Opinion
22-CV-9681 (JPO)
12-20-2022
HENRY PLATSKY, Plaintiff, v. NEW YORK POLICE DEPARTMENT; OFFICER WONG TAKKEUNG; OFFICER JOHN DOE I; SUPERVISING OFFICER JOHN DOE III; JANE DOE, Defendants.
ORDER OF SERVICE
J. PAUL OETKEN, UNITED STATES DISTRICT JUDGE.
Plaintiff, who is appearing pro se, brings this action under 42 U.S.C. § 1983, alleging that he was falsely arrested on February 23, 2020, at 10:20 a.m., at the corner of Avenue C and Sixth Street in the East Village neighborhood of Manhattan. By order dated November 30, 2022, the Court granted Plaintiff's request to proceed in forma pauperis (“IFP”), that is, without prepayment of fees.
STANDARD OF REVIEW
The Court must dismiss an IFP complaint, or any portion of the complaint, that is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B); see Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998). The Court must also dismiss a complaint when the Court lacks subject matter jurisdiction over the claims raised. 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) (cleaned up). 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 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.
DISCUSSION
A. New York Police Department
Plaintiff's claims against the New York Police Department (“NYPD”) must be dismissed because an agency of the City of New York is not an entity that can be sued. N.Y. City Charter ch. 17, § 396 (“[A]ll actions and proceedings for the recovery of penalties for the violation of any law shall be brought in the name of the city of New York and not in that of any agency, except where otherwise provided by law.”); Jenkins v. City of New York, 478 F.3d 76, 93 n.19 (2d Cir. 2007). See also Emerson v. City of New York, 740 F.Supp.2d 385, 396 (S.D.N.Y. 2010) (“[A] plaintiff is generally prohibited from suing a municipal agency.”).
The Court acknowledges that it may be Plaintiff's intention to sue the City of New York. 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 the municipality itself caused the violation of the plaintiff's rights. See Connick v. Thompson, 563 U.S. 51, 60 (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. The Court therefore declines at this stage to construe the complaint as asserting a claim against the City of New York.
B. Jane Doe complainant
A complainant cannot be held liable under Section 1983 for false arrest merely for seeking police assistance or providing information to the police, who are then free to exercise their own judgment as to whether an arrest is warranted. See Kraft v. City of New York, 696 F.Supp.2d 403, 421-22 (S.D.N.Y. 2010); Holley v. Cty. of Orange, New York, 625 F.Supp.2d 131, 142-43 (S.D.N.Y. 2009). “To hold a defendant liable as one who affirmatively instigated or procured an arrest, a plaintiff must show that the defendant or its employees did more than merely provide information to the police.” King v. Crossland Sav. Bank, 111 F.3d 251, 257 (2d Cir. 1997); see also Rohman v. N.Y.C. Transit Auth., 215 F.3d 208, 217 (2d Cir. 2000) (“The mere reporting of a crime to police and giving testimony are insufficient [to initiate prosecution]; it must be shown that [the] defendant played an active role in the prosecution, such as giving advice and encouragement or importuning the authorities to act.”) (cleaned up). Here, Plaintiff does not allege facts indicating that the complainant did anything more than provide information to the police. Accordingly, the Jane Doe complainant is dismissed from the action as a defendant.
C. Order of service
Because Plaintiff has been granted permission to proceed IFP, he is entitled to rely on the Court and the U.S. Marshals Service to effect service. Walker v. Schult, 717 F.3d. 119, 123 n.6 (2d Cir. 2013); see also 28 U.S.C. § 1915(d) (“The officers of the court shall issue and serve all process . . . in [IFP] cases.”); Fed.R.Civ.P. 4(c)(3) (the court must order the Marshals Service to serve if the plaintiff is authorized to proceed IFP).
Although Rule 4(m) of the Federal Rules of Civil Procedure generally requires that a summons be served within 90 days of the date the complaint is filed, Plaintiff is proceeding IFP and could not have served the summons and the complaint until the Court reviewed the complaint and ordered that the summons be issued. The Court therefore extends the time to serve until 90 days after the date the summons is issued.
To allow Plaintiff to effect service on Defendant Police Officer Wang Takkeung through the U.S. Marshals Service, the Clerk of Court is instructed to fill out a U.S. Marshals Service Process Receipt and Return form (“USM-285 form”) for this defendant. The Clerk of Court is further instructed to issue summonses and deliver to the Marshals Service all the paperwork necessary for the Marshals Service to effect service upon Defendant.
If the complaint is not served within 90 days after the date the summonses are issued, Plaintiff should request an extension of time for service. See Meilleur v. Strong, 682 F.3d 56, 63 (2d Cir. 2012) (holding that it is the plaintiff's responsibility to request an extension of time for service).
Plaintiff must notify the Court in writing if his address changes, and the Court may dismiss the action if Plaintiff fails to do so.
D. John Doe defendants
Under Valentin v. Dinkins, a pro se litigant is entitled to assistance from the district court in identifying a defendant. 121 F.3d 72, 76 (2d Cir. 1997). In the complaint, Plaintiff supplies sufficient information to permit the New York City Law Department to identify Officer Takkeung's partner and the supervising officer who were involved in Plaintiff's arrest on February 23, 2020, at 10:20 a.m. at the corner of Avenue C and Sixth Street. It is therefore ordered that the New York City Law Department, which is the attorney for and agent of the New York Police Department, must ascertain the identity and badge number of each John Doe whom Plaintiff seeks to sue here and the address where each defendant may be served. The New York City Law Department must provide this information to Plaintiff and the Court within sixty days of the date of this order.
Within thirty days of receiving this information, Plaintiff must file an amended complaint naming the John Doe defendants. The amended complaint will replace, not supplement, the original complaint. An amended complaint form that Plaintiff should complete is attached to this order. Once Plaintiff has filed an amended complaint, the Court will screen the amended complaint and, if necessary, issue an order directing the Clerk of Court to complete the USM-285 forms with the addresses for the named John Doe defendants and deliver all documents necessary to effect service to the U.S. Marshals Service.
CONCLUSION
The Court dismisses Plaintiff's claims against the New York Police Department and the Jane Doe complainant. See 28 U.S.C. § 1915(e)(2)(B)(ii).
The Clerk of Court is directed to: (1) mail a copy of this order and the complaint to the New York City Law Department at: 100 Church Street, New York, N.Y. 10007; (2) mail an information package to Plaintiff; and (3) issue a summons for Police Officer Wong Takkeung, complete the USM-285 form with the address for this defendant, and deliver all documents necessary to effect service to the U.S. Marshals Service.
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. Cf. Coppedge v. United States, 369 U.S. 438, 444-45 (1962) (holding that an appellant demonstrates good faith when he seeks review of a nonfrivolous issue). An “Amended Complaint” form is attached to this order.