Opinion
21-CV-0160 (LLS)
03-09-2021
TERRELL BERFET, Plaintiff, v. N.Y.P.D., Defendant.
ORDER OF DISMISSAL :
Plaintiff, who is proceeding pro se and in forma pauperis (IFP), filed this complaint alleging that Defendants violated his rights. By order dated February 16, 2021, the Court directed Plaintiff to amend his complaint to address deficiencies in his original pleading. Plaintiff filed an amended complaint on February 26, 2021, and the Court has reviewed it. The action is dismissed for the reasons set forth below.
STANDARD OF REVIEW
The Court must dismiss an in forma pauperis complaint, or any portion of the complaint, that is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B); see Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998). The Court must also dismiss a complaint when the Court lacks subject matter jurisdiction. See Fed. R. Civ. P. 12(h)(3).
While the law mandates dismissal on any of these grounds, the Court is obliged to construe pro se pleadings liberally, Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), and interpret them to raise the "strongest [claims] that they suggest," Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (internal quotation marks and citations omitted) (emphasis in original). But the "special solicitude" in pro se cases, id. at 475 (citation omitted), has its limits - to state a claim, pro se pleadings still must comply with Rule 8 of the Federal Rules of Civil Procedure, which requires a complaint to make a short and plain statement showing that the pleader is entitled to relief.
Under Rule 8, a complaint must include enough facts to state a claim for relief "that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible if the plaintiff pleads enough factual detail to allow the Court to draw the inference that the defendant is liable for the alleged misconduct. In reviewing the complaint, the Court must accept all well-pleaded factual allegations as true. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). But it does not have to accept as true "[t]hreadbare recitals of the elements of a cause of action," which are essentially just legal conclusions. Twombly, 550 U.S. at 555. After separating legal conclusions from well-pleaded factual allegations, the Court must determine whether those facts make it plausible - not merely possible - that the pleader is entitled to relief. Id.
BACKGROUND
In his original complaint, Plaintiff alleged the following:
People such as police and other city offic[ia]ls [are] threatening to put a bullet in my head and saying foul things and loved ones that pass. I know I can su[e] because what the[y']re doing is a treatie [sic] threat 5 years prison sentence.(ECF 2 at 5.)
Plaintiff sued the State of New York, and alleged that his claim arose in New York on January 6, 2021. (Id.) He also listed "police" as a defendant within the body of the complaint.
By order dated February 16, 2021, the Court held that neither the State of New York nor the New York City Police Department (NYPD) was a proper defendant. The Court explained that any claims against the NYPD must be brought against the City of New York, and that to state a claim under § 1983 against the City of New York, a plaintiff must plead facts showing that some policy or custom of the City of New York caused a violation of his rights. The Court further held that the complaint failed to state a claim on which relief could be granted because Plaintiff did not plead any facts about what happened, who was involved in the events giving rise to his claims, or where it took place. The Court granted Plaintiff leave to amend his complaint.
On February 26, 2021, Plaintiff filed an amended complaint. In the amended complaint, Plaintiff alleges that his claims arose on January 21, 2021, though his original complaint asserted claims arising on January 6, 2021. In response to a question on the form complaint about the facts supporting his case, Plaintiff writes the following:
My name is Terrell Berfet and I'm getting threats of people killing me[. W]e should meet in person.(ECF 10 at 5.) He seeks $2.6 million in damages from the NYPD. On the same day that Plaintiff filed this complaint, he submitted to the Court a letter stating:
I would like to meet with you in person and talk with you about this ongoing event of your people talking and killing me or put[t]ing a bullet in me. Or I can record w[hat] they say so you can be me.(ECF 9 at 1.)
DISCUSSION
As set forth in the Court's prior order, as an agency of the City of New York, the NYPD cannot be sued in its own name. N.Y. City Charter ch. 17, § 396 ("[A]ll 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."); Jenkins v. City of New York, 478 F.3d 76, 93 n.19 (2d Cir. 2007). Instead, any claims against the NYPD must be brought against the City of New York. Plaintiff's claims against the NYPD must be dismissed as it is not a proper defendant.
Plaintiff also fails to plead facts plausibly suggesting that a policy or custom of the City of New York is causing a violation of his rights, despite being granted an opportunity to amend his complaint to do so.
Moreover, Plaintiff's claims lack "an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 324-25 (1989), abrogated on other grounds by Twombly, 550 U.S. at 555; see also Denton v. Hernandez, 504 U.S. 25, 32-33 (1992) (holding that "finding of factual frivolousness is appropriate when the facts alleged rise to the level of the irrational or the wholly incredible"); Livingston, 141 F.3d at 437 ("[A]n action is 'frivolous' when either: (1) the factual contentions are clearly baseless . . . ; or (2) the claim is based on an indisputably meritless legal theory.") (internal quotation marks and citation omitted). Even when read with the "special solicitude" due pro se pleadings, Triestman, 470 F.3d at 474-75, Plaintiff's claims rise to the level of the irrational, and there is no legal theory on which he can rely. See Denton, 504 U.S. at 33; Livingston, 141 F.3d at 437.
District courts generally grant a pro se plaintiff leave to amend a complaint to cure its defects, but leave to amend may be denied if the plaintiff has already been given an opportunity to amend but has failed to cure the complaint's deficiencies. See Ruotolo v. City of New York, 514 F.3d 184, 191 (2d Cir. 2008); Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988). The Court declines to grant Plaintiff another opportunity to amend his complaint, as it appears that it would be futile to do so.
CONCLUSION
The Clerk of Court is directed to mail a copy of this order to Plaintiff and note service on the docket. Plaintiff's amended complaint, filed IFP under 28 U.S.C. § 1915, is dismissed. 28 U.S.C. § 1915(e)(2)(B)(i), (ii). SO ORDERED. Dated: March 9, 2021
New York, New York
/s/_________
Louis L. Stanton
U.S.D.J.