Opinion
6:23-cv-1485 (DNH/TWD)
10-25-2024
WILLIE THOMAS GOSIER, Plaintiff, v. DAVID J. COLLINS, et al., Defendants.
WILLIE THOMAS GOSIER Plaintiff, pro se
APPEARANCES:
WILLIE THOMAS GOSIER Plaintiff, pro se
ORDER AND REPORT-RECOMMENDATION
THERESE WILEY DANCKS, UNITED STATES MAGISTRATE JUDGE
I. INTRODUCTION
Plaintiff Willie Thomas Gosier commenced this action by filing a pro se civil rights complaint pursuant to 42 U.S.C. § 1983 (“Section 1983”), together with an application to proceed in forma pauperis (“IFP”). Dkt. Nos. 1, 2, 3. On March 8, 2024, the Court granted Plaintiff's IFP application and advised by report and recommendation (“R&R”) that Plaintiff's complaint be dismissed with leave to amend. Dkt. No. 4. On March 27, 2024, the Hon. David N. Hurd, U.S. District Judge, accepted and adopted the R&R. See Dkt. No. 5. On May 23, 2024, Plaintiff timely filed an amended complaint, which is before the Court for initial review. Dkt. No. 9.
II. SUFFICIENCY OF THE AMENDED COMPLAINT
Because Plaintiff is proceeding IFP and is an inmate suing one or more government employees, his amended complaint must be reviewed in accordance with 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b).
“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)). Additionally, Plaintiff will still be required to pay fees he may incur in this action, including copying and/or witness fees.
A. Relevant Legal Standard
The Court shall dismiss a complaint in a civil action if 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); 28 U.S.C. § 1915A(b).
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.”).
To survive dismissal for failure to state a claim, 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.” Twombly, 550 U.S. at 570. “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 punctuation and citations 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) (per curiam), and 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) (internal citations omitted).
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).
B. Overview of the Original Complaint
Citations to Plaintiff's submissions will refer to the pagination generated by CM/ECF, the Court's electronic filing system. Unless otherwise indicated, excerpts from the record are reproduced exactly as they appear in the original and errors in spelling, punctuation, and grammar have not been corrected.
Plaintiff's original complaint alleged David J. Collins, Chief of Police of the Rome Police Department, and two unknown police officers, “John Doee #1” and “John Doee #2” violated his civil rights related to a traffic stop in the City of Rome. Dkt. No. 1.
Specifically, in relevant part, Plaintiff alleged he was “targeted” and “stopped” for speeding on June 11, 2023, because he is a young “black mixed person.” Id. at 11. During the traffic stop, the police officers learned Plaintiff was driving with a suspended license. Id. at 8. The officers also questioned Plaintiff about “why” he was in Rome without a lawyer being present and before reading Plaintiff his “Miranda” rights. Id. at 8-11. Plaintiff was “pulled” out of his car and handcuffed, and subjected to a “pat down search.” Id. at 8. The female passenger was also searched by the police officers and “something” was found on her person. Id. The officers also searched the vehicle and Plaintiff's possessions without a warrant or his consent. Id. at 8-10. Plaintiff was taken to the Rome Police Department and the vehicle was impounded and damaged. Id. at 10. Thereafter, Plaintiff was “charged” with “what” they found on the passenger, which was “still” pending. Id. at 9-10.
The complaint was liberally construed to assert Fourth Amendment unlawful search and seizure, racial profiling, false arrest, and excessive force claims and Fourteenth Amendment due process claims against the named defendants. Dkt. No. 4.
Following review of the complaint pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b), the R&R recommended that each of Plaintiff's claims be dismissed for failure to state a claim upon which relief may be granted. Dkt. No. 4. In light of his pro se status, it was recommended that Plaintiff be granted leave to amend to cure the deficiencies identified in the R&R. Id. Plaintiff did not file objections to the R&R.
Upon de novo review, the R&R was accepted, and Plaintiff's complaint was dismissed with leave to amend. Dkt. No. 5. Plaintiff was afforded thirty days in which to file an amended complaint that conforms with the specific instructions set forth in the R&R. Id.
C. Overview of the Amended Complaint
The amended complaint is not signed by Plaintiff. See generally Dkt. No. 9. Rule 11(a) of the Federal Rules of Civil Procedure states:
(a) Signature. Every pleading, written motion, and other paper must be signed by at least one attorney of record in the attorney's name - or by a party personally if the party is unrepresented . . . . The court must strike an unsigned paper unless the omission is promptly corrected after being called to the attorney's or party's attention.Fed. R. Civ. P. 11(a). Therefore, Plaintiff must, within fourteen days, execute and file an affidavit which states that he has read the amended complaint and the text of Federal Rule of Civil Procedure 11. By executing the same, Plaintiff shall be declaring that he is representing to the Court all of the representations delineated in Federal Rule of Civil Procedure 11(b) with respect to the amended complaint. Plaintiff is advised that if he does not comply, this action may be dismissed without prejudice. The Clerk is directed to serve a Rule 11 affidavit and a copy of the amended complaint on Plaintiff.
The allegations in the amended complaint are substantially similar to, albeit less detailed than, the allegations in the original complaint. Compare Dkt. No. 1 with Dkt. No. 9. Plaintiff's amended complaint reasserts claims against Defendants Collins, John Doe #1, and John Doe #2 arising out of the traffic stop in Rome, New York. See generally Dkt. No. 9. Plaintiff also names David A. Salle, Detective Shield 11201 as a Defendant. Id. at 1. Defendants are sued in their official and individual capacities. Id. The following facts are set forth as alleged by Plaintiff in the amended complaint.
The Clerk is directed to change the spelling from “Doee” to “Doe” on the Docket.
The Clerk is directed to add this individual as a Defendant on the Docket.
On June 11, 2023, Plaintiff was pulled over by Rome police officers John Doe #1 and John Doe #2. Id. They had no probable cause to “search/arrest” Plaintiff and his friend “but they did so unlawfully.” Id. Plaintiff was “forced” and “pulled out” of his vehicle. Id. “They found nothing” on Plaintiff but found “something” on his friend. Id. Plaintiff and his friend were arrested and brought to the Rome Police Department. Id. at 1-2. Plaintiff's car was towed. Id. at 2. Plaintiff “feel[s]” “this was all because” he is a black male in a “nice car so they assumed that i was a drug dealer or something.” Id. at 2. Plaintiff was also questioned about why he was in Rome, where he was going, etc., before he was read his “Miranda” rights. Id. Plaintiff was subjected to “racial profiling” when he was asked “where and how was i able to affored the car i had if i ever worked in my life.” Id.
Plaintiff alleges Defendants John Doe #1, John Doe #2, Collins, and Salle “charge[d]” him “with what they found on my friend C.P.W.2nd.” Id. Plaintiff states he has met all five elements for his malicious prosecution claims:
(1) All four defendants John Doe, John Doe, Collins, David A. Salle have caused me continued confinement and prosecution
(2) The original action was terminated in favor of my criminal defense
(3) No probable cause supported my original arrest, continued confinement, or prosecution
(4) All four defendants acted with malice. A lack of probable cause created an inference of malice by David A. Salle, Collins, John Doe, John Doe. Four R.P.D. officers falsifying evidence is sufficient to show malice in front of a jury in USDC, NDNY.
(5) I have sustained damages and Fourth Amendment violation because of the defendants unlawful actions of malicious prosecution without probable cause.Id. at 2-3. Plaintiff “was not convicted of C.P.W.2nd [and] the charge was dismissed” in his favor. Id. at 3.
Plaintiff also had to “pay extra money to get car out of inpound on a weekend.” Id. at 4. The car was damaged (flat tire, coffee stains, and dents), he is missing a lot of his personal papers and book bag, and they “went thru his phones unlawfully no-warrant to do so.” Id.
Based on the forgoing, Plaintiff claims he was falsely arrested and “hit with a criminal possession of a weapon 2nd,” which was “found on someone else” during the traffic stop. Id. at 1. “They put the charge on me so i am claiming false arrest, discrimination, due process, unreasonable search and seizure, malicious prosecution, excessive force.” Id.
D. Analysis
Plaintiff seeks relief pursuant to Section 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). “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).
1. False Arrest
To prevail on a claim of false arrest under the Fourth Amendment, a plaintiff must allege facts plausibly suggesting the following: (1) that the defendant intended to confine the plaintiff; (2) that the plaintiff was conscious of the confinement; (3) that the plaintiff did not consent to the confinement; and (4) that the confinement was not otherwise privileged. Ackerson v. City of White Plains, 702 F.3d 15, 19 (2d Cir. 2012); Hernandez v. United States, 939 F.3d 191, 199 (2d Cir. 2019).
At this stage of the proceeding, and mindful of the Second Circuit's instruction that a pro se plaintiff's pleadings must be liberally construed, see, e.g., Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008), the Court recommends Plaintiff's Fourth Amendment false arrest claims against Defendants John Doe #1 and John Doe #2 survive initial review and require a response. The Court expresses no opinion as to whether these claims can withstand a properly filed dispositive motion.
2. Malicious Prosecution
To prevail on a malicious prosecution claim under the Fourth Amendment, a plaintiff must allege facts plausibly suggesting the following: (1) the commencement or continuation of a criminal proceeding against him; (2) the termination of the proceeding in his favor; (3) that the state officials lacked probable cause; and (4) that the proceeding was instituted with malice. Thompson v. Clark, 596 U.S. 36, 41 (2022); Mitchell v. City of New York, 841 F.3d 72, 79 (2d Cir. 2016) (citing Kinzer v. Jackson, 316 F.3d 139, 143 (2d Cir. 2003); Colon v. City of New York, 60 N.Y.2d 78, 82 (1983)).
At this stage of the proceeding, and mindful of the Second Circuit's instruction that a pro se plaintiff's pleadings must be liberally construed, see, e.g., Sealed Plaintiff, 537 F.3d at 191, the Court recommends Plaintiff's Fourth Amendment malicious prosecution claims against Defendants Collins, Salle, John Doe #1, and John Doe #2 survive initial review and require a response. The Court expresses no opinion as to whether these claims can withstand a properly filed dispositive motion.
3. Remaining Claims
Liberally construed, Plaintiff's amended complaint repleads Fourth and Fourteenth Amendment unreasonable search and seizure, excessive force, discrimination, due process, and “official capacity” claims related to the traffic stop in Rome, New York. See generally Dkt. No. 9. The law related to these claims was discussed at length in the R&R. See Dkt. No. 4. Even when construed with the utmost of special lenience, Plaintiff's amended complaint has not cured the deficiencies identified in the R&R. See generally Dkt. No. 4.
Accordingly, the Court recommends that these claims be dismissed without prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and 28 U.S.C. § 1915A(b)(1) for failure to state a claim upon which relief may be granted.
III. CONCLUSION
WHEREFORE, it is hereby
ORDERED that the Clerk provide the Superintendent of the facility, designated by Plaintiff as his current location, with a copy of Plaintiff's inmate authorization (Dkt. No. 3), and notify the official that this action has been filed and that Plaintiff is required to pay the Northern District of New York the statutory filing fee of $350.00 in installments, over time, pursuant to 28 U.S.C. § 1915; and it is further
ORDERED that the Clerk provide a copy of Plaintiff's inmate authorization (Dkt. No. 3) to the Financial Deputy of the Clerk's Office; and it is further
ORDERED that the Clerk update the docket to (1) add David A. Salle, Detective, Shield 11201 as a Defendant; and (2) correct the spelling of the John “Doe” Defendants; and it is further ORDERED that Plaintiff must, within fourteen (14) days, execute and file an affidavit pursuant to Federal Rule of Civil Procedure 11 and his failure to do so may result in dismissal of this action without prejudice ; and it is further
RECOMMENDED that upon receipt of Plaintiff's executed Rule 11 affidavit the Clerk be directed be attach the same to Plaintiff's amended complaint; and it is further
RECOMMENDED that Plaintiff's amended complaint (Dkt. No. 9) be ACCEPTED for filling to the extent that it asserts: (1) Fourth Amendment false arrest claims against Defendants John Doe #1 and John Doe #2; and (2) Fourth Amendment malicious prosecution claims against Defendants Collins, Salle, John Doe #1, and John Doe #2; and it is further
RECOMMENDED that, except as to the foregoing, the remaining claims asserted in the amended complaint be DISMISSED without prejudice for failure to state a claim upon which relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and 28 U.S.C. § 1915A(b)(1); and it is further
ORDERED that the Clerk serve a copy of the Order and Report-Recommendation on Plaintiff, along with a copy of the unpublished decision cited herein in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam); and it is further
ORDERED that the Clerk serve a Rule 11 affidavit and a copy of the amended complaint (Dkt. No. 9) on Plaintiff.
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.P. 6(a)(1)(C).
IT IS SO ORDERED.