Opinion
5:24-CV-1138 (DNH/MJK)
10-29-2024
PAUL BOVEE, Plaintiff, v. AUBURN POLICE DEPARTMENT, et al., Defendants.
PAUL BOVEE, Plaintiff, pro se
PAUL BOVEE, Plaintiff, pro se
TO THE HONORABLE DAVID N. HURD, U.S. DISTRICT JUDGE:
ORDER AND REPORT-RECOMMENDATION
MITCHELL J. KATZ, U.S. Magistrate Judge
The Clerk has sent to the court for review a pro se complaint filed by plaintiff Paul Bovee, in which he has sued various defendants based on several civil rights claims pursuant to 42 U.S.C. § 1983. (Dkt. No. 1) (“Compl.”). Plaintiff has also moved to proceed in forma pauperis (“IFP”). (Dkt. No. 9).
I. IFP Application
Plaintiff declares in his IFP application that he is unable to pay the filing fee. (Dkt. No. 9). After reviewing his application and supporting documents, this court finds that plaintiff is financially eligible for IFP status.
However, in addition to determining whether plaintiff meets the financial criteria to proceed IFP, the court must also consider the sufficiency of the allegations set forth in the complaint in light of 28 U.S.C. § 1915, which provides that the court shall dismiss the case at any time if the court determines that the action is (i) 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)(i)-(iii).
In determining whether an action is frivolous, the court must consider whether the complaint lacks an arguable basis in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989), abrogated on other grounds by Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) and 28 U.S.C. § 1915. Dismissal of frivolous actions is appropriate to prevent abuses of court process as well as to discourage the waste of judicial resources. Neitzke, 490 U.S. at 327; Harkins v. Eldredge, 505 F.2d 802, 804 (8th Cir. 1974). Although the court has a duty to show liberality toward pro se litigants and must use extreme caution in ordering sua sponte dismissal of a pro se complaint before the adverse party has been served and has had an opportunity to respond, the court still has a responsibility to determine that a claim is not frivolous before permitting a plaintiff to proceed. Fitzgerald v. First E. Seventh St. Tenants Corp., 221 F.3d 362, 363 (2d Cir. 2000) (finding that a district court may dismiss a frivolous complaint sua sponte even when plaintiff has paid the filing fee).
To survive dismissal for failure to state a claim, the complaint must contain sufficient factual matter, accepted as true, to state a claim that is “plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. (citing Bell Atl. Corp., 550 U.S. at 555).
In addition, Fed.R.Civ.P. 8(a)(2) requires that a pleading contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Although Rule 8 does not require detailed factual allegations, it does “demand[] more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Houston v. Collerman, No. 9:16-CV-1009 (BKS/ATB), 2016 WL 6267968, at *2 (N.D.N.Y. Oct. 26, 2016) (quoting Ashcroft, 556 U.S. at 678). A pleading that contains allegations that “‘are so vague as to fail to give the defendants adequate notice of the claims against them' is subject to dismissal.” Id. (citing Sheehy v. Brown, 335 Fed.Appx. 102, 104 (2d Cir. 2009)). The court will now turn to a consideration of plaintiff's complaint under the above standards.
II. Complaint
Plaintiff alleges that on May 9, 2024, he was “punched and suffered a fractured hand” by defendant Police Officer (“P.O.”) Parker, “after being pulled out of the backseat of a vehicle,” while “face down handcuffed on the ground [sic].” (Compl. at 4). Plaintiff further alleges that defendant P.O. Parker's “violent[ ] assault[ ]” was recorded, and the “excruciating pain caused [plaintiff] to” pass out. (Id.).
Plaintiff states that defendants P.O. Gray, P.O. Wetherell, and Sergeant (“Sgt.”) Young “allowed [defendant] Parker to br[eak] my right hand, discovered by Auburn Memorial Medical Hospital medical staff[.]” (Compl. at 4). Plaintiff was “admitted” for the injuries he sustained, which required a cast on his right hand. (Id.).
DISCUSSION
III. Excessive Force/Failure to Intervene
“Where . . . [an] excessive force claim arises in the context of an arrest or investigatory stop of a free citizen, it is most properly characterized as one invoking the protections of the Fourth Amendment ....” Graham v. Connor, 490 U.S. 386, 394 (1989); see also, e.g., Shamir v. City of New York, 804 F.3d 553, 556 (2d Cir. 2015) (explaining, “the use of excessive force renders a seizure of the person unreasonable and for that reason violates the Fourth Amendment.”). Here, to the extent the alleged constitutional violation occurred when plaintiff was “pulled out of the backseat of a vehicle” by law enforcement officers, his excessive force claim is properly assessed under the Fourth Amendment. See Graham, 490 U.S. at 394. When analyzing such a claim, the relevant “question is whether the officers' actions [we]re ‘objectively reasonable' in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.” Id. at 397 (citing Scott v. United States, 436 U.S. 128, 137-139 (1978)) (additional citation omitted).
At this stage of the proceeding, and mindful of the Second Circuit's direction that a pro se plaintiff's pleadings must be liberally construed, see e.g. Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008), the court recommends that plaintiff's excessive force claim against defendant P.O. Parker survive sua sponte review and require a response. See Lopez v. Gerace, No. 5:18-CV-00952 (MAD/ATB), 2019 WL 1260508, at *3 (N.D.N.Y. Mar. 19, 2019) (finding that “[d]espite its brevity, the complaint plausibly alleges that defendant used excessive force in effecting plaintiff's arrest[.]”). In doing so, the court expresses no opinion as to whether this claim can withstand a properly filed dispositive motion.
On the other hand, plaintiff fails to adequately plead a failure-to-intervene claim against defendants P.O. Gray, P.O. Wetherell, and/or Sgt. Young. To state a failure-to-intervene claim, a plaintiff must allege that “(1) the officer had a realistic opportunity to intervene and prevent the harm; (2) a reasonable person in the officer's position would know that the victim's constitutional rights were being violated; and (3) the officer [did] not take reasonable steps to intervene.” Jean-Laurent v. Wilkinson, 540 F.Supp.2d 501, 512 (S.D.N.Y. 2008). To determine whether the defendant had a realistic chance to intervene, courts in this Circuit consider a number of factors, including “(1) the number of police officers present; (2) the officers' relative placement; (3) the environment in which the officers acted; [and] (4) the nature of the assault.” Johnson v. City of New York, No. 15-CV-6915, 2019 WL 294796, at *9 (S.D.N.Y. Jan. 23, 2019) (citing Figueroa v. Mazza, 825 F.3d 89, 107-08 (2d Cir. 2016)). The duration of the alleged violation “will always be relevant and will frequently assume great importance.” Id.; see also, e.g., O'Neill v. Krzeminski, 839 F.2d 9, 11 (2d Cir. 1988) (finding that officers did not have realistic opportunity to intervene where another officer hit the plaintiff three times in rapid succession); Ross v. Willis, No. 16-CV-6704, 2021 WL 3500163, at *15 (S.D.N.Y. Aug. 9, 2021) (same where another officer pepper sprayed the plaintiff, because the spraying lasted only seconds); Arminio v. Holder, No. 15-CV-5812, 2019 WL 176804, at *6 (S.D.N.Y. Jan. 11, 2019) (“On some occasions, as in this case, the seconds it takes for excessive force to occur are not enough to provide an officer with a realistic opportunity to intervene.”).
Here, the complaint merely states that these defendants “allowed” P.O. Parker to break plaintiff's right hand. (Compl. at 4). Plaintiff provides no facts to support an inference that there was a sufficient opportunity for these defendants to intervene, much less to support the inference that these defendants were even present for the underlying alleged assault. Accordingly, plaintiff's failure-to-intervene claim should be dismissed.
IV. Fourteenth Amendment - Equal Protection
“Although the prototypical equal protection claim involves discrimination against people based on their membership in a vulnerable class, the Second Circuit has long recognized that the equal protection guarantee also extends to individuals who allege no specific class membership but are nonetheless subjected to invidious discrimination at the hands of government officials.” Panzella v. City of Newburgh, 231 F.Supp.3d 1, 6 (S.D.N.Y.), aff'd, 705 Fed.Appx. 50 (2d Cir. 2017) (quoting Harlen Assocs. v. Inc. Vill. of Mineola, 273 F.3d 494, 499 (2d Cir. 2001)) (cleaned up). There exist two theories for this kind of Equal Protection violation: “selective enforcement” and “class of one” discrimination. Bristol v. Town of Camden, 669 F.Supp.3d 135, 154 (N.D.N.Y. Apr. 19, 2023) (citing Bizzarro v. Miranda, 394 F.3d 82, 86 (2d Cir. 2005)). However, both selective enforcement and class-of-one claims require the plaintiff to “make a showing of different or unequal treatment.” Bristol, 699 F.Supp.3d at 154.
Here, plaintiff has asserted a Fourteenth Amendment claim, identifying his claim as seeking relief for the violation of his equal protection rights. (Compl. at 5). However, plaintiff has failed to allege that he is a member of an identifiable group, or that he was treated differently from a comparable plaintiff. Accordingly, his equal protection claims must fail. See e.g., MacPherson v. Town of Southampton, 738 F.Supp.2d 353 (E.D.N.Y. 2010) (finding plaintiff's equal protection claim deficient as a matter of law because plaintiff's complaint “failed to identify any comparators or similarly situated entities at all”).
V. Deliberate Indifference to Medical Care
“The Due Process Clause . . . does require the responsible government or governmental agency to provide medical care to persons . . . who have been injured while being apprehended by the police.” City of Revere v. Massachusetts Gen. Hosp., 463 U.S. 239, 244 (1983). “In fact, the due process rights of a person in [the arrestee's] situation are at least as great as the Eighth Amendment protections available to a convicted prisoner.” Id. (citing Bell v. Wolfish, 441 U.S. 520, 535, n. 16 (1979)). Such a plaintiff's claims for deliberate indifference to a serious medical need are governed by the same standard as a pretrial detainee when their claim arises from their arrest. See Maldonado v. Town of Greenburgh, 460 F.Supp.3d 382, 394-95 (S.D.N.Y. 2020). Accordingly, plaintiff's claim, to the extent it is construed as one for deliberate indifference to medical care, is governed by the Due Process Clause of the Fourteenth Amendment, rather than the Cruel and Unusual Punishments Clause of the Eighth Amendment. See Yancey v. Robertson, 828 Fed.Appx. 801, 803 (2d Cir. 2020) (citing Darnell v. Pineiro, 849 F.3d 17, 29 (2d Cir. 2017)). “This, in turn, requires a two-step inquiry .... First, the plaintiff must satisfy the ‘objective prong' by showing a sufficiently serious need .... Second, the plaintiff must meet the ‘subjective prong' which requires the officer to have acted with ‘deliberate indifference' to the challenged condition.” Id. (citing Darnell, 849 F.3d at 29) (international citations omitted). However, a claim for “ ‘deliberate indifference' does not require proof of ‘a malicious or callous state of mind' and is instead akin to recklessness, requiring a plaintiff to show that the official knew or should have known of the excessive risk to the plaintiff's health.” Id. at 803, n.2.
Plaintiff asserts a claim for “deliberation to take me to medical needs for the injuries I suffered the week long before I was seen by medical.” (Compl. at 5).
Here, plaintiff has failed to plausibly allege a claim for deliberate indifference to his medical needs. At the outset, plaintiff has failed to allege any facts to show which, if any, of the defendants were involved in his medical care, or alternatively denied him access to medical care. See Burton v. Lynch, 664 F.Supp.2d 349, 358 (S.D.N.Y. 2009) (dismissing deliberate indifference claims where the plaintiff “alleged no facts whatsoever linking [the defendant] to any alleged denial of medical care”); O'Dell v. Kajawski, No. 9:23-CV-1092 (TJM/DJS), 2023 WL 7986132, at *3 (N.D.N.Y. Nov. 17, 2023) (dismissing deliberate indifference claim where the court found “no basis to plausibly infer from the allegations in the amended complaint that defendant denied plaintiff access to medical treatment out of deliberate indifference to his serious medical needs.”). Nor has plaintiff alleged that the purportedly culpable defendant(s) knew, or should have known, that the week-long delay in treatment subjected plaintiff to a significant risk of serious harm. Because the complaint fails to plausibly allege both that plaintiff suffered an objective, sufficiently serious deprivation of medical care and that any defendant was deliberately indifferent toward plaintiff's medical condition, plaintiff's deliberate medical indifference claim should be dismissed.
VI. Defendant Auburn Police Department
“Although a municipality is subject to suit pursuant to section 1983, see Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690 (1978), a municipal police department does not have the capacity to be sued as an entity separate from the municipality in which it is located.” White v. Syracuse Police Dep't, No. 5:18-CV-1471(GTS/DEP), 2019 WL 981850, at *1 (N.D.N.Y. Jan. 7, 2019), report and recommendation adopted, 2019 WL 974824 (N.D.N.Y. Feb. 28, 2019) (citing Krug v. Cnty. of Rennselaer, 559 F.Supp.2d 223, 247 (N.D.N.Y. 2008)); see also Turczyn ex rel. McGregor v. City of Utica, No. 13-CV-1357 (GLS/ATB), 2014 WL 6685476, at *2 (N.D.N.Y. Nov. 26, 2014). Accordingly, the complaint as against defendant Auburn Police Department must be dismissed for failure to state a claim upon which relief may be granted.
Even if the court were to construe plaintiff's claims against the Auburn Police Department as against the City of Auburn, dismissal would still be warranted. A municipality may only be named as a defendant in certain circumstances. Pursuant to the standard for establishing municipal liability laid out in Monell, in order to set forth a cognizable claim for municipal liability under Section 1983, a plaintiff must plead and prove that a deprivation of his constitutional rights “was caused by a governmental custom, policy, or usage of the municipality.” Jones v. Town of E. Haven, 691 F.3d 72, 80 (2d Cir. 2012) (citing Monell, 436 U.S. 658); see also Vippolis v. Vill. of Haverstraw, 768 F.2d 40, 44 (2d Cir. 1985) (“The plaintiff must first prove the existence of a municipal policy or custom in order to show that the municipality took some action that caused his injuries beyond merely employing the misbehaving officer.”).
A municipality may be liable for deprivation of constitutional rights under Section 1983 for policies or customs resulting in inadequate training, supervision, or hiring when the failure to train, supervise, or hire amounts to deliberate indifference to the rights of those with whom municipal employees will come into contact. See City of Canton, Ohio v. Harris, 489 U.S. 378, 388-89 (1989). A plaintiff must also establish a causal connection - an affirmative link - between the policy and the deprivation of his constitutional rights. Oklahoma v. Tuttle, 471 U.S. 808, 823 (1985). Indeed, municipalities may only be held liable when the municipality itself deprives an individual of a constitutional right; it “may not be held liable on a theory of respondeat superior.” Jeffes v. Barnes, 208 F.3d 49, 56 (2d Cir. 2000).
In this case, plaintiff has offered no evidence that any such officer was acting pursuant to a policy or custom of the City of Auburn during the underlying incident. Accordingly, the city cannot be held liable for the constitutional violations alleged by plaintiff.
VII. Opportunity to Amend
Generally, before the court dismisses a pro se complaint or any part of the complaint sua sponte, the court should afford the plaintiff the opportunity to amend at least once; however, leave to re-plead may be denied where any amendment would be futile. Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir. 1993). Futility is present when the problem with plaintiff's causes of action is substantive such that better pleading will not cure it. Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (citation omitted).
Here, the court is recommending dismissal with prejudice as to defendant Auburn Police Department, because the department may not be sued under § 1983. With respect to the remainder of plaintiff's claims for which dismissal is recommended, the court cannot say at this early stage of the litigation that plaintiff would be unable to amend his complaint to state a viable claim. Thus, the court recommends providing plaintiff the opportunity to amend his complaint for the limited purpose of asserting those claims alleging constitutional violations surrounding his arrest and detention as set forth in his complaint, against the appropriate defendants. Plaintiff is reminded that if he intends to name the City of Auburn as a defendant, he must plead, and ultimately prove, that a deprivation of his constitutional rights was caused by a custom, policy, or usage of the municipality. Likewise, plaintiff must specifically identify the individual law enforcement officer, or any other defendant, he is alleging violated his constitutional rights, and provide facts sufficient to plausibly allege said defendant's personal involvement in the deprivation.
If the court approves this recommendation and allows plaintiff to submit a proposed amended complaint, plaintiff should be warned that any amended complaint must be a complete and separate pleading. Plaintiff must state all of his claims in the new pleading, including his excessive force claim against defendant P.O. Parker, and may not incorporate by reference any part of his original complaint.
WHEREFORE, based on the findings above, it is
ORDERED, that plaintiff's motion to proceed IFP (Dkt. No. 9) is GRANTED,and it is
Although his IFP Application has been granted, plaintiff will still be required to pay fees that he may incur in this action, including copying and/or witness fees.
RECOMMENDED, that plaintiff's claim for excessive force as against defendant P.O. Luke Parker proceed. However, the court will defer service on this defendant until the District Judge has the opportunity to review this Order and Report Recommendation and plaintiff has had the opportunity to amend his complaint, if appropriate, and it is
RECOMMENDED, that this action be DISMISSED WITH PREJUDICE as against named defendant AUBURN POLICE DEPARTMENT, and it is
RECOMMENDED, that plaintiff's complaint otherwise be DISMISSED WITHOUT PREJUDICE, and that, if the District Court adopts this recommendation, plaintiff be given thirty (30) days to amend his complaint to the extent authorized, and that plaintiff be advised that any amended pleading must be a COMPLETE PLEADING, WHICH WILL SUPERSEDE THE ORIGINAL, and that plaintiff must include all remaining facts and causes of action in the amended complaint. No facts or claims from the original complaint may be incorporated by reference, and it is
RECOMMENDED, that if the District Court adopts this recommendation, and plaintiff does not elect to amend his complaint within the imposed deadline, the case be referred back to me for orders relating to service, and it is
RECOMMENDED, that if the District Court adopts this recommendation, and plaintiff files a proposed amended complaint, the proposed amended complaint be returned to me for review, and it is
ORDERED, that the Clerk of the Court serve a copy of this Order and Report Recommendation on plaintiff by regular mail.
The Clerk shall also provide plaintiff with copies of all unreported decisions cited herein in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the parties have fourteen (14) days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Sec'y of Health and Hum. Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(e), 72.