United States District Court, E.D. New York
SPATIN J. VEHAP, Plaintiff,
CITY OF NEW YORK, JOHN DOE and JANE DOE 1-20, Defendants.
MEMORANDUM AND ORDER
WILLIAM F. KUNTZ, II, UNITED STATES DISTRICT JUDGE
Spatin J. Vehap, appearing pro S0, filed this action
against the City of New York, the New York City Police
Department, and the Corporation Counsel, Assistant Police
Commissioner John Miller, and unidentified John and Jane Doe,
supervisors and officers. By Memorandum and Order dated
November 15, 2019 ("November Order"), the Court
granted Plaintiffs application to proceed in for ma
pauper is, dismissed the Complaint, and granted
Plaintiff leave to file an amended complaint within 30 days.
On December 13, 2019, Plaintiff filed an Amended Complaint
with supporting documents pursuant to 42 U.S.C. § 1983.
For the reasons set forth below, the Amended Complaint is
alleges that since March 1, 2018 to the present, officers
have attempted to entrap him by using neighbors and other
people he knows to try to gain entry to his apartment. PI.
Nature of Action at 2-5; PI. Supp. Brief at 1. Specifically,
Plaintiff alleges that on March 5, 2018, he found that his
dog was sick and that personal items were missing or damaged
from his apartment. Id. at 10. Plaintiff further
alleges that on March 30, 2018, officers removed "items
from locked closets," and on April 1, 2018, officers
entered his apartment without a warrant and stole oxycodone
pills, clothing, and cash. PI. Supp. Brief at 6. Plaintiff
alleges that he has sustained injuries from "remote
electronic harassment," including but not limited to,
joint pain, muscle spasms, heart palpitations, blisters,
"brain zaps" and weight loss. Id. at 3-4.
Plaintiff further alleges that this is "being done"
"by stealth and unseen from the 'operator's
perch' above [Plaintiffs] apartment and besides (adjacent
to)." Id. at 4. Plaintiff credits his use of
"x-ray dental aprons," "multiple levels of
aluminum layers covered over by wool blankets,"
"silver mesh and copper mesh fabrics" and
"wearing boots to sleep" to "deflect these
constant attacks." Id. at 4-5. He seeks
unspecified damages and injunctive relief. Am. Compl. at 6;
PI. Nature of Action at 5; PI. Supp. Brief at 24.
reviewing the Amended Complaint, the Court is mindful that
Plaintiff is proceeding pro se and that his
pleadings should be held "to less stringent standards
than formal pleadings drafted by lawyers." Hughes v.
Rowe, 449 U.S. 5, 9 (1980); accord Erickson v.
Pardus, 551 U.S. 89, 94 (2007); Harris v.
Mills, 572 F.3d 66, 72 (2d Cir. 2009). A complaint,
however, must plead "enough facts to state a claim to
relief that is plausible on its face." Bell Ail.
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). Moreover, pursuant to the in forma pauperis
statute, the Court must dismiss the action if it determines
that it "(i) is frivolous or malicious, (ii) fails to
state a claim upon which relief may be granted, or (iii)
seeks monetary relief from a defendant who is immune from
such relief." 28 U.S.C. § 1915(e)(2)(B). An action
"is frivolous when either: (1) the factual contentions
are clearly baseless, such as when allegations are the
product of delusion or fantasy; or (2) the claim is based on
an indisputably meritless legal theory." Livingston
v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir.
1998) (internal quotation marks and citation omitted).
"[A] finding of factual frivolousness is appropriate
when the facts alleged rise to the level of the irrational or
the wholly incredible, whether or not there are judicially
noticeable facts available to contradict them."
Denton v. Hernandez, 504 U.S. 25, 33 (1992); see
also Neitzke v. Williams, 490 U.S. 319, 327 (1989).
order to maintain a 42 U.S.C. § 1983 action, a plaintiff
must show that the defendant (a) acted under color of state
law (b) to deprive the plaintiff of a right arising under the
Constitution or federal law. Cornejo v. Bell, 592
F.3d 121, 127 (2d Cir. 2010) (citing Pitchell v.
Callan, 13 F.3d 545, 547 (2d Cir. 1984)). This statute
"creates no substantive rights; it provides only a
procedure for redress for the deprivation of rights
established elsewhere." Sykes v. James, 13 F.3d
515, 519 (2d Cir. 1993); see also Thomas v. Roach,
165 F.3d 137, 142 (2d Cir. 1999). Section 1983 claims are
generally brought against the individuals personally
responsible for the alleged deprivation of constitutional
rights, not against government entities or agencies where
those individuals are employed.
Amended Complaint cannot proceed against the City of New York
for the same reasons outlined in the Court's November
Order. Municipal liability under § 1983 arises when the
challenged action was taken pursuant to a municipal policy or
custom. See Monell v. Dep't of Soc. Servs., 436
U.S. 658, 691-95 (1978).
Plaintiffs conclusory allegations to the contrary, he has not
alleged such a policy, nor has he alleged the required
"direct causal link between a municipal policy or custom
and the alleged constitutional deprivation." City of
Canton v. Harris, 489 U.S. 378, 385 (1989). It is
well-settled that a plaintiffs conclusory allegations, which
merely recite the elements of a Monell claim, are
insufficient to state a claim for municipal liability.
See, e.g., Giaccio v. City of New York, 308
Fed.Appx. 470, 472 (2d Cir. 2009) (affirming dismissal of a
Monell claim where the plaintiff identified,
"at most, only four examples" of constitutional
violations, because "[t]his evidence falls far short of
establishing a practice that is so persistent and widespread
as to justify the imposition of municipal liability"
(internal quotations omitted)); Treadwell v. Cty. of
Putnam, 14 Civ. 10137, 2016 WL 1268279, at *4 (S.D.N.Y.
Mar. 30, 2016) (Karas, J.) (holding that the plaintiff
"failed to sufficiently state a Monell
claim" where the complaint lacked "any specific
allegations" ... "but instead merely detail[ed] an
isolated series of incidents"). Therefore, Plaintiff
fails to state a claim against the City of New York. 28
U.S.C. § 1915(e)(2)(B).
Amended Complaint cannot proceed against the New York City
Law Department for the same reasons outlined in the
Court's November Order. Section 396 of the Charter
provides that "[a] 11 actions and proceedings for the
recovery of penalties for the violation of any law shall be
brought in the name of the city of New York and not in that
of any agency, except where otherwise provided by law."
N.Y. City Charter Ch. 17, § 396. That provision
"has been construed to mean that New York City
departments [such as the Law Department or the Corporation
Counsel], as distinct from the City itself, lack the capacity
to be sued. See Jenkins v. City of New York, 478
F.3d 76, 93 n.19 (2d Cir. 2007). Therefore, Plaintiff fails
to state a claim against the New York City Law Department. 28
U.S.C. § 1915(e)(2)(B).
Amended Complaint cannot proceed against John/Jane Doe 1-20.
As a prerequisite to a damage award under § 1983, a
plaintiff must allege the defendant's direct or personal
involvement in the alleged constitutional deprivation.
"It is well-settled in this Circuit that personal
involvement of defendants in alleged constitutional
deprivations is a prerequisite to an award of damages under
§ 1983." Faridv. Ellen, 593 F.3d 233, 249
(2d Cir. 2010) (citing Farrell v. Burke, 449 F.3d
470, 484 (2d Cir. 2006)); see also Spavone v. N.Y.Dep
't of Corr. Servs., 719 F.3d 127, 135 (2d Cir. 2013)
(quoting Colon v. Coughlin, 58 F.3d 865, 873 (2d
Cir. 1995)). Here, Plaintiff merely concludes that
"officers" entered his apartment, but he does not
provide any identifying information from which the Court or
Defendants could ascertain the identity of such
"officers" and whether such officers caused him to
sustain any constitutional harm. Rather, Plaintiff names
private parties as having access to his apartment. PL Nature
of Action at 2. "[T]he under-color-of-state-law element
of [section] 1983 excludes from its reach merely private
conduct, no matter how discriminatory or wrongful."
Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50
(1999) (citation and internal quotation marks omitted).
the Court finds that Plaintiffs allegations of electronic
monitoring from the apartment above and adjacent to his
apartment to rise to the level of "fanciful, fantastic,
or delusional." Gallop v. Cheney,642 F.3d 364,
368 (2d Cir. 2011) (internal quotation marks omitted);
Denton, 504 U.S. at 33; see also Neitzke,
490 U.S. at 327. Therefore, ...