Opinion
22-CV-1529 (LTS)
05-16-2022
MATTHEW L. MERCADO, Plaintiff, v. DETECTIVE J. KITSOS #JK084; ORANGE COUNTY SHERIFF DEPT.; ORANGE COUNTY LAW DEPT, Defendants.
ORDER OF DISMISSAL WITH LEAVE TO REPLEAD
LAURA TAYLOR SWAIN, CHIEF UNITED STATES DISTRICT JUDGE 1
Plaintiff, who is currently incarcerated in the Orange County Correctional Facility, brings this pro se action under 42 U.S.C. § 1983, alleging that Defendants violated his “parental & spousal rights.” (ECF 1 ¶ I.) By order dated March 8, 2022, the Court granted Plaintiff's request to proceed in forma pauperis (IFP), that is, without prepayment of fees. The complaint is dismissed for the reasons set forth below.
Prisoners are not exempt from paying the full filing fee even when they have been granted permission to proceed IFP. See 28 U.S.C. § 1915(b)(1).
STANDARD OF REVIEW
The Prison Litigation Reform Act requires that federal courts screen complaints brought by prisoners who seek relief against a governmental entity or an officer or employee of a governmental entity. See 28 U.S.C. § 1915A(a). The Court must dismiss a prisoner's in forma pauperis complaint, or any portion of the complaint, that is frivolous or malicious, 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. §§ 1915(e)(2)(B), 1915A(b); see Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007). 2 The Court must also dismiss a complaint if the court lacks subject matter jurisdiction. See Fed.R.Civ.P. 12(h)(3).
While the law mandates dismissal on any of these grounds, the Court is obliged to construe pro se pleadings liberally, Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), and interpret them to raise the “strongest [claims] that they suggest, ” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (internal quotation marks and citations omitted) (emphasis in original). But the “special solicitude” in pro se cases, id. at 475 (citation omitted), has its limits -to state a claim, pro se pleadings still must comply with Rule 8 of the Federal Rules of Civil Procedure, which requires a complaint to make a short and plain statement showing that the pleader is entitled to relief.
Rule 8 of the Federal Rules of Civil Procedure requires a complaint to include enough facts to state a claim for relief “that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible if the plaintiff pleads enough factual detail to allow the Court to draw the inference that the defendant is liable for the alleged misconduct. In reviewing the complaint, the Court must accept all well-pleaded factual allegations as true. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). But it does not have to accept as true “[t]hreadbare recitals of the elements of a cause of action, ” which are essentially just legal conclusions. Twombly, 550 U.S. at 555. After separating legal conclusions from well-pleaded factual allegations, the Court must determine whether those facts make it plausible - not merely possible - that the pleader is entitled to relief. Id.
BACKGROUND
Plaintiff's complaint names as defendants Orange County Sheriff's Department Detective Kitsos, the Orange County Sheriff's Department, and the Orange County Law Department, and alleges the following facts. On April 29, 2021, Detective Kitsos “promised and assured Plaintiff” 3 that he would pursue charges against Plaintiff's wife for adultery, incest, and child endangerment, but Kitsos “never followed up or through with pressed charges.” (ECF 1 ¶ V.) According to Plaintiff, Kitsos and the Sheriff's Department have “ignored” his complaints, thus “allow[ing]” Plaintiff's children to be “subjected to wrongful neglect, ” which resulted in an “incestuous relationship” and “an incestuous love child.” (Id.) There are no allegations against the Orange County Law Department. Plaintiff seeks any “possible” relief that the Court “deem[s] fit & proper.” (Id. ¶ VI.)
DISCUSSION
A. Section 1983
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege both that: (1) a right secured by the Constitution or laws of the United States was violated, and (2) the right was violated by a person acting under the color of state law, or a “state actor.” West v. Atkins, 487 U.S. 42, 48-49 (1988).
Plaintiff asserts that Detective Kitsos promised to pursue criminal charges against his estranged wife, arising from her alleged neglect of their children, and then failed to do so. There is no constitutional right to an investigation by police officers or other government officials. See DeShaney v. Winnebago Cnty. Dep't of Social Servs., 489 U.S. 189, 195-96 (1989) (the Due Process Clause generally confers no affirmative right to governmental aid); Bernstein v. New York, 591 F.Supp.2d 448, 460 (S.D.N.Y. 2008) (holding that there is “no constitutional right to an investigation by government officials”) (citation omitted). Any exceptions to this rule, see Dwares v. City of N.Y., 985 F.2d 94, 98-99 (2d Cir. 1993) (listing exceptions), do not apply to the facts alleged here.
To the extent that Plaintiff seeks to have his estranged wife criminally prosecuted, the Court must dismiss that claim. Plaintiff cannot initiate the arrest and prosecution of an individual 4 in this Court because “the decision to prosecute is solely within the discretion of the prosecutor.” Leeke v. Timmerman, 454 U.S. 83, 87 (1981). Nor can Plaintiff or the Court direct prosecuting attorneys to initiate a criminal proceeding. 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). For these reasons, Plaintiff's allegations fail to show that he has a viable Section 1983 claim.
B. Claims against municipal agencies
Plaintiff's claims against the Orange County Sheriff's Department and the Orange County Law Department must be dismissed because city agencies or departments do not have the capacity to be sued under New York law. See Omnipoint Commc'ns, Inc. v. Town of LaGrange, 658 F.Supp.2d 539, 552 (S.D.N.Y. 2009) (“In New York, agencies of a municipality are not suable entities.”); Hall v. City of White Plains, 185 F.Supp.2d 293, 303 (S.D.N.Y. 2002) (“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 also N.Y. Gen. Mun. Law § 2 (“The term ‘municipal corporation,' as used in this chapter, includes only a county, town, city and village.”).
In any event, Plaintiff does not explain why he named the Orange County Law Department in his complaint. See Iwachiw v. New York State Dep't of Motor Vehicles, 299 F.Supp.2d 117, 121 (E.D.N.Y. 2004) (“[W]here the complaint names a defendant in the caption but contains no allegations indicating exactly how the defendant violated the law or injured the plaintiff, a motion to dismiss the complaint in regard to that defendant should be granted”) (citations omitted)), aff'd, 396 F.3d 525 (2d Cir. 2005).
It may be Plaintiff's intention to sue Orange County. When a plaintiff sues a municipality under Section 1983, however, it is not enough for the plaintiff to allege that one of the municipality's employees or agents engaged in some wrongdoing. The plaintiff must show that 5 the municipality itself caused the violation of the plaintiff's rights. See Connick v. Thompson, 131 S.Ct. 1350, 1359 (2011) (“A municipality or other local government may be liable under this section [1983] if the governmental body itself ‘subjects' a person to a deprivation of rights or ‘causes' a person ‘to be subjected' to such deprivation.”) (quoting Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 692 (1978)); Cash v. Cnty. of Erie, 654 F.3d 324, 333 (2d Cir. 2011). In other words, to state a Section 1983 claim against a municipality, the plaintiff must allege facts showing (1) the existence of a municipal policy, custom, or practice, and (2) that the policy, custom, or practice caused the violation of the plaintiff's constitutional rights. See Jones v. Town of East Haven, 691 F.3d 72, 80 (2d Cir. 2012); Bd. of Cnty. Comm'rs of Bryan Cnty. v. Brown, 520 U.S. 397, 403 (1997) (internal citations omitted).
There are no facts in the complaint suggesting that a municipal policy, custom, or practice caused a violation of Plaintiff's constitutional rights.
LEAVE TO AMEND
District courts generally grant a pro se plaintiff an opportunity to amend a complaint to cure its defects, but leave to amend is not required where it would be futile. See Hill v. Curcione, 657 F.3d 116, 123-24 (2d Cir. 2011); Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. In an abundance of caution, and in light of Plaintiff's pro se status, the Court grants Plaintiff leave to amend his complaint.
CONCLUSION
The complaint is dismissed for failure to state a claim on which relief may be granted. 28 U.S.C. §1915(e)(2)(B)(ii).
Plaintiff is granted leave to file an amended complaint that complies with the standards set forth above. Plaintiff must submit the amended complaint to this Court's Pro Se Intake Unit within sixty days of the date of this order, caption the document as an “Amended Complaint, ” 6 and label the document with docket number 22-CV-1529 (LTS). An Amended Civil Rights Complaint form is attached to this order. No summons will issue at this time. If Plaintiff fails to comply within the time allowed, and he cannot show good cause to excuse such failure, the complaint will be dismissed for failure to state a claim upon which relief may be granted.
The Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith, and therefore IFP status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
SO ORDERED. 7