UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
December 15, 2009
GLYNN JONES, PLAINTIFF,
NEW YORK CITY POLICE DEPARTMENT; THE CITY OF NEW YORK; POLICE OFFICER COX; POLICE OFFICER JOHN DOE I; POLICE SERGEANT JANE DOE; PAUL SMITH AND JACQUELINE A. MILLER, DEFENDANTS.
The opinion of the court was delivered by: Matsumoto, United States District Judge
MEMORANDUM AND ORDER
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.)
STANDARD OF REVIEW
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).
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. See 28 U.S.C. § 1915(e)(2)(B); Sommer v. Dixon, 709 F.2d 173, 175 (2d Cir. 1983) ("A complaint containing only conclusory, vague, or general allegations of conspiracy to deprive a person of constitutional rights cannot withstand a motion to dismiss.")
The City of New York and NYPD
Plaintiff names the City of New York and the New York City Police Department ("NYPD") as defendants. A municipality, such as the City of New York, can be liable under §1983 only if a plaintiff can show that a municipal policy or custom caused the deprivation of his or her constitutional rights. See Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690-91 (1978). The doctrine of respondeat superior cannot be used to establish municipal liability. Richardson v. Nassau County, 277 F. Supp. 2d 196, 204 (E.D.N.Y. 2003) (citation omitted). Here, despite plaintiff's conclusory failure-to-train allegation, (see Am. Compl. at 6), he has not made the requisite showing that would confer Monell liability on the City of New York. Moreover, the NYPD, as an agency of the City, is a not a suable entity. Lauro v. Charles, 219 F.3d 202, 205 n. 2 (2d Cir. 2000); McCray v. New York City Police Dep't, No. 99-CV-7035, 2008 WL 207845, at *1 (E.D.N.Y. Jan. 24, 2008). Therefore, plaintiff's claims against the City of New York and the NYPD are dismissed for failure to state a claim. See 28 U.S.C. § 1915(e)(2)(B).
Accordingly, the amended complaint, filed in forma pauperis, is dismissed for failure to state a claim on which relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B).
However, in an abundance of caution and in light of plaintiff's pro sestatus, the court grants plaintiff leave to replead within 30 days from the entry of this Memorandum and Order. SeeCruz v. Gomez, 202 F.3d 593, 597 (2d Cir. 2000) (citation omitted). Plaintiff must provide a short, plain statement of claim against each defendant named so that they have adequate notice of the claims against them. See Fed. R. Civ. P. 8; Iqbal, 129 S.Ct. at 1949 (Rule 8 "demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.").
If plaintiff elects to file a Second Amended Complaint, it must be captioned "SECOND AMENDED COMPLAINT" and bear docket number 09-CV-3504 (KAM). If plaintiff fails to replead within the time allowed or show good cause why he cannot comply, judgment dismissing this action shall enter. Any state law claims shall be dismissed without prejudice. The court certifies pursuant to 28 U.S.C. §1915(a)(3) that any appeal from this order would not be taken in good faith and therefore in forma pauperis status is denied for purpose of an appeal. The Clerk of the Court is respectfully requested to serve a copy of this Memorandum and Order upon plaintiff.
KIYO A. MATSUMOTO United States District Judge