The opinion of the court was delivered by: Michael A. Telesca United States District Judge
Plaintiff Jimmy Lee Gibson has filed this pro se action seeking relief under 42 U.S.C. § 1983 (Docket No. 1) and has requested permission to proceed in forma pauperis (Docket No. 2). Plaintiff claims that the defendant, the Geneseo Village Police Department, has violated his constitutional rights when he was subjected to "profiling, stalking, and harassment by Officer Chris Haley on the basis of his race. For the reasons discussed below, plaintiff's request to proceed as a poor person is granted, but unless plaintiff files an amended complaint as directed below, the complaint will be dismissed with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B).
Because plaintiff has met the statutory requirements of 28 U.S.C. § 1915(a), plaintiff is granted permission to proceed in forma pauperis. Section 1915(e)(2)(B) of 28 U.S.C. provides that the Court shall dismiss a case in which in forma pauperis status has been granted if, at any time, the Court determines that the action (i) is frivolous or malicious; (ii) fails to state a claim upon which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.
In evaluating the complaint, the Court must accept as true all factual allegations and must draw all inferences in plaintiff's favor. See King v. Simpson, 189 F.3d 284, 287 (2d Cir. 1999). Dismissal is not appropriate "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). "This rule applies with particular force where the plaintiff alleges civil rights violations or where the complaint is submitted pro se." Chance v. Armstrong, 143 F.3d 698, 701 (2d Cir. 1998).
Based on its evaluation of the complaint, the Court finds that, unless plaintiff files an amended complaint as directed below, plaintiff's claims must be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) because it fails to state a claim upon which relief may be granted.
Preliminarily, plaintiff's complaint is written in a manner that fails to comply with the requirements of Rules 8 and 10 of the Federal Rules of Civil Procedure, which are intended to allow those being sued to know what is being claimed, to answer, and, among other things, apply the principles of res judicata. The application of res judicata is particularly important in this case, because plaintiff has previously sued this defendant in this Court. See 00-CV-6391CJS.
Plaintiff brings this action pursuant to 42 U.S.C. § 1983. In order to state a claim under § 1983, a plaintiff must allege (1) that the challenged conduct was attributable at least in part to a person acting under color of state law, and (2) that such conduct deprived the plaintiff of a right, privilege, or immunity secured by the Constitution or laws of the United States. Dwares v. City of New York, 985 F.2d 94, 98 (2d Cir. 1993).
Plaintiff has made allegations against Officer Haley beginning in 2001 and continuing until 2003. The statute of limitations for actions brought pursuant to 42 U.S.C. § 1983 in New York State is the three-year period provided for in New York's CPLR § 214(2). Owens v. Okure, 488 U.S. 235, 251 (1989); Jewell v. County of Nassau, 917 F.2d 738, 740 (2d Cir. 1990). The complaint was filed on January 20, 2006. Only complained-of events occurring after January 20 of 2003 are within the statute of limitations. Thus, while the facts alleged prior to 2003 could, under some circumstances state a cause of action under 28 U.S.C. § 1983, only the claims based on events alleged to have occurred in 2003 are potentially cognizable here. Moreover, even combined with allegations of harassment that occurred beyond the three year statute of limitations, it is difficult to find that any of these allegations sufficiently state a cause of action.
The first cognizable allegation is that on May 23, 2003, a Geneseo Village Police car sat behind plaintiff's vehicle for 15-20 minutes staring at his apartment. Plaintiff states that he could not see who was in the car, but believes it was Officer Chris Haley. This allegation is wholly conclusory and the claim so de minimus that there is no indication that a constitutional claim could be raised here. Even if this allegation might be considered a continuation of earlier harassment if the allegation was stronger, it is insufficient to reach that level. The Court cannot see how, if plaintiff could not see who was in the vehicle, he could determine that the person was staring at his apartment, or, in fact, doing anything with respect to his apartment, which was apparently one apartment in an apartment complex.
The only other allegation that falls within the three year statute of limitations involves an allegation that on July 18th, 2003, plaintiff was arrested after a physical confrontation allegedly started by a neighbor in his apartment complex.*fn1 The police arrived and, even though plaintiff told the officer that he wanted to press charges, plaintiff was arrested. Plaintiff does not state what the resolution of the charges was; nevertheless, he acknowledges that there was a physical dispute in a public area. Thus, even based on the allegations of plaintiff alone, the allegations do not demonstrate that Officer Haley arrested plaintiff without probable cause, or simply for the purpose of racial harassment. See discussion of probable cause below.
The remaining pages of the complaint go back to incidents that occurred outside of the statute of limitations and appear to relate to communications plaintiff had with the Geneseo Village Police Department in attempting to put them on notice of harassment. However, it is impossible to determine what plaintiff's communications were, when he made them, and what happened subsequently. In any event, it appears that all such communications were before June of 2002, and significantly before the actions complained of in May and July of 2003, which do not sufficiently state a cause of action.
To the extent that plaintiff's claims have been brought against the Geneseo Police Department, the claims are dismissed. Although municipalities are considered "persons" for purposes of 42 U.S.C. § 1983, a local government such as these Geneseo municipal defendants may not be held liable under § 1983 unless the challenged action was performed pursuant to a municipal policy or custom. Monell v. New York City Dept. of Social Services, 436 U.S. 658, ...