United States District Court, N.D. New York
TIMOTHY DEAN BEST, Plaintiff, pro se.
ORDER and REPORT-RECOMMENDATION
ANDREW T. BAXTER, Magistrate Judge.
The Clerk has sent me a proposed amended complaint, filed by plaintiff in the above case. (Dkt. No. 9). Plaintiff has filed this proposed amended complaint in compliance with Judge Hurd's September 3, 2014 order, approving my August 6, 2014 Order and Report-Recommendation ("ORR"). (Dkt. Nos. 6, 7).
I. Procedural History
Plaintiff filed his original complaint in the Eastern District of New York on April 16, 2014. (Dkt. No. 1). The case was transferred to the Northern District of New York on July 29, 2014 and sent to me for my review of the complaint together with plaintiff's motion to proceed in forma pauperis ("IFP"). The only defendants named in plaintiff's complaint were the Village of Ellenville Police Department and the Village of Ellenville. (Dkt. No. 1). In the original complaint, plaintiff alleged that he was the victim of excessive force by Donald Langlois and unknown police officers. (Dkt. No. 1 at 2). Plaintiff also claimed, generally, that "the Village of Ellenville Policemen" failed to tell plaintiff that he had the right to remain silent and the right to counsel. ( Id. at 3). However, plaintiff did not name Officer Langlois as a defendant and made no allegations that would establish municipal liability.
In my ORR, I recommended dismissing the Village of Ellenville Police Department with prejudice, but recommended dismissing the Village of Ellenville without prejudice. (Dkt. No. 6 at 9-10). I recommended giving plaintiff the opportunity to amend his complaint, adding Donald Langlois as a defendant, if appropriate; making any allegations that would tend to establish municipal liability; and asserting any further personal involvement of the individual John Doe defendants, who might be added after discovery. ( Id. ) Additionally, to the extent that a decision in plaintiff's favor would affect his resulting criminal conviction, in order for the court to consider his Fifth and Sixth Amendment claims,  plaintiff would have to establish that his criminal conviction was reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal, or called into question by a federal habeas court. Heck v. Humphrey, 512 U.S. 477 (1994).
On October 20, 2014, plaintiff submitted his proposed amended complaint ("AC"). (Dkt. No. 9). The court first notes that plaintiff has failed to update his address. However, he has now properly removed the Village of Ellenville Police Department as a defendant and has added Officer Donald Langlois, individually, as a defendant, with two "John Doe Officers to be name[ed] during discovery." (AC at 1).
Most of the facts in the amended complaint are identical to the original. It appears that plaintiff has expanded the description of the incident in an effort to comply with the court's order, and he has attached two exhibits to the amended complaint as discussed below.
Plaintiff states that on August 18, 2012 at approximately 4:30 p.m., he visited Lisa Jennings at her apartment to bring her food for the week. (AC at 2). Moments after plaintiff entered the apartment, Louis Jennings, Ms. Jennings's brother, began to argue with plaintiff. Someone called the Village of Ellenville Police, and plaintiff was asked to leave the apartment. ( Id. ) Plaintiff states that as he was walking away, he realized that he left his bicycle "on the side of the apartment, " and as he walked back to retrieve his bicycle, one of the "John Doe" officers "grabbed... me, " started pulling on me and the[y] were beating on my head and body, coming from each officer and every angle." ( Id. ) Plaintiff also claims that once he was handcuffed and lying over the hood of one of the police cars, "one of the John Doe Officers, " sprayed a chemical agent on plaintiff's face and in his eyes, "while yelling... yeah." ( Id. ) (ellipsis in original).
Plaintiff alleges that he was taken to the Village of Ellenville Police Station, where he made "certain statements" without being read his rights. Plaintiff's "Courtappointed" lawyer later determined that those statements "hurt" plaintiff's case. ( Id. ) Plaintiff was apparently charged with resisting arrest and disorderly conduct. Plaintiff has attached the criminal information for each charge as an exhibit to his complaint. (Pl.'s Exs. A & B). Each information is signed by defendant Langlois. ( Id. )
Plaintiff alleges that in one of the exhibits, defendant Langlois "admits" that force and a chemical agent were used, but that the defendant "failed to mention" that plaintiff was already handcuffed at the time. (AC at 3). Plaintiff states that the Village of Ellenville "failed to properly train their employee to protect and serve the public and private sect [sic]." ( Id. ) Plaintiff claims that the officers never gave him time to explain why he was returning to the apartment, and that the same officers "weeks later" were caught selling drugs. ( Id. ) Plaintiff states, as he did in the original complaint, that he has a permanent scar on his head and "on his mind, " together with "burr" vision in both eyes "from time to time." ( Id. ) The court will now review the amended complaint for sufficiency.
III. Standard of Review
The court will repeat the standard of review for sua sponte dismissal of claims brought by pro se plaintiffs who are proceeding IFP. The court must consider the sufficiency of the allegations set forth in the complaint in light of 28 U.S.C. § 1915, which provides that the court shall dismiss the case at any time if the court determines that the action is (I) frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or ...