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Gause v. Suffolk County Police

United States District Court, E.D. New York

July 20, 2017

DESI GAUSE, Plaintiff,
v.
SUFFOLK COUNTY POLICE, FIRST PRECINCT; TOWN OF BABYLON, MARYANN ANDERSON, Town Inspector[1]; SUFFOLK COUNTY POLICE SERGEANT (1); SUFFOLK COUNTY POLICE IN PATROL CAR 2; and SUFFOLK POLICE IN PATROL CAR PARTNER;[2] Defendants.

          For Plaintiff: Desi Gause, pro se

          For Defendants: Suffolk County Police, First PrecinctArlene S. Zwilling, Esq. Suffolk County Attorney

          Maryann Andersen, Senior Zoning Inspector for the Town of Babylon Mark A. Cuthbertson, Esq. Matthew Joseph DeLuca, Esq. Law Offices of Mark A. Cuthbertson

          MEMORANDUM & ORDER

          JOANNA SEYBERT, U.S.D.J.

         On April 28, 2017, pro se plaintiff Desi Gause (“Plaintiff”) filed a Complaint against the Suffolk County Police, First Precinct (the “First Precinct”); Maryann Andersen, Town Inspector for the Town of Babylon (“Andersen”)[3]; and three unidentified Suffolk County law enforcement officers--one police sergeant and two patrol car officers--alleged to have visited Plaintiff's property on April 27, 2017 (“John Doe Officers” and collectively, “Defendants”). The Complaint alleges a deprivation of Plaintiff's civil rights pursuant to 42 U.S.C. § 1983 (“Section 1983”).

         Plaintiff's Complaint is accompanied by an application to proceed in forma pauperis and an Order to Show Cause seeking the entry of a Temporary Restraining Order and a Preliminary Injunction. (See, In Forma Pauperis (“IFP”) Motion, Docket Entry 2; Gause Temporary Restraining Order (“TRO”) Motion, Docket Entry 3.) By Electronic Order dated May 2, 2017 (the “Electronic Order”), the undersigned denied Plaintiff's application for a TRO and deferred ruling on the application for a Preliminary Injunction pending the determination of Plaintiff's IFP Motion. The Electronic Order also directed Defendants to respond to the Plaintiff's application for a Preliminary Injunction within two weeks of service of the Electronic Order and Defendants have timely complied with the Electronic Order. (See Docket Entries 6, 10, 11, and 12.)

         Upon review of Plaintiff's declaration in support of his application to proceed in forma pauperis, the Court finds that Plaintiff's financial status qualifies him to commence this action without prepayment of the filing fees. See 28 U.S.C. § 1915(a)(1). Accordingly, Plaintiff's application to proceed in forma pauperis is GRANTED and the Court ORDERS service of the Complaint by the United States Marshal Service (“USMS”) without prepayment of the filing fee on Defendants. Plaintiff's Order to Show Cause seeking the entry of a Preliminary Injunction is DENIED for the reasons that follow.

         BACKGROUND

         I. The Complaint

         Plaintiff's sparse Complaint is submitted on the Court's Section 1983 complaint form and, liberally construed, purports to allege a deprivation of his Fourth and Fourteenth Amendment rights. More specifically, Plaintiff's statement of claim alleges, in its entirety:[4]

On or about 4/27/2017, the Suffolk County Police along with the Town of Babylon violated my home and property and without a warrant or my presence Broke in my home kicking my door open and unlawfully entered my home without my or anybody's permission to do so, and boarded up my home, leaving me homeless on the street for more repairs that could of been repaired as I was doing. “Deprivation of property”, Blacks are targeted and treated unfair by the Town of Babylon, we are treated like animals, unhumane, our rights are violated.

(Compl. ¶ IV.) Plaintiff has annexed to his Complaint a two-page, handwritten supplement (Compl. at 6-7), that reads as follows:

This is an incident that occurred 04/27/2017, round 10 and 1 p.m., 8 a.m., I went to the Huntington Jeep and Chrysler building, received a call the Town of Babylon with Marie Anderson and Suffolk Police broke in to your house without a search warrant and kicked the door in and went through my home violating my privacy and fourth amendment, because of people sleeping in a tent in the backyard. “1973 Wounded Knee Act” then the begin to board the house up and said I have to repair a code violation, which I did and I have the documents showing an inspection was made and passed, the people in the tent were grown adults, drinking, and smoking their stuff or partying in privacy, and enemy of mine Tony Harrison and Kity, his girl, make anomynus calls by the dozen and threatens me and my family in the tent because they won't let her enter, so now she involves the Town and Police with dozens of bogus calls as if she is my neighbor. She lives six houses down the block and noone will let her come inside to chill.
They have their own jet set and crowd that pays rent to the tent holder, “Gia Calloway”, my niece. My rights are being violated and I am being deprived of entrance to my home. Mary Anderson of the Town of Babylon, along with the Suffolk County Police, First Precinct, took the law in their hand without a warrant from a judge and unlawfully broke into my home and boarded it up, which was unlawful and unconstitutional. They give the white people time to fix any violations from 30 days up to a year, one of the Town workers explained to me today and said they only board the blacks up because they don't know their rights and usually they don't do nothing about it and walk away from their home, “deprivation of property” under the fifth, fourth, sixth and 14 Amendment of the U.S. Constitutions. I was like an Order to Show Cause to take off the boards and go back into my home. I have children coming home from college for the Summer, Temple University, and we have no where to go. That's been our home over 18 years my parents own it, it's the Estate of Della L. Gause. I was an Order letting me enter my home with No Town or Police consequences until this can be resolved.

(Compl. at 6-7.)

         In the space on the form Complaint that calls for a description of any claimed injuries, Plaintiff alleges: “mental anguish, mental depression and anxiety inter-alia, high blood pressure cold at night from sleeping in car.” (Compl. ¶ IV.A.) For relief, Plaintiff seeks a damages award in the amount of one million dollars as well as an order directing Defendants to “take the boards off of my home and stop violation of my fourth and fifth amendment [rights] . . . .” (Compl. ¶ V.)

         II. The Application for a Preliminary Injunction

         Plaintiff's Order to Show Cause seeks an order, “pursuant to Rule 65 FRCP enjoining the defendant during the pendency of this action from keeping me from going inside my home and putting boards on my home” and “depriving m3 of my home and property under the Fifth Amendment U.S.C.A.” (See Proposed Order for Preliminary Injunction and Restraining Order, Docket Entry 3-1.) Plaintiff alleges, as grounds for his motion, that he and his family members have suffered “constant harrassment and violation of [his] quiet time.” (See Gause TRO Motion at 1.) Plaintiff claims that he will suffer “immediate and irreparable harm”, absent injunctive relief, because he is “on the outside of my home with all my ...


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