Anthony Lindsey, DIN # 11-A-2302, Southport Correctional Facility, Pine City, NY, Plaintiff Pro Se.
Melanie M. Speight, Esq., NEW YORK CITY LAW DEPARTMENT, New York, New York, Attorney for Defendants.
OPINION & ORDER
ROBERT W. SWEET, District Judge.
Plaintiff Anthony Lindsey ("Lindsey" or "Plaintiff"), proceeding pro se, has moved to amend his complaint pursuant to Fed.R.Civ.P. 15(a). Plaintiff's motion is granted in part and denied in part.
Plaintiff filed his initial complaint ("Complaint") on December 12, 2011, alleging that while he was being detained at a police station following his arrest on December 16, 2008, several police officers restrained Plaintiff while an NYPD detective forcibly shaved Plaintiff's facial hair prior to Plaintiff being produced in a lineup. The Complaint named as defendants Detective Sean Butler ("Butler"), Detective Richard Werner ("Werner"), Commissioner Raymond Kelly ("Kelly"), the New York City Police Department ("NYPD") and the City of New York ("City", and collectively, "Defendants"), and construed liberally,  purported to assert causes of action pursuant to 42 U.S.C. § 1983 for violation of Plaintiff's rights under the First, Fourth, Eighth and Fourteenth Amendments.
Defendants moved to dismiss the Complaint on November 30, 2012 pursuant to Fed.R.Civ.P. 12(b) (6) for failure to state a claim. Plaintiff did not submit any opposition to the motion to dismiss, but did make a submission received on January 18, 2013 entitled "Motion to Amend Pursuant to Fed.R.Civ.P. 15(a), " which attached a proposed amended complaint ("PAC"). Construed liberally, see Pabon , 459 F.3d at 248, the PAC purports to assert a Monell claim against the City, as well as claims against the other defendants for violations of: (i) Plaintiff's right to free exercise of religion pursuant to the First Amendment; (ii) Plaintiff's right to equal protection and due process pursuant to the Fourteenth Amendment; (iii) Plaintiff's right against self incrimination pursuant to the Fifth Amendment; (iv) Plaintiff's right to counsel pursuant to the Sixth Amendment.
Since Plaintiff is proceeding pro se, his January 18, 2013 submission is construed as a both a withdrawal of his initial complaint as well as a motion for leave to file an amended complaint pursuant to Fed. R. Civ. P 15(a). See Alvarez v. City of New York, No. 10 Civ. 6130 (RWS), 2012 WL 3298131, at *1 (S.D.N.Y. Aug. 13, 2012) (quoting LeSane v. Hall's Sec. Analyst, Inc. , 239 F.3d 206, 209 (2d Cir. 2001)) ("[P]ro se plaintiffs should be granted special leniency regarding procedural matters").
Defendants submitted an opposition to the motion to amend on January 23, 2013, contending that the motion should be denied because the Plaintiff has failed to state a claim even with the proposed amendments to the initial complaint, thereby rendering amendment futile, see Burch v. Pioneer Credit Recovery, Inc. , 551 F.3d 122, 126 (2d Cir. 2008).
The motion to amend was taken on submission on February 8, 2013.
A motion to amend is governed by Fed.R.Civ.P. 15(a), which provides that leave to amend should be freely granted when justice so requires. Id . However, a court may deny leave to amend in the event that the proposed amended complaint fails to state a claim, thereby rendering amendment futile. Health-Chem Corp. v. Baker , 915 F.2d 805, 810 (2d Cir. 1990). "The party opposing a motion to amend has the burden of demonstrating that a proposed amendment would be futile." NECA-IBEW Pension Trust Fund v. Bank of America, No. 10 Civ. 440 (LAK)(HPB), 2013 WL 620257, at *4 (S.D.N.Y. Feb. 15, 2013).
Plaintiff's First Amendment Free Exercise Claim
Defendants have contended that the PAC fails to state a claim for violation of Plaintiff's right to free exercise of religion because courts have held that shaving an inmate's facial hair does not constitute a violation of the inmate's free exercise right when the shaving occurs pursuant to a legitimate penological interest. However, the cases cited by Defendants in support of this position address only the restriction of the First Amendment rights of individuals incarcerated in prisons, see Singh v. Goord , 520 F.Supp.2d 487, 494 (S.D.N.Y. 2007) (noting that plaintiff was incarcerated in Fishkill Correctional Facility); Vann v. Fischer, No. 11 Civ. 1958 (JPO), 2012 WL 2384428, at *1 (S.D.N.Y. June 21, 2012) (noting that plaintiff is "being held by the New York State Department of Corrections"), whereas the events giving rise to the instant suit occurred when Plaintiff was merely detained in a police station following his arrest, and had not yet even been charged with a crime. PAC ¶ 11. At that point, Plaintiff was certainly not in a "prison, " which is defined in this Circuit as a facility that "house[s] those convicted those convicted of the most serious crimes, " Shain v. Ellison , 273 F.3d 56, 65 (2d Cir. 2001) (quoting BLACK'S LAW DICTIONARY 1213 (7th ed. 1999)), but rather was at most considered to be in a "jail, " which this Circuit defines as "a place where persons awaiting trial or those convicted of misdemeanors are confined." Id . The Second Circuit has held that the threshold for impinging upon the constitutional rights of ...