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Jones v. New York City Police Dep't

December 15, 2009


The opinion of the court was delivered by: Matsumoto, United States District Judge


On August 4, 2009, Plaintiff Glynn Jones,*fn1 appearing pro se, filed this action alleging violations of his constitutional rights and violations of unspecified state laws. On September 14, 2009, plaintiff filed an amended complaint.*fn2 The court liberally construes plaintiff's action as being brought pursuant to 42 U.S.C. § 1983. The court grants plaintiff's request to proceed in forma pauperispursuant to 28 U.S.C. § 1915, and for the reasons discussed below, dismisses the complaint with leave to replead within 30 days.


Plaintiff alleges that on or about July 20, 2009, New York City police officers refused plaintiff's demand to arrest defendant Jacqueline A. Miller ("Miller") and defendant John Doe II, a.k.a. Paul Smith ("Smith"), while the officers were serving an Order of Protection on Miller. Plaintiff further states that:

[b]ecause the police officers refused to arrest both defendant[s] and give plaintiff the name of defendant Paul Smith . . . [d]efendant Jacqueline A. Miller, and defendant Paul Smith, had someone assault the plaintiff by hitting him in the left arm with a baseball bat then three of them attempted to kidnap the plaintiff by forcing him into a car at gun point and driving off. The plaintiff was able to escape by jumping out of the car at a stop sign. (Am. Compl. ¶ 12.) Plaintiff further alleges that the police are "working with the defendants and now I fear for my safety from the police and the defendants." (Am. Compl. ¶ 22.) Plaintiff seeks unspecified money damages. (see Am. Compl. at 9.)


In reviewing plaintiff's complaint, the court is mindful that, "a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citations omitted); Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008). However, under 28 U.S.C. § 1915 (e)(2)(B), a district court shall dismiss an in forma pauperis action where it is satisfied that 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). An action is deemed frivolous as a matter of law when, inter alia, it "lacks an arguable basis in law, or a dispositive defense clearly exists on the face of the complaint." Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998) (internal citations omitted).


Private Parties

Plaintiff identifies defendants Miller and John Doe II as "civilians." (See Am. Compl. ¶¶ 7-8.) In order to maintain a civil rights action pursuant to § 1983 action, a plaintiff must establish that the conduct complained was committed by a person acting under color of state law. 42 U.S.C. §1983; Tancredi v. Metro. Life Ins. Co., 316 F.3d 308, 312 (2d Cir. 2003). As the Supreme Court has held, "the under-color-of-state-law element of § 1983 excludes from its reach merely private conduct, no matter how discriminatory or wrongful." American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999) (quotations omitted); cf. Brentwood Academy v. Tennessee Secondary School Athletic Ass'n, 531 U.S. 288, 295 (2001) ("[S]tate action may be found if, though only if, there is such a 'close nexus between the State and the challenged action' that seemingly private behavior 'may be fairly treated as that of the State itself.'" (quoting Jackson v. Metropolitan Edison Co., 419 U.S. 345, 351 (1974))). Here, plaintiff has not alleged facts to show that defendants Miller and Smith acted pursuant to state law or that their conduct is "fairly attributable to the State." American Mfrs. Mut. Ins. Co., 526 U.S. at 50. Therefore, plaintiff's claims against defendants Miller and Smith, who are private individuals, are dismissed for failure to state a claim. See 28 U.S.C. § 1915(e)(2)(B).*fn3

Police Officers' Failure to Arrest

Plaintiff further alleges that his rights were violated because defendants Police Officer Cox, Police Officer John Doe I and Police Sergeant Jane Doe ("the police officer defendants") failed to arrest defendants Miller and Smith. A private citizen does not have a constitutional right to initiate criminal proceedings. See Leeke v. Timmerman, 454 U.S. 83, 86 (1981) (per curiam) ("a private citizen lacks a judicially cognizable interest in the prosecution or non-prosecution of another") (quoting Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973)); Esposito v. New York, No. 08-CV-4879, 2009 WL 4577561, at *1 (2d Cir. Dec. 08, 2009); Yashaahla v. M.H.A.N.Y., No. 05-CV-4963, 2006 WL 845586, at *1 (E.D.N.Y. Mar. 29, 2006) (citing cases).

Moreover, the police do not have any constitutional obligation to protect plaintiff against violence perpetrated by another private party, see Matican v. City of New York, 524 F.3d 151, 155 (2nd Cir. 2008) (citing DeShaney v. Winnebago County Dept. of Soc. Servs., 489 U.S. 189, 195-96 (1989)), and plaintiff does not have a protected property interest in the police enforcement of a restraining order, see Town of Castle Rock, Colo. v. Gonzales, 545 U.S. 748, 761 (2005). In addition, plaintiff's claim that police officers conspired with defendants Miller and Smith is "unsupported, speculative, and conclusory." Boddie v. Schnieder, 105 F.3d 857, 862 (2d Cir. 1997) (citing cases); see also Ashcroft v. Iqbal, 129 S.Ct. 1937, 1950 (2009) ("pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth."). Therefore, plaintiff's claims against the police officer defendants and his conspiracy claims against all the defendants are dismissed for failure to state a claim. ...

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