United States District Court, N.D. New York
RICHARD H. LIVINGSTON, Plaintiff,
CITY OF SYRACUSE, et al., Defendant.
RICHARD H. LIVINGSTON Plaintiff, pro se.
ANDREW T. BAXTER, Magistrate Judge.
The Clerk has sent to the court for review this complaint, together with an application to proceed in forma pauperis ("IFP") from pro se plaintiff, Richard H. Livingston. (Dkt. Nos. 1, 2). Plaintiff has also moved for appointment of counsel. (Dkt. No. 3).
I. IFP Application
The statute governing IFP actions provides that the court may authorize the commencement of a civil action without the payment of fees, when the plaintiff files an affidavit that includes a statement that he is unable to pay the required fee or give security therefor. 28 U.S.C. § 1915(a)(1). Plaintiff in this case is currently incarcerated and has filed a form-motion to proceed IFP. (Dkt. No. 2). A review of the application shows that plaintiff's IFP application may properly be granted.
Plaintiff alleges that on June 3, 2014, while he was driving on the 100 block of Merriman Avenue in the City of Syracuse, defendants Syracuse Police Officers, Cope and Patti pulled plaintiff over for having "tinted windows." (Complaint (Compl. ¶ 10)). Plaintiff states that Officer Cope approached the car and asked plaintiff to produce his license, which was "valid." (Compl. ¶ 12). Plaintiff claims that defendant Cope instructed plaintiff and his passengers to get out of the car. (Id. ) Defendant Cope then conducted a search of plaintiff's person, but that the search was "negative for contraband." (Id. ¶ 13).
However, the search of plaintiff's passengers revealed that one of them, (Mr. Emmanuel Palmer), had a small bag of marijuana in his sock, and the other passenger (Mr. John Land), had 3.5 grams of crack cocaine and $667.00 on his person. (Id. ) The officers arrested Mr. Land and proceeded to search plaintiff's car "for further contraband." (Compl. ¶¶ 14-15). Plaintiff claims that the vehicle search resulted in the discovery of a digital scale that was "packaged and sealed inside [a] box." (Id. ¶ 15). Plaintiff states that Mr. Land told the officers that the scale was his and "accepted full responsibility." (Id. at ¶ 16). Plaintiff informed the officers that he had "no knowledge of the scale" and informed them that he was enrolled in a "Judicial Diversion program" which required plaintiff to "stay out of trouble." (Id. ¶ 17).
Plaintiff claims that once he told the officers about the diversion program, he was placed under arrest for possession of drug paraphernalia; seventh degree possession of a controlled substance; and he was issued two Uniform Traffic Tickets for motor vehicle/equipment violations. (Id. ¶ 18). Plaintiff has attached a copy of the Police Report as Exhibit A to the complaint. Plaintiff was arraigned on the charges on June 4, 2014, and on June 6, 2014, plaintiff was released on $750.00 bail. (Id. ¶¶ 19-20).
Plaintiff claims that on June 10, 2014, he was taken back into custody and "sanctioned to 7 days in jail, warned of a final chance, threaten[ed] with [an] enhanced sentence for violating a no-arrest contract clause for the Judicial Diversion program at Syracuse Treatment Court." (Id. ¶ 21). Plaintiff then states that "[b]ecause of this new arrest, plaintiff was sentenced to 6 years in state prison." (Id. ) (emphasis added).
On June 24, 2014, the bail bondsman informed plaintiff that he had been "[e]xonerated on the said charges, " and that the property that was pledged for his bail was being returned to its owner. (Id. ¶ 22). Plaintiff has attached a copy of this notice as Exhibit B to the complaint. (Id. ) Plaintiff states that the charges in connection with the June 3, 2014 traffic stop were dismissed on November 25, 2014. A copy of that disposition has been attached as Exhibit C to the complaint. (Id. ¶ 23).
The complaint contains a variety of claims/"counts, " including what appear to be both federal and state law claims. The claims include negligence by the officers and by the City of Syracuse "Police Department" in failing to train and supervise its officers, which permitted "a pattern and practice of misconduct and violation of rights;" "malicious abuse of process;" false arrest; false imprisonment; malicious prosecution; intentional infliction of emotional distress; conspiracy to violate civil rights,  and illegal search and seizure. Plaintiff seeks a substantial amount of monetary damages including compensatory and "exemplary" damages.
III. Syracuse Police ...