Mar. 29, 2019) (Hurd, J.) (citing Chavez v. Martinez, 538 U.S. 760, 767 (2003))). “The failure to inform a plaintiff of his rights under Miranda, ‘does not, without more, result in § 1983 liability.'” Id. (quoting Deshawn E. v. Safir, 156 F.3d at 346). “The remedy for a violation of the right against self-incrimination is ‘the exclusion from evidence of any ensuing self-incriminating statements' and ‘not a § 1983 action.'” Id. (quoting Neighbour v. Covert, 68 F.3d 1508, 1510 (2d Cir. 1995) (internal quotations omitted). However, “‘[a] Miranda violation that amounts to actual coercion based on outrageous government misconduct is a deprivation of a constitutional right that can be the basis for a § 1983 suit, even when a confession is not used against the declarant in any fashion.'” Id. (quoting Deshawn E. v. Safir, 156 F.3d at 348 (internal citations omitted)). Here, the complaint does not allege any facts that would plausibly suggest police coercion led to inculpatory statements. As a result, it is recommended that Plaintiff's Section 1983 due process claim be dismissed pursuant to 28 U.S.C. §§ 1915(e)(2)(B), 1915A(b) for failure to state a claim.
5. Right to Travel
The complaint lists “5th right to travel” as a claim. (Dkt. No. 1 at 3, 13.) “The Constitution protects a fundamental right to travel within the United States,” Selevan v. N.Y. Thruway Auth., 584 F.3d 82, 99 (2d Cir. 2009), but “travelers do not have a constitutional right to the most convenient form of travel, and minor restrictions on that travel simply do not amount to the denial of a fundamental right[.]” Scott v. Crossway, No. 1:22-CV-500 (BKS/CFH), 2022 WL 16646531, at *10 (N.D.N.Y. Nov. 3, 2022) (quoting Town of Southold v. Town of E. Hampton, 477 F.3d 38, 54 (2d Cir. 2007) (alterations, citations, and quotation marks omitted)), report and recommendation adopted, 2023 WL 34543 (N.D.N.Y. Jan. 4, 2023);
Even liberally construed, Plaintiff has not alleged any facts to suggest a violation of his constitutional right to travel. Plaintiff's allegations regarding his right to travel relate to the traffic stop and seizure of his vehicle, which is akin to his illegal search and seizure claim. See, e.g., Wellington v. Foland, No. 3:19-CV-0615 (GTS/ML), 2019 WL 3315181, at *6 (N.D.N.Y. July 24, 2019), report and recommendation adopted, 2019 WL 6485157 (N.D.N.Y. Dec. 3, 2019); Bey v. D.C., No. 17-CV-6203, 2018 WL 5777021, at *6 (E.D.N.Y. Nov. 1, 2018) (dismissing the plaintiff's “right to travel claim” where the plaintiff retained his ability and constitutional right to travel even if “inconvenienced” by the seizure of his motor vehicle.”); see also Johnson El v. Bird, No. 19-CV-5102, 2020 WL 5124920, at *5 n.8 (S.D.N.Y. Aug. 31, 2020) (“To the extent Plaintiff means to argue that traffic enforcement violates his right to travel, that claim is dismissed as frivolous.”) (citing Annan v. State of N.Y. Dep't of Motor Vehicles, No. 15-CV-1058, 2016 WL 8189269, at *5 (E.D.N.Y. Mar. 2, 2016), aff'd, 662 Fed.Appx. 85 (2d Cir. 2016) (summary order)).
To the extent Plaintiff claims the defendant police officers deprived him of a property interest by impounding his car, Plaintiff has not pled facts sufficient to establish that he was deprived of that interest without due process. See, e.g., Hawthorne by Hawthorne v. Cnty. of Putnam, 492 F.Supp.3d 281, 304 (S.D.N.Y. 2020) (noting that where the defendants' impounded the plaintiff's car following a traffic stop the conduct did not implicate procedural due process concerns); Vasquez v. Yadali, No. 16-CV-895, 2020 WL 1082786, at *12 (S.D.N.Y. Mar. 5, 2020) (noting that the plaintiff fails to allege the inadequacy of any post-deprivation hearings following the impoundment of his vehicle); Domeneck v. City of New York, No. 18-CV-7419, 2019 WL 5727409, at *10 (S.D.N.Y. Nov. 5, 2019) (dismissing plaintiff's Fourteenth Amendment claim regarding the deprivation of his vehicle because the plaintiff has not plausibly alleged that the process he received was insufficient).
The Court therefore recommends dismissing Plaintiff's Section 1983 right to travel claim pursuant to 28 U.S.C. §§ 1915(e)(2)(B), 1915A(b) for failure to state a claim.
6. Right to Bear Arms
The complaint lists “2nd Bear Arm's” as a claim. (Dkt. No. 1 at 13.) The “Second Amendment protects ‘an individual right to keep and bear arms.'” District of Columbia v. Heller D.C. v. Heller, 554 U.S. 570, 595 (2008)). But “[l]ike most rights, the right secured by the Second Amendment is not unlimited” and is “not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” Id. at 626. For example, the Second Amendment allows “prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” Id. at 627-28.
Here, Plaintiff's conclusory allegation regarding his right to “Bear Arm's” provided by the Second Amendment is insufficient to state a plausible claim for relief given the numerous limitations on an individual's right to bear arms. See, e.g., McClenic v. Shmettan, No. 15-CV-00705, 2016 WL 3920219, at *8 (E.D.N.Y. July 15, 2016) (dismissing the plaintiff's conclusory allegation that defendant detectives violated his Second Amendment right “to keep and bear arms” where, inter alia, was charged with criminal possession of a weapon second degree in a felony complaint); see also Partin v. Gevatoski, No. 6:19-CV-1948-AA, 2020 WL 4587386, at *4 (D. Or. Aug. 10, 2020) (“The mere occurrence of a firearm seizure during a traffic stop, however, is not enough to establish a Second Amendment violation. Police seize and confiscate firearms routinely, and this Court will not presume that each and every one of those seizures is an automatic Second Amendment violation without specific facts indicating such.”).
Accordingly, the Court recommends dismissing Plaintiff's Section 1983 right to bear arms claim pursuant to 28 U.S.C. §§ 1915(e)(2)(B), 1915A(b) for failure to state a claim.
See also supra note 10 and accompanying text.
E. Private Prosecution
To the extent Plaintiff seeks an order from this Court directing the defendants to be “charged and prosicuted for Act's and investigate RPD misconduct,” (Dkt. No. 1 at 3, 13), he is not entitled to such as order because “the decision to prosecute is solely within the discretion of the prosecutor.” Leeke v. Timmerman, 454 U.S. 83, 87 (1981). Neither Plaintiff nor the Court can direct prosecutors to initiate a criminal proceeding against any defendant because prosecutors possess discretionary authority to bring criminal actions and they are “immune from control or interference by citizen or court[.]” Conn. Action Now, Inc. v. Roberts Plating Co., 457 F.2d 81, 87 (2d Cir. 1972).
F. Supplemental Jurisdiction
A district court may decline to exercise supplemental jurisdiction over state law 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 recommended dismissal of the federal claims of which the Court has original jurisdiction, it is also recommended that the District Court decline to exercise its supplemental jurisdiction of any state law 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)).
V. OPPORTUNITY TO AMEND
Generally, before the Court dismisses a pro se complaint or any part of the complaint sua sponte, the Court should afford the plaintiff the opportunity to amend at least once; however, leave to re-plead may be denied where any amendment would be futile. Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir. 1993). Futility is present when the problem with 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) (citation omitted).
For reasons set forth above, the Court finds Plaintiff's complaint is subject to dismissal in its entirety pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A(b)(1) for failure to state a claim. However, in light of his pro se status, prior to outright dismissal of this action, the Court recommends that Plaintiff be given an opportunity to amend his pleading.
Plaintiff is advised that, should the District Court permit Plaintiff to file an amended complaint, and if he chooses to avail himself of an opportunity to amend, such amended pleading must cure the defects set forth above. Specifically, the pleading must set forth a short and plain statement of the facts on which he relies to support any legal claims asserted. Fed.R.Civ.P. 8(a). The body of the pleading must contain sequentially numbered paragraphs containing only one act of alleged misconduct per paragraph. Fed. R. Civ. 10. No portion of any prior complaint shall be incorporated into the amended complaint and piecemeal pleadings are not permitted.
Plaintiff should not submit an amended complaint before the District Court issues a Decision and Order on this Report-Recommendation. As noted below, however, Plaintiff may file written objections to this Court's Report-Recommendations.
The Court notes that in Gosier II, Plaintiff alleged he was “pulled over” on June 11, 2023, by officers of the Utica Police Department “without probable cause and proceeded to illegally search [his] vehicle.” Gosier II, No. 6:23-cv-01119 (DNH/TWD), ECF Dkt. No. 1 at 9. Plaintiff also alleged he was “maliciously prosecuted” and “arrested and charged with Criminal Possession of a Controlled Substance 7th and Aggravated Unlicensed Operation of Motor Vehicle 3rd.” Id. Plaintiff's original complaint was sua sponte dismissed on initial review with leave to amend. Id., ECF Dkt. Nos. 10, 12. On February 5, 2024, Plaintiff's request for an extension of time until March 16, 2024, to submit his amended complaint was granted. Id., ECF Dkt. No. 19. At this juncture, it is unclear whether the subject traffic stop in Gosier II is the same traffic stop at issue in this action. Plaintiff should explain the relationship, if any, between the June 11, 2023, traffic stop at issue in this action and the June 11, 2023, traffic stop at issue in Gosier II.
VI. CHANGE OF ADDRESS
According to information publicly available on the website maintained by the New York State Department of Corrections and Community Supervision (“DOCCS”), Willie Gosier (DIN 22B2574) was released from custody on parole on February 26, 2024. Plaintiff is reminded that he must update his address with the Court immediately upon relocating. For the orderly disposition of cases, it is essential that litigants honor their continuing obligation to keep the Court informed of address changes. “Failure to notify the Court of a change of address in accordance with L.R. 10.1(c)(2) may result in the dismissal of any pending action.” L.R. 41.2(b).
See http://nysdoccslookup.doccs.ny.gov (last visited Mar. 8, 2024).
VII. CONCLUSION WHEREFORE, it is hereby
ORDERED that Plaintiff's IFP application (Dkt. No. 2) is GRANTED, and it is further
RECOMMENDED that Plaintiff's complaint be DISMISSED pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b) with LEAVE TO AMEND; and it is further
RECOMMENDED that the District Court decline to exercise its supplemental jurisdiction of any state law claims Plaintiff may be asserting; 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); and it is further
ORDERED that Plaintiff is required to promptly notify the Clerk's Office and all parties or their counsel, in writing, of any change in his address; the failure to do so will result in the dismissal of his action.
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. Sec 'y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); 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.P. 6(a)(1)(C).
IT IS SO ORDERED.