United States District Court, N.D. New York
GENAO Plaintiff, Pro Se
REPORT-RECOMMENDATION AND ORDER
J. STEWART UNITED STATES MAGISTRATE JUDGE
Clerk has sent for review a civil Complaint filed by
Plaintiff pro se Elvin Genao. Dkt. No. 1, Compl.
Plaintiff has not paid the filing fee, but instead submitted
a Motion to Proceed in forma pauperis
(“IFP”). Dkt. No. 3, IFP App. By separate Order,
this Court granted Plaintiff's Application to Proceed
IFP. Now, in accordance with 28 U.S.C. §§ 1915(e)
and 1915A, the Court will sua sponte review the
sufficiency of the Complaint.
1915(e) of Title 28 of the United States Code directs that,
when a plaintiff seeks to proceed in forma pauperis,
“the court shall dismiss the case at any time if the
court determines that . . . the action or appeal (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). Similarly, under 28 U.S.C. §
1915A, a court must review “a complaint in a civil
action in which a prisoner seeks redress from a governmental
entity or officer or employee of a governmental entity”
and must “identify cognizable claims or dismiss the
complaint, or any portion of the complaint, if the complaint
(1) is frivolous, malicious, or fails to state a claim upon
which relief may be granted; or (2) seeks monetary relief
from a defendant who is immune from such relief.”
Id. at § 1915A(a) & (b). Thus, it is a
court's responsibility to determine that a plaintiff may
properly maintain his complaint before permitting him to
proceed further with his action.
reviewing a pro se complaint, this Court has a duty
to show liberality toward pro se litigants, see
Nance v. Kelly, 912 F.2d 605, 606 (2d Cir. 1990), and
should exercise “extreme caution . . . in ordering
sua sponte dismissal of a pro se complaint
before the adverse party has been served and both
parties (but particularly the plaintiff) have had an
opportunity to respond.” Anderson v. Coughlin,
700 F.2d 37, 41 (2d Cir. 1983) (emphasis in original)
(citations omitted). Therefore, a court should not dismiss a
complaint if the plaintiff has stated “enough facts to
state a claim to relief that is plausible on its face.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl.
Corp. v. Twombly, 550 U.S. at 556). Although the court
should construe the factual allegations in the light most
favorable to the plaintiff, “the tenet that a court
must accept as true all of the allegations contained in a
complaint is inapplicable to legal conclusions.”
Id. “Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do
not suffice.” Id. (citing Bell Atl. Corp.
v. Twombly, 550 U.S. at 555). “[W]here the
well-pleaded facts do not permit the court to infer more than
the mere possibility of misconduct, the complaint has alleged
-but it has not ‘show[n]'-‘that the pleader
is entitled to relief'” Id. at 679
(quoting Fed.R.Civ.P. 8(a)(2)). A pleading that only
“tenders naked assertions devoid of further factual
enhancement” will not suffice. Id. at 678
(further citing Bell Atl. Corp. v. Twombly, 550 U.S.
at 555, for the proposition that Federal Rule of Civil
Procedure 8 “demands more than an unadorned,
Allegations that “are so vague as to fail to give the
defendants adequate notice of the claims against them”
are subject to dismissal. Sheehy v. Brown, 335
Fed.Appx. 102, 104 (2d Cir. 2009).
Allegations Contained in Plaintiff's Complaint
nature of the Complaint is unclear. Plaintiff, a resident of
New York City, names as the sole Defendant the 32nd Precinct
of the New York City Police Department (“NYPD”).
Compl. at p. 1. The 32nd Precinct serves the northeastern
portion of Harlem in New York City. See
(last visited September 4, 2019). The Complaint consists of
nothing more than a list of crimes and generally stated legal
theories without any direct factual allegations. Id.
at p. 3.
Sufficiency of the Pleading
noted, the sole named Defendant is the New York Police
Department's 32nd Precinct. “A city police
department is not an independent, suable entity separate from
the municipality in which the police department is
organized.” Krug v. Cty. of Rennselaer, 559
F.Supp.2d 223, 247 (N.D.N.Y. 2008); see also EZ Pawn
Corp. v. City of New York, 2019 WL 2393780, at *9
(E.D.N.Y. June 5, 2019); Cooper v. Proud, 2018 WL
2729249, at *4 (N.D.N.Y. Mar. 22, 2018), report and
recommendation adopted, 2018 WL 2727873 (N.D.N.Y. June
6, 2018). “Similarly, police precincts and designated
squads within that precinct, as divisions or subdivisions of
the NYPD, lack independent legal existence and also cannot be
sued.” Brannon v. 73rd Precinct, 2016 WL
8711204, at *2 (E.D.N.Y. Apr. 15, 2016) (citing cases);
see also Flemming v. New York City, 2003 WL 296921,
at *2 (S.D.N.Y. Feb. 11, 2003). As a result, Plaintiffs claim
against the 32nd Precinct must be dismissed.
addition, it appears that this action is improperly venued in
the Northern District of New York. The Defendant is not a
resident of the Northern District and there do not appear to
be any factual allegations connecting the action to this
District. See 28 U.S.C. § 1391(b). “Under
28 U.S.C. § 1406, a district court faced with a case
brought ‘laying venue in the wrong division or district
shall dismiss, or if it be in the interest of justice,
transfer such case to any district or division in which it
could have been brought.'” McFadden v.
Ortiz, 2013 WL 1789593, at *4 (N.D.N.Y. Apr. 26, 2013)
(quoting 28 U.S.C. § 1406(a)). While the Second Circuit
has cautioned against sua sponte dismissals based on
improper venue, it has also recognized that such a dismissal
is appropriate under certain circumstances. Stich v.
Rehnquist, 982 F.2d 88 (2d Cir.1992). Given the nature
of the pleadings here and the clear lack of a connection to
the Northern District, the Court also recommends that
dismissal is appropriate on this ground.
a court should not dismiss a complaint filed by a pro
se litigant without granting leave to amend at least
once ‘when a liberal reading of the complaint gives any
indication that a valid claim might be stated.'”
Bruce v. Tompkins Cty. Dep't of Soc. Servs. ex rel.
Kephart, 2015 WL 151029, at *4 (N.D.N.Y. Jan. 7, 2015)
(quoting Branum v. Clark, 927 F.2d 698, 704-05 (2d
Cir.1991)). However, where the grounds for dismissal offer no
basis for curing the defects in the pleading, dismissal with
prejudice is appropriate. Kunz v. Brazill, 2015 WL
792096, at *3 (N.D.N.Y. Feb. 25, 2015). Here, Plaintiffs
claim against the New York Police Department cannot be cured
by different pleading so the Court recommends that it be
dismissed with prejudice.